Thursday, January 22, 2009

Presidential Oath Precedents

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

-- U.S. Constitution, Art. II, Sec. 1


"He should probably go ahead and take the oath again," Turley said. "If he doesn't, there are going to be people who for the next four years are going to argue that he didn't meet the constitutional standard. I don't think it's necessary, and it's not a constitutional crisis. This is the chief justice's version of a wardrobe malfunction."

-- Prof. Jonathan Turley
Although we might wish it were grounds for impeachment and removal from the bench, we're on the side of those who say the stumbling administration of the presidential oath by Chief Justice John Roberts was of no legal consequence. Nevertheless, so we're now being told, the Chief asked for a do-over, just to be sure. The second swearing-in happened last night in the privacy of the oval office.

Smart move. There are too many litigious right-wing nuts out there, ready to sue at the drop of a syllable. In any event, taking a Mulligan in the administration of the presidential oath is not unprecedented.

Chester A. Arthur became president (to the consternation of just about everyone who considered him a political hack, including himself) when James A. Garfield was assassinated. He had the oath administered by a New York state court judge.

Later, he reconsidered the stickiness of an oath administered by a lowly state court judge, and took it again, this time with the help of the Chief Justice of the U.S. Supreme Court.

In somewhat similar circumstances, Calvin Coolidge was sworn in by his own father, a Vermont notary public, after learning that Warren G. Harding had expired of a heart attack brought on by too much sex and booze. Coolidge, too, later re-took the oath with a federal judge.

Perhaps the closest precedent to Justice Roberts' screw-up, as the Legal Times blog reminds us, occurred when Herbert Hoover's presidential oath was garbled by then-Chief Justice William Howard Taft. Interestingly, however, neither man thought it necessary to re-do it.
Taft's recitation of the oath had Hoover swearing to "preserve, maintain, and defend" the Constitution instead of the "preserve, protect, and defend" formulation set forth in the Constitution.
[T]he only one to notice the error was an eighth-grade girl from upstate New York who heard the blunder on the radio. She wrote Taft, who replied that he was quite sure he had made a different error, stating "preserve, maintain and protect." He chalked up the error to "an old man's memory."

But that was not the end of it. The schoolgirl, named Helen Terwilliger, stuck to her guns, and the dispute became something of a public controversy. Three newsreel companies checked their tapes and pronounced the girl correct. Taft eventually confessed error, but shrugged it off. "After all, I don't think it's important."

Apparently it wasn't; Hoover was not sworn in again.
As long as we're mining this arcane historical subject, there's one last item we want to mention. Franklin Pierce, who probably would be ranked as the worst president in history if James Buchanan, Richard Nixon, and George W. Bush hadn't come along later, declined to swear his presidential oath. Instead, he affirmed. He was a Quaker and took literally the biblical injunction not to swear an oath.

Solid precedents, all, but, candidly, none a good president.

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