Tuesday, September 15, 2015

Noah Feldman Responds to a Ray Soller E-mail

This is the September 6, 2015 e-mail Ray Soller sent to BloombergView columnist, Noah Feldman, to which he referred in his 9/11/2015 column, What ‘So Help Me God’ Meant to George Washington.
Dear Prof. Feldman,

 In your 9/3/2015 BlombergView article [What the Oath of Office Means to a Kentucky Clerk] you wrote:
Of course, the oath of office prescribed by the U.S. Constitution doesn’t include those words [So help me God]. George Washington famously added them after taking the oath of office as president, and  tradition has maintained them.
 dot - dot - dot
Of course, there’s nothing wrong with doing like Washington and adding God to the oath. But the key point is that doing so is a personal decision -- not an official or professional one. And the consequence of that distinction is all-important.

 It would have been a big help to your article, if you had been aware that GW did not add a religious tagline to the end of his presidential oath. Please check out the article, “So help Me God”: A George Washington Myth That Should be Discarded, by Peter Henriques

Chester A. Arthur is the first president who is reliably known to have inflated his oath of office by the four extra-constitutional, non-biblical  words, “So help me God.” Herbert Hoover is the last president who is known not to have uttered them. It’s only since FDR’s 1933 inauguration  that tradition has maintained them as a part of each following inaugural ceremony.

Even when it comes to whether Washington swore his oath on a Bible as a matter of personal choice that can’t be ascertained with any assurance, because no one knows exactly why a Bible was included as part of our first president’s inaugural ceremony on April 30, 1789. We do know that Chancellor Robert Livingston administered Washington’s oath of office in a manner that was completely consistent with the New York State Usual Mode of Administering an Oath. (In contrast, from what we know, a Bible was neither planned for nor included at GW’s second inauguration.)

At first Noah Feldman responded with an ever-so-short message that said, “Thank you for this reference. – NRF”

Soon after, on 9/11/2015, NRF posted another column to the internet that led off with the ambitious title, What ‘So Help Me God’ Meant to George Washington. The first paragraph mentions my 9/6/2015 e-mail and gets to the point by saying:

Did George Washington add the words “so help me God” to the constitutionally prescribed oath of office when he was sworn in as president on April 30, 1789? I’ve always thought so, and when discussing Kentucky clerk Kim Davis’s misinterpretation of her oath of office last week, I wrote that the U.S. Constitution doesn't include the words but that Washington “famously added them.” Immediately I received an e-mail [from American Creation blogger, Ray Soller,] citing an essay [by Peter Henriques] that claims this widely held view was in fact a myth, unsubstantiated by contemporary historical evidence and derived from a doubtful childhood memory by Washington Irving. I read the essay, and then found counterarguments [mainly by David Barton] on the web and in a good old-fashioned book [by Forrest Church].

For those who care to look at a critique of the David Barton argument see here, and for those who care to pursue an examination of the old-fashioned “book,” So help me God, The First Great Battle - Appendix by Forrest Church see here.

NRF then, very lawyer like, cherry-picks through the internet to answer the question, So what is the truth?, regarding whether GW said SHMG. To no surprise NRF comes up with this meandering conclusion:

Given this context [concerning how oaths were presumably administered during Washington’s lifetime], it seems more likely than not both that Washington, who was no Quaker, and swore rather than affirming, would have added the words in his oath, and that the fact wouldn't have been especially noteworthy. Conceivably, however, he didn’t say them -- although given the 18th century context, you’d think that the omission would have been noteworthy as well.

There are, unfortunately, two serious gaffs that occur in the effort to support his conclusion, mainly:
·      The statement, “Such a kiss [as occurred at GW’s 1st inaugural ceremony] was a ritual that at the time generally accompanied the saying of ‘so help me God,’” is unsubstantiated. Outside of references to English coronation ceremonies, and Masonic ritual, I am not aware of any state that administered an oath of office to a public official by having the oath-taker both kiss the Bible and pronounce the words “So help me God.” In the particular case of New York State statute, there was only one of two possibilities, where 1) a person would swear (there was no affirm option) by the usual “book-oath” method, that is by placing one’s hand on the Bible and kissing it at the conclusion of the oath, or, 2) provided the oath-taker was a person who held “conscientious scruples,” that person could, with uplifted hand, “swear by the everliving God.” The notion that so help me God  “generally accompanied” a book-oath does not hold up.
·      In the way of an afterthought, NRF quotes a line from Washington’s Farewell Address as saying, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths”? This line, as presented, has been edited without any notice to the reader. Instead, the quote, as cited, should be completed to include the clause, “which are the instruments of investigation in courts of justice.” In this instance, President Washington is not trying to promote a comprehensive endorsement of  a religious codicil. He is, however, validating his signature of the Judiciary Act of 1789 on September 24, which contrasted with The First Act of the First Congress --signed into law by him on June 1, 1789— where the congressional oath, without a religious codicil, simply reads: “I, A.B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.”

Most seriously, NRF is asking the wrong question. He, instead, should be asking, “What the presidential oath of office meant to George Washington”? That question can be answered succinctly by reading Washington’s second inaugural address.
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.


Ray Soller said...

There's another review of Noah Feldman's 9/11/2015 column posted at the Secular Perspectives website by Mathew Goldstein. See here.

Here's Matt's opening paragraph:
Bloomberg View published a new article by Mr. Noah Feldman "What 'So Help Me God' Meant to George Washington" that tries to defend the claim that George Washington ended his initial presidential oath of office with the words "So help me God". Mr. Feldman overlooks the fact that George Washington avoided using the word "God" in his speeches or in his public and private writing. He also fails to notice that the oaths that frequently concluded with SHMG were usually administered as religious loyalty test oaths. The Constitution, with GW’s signature at the top, made a radical break from earlier American history by proscribing religious test oaths. An example of GW’s attitude against religious test oaths is his May 7, 1778 General Orders that left the trailing SHMG outside of the quotation marks so that the printed oath certificates did not include SHMG.

Tom Van Dyke said...

Feldman writes:

Of course, there are two possible explanations of why no report from that time has been found to mention Washington saying the words: either it never happened or adding the words “so help me God” to an oath was so commonplace that it didn't seem worth mentioning.

This is reasonable.

Ray Soller writes

He, instead, should be asking, “What the presidential oath of office meant to George Washington”?

Swearing on a Bible and kissing it is "So help me God" in itself.

Indeed, by prevailing custom, such action was accompanied by just those words. This is Feldman's best argument, IMO, to which I'd add that the words themselves are a redundancy.

But they do describe “the devout fervency with which he repeated the oath,” as well as “the reverential manner in which he bowed down and kissed the sacred volume,” namely the Bible. Other reports also mention that Washington bent down to kiss the Bible that was held by Chancellor Robert Livingston of New York, the man who administered the oath. (There was no chief justice of the U.S. yet.) Such a kiss was a ritual that at the time generally accompanied the saying of “so help me God.”


The words “so help me God” were constantly and customarily used in oaths of office and juror’s oaths in the late 18th century, and indeed before. Contemporary laws from Maryland, Virginia and New Jersey, to name just three sources easily available online, include the words at the end of the oaths of office for their governors and other officials.

Thus in answer to the question

He, instead, should be asking, “What the presidential oath of office meant to George Washington”?

We can safely say that Washington intended "So help me God" whether or not he mouthed the actual words.

Ray Soller said...

What's most interesting to me is the way two different, well recognized professors of constitutional law can react so differently to essentially the same assembly of historical data. Back on 1/20/2013 Akil Amar said, in an NPR interview with Nina Totenberg:

The presidential oath is the only one spelled out in the Constitution and the shortest of any official oath. Interestingly, not included in the Constitution are the words used by perhaps all presidents: "So help me God."

In fact, George Washington may not have said those words. He set the standard for future presidents in many matters. Even though he was a general, he wore civilian clothes. He took the oath on a Bible, and for a long time it was believed he said, "So help me God" at the end of the oath. That, however, is not so clear any more, as Amar observes.

"In my last book in 2005, I actually suggested that he did. I now think that I goofed," the Yale professor says.

The source for all the stories about Washington saying, "So help me God" was a biographer who claimed to have attended the inauguration at age 6 and to have heard Washington say those words. But none of the very detailed contemporaneous accounts of the inauguration mentioned the first president adding, "So help me God" to the oath spelled out in the Constitution, and the writer who popularized the notion decades later, Washington Irving, was a famous fabulist, and he was known for making things up.

Ray Soller said...

Feldman in his 9/11 column asked "So what is the truth?"

An answer appears here:
How Is the Internet Changing the Way You Think?" A sample:
Let's reconsider the Internet. How do you find the truth on the Internet? You use a search engine. Search engines evidently have very complicated ways to determine which pages will be most relevant to your personal quest for the truth. But in a nutshell, a page's relevance is determined by how many other relevant pages link to it. Repetition, not truth. Your search engine will then present a set of ranked pages to you, determining availability. Repetition determines availability, and both together the illusion of truth. Hence, the Internet does just what you would do. It isn't changing the structure of your thinking, because it resembles it. It isn't changing the structure of your thinking, because it resembles it.

it resembles it

So from Feldman's
Did George Washington add the words “so help me God” to the constitutionally prescribed oath of office when he was sworn in as president on April 30, 1789? I’ve always thought so, ... .
[A]dding the words “so help me God” to an oath was so commonplace that it didn't seem worth mentioning.
[I]t [therefore] seems more likely ... that Washington ... would have added the words [SHMG] in his oath, ... .
We arrive at the truth.