Sunday, November 15, 2009

Presidential Salutes and Presidential Precedents

Eugene R. Fidell

On November 1, 2009, Carey Winfrey, who edits Smithsonian Magazine and previously served as a Marine Corps junior officer, had an op-ed in The New York Times offering A Final Verdict on the Presidential Salute. His essay was occasioned by President Obama's rendering of a fine military salute the night he flew to Dover Air Force Base to pay tribute to 15 soldiers and three DEA agents who had died in Afghanistan. The essay observed that President Reagan was "thought to be the first" President to have returned a military salute (in 1981). Mr. Winfrey reported that he had long been ambivalent about the practice, but that President Obama's Dover salute, smartly executed, had brought his ambivalence to an end. "His salute," Mr. Winfrey wrote, "it struck me, was impeccable in every way." Having also served in the military, I at once dashed off an email to the editor, respectfully disagreeing, and suggesting that "[p]residential salutes are an unfortunate innovation and should be abandoned." The Times was kind enough to publish it a few days later, leading to a number of phone calls and emails from both friends and people I'd never met. Some agreed with me, others did not, but all were quite civil. Taken together, they led me to continue to ponder this episode. Was the presidential salute really a Reagan innovation, and was there something deeper at stake?

First, the history. President Reagan was indeed pretty good with his hand-salute, both during his presidency and when leaving office, and encouraged President George H.W. Bush "to keep up the tradition." I have not found evidence that Mr. Bush, a naval hero, took the advice while in office, although he did from time to time return salutes after his term expired. President Clinton regularly offered hand-salutes, but at other times--saluting the flag or at the Tomb of the Unknowns--placed his hand over his heart. President George W. Bush was often photographed rendering a hand-salute, although he too at times would put his hand across his heart, sometimes uncertainly.

Research reveals, however, that, whether he knew it or not, President Reagan did not invent the tradition of presidential hand salutes. Photographs exist of Presidents Eisenhower, Truman, Franklin D. Roosevelt, and (seated, inappropriately) Coolidge executing hand-salutes, although there are also many examples of hand- and hat-over-heart salutes as well. Can you spot President Taft in the crowd?

I'm certain readers will continue to be divided over whether civilian commanders-in-chief should render military-style hand-salutes. Hat-wearing having become less fashionable than it once was, tipping the hat or holding it over the heart is not much of an option. So what is a President to do? My letter to the editor suggested that a simple nod of the head would suffice. Another alternative, when responding to, rather than offering, a salute, is to utter a conventional word of greeting, or, if militarily inclined, quite simply, "carry on" or "as you were."

Is this all a tempest in a teapot? I don't think so and neither, I believe, does Congress. According to 36 U.S.C. 301(b)(1), as amended by section 595 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, when the flag is displayed during the playing of the Star-Spangled Banner, persons in uniform should and members of the armed forces and veterans not in uniform may render the military (hand) salute. Others who are present should merely "face the flag and stand at attention with their right hand over the heart, and men [sic] not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart." Presidents who have never served fall in the "others" category: no hand salute. I am indebted to Prof. Robert F. Turner of the University of Virginia for calling this legislation to my attention, along with then Secretary of Veterans Affairs James B. Peake's statement at the time of enactment that "[t]he military salute is a unique gesture of respect that marks those who have served in our nation's armed forces." Other legislation permits active duty personnel in civilian clothes and all veterans to render the hand salute when the flag is raised, lowered or passes in parade or review. (I hasten to add that Bob and I nonetheless disagree on the presidential salute issue.)

The armed forces play a critical and honored role in our country, but it is important to maintain the distinction between that which is military and that which is civilian. The President is commander in chief of the armed forces, but is not a member of them, is not paid according to the military pay table, is not subject to military justice, and does not wear a uniform. Other democracies may at times blur this line, e.g., when Churchill affected a military or naval uniform in World War II, but we have not done so, even when the president has been a retired officer, as in the cases of Generals Grant and Eisenhower. But see President Charles De Gaulle. Will presidential military salutes standing alone threaten the Republic? Of course not. But as President Reagan once quipped about the fact that no president ever died of overwork, "why take a chance?"

This brings me to my second point, which concerns the role of precedent in executive administration. Certainly in the early days of the Republic, presidents had to be aware that things they did or did not do would become precedents, either expanding or contracting their own power and that of their successors. Familiar examples include deciding whether to testify before Congress or to deliver the required "information of the State of the Union" in person. Less familiar ones which also help set the tone for the institution of the presidency are means of address and the playing of "Hail to the Chief" by the United States Marine Band ("The President's Own"). Those who followed the Nixon Administration will recall his unfortunate and short-lived decision in 1970 to dress White House guards from the Secret Service's Uniformed Division in silly hats and tunics reminiscent of a Franz Lehar operetta. (Eighty of the 150 uniforms, which had been worn only once, were later acquired by Southern Utah State College for its marching band.) Does a president bow to a foreign head of state or appoint a "personal representative" to the Vatican, as FDR did in 1939? Does a president wear a flag lapel pin? Add "So help me God" to the Oath of Office? Walk part of the way during the Inaugural Parade? Should individuals be recognized from the Gallery when a president delivers the State of the Union address? Should a president dispense with wearing a jacket in the Oval Office, introduce a Supreme Court nominee at the White House or meet with the sitting Justices?

Similar matters of practice arise in the other Branches as well. Should Justices attend the Red Mass or the State of the Union? Robes? Robes with stripes? Jabot vel non? Mr. Justice Wilgarten or just plain Justice Wilgarten? Should members of Congress argue before the Supreme Court? Who should be invited to address Joint Sessions of Congress? These may not present legal issues so much as issues of tone and, ultimately, taste.

The saluting business should be considered from this broader perspective. Viewed in isolation, the diverse aspects of the presidency I've noted may seem trivial. Taken as a whole, however, they play a role in setting the tone both for a specific administration and for the institution. Personally, I hope President Obama drops the salute (as well as the flag lapel pin). If not, then I will hope his successor does so.


I like the one where W. is holding his stomach


A military saute is a mutual expression of respect between superior and subordinate in the chain of command. Are you arguing that our military members do not deserve a return of respect from their CiC or the CiC does not deserve the privilege of returning that respect?

Monarchs and emperors hold themselves above the common soldiers and do not deign to return salutes. In America, where all men are equal and the President is a servant of the People, this former Army junior officer likes the idea of the President who returns the salute of his subordinates in a sign of mutual respect. However, if the President does decide to follow the custom of saluting, he or she should learn to do it properly like Reagan and Obama.

Our former junior officer Backpacker says:

"A military saute [sic] is a mutual expression of respect between superior and subordinate in the chain of command."

Sometimes that which is mandatory may not reflect respect on the part of a subordinate who wishes to avoid being "sauteed" by a superior.

But so much for the military/industrial complex and displays of fruit salad by the top brass.

I'm more interested in judical robes, whether worn in court or at a Red Mass. My Spy prints that used to adorn my law office walls before my semi-retirement were a constant reminder of the need of a sense of humor to survive the practice of law. Suffolk Probate Judge Monaghan back here in Boston in the 1950s, '60s, took pains to remind attorneys appearing before him that in MA all a judge was was a lawyer who knew a Governor. What if a judge were to appear on the bench without robes? Would that diminish justice? If the legal profession needs pomp and circumstance, then perhaps CLE should require lawyers to attend performances of Gilbert & Sullivan.

Perhaps Mourad can tell us of recent UK doffing of wigs. Will the US get rid of the robes before the UK does?

BTB*, the picture of CJ Rhenquist in his embellished robes at the impeachment trial of Pres. Clinton demonstrated what a joke that proceeding was.

*By the Bybee (disrobing would be insufficient punishment)

while i certainly agree that the president, as well as the rest of us, should respect the troops, haven't we got more important things to worry about than whether or not the president performing a proper military salute to the troops or wearing a flag lapel? the whole argument is silly to the extreme.


the whole argument is silly to the extreme.

The salute means a great deal to most who serve in the military, including Eugene and I. While the issue of whether the President should return military salutes does not rank up there with Obama's decision (or indecision over) how to prosecute the Afghanistan War, it is a significant issue worth discussing.

Personally, I'm nostalgic for Thomas Jefferson. He greeted visitors in houseclothes and slippers.

Authoritarian followers thrive on the formalism of saluting and other gestures which can be used to clearly delineate who is "in" and who is "out".

Speaking as another ex-military person, my own experience is that only officers, and a few over-zealous NCOs, ever really cared about saluting.

As for this tempest in a teaspoon, I cannot believe that anyone would consider it worthwhile to discuss, other than as a bizarre fixation on the part of some people with strange priorities.

As a draftee during peacetime, the three-finger salute with the understanding that the recipient could read between the lines was comforting.

This comment has been removed by the author.

I appreciate this discussion. These sorts of things matter to people, symbolism being important especially for the military where signs of respect and rank is of special importance.

When a Union general respectively ordered a "carry arms" as a sign of respect to the rebels at the surrender ceremony at Appomattox Court House, it was well appreciated as a honorable thing.

Such gestures and symbolism in various contexts are quite important to our social interaction, so trivial sounding or not, it is worth discussion. I respect especially the views of those in "the know" by experience here. I'm sure there is disagreement.

Anyway, "Duncan Hunter National Defense Authorization Act for Fiscal Year 2009" ... um what?

perhaps i should clarify my previous post. as i said, respect for and among the military is extremely important in context. whether or not the president is saluting, holding his hand over his heart, wearing a lapel pin etc., pales however, to more important things like afghanistan, iraq, the economy, healthcare reform, etc. to get bogged down in a silly discussion over whether or not the president should be saluting and how, to the exclusion of these much more important topics goes way beyond silly.

Shag wrote:-

Perhaps Mourad can tell us of recent UK doffing of wigs.

If I may begin with the subject matter of the thread. It is for every sovereign state to establish its own protocol and generally vistors from another state (including the head of state) observe the protocol of the state they are visiting (and if they do not, noblesse oblige, the faux pas should not be remarked upon).

Thus, I leave it to your experts to determine your protocol for your country.

In the UK a member of the armed forces in uniform and wearing headgear is bound to salute a military superior whether or not in uniform. The superior, if and only if, in uniform and wearing his headgear, returns the salute.

The Queen holds the military rank of Colonel-in-Chief of various regiments. Therefore, our Sovereign salutes and returns salutes when he (she) is in uniform on precisely the same basis and so do the other members of the Royal Family who have commissions.

If one looks at films of the annual Trooping the Colour ceremony which the Queen used to attend in uniform and riding a horse, she would salute. Since she now attends in a carriage and out of uniform she does not.

Neither military personnel out of uniform, military personnel without headgear nor ex-servicemen should really salute. Again, if one looks at a ceremony such as Remembrance Sunday, the smarter ex-officers tend to wear a hat, so that they can remove it as a mark of respect when they pass the Cenotaph.

We generally do not pay much attention to the Union Flag save at military establishments. But one salutes at Colours, and also one salutes the regimental colours or equivalent when paraded and in such circumstances a person not properly in uniform bows, not from the waist but merely by inclining the head and sometimes the shoulders a little.

Bowing was the customary response of royalty out of uniform to crowds and applause before "smiling and waving" became the norm. I am old enough to remember the late Queen Mary - who hardly ever smiled - but she bowed when applauded. It was the late Queen Mother who really started the "smiling and waving" thing.

In response to Shag's excursion into the niceties of UK judicial robes may I commend Charles M. Yablon's Judicial Drag: An essay on Wigs, Robes and Legal Change, 1995 Wis. L. Rev. 1129.

Here are the new UK judicial robes for civil and family cases (no wigs): Judicial Dress only worn when sitting in open Court. Criminal cases as before (with wigs).

Many Judges prefer not to wear their robes in civil and family cases even when sitting in open Court - the preference for robes is often in inverse proportion to the degree of judicial pomposity. A good Judge really does not need robes to make himself respected.

The bar follows the Judge - if the Judge is robed, the bar too (with wigs) and if the Judge is not robed, the bar will appear in lounge suits.

I'm for respect for the men and women in uniform who serve their country. Salutes included.

However there is no salute that makes up for the disrespect of squandering their lives.

I was unable to access the law review article cited by Mourad on judicial robes and will check it out at the law library on my next trip.

However, I did locate "Why are Judges' Robes Black?" by Stephen C. O'Neill, that begins at page 5 of "The Court Legacy," Vol. XI, No. 1, February 2003. The article has some very interesting history, including Judge Jerome Frank's recommendation to do away with such robes. Most likely originalists would disagree with Judge Frank. The article does not address what is worn under judicial robes, a curiosity regarding kilts, although the Heller Second Amendment decision may provide an answer.

FYI Shag, for time being.

As to originalism, John Marshall favored the simple black robe as compared to the more elaborate ones the first Supreme Court justices sometimes favored.

On robes in general and what may be under them, I do recall once being in a court on an island in the Netherlands Antilles.

My clients were appearing by locally based Dutch Counsel who wear a longish black robe with ample sleeves and white bands. The robe fastens up up the front, I assume with hooks and eyes, press studs or a zip.

Counsel addressed the Court from a podium in the well of the Court and in this case the Court was being addressed by a very attractive female member of the local bar.

At the closing point of her submissions Counsel raised her arm to emphasise a submission - whereupon her gown split open at the front thus revealing a very scanty bikini - which rather distracted the Court from the point she was making.

Still - it made the journey from London worthwhile.


The situation faced by the Court could have been hairy, probably saved by a close shave.


I assume the Court reviewed Counsel's brief submission with due care and respect.

I can see why a president would return a slute offered to him ( a setting that is unique and not addressed by the legislation respecting salutes during a flag-raising or the anthem). I do not, however, see why the president offered an extended salute to the returning fallen, much as I sympathize with his desire to sho respect for their sacrifice. A swift return of a slute offered to him as a superior by a military officer is one thing. Seeing the president standing at attention and saluting for an extended period of time as in the picture taken at Dover is to me disturbing. A solemn observance with hands at sides would, to me, have conveyed the proper respect.


While Bart's assertion above: "Monarchs and emperors hold themselves above the common soldiers and do not deign to return salutes.", only betrays his ignorance of the very close relationship the European constitutional monarchs have with their armed forces, I accept that there is an important difference between the way matters are arranged in a constitutional monarchy and in the USA.

In the UK the armed services owe their allegiance to the Crown rather than to the government of the day. The professional heads of the services have direct access to the Monarch. We speak of "taking the Queen's shilling" and being in a very real sense "Soldiers of the Queen".

On the other hand, it is the government of the day which funds the services, decides on their equipment and their deployments and gets the blame when things go wrong.

The close interest the Monarch and the other members of the royal family take in the welfare of the armed services, the fact that just about every regiment or other service unit has a member of the royal family as colonel in chief or equivalent, is a useful check on the government and the civil servants - there is nothing quite like an expression of concern from the Palace to get the desk jockeys in the Ministry of Defence jumping about to remedy some deficiency. Thus the Monarch is more than a purely symbolic head of the armed services.

The position of a US President as both head of state and the political head of the executive making decisions about funding and deployment gives him a dual role which in the UK and other countries is split between the head of state and the head of government. That must necessarily make his relationship with the US armed services more complex and more difficult.

But since a US President represents your nation, it seems right and proper that a president should on behalf of the nation pay the US armed forces honour and respect.

Although I have a personal preference for the older UK usage where people in civilian attire do not salute, I think that actually showing that respect, however it is done, is what is important.

I have therefore been pleased to see that President Obama has been careful to attend when war dead return from service overseas, has spent time with the injured, has spoken to bereaved families and has generally behaved impeccably and consistently with the dignity of his office.

The salute means a great deal to most who serve in the military, including Eugene and I. While the issue of whether the President should return military salutes does not rank up there with Obama's decision (or indecision over) how to prosecute the Afghanistan film izle War, it is a significant issue worth discussing.

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