Rights of Passage

Jessie Allen, School of Law, University of Pittsburgh

Book the First. Chapter the Second.  Of the Parliament

BlackStoneWeekly was in the midst of analyzing this chapter when, watching Barack Obama’s inauguration, my attention was drawn to a theme that runs through all four volumes of the Commentaries — the role of ritual in legal power.  The ritual formality of the legal system Blackstone describes is surely  part of its lasting fascination.  To this day, legal process uses that formality — both formal logic and formal procedures — to transform social circumstances and redress wrongs.  (I have written about this at greater length,  here  and here.)

In law, we enact formal performances — the most complex of which are trials — in which some messy real world conflict is transformed into the violation of a legal rule or right that can be vindicated.  As Chief Justice John Marshall put it — quoting Blackstone —  “where there is a legal right there is also a legal remedy.”  Marbury v. Madison, 5 U.S. 137, 163 (1803).   This kind of mirrored, black and white, tit for tat correspondence that is absolutely absent in life is the absolute heart of retrospective ritual healing and the doctrinal approach to law that Blackstone both reflects and helped to found — and it remains central to legal process today.

Of course, the claim that legal formulas can retrospectively reverse  the world’s ills is exactly what many progressive legal theorists think is wrong with the Blackstonian concept of law.  Following Blackstone, conservative legal analysts maintain that law’s formal logic and procedures dictate objectively correct legal results.  Critics of that view, sometimes called legal “realists,” see law’s formal aspects as either beside the point or  an attempt to hide politically motivated substance behind an illusion of formal rectitude.

This formalist-realist debate was mirrored in the television commentary, when Chief Justice Roberts flubbed the presidential oath at the inauguration.  MSNBC’s liberal talking heads immediately declared that the mistake was meaningless.   It would be ridiculous if the failure to utter some particular words in the right order could stop the presidential succession, they all cried.  Besides, the constitution says Obama became president at noon! It’s after noon, so he is already president. Anyway, the oath is just a “formality.”  Meanwhile, on FOX News, at least one conservative  host was saying that the mixed up oath might mean Obama wasn’t really president.

Ironically, the MSNBC commentators’ certainty that because it was afternoon the oath didn’t matter was based on a rather formalistic reading of the Constitution, and an unpersuasive one at that.  Article II of the original United States Constitution — which lays out both what the president does and how someone gets to be president — provides: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation” and then spells out the words Roberts garbled.   An amendment (the 20th) passed in 1933, provides “The terms of the President and Vice President shall end at noon on the 20th day of January.”  But notice that the amendment talks about when a president’s term ends, while the section on the oath prescribes how it starts. But even if both were triggers for the start of a presidential term, why assume that time trumps oath taking?  Why not rather conclude that both are necessary — to become president, I have to take the oath after noon.

Do I agree with FOX News, then — and more generally with the formalist conservative approach to legal words — no oath equals no president?  No way.  I think if somebody gets nominated and elected in constitutional fashion and shows up at the appointed date and time to assume the office of the presidency, she’s the president.  Whether what matters is the pragmatic functioning of the nation, or the will of the people, or what the guys who put the oath in the constitution in the first place would have wanted under the circumstances, it’s pretty clear the country doesn’t get left without a president just because of some reversed word order — or for that matter if they forget to do the oath altogether and it turns out the clocks were wrong and it all took place at 11 a.m.

But unlike the liberal pundits, I do think getting the oath right matters. And, apparently, so did one or both of the two principals involved, because Chief Justice Roberts showed up at the White House the day after the inauguration and the two men did the oath again — slowly, and word for word correct.

If getting the oath right doesn’t change Obama’s claim on the presidency, why do it over?  Maybe because by doing it over he could get it right.  Most of the mess our new president faces will take a huge effort by a huge number of people to improve, let alone fix, and realistically there will never be a point when he can sit back and say, well, that’s done — perfectly complete and completely perfect, for all time.  In life there are no do-overs. There is only the dogged, uncertain work of mending and moving on.

In ritual, though, wrongs are reversible.  One of the hallmarks of ritual action, in fact, is this capacity for undoing what we’ve done wrong or badly.  Not only is there a right way to do a ritual, but getting a ritual right is one way we sometimes go about addressing real world wrongs.

In our legal system where the hurlyburly of real life is reconceived as discrete legal injuries that can be redressed, and in the recapitulation of a presidential oath misspoken, we perform the hope — and strengthen the possibility — that our institutions have the power to meet and transform the dangers we face and the mistakes we make as a society, so that, as that late, great theorist of ritual, Mary Douglas, explained, “what has passed is restated, so that what ought to have been triumphs over what was, permanent good intention prevails over temporary aberration.”  Purity and Danger 68 (Routledge, 1996) [1966].