Jerry-rigging the Presidential Oath with the Wall Builders

Over at the Wall Builders blog, David Barton has recently posted an article, Did George Washington Actually Say “So Help Me God” During His Inauguration?, complete with an entourage of 56 endnotes.

David Barton starts out by saying:

In December 2008 following the election of Barack Obama as president, noted atheist Michael Newdow filed suit to prohibit religious acknowledgments or activities from being part of the inaugural ceremonies, specifically seeking to halt the inclusion of “So help me God” as part of the presidential oath as well as halt inaugural prayers by clergy.

It should be noted for the sake of clarity, this statement is only half true. The Newdow v. Roberts lawsuit did not generally seek "to halt the inclusion of 'So help me God' as part of the presidential oath." To be more specific, the lawsuit wanted Chief Justice John Roberts to administer the presidential oath without inflating the oath with four extra-constitutional words. On the other hand, if President Obama chose to add "So help me God" on his own, then there was no objection, just as there would be no objection to whether a president independently chooses to raise his right hand; swear his oath on either no, one, or two Bibles; have his spouse hold the book, or just have it nearby; or reverently kiss the Bible while the book is either in an open or closed position.

Soon after Barton's introduction, he goes into an us-against-them mindset, where the us-people support the perspective of those who "have affirmed that 'so help me God' is a traditional practice dating back to George Washington," and them-people, who, like Michael Newdow and Mathew Goldstein, claim there is “no eyewitness documentation he [Washington] ever added ‘so help me God’ [to his oath of office].”

Barton identifies Chief Historian [Donald R. Kennon - 2005] of the United States Capitol Historical Society, the Library of Congress [(Marvin Kranz-2005) under the direction of the Senate Rules Committee], the U. S. Supreme Court (and numbers of its Justices [i.e. Saclia, & Rehnquist]), the Joint Congressional Committee on Inaugural Ceremonies [(namely, Donald Ritchie, Senate Historical Office) under the thumb of the Senate Rules Committee], the Architect of the Capitol [under the direction of the Senate Rules Committee], and other notables [say, like Kenneth C. Davis, David McCullough, Newt Gingrich, Sarah Palin, and Michele Bachmann]" as being in the us-people column. In contrast, he puts Michael Newdow, Mathew Goldstein, [Cathy Lynn Grossman] USA Today, Jim Bendat, Peter R. Henriques, and Charles Haynes in the them-people column.

What Barton fails to recognize regarding his two-column mindset is that it is woefully out of date. He would have been better informed if he had kept up with my blogs, where I have notified the reader that both Donald Kennon of USCHS (see my 1/19/2009 blog) and the Library of Congress (see my 12/14/2010 blog) have moved over into the them-people column. He could also have learned from other sources that Charlene B. Bickford, Director of the First Federal Congress Project, George Washington University (see Newdow v. Roberts, Appendix G, and Edward Lengel, editor-in-chief of The Papers of George Washington, University of Virginia, (see 3/21/2011 NY Times Books of the Times) are squarely in the them-people column.

Barton continues by taking pot-shots at Newdow's lawsuit whichever way he can. He brings out a cavalcade of states whose colonial regulations, original state constitutions, and "legal requirements for [religious test] oath-taking specifically stipulated that “So help me God!” be part of the official oath of all legal process, whether the oaths were taken by elected officials, appointed judges, jurors, or witnesses in a court of law." What Barton doesn't mention is that not all of the original thirteen states took it for granted that an obligatory acknowledgement of God was a necessary religious test for public office. In deed, some states made a special allowance for religious dissenters, like the Quakers, who strongly objected to swearing an oath, and then others who, even more strenuously, objected to include the "irreverent" non-biblical phrase, "So help me God." Furthermore, what's obscured by Barton's blindspot is the fact that the 1776 Virginia Constitution was the only state constitution, which, not only, declared "all men are equally entitled the free exercise of religion, according to the dictates of conscience," but also had no religious test for public office. Consequently, it can't be too surprising that the delegates to the 1787 Constitutional Convention, with George Washington presiding, and with Madison promoting the Virginia Plan, produced a document that failed to mention "God" either as part of the presidential oath, or in any other instance, and specified that "no religious test shall ever be required as a qualification to any office or public trust under the United States."

Now, with this background in mind, let's go back to where Barton describes Washington's swearing-in ceremony:

The [inaugural] ceremony was conducted on the balcony at Federal Hall; and with a huge crowd gathered below watching the proceedings, the [London published King James Masonic] Bible was laid upon a crimson velvet cushion held by Samuel Otis, Secretary of the Senate. New York Chancellor Robert Livingston then administered the oath of office. (He was one of the five Founders who drafted the Declaration of Independence, but had been called back to New York to help guide his state through the Revolution before he could affix his signature to the document he had helped write. Because Livingston was the highest ranking judicial official in New York, he was chosen to administer the oath of office to President Washington.)

[dot - dot - dot]

Other states [besides CT, GA, NC, SC] had similar requirements, but consider those in place in NEW YORK when President Washington was sworn in by the state’s top judicial official. At that time, New York law required that “the usual mode of administering oaths” be followed (i.e., “So help me God”) and that the person taking the oath place his hand upon the Gospels and then kiss the Gospels at the conclusion of the oath. <33> (Like the other states, these provisions remained the legal standard long after the inauguration. <34>)

Barton is dead wrong to think that "So help me God" was legislated as being a part of New York's “usual mode of administering oaths.” His own endnotes, when fully examined, prove the point. Here's endnote <33>:

33. Laws of the State of New-York (New York: Thomas Greenleaf, 1798), p. 21, “Chap. XXV: An Act to dispense with the usual mode of administering oaths, in favor of persons having conscientious scruples respecting the same, Passed 1st of April, 1778”; James Parker, Conductor
Generalis: Or the Office, Duty and Authority of the Justices of the Peace (New York: John Patterson, 1788), pp. 302-304, “Of oaths in general.”

Here's the significant section from Laws of the state of New York: passed at the sessions of the Legislature (page 49):

First Session - CHAP. 25.AN ACT to dispense with the usual mode of administering oaths in favour of persons having conscientious scruples respecting the same. Passed the 1st of April, 1778. Whereas many of the inhabitants of this State having conscientious scruples about the present mode of administering oaths by laying the hand on and kissing the gospels for the relief of all such persons [like members of the Dutch Reformed Church], Be it enacted by the People of the State of New-York represented in Senate and Assembly, and it is hereby enacted by the authority of the same That all and every person or persons impowered to administer oaths within this State, shall be and they hereby are empowered, authorized and required to tender and administer the said oaths to all such person or persons as shall declare they have such conscientious scruples, in the form following, to wit. The said person or persons shall with his her or their hand or hands uplifted swear by the everliving God and shall not be compelled to lay his her or their hand or hands on the Gospels or kiss the same: And that all oaths to be administered agreeable to the mode prescribed by this act shall be and the' same are hereby declared to be as good valid and effectual to all intents and purposes, as if the same had been administered by laying the hand on, and kissing the Gospels. And all persons who being sworn agreeable to the said mode and shall be guilty of false swearing or wilful and corrupt perjury, and be convicted thereof shall incur and suffer the same pains penalties or punishments, as if they had been respectively sworn on the Holy Evangelists.

Here's endnote <34>:

34. George C. Edward, A Treatise on the Powers and Duties of Justices of the Peace and Town Officers, in the State of New York (Ithaca: Mack, Andrus & Woodruff, 1836), p. 91, “Of the proceedings on the trial.”

A search on "usual mode" goes to page 91. The chapter heading is Proceeedings on Trial. The chapter is talking about courtroom proceedings after 1821. It is not talking about oaths for public office. A search through the entire book for "so help me God" comes up empty. The post-1821 alternative is stated as "swear in the presence of the ever-living God," and, again, without "So help me God."

So, when Chancellor Livingston administered the presidential oath to George Washington, Livingston, as a New York State judicial officer, apparently followed "the usual mode of administering oaths," which meant that the oathtaker would place his hand on a Bible during the oath and then conclude the oath by kissing the book. This practice, more commonly known as the "book-oath," is what was reported as having occurred, and there is no contemporaneous report that says otherwise. Furthermore, four years later, when it came time for Washington's second inauguration that took place in Philadelphia, not only was there no mention of "So help me God," but, there was no mention of deity in Washington's inaugural address, no attendance at a church service, and no word of a bible as being needed or even present.