October 2010 Vol. 109 No. 1 THE REVIEW

Constitutional Expectations

Richard Primus

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution.The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of an otherwise trivial affair lies a deep truth about the role of text in American constitutionalism. And as the outlines of the great are sometimes visible in the small, careful attention to the "corrected" inaugural oath can reveal something important about how larger constitutional questions are resolved.

Consider the more significant issue, now before Congress, of whether to give the District of Columbia a voting seat in the House of Representatives.  Many people consider giving the District a representative flatly unconstitutional,  and their view has a reasonable basis. The Constitution says that members of the House shall be chosen "by the People of the several States,"  and the District of Columbia is not a state. But the kerfuffle over the inaugural oath suggests two lessons. The first is that the text of the Constitution need not prevent D.C. from sitting in Congress. The second, however, is that passing the District of Columbia House Voting Rights Act might have the unintended effect of delaying the enfranchisement of District residents. If the inaugural oath played as constitutional farce, passage of the Act might lead to constitutional tragedy.

To understand why, we should start by going back to the inauguration.

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