Legal Commentary

There is a widespread sense among scholars and laity that, whatever the force of ambiguous constitutional text, the plain text always governs, regardless of other considerations: Two Senators from each state, only 35-year-old Presidents, and so forth. But a new paper by Richard Primus nicely illustrates that this widespread belief understates our willingness to ignore even the plainest of constitutional texts when the departure is within the apparent purpose of the constitutional provision.

Primus gives the example of the Presidential oath, famously muffed by Chief Justice Roberts the first time around but, less famously, muffed by every President-elect since FDR (including Obama), because Presidents-elect have inserted their name into the words of the oath specified by the Constitution. ?I, Barack Hussein Obama?? actually departs from the precise words of the text of Article II, section 2, which provides no blank in which President-elects may insert their names. Of course, we do not care: We do not even notice. Why not? Because (to quote McCulloch) we instinctively deduce the "minor ingredients from the Constitution's "important objects," such that even the plainest of text defining the former gives way to the latter. Because Obama's departure from text disturbs no important object of Article II, we allow it.

Primus offers, as another less trivial example, the Tidewater problem familiar from federal jurisdiction. Following Nat?l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949),, federal courts routinely treat suits between citizens from Washington, D.C. and other states as falling within their jurisdiction, even though such a grant cannot fit the text of Article III, which provides for jurisdiction over ?Controversies ? between Citizens of different States.? By no stretch of 18th century diction is Washington, D.C. a ?State[].? The Supreme Court agonized over the basis for such a departure from text, split between denying that any such departure exists (the Rutledge position) and elaborating a convoluted theory that Congress can confer Article I jurisdiction on Article III courts in excess of Article III (the Jackson position). But both are flat contradictions of (respectively) the 18th century semantic meaning of the term ?States? and the implicitly exclusive enumeration of jurisdictional categories in Article III, section 2. Primus notes that lawyers have gradually just accepted D.C.-state ?diversity? without a murmur despite this insult to textual purity.

But maybe someone should complain? Do those strict semanticists out there ? Larry Solum, Kurt Lash, etc ? have a beef with this lackadaisical attitude towards semantics? Do they think that President Obama ought to do the oath over one more time? If not, why does not Obama?s departure from ?public semantic meaning? of Article II violate some shared sense of fidelity towards law?