{"id":2842,"date":"2019-11-20T10:35:58","date_gmt":"2019-11-20T15:35:58","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=2842"},"modified":"2020-09-24T00:13:01","modified_gmt":"2020-09-24T04:13:01","slug":"rights-of-passage","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2019\/11\/20\/rights-of-passage\/","title":{"rendered":"Rights of Passage"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the First. Chapter the Second. \u00a0Of the Parliament<\/em><\/strong><\/a><\/p>\n

BlackStoneWeekly was in the midst of analyzing\u00a0this chapter\u00a0<\/a>when, watching Barack Obama\u2019s inauguration, my attention was drawn to a theme that runs through all four volumes of the Commentaries \u2014 the role of ritual in legal power. \u00a0The ritual formality of the legal system Blackstone describes is surely \u00a0part of its lasting fascination. \u00a0To this day, legal process uses that formality \u2014 both formal logic and formal procedures \u2014 to transform social circumstances and redress wrongs. \u00a0(I have written about this at greater length, \u00a0here<\/a>\u00a0\u00a0and\u00a0here.)<\/a><\/p>\n

In law, we enact formal performances \u2014 the most complex of which are trials \u2014 in which some messy real world conflict is transformed into the violation of a legal rule or right that can be vindicated. \u00a0As Chief Justice John Marshall put it \u2014 quoting Blackstone<\/em>\u00a0\u2014 \u00a0\u201cwhere there is a legal right there is also a legal remedy.\u201d \u00a0Marbury v. Madison, 5 U.S. 137, 163 (1803). \u00a0 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 \u2014 and it remains central to legal process today.<\/p>\n

Of course, the claim that legal formulas can retrospectively reverse \u00a0the world\u2019s ills is exactly what many progressive legal theorists think is wrong with the Blackstonian concept of law. \u00a0Following Blackstone, conservative legal analysts maintain that law\u2019s formal logic and procedures dictate objectively correct legal results. \u00a0Critics of that view, sometimes called legal \u201crealists,\u201d\u00a0see law\u2019s formal aspects as either beside the point or \u00a0an attempt to hide politically motivated substance behind an illusion of formal rectitude.<\/p>\n

This formalist-realist debate was mirrored in the television commentary, when Chief Justice Roberts flubbed the presidential oath at the inauguration. \u00a0MSNBC\u2019s liberal talking heads immediately declared that the mistake was meaningless. \u00a0 It would be ridiculous if the failure to utter some particular words in the right order could stop the presidential succession, they all cried. \u00a0Besides, the constitution says Obama became president at noon! It\u2019s after noon, so he is already president. Anyway,\u00a0the oath is just a \u201cformality.\u201d \u00a0Meanwhile, on FOX News, at least one conservative \u00a0host was saying that the\u00a0mixed up oath might mean Obama wasn\u2019t really president.<\/a><\/p>\n

Ironically, the MSNBC commentators\u2019 certainty that because it was afternoon the oath didn\u2019t matter was based on a rather formalistic reading of the Constitution, and an unpersuasive one at that. \u00a0Article II of the original United States\u00a0Constitution<\/a>\u00a0\u2014 which lays out both what the president does and how someone gets to be president \u2014 provides: \u201cBefore he enter on the Execution of his Office, he shall take the following Oath or Affirmation\u201d and then spells out the words Roberts garbled. \u00a0 An amendment (the 20th) passed in 1933, provides \u201cThe terms of the President and Vice President shall end at noon on the 20th day of January.\u201d \u00a0But notice that the amendment talks about when a president\u2019s 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? \u00a0Why not rather conclude that both are necessary \u2014 to become president, I have to take the oath after noon.<\/p>\n

Do I agree with FOX News, then \u2014 and more generally with the formalist conservative approach to legal words \u2014 no oath equals no president? \u00a0No way. \u00a0I 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\u2019s the president. \u00a0Whether 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\u2019s pretty clear\u00a0the country doesn\u2019t get left without a president just because of some reversed word order \u2014 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.<\/p>\n

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\u00a0the two men did the oath again<\/a>\u00a0\u2014 slowly, and word for word correct.<\/p>\n

If getting the oath right doesn\u2019t change Obama\u2019s claim on the presidency, why do it over? \u00a0Maybe because by doing it over he\u00a0could<\/em>\u00a0get it right. \u00a0Most 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\u2019s done \u2014 perfectly complete and completely perfect, for all time. \u00a0In life there are no do-overs. There is only the dogged, uncertain work of mending and moving on.<\/p>\n

In ritual, though, wrongs are reversible. \u00a0One of the hallmarks of ritual action, in fact, is this capacity for undoing what we\u2019ve done wrong or badly. \u00a0Not 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.<\/p>\n

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 \u2014 and strengthen the possibility \u2014 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, \u201cwhat has passed is restated, so that what ought to have been triumphs over what was, permanent good intention prevails over temporary aberration.\u201d\u00a0\u00a0<\/a>Purity and Danger<\/a><\/em>\u00a068 (Routledge, 1996)<\/a>\u00a0[1966].<\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the First. Chapter the Second. \u00a0Of the Parliament BlackStoneWeekly was in the midst of analyzing\u00a0this chapter\u00a0when, watching Barack Obama\u2019s inauguration, my attention was drawn to...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-2842","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-JQ","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2842","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=2842"}],"version-history":[{"count":3,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2842\/revisions"}],"predecessor-version":[{"id":3011,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2842\/revisions\/3011"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=2842"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=2842"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=2842"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}