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Copy-editing the Constitution?

I certainly hope that the off-the-cuff revision Chief Justice John Roberts performed on the presidential oath of office today was not a sign of conservative judicial activism to come. And I doubt that Roberts simply dislikes the Founders' prose style. No, let's assume that Roberts made an honest mistake during the inauguration.


It's astonishing that Roberts flubbed the oath of office when he administered it to President Obama. That oath is not something to be taken lightly. It's right there in the Constitution, prescribed word for word by Article II, Section 1, Clause 8. Obama was supposed to say that he would "faithfully execute the office of president of the United States." But Roberts asked him to promise that he "will execute the office of president to the United States faithfully." In some cases, this would be a minor thing. My copy editor can make a change like that in a column or a blog post, say. But even the chief justice can't do that with the words of the Constitution.

Obama, former law professor that he is, knew that Roberts had gotten it wrong and paused. Roberts figured out his mistake and they got it right. But Obama risked a moment of awkwardness simply by trying to adhere to the very Constitution he was swearing to uphold by making sure that he (and Roberts) got the oath right.

Standing in the crowd in front of the Capitol and watching all this, I had a terrible fear that if Obama had followed Roberts down the road to error, some conservative legal group, with massive support from conservative talk radio, would have brought a lawsuit arguing that Obama's presidency was illegitimate because he hadn't properly recited the oath. Far-fetched? Yes, but this country has gone through a lot, what with the Clinton impeachment, Florida and other incidents of political madness.

It is, however, as our new president said, a new day -- a time to put aside "the stale political arguments that have consumed us for so long." So I will cast away my fears, forgive the chief justice his mistake -- and urge him to bring the written text with him the next time he administers the oath. Someone who would claim to be a strict constructionist should do no less.

POSTSCRIPT: Despite President Obama's efforts to get the oath right, he still did not say the words precisely as prescribed in the Constitution. So nobody has any doubt, and so nobody can bring this up later, he should recite the oath again, precisely. Maybe he's done this already. But he should get it on YouTube for all the world to see.

POSTCRIPT TWO: Well, they did it. At 7:35 p.m. on Wednesday, Chief Justice Roberts administered the oath of office, again, to President Obama in the White House Map Room. According to the pool report filed by Wes Allison of the St. Petersburg Times, Obama stood and walked over to make small talk with the press pool as Roberts donned his black robe.

"Are you ready to take the oath?" Roberts asked.

"I am, and we're going to do it very slowly," Obama replied.

After a flawless recitation, Roberts smiled and said, "Congratulations, again."

Obama said, "Thank you, sir."

"All right." Obama said. "The bad news for the pool is there's 12 more balls."

I'm glad Obama took the oath again. There will be enough problems over the next four years. We didn't need any more controversy over this.

By E.J. Dionne  | January 20, 2009; 7:39 PM ET
Categories:  Dionne  | Tags:  E.J. Dionne  
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Considering the non-sense that the tinfoil hat brigade tried to stir up over Obama's birth in Hawaii, I wouldn't put anything past them at this point.

The one thing they ignore is that 9 million more Americans voted for Obama/Biden than for McCain/Palin.

Posted by: AxelDC | January 20, 2009 8:38 PM | Report abuse

Roberts' performance was astonishing. Either he was totally flustered, or utterly malevolent - my money's on flustered.

Rev. Lowery showed how a man of words (and lawyers and judges are most certainly that) can rise to an occasion.

What a wonderful day for the United States of America.

Posted by: officermancuso | January 20, 2009 9:13 PM | Report abuse

"Never attribute to malice that which can be easily explained by incompetence." I suspect that several people's behavior today could be explained by perhaps one too many anti-freeze eye-openers early this morning. John Roberts, Ted Kennedy? It would certainly explain a lot.

Posted by: hisroc | January 20, 2009 9:47 PM | Report abuse

I would Roberts flub to being flustered by Obama's interruption, nothing more. Both men seemed nervous to me, and nobody is perfect and gets everything right.

Posted by: freetobe | January 20, 2009 10:16 PM | Report abuse

You've got to be kidding. "Copy-editing the constitution"? Chief Justice Roberts was clearly nervous and switched one word. On a tremendously historic day like today, this is the best you can come up with? Perhaps you should return to copy-editing and leave writing opinion pieces to journalists with useful opinions.

Posted by: sroberts3 | January 20, 2009 10:58 PM | Report abuse

They were miscuing each other. Obama expected Roberts to stop after "I, Barack Hussein Obama," and he started to echo him at that point, but Roberts went on to add "do solemnly swear" so they overlapped for a moment. That flustered Roberts and he muffed the next phrase. Obama realized it was wrong and stopped. Roberts tried to correct it, tried a second time and finally got it right, but meanwhile Obama had repeated back the second, still incorrect, version. And so on.

My money is on the possibility that at the end of the very first phrase, Roberts was mentally lingering over the "Hussein" and lost his focus.

Posted by: herzliebster | January 20, 2009 11:00 PM | Report abuse

While I hate to copy edit Mr. Dionne, whose columns I regularly enjoy, I suggest that the oath of office should not be taken "lightly."

Posted by: BillWhipple | January 20, 2009 11:41 PM | Report abuse

Are you really so desperate for something to find fault in that you make a "vast right wing conspirecy" out of a nervous slip? Com'on you people can do better than this, I've seen a lot better stuff in the last few years. Maybe you need some new idea people to create Republican (windmills)Demons for you to fight.
Fight on "Don"

Posted by: MarxBro | January 20, 2009 11:50 PM | Report abuse

This was the Chief Justice's first administration of the Oath of Office to a President. While a skilled advocate before Chief Justice, his audience was one, three, or nine judges. He was the participant in the central event before 2 million people.

I was impressed by the silent communication of these two greatlawyers in recovering from this slight slip of words.

Posted by: RSteagall | January 21, 2009 2:59 AM | Report abuse

it was unprofessional, shoddy work, as the public gets from nearly all Bush appointees.

when one gets married, would one relish this: in front of "the family?"


and this was before the world for all time.

roberts was acting on a dare from Cheney, make no doubt, but Obama lands on his feet every time. coolcat!

Posted by: forestbloggod | January 21, 2009 3:12 AM | Report abuse

Dionne- you are a real clown. Stop the madness. This was just a nervous slip on Roberts part. But it is evident that wit you journalists Obama will get a free ride for many months no matter what he does. Responsible jurnalism died in 2008 and thats why the NYTimes is going under. We will give him a chance but we expect alot from the man who promised everyone everything. The illusion is over and now the real show begins. Take notes Hillary -you can use em later on.

Posted by: JUNGLEJIM123 | January 21, 2009 5:30 AM | Report abuse

Well, first your reportage is flawed. The oath President Obama uttered was not verbatim from the Constitution. "Faithfully" was at the end of the clause. Strike one.
Second, the Constitution requires that the oath be taken, but does not require that it be administered by the Chief Justice and does not required that the taking of it be part of the Inaugural ceremony. Strike two.
Third, IF there is a problem, then it can be cured by simply having the President utter the words verbatim as they appear in the Constitution. Whereever he may wish to do so. Whenever he may wish to do so. Knowing the manner in which the President and his wife have prepared for every moment of this rise to the Oval Office, here's a thought: you think perhaps the President practiced the oath a time or two on his own? And if so, do you think he said it correctly in doing so? Well, then, he's taken the oath of office as written and the problem was resolved BEFORE he and the C.J. stood before the nation and demonstrated their humanity for all to see. Strike three.

Go directly to jail. Do not pass go. Do not collect $200 or a Pulitzer. And while in jail, take a refresher course on reporting.

Posted by: 33rdStreet | January 21, 2009 7:52 AM | Report abuse

Chris Wallace at Fox has already proposed that Obama's presidency is illegitimate, on the grounds of the flubbed oath. Our Mr. Dionne is not being paranoid at thinking the Right might seize on it. It already has.

Posted by: bettenoir | January 21, 2009 8:02 AM | Report abuse

I'm just happy to have a president who's actually read the Constitution.

Posted by: MollyNYC | January 21, 2009 8:35 AM | Report abuse

It would be nice if the Cheif Justice actually read the laws he is supposed to interpret from time to time. However, the oath isn't important anyway. It just sounds nice to hear. While article two requires an oath, it is superceded by the 20th ammendment. Ammendment 20 states the new administration automatically starts at noon on the 20th regardless of whether the oath has been taken.
As troubling is the Samuel Alito snub of our new president and vice president. Obama and Biden voted against Alito's confirmation and when the two went to visit the Supreme Court justices this week, Alito decided not to show up. I thought judges were supposed to be unbiased but it seems we have a judge on the highest court in the land holding a political grudge...looks like those who voted against Alito were right about him. The Bush legacy is more clear...long-term grudges and incompetence on the bench.

Posted by: ninja_skipp | January 21, 2009 9:03 AM | Report abuse

1. It was an innocent mistake. It happened before with other Presidents.
2. The last paragraph is a joke. Dionne managed to write/publish an article about it in the newspaper. That's not called "forgiving." That's called "rubbing it in."
3. The whole article is just pompous and arrogant - the very garbage Mr. Obama was talking about putting behind us.
4. Again - Obama is a smart, capable President. His supporters will be he greatest liability. If they can't move past the snarky, self-important and denigrating personal attack mode they've clung to for 8 years, Obama won't have more than 4 to do what he promised.
5. So it's time for everyone to remove the chip off their shoulders and let the man do his job without 300 million back seat drivers.

Posted by: mwcob | January 21, 2009 9:41 AM | Report abuse

What is it five lines to memorize? Such skillful speaker would just go forward and say his line. He interrupted Roberts and caused him to start again which lead to the inversion of the word. Then he stood there waiting for Roberts to feed him the line again after the word "execute" like he had forgot the oath. Okay, let's just blame Roberts, but even actors memorize their lines and get through miscues. Maybe it was the dumb crack Obama made about the pedistal they brought for the shorter Roberts to stand on right before the Oath. Obama is bad without a teleprompter. Wait til after a few off the cuff questions at a real press conference get tossed his way. For now just blame someone else...Godspeed 44

Posted by: star_key2 | January 21, 2009 10:04 AM | Report abuse

Dionne what does this have to do with conservative activism? Liberal activism or any other politically manufactured legal dogma. "They" flubbed the very simple oath up.

Posted by: star_key2 | January 21, 2009 10:06 AM | Report abuse

"Ammendment (sic) 20 states the new administration automatically starts at noon on the 20th regardless of whether the oath has been taken."

The amendment says nothing at all about the oath.

Posted by: bluecrowriver | January 21, 2009 10:30 AM | Report abuse

Mr. Dionne is right to be concerned about the Chief Justice's intentions. During the Senate confirmation hearings, Roberts repeatedly lied about his opinions regarding judicial precedent and abortion.

Posted by: greystuul | January 21, 2009 11:04 AM | Report abuse

Sorry, EJ, but Obama DID follow Roberts down that road. Roberts tried to correct himself but didn't, quite, and Obama put "faithfully" at the end, where Roberts had put it.

I'm sure he swore again, in private. After all, the Constitution doesn't require a bible, it doesn't require the Chief Justice, and it doesn't require an audience.

It also doesn't require "so help me God."

Since that is NOT in the Constitution, some COULD argue that Presidents who say it are also mis-swearing.

Posted by: RealCalGal | January 21, 2009 12:06 PM | Report abuse

Um, Starkey, the stool was for Sasha Obama! And the comment from her father was to her.

Posted by: 33rdStreet | January 21, 2009 12:52 PM | Report abuse

The 20th Amendment declares, as a matter of law, that Mr. Obama became president at a certain time on a certain date.

At the time the alleged Chief Justice, a law student or poor lawyer named John Roberts, called upon Mr. Obama as Senator to take the oath prescribed by Article II, Section 1, of the Constitution, Mr. Obama had been the President, not a senator, for several minutes.

After Mr. Roberts finishes his legal education or his next CLE course, he likely will understand his error, but the Bush administration was well known for ignoring or twisting the law to fit their agendas and there is no reason for us to expect Mr. Roberts to break the mold now and abide by the law.

Posted by: FMPrescott | January 21, 2009 1:48 PM | Report abuse

Posted by: 33rdStreet | January 21, 2009 12:52 PM

It really doesn't matter, but his children were already on their pedestals and Roberts' was next to Obama and was moved over for him to use in further away and in front of him.

Posted by: star_key2 | January 21, 2009 1:49 PM | Report abuse

Obama, former law professor that he is, knew that Roberts had gotten it wrong and paused? Law professor who apparently has no legal writings to his name and wrote no law books or contributed to any chapters therein. His only books are about himself.
President of the Harvard law review with not a single publication for the public to scrutinize. Mythology Dionnne...

Posted by: star_key2 | January 21, 2009 1:55 PM | Report abuse

Posted by: MarxBro | January 20, 2009 11:50 PM:

Are you really so desperate for something to find fault in that you make a "vast right wing conspirecy" out of a nervous slip? Com'on you people can do better than this, I've seen a lot better stuff in the last few years. Maybe you need some new idea people to create Republican (windmills)Demons for you to fight.
Fight on "Don"

Not desperate, per se; just desperately tired of GOP pettiness. Here's Chris Wallace yesterday on FauxNews:

"Wallace: ..."I have to say I'm not sure Barack Obama really is the President of the United States because the oath of office is set in the Constitution and I wasn't at all convinced that even after he tried to amend it that John Roberts ever got it out straight and that Barack Obama ever said the prescribed words. I suspect that everybody is going to forgive him and allow him to take over as president, but I'm not sure he actually said what's in the Constitution, there."

Bring out the tin foil hats.....

Posted by: abqcleve | January 21, 2009 2:13 PM | Report abuse

OK both sides, for the love of Pete, chill! I was one of the wags that made fun of Chief Justice Roberts' little Constitutional faux pas! I found it quite amusing that the Chief Justice would mess up the oath of office.

In retrospect, however, I could understand that even the best constitutional scholar might mess up the oath of office when you're standing in front of 1-2 million people and it ACTUALLY IS the first time that you are administering said oath. So cut Justice Roberts a little bit of slack.

Mr. Dionne was probably doing a bit of tongue-in-cheek commentary about Chief Roberts' flub. I read his comments as lighthearted ribbing him, probably the same way his peers from Justice Stevens on the left to Justices Thomas and Scalia on the right were probably doing to him last night or this morning.

I hope that Chris Wallace's commentary was the same, some lighthearted ribbing on Obama and Roberts.

So for once, ladies and gentlemen, let's take Freud's old adage: "sometimes a cigar is JUST a cigar".

There are bigger issues than fretting over Chief Justice Roberts'little faux pas. It was probably a case of a little stage jitters at the momentuous nature of the occassion as well as the fact that this was the first time he administers the Presidential Oath of Office.

Now can the conspiracy theory crowd from the right and from the left, take a deep breath and enjoy their rest of the day?

Posted by: Kruhn1 | January 21, 2009 2:45 PM | Report abuse

Really, didn't anyone else see how Roberts, after his mistake, then fiercely added the non-constitutional addendum "So help you God?" as if daring Obama to not repeat the [non-constitutional] phrase?

What a maroon.

Remember, John Quincy Adams was sworn in on a copy of the U.S. [legal] Code not the Bible - after all, he reasoned, presidents swear to defend the U.S. constitution, not the bible. Also no clergy were ever utilized for our country's first 100 years of inaugerations.

Apparently they understood and appreciated our constitution, and the seperation of church and state, better than Chief Justice Roberts OR the many wingnuts now screaming that Obama is illegitimate 'cos of Robert's gaffe.

Posted by: respondus | January 21, 2009 3:07 PM | Report abuse

I just chalk it up to another incompetent Bush appointee trying to prove that Government is the problem by being the problem. Roberts should be nervous. The Country is on to him and his right-wing corporatist judges. Let the impeachments begin.

Posted by: thebobbob | January 21, 2009 4:56 PM | Report abuse

Dear Mr. Dionne:
You write, "Obama, former law professor that he is, knew that Roberts had gotten it wrong and paused. Roberts figured out his mistake and they got it right."
Actually, Roberts corrected himself, but Obama still uttered "faithfully" at the end of the sentence in question. Please listen to the audio again. What is much more disturbing than this tempest in a teapot is the slide into "truthiness" as evidenced by ever-sloppier reporting in the major media, and outright lies masquerading as respectable research on the internet (see WP's article on Wikipedia today)-- not to mention the dumbing-down promoted by media parodies like "The Onion" and "The Colbert Report" which are probably seen as reliable sources of "information" by the less educated among us.

Posted by: Zacariah | January 21, 2009 5:35 PM | Report abuse

1. Article II, Section 1, Clause 5 of the U.S. Constitution requires that a person must be a natural born citizen, at least 35 years old, and a resident of the United States for at least 14 years in order to be eligible to hold the office of president.

2. Natural born U.S. citizens have two parents who are U.S. citizens (natural born or naturalized).

3. Natural born U.S. citizens do not have one parent who is a U.S. citizen and one parent who is a UK subject.

4. A U.S. citizen who does not have two parents that are U.S. citizens (natural born or naturalized) is not a natural born U.S. citizen and is thus ineligible to hold the office of president.

5. It's that simple. Read the above four points again if you don't understand it. It's easy to understand.

Posted by: tanarg | January 21, 2009 5:45 PM | Report abuse

While the Constitution does in fact require the President to be a "Natural Born Citizen," it does not define what is meant by that. The definition of "Natural Born Citizen" has been developed over time by court opinions, both in England before the founding of the U.S. and in the U.S. courts. It also has a definition that has become customary international law. This definition is well understood in the law.

To be a "Natural Born Citizen" of the U.S. does not require that both parents be U.S. citizens. In fact, it doesn't even require that the child be born in the U.S. It only requires that the child be born of at least one U.S. parent or that the child be born in the territory of the U.S. For example, a child of a service member born abroad where one of the parents is not a U.S. citizen would, in fact, be eligible to be President if the birth is recognized by the U.S. state department (there actually is a form for this sort of thing).

The "Natural Born Citizen" requirement is merely to distinguish someone who was a citizen at the time they were born from someone who was born a citizen of another country and was "naturalized."

So irrespective of whether one considers Hawaii to have been a state when Obama was born, it was certainly U.S. territory. Furthermore, his mother was an American citizen. He meets the definition of "Natural Born Citizen" under Art. II of the Constitution.

Good god, man, let it go already...

Posted by: DM_Inf | January 21, 2009 7:57 PM | Report abuse

Got a conflict with Obama's legitimacy to be President of the United States? Good! Anything else?

Posted by: rodnacious1 | January 21, 2009 8:30 PM | Report abuse

Perhaps if President Obama hadn't interrupted Chief Justice Roberts immediately after his name was said, the entire episode could have been avoided. However, to imply that either Chief Justice Roberts did this on purpose to embarrass President Obama, or that President Obama wasn't really the President due to the flub is ludicrous.

Equally ludicrous is the notion that "Rev. Lowery showed how a man of words (and lawyers and judges are most certainly that) can rise to an occasion." I would hardly consider a racist rhyme an appropriate way to end a ceremony that was supposed to be about coming together as a nation.

Posted by: dbjmtaylor | January 21, 2009 10:17 PM | Report abuse

Cheney is already having another baboon killed and heart harvested and in on his way back in to save the day!

Posted by: angriestdogintheworld | January 21, 2009 10:18 PM | Report abuse

The presidential oath has never been recited exactly as written in the Constitution and precedent has deemed this acceptable.

The name of the President is not part of the oath, though it has traditionally been inserted between "I" and "do solemnly swear..." The exact wording in the Constitution also goes "... do solemnly swear (or affirm)..." though no one has ever said it that way. The parenthesis and the preceding paragraph indicate that it isn't intended to be said that way. So, based on precedent, it is not necessary for the President to recite the oath exactly as written in the Constitution. All of the words were said and the exact meaning was retained. Shifting the word "faithfully" to a different place in the sentence did not in any way change the meaning of what was said.

Since the oath was administered by the Chief Justice of the Supreme Court with the rest of the Supreme Court as witnesses, it would appear that the ultimate arbiters of Constitutional Law had accepted the Constitutional requirement properly met.

I don't think they should have repeated it, but If they were going to repeat the oath, it should have been done immediately after the ceremony and before Obama signed the nominations for his cabinet, which was his first official act. The Constitution requires the oath be taken before executing the duties. Repeating the oath just keeps the issue going by opening the door for one to suggest that the acts taken between the oaths, and all acts following from then such as the Senate confirmation of cabinet officers, were not actually valid.

It would have been best if the Chief Justice, along with the other eight justices who all witnessed the oath, had released a statement that the oath had been properly administered. They, after all, would be the final arbiters if an objection were raised in the courts.

Based on the 20th Amendment, Obama became President at noon. The oath, which is not mentioned in the 20th Amendment, still has to be taken before the President executes the duties of his office. Those are two separate events. What constitutes taking the oath, like most of what appears in the Constitution, is loosely defined in the document and left to the interpretation of officials of the time.

Posted by: cjenns | January 22, 2009 2:17 AM | Report abuse

On the subject of "so help me God."

It is entirely appropriate for the president (or any oath taker) to add this wish to the conclusion of his oath-taking. The First Amendment protects him in his personal expressions of religious faith.

HOWEVER, I strongly believe that the Chief Justice (or whoever administers the oath) has no right to add the phrase -- any phrase, religious or otherwise -- to the Constitutionally required language.

Moreover, the addition of this specific language, which in effect requires the President to repeat the words (or dares him not to, depending on your viewpoint), directly violates the Constitutional prohibition against imposing a religious test for office.

So, we can still have the President punctuate his oath-taking with the traditional "so help me God." But let's have future Chief Justices get the other words right, and, following the Constitution, leave those four words out.

Posted by: Meridian1 | January 22, 2009 7:43 AM | Report abuse

Roberts did the trifecta of flubbing: 1) not allowing Obama to repeat "I Barack Hussein Obama" before saying "do solemnly swear." Go YouTube the dying Renquist administering the oath at W's second inaugural; he got it right. 2) repositioning "faithfully" and saying "President __to__ the United States." 3) discarding the "repeat after me" format in __asking__ Obama at the end, "so help you God?"

I don't see right-wing conspiracies in this, just an overly confident Supreme Court justice winging it without notes (as Stevens used for Biden), and blowing it. He really did tarnish such a galvanizing moment in this country's history, though.

Posted by: Bob-CT | January 22, 2009 9:36 AM | Report abuse

The President interrupted the Chief Justice, period. The Chief Justice was still speaking and President Obama tried to speak over him, saying his name.

Good God, can you people really not recognize that President Obama is just a man, not a god?

And big deal, the video won't look good - cry me a river, who cares, other than the people that want to watch it over and over and weep over the miracle.

God help this country - slavish devotion is dangerous to a republic.

Posted by: dbjmtaylor | January 22, 2009 1:33 PM | Report abuse

Hey, this isn't the first time, and by no means the worst time, that Chief Justice Roberts has mangled the clear language of the Constitution, and I doubt very much that it will be the last, or even the last this year. At least this time, no one will remain wrongfully jailed, wrongfully deprived of equal pay, and a lot of so ons. Perhaps in the future, Chief Justice Roberts might also think to read the 9th and 10th Amendments, whose existence he seems never to have heard of.

For his part, it seemed to me that by repeating Roberts' mistake, Obama was trying to help him out of a jam.

Posted by: edallan | January 22, 2009 3:25 PM | Report abuse

Chief Justice was strongly supported by Bush. I guess "similia similibus curantur". The problem with the constitution is that it appoints justices for life.

Posted by: ninco | January 22, 2009 8:09 PM | Report abuse

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