Legal Issues In the News

The Presidential Oath of Office


Every four years, following a nation-wide election, the President-Elect of the United States takes his oath of office.  In 1933, the Twentieth Amendment to the United States Constitution moved the date forward from March in order to shorten the Congressional lame-duck session.  Thus, January 20th is the day that the next president will take the oath.

Oath-taking is an ancient institution, but the first oaths were given to the rulers by the ruled.  Two thousand years ago, King Herod purportedly demanded an oath of allegiance, and the penalties for refusal included execution. In more recent history, leaders have taken oaths to faithfully serve those whom they lead.  The coronation oath of the United Kingdom’s Queen Elizabeth II, given in 1952, requires her to execute her judgements with law, and justice in mercy.  The current form of her oath dates back to the 17th Century.

In the United States, we have the Presidential Oath.  It use dates back to the 1789, when George Washington became the first President.  Now, the Presidential Oath is a very particular oath, an example of what is called a “performative utterance.”  A performative utterance is different from normal types of speech: it is a phrase that not only describes reality, but also affects it in some way.  So, by taking the oath of office, the President not only agrees that he is the new President, but he also becomes the new President. Performative utterances appear in many places.  Another example are the words “You are under arrest,” said by a police officer when a suspect is apprehended.  The suspect is told that he or she is under arrest, and by saying those words, they become an arrested person.  More benevolently, the words “I do” uttered in response to the phrase “do you take this person to be your lawful wedded spouse?” both signal an agreement to marry, and facilitate matrimony.

But the Presidential Oath is a special type of performative utterance, as its words are specifically mandated by the charter document of a great nation.   Now, the Constitution generally recognizes the importance of oaths.  In Article VI, the Constitution declares that executive officers, judges, senators, and representatives are to be bound by an oath or affirmation to support the Constitution.  But Article II, Section 1, which establishes the Presidential Oath, requires far more.  This clause demands that the President swear or affirm that he “will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.”  Thus, this oath requires that the President not only support the Constitution, but that he do so to the best of his ability.  Where there may be a conflict with his own desires and ideas, the President must, first and foremost, fulfill the requirements of the Constitution.

And there are other clauses in the Constitution that impose particular demands on the President.  One noteworthy clause is part of Article 2, Section One.  It says that the President must “take care that the laws be faithfully executed.”  In 1935, in the case Humphrey’s Executor v. United States, the Supreme Court interpreted that clause to require that the nation’s laws must be faithfully executed by the President, even if he disagrees with their purpose. 

It is interesting to think that in settling the law on the faithful execution clause, the Supreme Court used the same historic utterance that it has deployed to end racially- segregated education, eliminate prior restraints on newspaper publication, clarify that Presidents do not have unqualified executive privilege, and ensure that defendants in criminal cases have legal representation.  Over and over, the Supreme Court has used the following four words to state the law and change the world:  “It is so ordered.”