PRESIDENTS AS TRADITION CREATORS AND TRADITION KEEPERS.

• Author: Starr, Kenneth
• Position: A - Symposium on Executive Power

1. INTRODUCTION

   On January 20, 2017, America paused to celebrate the inauguration of our nation's 45th President. The November 2016 election resulted in an enormous surprise. Although the former Secretary of State, Hillary Clinton, commanded a three million popular vote advantage, our federal system--with the Electoral College standing as a bulwark protection of small states' political power--carried the day for the disruptive candidate who had never sought political office. (1) Donald Trump's election proved, yet again, that in America anything can happen.

   President Trump's speech will long be remembered for its unprecedentedly harsh tone and the ensuing controversy over the size of the crowds gathered around the National Mall. The few unremarkable moments of the day included those trappings, such as the morning inaugural parade and evening balls, which have over the centuries become customary for the inaugural-occasion.

   One lesser-known tradition takes place at a small, historic parish located directly across Lafayette Square from the White House. In 1933 Franklin Delano Roosevelt began the practice of worshipping at St. John's Episcopal Church on inauguration morning, which has been followed by every incoming President since. Since it opened in 1816, every sitting American President has visited "the Church of the Presidents"; there is even a pew reserved for the nation's leader and his family. (2)

   The sermon that President-elect Trump heard at St. John's on inauguration morning included a quotation from a speech by Ronald Reagan while he was in Dallas for the 1984 Republican National Convention, which serves as an apt segue into the basic thesis of this essay: Presidents act as tradition creators and tradition keepers. With the tone of an Old-Testament prophet, Reagan admonished the crowd, "[America needs God more than God needs America]. If we ever forget that we ['re] one nation under God, then we will be a nation gone under." (3)

   The Constitution is stonily silent on inaugural parades and balls. Indeed, not even inaugural speeches are required by the Constitution: Lyndon B. Johnson was sworn in during a hastily-arranged ceremony in Air Force One following the assassination of John F. Kennedy. Obviously, there is nothing about an inaugural worship service in the Constitution. Some observers would doubtless view such an official part of inauguration day as contra-indicated by the text of the First Amendment and the unifying principle of the separation of church and state. Yet, even from the very beginning, the textually required inaugural oath has been embellished by extra-textual symbols and traditions.

   The country's first inaugural ceremony took place at Federal Hall in New York on April 30, 1789. At 9:00 a.m. that morning New York's church bells began ringing, and continued to do so for half an hour. Local newspapers anticipated the significance of this event: "[T]he bells will ring at nine o'clock, when the people may go up to the house of God and in a solemn manner commit the new government, with its important train of consequences, to the holy protection and blessing of the Most High." (4)

   At 2:00 p.m. George Washington placed his hand on a 1767 King James Bible--acquired at the last minute from St. John's masonic lodge nearby--and recited the oath administered to him by the Chancellor of New York, Robert Livingston. After completing the constitutionally-obligatory oath, Washington reportedly kissed the Bible reverently, closed his eyes in an attitude of devotion, and whispered: "So help me God." (5) This common account credits Washington with inspiring the longstanding tradition of ending the Presidential oath by admonishing God's blessing and aid.

   After finishing the oath, Livingston turned to the buzzing street below and shouted, "Long live George Washington... President of the United States!" (6) The church bells pealed back in celebration.

   The first leader of our fledgling nation, in his first inaugural address, gives as his "first official [a]ct" the "fervent supplication[] to that Almighty Being who rules over the Universe... that [H]is benediction may consecrate to the liberties and happiness of the People of the United States." (7) From the very beginning, America's Presidents have reinforced the notion that the history and hopes of the nation must be committed to Providence. Washington goes on to acknowledge and express gratitude for God's blessing: "Every step, by which [the United States] have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency." (8) Washington suggests it would be fitting, especially in such a moment, for the country to take on the disposition of "pious gratitude along with a[] humble anticipation of the future blessings which the past seem to presage." (9)

   At the close of Washington's ceremony, the inaugural party--both senators and congressmen--proceeded to St. Paul's Church. (10) Divine Service and Te Deum were celebrated with Reverend Samuel Provost, Episcopal Bishop of New York, who also served as the first Chaplain of the Senate. (11)

   What are we to make of all of these religious trappings? Was this commingling of the civil and the religious some early hiccup, a false start in our nation's commitment to its founding principles? Before jumping to conclusions, we might consider that Washington's inauguration was planned and attended by the greatest body of constitutional scholars the country has known. It was the members of Congress, a fourth of whom participated in the Constitutional Convention, who organized and directed the schedule of events for Washington's inauguration--not to mention the fact that Washington himself signed the Constitution. (12)

   It is clear that the founders saw, and sought to establish, a role for religion in the traditions of their new nation. But this begs the question: to what purpose? Why is it important that the country's leaders, the representatives of the people, incorporate the religious into the symbolic functions of their offices? Such is not required by the Constitution, so why not cast off the material--and political--expense of these gestures towards higher power? If not required by the Constitution is this not all superfluous, an inessential extravagance of American political life?

   Not quite. Much of our constitutional life together is unwritten, and born exclusively of custom and tradition. These extra-textual glosses are part and parcel of what Yale Professor Akhil Amar has wisely dubbed "Our Unwritten Constitution." (13) To draw from Justice Oliver Wendell Holmes in a different context, "a page of history is worth a volume of logic." (14) If we wish to understand our constitutional order, our presidentially-guided traditions can be as much--if not more--instructive as any political science course or newspaper editorial.

   The President of the United States is both a tradition creator and a tradition keeper. In other words, the President provides an experiential commentary on the text and structure of the Constitution. As with the Supreme Court by its decisions, the President of the United States--by his actions--is a co-interpreter and co-creator of our constitutional tradition, giving flesh to the bare-bones text.

2. PRESIDENTS AS TRADITION CREATORS

   Elaborating on the minimalist text of the oath of office, presidentially-created inaugural traditions have erected a structure built to emphasize religious faith. Remember again the inauguration of our 45th President. President Trump's inaugural ceremony featured six religious leaders, more than any other inauguration in history. (15) The list included Paula White, Rev. Franklin Graham, Rev. Samuel Rodriguez, Archbishop Timothy Dolan, Rabbi Marvin Hier, and Bishop Wayne T. Jackson. (16) Cardinal Timothy Dolan asked God to give President Trump wisdom; Samuel Rodriguez, President of the National Hispanic Christian Leadership Conference, read from the Sermon on the Mount; Rabbi Hier prayed: "[Lord], [b]less President Donald J. Trump and America our great nation." (17)

   President Trump, too, made a point of petitioning for God's blessing in his inaugural speech: "We will be...