The inauguration of a new president: mere ceremonial form and hard constitutional substance

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.”

He continued:

“[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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22 thoughts on “The inauguration of a new president: mere ceremonial form and hard constitutional substance”

    1. Excellent as always – not just putting the ceremony into perspective, but providing answers to questions I hadn’t even fully formed in my mind!

  1. What a splendid explanation of ritual in the political process. My daughter had been wondering why all the fanfare. I’ve forwarded this. Thank you!

    1. Fascinating as ever. I would contend that the appointment of electors for the electoral college and the congressional counting of the vote, are not meaningful aspects of the operation of the democratic process, but rituals that have been shown to have the potential to hinder it. They are obsolete obstacles without even symbolic value, whereas ceremonies do embody important symbols that bind a people together.

  2. Article II, Section One, Clause 8 of the Constitution:

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


    So in what way did Roberts get the law wrong?

      1. As I understand it, as soon as the Chief Justice administers the oath and Biden takes it, that is it. The Noon element is a sort of convention except that, if the Chief Justice admisters the oath after Noon, say at 12:12, then there is a hiatus where there is no president in office during that time. It could, in principle, pose a problem, hence, the standard administration of the oath tends to err on the side of being a bit early. That is how I undestand this set of conventions.

        1. There are two issues:

          1. When does the previous term come to an end? Noon. That is set at law, and it has effect regardless of any oath. A failure to administer an oath (or affirmation) would not have prolonged Trump’s term (else I think he would have tried something to stop it, like confiscating every bible in the land!).

          2. At noon, who is the new president? The constitution provides that a new president has to swear an oath (or affirm): So any delay would I suppose just be a bit of a gap – and if a person was not able to take an oath (or to affirm) then presumably it would be a matter for succession of the vice president (if sworn in or affirmed) or then I suppose the speaker and the president pro tempore and so

          1. Replying to Elijah – that article suggests that Biden would have become president at 12 noon, whether or not he had taken his oath of office, but he would not have been able to “[enter] the Execution of his Office” until he had taken the “Oath or Affirmation”.

            Similarly, that Lyndon Johnson became president immediately on the death of Kennedy (shot at 12:30pm CST, declared dead at 1pm CST) although Johnson was not told until 1:20pm CST and then federal district judge Sarah T. Hughes did not administer the presidential oath of office until 2:38pm CST.

            And that Gerald Ford became president immediately on the formally resignation of Nixon at 11:35am on August 9, 1974, before Ford took the oath of office at 12:05 pm.

            It would be fascinating to see who took charge if there was an emergency requiring immediate action in these periods of hiatus, when there was in formal terms a president in office but not constitutionally empowered to execute the office. In practice, I suspect the new president would have taken charge anyway, perhaps with an impromptu oath in front of who ever was available, and damn the niceties. (Did we ever get to the bottom of the vice president authorising the deployment of the DC national guard on January 6?)

            Trump was president until 12 noon, and there couldn’t be two presidents in office at the same time.

          2. Replying to Elijah – the article ends by raising, not necessarily seriously, the question: If Hayes took the oath the day before Grant stopped being president, were there two presidents for a day?

            That’s an entertaining thought. Could Biden have taken the oath a day early and got to work? A week early? On 7th January? If he had as little regard for norms as his predecessor, might he have tried this?

            DAG assumes that there can only be one president at a time, and so the answer is obvious. That seems the more sensible interpretation, but is it written?

  3. Fascinating and right on the point as ever.

    I hadn’t thought of the importance of whole process between vote and inauguration before. As you say, they could have just counted the numbers and the changed places in the White House. However, in this case, each step in each State and and the formal count by Congress each provided an opportunity for scrutiny and challenge. Those were challenged, vigorously, if not legitimately, and as the results held in each one, the case for Joseph Biden as the President Elect was quietly reinforced. At the end, with the ratification in Congress, Trump had to resort to non-constitutional means to try to overturn what was by then an irresistible momentum for change.

    Without those steps, the inauguration on 20 January may have looked far less assured than it did yesterday.

    Quite a robust Constitution those those 18th century created! Still stoutly defending democracy in the 21st.

  4. Maybe this is what British membership of the European Union fatally lacked: the dignified parts of the constitutional arrangement, the ones that could have expressed, repeatedly, that this is a matter of life and death, we are now reconciled with our former enemies, we are working together to build a peaceful and prosperous Europe, we won’t ever let hatred divide us again. The rituals and gestures by national political leaders that could have enacted this, comparable to De Gaulle and Adenauer attending mass together at Rheims Cathedral, or Willy Brandt falling to his knees before the monument at the Warsaw Ghetto. The broader culture, too, reinforcing them: Barbara’s Göttingen, the song of a French (and Jewish) woman visiting postwar Germany and finding common ground with young Germans: “Ô faites que jamais ne revienne/ Le temps du sang et de la haine” (Make sure it never returns, the time of blood and hatred).

    The efficient parts we had, and now they have fallen away we are learning to our cost quite how efficient they were. But on their own they were not enough to secure popular consent, at least not in England and Wales.

    1. That is an interesting viewpoint. However the ceremonial parts of the EU do exist and my recollection is that the UK, not entirely unreasonably, poopooed the idea of a new institution having invented flummery on the lines of Jacques Delors wants to be king of Europe. And quite a lot of us react to the flummery in the UK parliament as being designed to prevent real change.

  5. With Brexit done, and Biden installed, I wonder when you will next ahve the opportunity to use the expression ” by automatic operation of law”?

  6. The presence of Pence, as odious and ineffective as he has been, was an important acknowlegement of the power described here.

  7. Very interesting, thanks. I have always been contemptuous of ritual, but was moved by yesterday’s ceremony – the speeches and the poem if not the songs. It doesn’t, however, alter my view that the electoral college diminishes democracy and that the popular vote should be what matters. And that 2 1/2 months between election and inauguration is far too long.

  8. The imagery of the Chief Justice and the President at Congress also highlights the 3 branches of US governance working together as equal partners. I saw that ceremony like a renewing of vows that each of the branches will work as one “machine” for the people. And that’s where the ceremonial part becomes important because the people get to see that renewal.

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