Honor's Constitutional Moment: The Oath and Presidential Transitions
20 Pages Posted: 21 Nov 2008 Last revised: 30 Nov 2008
Date Written: November 21, 2008
This Essay is part of a virtual symposium on the law of presidential transitions which will run in the coming weeks in Colloquy, the online supplement of the Northwestern University Law Review. This contribution to the symposium focuses on the implications of the Presidential Oath Clause.
Drawing on Bruce Ackerman's language, the Essay argues that every presidential transition is, in an important sense, a constitutional moment. That moment is instantiated in a single act - the taking of the presidential oath. The oath is both an official act and a deeply personal one, in which the oath-taker stakes his honor on the preservation, protection, and defense of the Constitution. In doing so, the new President necessarily must come to his own understanding of what the Constitution means and what obligations it imposes on him. The President's duty to consider what the Constitution means, and thus what his oath requires of him, is indefeasible: he cannot simply defer to the constitutional views of the courts, of Congress, of prior presidents, or even of the people who elected him.
This understanding of the presidential oath as constitutional moment carries with it a host of possible implications. They involve competing understandings of the nature of executive power, of whether the President is obliged to preserve only the Constitution or the nation itself, and of whether the new President is obligated to revisit and either ratify or rescind - or even prosecute - every action taken by the prior administration. In confronting these questions, the new President will also consider competing informational influences and policy considerations that may weigh on his choices. Ultimately, however, the Presidential Oath Clause makes clear that the new President is oath-bound to independently consider what the Constitution means and what it requires of him, and to act accordingly.
Keywords: Presidential Oath Clause, presidential transitions, legal transitions, oaths, Barack Obama
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