Balkinization  

Thursday, January 22, 2009

Why Barack Obama Still Isn't President

JB

I know what you are saying: Didn't Barack Obama and John Roberts repeat the oath of office before the cameras on Wednesday?

They did. But it makes absolutely no difference. Barack Obama is still not President and may not execute the powers of that office.

To begin with, it is completely clear that Obama did not recite the oath prescribed in the Constitution at his inauguration on Tuesday. Article II, section 7 provides:

7. 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 the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

At Roberts' suggestion, Obama placed the word "faithfully" after the word "States." This should make no difference, you may say. But no, the text of the oath is prescribed in the Constitution and it may not be varied in any way in order to be legally effective. Anyone who says differently does not understand what it means to have a written constitution.

Do you mean to suggest, for example, that Obama could add the words "hey nonny nonny and a hot cha cha" in the middle of the oath and it would be equally effective? Can he add the words "only if I feel like it" at the end of the oath? Surely you jest! And if your position is that he can make any changes he wants as long as they do not materially alter the oath, who is to decide whether the changes are material or not? That is why we have a written constitution, a Constitution that makes clear that he shall say just these words, and no others.

Obama's attempt at a re-do makes no difference. The well-known doctrine of the Unitary Executive suggests that the President-elect gets one shot at taking the oath correctly. If he flubs it, that's it! He can't execute the powers of his office. After all, Unitary means "one." Clearly if the President could take the oath repeatedly, he wouldn't be very Unitary, now would he?

Suppose, however, that one rejects this utterly compelling argument based on the sacred and indisputable doctrine of the Unitary Executive. Obama's do-over still fails. That is because Obama callously deleted words from the oath and added words that are not in the Constitutional text. Surely if he may not move the word "faithfully" around in the text he may also not add or delete words either.

In this case, Obama added the words "Barack Hussein Obama" after the word "I" and "So help me God" at the end of the oath. Furthermore, he deleted the words "(or affirm)."

The mind boggles at this display of utter lawlessness. How could Obama and Chief Justice Roberts engage in such blatant editing of the sacred constitutional text? Can't they just read the words of the Constitution without editorializing? It is precisely this hubris on the part of judges and politicians that leads to the dreaded disease of "living constitutionalism," in which government officials add words to the constitutional text that aren't there and delete words that they find inconvenient. It is simply outrageous that both Roberts and Obama feel that they must flaunt their living constitutionalism before our very eyes in their faux Presidential oath of office!

But you may object, no president since George Washington himself has read the constitutional text verbatim since the founding of the Republic. They have all inserted their names into the text in a raw display of egotism, and then added the words "So help me God." In addition, all the Presidents have deleted the words "or affirm" with two exceptions, when a President-elect deleted the words "swear" and "or." If the addition and deletion of words in the oath makes the oath ineffective, you may argue, no President has ever legitimately executed his office.

To which I say, so what? Are we a government of laws or a government of men? Do we have a written constitution that is the supreme law of the land or do we simply have a set of suggestions that can be cavalierly discarded whenever they would offend the sensibilities of a President-elect? The Constitution's text is clear. It is up to us to follow it with blind and mindless obedience. If a President-elect cannot read a simple text faithfully without editorializing, he doesn't deserve to be the President. And if no President has been able to resist thinking he knows better, then none of them have lawfully acted as our nation's Chief Executive.

But, you may object, didn't Barack Obama became President anyway on noon of Inauguration day, because of the 20th amendment? Of course not. The text of the 20th amendment is perfectly clear on this point:
1. The terms of the President and the Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
It is obvious to any schoolchild that the phrase "the terms of their successors" refers to the terms of Senators and Representatives, and not to the terms of the President and Vice-President. That is because an all important comma separates the two clauses. Moreover, the Twentieth Amendment did not explicitly repeal the Oath Clause of Article III, and it is clear from this clause that the President cannot begin to execute the powers of his office until he takes the oath.

I am sure that many people wish that the President could edit the oath of office however he likes, for example, adding his own name and the words "so help me God." But these people do not understand what it means to have a government founded on a written constitution. Perhaps the failure of Barack Obama to become President, and the crisis that ensues, will serve as a lesson to them to hew more closely to the genius of our founding fathers.



* * * * *

UPDATE: I had thought it would be obvious to everyone that the above blog post is a parody, whose arguments are not to be taken seriously. Surely the silly argument about the Unitary Executive which makes a pun on the word "unitary" should have been a tip off. Indeed, as the blog post proceeds, the rhetoric gets ever more ridiculous. But since some people seem not to have gotten the joke, and have actually been engaging with the arguments, believing that I meant them seriously, let me state for the record that the above blog post was a parody, and let me also state my views (seriously):

First, the above parody *is* correct to the extent that the constitutional text for the Oath has never been literally recited as it appears in the Constitution, from George Washington forward. Each president has inserted his own name into the text and chosen to say either "swear" or "affirm," leaving out the other alternative. No one doubts that this is permissible. Each president, to my knowledge, has also added the words "So help me God." Whether this violates the Establishment Clause (I doubt it) it should not violate the requirement of taking the oath. The goal of the Oath clause is admonitory and if the President wants to add "And boy, I really take this oath seriously" or the like after the oath, I don't see why this extra editorializing is impermissible. Since there is a long (and to my knowledge) unbroken precedent of implementing the requirement of the oath in this way, we should not insist on a precise verbatim recitation where there has been no material alteration in the substance of the oath. Hence when President Obama took the oath the first time, it was sufficient for purposes of the Oath clause. (Mis)led by Chief Justice Roberts, he simply moved one word to a different location without changing the meaning of the oath. President Obama then took the oath a second time out of an "abundance of caution." At this point, no one should doubt that the constitutional requirement has been complied with. (For those of you who are wondering, the doctrine of the "Unitary" executive does not mean that you only get one shot at the oath. That's a joke.)

Second, the purpose of the oath is admonitory. It is a public undertaking to uphold the Constitution. It is not a condition precedent to becoming president. The 20th Amendment states when the terms of the President, Vice-President, Congressmen and Senators begin. The "argument" offered in the parody to the contrary, is just that, a parody of an argument. The semi-colon between the two clause makes clear that "their successors" refers to all four positions, including that of the President.

Third, one might argue that the President may not engage in executive functions until he (properly) takes the oath; but any such requirement in the Oath clause has probably been modified by the twentieth amendment which states when the President's term (and hence his executive power) begins. Suppose you try to harmonize the two by arguing that Obama is President as of noon but lacks executive authority until he (properly) takes the oath, and suppose further that in the interim he signs an executive order or makes a nomination. Even if we granted that this is a technical violation of the Oath clause, there is probably no judicial remedy. Moreover, since the President can cure the problem by taking the oath and simply reissuing the executive order or nomination, there is little reason to think that the error is a serious one.

In case you are wondering, this addendum is not a parody. Nor is the last sentence saying it is not a parody a parody. And so on, and so on, and so on. . . .


Comments:

Obama's attempt at a re-do makes no difference. The well-known doctrine of the Unitary Executive suggests that the President-elect gets one shot at taking the oath correctly.

How precisely does the fact that Article II grants all executive power to the President prohibit the President elect from restating the oath correctly?
 

Jack, it's good to see that humor did not depart with George W's departure. Once again you have opened the wounds of originalism versus living constitutionalism into which constitutional scholars can pour salty language. Little Lisa's bro, the textualist, is all a dither with your challenge of Obama's presidency. The Balkin "one shot" doctrine will be heard 'round the world, with the support of the 5-4 Heller decision.

But what about VP Joe Biden? Does he step in as President? And then does he designate Hillary Rodham Clinton as VP?

If challenges are made (by right wing yahoos) that get to SCOTUS, would CJ Roberts recuse himself? If so, at least there wouldn't be a 5-4 (either way) decision. Can you imagine Justice Scalia at oral arguments acting like James Cagney with his "Mr. Roberts'" role, perhaps pointing out that Sen. Obama did not vote in favor of Roberts' appointment? And might Justice Alito give Obama a second snub by not recusing himself.

Gilbert and Sullivan, where are you when we need you?
 

Nice bit of satire for the morning! Thanks, Jack.
 

The 20th Amendment states that the terms of the President and VP shall end at noon, and the terms of their successors shall then begin. Biden took his oath a few minutes before noon, then we heard an excerpt from Copland's "Appalachian Spring," and then Obama took his oath a few minutes after noon. According to the 20th Amendment, Obama became President at noon, even before he took the oath.

Article I, section 1, states, "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation ...." Thus, if Obama took the oath incorrectly, it means only that he may not execute his office. He is still the President.
 

Oh the sarcasm, it burns!
 

Even if you reject Balkin's reading of the 20th Amendment, there is another objection to Obama's legitimacy: as Bush's successor, Obama's term did not "then begin", because after his attempt to take the oath, we had to sit through a period of insufferable poetry.
 

Prof. Balkin:

Don't feed the loony-toons. They're markedly sarcasm impaired, and may well take this as encouragement from a "noted law professor".

Cheers,
 

[Prof. Balkin]: Obama's attempt at a re-do makes no difference. The well-known doctrine of the Unitary Executive suggests that the President-elect gets one shot at taking the oath correctly.

["Bart"]: How precisely does the fact that Article II grants all executive power to the President prohibit the President elect from restating the oath correctly?


Aw, c'mon, "Bart", I thought you were smart enough to understand plain English:

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."

If he's already "enter[ed] on the execution of his office" (which he did in signing nominations, etc.), he lost his one shot to do it right.

And to add to the complication, once he screwed it up by "execu[ing] his office" before taking the prescribed oath (or affirmation), he has already violated his oath (or affirmation) to "faithfully execute the office of President of the United States, and [] to [], preserve, protect and defend the Constitution of the United State".

Anyone can see that. It's right there in the text.

Cheers,
 

I was a third of the way through the article, wondering if you had somehow lost your mind, when it became obvious that it was satire. I think I've been reading too many right-wing conspiracy blogs.
 

This is a totally different subject.. but i was wonder where his Original Birth Certificate is??? I guess what I am asking is ...is he a Citizen of the USA?? I guess the world will never know....
 

Effective parody requires a deep understanding of what you're parodying; This effort, more than anything, persuades me that you have no understanding of originalism.
 

IT doesn't surprise me that this is still getting so much attention. Everything Obama says or does will be talked about for so long. I am just shocked that there weren't cameras and videos streaming the retake live for people to follow from wireless internet connections (mine in Portland)as it was happening.
 

i was wonder where his Original Birth Certificate is??? I guess what I am asking is ...is he a Citizen of the USA?? I guess the world will never know....

If the Republicans are smart they will pound away at this question for the next four years and make it the centerpeice of their 2012 campaign.

It's a sure winner.
 

bravo.

you know your wingnuts.
 

Brett:

Your comment that Jack Balkin has no understanding of originalism is emblematic of the single greatest intellectual failing of American movement conservativism.

Jack Balkin is a Professor of Law. He has written numerous works on originalism. Not only that, he is an expert on statutory construction more generally (meaning that he knows about ALL the major competing theories of interpretation, not just originalism), and is the author of "The Crystalline Structure of Legal Thought", the single greatest article I have ever read on the subject.

In other words, you are dealing with an EXPERT here. You can disagree with him. You can think he's wrong. You can think he hasn't weighed the arguments properly, or that he is biased, or that he is ignoring more persuasive claims.

But to say "Jack Balkin doesn't understand originalism" is the equivalent of someone saying "Barack Obama doesn't understand politics" because he disagrees with his policy proposals, or a Keynesian saying "Milton Friedman didn't understand monetary policy" because he disagrees with Friedman's proposals and ideas.

I assure you that yes, Jack Balkin understands originalism. Indeed, the reason you don't get this joke is because it is aimed squarely at your position, expressed in numerous comments, i.e., that someone who disagrees with your preferred methods of constitutional interpretation isn't simply disagreeing with you, but "isn't interpreting the Constitution" or "doesn't understand what it means to have a written Constitution".

Interpretation is difficult, and the jurisprudential and philosophical theories behind theories of interpretation are not nearly as clear or as definitive as conservatives pretend. (In fact, conservatives themselves jettison originalism and textualism when they want particular results, but that's another discussion.)

Just once I'd like to see a conservative popping off about interpretation discuss HLA Hart's famous exposition on the meaning of "no vehicles in the park". But that would require that you guys actually read Hart and understand why the problem he poses is indeed a problem. But you have no interest in doing that. You'd rather simply call one of the foremost experts in this subject area an ignoramus.
 

Brett:

Effective parody requires a deep understanding of what you're parodying; This effort, more than anything, persuades me that you have no understanding of originalism.

Rather presumptuous of you to suggest that Prof. Balkin has "no understanding of originalism". Your assertion would have much more force if you could describe in which ways the law professor here is lagging your exquisite understanding.

Cheers,
 

Obviously this situation can only be resolved through impeachment. Is it on the table?
 

Dick:

Impeachment would work well if you hoped to remove the President from office. However, as he isn't the President, impeachment would seem to be impossible.
 

Further reflection reveals yet another way in which Obama's oath is undoubtedly invalid.

Like all presidents before him (I suspect but cannot confirm, as it is not the place of constitutional originalists to concern themselves with historical application of the one true text), Obama recited his oath in call-and-response fashion as administered by the chief justice. But if you look at the oath as it is rendered in Article II s. 1, the oath contains commas. As any dictionary will tell you, commas are used in written speech to indicate pauses. But Obama did not pause only at the textually prescribed commas: he paused at irregular intervals and waited for the chief justice to recite anticipated words or phrases.

Why would the constitution have included these commas if it had intended presidents to substitute their own judgment and insert pauses willy-nilly? It beggars disbelief.

The clear import of the constitutional text is that the president elect, at precisely noon and neither earlier nor later, must recite the oath unaided and in one breath, pausing at precisely the moments prescribed. This trial of stamina comports with the framers' intention that presidents meet a threshold of vigor, as indicated by the employment of "I will" and "will", in lieu of "I shall" and "shall", throughout the oath.
 

Note, however, that the implications of the subjunctive ("Before he enter on the execution of his office. . .") in Article II must be given further and closer regard in this matter. The framers may have been employing a contrary-to-fact construction of the entire clause.
 

Henry: "The 20th Amendment states that the terms of the President and VP shall end at noon, and the terms of their successors shall then begin. Biden took his oath a few minutes before noon, then we heard an excerpt from Copland's "Appalachian Spring," and then Obama took his oath a few minutes after noon. According to the 20th Amendment, Obama became President at noon, even before he took the oath. "

I'm afraid not, because the 20th amendment says that the new president's terms begins as soon as the former president's term ends, but... whom is Barack Obama suceeding? Who is Barack Obama's predecessor?

If we take the US written constitution seriously, including the Oath clause, George W. Bush was not a president either, and therefore W's term did not end on Tuesday at noon, because his presidential term never began.

In order to determine when Barack Obama's presumptive presidency should begin, first we should find a valid predecessor whose term has ended. Otherwise, Obama's term will simply never begin.
 

Furthermore, Obama has still not produced a "long form" Certificate of Live Birth as required by Article I, Section IV of the Constitution.
 

I'm sure that Balkin does understand originalism/textualism, but, granting that he does, this post can only be taken as a willful distortion of what it's supposedly satirizing, because it really is that far off the mark.
 

That was very good. It seemed reasonable for awhile (in the wingnut "reasonable" way) then slowly, using the same logic, drifted into the absolute absurd. well done.
 

A most cogent analysis. One of the most important duties of the chief justice is to assure the valid transition of power. One would certainly hope those brave souls now arguing that Obama is not president because of the chief justice's maladministration of the oath will also begin a campaign to impeach the chief justice for his improper discharge of his duties.
 

Every time I return to see the latest additions I'm greeted by the extra treat of seeing Bart's offering at the top of the stack, playing straight-man for our host. Churlish, perhaps, to say so, but it makes the Professor's jest that much funnier for me.
 

This comment has been removed by the author.
 

I understand the satire here, but this got me thinking, if we took the argument seriously, would this mean Bush is still president, or there is no president?

The 22nd Amendment seems to me to forbid only a president being ELECTED twice, meaning perhaps that Bush would be allowed to continue.

But now let's move from one fantasy to another. Let us speculate that Obama does a terrific job, is reelected, and does a terrific job again. Now his second term is over, but he's young and Democrats want more. Can he not choose a "dummy" candidate to run for President, select him as Vice President, and, after taking the oath, resign thus making Obama President again?
 

I don't know how to read law, but I know this point is wrong:

But, you may object, didn't Barack Obama became President anyway on noon of Inauguration day, because of the 20th amendment? Of course not. The text of the 20th amendment is perfectly clear on this point:

1. The terms of the President and the Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

It is obvious to any schoolchild that the phrase "the terms of their successors" refers to the terms of Senators and Representatives, and not to the terms of the President and Vice-President. That is because an all important comma separates the two clauses.


A semicolon joins two independent clause, so the sentence after the semicolon applies to both clauses before it, i.e. both the one about Executive and the one about the Legislatures.

For it to apply only to clause about the Senators, that clause would have to be able to stand on its own.

It does not because it depends on the verb "shall end" contained in the first clause; hence, the Senator clause is defendant on the first.
 

tray:

Bear in mind that Balkin's satire is not simply directed at originalism per se. He surely isn't, for instance, targeting Randy Barnett, even though Randy Barnett labels himself an originalist.

Rather, he's targeting a particular rhetorical pose adopted by some self-proclaimed "originalists" (including folks such as Brett and Bart DePalma, conservative talk radio hosts, and sometimes some legal luminaries such as Justice Scalia), that the folks that disagree with them aren't simply wrong or using the wrong interpretative metric, but aren't interpreting the Constitution at all and have no idea what it means to have a written Constitution.

He is showing how absurd THAT rhetorical technique is, by deploying it to advance a silly contention that Barack Obama isn't really President.

If you realize EXACTLY what Balkin is parodying (i.e., not originalism itself, but the offensive, condescending rhetorical tone that non-originalists don't know what it means to have a written Constitution), then you will see that he hits the bulls-eye.
 

I just watched a rerun of PBS' "Make 'Em Laugh" that featured Lennie Bruce, George Carlin, the Smothers Brothers, etc, and now the Constitutional Comedy at Balkinzation featuring "Brat [sick] and Bertt [sicker]" who are seriously in need of sense of humor transplants. I expect an SNL skit "Here cum de judge - twice!" to commemorate this double-robing, double-swearing, double-disrobing plot of the Most Dangerous Branch of Government to repeat Bush v. Gore via the back door.
 

Reb Akeeva asked, "Wherefore is it stated that the President shall choose of four oaths before he enter on the execution of his office?"

Reb Gamliel responded, in the Constitution, as it is said, he shall take the following oath or affirmation, as it is said, I do solemnly swear or affirm, as it is said. The following oath is one, affirmation is two, swear is three, and affirm is four.

Some other bearded guy asked: Wherefore is it stated that the President shall choose of eight oaths?

Sidney said: The following oath, as it is said, means that there is an oath, and then that there is a following oath. So if there were four oaths before, there are eight now.

Reb Koufax asked: What about sixteen?

Jackie Mason responded: Sure, because what with the numbers, and the letters, and what have you. Go with that.

But Bronson Pinchot said: Of course not. Don't be ridiculous.

etc.
 

But Bronson Pinchot said: Of course not. Don't be ridiculous.

You've made my day, sir.
 

My favorite deviation from constitutional or common law practice was the mini-inquisition by Roberts:

"So help you God?"

Obama: "So help me God"

I'm pretty sure that Roberts was trying to get Obama to exactly repeat his words, which would transfer the power to Roberts, kind of a bait and switch strategy.
 

In keeping with the spirit of this post, I regret to inform Prof. Balkin that he is totally wrong and his ineptitude in Constitutional interpretation is exposed for all to see. To wit, he says:

To begin with, it is completely clear that Obama did not recite the oath prescribed in the Constitution at his inauguration on Tuesday.

This is ludicrous. Balkin is a member of that inept contingent of scholars who substitute tradition for true originalism. Nothing, nothing I say, in the Constitution requires all the fol-de-rol and tomfoolery that Balkin and his ilk refer to as 'inauguration'. Indeed, the founding fathers opposed this sort of weak-tea royal formalism. Just because that worthless, anti-textualist so-called Justice Roberts bumbled the oath and ruined President Obama's public recitation of the oath, that doesn't mean that Obama didn't take the oath. 'Inauguration' is just a show put on for the weak-minded. Obviously, Obama took the oath privately. Otherwise, he wouldn't be President and clearly, he is President. He's been issuing executive orders and sitting in the Oval Office. Balkin's analysis is just the sort of thing that gives true textualist originalism a bad name because he give credence to 'practice' and 'precedent' instead of staying true to the exact wording of the Constitution and nothing more. This adding to the Constitution is just as bad as ignoring its plain language.
 

My observation is that there are a helluva lot of nits being picked here by a helluva lot of nitwits, Balkin included
 

That's incredibly cute, and I'm sure this site would have an equally cute post if Bush had done something similar.

Meanwhile, if Balkin would like to try his hand at something that no one else wants to tell the truth about, maybe he see if he can offer a grown-up, open-minded, logical, completely valid counter-argument to this:

http://24ahead.com/s/obama-citizenship

Sometimes I feel like I'm living through Idiocracy.
 

LonewackoDotCom:

Sometimes I feel like I'm living through Idiocracy.

Typo there. But that and the other are both your crosses to bear.

Cheers,

P.S.: You've already got your own website to pursue the more mundane and less profane. Use it, and see if you can refrain from fouling those of others.
 

maybe he see if he can offer a grown-up, open-minded, logical, completely valid counter-argument to this:

http://24ahead.com/s/obama-citizenship


That's a wonderful site! Here I thought Jack's satire would be king for a day, but you've proven me wrong. All this and a Bronson Pinchot reference in one day...
 

It's been my experience that experts in a wide field are perfectly capable of not understanding a particular school of thought in that field, particularly when they are violently opposed to it. All things being equal, it's hard to understand things you disagree with.

But I suppose it could be that he simply doesn't understand parody...
 

All things being equal, it's hard to understand things you disagree with.

You've opened up a rather expansive field of ignorance for yourself haven't you, Brett?

OTOH, maybe the only one who understands the truth is YOU!
 

It's been my experience that experts in a wide field are perfectly capable of not understanding a particular school of thought in that field, particularly when they are violently opposed to it. All things being equal, it's hard to understand things you disagree with.

This is the worst kind of anti-intellectual claptrap.

Brett, academics make it a standard practice to understand points of view they disagree with. They teach opposing points of view in their classes. They cite and distinguish and refute them in their scholarship. They take questions from people with different points of view in faculty workshops and oral presentations and conferences.

You really have no idea, do you? You seem to think that the broad and scurrilous allegations lobbed regularly by right-wing talk-show types and politicians against academics are true.

Professor Balkin not only understands originalism, he has presented originalist views in his classes, discussed his scholarship with and debated originalist scholars, and researched and cited originalist positions in his publications.

It is a mighty amazing thing that conservatives think they can pull off when they haughtily dismiss experts as if they know nothing beyond their own narrow point of view.

Truly, you need to meet and talk with some of the academic experts whom you decry as not understanding contrary views. Experts disagree with you because they have thought about things and think you are wrong, Brett, not because they are stupid or don't know what they are talking about.
 

One problem comes to mind.

As noted by Justice Scalia (joined by clear originalist -- Justice Thomas) in his dissenting decision in McCreary v. Stone there is a "God" exception to even those provisions that explicitly seem to suggest otherwise, such as the First Amendment.

The alternative is to threaten our well being after attacks on our soil. [Distasteful citation of 9/11 removed] Thus, "so help me God" is acceptable here. As, probably, emphasis of "faith" by changing the order of some form of the word. After all, George Washington said the word in a speech at one point.

It is suggested that you hold your copy of your Constitution up to the light, and this will be clear.
 

PMS Chicago, you are correct that as a non-President, it is logical that Mr. Obama cannot be impeached. But unless Congress defies logic (part of the job description) and puts him on trial, there will be no practical way to seize Mr. Obama and return him to private life.
 

JB says subsequent to this post, on Jan. 22nd:

"On a more serious note, the four Executive Orders signed by President Obama today are very good news. In a series of four posts I reprint them and briefly describe their contents."

Yes, those four Executive Orders issued by President Obama are more serious than this post, but only if Obama is legitimately President. Based upon comments to this post, some seem to believe that Jack meant to be serious with this post on "Why Barack Obama Still Isn't President." The prefatory language to Jack's subsequent post quoted above suggests that Jack was speaking with forked constitutional tongue in cheek. Consider for how long it took for SCOTUS (5-4) in Heller to explain away the prefatory "militia" language of the Second Amendment. Isn't it time for Jack to 'fess up: Was this post parody, satire or just good oldfashioned originalism? Jack has "Balkanized" commenters at Balkinization on this issue. What was Jack's intent? What is the meaning of the words he used? How do we, his public, understand the words he used? Let's put this to bed quickly, Jack, or your post will fester for the next four years, and perhaps another four thereafter. Tell us clearly, Jack, were your constitutional fingers crossed? Your "one shot" doctrine on the Unitary Executive doesn't apply to you; you can give us a do-over, just don't over-do it. The Fat Lady must sing.
 

If Obama is not really the President, should CJ Roberts be impeached for failing to do his job and later trying to cover-up Obama's lack of office by taking part in a phony do-over?

BTW, as to Prof. Balkin's latest, John Dean over at Findlaw provides an interview with Philippe Sands, who has been mentioned in the past.

In passing, I noted the listing of "Matrix Chambers" ... yes, that is the one in part set up by Cherie Booth, aka the wife of Tony Blair.
 

Here is the link to John Dean's recent piece in FindLaw Joe referred to:

http://writ.news.findlaw.com/dean/20090123.html

Phillipe Sands' upcoming Epilogue should be interesting.
 

As a conservatism originalist myself I can attest that Professor Balkin does indeed have an excellent understanding of conservative originalism, although the vast majority of left-of-centre critics of it do not.

An excellent understnding. Too good in fact. I think we're going to have to do something about him....
 

Joe aroused my curiosity with his reference to Matrix Chambers and Cherie Booth, wife of Tony Blair. Here is a link to an interesting article:

http://www.dailymail.co.uk/news/article-1051548/Cherie-Blairs-law-chambers-lost-business-Tony-left-No10.html

on the economics of Booth's law firm after her husband left office. I assume all is well with the UK's conflicts laws. Perhaps Mourad can elucidate. It seems the revolving door may have gotten a little jammed with Tony's farewell for his spouse.

Also, is "conservative originalism" a tad redundant? Or can we expect to hear from "liberal originalists" or "Mugwamp originalists"?
 

Ah, "originalism" - defined as "What I have decided, based on my personal wishes and beliefs, the authors actually meant by what they wrote." Even the most entertaining freshman literary analysis doesn't get that convoluted and rarefied. Even mass-media political analysis.
 

Did comments get deleted from newer threads again? I won't come back here if comments are disallowed permanently. The comments are where I actually conduct most of my learning. At least the latest thread was worth the read:

http://balkin.blogspot.com/2009/01/harmless-constitutional-error.html

I have actually heard some Obamaniacs contend that it doesn't matter whether he is a "natural born" citizen. Talk about a cult.
 

Charles:

I haven't heard anyone say it doesn't matter. But I have certainly heard people say it is nonjusticiable, i.e., that the Constitution textually commits to the Congress and the Electoral College the task of certifying whether a candidate is eligible, and a candidate who wins on election day, convinces the Electoral College to elect him or her, and convinces the Congress to certify the vote cannot have his or her eligibility to be President overturned by the courts.

Of course, Powell v. McCormack would suggest (but not compel) that this position is incorrect. (As a matter of originalism and textualism, though, I am almost certain that it is correct.)

In this sense, essentially, it would mean that if the public and the people's representatives decided to ignore the Constitution and vote for someone not constitutionally qualified to take the office, they would be able to get away with it. But that's because you really don't want the judiciary overturning election results (recall how the events leading to Bush v. Gore tore the country apart and you can see why this is the case). It's up to the people to obey the Constitution in this respect, and if the people decide not to, the judiciary really isn't institutionally situated to stand in their way.
 

Even for election fraud?! LOL
 

Dilan:

Under the "nonjusticiable" theory, Congress could still impeach and remove him, right? Or, is The One immune from that too?
 

I have heard that as well: "No weapon that is formed against thee shall prosper; and every tongue that shall rise against thee in judgment thou shalt condemn. This is the heritage of the servants of the LORD, and their righteousness is of me, saith the LORD."
 

Michael Stokes Paulsen has outdone his namesake the late Pat, once a presidential candidate, with his constitutional tongue in (his own?) cheek response to Jack Balkin's alleged parody "Why Barack Obama Still Isn't President" with his "Harmless Constitutional Error" posted today, which includes:

"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."

Usually such error takes place when a judge makes a decision in a case before him. Here, the flub was by a Justice of SCOTUS performing what seems to be a ministerial function ministering an oath of office called for in the Constitution, not in a legal proceeding before him. This flub has not been addressed formally in a case before a judge. So there is no judicial error in the normal sense involving a harmless constitutional error. Usually it is an appellate court that determines that there may have been a constitutional error by a lower court and that such error is harmless. All Jack seems to have done with his post is a little harmless consitutional fun, showing that our national sense of humor may have been restored after eight years during which George W may not have "faithfully" executed the office of the President, etc.

We lack a definitive response from Jack that his post was indeed constitutional comedy, a spoof on originalism. In fact, his prefatory "On a more serious note" with a later post may just have been a tease. Keep in mind that if a joke has to be explained, especially by one not a teller of the joke, the result may be hermeneutical. Sometimes a joke should just be enjoyed, even by the butt of the joke.

Let's see if SNL has a skit on this tomorrow night: "Here cum de Judge - Twice!"
 

Charles:

Of course. In fact, impeachment is already established as nonjusticiable under the aptly named United States v. Nixon (that would be Judge Walter Nixon, not President Richard Nixon!).

So the Congress, despite the limitation of "high crimes and misdemeanors" in the Constitution, could certainly impeach a President on a claim that the President wasn't qualified to hold the office, and the courts would not review or reverse that ruling.

The reality of nonjusticiability doctrines is that it means that the actors are still technically bound by the Constitution, but can get away with disobeying it. We allow this to happen when the cost of judicial intervention outweighs its benefit. And when you are talking about overturning election results, that argument seems pretty strong to me.
 

It doesn't seem strong to me in the face of election fraud!

Maybe if the American people, Electoral College, AND Congress were fully informed of Obama not being a "natural born" citizen and knowingly proceeded forward notwithstanding, I could see your point. That's not what happened here. "Justiciable" from the Powell v. McCormick case:

"Two determinations must be made in this regard. First, we must decide whether the claim presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a 'political question' — that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution."

I would argue that the Supreme Court is the ultimate arbitor as to the Constitutional definition of "natural born" citizen pertaining to an alleged usurper President.
 

It is a shame balkinization is not having comments on some recent threads. I found Prof (?) Michael Stokes Paulsen's fascinating, and worthy of debate.

Particularly:


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!


and


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.


Why is one material and the other not, if we are going to assume the potential of harmless Constitutional error? In the first, Pres Obama mis-oathed. But the meaning of the oath, in a slightly different order, was still the same – he is to faithfully execute the office, or execute the office faithfully. With regards to Sec. Clinton, while the emolument did go up (and then back down), she is not violating the purpose of the clause, i.e. not getting a larger income because of her legislative perogatives. Much like where the word “faithfully” goes, why is the fact that the income went up and down material to her qualifications or abilities? Pragmatically, the modest increase, even if she were to take it, is meaningless to her net worth (it's not like she passed a law on Dec 31 giving the SoS a $34,000,000,000 salary). Once you go down this road, and allow subjective considerations of materiality in, there is no longer the purity of the absolute meaning of the written text. I don't see this as “mattering” - sure it is probably against the text, but actually material? Prof Stokes Paulsen, you are gonna have to do more to sell me on this.

That's why fashioning a “harmless Constitutional error” makes no sense. It does exactly what textualists claim living constitutionists do: allow personal policy to be substituted for the written law. So, instead, textualists must allow for the ridiculous and absurd results from violations of the text. It is only fitting for a ridiculous and absurd interpretive “theory.”
 

The Constitution makes specific references to an "Army" and a "Navy" but none to an "Air Force." Do textualists make the claim that our "Air Force" is unconstitutional? The size of the "Air Force" is not trivial - and it is not harmless.
 

Chuckles, are you planning to keep beating that poor horse for the next 8 years?
 

Nerp, I'm pretty sure Prof. Paulsen is having a little fun, showing he can do on his side what Jack did for his side, well, er, that is, Paulsen can do to Jack's side what Jack did to Paulsen's, or, more importantly, that all sides oughtta have a frimpin' sense of humor.

Charles, if turning off comments drives you back under the wingnut rock from under which you crawled, I'm all for it. We actually could survive with RSS and our own blogs.

Bartbuster, count on it. Flogging deceased equines is about all some folks are going to have left for a couple of weeks.
 

Are they switching off comments section permanently? Or just trying to run Charles off by omitting comments sections he pollutes?
 

EL,

Jokes and sniping aside, our hosts have previously from time to time disabled comments on given posts. I think Jack is pretty judicious about it and while I sometimes chafe I sure can't blame him on either general nor particular grounds. Usually it's when the post seems destined to bring out the worst in some of the regulars (myself included, I suppose).

Peace,

rl
 

Charles:

1. You have a curious concept of "election fraud". The claim that Obama wasn't a citizen was aired, discussed, and evaluated. It was contradicted by the official custodians of records in Hawaii as well as by contemporaneous newspaper accounts at the time of Obama's birth.

Thus, the public had the chance to evaluate the claim, and they either rejected it or decided it didn't matter, as did Congress and the Electoral College. That still looks like a political question to me. (And I concede that Powell went the other way-- I don't think Powell was rightly decided, but I accept that if it was correct, it might be applied to hold that the courts can determine the qualifications of the President. And I think that would be a horrible decision.)

2. If some document came out that was a smoking gun that despite all that evidence, it turned out Obama wasn't who he said he was, Congress could impeach him, and the public, if it was sufficiently exercised about it, could demand such an impeachment (or probably force the President's resignation). And the decision whether or not to impeach IS a nonjusticiable political question under Nixon. So there is clearly a remedy if it turned out that there actually was fraud in a presidential election.

3. I have to say one other thing about this. I don't want to say that the "natural born citizen" requirement is irrelevant-- it isn't-- but it also isn't really the same thing as, say, the government suppressing someone's First Amendment rights.

In other words, if the public went ahead and elected a non-natural-born citizen President, and that decision were not reviewed and reversed by the courts, that person would either do a good or a bad job and would be judged on his or her merits, just like any other President. And whether or not the person did a good or a bad job would have nothing to do with the person's citizenship status.

In other words, it's important to recognize that nobody's rights are really violated by electing a president who wasn't born a citizen of this country. It doesn't do any necessary harm to anyone.

Given that fact, I think there's good reason to question the motives of people making these arguments. What do they hope to gain? Why is it so important to go spelunking into the past to determine what did or didn't happen in Hawaii almost 5 decades ago? What possible relevance does this have to the problems we face now as a nation.

At bottom, this is of course a non-issue because the relevant agency has certified that Obama was born in Hawaii, and there is contemporaneous corroborating evidence. And it is a non-issue because it should be held a political question. And it is a non-issue because the public can demand impeachment if new information comes out.

But it is also a non-issue because the constitutional requirement that Obama be born a citizen of this country is simply of little real importance or relevance to the job. It is therefore the domain of cranks and not something the rest of us should sweat too much over. Obama was born where he was born, he was duly elected President, and he has serious problems to confront. Let's move on and let him do so.
 

LOL! Constitutional requirements are "simply of little real importance or relevance to the job"? Is that the same as "harmless error" that Prof. Paulsen was joking about?

I can think of at least TWO people whose rights were directly violated by electing someone who wasn't born a citizen of this country. If that's the case, how can you possibly claim with a straight face that it didn't do any necessary harm to McCain or Palin? Alan Keyes (who had NO CHANCE of winning even if Obama had been disqualified) still has legal standing for his lawsuit out here in California.

Thanks for the laughs though.
 

FYI: http://www.politickerca.com/benvandermeer/3211/alan-keyes-files-suit-over-obama-citizenship-question
 

I can think of at least TWO people whose rights were directly violated by electing someone who wasn't born a citizen of this country

You and Bart?
 

As I stated, McCain and Palin.
 

Wait, have they ever been seen in the same place at the same time?

Charles, if the agency responsible for handling birth certificates says that Obama was born in Hawaii, then I really don't understand your objection at all.
 

Dilan,

Out here in California our Governor will be pleased by your line of reasoning. I think the better argument is that there was ample opportunity to dig up the dirt and convince the folks who needed to be convinced before the election. That process resulted in accepting Obama's candidacy, election, and administration.

May I email you privately? I did not find your address at your blog. You can reach me here or at:
beau (at) oblios-cap (dot) com
 

They were violated by the voters, not Obama.
 

This comment has been removed by the author.
 

Thanks Shag for the links; I caught the "Matrix Chambers" reference since I read Cherie Blair's autobiography, where she discusses the matter.

It was an good read and recommended for those interested.
 

PMS_Chicago:

As I understand the law in effect at the time, babies born outside of Hawaii could nonetheless register said birth in Honolulu. At most, the agency responsible for handling birth certificates says that Obama's birth was registered properly.
 

I wish I could stay and play, but I'm outta here for the weekend. Hopefully, comments will be turned back on Monday.
 

Dilan:

Thus, the public had the chance to evaluate the claim, and they either rejected it or decided it didn't matter, as did Congress and the Electoral College. That still looks like a political question to me.

So did the U.S. Supreme Court. Despite froot-loop Berg filing a third time, and getting <*cough-cough*> Nino Scalia to agree to get the court to look at it, after Souter and Kennedy had laughed in Berg's face, the Supes tossed it as well. Here's the gory details of a pathetic excuse for a life.

Charles still hasn't gotten the news ... but then again, he's living on Uranus.

Cheers,
 

Shag:

I adhere to the view to the view that "originalism" is a heterodox "quaint form of ancestor worship", unknown (thank God) as a respectable method of constitutional interpretation outside the USA, so while I enjoyed Professor Balkin's exquisitely feline satire, and while it was delightful to see the house LSR fall for it, I didn't think there was too much I could add, but now that the thread has gone off topic, I suppose I can respond to your request for elucidation of Booth/Blair, the bar, Matrix Chambers, conflicts etc.

1. The "split profession".
As you know, we have a split profession: Solicitors and Barristers. In general barristers are instructed by solicitors and the barrister does not have a direct relationship with the lay client. One of the big differences between the two branches is that solicitors handle client money while barristers do not. Therefore quite a lot of the solicitor regulation is concerned with protecting client money.

Solicitors generally practice in partnership - and since the client contracts with the firm and not the individual and since the knowledge of one partner is imputed to the others, all the usual problems of conflicts of interest arise, particularly as a consequence of mergers and acquisitions either between clients or between law firms.

Barristers are not inpartnership. Each barrister is a sole trader. They share accommodation and administrative support staff in the Chambers they practise from, but the knowledge of one barrister is not imputed to another.

There are, of course professional conduct rules for both of the professions: Bar Code of Conduct and Solicitors' Code of Conduct

The way we do things might be surprising to a US lawyer. Many barristers and solicitors sit as part time judges. I have seen cases where a member of chambers has been sitting as a deputy Judge and quite by coincidence two other members of his chambers have appeared before him, one for the Plaintiff and one for the Defendant. The funniest example of social relations getting a barrister into trouble is, I think, from Hong Hong where a member of the bar took the Judge in a case which was ongoing on an evening hydrofoil trip to Macao where both sampled the pleasures of a girlie bar/massage parlour. Censuring the barrister for professional misconduct, the chairman of the disciplinary tribunal was heard to remark (and I think only partly in jest) that "if Mr X had thought to invite the other side to go along too, then everything would have been quite alright."

2. The Daily Mail
I forget who it was who once described the Daily Mail newspaper as being "written by schoolboys for schoolboys". It has always had a fairly nasty populist right-wing streak. for example it was the Mail which in 1924 published the forged Zinoviev Letter 4 days before the general election in which Ramsay McDonald's Labour government was defeated. The Mail was also editorially supportive of both Mussolini and Hitler until 1939 and supported the Neville Chamerlain policy of appeasement. It only changed sides pro tem when Poland was invaded and reverted to type post 1945.

Today it takes a generally "Little England" approach: anti-EU, anti immigration (excpet for whites), anti-abortion, anti crime, pro traditional - family, pro conservative, and is much read by conservative women whose husbands take the Telegraph. It is a tabloid and I think ranks below the Sun (Murdoch's red-top rag) selling about 1m copies a day.

Since the Mail is anti-human rights, Members of Matrix Chambers, many of whom who are prominent in Human Rights cases, are a natural target for a rag like the Mail.

3. Matrix Chambers
Matrix is a newish set - only founded in 2000. As the most prominent HR set it was naturally involved in a huge amount of litigation in the immediate aftermath of the incorporation of the European Convention on Human Rights into domestic law by the Human Rights Act 1988, probably the most important step in our human rights law since our 1689 Bill of Rights.

(As an aside, why not do something similar in the USA? There is an American Convention on Human Rights to which the USA is a signatory. Why not practice what you preach?)

The Mail piece is confected out of very little. It was Lord Irvine of Lairg QC, Lord Chancellor in the Blair I administration who pushed for the enactment of the Human Rights Act, his former pupil, "poodle" Blair was much more ambivalent and became seriously pissed off when the HRA started to impact on the executive, particularly in relation to the so-called "war" on terror. The government looses quite a high proportion of the cases, which is why a lot went to the House of Lords when controversies were at their peak. Barristers' earnings are not public information and the earnings figures are pure guesswork

BTW Derry Irvine became a bit of a figure of fun in 1998, when details of the renovations carried out on his official residence were made public. They cost a total of £650,000, including hand-printed wallpaper worth £59,000. The movies were spent to renovate what is a national heritage building and I do not suppose Irvine had any choice in the matter, but politics is a cruel world.

I recall a discussion which included some members of the judiciary at which Derry's title was discussed. It was suggested that "Lairg" was an acronym rather than a place name (in fact untrue) and various suggestions were put forward - including "Legal Aid Is Rarely Granted" - but the winner was a Judge who suggested "Laura Ashley Is Really Georgeous".

Cherie Booth QC is of course Mrs Blair in private life. While Blair was PM I think she did not take cases for or against central government. They started out as barristers together. But Cherie was always a far better lawyer than the poodle - which may be why he went into politics. She probably earned considerably more than he did throughout his career and probably lost quite a lot of work while hubby was PM.
 

I can't make up my mind whether all you idiots are worse at Constitutional interpretation or at simple reading. It is perfectly plain from the clear language of Art. II, sec. 1, cl.8, that an invalid oath has no effect on who is President. The Twentieth Amendment says when the person certified by the Electoral College becomes President. The Oath Clause plainly states, "Before he enter on the Execution of the Office, he shall take the following Oath ..." But who is this mysterious "he"? The last antecedent is, as found in the prior Clause, "The President." Only someone who is already "the President" is even allowed to take the Oath. All the lack of oath does is prevent the President from "enter[ing] on the Execution of his Office," that is, walking into the Oval Office while a death sentence is being carried out! I mean seriously, can't you read?
 

"American Convention on Human Rights to which the USA is a signatory"

Has it ratified it?
 

Joe: I understand that it has not - see Round Table discusses Ratification.

Hence my observation that perhaps it is about time that the USA starts practising what it preaches. It is all very well speaking of "life, liberty and the pursuit of happiness" while denying the people protections which enable them to enjoy those things in fuller measure.
 

I thank Mourad for his response to my request on Booth/Blair. As I read through his response, I wondered what if Michelle Obama decided to practice law during her husband's presidency. Consider Mourad's closing paragraph:

" Cherie Booth QC is of course Mrs Blair in private life. While Blair was PM I think she did not take cases for or against central government. They started out as barristers together. But Cherie was always a far better lawyer than the poodle - which may be why he went into politics. She probably earned considerably more than he did throughout his career and probably lost quite a lot of work while hubby was PM."

I wonder if some of Cherie's clients might have had the perception that by engaging her in a matter not involving the central government might provide their cases with an edge. If Michelle Obama were to join a firm in Washington, D.C., there might be only a few matters that she could handle to avoid conflicts. But clients on non-conflicting matters might perceive that engaging Michelle or her firm might provide them with an edge. I'm sure if Michelle considered practicing there would be a humongous outcry. Personally, I don't think that "Chinese Walls" are protective in the law, lobbying or financial institutions.

On the subject of textualism/originalism, I strongly recommend a read of Prof. Nelson Lund's "The Second Amendment, Heller, and Originalist Jurisprudence" available via SSRN:

http://ssrn.com/abstract=1324757

Prof. Lund agrees with Scalia's basic decision of an individual right and self defense. But over many, many pages he skewers and barbeques Scalia's failure to adhere to principles of originalism and history, especially with Scalia's many additional comments (dicta) on potential limitations on such individual right. Here's the final sentence of Prof. Lund:

"Judging from the Heller opinions, not a single member of the current Court takes originalism, or the purpose of the Second Amendment, quite that seriously."

Prof. Lund does not reveal what limitations, if any, on such individual right might be appropriate under principles of originalism. But one of his students at George Mason University School of Law, Josh Blackman, does in his "Originalism for Dummies, Pragmatic Unoriginalism, and Passive Liberty/An Originalist Critique of the Heller Dissents and Judges Posner's and Wilkinson's Unoriginalist Assault on the Liberty to Keep and Bear Arms" that somehow passed muster with SSRN and is available via:

http://ssrn.com/abstract=1318387

Josh is a JD candidate, May 2009 and serves as Articles Editor, George Mason Law Review. Perhaps the apple hasn't fallen far from the tree. (I am not suggesting that Prof. Lund agrees with Josh's article.) But read Josh's article and weep. I guess we'll all have to strap 'em on for self defense.

But both Prof. Lund's and student Blackman's articles may serve to expose the limits of originalism. And especially, Prof. Lund convincingly demonstrates that Scalia strays away from originalism when convenient. (Presumably Scalia may not want unfettered individual gun rights, civilized gentleman that he is.) Maybe Jack Balkin is up for another spoof.
 

Shag wrote:-

"I wonder if some of Cherie's clients might have had the perception that by engaging her in a matter not involving the central government might provide their cases with an edge. If Michelle Obama were to join a firm in Washington, D.C., there might be only a few matters that she could handle to avoid conflicts. But clients on non-conflicting matters might perceive that engaging Michelle or her firm might provide them with an edge. I'm sure if Michelle considered practicing there would be a humongous outcry. Personally, I don't think that "Chinese Walls" are protective in the law, lobbying or financial institutions."

Shag: I think Washington is very differently organised from London.

UK Law Firms do not get involved in lobbying. That the work of PR firms.

Leading Counsel broadly only do two things (they advise on difficult issues of law) and they present major cases at trial (ours being an oral system). Cherie Booth's clients are not the public (individual or corporate) but the law firms who send her instructions. They will be concerned in retaining Counsel best able to give sound advice and/or to present the case in Court - the only person they need to impress is the Judge (we only have juries in very limited civil claims - libel, slander, malicious prosecution, false imprisonment and (not often) fraud). Judges are interested in the facts and the law, not in the fact that they are being addressed by the PM's wife.

I think the situation would be vastly different in Washington because of the different role of law firms to that of leading counsel.

Besides isn't being FLOTUS something of a full-time job these days? Opening things and sponsoring good causes etc - We have the Royal Family for that kind of thing.
 

In five years of participation in blog discussion groups I have never come across a better argument for the curtailment of free speech than "Charles."
 

I thank Mourad for the update. The link suggests various problems the U.S. might have with the convention. One touched on both abortion and the death penalty. Mexico signed it with a reservation respecting the former. Canada also did not ratify.

I referenced Cherie Blair's autobiography. She discussed her legal work while her husband was P.M. and referenced the 'cab rank rule' -- that is, she did take cases involving the government, but had the answer that it wasn't up to her.

She also noted how she did take less cases, affecting the families finances, including because prime ministers have less extras than let's say American presidents.

It should be noted as to Shag's comments on Heller that Scalia is -- as he has noted -- something of a weak willed originalist. For instance, he follows precedent (somewhat selectively) over pure originalism. Also, he is a big supporter of "tradition" (also selectively) even if it runs counter to originalism. Likewise, when he fears overreaching judicial power, he suddenly departs from originalism. See, e.g., his split with Justice Thomas in Troxell v. Granville (parental rights) and anonymous pamphlets.

You compromise to get a majority and have to deal with realities of being one of nine. But, this does underline how full of it he is when he goes on one of his holier than thou rants about how stupid the other side is.

He also seems to support originalism not on principle, but because it pragmatically advances his ends (e.g., clear rules, judicial restraint, etc.), which leads to the above selectivity and can be criticized to the degree the ends aren't really (non-ideologically) promoted a lot of times anyway.
 

Joe, you might enjoy a poem I posted several years ago to honor Scalia's refusal to recuse himself from a case involving former (feels good to say it) Veep Dick Cheney, his hunting companion:

"JE NE RECUSE!"

In that duck blind
Lady Justice unveils
Her traditional blindfold
For these bonding males:
Scalia and Cheney,
Shotguns at attack,
Taking aim at Justice,
"QUACK, QUACK, QUACK!"

Posted by: Shag from Brookline at March 23, 2004 07:28 AM
 

Arne Langsetmo said...

[Prof. Balkin]: Obama's attempt at a re-do makes no difference. The well-known doctrine of the Unitary Executive suggests that the President-elect gets one shot at taking the oath correctly.

["Bart"]: How precisely does the fact that Article II grants all executive power to the President prohibit the President elect from restating the oath correctly?

Aw, c'mon, "Bart", I thought you were smart enough to understand plain English:

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."

If he's already "enter[ed] on the execution of his office" (which he did in signing nominations, etc.), he lost his one shot to do it right.

And to add to the complication, once he screwed it up by "execu[ing] his office" before taking the prescribed oath (or affirmation), he has already violated his oath (or affirmation) to "faithfully execute the office of President of the United States, and [] to [], preserve, protect and defend the Constitution of the United State".


Arne, you are confusing the Prof's unitary executive snark (with which I took issue) and his originalism snark (that you are arguing).

The timing of the the Oath has nothing at all to do with the fact that Article II grants all executive power to the President once he or she takes office. The contention makes no sense and Professor Balkin did not attempt to defend it.

I wasn't going to bother with the originalism snark since it misreads the pertinent section, but I am stuck in a coffee shop waiting on my wife with nothing better to do, so here goes:

Article II, Section 1 (not 7) concludes:

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."

All this passage states is that the President may not begin to execute the powers of his office until he says the foregoing words of the oath.

The text says nothing at all about only being able to state the oath once or not being able to add words to the oath.

To the extent that Mr. Obama attempted to execute the powers of his office prior to saying the oath as written, a textualist would be compelled to find that those premature attempts at execution were unconstitutional, not that Obama could not say the oath correctly in a later "do over."
 

The problem of execution before elocution that's being discussed here is why, when you really want to create a method for solving a problem, you need an algorithm person involved.

The race condition is easily solved by requiring the execution of the oath occur before there can be any possibility of taking office. I think the safest time to take the oath would be when the nomination is accepted, requiring only a minor change: "I do solemnly swear (or affirm) that, if elected," -- followed by the rest of the oath as specified. Since this is logically equivalent to the existing language, if the candidate is then elected, there would not even need to be an amendment, as there was none for the "so help me god."

Then, if people are unhappy that the oath was properly sworn, or if the candidate's fingers seemed to be crossed behind his/her back, there would be a remedy, as in voting for somebody else.
 

Another footnote. Biden swore, w/o a hitch (Justice Stevens shines again!) at 11:58, allowing him to execute his office from the second of the beginning of his term. Looking at the schedule, Obama was scheduled to do so a few minutes early, but things were delayed. Likewise, Yo Yo Ma was taped, so it was a sort of 'lip synch.'
 

Bart,

The object of this snark was not to be logical. It was to sound impressive while uttering manifest nonsense. I'm inclined to agree with you that this particular passages overreaches and doesn't even sound impressive, but it's useless to try to make sense out of a theory whose whose point is not to make sense.
 

Irony Deficiency Alert.
 

Charles:

John McCain and Sarah Palin were soundly defeated in the election and, as losers who were rejected by the public, are therefore not injured by any issue regarding Barack Obama's qualifications. Nor was anyone else.

And even if someone were "injured", that wouldn't be the same thing as anyone having a RIGHT that was impinged. As nobody has a RIGHT to be President, the election of someone who doesn't meet the constitutional requirements isn't the same as someone, e.g., having their First Amendment rights violated.
 

Maybe, just maybe, most of us have been wrong, that we are all out of step, except for little Lisa's bro; maybe Jack Balkin was serious with this post that so many of us had taken as parody, satire, spoof. Maybe Jack finds himself in a trap as Kurt Vonnegut's "hero" in his "Mother Night" - "We are what we pretend to be, so we must be careful what we pretend to be." Was Jack's post an attack on textualism/originalism or supportive of its principles? Or is Jack in reality a "Mugwamp originalist"? Perhaps Jack as the creator of Balkinization will rely upon his "unitary executive" doctrine as denying him a do-over. Or was Prof. Paulsen's "Touche" a bit premature? I'm still waiting for the Fat Lady to sing.
 

Check out Jack's March 27, 2008 Post "What is Living Constitutionalism?" at:

http://balkin.blogspot.com/2008/03/what-is-living-constitutionalism.html

including comments.
 

Joe - Cherie Booth QC and the Cab Rank Rule

Thanks for that. I was unaware - certainly she did nothing too high profile. Yes, the cab rank rule is good too. For those unfamiliar with it, that is a rule that requires Counsel to accept any brief offered by a solicitor which is (i) for work they are competent to undertake and (ii) they can do within their schedule.

So a QC cannot refuse a brief they are competent and free to undertake just because they would prefer to act for the other party.

It is called the "cab rank rule" by analogy with the obligation on a hackney carriage waiting at a rank to convey the first passenger who comes along.

Far be it from me to say that the rule is more honoured in the breach than the observance by taxi drivers in London's West End who don't wish to go south of the Thames after 6 pm, and I can think of one or two counsel who have something of the same attitude.

Turning to the supposed controversy of your President's citizenship.

Apart from the fact that the requirement that the President be a "natural born" citizen is anachronistic and discriminatory (essentially making all naturalised Americans into 2nd class citizens), it seems to me that those who are raising issues as the President's citizenship have a whole raft of problems.

Firstly, "natural born" does not just signify "born within the USA", but also being born of a parent capable of transmitting citizenship. Senator McCain is a case in point and so are the American children of many Americans born in UK hospitals. There are today many American citizens born in circumstances where they may possess more than one nationality.

That is true for others too. Take the case of three children who live in my house. They are British because their father is a naturalised citizen of the UK. They are Brazilian because their mother is Brazilian and Brazil recognises citizenship by descent through their mother and they are also Iraqi citizens because their father is also an Iraqi citizen who has not renounced his citizenship.

Secondly, there is the problem of hearsay. One's own place and date of birth are perhaps the prime example of a fact to which a person cannot testify of his own knowledge. I do not know of my own knowledge whether I was born on the day place and time on my birth certificate or even that my parents were in fact my biological parents.

Thirdly, there is the convention that public records of birth are conclusive. I don't know how these things are done in Hawaii or elsewhere in the USA, but in the UK either the father or the mother must go to the Registrar of Birth's Deaths and Marriages and bring with them evidence of the live birth - these days usually a form from the hospital - and then make a statutory declaration as to the parentage of the child. The record compiled at that time benefits from a presumption as to its validity [omnia praesumuntur rite esse acta] and the entry can only be rectified by an application to the Court by a person having locus to do so. I really do not see the Courts holding that anyone, a mere busybody, has a right to apply to rectify the Register.

Mind you, any Court loopy enough to seek to interpret an ambiguous constitutional provision guaranteeing rights by reference to the supposed understanding of the framers at the time (always supposing that such understanding can be ascertained with any reliability) must be capable of doing any kind of violence to the principles they inherited from the wise and learned lawyers who transported the common law of England to the backwaters of the colonies.
 

Mourad:

As someone else pointed out, McCain was soundly defeated so his (or anyone else's) citizenship status is a red herring. Of course this Constitutional requirement is "discriminatory" (so are the age and residency requirements -- can we legally elect a 12 year old)? Finally, as you pointed out, you are unfamilar with Hawaiian law. At the time Obama was born, American parent(s) of a foreign-born child had up to one year to register said birth in Hawaii. That's all I am asking about.
 

Charles - where is the conclusive evidence that President Obama is foreign born ?
 

Don't listen to them, Chucklehead. I think you have a great case. You should hire a lawyer and go to court.
 

Mourad:

If it was "conclusive" we wouldn't be having this discussion.

Bartbuster:

I will leave that up to people with actual standing, like Alan Keyes.
 

If it was "conclusive" we wouldn't be having this discussion.

If you weren't an imbecile we wouldn't be having this discussion.

I will leave that up to people with actual standing, like Alan Keyes.

You have been forced to endure an Obama presidency. That gives you standing. Get your ass into court.
 

Assumes facts not in evidence.
 

Assumes facts not in evidence.

# posted by Charles : 2:59 PM


The evidence that you're an imbecile is overwhelming.
 

I will let Mourad be the judge of that.
 

I will let Mourad be the judge of that.

# posted by Charles : 3:40 PM


Sorry, it has already been decided in court.
 

Which court of law ruled that I was an imbecile?
 

Every court that has rejected the challenges to Obama's birthplace. It's over. You lost. Time to move on with your "life".
 

Charles wrote:

"I will let Mourad be the judge of that."

Sorry, Charles, I am without jurisdiction to determine any question in issue between you and Bartbuster as to your alleged imbecility.

But since

(i) I do not believe that there is any credible evidence in the public domain that your President was foreign-born;

(ii) I understand that authorities of the State of Hawaii have confirmed that your President's birth was duly registered; and

(iii) It appears that the Congress duly certified his election and held the inauguration ceremonies which I watched at which he duly took the Oath of Office;

it appears to me that you are flogging a dead horse to no apparent purpose.

So be a good chap, and give it a rest.
 

Mourad:

Obama's paternal grandmother stated that he was born in Kenya. As you stated, you are not aware of our law(s) pertaining to this. I accept your lack of jdx.
 

Obama's paternal grandmother stated that he was born in Kenya

It sounds like you have new evidence. Get your ass into court.
 

That's not "new" evidence. Alan Keyes filed his lawsuit including that, and other, allegations. Demurrer hearing set for March.
 

Chucklehead, you should probably keep your pie-hole shut until March.
 

I probably should.
 

Charles:-

I've read the pleading in the Keys case. It seems to me to represent what we used to describe as a pleading which is "frivolous, vexatious and an abuse of the the process of the Court" and liable to be summarily struck out.

BTW it describes Kenya as then being part of the British East African Protectorate of Zanzibar whereas Kenya became a Crown Colony in 1920.
 

No other venue being available, I'll respond to Prof. Calabresi's post here.

He said, "After all President Clinton failed to obey federal laws against perjury and obstruction of justice. He thus failed to perform his core constitutional duty that he take care that the laws be faithfully executed."

Assuming for the sake of argument that the first sentence is true (it's contested), the second does not follow. While the President surely ought to obey the law himself, that's not what the duty to faithfully execute means. That duty obligates the President to make sure the law is enforced even if broken. President Clinton did that by appointing Ken Starr as Special Prosecutor.

I'm not sure how important this example is to Prof. Calabresi's argument, but it's not a good one.
 

I'm not sure if the new post Mark Field references is totally serious. I fear it is.

The new post notes that even if he said the oath wrong, he still is "legally President." Sure. So does this post. Note the first part concerns the "can't execute the powers of his office" issue. The 20A (joke alert) part concerns his status as President itself.

Next, how about the "core obligations as President" issue? I don't think he violated some "core" obligation by saying "faithfully" out of order by mistake. It's a de minimis issue. It is not akin, e.g., removing "obey" from the traditional wedding vows, which in some small but significant way changed it.

As to Mark Field's comment, I'm not sure about that. "Faithfully execute" probably includes, e.g., not lying to Congress and obstructing its investigation.

The professor finally suggests the added words are okay because they don't take away from the meaning of the oath (how did the use of "faithfully" do that?) and are blessed by tradition.

Tradition doesn't justify wrongful acts. The use of "tradition" by orginalists is a major issue. What was originally understood is put aside (selectively, as here) because of 'tradition,' which often (e.g., Washington saying 'so help me God') is dubious.

This was satire, but satire can be informative, especially when some people can't take the joke.
 

Charles raises the point that the natural born requirement is "discriminatory" like the age requirement etc.

"Discriminatory" is commonly seen as a value term. It tends to normally mean "invidious discrimination," that is, not letting blind people drive or 12 year olds vote is not seen by many people as "discriminatory."

If the classification is wrongful, people think of it as "discriminatory." Many, as shown by bipartisan support to overturn the requirement, see this as one. It made more sense in 1789 for various reasons, especially since "natural born" was tied to the date of independence.

So, one could have been born outside of the U.S. and still be President, up to the early part of the 19th Century. Anyway, such a rule is pretty antiquated by this point, especially if we (like Sen. Hatch via a proposed constitutional amendment) would set up a replacement such as requiring a twenty years residency.

The "natural born" provision itself is pretty opaque and there is probably much more evidence as such that McCain isn't such than Obama.
 

Great, a third post and another wave of comments on this nonsense, all because of Chief Justice Roberts's incompetence. Scary to think he's arguably the most powerful jurist on the planet, eh?
 

"Incompetence"? What if he did it on purpose?
 

@Charles,

One dislikes to ascribe to evil what can as easily be ascribed to stupidity. I'll admit, my first thought, on hearing Roberts administering the oath, was that he was purposely trying to make Obama look bad. My second thought was that he was purposely trying to sew controversy regarding Obama's legitimacy. But that was from hearing it on the radio. Seeing the event later, courtesy of Windows Media Center, I concluded that our Chief Justice was just camera shy and went up on his lines, that is, incompetent.

Small consolation.
 

Is everyone enjoying what has turned into the "Constitutional Three Stooges" show? Can we now expect a special issue of Constitutional Commentary to follow up with even more of this constitutional slapstick? Apparently there's lots of room on the head of the constitutional pin for more constitutional scholars to join in this dance. Maybe it's time for Mr. Roberts to throw this potted constitutional plant overboard before it becomes a full blown reality show. Can we expect Jack, Mike and Steve to throw pies at each other? It's time for a bailout.
 

As to Mark Field's comment, I'm not sure about that. "Faithfully execute" probably includes, e.g., not lying to Congress and obstructing its investigation.

I agree, but I don't think you can carry the consequences as far as Prof. Calabresi does. After all, Presidents lose legal cases all the time, and, at least technically, that means they failed to faithfully execute the laws for some period of time. Nobody thinks that they ceased being president as a result, so Prof. Calabresi's suggestion that such a conclusion follows from Prof. Balkin's argument strikes me as unlikely.
 

Unsophisticated me could tell that the original post was a parody, or satire in the "Modest Proposal" vein. But then again, sophisticated you should have realized that we live in surreal times and your parody has been easily bested with creative surreality from the recent unitary executive and his extra-branch extra legal co-executive. In other words, you should have known better the level of wacko out there. Besides me that is, since by definition, being a liberal, I am considered obviously insane, in the best Stalinist sense. Certainly not worthy of "serious" "adult" consideration.

Going with the parody theme I'm not surprised you didn't approach the misfired "affirming in" from another direction. The prompting Iago. Chief "Justice" Roberts. Reports indicate that Roberts spent weeks preparing for this simple procedure and yet he failed miserably. Or so we are led to believe.

Believing it can only indicate that the man is incompetent, as a functioning individual beyond the fifth grade level, and certainly as the lead character in the "Supreme" Court of the United States of America. Such gross and obviously negligent incompetence should surely lead to impeachment proceedings. Roberts is incapable of making decisions on simple matters. Complex situations regularly faced by the "supreme" court of the land would be far beyond his level of ability. Impeachment is an imperative.

Perhaps displaying the observable intelligence of an fallen autumn maple leaf isn't usually considered a basis for impeachment from the high court. I think Justice Thomas only rarely shows signs of escape from Catatonia, that land of internal eternal reverie. Still, if there aren't standards of competence for justices, there certainly should be. Maybe, as with standards of propriety, the justices themselves make the determination, as did Antonin Scalia, after his vacation to caged dead duck world with "Dead Eye" Dick Cheney, about whom Scalia was soon to make some legal determination. But how can a fallen leaf indicate its competence at jurisprudence? Decay! That's the ticket. Scalia affirms, Thomas snores and Alito is nowhere to be found - considered an affirmation.

You object to suggestions that Roberts represents anything but the peak of legal humanity that America has to offer? Then what does that leave?

Intent.

The only other alternative to Roberts failure, even with weeks of preparation, to correctly and legally administer the presidential oath of office is that Roberts intended to invalidate the legitimate presidency of Barack Obama. A judicial coup. Check that. Another judicial coup.

This, if not a basis for impeachment proceedings, would seem to be a basis for an indictment on the charge of treason. I suspect that Alito's refusal to appear at the scene of the crime was cold feet, and not due to the weather. He did seem the cowardly type, needing his wife to cry behind him.
 

Shag from Brookline wrote:-

Is everyone enjoying what has turned into the "Constitutional Three Stooges" show? Can we now expect a special issue of Constitutional Commentary to follow up with even more of this constitutional slapstick? Apparently there's lots of room on the head of the constitutional pin for more constitutional scholars to join in this dance.

Shag, this is what passes for "playtime in the groves of Academe" and I'm afraid the temptation to add one's two pence worth has become irresistible.

In Professor Calabresi's contribution to the game one finds this assertion:

"The oath is thus not our Constitution’s analog to the crowning of a King. The Oath Clause simply mandates that the President must take the oath before entering on the execution of his office."

Given the extent to which the former North American subjects of the British Crown who framed your Constitution used British constitutional practice as it was in 1789 as a frequent reference point for their deliberations, I would have thought that an understanding of British practice would be essential to an understanding of what the framers decided.

If there are analogies to be drawn, the inauguration ceremonies themselves are the analogy of coronation.

While coronation is a religious ceremony (with much Byzantine influence) which has secular legal consequences, and a presidential inauguration is a secular ceremony with some religious overtones, both ceremonies provide for the taking of an Oath.

At a coronation, the Oath is administered immediately after the Recognition and before the other parts of ceremony take place - see The Coronation Order of Service.

Significantly, therefore, the taking of the Oath is a condition precedent to the subsequent acts of the ceremony and the Oath is also the compact between monarch and people. So the first words of Queen Elizabeth's Oath were:-

"Archbishop: Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon, and of your Possessions and other Territories to any of them belonging or pertaining, according to their respective laws and customs?

Queen: I solemnly promise so to do.


To that extent, Professor Calabresi's assertion seems very wrong. There is in fact a very great analogy between the Presidential Oath and the Coronation Oath: in both cases the head of the executive swears to exercise power according to and under the law.

Strange that a constitutional lawyer should not have spotted that essential similarity in our respective constitutional settlements.

As Gilbert had the Lord Chancellor say in Iolanthe:

"The Law is the true embodiment
Of everything that's excellent."


Surely, that is what makes the practice of law, whether as a judge or an advocate, so exciting: we get to play our part in ascertaining what the law is and then in enforcing it - including in cases where the executive goes outside the boundaries set by law.

For me, academic theorising as to what the law might be, could only be a poor substitute for the real life exercise of finding out what it is.
 

Robert Link:

"Dislike" or not, perhaps you never saw video of Roberts at his confirmation hearing? In need of notes or "camera shy" he is not. As for "incompetence" we didn't Obama simply recite the oath correctly, regardless of what Roberts did?
 

As to Queen Elizabeth's Oath:

"Queen: I solemnly promise so to do."

what if the Queen actually responded:

"Queen: I promise to do so solemnly."

What might have been the effect upon her Coronation? Might she not have been Queen for even a day?

Alas, if only Justice Roberts had donned the late Chief Justice Rehnquist's robe when he administered the oath(s) to Obama, he might have provided a Gilbert & Sullivan flavor [if Rehnquist were alive he might have come up with an appropriate couplet] rather than a Monty Python farce. But this is America and perhaps SNL will come to rescue and protect us as it did from Sarah Palin.
 

Not this time (SNL is on hiatus until February).
 

P.S. Why didn't Obama simply recite the oath correctly, regardless of how Roberts did?
 

Apparently Edgar Bergen has come back to life.
 

Shag:-

Actually, under our law the Monarch succeeds to that position at the moment the predecessor dies. The Crown is never vacant.

Thus HM Queen Elizabeth II succeeded to the Throne on the death of her father, King George VI on 6th February 1952. She was not crowned until 2nd June 1953.

Similarity: under your Constitution the President-elect becomes President at a moment which is certain and he is President - whether or not he has taken the Oath.

Difference: Your law provides that the President shall not exercise his functions until he has taken the prescribed oath or affirmation. Our law is that the Sovereign may exercise all the powers and functions of the sovereign from the moment of accession.

As to the Oath, even though I read the two phrases you propose as having a different meaning:-

"I solemnly promise so to do" = the promise is a solemn one -v- "I promise to do so solemnly" = "What I have promised to do will be done without any smiling and waving...?",

I doubt anyone would have taken the point because:-

(i) we take the precaution of having the Oath signed - see the ritual:-

"Then the Queen arising out of her Chair, supported as before, the Sword of State being carried before her, shall go to the Altar, and make her solemn Oath in the sight of all the people to observe the premisses: [The Bible to be brought.] laying her right hand upon the Holy Gospel in the great Bible (which was before carried in the procession and is now brought from the altar by the Archbishop, and tendered to her as she kneels upon the steps), and saying these words:

The things which I have here promised, I will perform, and keep. So help me God.

[And a Silver Standish.]
Then the Queen shall kiss the Book and sign the Oath."


(ii)we would not worry but simply deem Her Majesty (or in this case the Archbishop) to have said what was meant to be said;

(iii) we've been doing coronations for quite a long time, see - The Manner and Form of of the Coronation of the Kings and Queens of England 1385-1460 and I think we've cottoned on by now to the idea that it's the thought that counts.
 

Presumably President Obama will have the opportunity to nominate several Justices to SCOTUS. While I doubt Obama would nominate either Mike or Steve, he might be reluctant to nominate Jack because of the brouhaha (emphasis the "haha") despite Jack's otherwise impressive liberal credentials. But whomever Obama nominates, can we expect some yahoo on the Senate Judiciary Committee to raise the issue in the post (as well the posts by Mike and Steve) in questioning nominees of Obama?

I don't think Sandy has chimed in on this issue, at least in this Blog, but perhaps he might include it in his drive for a need for a Constitutional Convention.

I like the choreography of the Royal Coronation, especially the signing part that could be accomplished with many pens that may someday appear on EBay for sale, perhaps jumpstarting the economy.
 

Steve's observation:

"So notwithstanding Jack’s mirth, there is a clear implication of the text here: Barack Obama became the 44th President of the United States at noon on January 20th for a term of exactly four years."

suggests that he at least agrees with Mike that Jack is spoofing textualism/originalism. But Jack has not formally responded as yet - and may never, unless there may be a 75-page response brief in the works via SSRN.
 

Professor Jack:

Thanks for the update. I always thought it was a parody. We'll have to agree to disagree on the substantive points. Are you going to turn comments on the other threads?
 

The question remains: why didn't Obama simply recite the oath correctly, regardless of what Roberts did?
 

This comment has been removed by the author.
 

The question remains: why didn't Obama simply recite the oath correctly, regardless of what Roberts did?

# posted by Charles : 10:19 AM


You should climb over the White House security fence, run up to the White House, and ask him.
 

Shag:

Coronations are indeed a money-spinnner for those who manufacture memorabilia in varying degrees of bad taste. But for me, the best memorabilia are the jokes.

I remember the QEII coronation because my father bought one of the first television sets on sale in postwar England especially for the occasion. So I saw the whole thing on TV.

Queen Salote of Tonga was a favorite of the crowds. It is apparently the custom that Melanisian monarchs and chiefs should be of considerable girth since that is taken as a sign of wealth and prosperity. She was indeed a very large lady - but very vivacious. Sitting next to her in the carriage was her Prime Minister, or someone like that, tiny, and very miserable looking.

There is a picture of Queen Salote at the 1953 Coronation on her Wikipedia entry. But note the anecdote at the foot of the page:-

"When she made her appearance at the Coronation of Queen Elizabeth II in 1953, a friend of Noël Coward asked: "Who's that little man in the carriage with her?" Coward is alleged to have replied: "Her lunch."
 

Bartbuster:

Yet another installment of "Should We or Should We Not Follow the Advice of the Gallactically Stupid"?
 

I recall a Royal joke involving Lord Mountbatten and the Queen (Elizabeth?) in a cozy setting with the Queen uttering the punchline:

"Mountbatten, the whole of England lays before you."

Of course, I have cleaned up the bawdy punchline for this family Blog, notwithstanding Noel Coward's catty comment.
 

Chucklehead, you want to know why Obama followed Roberts' lead, I'm just trying to help you out.
 

Thanks.
 

And I figured that if you are dumb enough to think anyone in here knows what Obama was thinking at that moment, you would also be dumb enough to jump the White House fence.
 

Bartbuster:

I'm not. We can all speculate though. Just as we did when GWB was "President."
 

I can't recall any similar situations during Dumbya's time in office.
 

Allow me to refresh your recollection: "Bush Lied, People Died!" Bush knew about 9/11 attacks beforehand. Bush (and/or Cheney) intentionally outed a CIA agent. Etc.
 

Allow me to refresh your recollection: "Bush Lied, People Died!" Bush knew about 9/11 attacks beforehand. Bush (and/or Cheney) intentionally outed a CIA agent. Etc.

# posted by Charles : 12:32 PM


How is any of that similar to Roberts forgetting the presidential oath and Obama repeating the oath incorrectly?
 

Because you were dumb enough to think you knew what Bush was thinking at those moments too.
 

Because you were dumb enough to think you knew what Bush was thinking at those moments too.

# posted by Charles : 12:42 PM


No, I wasn't. Most of the time I said to myself, "what the fuck could that moron possibly be thinking?" I said that a lot over the last 8 years. I also say it almost every time I see one of your posts.
 

Oh, that's right, you were the only one who maintained that Bush didn't "lie" or "intentionally" mislead anyone about 9/11, Iraq, etc. Thanks for standing up like that ...
 

P.S. -- when I saw {"Constitutional law professor") Obama screw up the oath, the first thing I thought was also "what the fuck could that moron possibly be thinking?" The second was "will he re-take it?"
 

Chucklehead, when I said "Bush lied", it wasn't because I was wondering why he said something, it was because I knew the facts did not support the words coming out of his mouth.
 

P.S. -- when I saw {"Constitutional law professor") Obama screw up the oath, the first thing I thought was also "what the fuck could that moron possibly be thinking?"
12:52 PM


Really? Did you realize that all he was supposed to have to do was repeat what Roberts said?
 

Bartbuster,

Please confine yourself to busting Bart. Our hosts are (grudgingly) willing to tolerate the antics of Bart and Bartbuster. Charles and Charlesbuster are too much for them. They will shut down and delete the comments threat before they will tolerate such carrying-on. So if you want the comments thread back, please, ignore Charles and I think he'll go away.
 

No, Bartbuster, I didn't realize that the President of the United States was legally bound to repeat anything Roberts said, whether it was correct or not. Please don't "ignore" me though -- I promise I will behave, Massa, just don't ever you do such a thing -- don't throw me in that briar patch!!!
 

For everyone else, from Jack Balkin (back when he actually valued Freedom of Speech on-line -- back before Obama took over and attacked Rush Limbaugh -- I'm just posting it here for posterity's sake since he and Marty Lederman have decided to censor their own blog now):

Digital Speech And Democratic Culture: A Theory of Freedom of Expression for the Information Society (2004)

"This essay argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual's ability to participate in the production and distribution of culture. The essay argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.

By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values--interactivity, mass participation, and the ability to modify and transform culture--must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will increasingly fall to legislatures, administrative agencies, and technologists."

http://www.yale.edu/lawweb/jbalkin/telecom/digitalspeechanddemocraticculture.pdf
 

P.S. to Bartbuster: if he was legally bound to repeat anything Roberts said, then Roberts should have said: "I, Barack Hussein Obama, hereby resign as President of the United States, effective immediately."
 

No, Bartbuster, I didn't realize that the President of the United States was legally bound to repeat anything Roberts said, whether it was correct or not.

# posted by Charles : 1:33 PM


I never said Obama was legally found to repeat everything Roberts said. However, Obama probably was not expecting Roberts to screw up the oath. I'm sure he will learn from this. In the future when he is required to follow the lead of a rightwingnut, be will be better prepared for the inevitable screw-up.
 

LOL! He didn't learn his lesson from following the lead of GWB?
 

Of course, Obama has not been legally found [sic] to be President yet. That's what the Keyes lawsuit is all about.
 

Thanks for not ignoring me, too.
 

EL,

This reminds me forcibly of watching two drunks fight.

I have to say that, considered as a battle of wits, both combatants are unarmed, so no conclusion can be expected. Whether bb's stubborn refusal to recognize the pointlessness of it will outlast Charles' mindless inability to recognize his own inanity is a minor scientific question, but my curiosity isn't sufficient to bring me back to see which "wins."
 

"Bart":

[Prof. Balkin]: Obama's attempt at a re-do makes no difference. The well-known doctrine of the Unitary Executive suggests that the President-elect gets one shot at taking the oath correctly.

["Bart"]: How precisely does the fact that Article II grants all executive power to the President prohibit the President elect from restating the oath correctly?

Aw, c'mon, "Bart", I thought you were smart enough to understand plain English:

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."

If he's already "enter[ed] on the execution of his office" (which he did in signing nominations, etc.), he lost his one shot to do it right.

And to add to the complication, once he screwed it up by "execu[ing] his office" before taking the prescribed oath (or affirmation), he has already violated his oath (or affirmation) to "faithfully execute the office of President of the United States, and [] to [], preserve, protect and defend the Constitution of the United State".

["Bart"]: Arne, you are confusing the Prof's unitary executive snark (with which I took issue) and his originalism snark (that you are arguing).


No. I was just commenting above on the issue of whether Obama can get a "do-over". And I'll point out again that any alleged Article II powers do not trump this Constitutional deficiency.

["Bart"]: The timing of the the Oath has nothing at all to do with the fact that Article II grants all executive power to the President once he or she takes office....

You've got it backwards. HTH.

["Bart"]: ... The contention makes no sense and Professor Balkin did not attempt to defend it.

Somehow I think you're missing the point. ;-)

["Bart"]: I wasn't going to bother with the originalism snark since it misreads the pertinent section, but I am stuck in a coffee shop waiting on my wife with nothing better to do, ...

Should have left it at that, "Bart"....

["Bart"]: so here goes:

Article II, Section 1 (not 7) concludes:

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."

All this passage states is that the President may not begin to execute the powers of his office until he says the foregoing words of the oath.

The text says nothing at all about only being able to state the oath once or not being able to add words to the oath.


But as I pointed out, the only time he's permitted under the Constitution to take the oath is "before" he enters on the execution of his office. Once he's done that, he can take the oath as many times as he wants, correctly or incorrectly, and it is of no Constitutional effect. The Constitution simply doesn't permit him to do so after entering onteh execution of his office so as to have the requisite effect.

["Bart"]: To the extent that Mr. Obama attempted to execute the powers of his office prior to saying the oath as written, a textualist would be compelled to find that those premature attempts at execution were unconstitutional, not that Obama could not say the oath correctly in a later "do over."

I guess it depends on what the meaning of the word[s] "enter on the execution of his office" [are[. ;-)

Is "unlawful attempted entry" a crime? Maybe we could suss out the outer confines of that phrase as well, and try and impeach him for a "high crime". There is still hope for any literalist out there, "Bart".

Cheers,
 

Arne Langsetmo:

Before taking the oath, could Obama have verbally resigned the Office of President of the United States?
 

but my curiosity isn't sufficient to bring me back to see which "wins."

# posted by C2H50H : 2:20 PM


And yet, here you are.
 

EL wrote:Please confine yourself to busting Bart. Our hosts are (grudgingly) willing to tolerate the antics of Bart and Bartbuster. Charles and Charlesbuster are too much for them.

That Bart took the bait so quickly supports my theory that Bart is actually a social experiment. He seldom if ever posts with genuine substance, but purely for the purpose of manufacturing arguments (typically with reasoning strained from bending to an ideology). Since he "took the bait" from Jack's post, its possible he is Jack's social experiment. Perhaps to see how various people respond to polarized ideologues in blog forums.
 

Ouch. C2H50H and bitswapper just trashed you, Bartbuster!
 

Chucklehead, C2H50H has a point. You're an imbecile, so there really is no point in arguing with you. I do enjoy making fun of you, but even that gets tedious.
 

I thought that bitswapper had a better point, in that you "seldom if ever post[] with genuine substance, but purely for the purpose of manufacturing arguments (typically with reasoning strained from bending to an ideology)."

The truth hurts, huh?
 

The truth hurts, huh?

# posted by Charles : 2:53 PM


Read his post again, you moron.
 

C2H50H's "point" was that our repartee "reminds me forcibly of watching two drunks fight ... considered as a battle of wits, both combatants are unarmed ..." (Emphasis added). I am not the only imbecile.
 

I think that bitswapper's observation applies to you as well as Bart.
 

For the record, SOMEONE at Balkinization (I assumed either Jack or Marty) has deleted threads and entire strings of comments as well:

http://balkin.blogspot.com/2007/08/jane-mayer-on-black-sites.html

I wouldn't be surprised if this thread or just the comments get deleted too.
 

So, I "win" then, right?
 

How about a new topic (from CNN.com):

Would Oprah Winfrey make a good U.S. senator?

Yes 15% (29,839 votes)

No 85% (174,796 votes)
 

It really wouldn't surprise me if the comments here got deleted. Nor would it sadden me, particularly when the subject matter was so abstruse, and the commentary increasingly ignorant of this one salient fact.

But it is a good showcase of what can happen when comments are totally unmoderated, and -- mirabile dictu -- a proof that "Bart", as bad as he is, could in fact be a whole lot worse.

My guess, FWIW, is that commenting will not be restored at least until this fact is appreciated.

Cheers,
 

For the record (before we all get deleted), I believe that Obama could have verbally resigned the Office of President of the United States after 12 noon but prior to taking the oath. Too bad he didn't.
 

Does anyone else want to actually discuss Koppelman's latest book report?
 

For the record, while the "flubbing" of the Oath may be of passing interest to those who wish to wish to make a mountain out of a molehill, for what ulterior motives I can only begin to guess, I suggest this thread has degenerated into farce.

There are far more interesting things going on with respect to the unravelling and exposure of the Bush legacy of torture, inhuman and degrading treatment, etc and since Professor Levinson's thread The Legacy is still open, there are matters of some moment we might discuss - assuming you are not all suffering from a surfeit of the inane Bush "war" on terror lampreys.
 

It appears as if the Profs have decided not to allow comments in the future.

Shame.
 

It appears as if the Profs have decided not to allow comments in the future.

Shame.

# posted by Bart DePalma : 6:46 PM


Baghdad, you censor posts on your own blog. You're really not in a position to be whining about this.
 

"I suggest this thread has degenerated into farce."

Don't all the threads pretty much end up that way?
 

I note that Mike and Steve have not "Updated" their posts following Jack's "Update."
 

Prof. Michael Dorf joins the dance on the head of the constitutional pin with his thoughts on the oath controversy at FindLaw available at:

http://writ.news.findlaw.com/dorf/20090126.html

Dorf makes no mention of the dancing at Balkinization. He seems to be partnering with Jack's Update.
 

Other forums have experienced similar issues to this one - and various solutions have been tendered with respect to sneaky trolls. One is to selectively remove comments, as blogspot does. Other solutions are to allow a voting system, where comments below a certain threshold are subdued or disappear. Still others have more elaborate moderation systems, like slashdot, where by comments end up with labels conferred by the community of the forum and people earn the privilege of tagging comments. None are ideal, and each is evolving to fit its desired venue.

Unmoderated forums invite raw humanity, which isn't pretty. What has happened here in shutting off comments is throwing out the baby with the bathwater. I think moderation is more called for in this case than shutting off.

I think selected removal of comments clearly aimed of facetious argument is perhaps not a bad compromise for this setting. There a moral here: one bad troll can spoil the bunch. Bart frequently forks off a thread into spurious subtopics which by virtue or his own bad blood descend into the dregs of discussion.

While it may not seem fair, its not unprecedented either. Wikipedia will remove people who do exactly as bart does (sneaky vandalism) - get on a thread whose topic he doesn't like, and manufacture specious argument until the thread itself fatigues, thus eliminating that which he disapproves of while avoiding obvious trolling. On wikipedia, such people, regardless of alignment, end up off the list of permited contributors for an article. Wikipedia does warn not to feed the trolls, but wikipedia is moderated also.

For what its worth, I think Jack should not let fear of the appearance of censorship stay his hand. He need only state up front the criteria for removal of a comment, whatever that criteria is, and then use it. If he doesn't want comments of bad spirit and intent to remain, for example, I think its appropriate to state such up front and follow through. Those who would sabotage a topic or forum may cry foul, but they would know going in that bad blood would not pass muster.

So I would throw my hat in for allowing comments, perhaps selectively by post, with the upfront stated policy of what the basis for comment deletion will be. There's certainly more than enough material to go through to determine what typically causes the natural process of Internet forum deterioration to fall below a certain threshold.
 

bitswapper:

For what its worth, I think Jack should not let fear of the appearance of censorship stay his hand. He need only state up front the criteria for removal of a comment, whatever that criteria is, and then use it.

Audience "derating" (black-flagging) or "delisting" (allowing users to choose level of display, or exclude certain users) might help clean things up a bit, and wouldn't implicate the proprietors in any alleged "censorship". You wanna remain "seen", you keep it clean [echoing Lowery].

Blogger/Blogspot's default is moderator deletion of individual comments. To allow other schemes might require webpage/hosting changes/modifications, and tech-savvy help on setting things up. Maybe someone can look into it and volunteer.

Alternatives might be such as Digby ("digbysblog.blogspot.com") does: Use Haloscan as the commenting forum, on separate pages. Once this jump is made WRT the commenting mechanism, then features such as delisting/rating/etc. can be introduced. Plus it moves the comments away from the original posts. It could even be done on a site that Prof. Balkin and the other proprietors take no responsibility for; all that would be needed is that Prof. Balkin set up the linkage. In fact, one could even, under such a setup, offer multiple sites for commenting, one moderated, one free-for-all and less restrictive in TOS and content restrictions.

Anyone willing to discuss it may contact me at zuch <at-sign> ix <dot> netcom <dot> com.

Cheers,
 

Charles: "Does anyone else want to actually discuss Koppelman's latest book report?"

I do. Was hoping to comment on Paulsen's harmless-error bit too.
 

Banning an individual for imbecility is permissible in my opinion. Failing to do so gives a single idiot the power to destroy a debate society such as this one.

I would volunteer my time to help moderate this blog.
 

I would volunteer my time to help moderate this blog as well.
 

bitwsapper,

Did I miss an official announcement of "no more comments ever"? I've assumed we were seeing selective enabling.

I expected a bit of rearranging or re-prioritizing with the advent of an administration somewhat more in line with our hosts's vision. That becomes even more necessary when we know one of our hosts has taken an important spot within that administration. Fact is, we needed a good housecleaning here in the comments, and I don't just mean the trolls, but the troll-wrestlers too.

It remains my fond hope that our hosts will settle on some system, perhaps one of the methods you mention, to moderate comments without disabling them altogether. Problem is, I don't know that blogger/blogspot really offers much along those lines, meaning the job has to be done by hand by one of the hosts. Maybe we need to try to con Jack into switching blogware? That strikes me as an unlikely solution unless someone convinces him it will be a net savings on his time _and_ a net increase in the quality of participation here by way of affordances attendant on any moderation tools of the new blogware. Absent those two bargaining points there's no way to make such a sale.
 

Robert Link:

What happened to "[w]e actually could survive with RSS and our own blogs"?
 

Charles,

It may yet come to that. If it does, you and Bart will have shared in an accomplishment of which any Gingrichian, Roviac, or ditto-head should be proud. I would have thought, however, that even your limited reading comprehension skills would let you differentiate between a description of "a lesser evil" and the small advantages of same (e.g., losing comments here but never again hearing from you) from the search for a truly optimal solution.

Then again, maybe I give you too much credit.

I only respond because it bears mention that if comments are indeed closed for good, many of our regular contributors here in the comments area do not give contact information on their profiles. That severely limits who we can keep tabs on with RSS. If folks are interested we might set up a Balkinites-group-blog. If folks are interested, I'd be happy to host it. Could be fun.
 

This comment has been removed by the author.
 

I think you give me too much credit. Bart cannot be at fault either as he has commented for longer and in greater quantity, with no ill consequences thus far. Nonetheless, I already had set up a safe blog to comment on Balkin's censorship:

https://www.blogger.com/comment.g?blogID=15518184&postID=5657097246382783484
 

Oh dear. I had tried to get folks to back off "Bart" previously, rather than to encourage him. Now, I see that 'Charles' has apparently provoked enough craziness so that there are no more commenting opportunities.

I don't understand enough of the techy stuff to offer any advice (Mark Field and Arne just taught me how to use html tags!). I do hope Jack, et al., will somehow make it possible for those of us who are interested in discussing legal issues to post again in the future.
 

I am always amused at the comments of folks who confuse censorship with editorial policy. Bluntly, Charles, neither you nor I nor anyone other than Jack Balkin, as the registered owner of this particular blogger account, has a "right" to be published at balkin.blogspot.com. Jack's tastes are the only controlling factor, and it is only our good fortune that his tastes so often run such as to let us publish our ramblings here, next to his works, for free. Surely even folks like you can see that distinction if you stop and think about it for a bit. You are still free to write all you like at Chad's Place.
 

Is it ironic that Balkinization seems to have been Balkanized?
 

Chris:

I hope to discuss legal issues in the future here too. As Mr. Link correctly pointed out, however, none of us have the right to publish anything here.

Mr. Link:

I've never stated otherwise (although Marty is NOW a government actor). I am using "censor" and "free speech" in the same broad sense Jack did in the law review article I quoted from above. You can rest assured that I will never delete threads or turn off comments on my blog.
 

Law review article I mentioned before:

http://www.yale.edu/lawweb/jbalkin/telecom/digitalspeechanddemocraticculture.pdf
 

I found the book review of our secular age of interest as well.

As the comments, I think we have to be realistic here. When dealing with a forum like this, or anything like it, there will likely be one or more people who others will deem misguided souls who promote nefarious doctrine. This is the nature of free debate.

The ability to check such individuals with more speech is the basic principle I took as a given. This does not really include childish name calling.

Yeah, even if you think the person promotes stupid ideas repeatedly. Basic things like treating people fairly is still rejected in some fashion by a majority of people. This is annoying, but it's life.

It is actually counterproductive since it encourages them, including giving some a feeling of victimhood and a disrespect of the other person who thinks reason is not enough, so decides to do a verbal sort of spiting.

[It was noted in a past thread that said person didn't warrant respect. But, the ideas are still being debated. Just with crude name calling added. So, apparently the person's ideas still warrant debate. But a sort of "fu" is added to the replies. This might turn off JB et. al.]

Or, adding to their cause by calling oneself "x" buster. If someone took it as their nom de plume to spend time refuting me, I would personally take it as a compliment. I clearly am important enough to continue writing!

Look at this thread alone. A chunk of comments in effect are "you are an idiot" "no I'm not" "yes you are." Who's the real idiot there? Who's the one really at fault?

Using this thread as a sort of "last straw" seems a bit silly to me, since the subject matter really invites silliness. But, if a solution is found, let's not just think a certain individual or two are solely to blame here.

Let's be honest. And, realistic. No matter what, there will be some messiness. Dealing with spiders with machine gun fire is not the way to go. This includes banning comments.
 

Either way is fine with me.
 

Joe:

It was noted in a past thread that said person didn't warrant respect. But, the ideas are still being debated.

No. That's the point. There was no debate. Debate assumes that both sides actually bother to address and refute (or accept) the other side's points. Real forensic debate (not to mention appellate advocacy) will severely penalize those that fail to take the opponent's arguments into account, instead simply repeating their own "talking points" ad nauseam in the time allotted.

Cheers,
 

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