Honor's Constitutional Moment: The Oath and Presidential Transitions

Paul Horwitz[*]

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Introduction

Ever since Bruce Ackerman introduced us to the phrase, constitutional lawyers have come to think of “constitutional moments” as momentous and irregular.[1]   They are assumed to be extraordinary occasions on which the nation rethinks its constitutional commitments and, in effect, rewrites them outside the formal constitutional amendment process.  In two centuries of constitutional history, Ackerman identifies only three such constitutional moments, including the Founding itself.[2]   The rest of the time, constitutional government exists in the realm of ordinary politics.[3]

I want to suggest another approach.  Constitutional moments are momentous, but they are not irregular.  To the contrary, they are routine.  In particular, the changeover of executive power that we are undergoing right now bears witness to a simple proposition: every presidential transition is a constitutional moment.

American politics routinely treats the peaceful transition of executive power as evidence of the Republic’s continuity and stability.  But each presidential transition is also a moment in which at least one branch of the federal government must consider anew what the Constitution means and what it demands, and ratify or rescind the constitutional readings that have come before.  Every such succession embodies the tension inherent in constitutional moments—the tension between consistency and change.

This Essay argues that the constitutional moment represented by the presidential transition is instantiated in a single act: the taking of the presidential oath.  That oath is both an official action and a deeply personal one, and the combination is significant.  It suggests the intimate connection between the official duties assigned to the President by Article II of the Constitution and the personal honor of the President.  By committing himself to preserve the Constitution and fulfill his Article II duties, the President ties his own honor to a particular understanding of the Constitution.[4]   That understanding is indefeasible: he cannot simply defer to the understanding of the courts, of Congress, of prior presidents, or even of the people.  In taking the Constitution’s measure, the President is ultimately on his own.

We have come to think of honor as a largely obsolete virtue.[5]   But it has not yet vanished, and its importance crests in the moment of the taking of the presidential oath, as virtually every individual to take the oath has recognized.  As Barack Obama prepares to take his own oath as the 44th President of the United States, it is worth considering what that oath means and what implications it has for his presidency.