Friday, October 3, 2008

The Hereafter and Courtroom Oaths

A Second Look at the Supreme Court's own Oath of Office
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.

24 comments:

Tom Van Dyke said...

I agree with all of the above, Ray, with the proviso that it occupies a separate sphere than my argument below this one, which is based on custom and practice---a respected legal principle---that dates from 1789.

I've always thought that Washington's invocation of courtroom oaths in his argument for the social utility of religion was the weaker part.

And I quite agree that Washington himself may easily not have believed in an afterlife [althought, curiously, the greatly unorthodox Jefferson did!].

I'm not quite able to parse the meaning of your last sentence. Perhaps the fault is mine.

Phil Johnson said...

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It is of great historical interest how the Founders carried out their beliefs. It complicates matters when we try to put our minds back in time to grasp their motivations and meanings.
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How can we put our thinking back there when so much has transpired in our society since then? We ARE forever changed by enormous events in history that were never available to them.
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For us to try to claim reality has been frozen in time so much so that what they supposed continues to be so now, is a far stretch that discounts history itself. We are not and cannot be driven by the same ideas that drove the Founders..
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History is ongoing and ever building. What was, was the way it was then; but that has been added to with every turn of the page.
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"The moving finger writes ...."

Ray Soller said...

Tom, My last sentence was aimed in Steve Farrell's direction. I have contended that at the federal level, outside of the courtroom, "So help me God" did not become pervasive until the outbreak of the Civil War. Farrell contends that SHMG was always there as illustrated by his claim that GW said SHMG. The Civil War Iron-clad Test Oath implicitly invoked the fear of God's awful judgment upon violators, which should be recognized as having fundamentally changed the nature of oaths that were administered outside of the courtroom. (I hope this helps. I've always had a problem with assuming that my reader has clairvoyant access to my thoughts.)

I'll leave it to others to decide whether "accommodation" (if that's what you mean by a "respected legal principle") can be applied in the Pledge case. I don't recall that Congress addressed this issue when they inserted "under God" into the Pledge. When I first recited, what I called, "The Eisenhower Pledge," I was never informed that I had an option, or that reciting those words could possibly conflict with my personal religious convictions.

When it comes to stamping "In God We Trust" on all of our currency, no accomodation is being made for those who subscribe to their own conscientious objection.

In general, we must be careful, because I do not feel that applying the accomodation principle is always a foolproof remedy.

Explicit Atheist said...

"I'll leave it to others to decide whether "accommodation" (if that's what you mean by a "respected legal principle") can be applied in the Pledge case."

The Pledge is recited in schools across the country as a participatory ritual for young children so in the context of that ritual the Pledge doesn't lend itself to accommodation. Accommodation in the form of opt-out of self-expression of religious beliefs can work for adults but not for young children. In fact, it doesn't even work for adults because of widespread anti-atheist prejudice. When a public Pledge recitation ritual is introduced into legislatures for elected officials, for example, an elected official who opts out of the ritual can expect to get recalled (where there are recall laws) or not be re-elected to office as a consequence of opting-out. The Pledge ritual in legislatures thus functions as a religious test for office holders because the Pledge has religious content.

Sure, government could favor a particular religious viewpoint and accommodate the competing and contrary beliefs of other citizens by not mandating public citizen agreement or participation. However, that compromises the right of the minority to keep their viewpoint private. Both accommodation of different viewpoints and equal protection before the laws are better supported and maintained when government holds itself to the higher standard of neutrality.

Phil Johnson said...

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I have to go along with explicit atheist on the basis of my first post just above.
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It is especially true that a problem exists with children reciting the pledge which puts them in a double bind--damned if you do and damned if you don't.
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Personally, we are the result of the events and messages we get in life as our choices are dependent on such. Depending on what else is going on in the individual's life, the results can be either positive or negative.
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What's that called, historicism?
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Ray Soller said...

Thanks, explicit atheist, for your comment. The responsible "others" are the members of the Supreme Court. If they get it right this time, then they could possibly encourage public school authorites to allow students who prefer to include "under God" in their pledge recitation to remain silent or be excused from the classroom.

Tom Van Dyke said...

As Erwin Chermerinsky hisself pointed out, the First Amendment "free exercise" clause might prohibit any "encouragement" for those who want to say "under God" to remain silent or leave the room.

Which is why I often make the "custom and practice" argument. When folks like you, Ray, and EA make the "if they get it right this time," you simply want to substitute a new custom and practice you like in for one you don't like.

I don't think I'm being argumentative here, at least I hope not. Just calling a spade a spade, clarity being more valuable than agreement and all that. I've already written that the Pledge is becoming more trouble than it's worth.

Ray Soller said...

Tom, You'll have to explain how restoring the Pledge to its pre-Eisenhower format should be overruled by your "custom and practice" argument. If there had been more "custom and practice" stalwarts when I was in high school then we might not be dealing with this issue as we are today. As you can see, I'm a very nostalgic person, and I don't care for this "new custom and practice" of turning the pledge into a religious catechism.

If it ever comes to the hypothetical "free exercise" case, then, provided I'm still among the living, I'll be glad to see how it gets resolved.

Phil Johnson said...
This comment has been removed by the author.
Phil Johnson said...

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http://www.constitution.org/lrev/rodell/woe_unto_you_lawyers.htm
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And, especially to those sycophants of the law that keep the whole thing going.
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It's a great little book that I recommend to everyone.
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(My deletion above)

Charles said...

"the Pledge is becoming more trouble than it's worth"

Having thought a little more about this idea, I'll (once again) see Tom and in addition raise him. Perhaps the time spent leading students in automaton-like recitation of the pledge would be better spent teaching them its history and significance, the backdrop of the addition of "under God", etc. Or to generalize, perhaps schools should focus on educating rather than promoting.

- Charles

Phil Johnson said...

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Charles opines, "...perhaps schools should focus on educating rather than promoting."
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Finally, a reasonable statement.
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If public schools were to be expert at anything, they should be so at educating students about the society in which they will be adult participants so soon.
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But, to assertively promote the idea of "one nation under God" to children in their most formative state during the time they are being exposed to the greater society is an infringement on their future free choice as American citizens.
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"As the twig is bent, so grows the tree." Does anyone know the source of that little aphorism?

Charles said...

"anyone know the source of that little aphorism?"

Based on a google search, I'd guess the answer is "no" (although one source credited it as a Korean proverb). It apparently is fairly popular - 13,200 hits when truncated to "As the twig is bent, so" (the ending comes in multiple flavors).

- c

Phil Johnson said...

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So, if we take Proverbs 22:6 into consideration, does that help us see why some want to keep the "one Nation under God" phrase in the pledge?
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For the less informed, here's the Proverbs verse, "Train a child in the way he should go, and when he is old he will not turn from it."


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Phil Johnson said...

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And, check these out, all you people who think "under God" is not important:

http://vaticanassassins.org/IHS.htm

http://www.youtube.com/watch?v=3edVd6-SJgs
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Tom Van Dyke said...

Oh, my, Phil. I think you're losing it. You need so much more context about the Papists in England back in the day before you even have a clue.

Sorry, mate. We create enough nonsense around here on our own without you dragging more of it in.

Phil Johnson said...

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Nonsense? How about pomposity?
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Tom Van Dyke said...

Exactly. I've got that covered single-handledly.

Phil Johnson said...

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You sure have, Tom.
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But, then, maybe you have some cause?
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Tom Van Dyke said...

Nope. My pomposity should not affect your reading of my arguments. Fair-minded person that you are, I'm sure it doesn't.

Phil Johnson said...

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True enough, Tom; but, I do question your meanings from time to time.
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And, you seem reticent to explain yourself.
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So what?
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That's Okay. We all have to be able to express our being. That has a lot to do with who it is that we are growing to be.
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Phil Johnson said...

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The choice is ours.
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And, that's why it is so important that we have the First Amendment.
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It guarantees we can express ourself and we are free to be exposed to just about any ideas or things out there. That ensures our ability to have a wide selections of options from with to make our choices. So, in reality, we are the sum total of our experiences.
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American history is almost the most important subject we should study. I appreciate the efforts you put into coming up with so many of the things that have made us to be who we are.
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But, I reserve the right to get answers some times--not always.

Tom Van Dyke said...

Cool. And like Jesus before Pilate, I reserve the right not to answer directly. But I do answer in my way, and so did He. [No comparison between the two of us made here, mind you.]

I'm quite a lover of the First Amendment myself, although for accuracy's sake we should note it was intended for political speech. People v. Ruggles and all that.

But me, I thought what Ruggles said about Jesus and his mother was kinda funny, in that blasphemous way. I don't get offended. [Unless somebody implies I'm dishonest. then it's game on.]

Are we the sum of our experiences? Locke thought so in his Essay Concerning Human Understanding.

You might enjoy it. It's free, here:

http://oregonstate.edu/instruct/phl302/texts/locke/locke1/Essay_contents.html

Me, I'm not so sure, but I like the way the man thinks.

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