The Presidential Oath of Office Clause

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“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.”

—Judge Gregory G. Katsas & Seanhenry VanDyke

Introduction

The Constitution of the United States claims to be “the supreme Law of the Land,”¹ but no document is authoritative just because it says so. Why, therefore, should the President submit to the constraints and demands of the Constitution of 1788 instead of, say, some newer charter of government that might be more to his liking? The President’s political and institutional constraints surely provide part of the answer, but the Framers also sought to bind the President’s conscience by creating a moral duty to the Constitution. As Justice Joseph Story explained, “If a judge, or a juryman, or a witness, ought to take a solemn oath or affirmation, to bind his conscience, surely a President, holding in his hands the destiny of the nation, ought to do so.”²

The Constitution thus provides that the President must commit himself to the Constitution by oath before assuming office. While the Article VI Oath or Affirmation Clause allows Congress to craft an oath for other state and federal officials, the Article II Presidential Oath Clause dictates the precise text of the President’s oath: “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.”³ Presidents have invoked the presidential oath as a source of executive authority, but some judges have suggested that the oath actually serves as a constraint on executive power.

History Before 1787

Oaths have a prominent place in the Anglo-American legal and political tradition. Thomas Hobbes thought that mutual oaths represented an important stepping stone on the road from the state of nature to civil society.⁴ Oaths played a vital role in facilitating the transition from trial by combat to trial by jury. Oaths presuppose a trust that jurors and witnesses will tell the truth.⁵ The Coronation Oath Act of 1688 required the monarchs to swear an oath to govern “according to the Statutes in Parliament Agreed on and the Laws and Customs of the same.”⁶ King William III and Queen Mary II both swore this oath when crowned.

The Founding generation was intimately familiar with political oaths as a popular tool for inspiring obedience and justifying punishment for disloyalty.⁷ For example, before 1776, George Washington (as a surveyor and militia officer) and Benjamin Franklin (as a postal official) both swore oaths of loyalty to King George III.⁸

Following Independence, state constitutions imposed oaths on their officials. The oath in the Pennsylvania constitution of 1776 required officeholders to “faithfully execute the office . . . and . . . do equal right and justice to all men, to the best of [their] judgment and abilities, according to law.”⁹ The Massachusetts constitution of 1780 provided a similar oath of office: “I, A. B., do solemnly swear and affirm that I will faithfully and impartially discharge and perform all the duties incumbent on me as __, according to the best of my abilities and understanding . . . So help me, God.”¹⁰

The Articles of Confederation prescribed only one oath: A judge who decided disputes between states was required to swear “well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, affection, or hope of reward.”¹¹ The Articles did not require delegates to the national legislature to take an oath to the Confederation.

The Constitutional Convention

From the outset of the Convention, the Virginia Plan provided that state officials would take an oath to support the national Constitution.¹² On July 23, “the Officers of the National Government” were also required to take an oath to “support . . . the Natl. Govt.”¹³ Around that same time, a separate oath was being developed for the chief executive. A draft from the Committee of Detail in the handwriting of Edmund Randolph of Virginia provided that “the Governor of the united People & States of America” should be made to “swear fidelity to the union (as the legislature shall direct) by taking an oath of office.”¹⁴ But rather than leave the content of the oath up to Congress, the Framers decided to draft it themselves.

On August 6, 1787, John Rutledge of South Carolina announced the Committee of Detail’s report.¹⁵ The President’s oath now read: “Before he shall enter on the Duties of his Department, he shall take the following Oath or Affirmation, ‘I solemnly swear, (or affirm) that I will faithfully execute the Office of President of the United States of America.’”¹⁶ The same report also required “Members of the Legislatures, and the executive and judicial Officers of the United States, and of the several States” to take an oath to “support” the Constitution.¹⁷

On August 27, James Madison and George Mason, both of Virginia, “moved to add to the oath to be taken by the supreme Executive ‘and will to the best of my judgment and power preserve protect and defend the Constitution of the United States.”¹⁸ James Wilson of Pennsylvania argued that this amendment to the President’s oath was “unnecessary” because the “general provision for oaths of office” already applied to the President.¹⁹ The Convention was apparently unmoved by Wilson’s concern, as the Madison/Mason proposal passed by a vote of 7 to 1 with two states absent.

That text was referred to the Committee of Style, which changed “duties of his department” to “execution of his office.”²⁰ The text of the oath remained the same.²¹ The clause now provided: “Before he enter on the execution of his office, he shall take the following oath or affirmation: ‘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 judgment and power, preserve, protect and defend the constitution of the United States.’”²²

The Ratification Debates

During the ratification process, there were many debates about the Article VI Oath or Affirmation Clause, but there was little discussion of the precise wording of the President’s oath. In Federalist No. 18, Madison shed some light on why he proposed to add “preserve, protect, and defend” to the oath. Madison discussed the Greek Amphictyonic council, the “most considerable” of the “confederacies of antiquity.” Ancient Greek states “took an oath mutually to defend and protect the united cities” of the confederacy and would “punish the violators of this oath.” Yet, Madison observed, despite being “bound by oath to exert this authority on the necessary occasions,” the Amphictyonic council failed. Madison blamed its failure on the lack of a strong executive and a “stricter confederation.” He remedied this problem by placing the duty to preserve, protect, and defend the Constitution in a singular executive accountable to the whole nation rather than only in each member state as the Amphictyonic council had done in vain.

President Washington’s Constitutional Oath

The U.S. House and Senate were supposed to assemble on March 4, 1789, but on that date, both lacked a quorum.²³ On April 6, when both houses had quorums, the joint session of Congress elected George Washington as the first President.²⁴ On April 30, 1789, President George Washington took the oath of office pursuant to the Article II Presidential Oath Clause.²⁵ In Elk Grove Unified School District v. Newdow (2004), Chief Justice William Rehnquist quoted from a leading account of Washington’s inauguration:

[Washington] stepped toward the iron rail, where he was to receive the oath of office. The diminutive secretary of the Senate, Samuel Otis, squeezed between the President and Chancellor [Robert] Livingston and raised up the crimson cushion with a Bible on it. Washington put his right hand on the Bible, opened to Psalm 121:1: “I raise my eyes toward the hills. Whence shall my help come.” The Chancellor proceeded with the oath: “Do you solemnly swear that you will faithfully execute the office of President of the United States and will to the best of your ability preserve, protect and defend the Constitution of the United States?” The President responded, “I solemnly swear,” and repeated the oath, adding, “So help me God.” He then bent forward and kissed the Bible before him.⁰

The Article II oath does not include the phrase “So help me God,” although that phrase appeared in the Massachusetts constitution of 1780 and other early constitutions.²⁶ Some modern scholars assert that there is “absolutely no extant contemporary evidence that President Washington altered the language of the oath,”²⁷ and scholars at Mount Vernon have concluded that Washington’s adding “So help me God” to the oath is a “myth.”²⁸ Yet, to this day, Presidents conclude their constitutional oaths with “So help me God.”

The Presidential Oath as a Source of Executive Authority

Most American Presidents have ascribed personal significance to the oath in their inaugural addresses.²⁹ Many have also invoked the oath as an independent source of executive authority, using it to justify wielding extraordinary powers in cases of national crisis or independently interpreting the Constitution’s requirements. Andrew Jackson repeatedly invoked his sworn duty to defend and preserve the Constitution in resisting South Carolina’s efforts to nullify federal laws: “The laws of the United States must be executed. I have no discretionary power on the subject—my duty is emphatically pronounced in the Constitution.”³⁰ Jackson also cited his oath to justify his opposition to the National Bank: “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.”³¹

Abraham Lincoln famously relied on his presidential oath as a justification for taking extraordinary measures to preserve the Union and to fight a civil war. Lincoln explained that “my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law.”³² Lincoln “felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”³³

The Presidential Oath as a Constraint on Executive Authority

Some judges have suggested that the presidential oath actually serves as a constraint on executive power. The Supreme Court’s most in-depth discussion of the presidential oath appears in Cunningham v. Neagle (1890).³⁴ In that case, a U.S. marshal killed a man who was about to attack Justice Stephen J. Field. The Court held that the marshal acted under color of federal law, notwithstanding the absence of a statute authorizing marshals to serve as bodyguards.³⁵

Justice Lucius Q.C. Lamar dissented, opining that the presidential oath commits the President to upholding the Constitution’s separation of powers. However, only Congress can exercise any implied powers, such as providing bodyguards for endangered Justices.³⁶ Justice Lamar explained that the “oath has great significance” and that the President is “sworn to preserve” Congress’s powers under the Necessary and Proper Clause. He turned the views of Jackson and Lincoln on their heads and read the presidential oath as constraining rather than empowering the President.

Scholarship on the Presidential Oath

Professor Michael Stokes Paulsen has forcefully defended the notion that the Presidential Oath Clause supports a “co-equal independent interpretive power” and a wide zone of discretion for the President.³⁷ By contrast, Professor Edward S. Corwin has criticized the notion “that the President’s oath adds indeterminate cubits to his constitutional stature,” instead treating the oath as a source of constraint on the President’s prerogatives.³⁸ For Corwin, reading the Presidential Oath Clause in conjunction with the Take Care Clause and the President’s veto power, “once a statute has been duly executed, whether over [the President’s] protest or with his approval, he must promote its enforcement by all the powers constitutionally at his disposal,” but the President’s oath gives him no additional “power of self-defense.”³⁹

Professor Richard Re has focused on the temporal significance of the presidential oath, arguing that “the critical moment of constitutional obligation is the moment of taking the oath and thereby promising to adhere to a certain role defined by certain powers and duties.”⁴⁰ For Re, it follows that Presidents “have a promissory obligation to adhere to the public meaning of ‘the Constitution’ that existed at the time they took their oaths.”⁴¹

Professor Matthew Pauley concluded that “the President’s oath can be compared to a keystone that links together the great arch of our constitutional government.”⁴² In our secular age, ascribing such a grand role to a moralistic and ceremonial constitutional provision may feel idealistic, even quaint. At the very least, however, the presidential oath has inspired a sense of sobriety and duty in countless Presidents and has provided a fertile source of scholarly reflection on the nature and limits of presidential power.

Open Questions

• Does the presidential oath of office merely bind the individual officeholder in conscience, or does it have determinable legal content?
• If the presidential oath has determinable legal content, does it confer power on the President or constrain him?
• Is there a difference between the President’s oath to “preserve, protect and defend the Constitution” and the Article VI oath to “support the Constitution”?

1. Art. VI, cl. 2. ↩︎
2. Joseph Story, A Familiar Exposition of the Constitution of the United States 170 (1847). ↩︎
3. Art. II, § 1, cl. 8. ↩︎
4. Thomas Hobbes, Leviathan 118–19 (Bobbs-Merrill 1958). ↩︎
5. Sir Frederick Pollock & Frederic William Maitland, 2 The History of English Law Before the Time of Edward I 616–32, 641–59 (1898). ↩︎
6. Coronation Oath Act 1688, 1 W. & M. c. 6 (Eng.). ↩︎
7. Harold M. Hyman, To Try Men’s Souls: Loyalty Tests in American History 1–60 (1959). ↩︎
8. Id. at 60. ↩︎
9. Pa. Const. of 1776, § 40. ↩︎
10. Mass. Const. of 1780, ch. VI. ↩︎
11. Articles of Confederation, art IX, para. 2. ↩︎
12. 1 Farrand’s 22, 28. ↩︎
13. 2 Farrand’s 87. ↩︎
14. Id. at 146. ↩︎
15. Id. at 177. ↩︎
16. Id. at 172. ↩︎
17. Id. at 185. ↩︎
18. Id. at 427. ↩︎
19. Id. at 185, 427. ↩︎
20. Id. at 565, 575, 590. ↩︎
21. Id. at 599. ↩︎
22. Id. ↩︎
23. S. Journal, 1st Cong., 1st Sess. 5 (Mar. 4, 1789); H.R. Journal, 1st Cong., 1st Sess. (Mar. 4, 1789). ↩︎
24. S. Journal, 1st Cong., 1st Sess. 7–8 (Apr. 6, 1789). ↩︎
25. S. Journal, 1st Cong., 1st Sess. 18 (Apr. 30, 1789). ↩︎
26. Mass. Const. 1780, ch. VI, art. I; S.C. Const. of 1778, art. XXXVI; Ga. Const of 1777, art. XXIV. ↩︎
27. Peter R. Henriques, “So Help Me God”: A George Washington Myth that Should Be Discarded, History News Network (Jan. 11, 2009), https://perma.cc/EEL7-62NW. ↩︎
28. Kevin Butterfield, Second Inaugural Address, George Washington’s Mt. Vernon, https://perma.cc/47RW-QL89. ↩︎
29. Robert M. Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 UMKC L. Rev. 1, 7–35 (2004). ↩︎
30. Andrew Jackson, Proclamation Regarding Nullification (Dec. 10, 1832), https://perma.cc/3H4Y-GBG6. ↩︎
31. Andrew Jackson, Veto Message Regarding the Bank of the United States (July 10, 1832), https://perma.cc/7REY-EKP4. ↩︎
32. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), https://perma.cc/EBC8-A35L. ↩︎
33. Id. ↩︎
34. 135 U.S. 1 (1890). ↩︎
35. Id. at 58–59. ↩︎
36. Id. at 82–83 (Lamar, J., dissenting). ↩︎
37. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 257–62 (1994). ↩︎
38. Edward S. Corwin, The President: Office and Powers 1787–1948: History and Analysis of Fact and Opinion 62–66 (1957). ↩︎
39. Id. at 66. ↩︎
40. Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. 299, 304 (2016). ↩︎
41. Id. ↩︎
42. Matthew A. Pauley, I Do Solemnly Swear: The President’s Constitutional Oath: Its Meaning and Importance in the History of Oaths 232 (1999). ↩︎