by Ray Soller
There is a longstanding tradition of having courtroom participants swear to an oath that concludes with the words "So help me God." This same tradition allows any participant, who chooses, to affirm his oath by omitting the concluding reference to God.
A number of individuals with whom I have corresponded (namely, Steve Farrell of the Center of Moral Liberalism) feel that this longstanding tradition justifies the use of adding "So help me God" to all promissory oaths of office at the federal level regardless of what is prescribed by the Constitution. I disagree, and here's why.
A simple review of several key moments in post-Colonial history shows the way in which, specifically, George Washington was able to distinguish between promissory oaths and those oaths administered in the courtroom:
1) On April 30, 1789, all contemporary and eyewitness reports indicate that George Washington recited the godless presidential oath exactly as prescribed in the Constitution.
2) On June 1, 1789 President George Washington signed the godless oath for all federal office holders other than the president.
3) On September 24, 1789 President George Washington signed the Judiciary Act of 1789 with its Section 8:
And be it further enacted, That the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices, shall take the following [additional] oath or affirmation, to wit: "I, A. B., do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States. So help me God." [The affirm accommodation makes "So help me God" optional as specified in the clerk's oath.]The reader should note that the above judicial oath defines a federal judge's second oath. This second oath is dedicated to a judge's responsibility to "administer justice" in a manner agreeable with the Constitution. A judge's first oath, like that of all other federal officials, is an earnest commitment to uphold the Constitution.
4) In view of this recognition of God's debut in the federal Judiciary Act, George Washington, in his Farewell Address, thought it necessary to explain what it was that distinguished courtroom oaths from the godless oaths treated in the Constitution:
A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.Washington (I guess, with Hamilton's assistance) turned Jefferson's "does me no harm" argument on its head with his "Where is the security" logic. Even though Washington invoked "reason and experience" to support his thesis he didn't provide any specific information that challenged Jefferson's line of logic.
After searching for an understanding of just what Washington was driving at, I came up with only one conclusion that says the religious sense of "public security" comes from the belief that for judges and witnesses there needs to be a sense of accountability, which is based upon a belief in the hereafter and a corresponding day of judgment. James H. Hutson treats this subject in his book, Forgotten Features of the Founding. In fact, Hutson dedicates an entire chapter, "'A Future State of Rewards and Punishments': The Founders' Formula for the Social and Political Utility of Religion," to this subject. On page 34, he specifically writes:
In the North Carolina Ratifying Convention, July 30, 1788, James Iredell made the customary linkage between the future state and oaths: an oath "is considered a solemn appeal to the Supreme Being, for the truth of what is said, by a person who believes in the existence of a Supreme Being and in a future state of rewards and punishments, according to that form which will bind his conscience most."What's somewhat ironic is that, as Peter R. Henriques indicates, George Washington may not have held out any hope for a sociable afterlife:
The most striking aspect of Washington's view of life after death centers on what he does not say. Not once in all of his authentic, extant correspondence does he explicitly indicate his belief in the reunion of loved ones in Heaven.Regardless of what Washington believed concerning the afterlife, he, as expressed in his second inaugural address, expected the time of his judgment to be among the living:
Previous to the execution of any official act of the President the Constitution requires an oath of office. This oath I am now about to take, and in your presence: That if it shall be found during my administration of the Government I have in any instance violated willingly or knowingly the injunctions thereof, I may (besides incurring constitutional punishment) be subject to the upbraidings of all who are now witnesses of the present solemn ceremony.
So, by way of a final review, I can only surmise that our Founding Fathers agreed with Washington's assessment regarding the manner in which they should subscribe to their oath of office, since those who obtained a federal position of public trust, outside of the courtroom, are not known to have added "So help me God" to their official oath. Their oaths and their sense of accountability were directed towards "We the People." As far as I can determine, the first exception regarding the confinement of Supreme Court judicial oaths ending with "So help me God" did not occur until the outbreak of the Civil War.