Thursday, January 22, 2009

Presidential Oath Fiasco

I realize that this topic is not especially relevant to the theme of this blog, but....

I must confess that ever since Chief Justice John Roberts and President Obama erred in their respective recitations of the Presidential Oath of Office on Tuesday, I have been ruminating about the possible legal implications of their mistake. Granted, I am far from a scholar of Constitutional Law, but the occurrence seemed like a case right out of the annals of halakhic literature and, in that spirit, I thought about it in quasi-halakhic terms.

The oath of office is a specific formula established by the Constitution. So one might argue that it is only through absolute fidelity to the language expressed in the Constitution that one fulfills the requirement of the oath. On the other hand, the oath has an underlying semantic meaning which, even if the words are slightly jumbled, might still be preserved, as I believe it was on Tuesday.

So the debate would revolve around whether the Constitution demands the recitation of the specific wording of the vow as a distinct "ritual" action on the part of the President, or whether the Constitution simply requires that a statement be made that is the conceptual equivalent in meaning to the one it records - i.e., the oath itself is to be the manifestation of a certain set of ideas or intentions which might find equally clear expression in other words.

As it turns out, Constitutional lawyers were sufficiently concerned about this "safeq" ("doubt") that they recommended Obama be sworn in a second time. Last night, Chief Justice John Roberts re-administered the Oath of Office to the President in order to dispel any lingering legal doubts about the acceptability of the botched version he administered previously.

This is reminiscent of the dispute in Masekhet Berakhot (40B) regarding blessings on food. Rabbi Yose maintains that any deviation from the text established by the Hakhamim is invalid. Rabbi Meir argues that as long as what is said reflects the meaning embodied by the Rabbinic formula, the blessing remains valid.

The argument would hinge on whether blessings are actions or expressions of thought. One possibility is that the Rabbis established their formulae as technical procedures designed to stimulate reflection. This view is endorsed by Rabbi Yose who holds that the official wording of the blessings is inviolate.

The alternative is that the Rabbis formalized the blessings in order to best capture some intended meaning which could, theoretically, be expressed in other words as well. This is the view of Rabbi Meir who holds that if a person's blessing is identical in substance to the official text it is valid even though his wording deviates from the established form. While he too agrees that the formulations of the Hakhamim are to be preferred, an alternative version of a blessing that manages to express the same idea as the original would nonetheless satisfy one's halakhic obligation to bless.


Yehuda said...

You beat me to it. When I heard about this issue on the radio yesterday I was also struck by how reminiscent it was of a halakhic debate. In fact, at the same moment I saw your post I was looking up articles on this very issue to discuss it with my students. There seems to be an additional issue of fidelity to the founding document of the United States. It reminded me more of the debate concerning K"S - "ת"ר ק"ש ככתבה דברי רבי וחכ"א בכל לשון מ"ט דרבי אמר קרא והיו בהוייתן יהו ורבנן מאי טעמייהו אמר קרא שמע בכל לשון שאתה שומע"

I just had my students give their opinions on this issue and the s'varot. I will type them up soon and share them with you.

It is also worth noting the White House counsel, Gregory B. Craig's, reason: “We believe that the oath of office was administered effectively and that the president was sworn in appropriately yesterday, but the oath appears in the Constitution itself, and out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time.”

Kylopod said...

The comparison I had in mind is messing up one's wedding vows. Obviously, it isn't some monumental mistake, like, say, failing to find WMD in Iraq. And it is easily correctable, as we saw yesterday when Obama retook the oath. But I do think that, although the matter wasn't a huge deal (albeit funny and embarrassing), the oath of office is still important, and Obama was right to do it over.

Interesting post!

Rabbi Joshua Maroof said...


Here is another very humorous Jewish take:

Sorry, I can't remember how to do hyperlinks in comments.


Yes, both Democrats and Republicans were disappointed that they supported a war that turned out to be based on false pretenses. Sorry, I don't like snide partisan comments! And after all, wasn't it that terrible conservative Justice who really made the error anyway? So we can feel good about condemning it as monumental, except that it slightly diminished the glory of Obama's entry into the Presidency, so we must be ambivalent. :)

Kylopod said...

What snide partisan comments? I thought it was perfectly neutral and nonpartisan to mention the failure to find WMDs, just as it is neutral and nonpartisan to point out that Bill Clinton lied under oath during the Paula Jones deposition, though there are people out there who will dispute either of those conclusions. I was just fishing in my memory for a well-known recent example of a presidential screw-up, and that was the most obvious example that came to mind. I guess that's the pitfall of trying to examine a political event in a nonpartisan way. There will always be people inclined to read nefarious motives into the most innocent remarks.

ecrunner said...

I feel like this whole thing is being blown out of proportion. Yesterday was a historical day, no matter which way anyone voted, and to focus on something like this- in the way that people are (is he president or not??) seems too far-fetched. I was watching the inaugural events through a wireless internet connection, so I didn't see it all, but I feel the events are more out of tradition than legally. While they all signify great things, they shouldn't take away from what actually happened.

Z said...

How about the Executive Orders he signed before being sworn in again? Shouldn't they also be redone m'safek?

Rabbi Joshua Maroof said...


Sorry for jumping the gun, but the apparent randomness of your reference led me to conclude it came from a partisan standpoint.


Of course, the big picture is always the priority. But what makes the USA a great country is the fact that we are a nation governed by laws, not men. Among other things, this means uncompromising fidelity to the Constitution is a necessity to ensure the continued stability and success of our nation. So while it seems like obsession with a relatively trivial detail it is in fact - like debates in the realm of halakha - important precisely because rigorous application of the law to every particular case is the only way to defend and perpetuate the system as a whole.


I believe he wisely refrained from signing any orders until he was sworn in for the second time.

B.BarNavi said...

Isn't the discussion moot as the elected President assumes office as soon as the clock hits 12 noon?