To Err (when Reciting The Presidential Oath) Is Human

By Author: Shamai Leibowitz
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Was Barack Obama properly sworn in as the 44th President of the United States?

The majestic, historic and awe-inspiring inaugural ceremony was marred by a flop caused by Chief Justice John Roberts. While administering the 35-word oath of office to Barack Obama, Chief Justice Roberts changed the order of the oath's words, prompting hesitation by Obama and eventually botching the recitation of the oath.

According to Article 2, Section 1, Clause 8 of the Constitution, the oath is supposed to read:
I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.

Roberts, who made the grievous mistake of delivering the oath from memory, flubbed his lines. Instead of saying the constitutionally-mandated version, Roberts said: "that I will execute the office of President to the United States faithfully," putting "faithfully" at the end of the phrase, and substituting the word "to" for "of."

As the whole world saw on television, that appeared to throw Obama ...
... off and caused him to stop in his tracks. He looked for guidance from the Chief Justice. One could event detect a faint smile on Obama's face, as if saying to Roberts "you messed it up, now fix the mess."

But it only got worse. Recognizing something was off, Roberts then repeated the phrase, putting "faithfully" in the right place but without repeating "execute," saying incorrectly: “Faithfully the office of president of the United States.” Obama, who by now was completely thrown off track, then repeated Roberts' original, incorrect version: "...the office of president of the United States faithfully."

Luckily for the nation, both of them got back on track for the last, most important portion of the oath: "and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States."

So what to make of this blunder? Already some are hinting that there is more to this screw-up than meets the eye. When John Roberts' nomination to the Supreme Court in 2005 was up for confirmation by the Senate, then-Senator Obama voted against the nomination. Was this Chief Justice Roberts' thinly-veiled attempt at snubbing Obama for that vote? Or is this, as law professor Dale Carpenter suggests, a "portent of an unusually uneasy relationship between the new administration and the federal judiciary?"

It seems to me that those fanciful explanations are taking it a bit to the extreme. No need to search for conspiracy theories when there is a simpler and more straightforward explanation: To err is human. Yes, even the Chief Justice can err when delivering the constitutionally-mandated Presidential oath from memory. Had Roberts brought with him the Constitution, or had he prepared in advance a note upon which those timeless words were properly written, this whole fiasco could have been avoided. But we learned the hard way that even great men suffer from hubris.

This event reminded us that even great figures must tackle and deal with human frailties. If two brilliant, Harvard-educated men could not refrain from botching such a simple procedure on such a momentous occasion, then surely we mortals are excused for the trivial mistakes we make in our daily lives. Especially if they are triggered by excitement and enthusiasm, as evidently happened on this occasion.

While some constitutional scholars commented that this flop did not affect the legal validity of Obama's swearing-in, Obama heeded the advice of other constitutional scholars and decided he's not taking any chances. President Obama and Chief Justice Roberts tonight went through the drill again out of what White House counsel Greg Craig called "an abundance of caution."

The do-over of the Presidential Oath took place in the White House Map Room in front of a small group of reporters. "We decided that because it was so much fun ...," Obama joked to reporters who followed him into the room. Chief Justice Roberts put on his black robe.

"Are you ready to take the oath?" he said.

"Yes, I am," Obama said. "And we're going to do it very slowly."

This time, it was smooth sailing from beginning to end.
About Author:
Attorney Shamai Leibowitz practices in the United States as well as Israel as well as writes on legal issues and matters of civil rights. Our website offers links to web-based resources for understanding the Israeli legal system, court decisions, and statutes, links to news articles and opinions about current legal issues and advice on doing business in Israel; including export and import, contracts, mergers and acquisitions, anti-trust matters, employment issues, visas and asylum, and answers to a variety of FAQ concerning the Israeli legal system.