Balkinization: Harmless Constitutional Error?

Harmless Constitutional Error?

Michael Stokes Paulsen

Touche! I greatly enjoyed Jack Balkin's skewering of strict textualism and formalism ("Why Barack Obama Still Isn't President"), even though I am an apostle of these methods. Alas, I was hoping Jack was serious. But sadly (for the house conservative), I must concede that Barack Obama lawfully holds, and properly could "enter on the execution of" the Office of President of the United States.

Reeling, knocked to the ground by Jack's devestating demolition of originalist textualism, struggling to pick myself up, and depressed generally, I am driven by desperation to suggest some saving constructions for originalist methodology.

Is it possible, for example, for a departure from the Constitution to be a real, actual departure from the Constitution (understood according to its original public linguistic meaning) but yet be of no constitutional consequence? Is there a (legitimate) doctrine of "harmless constitutional error"?

A great parody comes just close enough to the real thing to cause discomfort. Jack's parody is great, for that reason. The trick is to start with your (hypothetical or real) opponent's actual position, embrace it, and then carry it off to logical absurdity. (In fact, I'm not sure I jumped off Jack's train until he got to the "unitary" executive meaning that do-overs were not permitted.)

Here's the part of Jack's modest proposal that actually seems right: The Roberts-Obama muff had the (purported) President of the United States reciting the oath in a manner not fully consistent with the language of the Constitution. One might even say that the oath actually recited "violated" the Constitution(!). In like fashion, I would fully agree (with Jack?) that the insertion of a name, "so help me God," or "hey nonny nonny and a hot cha cha" is a departure from the language of the presidential oath prescribed by the Constitution. Each example is, in a sense, literally "un-constitutional."

Perhaps, for additions, rather than deletions, a better term would be extra-constitutional, so long as what is added does not subtract or detract from what remains. George Washington's traditional addition "so help me God" does not so much "violate" the Oath Clause (we will save for another day whether it violates the Establishment Clause) as add something of his own -- a little presidential speech, as it were, no different in principle from the giving of an Inaugural Address (which also goes beyond the Constitution's requirements). So too, "hey nonny nonny and a hot cha cha" adds something -- akin to Inaugural balls and parties. If it subtracts anything, it subtracts dignity and gravitas. It does not subtract from the oath.

The accidental rearrangement of "faithfully" strikes me as a deviation from the Constitution that does not subtract or detract from the oath.

But for the sake of argument let's call the deviation "unconstitutional." What is the legal effect of this constitutional violation? Can a violation of the Constitution ever be "harmless," in the sense that it does not matter to anything? I, too, along with a fearful nation, was greatly relieved that the oath was, later, faithfully executed. But even a pig-headed formalist (like me) thinks that some "violations" of the Constitution simply are not material. They do not affect constitutional powers or privileges in any way.

This is different from saying that (material) violations of the Constitution may be waived. And it is different from saying that (material) violations of the Constitution may be validated by contrary historical practice or judicial precedent. It is also much different from saying that (material) violations of the Constitution vanish just because they may be non-justiciable for some reason. It is of course different from saying that certain provisions of the Constitution are themselves immaterial. And it is different from saying that the meaning of the Constitution may be amended by practice. ("So help me God" is not part of the Presidential Oath Clause, and has no valid constitutional legal status.) I would take none of these positions, so help me God!

It is saying, only, that some departures from the Constitution are so immaterial as to have no constitutional consequence. There is such a thing as harmless constitutional error.

Now, what if the President (-designate), whether or not abetted by the Chief Justice, substituted the word "probably" for the word "faithfully" or otherwise materially mitigated the obligation of the oath? The answer is that this too would be "unconstitutional," but unlike the Obama Oath Flub, this would be a constitutional violation that mattered. (This does not answer the question of what the remedy or consequence would be for such a constitutional violation.)

In like fashion, it matters whether Hillary Clinton's appointment as Secretary of State violates the Emoluments Clause of Article I, Section 6 (as I have argued it does, in a post for the Volokh Conspiracy, and long ago argued similarly with respect to Lloyd Bentsen, in a post for the Stanford Law Review) -- though the consequence or remedy for Hillary's unconstitutional appointment is now unclear and troubling. The violation of the Constitution's language (if violation it be) is a material one.

So too if it really were the case that Barack Obama is not a "natural born Citizen" within the meaning of Article II, section 1, cl. 5, that would be a material violation of the Constitution. It would matter -- though what to do about it would be unclear and troubling. We wouldn't say that the violation is immaterial, and that Arno could become the next president, because this provision of the Constitution does not matter.

Am I wrong that mistaking where "faithfully" goes in the oath is in a different category? Does my suggestion of the possibility of harmless constitutional error contain the seeds of destruction of everything I believe about constitutional interpretation? Is it simply ad hoc interpretive bias smuggled in the backdoor? Or is there really something to this "straining out a gnat and swallowing a camel" stuff?

Posted 11:56 AM by Michael Stokes Paulsen [link]