Oaths of Office in the United States

Although a DC resident, I couldn’t persuade myself or my wife to brave the crowds or the cold to attend the inauguration yesterday, and instead watched it instead with a group of friends on hdtv.  Leaving aside Chief Justice Roberts fumbling the oath (see last graph in this post for President Obama retaking the oath on January 21), some of our non-American readers might be interested in the legal source and text of the oath itself.  It is significantly different from the oaths of office of many other countries in the world.

The presidential oath of office is found in the Constitution, Article II, Section 1:

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.

It is an interesting question, on which I defer to the constitutional lawyers, whether, had the Constitution not contained an oath, Congress could have prescribed one that would have been binding on the President (elect) as a condition of taking office.  I would guess, but leave it to others to tell me, that it would be an impermissible intrusion on the requirements of being the executive.

The Constitution does not specify an oath for the office of Vice President; several variations have been used over the years, but currently (including that taken by Vice-president Biden yesterday) it is the same oath (see below) taken by members of Congress.

Members of Congress, Senators and Representatives,  as well as members of state legislatures, and executive and judicial officers of the United States as well as of the individual states, take an oath of office pursuant to Article VI, Clause 3 of the Constitution which, however, does not give specific language.  It simply provides that 

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

The current oath under Article VI, Clause 3 – also used for enlisted soldiers, though a slightly more elaborate oath is used for commissioning officers – and the one taken by Vice-president Biden yesterday, says:

I, {insert name here}, do solemnly swear, (or affirm,) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. 

The reference to God may be omitted on grounds of personal belief.  In addition, a slight variant of this oath is recited at the beginning of each new Congress – that is, every two years – by the entire Congress and by the one third of Senators elected or re-elected in that cycle.

The most striking feature of all these oaths is that they refer only to the Constitution of the United States as the source of allegiance, and the thing to which allegiance is owed.  They do not refer to the nation, the country, the patria, the fatherland, or even the flag.  This is very far from an accident historically.  Across the 19th century, responding both the the British empire and the French revolution, American republicans argued that allegiance to the Constitution, rather than allegiance to the flag, set the United States Constitutional faith apart from old Europe and its despotisms.  Throughout the 19th century, flag worship was seen as ever so slightly sinister; the red, white, and blue were widely used as emblems, but not as the Flag as such.  The ‘worship’ of the flag in Europe was contrasted with the ‘worship’ of the truly republican form of government, constitutionalism.  The ‘rockets red glare’ and seeing the flag through the night is historically a quite late eruption of flag worship largely inconsistent with 19th century American republicanism and constitutionalism.  (There is also an independent process of development in the history of maritime flag usage – not irrelevant, to be sure, in the history of a maritime nation.) 

Flag worship gets a significant boost in the Civil War; both the stars and stripes and the stars and bars are functionally battle flags.  Flag worship really takes off with America’s first overtly imperial acquisition – the Philippines – and the various laws regarding treatment of the flag mostly date to the First World War and the massive effort made by the Wilson administration to whip up sentiment for the war.  They were a source of controversy in the late 19th century among conservative-libertarians in the United States, although it largely died down after the First World War.  

For unapologetic libertarians like me, the Pledge of Allegiance is an enormous Constitutional affront.  I, for example, will not recite it – not for the usual reason of “under God,” or because I share – I don’t – the sophisticated sensibilities of citizens of the world who by accident of birth happen to reside and pay taxes in the United States, but instead because it is a pledge of allegiance to the flag, in profound ideological and historical contravention, in my view, of the basis of the American constitutional experiment in self-government.  It is quite beyond me why the pledge would be to the flag when no official oath of the United States is to anything other than the Constitution.  Although I would happily pledge to defend and support the Constitution, I think that understood historically, the pledge to defend the flag is actually a betrayal of the pledge to the Constitution; the two were not seen historically as interchangeable, or merely as symbols of each other, but as distinctly different concepts in the history of American republicanism.  I am, on this point, a fastidious Constitutional irredentist.

The development of the current Constitutional oath other than for president dates to the Civil War – it is the reason for the constant reiteration of the phrase enemies “foreign and domestic”: concern for the loyalty, particularly of states remaining in the Union largely because of Federal occupation, such as Maryland, and their Congressional delegations.  Lincoln was enormously concerned to keep them in; he was also greatly concerned about their loyalty, and quaint as it seems, an oath was one way of reinforcing it (that, to be sure, plus penalties of perjury).  

Finally, however, the presidential oath contains specific and additional terms that do not appear in the prescribed general form for other offices of the United States.  The president is bound specifically to “protect, preserve, and defend” the Constitution, while other officers are bound only to “support” the Constitution – in the language of the Constitution itself, although the actual prescriptive oath used today uses the term ‘defend’ as well as ‘support’.  Lincoln took the difference in terminology to indicate a specific, and greater power, of the Executive in the defense of the Constitution – a point not without meaning today. 

(Wikipedia, by the way, I see rooting around on the web a bit, is quite good on this topic.  With regard to the oath flub in yesterday’s inauguration, I was unaware that, according to Wikipedia, Chief Justice Roberts readministered the oath to President Barack Obama:)

In 2009, Chief Justice John G. Roberts, while administering the oath to Barack Obama, incorrectly recited the second line, stating, “That I will execute the Office of President to the United States faithfully.” As Obama began to recite this line, he paused, whereby Roberts attempted to correct his mistake, but still inverted the oath’s word order, reciting the word “faithfully” out of its correct place. Obama then repeated Roberts’ line word for word, including the misplaced “faithfully.”^[8] Several constitutional lawyers said that Obama should retake the oath as soon as possible.^[9] On January 21, 2009 at 7:35 p.m. EST (00:35 UTC) in the Map Room of the White House, Chief Justice Roberts administered the presidential oath a second time to President Obama “out of an abundance of caution,” according to the White House.^[10][11]