Tuesday, July 1, 2008

1989 - Bush Took Unconstitutional Oath of Office

by Ray Soller

In 1999, ten years after the fact, author and professor Matthew Pauley decided to take Professor Burton Caine of Temple University to task for having admonished President George H. W. Bush in a letter Caine had sent to the editor of The New York Times. Professor Caine's letter was published under the title, Bush Took Unconstitutional Oath of Office (please read full article).

In Pauley's book I Do Solemnly Swear: The President's Constitutional Oath: Its Meaning and Importance in the History of Oaths (January 1999) in footnote 8 starting on page 246 the author offers this commentary on Burton Caine's letter:
In a letter to the New York Times (letter: Jan. 20, 1989; published: Feb. 5, 1989), Burton Caine, a Professor of Law at Temple University, sharply criticized George Bush's taking of the presidential oath: "Although President Bush swore to preserve the Constitution, he did not obey its precise command in taking the oath of office." Caine then quotes the oath and observes, quite correctly, that this "is the only place in the Constitution where quotation marks are used." The framers obviously intended, Caine goes on, that the President should "use the exact words, no more, no less." But George Bush added "So help me God," and Caine asserts that this is "unconstitutional." "The authors of Article II understood that an oath traditionally could refer to a deity and, by providing the precise language and omitting such reference, clearly intended such words should not be said. I would implore our President not to take liberties with the Constitution, especially in the sensitive area of the separation of church and state. In a country with a population as diverse as ours, a President who wants to represent all the people must include deists and nondeists. The neutrality course prescribed by the Constitution is not only the law,[pg. 247]but it is also the best policy." Perhaps Professor Caine is unaware of the fact that George Washington, Father of our Country, added the words "So help me God," when he first took the oath.
What's most remarkable about Professor Pauley is that he was so presumptive as to think that the inaugural setting in which Washington is seen as having added "So help me God" to his oath of office is an actual fact. To go ahead and then suppose that an unsubstantiated "fact" of this kind overrules the Constitution is rather incomprensible.

9 comments:

Jonathan said...

Ha!

That was my First Amendment AND Antitrust professor.

He was a riot.

Brian Tubbs said...

Professor Caine is being way over the top here. It is not unconstitutional to add a personal comment at the end of the oath. It would be unconstitutional to take AWAY from the oath. If Bush were to say "preserve, protect, and defend the Bible" instead of "preserve, protect and defend the Constitution," then THAT would be unconstitutional.

Anonymous said...

Isn't this the AMERICAN CREATION blog? Bush plays what role in that exactly?

Pinky said...

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My guess is that if a professor of Constitutional law at such a prestigious school raises the question, then, there is reason for concern.
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Ray Soller said...

The presidential oath is prescribed by the Constitution. The inaugural address is wholly the product of presidential initiative. As far as we know, all elected-Presidents going into the 20th century recognized the distinction between the president's oath of office and the inaugural address. I don't think Professor Caine is anywhere close to "being over the top" on this issue.

You can write him personally if you feel that way to see if he has a response of his own.

Explicit Atheist said...

If GW appended that phrase, which is unlikely, that would still be significantly different from the 1989 because in 1989 the oath giver, ironically the Chief Justice of the United States, added that phrase and the president repeated what the Chief Justice said. The president, as oath taker, arguably can say anything before or after the oath without thereby modifying the oath. But the Chief Justice, as oath giver, does modify the oath when he adds words to the start or end of the oath recitation and therefore he is technically violating the law, in this case constitutional law, by doing that, even though there is no penalty in the law for this violation of the constitution.

schiller1979 said...

Why is GHW Bush being singled out here? It does seem at best unclear whether Washington added "so help me God", but every president that I've heard take the oath, and that goes back to the 1960s, said it at the prompting of the chief justice. I'm not a lawyer, but isn't there some sort of estoppel principle whereby, if the oath was given that way on a regular basis over many years, and no formal objection was raised, that it needs to be considered acceptable?

Pinky said...

Actually, it gets to be considered the law of the land.
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It's close to that now.
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I'm sure men like Dobson (Focus On The Family) would question the legitimacy of any president that did not add SHMG on the oath.
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bpabbott said...

Jon: "That was my First Amendment AND Antitrust professor."

Ouch ... must have been a tough class to sit through. It would have been for me anyway! ;-)

I'm completely with Brian on this one: "Professor Caine is being way over the top here" :-)