Democratic Citizenship and Civil Political Conversation: What's Law Got to Do With It? - Marianne Constable

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 63 No. 3

Democratic Citizenship and Civil Political Conversation: What's Law Got to Do with It?

by Marianne Constable*

I have been asked to talk about democratic citizenship and civil conversation and what law has to do with it. I have been asked in particular: How are legal traditions and legal conversations implicated in our common life as citizens and, I presume, as residents, and in our political conversation? What can law contribute toward a restoration of the virtues required for democratic citizenship and civil conversation? At first, I thought about this second question as a question about the resources of law for repairing or mending political conversation.

Put this way though, the question is too easy to set aside. For while law is a matter of language and speech, legal language and conversations are not strictly "resources" to be put to use this way. Rather, I would argue, in answer to the question of how law is implicated in our common life, as did Hannah Arendt in The Human Condition,¹ that laws are the walls of the city or polis. And language is the medium of law. It is more than a tool or resource; it constitutes the shelter from which we know the world and act in it. As a matter of language or speech, law is susceptible to the many difficulties of other sorts of speech, including that ofpolitics and ofordinary conversation. That law is a matter of language reinforces the significance of the issue raised by this symposium; unfortunately, it does not contribute the resources that would solve it. Let me suggest another way of getting at the issue of law and the current state of political speech.

We often hear, as we have at this symposium, that our political discourse is in bad shape. For this reason, many worry about democra-

* Professor, Department of Rhetoric, University of California, Berkeley. University of California, Berkeley (B.A., 1978; J.D., 1987; Ph. D., 1989). 1. See Hannah Arendt, The Human Condition (1958).

878 MERCER LAW REVIEW [Vol. 63

cy. If public or political discourse is in such bad shape though, why are we worried about democracy as such? We should worry first about discourse, or about language and speech. In the longer work from which this lecture is drawn, I suggest that there are at least two discourses, which overlap with political discourse, that indeed attend very carefully to language. These are the discourses of law and of the humanities. (I leave it to this audience to consider the place of theology.) They indeed have their own pathologies, but though these discourses may lie or deceive or go wrong in other ways, they are not careless in the ways that ordinary and political speech may be. In what follows, I will first refer to the episode of President Obama's 2009 inaugural oath to get at some distinctions between careful and careless speech. I will then take a quick and dirty look at how our law treats language.

Carefulness about language is crucial because carelessness poses a worse danger to speech-whether political, democratic, or ordinary-and to the ways words bind us than do ignorance and lies. Falsehoods and deception, even ignorance, can be called out, challenged, and addressed, as indeed they often are in law and in education. But when speakers and hearers fail to notice what is being said and how, words threaten to lose their ability to shelter us and to show us our world.

I. Obama's Oaths

On January 20, 2009, Barack Hussein Obama was sworn into office as President of the United States. Or was he? Before Chief Justice Roberts, who himself had stumbled slightly over his words, Obama swore that "I, Barack Hussein Obama, do solemnly swear . . . [t]hat I will execute . . . the office of President of the United States faithfully . . . . I will to the best of my ability . . . [p]reserve, protect and defend the constitution of the United States .... So help me God."² A flurry

2. The transcript of Obama's Oath is available at the Blog of the Linquistics Graduate Student Association (LGSA), "Constitution vs. Cooperation." The Case of Syntax and Oath of Office, LGSA Fledgelings Blog (Jan. 20, 2009), http://fledgelings.blogspot.com/2009/ 01/constitution-vs-cooperation-case-of.html.

1. Roberts: I, Barack Hussein Obama [do solemnly swear]

2. Obama: [I, Barack]

3. Obama: I, Barack Hussein Obama, do solemly swear.

4. Roberts: That I will . . . execute the office of President to the United States

faithfully.

5. Obama: That I will execute . . . (nods to Roberts)

6. Roberts: the off-faithfully the Pres-office of President [of the United States.]

7. Obama: [the office of President] of the United States faithfully.

8. Roberts: And will to the best of my ability.

9. Obama: I will to the best of my ability.

2012] WHAT'S LAW GOT TO DO WITH IT? 879

of Internet activity about "oafs of office" followed the inauguration ceremony.³ On Wednesday, January 21, Obama again took the oath: "I do solemnly swear that I will faithfully execute the office ofPresident of the United States . . . ."⁴ A January 21st White House press release briefly explained:

We believe that the oath of office was administered effectively and that the President was sworn in appropriately yesterday. But the oath appears in the Constitution itself. And out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time.⁵

Today, the incident appears trivial. Many claim that the words were an empty formality: Obama had become President at noon on January 20 anyway, they claim, even before his first oath, when George W. Bush left office.⁶ But it is one thing for schoolchildren to repeat their lessons properly; it is another for one of the most powerful men in the world to do so. The White House's "abundance of caution" over "one word out of sequence" in an oath that it nevertheless believed was "administered effectively" enough that the President had been "sworn in appropriately" reveals the importance of language to lawyers-and Obama is nothing if not a lawyer's lawyer.⁷ Were it not for the second oath, might there have been grounds for claiming that President Obama had not been sworn in "appropriately"? that Judge Roberts had not administered the

10. Roberts: Preserve, protect, and defend, the constitution of the United States.

11. Obama: Preserve, protect, and defend, the constitution of the United States.

12. Roberts: So help you God?

13. Obama: So help me God.

14. Roberts: Congratulations Mr. President.

*Brackets "[]" represent overlapping speech. Parentheses represent paralinguistic cues. Periods "." represent pauses. Hyphens "-" represent truncated speech. Text in bold represents a change made to the transcription (after the original post time stamp).

Id.

3. See, e.g., Steven Pinker, Oaf of Office, N.Y. Times, Jan. 21, 2009, http://www.nytimes .com/2009/01/22/opinion/22pinker.html; Maggie Haberman, Roberts is the Oaf of Office, N.Y. Post, Jan. 21, 2009, http://www.nypost.com/p/news/politics/item_UlPvnxqumx9f0OzdV3 pjwL.

4. See Press Release, Office of the Press Secretary, The White House (Jan. 21, 2009), http://www.whitehouse.gov/the-press-office/statement-white-house-counsel; see also U.S. Const. art. II, § 1.

5. Press Release, supra note 4.

6. See, e.g., Jeffrey Toobin, Supreme Flub, The New Yorker Blog (Jan. 20, 2009), http://www.newyorker.com/online/blogs/thy/2009/01/supreme-flub.html.

7. See Press Release, supra note 4.

880 MERCER LAW REVIEW [Vol. 63

oath "effectively"? that Obama was not actually President? or that he need not "faithfully execute the office"?

The seemingly trivial incident of Obama's retaking the oath opens up matters that, as we shall see, are far from trivial. The words as Obama first uttered them raise potential issues of appropriateness, of legitimacy, of obligation-grand matters usually associated with moral, political, and legal responsibility. Obama's repetition of the words in a different order in the second oath ostensibly resolves those issues. How could his words do these things? How can words raise, address, and resolve...