Rectifying the oath flub

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When Chief Justice John Roberts and Barack Obama made a hash of the presidential oath of office on Tuesday, most early commentators — including me — assumed it didn't really matter what they said, since Obama had officially become president at noon (shortly before they actually got to the oath). But some legal scholars pointed out that the oath is still required under the Constitution and argued that a "do-over" should be performed, just to be safe. Today, the do-over proponents won out, and at 7:35 pm EST, Roberts again swore in Obama in the Map Room of the White House. From the Wall Street Journal's Washington Wire:

“We decided it was so much fun,” Obama joked before again stating the words written in the Constitution. “Are you ready to take the oath?” Roberts asked. “I am, and we’re going to do it very slowly,” Obama quipped.
The oath took 25 seconds, and the recitation was flawless this time. “Congratulations, again,” Roberts said. “Thank you, sir,” Obama replied.
“The bad news for the [press] pool is there’s 12 more [inaugural] balls,” Obama joked.

This will be of no comfort to conspiracy theorists on the right (who said Obama was not president because the oath was invalid) or on the left (who said Roberts intentionally sabotaged the oath because Obama had not voted for his Supreme Court confirmation). It may also put a crimp in the activity of Youtube satirists, who have been having a field day with the flub.

The do-over is, however, a boon to speech-act theorists, who will have an object lesson in the performativity of oath-swearing to dissect for years to come.

Meanwhile, on the New York Times op/ed page, Steven Pinker makes a compelling case that John Roberts moved the word faithfully out of the phrase "will faithfully execute" because his "inner copy editor" was trying to enforce the old "split verbs" prohibition. This idea was floated in our comments section by Coby Lubliner, and Mark Liberman agreed with Coby's "astute observation." Mark, who has written about the "split verbs" rule here and here, figures this grammatical injunction was beaten into Roberts during his legal training, since it's apparently a favorite of law review editors. (I've got more to say on this point in my latest Word Routes column on the Visual Thesaurus.)

[Update: You can compare the audio for the two oaths on CNN here.]

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29 Comments »

  1. Andrew said,

    January 21, 2009 @ 11:48 pm

    I'm really confused by this obsession some people have with saying the 'magic' words just right in order for him to become president. Especially when, syntactically, the sentence meaning is identical with one AdvP swung to the other side of the VP. Oh Noes!

  2. Nathan Myers said,

    January 22, 2009 @ 2:25 am

    I'm interested in this word "proponent", which seems to have come to mean the same as "advocate", I suppose via pressure from its (now) antonym "opponent". Does it have a better story than I imagine?

  3. Mark Liberman said,

    January 22, 2009 @ 5:34 am

    Nathan Myers: …"proponent" … seems to have come to mean the same as "advocate", I suppose via pressure from its (now) antonym "opponent".

    According to the OED, proponent in the sense

    "1. A person who puts forward or advocates a theory, proposal, or course of action; a propounder, a proposer. In later use also more generally: a person who is in favour of a proposal, a supporter."

    dates to 1588, while advocate in the sense

    "3. One who defends, maintains, publicly recommends, or raises his voice in behalf of a proposal or tenet."

    dates to 1735. (Earlier, advocate was used in the sense "1. One whose profession it is to plead the cause of any one in a court of justice; a counsellor or counsel.")

    Even if proponent were a more recent innovation, do you mean to suggest that it would be a Bad Thing?

  4. Nathan Myers said,

    January 22, 2009 @ 6:26 am

    Mark: Thank you. In my idiolect, a proponent is just the central character in a story, not necessarily promoting anything in particular. I had thought it remained standard, albeit fated to become archaic. It's only Bad if we don't have a word to mean that. I suppose "protagonist" suffices.

    [(myl) With respect, I think you'll find that "proponent" used to mean "the central character of a story" is a malapropism for "protagonist". At least, I can't find it in any dictionary.]

    An example of a change I would consider a Bad Thing is the loss of the distinction between e.g. "slow down" (verb phrase) and "slowdown" (noun); likewise for "pickup", "letdown", "backup", "cleanup", "shutdown", etc. That loss seems well along. We'll survive.

  5. Nathan Myers said,

    January 22, 2009 @ 6:34 am

    Getting back on topic, I'm wondering about this "split verbs" rule. Has it ever actually been codified in print, or is it only deduced as a doubly silly corollary of the "split infinitives" zombie rule? It can't be a zombie rule itself if it never had any corporeal existence, howsoever spurious. Somehow it makes me think of Victorians covering up table legs for decency's sake.

    [(myl) Please see the references cited in the earlier posts cited in the body of the article, for example this one.]

  6. Jon Weinberg said,

    January 22, 2009 @ 8:48 am

    This story isn't necessarily about the performativity of oath-swearing, though. The better reading of the Constitutional text, I think, is that the oath is wholly non-performative; Obama did indeed become President at noon without regard to the oath. But he was still correct to retake the oath, for an entirely different reason: because it's his responsibility to do the things the Constitution directs him to do. The Constitution directs him to swear to an oath with specified, exact wording; failure to take that oath is failure to follow the Constitution, just as a refusal to send State of the Union messages would be. And it's really cheap to fix.

  7. Neal Goldfarb said,

    January 22, 2009 @ 8:53 am

    I'm not yet ready to buy the Pinker/Lubliner/Liberman explanation.

    To begin with, the explanation assumes that Roberts follows the split-verb prohibition, and so far nobody has offered any evidence to support that assumption. The fact that he's a grammatical stickler doesn't necessarily mean that this is one of his stickles. (And as a former editor of the Harvard Law Review, he surely wouldn't deign to follow the Texas Manual of Style.) It wouldn't be difficult to go through Roberts's opinions to see whether he splits his verbs. Hell, he may even split his infinitives.

    And even if Roberts doesn't split his verbs when he writes, why would you expect his "inner copy editor" to emerge when he's speaking? Arnold Zwicky and Geoff Pullum have written about how prescriptivists often violate their own prescriptions. (And see also Williams's Phenomenology of Error article.) And if prescriptivists do that in their writings, there's even more reason to expect them to do it when they speak.

  8. Chris said,

    January 22, 2009 @ 9:11 am

    Why is the lack of written distinction between "slow down" and "slowdown" any more problematic than the lack of distinction between "stop" and "stop"? Does anyone actually have any trouble determining from context whether a verb or noun was intended?

  9. Neal Goldfarb said,

    January 22, 2009 @ 9:23 am

    @Me: "The fact that he's a grammatical stickler doesn't necessarily mean that this is one of his stickles."

    After posting my comment, it occurred to me to check whether stickle has actually been used as a verb. I discovered that it has, and came across this definition from the Merriam-Webster Online Dictionary:

    to contend especially stubbornly and usually on insufficient grounds

    This creates a real dilemma for prescriptivists who call themselves sticklers. They obviously wouldn't want to admit that they lack sufficient grounds for their stickling points. But that means they either have to either (a) confess to using the word wrong or (b) go all descriptivist and explain why their meaning is acceptable in the face of what it says in The Dictionary.

  10. Mark Liberman said,

    January 22, 2009 @ 9:27 am

    Neal Goldfarb: …as a former editor of the Harvard Law Review, he surely wouldn't deign to follow the Texas Manual of Style.

    This point seems logical — if snobbish — but may be false.

    As discussed in "Grammatical indoctrination at law reviews", 10/8/2005, many law reviews all over the country used to rely on the Texas Law Review Manual of Usage and Style (MoUS), and perhaps still do. And see Jim Lindgren's post at the Volokh Conspiracy, "Miss Thistlebottom Strikes Again: Fear of the Bogus Rule Against “Split Verbs” Mars Oath of Office", which quotes his 1990 review of the 6th edition of the MoUS:

    This nonsensical rule against split verbs has caused entire volumes of law reviews to be filled with page after page in which adverbs have been squeezed out of their normal place. Most law professors who have dealt with law reviews recently seem either to have had disputes about the placement of adverbs or, worse, to have adopted the Texas approach, the approach of people who write as if English were a second language. It's frightening to think that the ability of a generation of law professors to recognize their native language has been damaged by one silly book.

    (Note that the "split verbs" rule was removed from the MoUS between the fifth and sixth editions, but still remains in wide effect as a Zombie Rule.) I don't know what the policies and practices were at the Harvard Law Review in Justice Roberts' time, or whether his own writings show the effect of this Zombie Rule; but the theory that Miss Thistlebottom is to blame remains a plausible one.

  11. Arnold Zwicky said,

    January 22, 2009 @ 9:54 am

    Nathan Myers: "It can't be a zombie rule itself if it never had any corporeal existence, howsoever spurious."

    This is a terminological issue. I've tended to use zombie as a general term for all "rules" that currently have no validity as an account of the standard language but are nevertheless espoused by some people and so continue to lurch on — regardless of the origin of these "rules". That usage extends the sense of zombie, but then technical terminology that is metaphorical doesn't have to preserve all the features of the basis for the metaphor (being a metaphor, of course it can't). Still, Geoff Pullum has made a distinction between zombies (which once were alive, that is to say valid) and bogeymen (made-up creatures); there's a fairly extensive discussion here.

  12. Chad Nilep said,

    January 22, 2009 @ 10:41 am

    Jon Weinberg: "This story isn't necessarily about the performativity of oath-swearing, though."

    The fact that the twentieth amendment to the US Constitution specifies that Mr Obama became president at a particular time does not necessarily disqualify the oath of office as a performative.

    Compare, for example, the Lutheran sacraments. While Lutheran doctrine states that humans are saved by grace alone, through faith alone, the church nonetheless prescribes sacraments, which include performative speech acts. (IANAL, YMMV)

    One might argue that the twentieth amendment to the US Constitution is a felicity condition on the performative oath. (Of course, one could also make contrary arguments.)

  13. Jon Weinberg said,

    January 22, 2009 @ 12:20 pm

    Chap Nilep causes me to realize that I may have been getting the word "performative" wrong (I'm trained in law, not linguistics). Obama's oath was performative, I guess, in the sense that every sentence beginning with the words "I do solemnly swear that . . . " is performative; he was performing the oath. The idea I was trying to convey was that his performing the oath had no formal real-world consequences (and I stress the word "formal"). I had thought that Ben was getting at that distinction in his reference to the "performativity of oath-taking." Can someone help me with terminology?

    On another matter: John Roberts almost certainly did not encounter the Texas Law Review Manual of Usage and Style while in law school at Harvard, because he attended law school in the late 1970s, and as near as I can tell the Texas style guide was not widely adopted in law schools until a decade later. Jim Lindgren refers in his book review to the fact that the editors never mentioned the MoUS to him when he published in the Harvard Law Review in 1980.

  14. Jon Weinberg said,

    January 22, 2009 @ 1:08 pm

    My apologies — that's, of course, Chad Nilep. Sorry, Chad.

  15. psistrom said,

    January 22, 2009 @ 1:43 pm

    Though I agree with the Pinker analysis, I note that the Chief Justice made one other mistake: rather than saying "President of the United States," he said the first time "President to the United States." Perhaps he really was just nervous, or perhaps it was his nervousness that allowed his inner copy editor to intrude itself onto what he knew was the constitutionally mandated oath.

  16. Dan T. said,

    January 22, 2009 @ 2:03 pm

    The Constitution states that the President-elect becomes President at a particular time, but another part of it states that he must swear (or affirm) the oath/affirmation before "executing" this job. The apparent result is that if he hasn't been sworn in at the given time, he's the President but can't actually use any of his Presidential powers yet. This in turn might create a justification for the Vice President to step in as acting President due to the President being unable to perform his duties.

    Incidentally, the 20th Amendment says that the term begins at noon, but doesn't specifically note what time zone this is reckoned under. Could the outgoing President extend his term a few hours by flying to Alaska or Hawaii?

  17. Jon Weinberg said,

    January 22, 2009 @ 2:27 pm

    Dan T.,

    The Constitution states that the President, "[b]efore he enter on the Execution of his Office, . . . shall take" the oath. That's clearly a direction to the President that he should take the oath before entering on the execution of his office; if he doesn't take the oath, he's violating that provision. But that's not the same thing as saying that he has no Presidential powers until he takes it. Let's say that my university has a rule that all professors must file financial disclosure forms before beginning each semester. If I don't file my forms, I'm violating that rule. But that doesn't mean that I'm not really teaching, or that they're excused from their obligation to pay me, or that I have no power to give my students grades.

  18. dr pepper said,

    January 22, 2009 @ 3:04 pm

    Note that "…so help me God" is not in the oath.

  19. Neal Goldfarb said,

    January 22, 2009 @ 3:42 pm

    I've now had a chance to look through two of Roberts's opinions from last year, and what I found (hat tip to <CTRL-F>) was that in those opinions at least, Roberts does not avoid split verbs. In fact, there were several instances when he put the adverb between the auxiliary and the main verb when it would (IMO) have been more effectively placed after the main verb.

    Here are the relevant excerpts from Baze v. Rees, the decision dealing with the protocol for lethal injections:

    Petitioners in this case-each convicted of double homicide-acknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendment's ban on “cruel and unusual punishments,” because of the risk that the protocol's terms might not be properly followed, resulting in significant pain.

    In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing.

    Instead, petitioners claim that there is a significant risk that the procedures will not be properly followed—in particular, that the sodium thiopental will not be properly administered to achieve its intended effect—resulting in severe pain when the other chemicals are administered.

    Much of petitioners' case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered.

    Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures—a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death.

    The study was widely cited around the country in motions to stay executions and briefs on the merits.

    As for the risk that the sodium thiopental would be improperly prepared, petitioners contend that Kentucky employs untrained personnel who are unqualified to calculate and mix an adequate dose, especially in light of the omission of volume and concentration amounts from the written protocol.

    These redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected.

    State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to “objectively intolerable risk,” not simply the possibility of pain. [citation omitted]

    Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment.

    And here are excerpts from Munaf v. Green, which dealt with whether the U.S. courts have the power to enjoin the transfer of someone from the custody of the "Multinational Force" in Iraq to the custody of the Iraqi courts:

    The Government of Iraq retains ultimate responsibility for the arrest and imprisonment of individuals who violate its laws, but because many of Iraq's prison facilities have been destroyed, the MNF-I agreed to maintain physical custody of many such individuals during Iraqi criminal proceedings. MNF-I forces are currently holding approximately 24,000 detainees.

    Judge Randolph . . . concluded that the District Court had improperly dismissed for want of jurisdiction because “Munaf is an American citizen . . . held by American forces overseas.”

    As noted above, Munaf's conviction was subsequently vacated by an Iraqi appellate court, and he is awaiting a new trial.

    The Government's argument—that the federal courts have no jurisdiction over American citizens held by American forces operating as multinational agents—is not easily reconciled with the text of § 2241(c)(1).

    The habeas petitioners argue that the writ should be granted in their cases because they have “a legally enforceable right” not to be transferred to Iraqi authority for criminal proceedings under both the Due Process Clause and the Foreign Affairs Reform and Restructuring Act of 1998 (FARR Act), div. G, 112 Stat. 2681-761, and because they are innocent civilians who have been unlawfully detained by the United States in violation of the Due Process Clause.

    We accordingly hold that the detainees' claims do not state grounds upon which habeas relief may be granted, that the habeas petitions should have been promptly dismissed, and that no injunction should have been entered.

    Likewise, in Neely v. Henkel, supra, this Court held that habeas corpus was not available to defeat the criminal jurisdiction of a foreign sovereign, even when application of that sovereign's law would allegedly violate the Constitution.

    Such “release” would impermissibly interfere with Iraq's “exclusive jurisdiction to punish offenses against its laws committed within its borders,” Wilson, supra, at 529, 77 S.Ct. 1409; the “release” petitioners seek is nothing less than an order commanding our forces to smuggle them out of Iraq.

    Indeed, Munaf is currently held at Camp Cropper pursuant to the express order of the Iraqi Courts.

    The injunction is not so easily narrowed.

    Unless these opinions are unrepresentative, I think Roberts's inner copy editor is off the hook.

  20. Mark said,

    January 22, 2009 @ 3:54 pm

    Anyone else taken aback by the jokes? There seems to be something very Anglo-Saxon about someone cracking really stupid jokes at a time like this. Imagine the Chinese premier doing the same.

  21. Linda the Copyeditor said,

    January 22, 2009 @ 4:00 pm

    Can we stop saying it was his "inner copyeditor" that was or was not to blame, when if anything it was evidently his "inner law professor"? No competent copyeditor would outlaw "will faithfully execute," though no doubt there are almost as many incompetent copyeditors as incompetent lawyers.

  22. Mark Liberman said,

    January 22, 2009 @ 4:05 pm

    Neal Goldfarb: Unless these opinions are unrepresentative, I think Roberts's inner copy editor is off the hook.

    Very persuasive.

    Linda the Copyeditor: Can we stop saying it was his "inner copyeditor" that was or was not to blame, when if anything it was evidently his "inner law professor"?

    A reasonable request. But given Neal Goldfarb's evidence, apparently it was just nervousness and inadequate preparation, after all.

  23. Neal Goldfarb said,

    January 22, 2009 @ 4:14 pm

    For some interesting analysis that seems relevant to the issue of performativity (not to mention pragmatics, punctuation, and prosody), check out Why Barack Obama Still Isn't President at Balkinization. Make sure to read the comments, too.

  24. Mark P said,

    January 22, 2009 @ 5:28 pm

    The odd thing is that the Chief Justice was not so intimately familiar with the wording that administering the oath was automatic. I suspect that few Constitutional lawyers do any actual copy editing of the Constitution, so that argument doesn't seem reasonable to me. I think nervousness (for what reason I can't imagine, given his position) or maybe a slightly upset stomach is a good explanation.

    The lack of a Bible for the second oath has been noted but I don't see a lot of nonsense about it yet.

  25. James Wimberley said,

    January 22, 2009 @ 5:52 pm

    If Barack Obama did not become US President because of one adverb displaced without change of meaning, I doubt if any of us are properly married or own our houses.

  26. JoseAngel said,

    January 23, 2009 @ 5:26 am

    If you ask me, the lapsus linguae has something to do with lots of things, but among them is the nasty meaning of the word "execute"— executing the office, or "I will execute …. (blank)", must have created unwelcome associations in the interactants' minds. And prevented a proper execution of the oath.

  27. Dan T. said,

    January 23, 2009 @ 8:08 am

    Oaths like that ought to be executed.

  28. Richard Steiner said,

    January 24, 2009 @ 4:13 pm

    I love Obama's sense of humor. He has a great way of making people feel at ease and lightening things up with his quips, imo.

  29. Bob Ladd said,

    January 25, 2009 @ 6:04 pm

    @ Mark, @ Richard Steiner: Richard is almost certainly right that Obama's sense of humor makes people feel at ease and lightens things up, but I think Mark is also right that there is something very Anglophone about this. A French colleague once complained to me how American visiting speakers at seminars always begin their talk with a joke. For her, it doesn't lighten things up or make her feel at ease at all, it just irritates her. This kind of use of humor is a feature of what Brown and Levinson (in their book Politeness, 1987, I think) called "positive politeness" (roughly, making the other person feel good), as opposed to "negative politeness" (roughly, not imposing on the other person), and in my experience it's quite highly valued in all native Anglophone cultures but much less so in many others.
    I'm aware that this is getting off the topic of the original post, but it is relevant to the heading "Speech Acts" – and probably ultimately to "Language and Politics" as well.

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