21st January 2021
One of the few benefits of lockdown is that you are no longer expected to go to weddings and other ‘happy’ ceremonies.
Instead of days of tiresome travel and hours of boredom, one can watch the ceremony and speeches on a laptop for an hour or so and then go and do something more useful instead.
(For more on form vs substance regarding marriage ceremonies, see my 2011 New Statesman post.)
Much of this impatient disdain for mere ceremonial form can and should be applied to constitutional matters.
Certain symbolic events symbolise nothing other than symbolism is important only for the sake of symbolism.
Interesting perhaps for the fogeys and other enthusiasts, but often a bore for the rest of us.
And presidential inaugurations in the United States are usually fairly meaningless occasions, other than that they happen to be around the same time as when by automatic operation of law one presidential term ends and another one begins.
But the inauguration ceremony yesterday was different.
It was riveting.
Just as lockdown has had a few benefits notwithstanding the immense misery, so has the presidency of Donald Trump.
And one of those few benefits is that far more people now realise how the constitutional law of the United States works (and does not work) in practice.
Certain things before Trump were taken for granted to the extent that anyone realised those things existed at all.
Take, for example, what happens between a November presidential election and the January inauguration of a new presidential term.
The rights to recounts and re-run ballots; the certification of votes by each individual state; the appointment of electors for the electoral college and their obligations; and the congressional counting of the vote and certification of the winner.
Previously each of these steps – even with the contested 2000 result and Bush v Gore – was a mere formality.
One could have an informed interest in American politics and not know much or indeed anything about these obscure procedural steps.
Now many people know exactly the process that exists between the national vote and the start of a new presidential term.
And widespread knowledge about constitutional arrangements is a good thing.
It may be a bad thing for constitutional law to be exciting – politics should take place within an agreed framework rather than constantly being about undermining that framework – but understanding the rules of any game is important for those taking part and those watching.
And we watched the ceremony yesterday with anxious scrutiny.
Few people in the future will realise just how nervous many of us were in the last hours and indeed minutes of the Trump presidency.
What would he do?
What could happen?
Is it over yet?
(And indeed Trump issued another pardon with only minutes of his term to go.)
Even watching the chief justice swear in the new president was not enough: it still was not noon Eastern Standard Time.
The final one or two minutes seemed to last an eternity, even though the new president was well in to his acceptance speech.
And then: it was twelve noon EST.
Not since Charles Perrault’s Cinderella has there been a strike of twelve that produced such a wonderful general transformation.
It was over.
The greatest (if flawed) writer about the constitution of the United Kingdom – at least from an English perspective – Walter Bagehot made a distinction between the efficient and the dignified elements of a constitution.
Some who only know of this famous distinction misrepresent it as meaning that the dignified elements are somehow useless elements.
But this is not what Bagehot meant – what he actually said was:
“There are indeed practical men [and women] who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.
“And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed.
“But both schools are in error. The dignified parts of Government are those which bring it force—which attract its motive power. The efficient parts only employ that power.”
“[The dignified elements] may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. They raise the army, though they do not win the battle.”
In other words, it is not just important that institutions work well but they are legitimate and seen to be legitimate.
And thereby the purpose of any constitutional ceremony is not just an exercise in form but part of what confers legitimacy on those who exercise the power of the state.
Of course, we could have got by without any ceremony yesterday and just watched the clock run down in silent dread.
And of course, the ceremony was not ‘efficient’ – even the chief justice got the law wrong in that Biden was not yet the new president, at least for thirteen minutes.
But as Bagehot averred, to say part of a constitution is dignified is not to say that it is useless, but that it serves another purpose.
To be sworn in at the seat of the legislature by the head of the judiciary is a powerful indication of constitutional legitimacy, especially as it was at the very place where an insurrection happened just days ago.
This will not be enough for some Trump supporters, but it could not have been done better in the circumstances.
In more than one sense, therefore, the inauguration ceremony of Joseph Biden sought to bring dignity back to the government of the Unites States – not only in his personal manner but also in Bagehot’s sense of demonstrating to all those watching that this new presidency is constitutionally legitimate.
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