Saturday, January 2, 2010

Ray Soller on New York's Religious Test in the Founding Era

An American Creation Exclusive
by Ray Soller
and Tom Van Dyke

Ray Soller is a contributor here at the American Creation blog, although we don't hear from him nearly often enough. He's one of the most thorough forensic historians on the internet, and once again, he's scored a coup. More on that in a minute.

Mr. Soller has done definitive work on whether George Washington actually ever uttered "So Help Me God" at his first inauguration. [Washington most probably didn't, and even official government historians have been forced to take notice.]

And Soller took on famous John Adams biographer David McCullough over details of Washington's first inaugural. No myth or assertion about the Founding is safe from our forensic pit bull.

We recently posted an excellent guest essay which repeated what is fast becoming a "truism" about the Founding [and one I've repeated myself], that New York and Virginia were the two states that prohibited religious tests for statewide office at the time the US Constitution was ratified.

Not so, sayeth Ray, and he has the floor:

A minor point: Fea wrote, "[Post-colonial] New York did not place any religious restrictions on officeholders." I'd like to know the particular source for this statement. My source, Laws of the state of New York, Passed in the First Session of the Senate and Assembly of the Said State, Beginning in the Tenth Day of September, 1777, and continued by Adjournments, and ending with the Last Day of June, 1778, Chapter 6, pages 13 and 14, indicates otherwise.

After further research Mr. Soller added:

I found the source for the claim that "New York did not place any religious restrictions on officeholders." It comes from, as you might guess, Kramnick and Moore in their book "The Godless Constitution," page 31. Here is the claim:

The two exceptions among the state constitutions were those of Virginia and New York. In the former, (with Madison's help) Jefferson's "Statute for Religious Freedom," passed in 1786, specified that no religious test could be applied to the holding of public office. Even more interesting was New York's constitution, which in 1777 self-consciously repudiated tests that sought to maintain "any particular denomination of Christians." The absence of religious tests would, the New York constitution claimed, "guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind."

The New York state Constitution did, indeed, endorse "the free exercise and enjoyment of religious profession and worship, without discrimination or preference," but the NYS statute required that a candidate for public office subscribe to a religious test oath in the form:

I, A. B. do solemnly swear and declare in the presence of Almighty God, that I will bear true faith and allegiance to the State of New York as a free and independent State; and that I will in all things to the best of my knowledge and ability, do my duty, as a good subject of the said State ought to do; so help me God.

Consequently, contrary to what [Professors Isaac] Kramnick & [R. Laurence] Moore indicate in their next paragraph, it was only the "principles of Virginia and [not] New York [that] were written into the new federal Constitution, 'without much debate.'"

Since I've known Mr. Soller to be dogged on his facts, I meself pored through his source to look for exceptions to such an oath. All I could find was an exception for Quakers, who for religious reasons were not permitted to "swear," only "affirm."

Ray doesn't tolerate myth-making, no matter which "side" does it, that much I've learned about him. Perhaps the authors of The Godless Constitution: The Case Against Religious Correctness [later retitled: The Godless Constitution: A Moral Case for the Secular State] have other facts to present for their assertion. But if Ray's challenge is correct, it was only one state, Virginia, and not even two, that the others needed to accommodate in making the US Constitution "godless."

Hey, history's only dead if you let it die. Hats off to Ray Soller. This religion-and-the-Founding thing is quite a live wire, if we're willing to dig for ourselves and not take the scholars' word for everything. Scholars are wrong all the time.


John Fea said...

Good catch, Ray. And thank you! Would you be willing to proofread my forthcoming book on the topic? :-}

Actually, my source was not Kramnick and Moore (although this book has been sitting close by for the last few weeks), but the appendix of Edwin Gaustad's *Faith of our Fathers: Religion and the New Nation*, p. 168. Shame on me for relying on Gaustad's partial reprinting of the NY Constitution and not going to the original source. Here is an example where David Barton's "law office history" may have helped me out!

Jonathan Rowe said...

New York and Virginia were the two states that prohibited religious tests for statewide office at the time the US Constitution was ratified.

I'm being a little lazy; I have yet to read Ray's material very closely.

But, how long did NY's religious test remain on the books. It was there after 1776, but in 1787? 1789? 1791?

Did it lapse in 1778? If it did, it wasn't there when the Constitution was ratified.

King of Ireland said...

Ray reminds me of John Adams in the scene in the HBO mini-series where they take him to look at the famous painting of the signing of the Declaration and he chews out the artist because he said the painting was a lie.

Visual propaganda in possibly more effective than written. But on the other hand I feel that art is more a part of oral than written history. Oral history is exaggerated to make a point. I do not have a problem with it so long as people understand it is exaggerated and try to get the point.

But we need the Ray's of the world to keep us all honest.

King of Ireland said...

My last comment obviously is linked to the discussion of Brian's post below as well as to this one.

Ray Soller said...

Jon, after a little digging around I can summarize:

1) There's a NYS legislative record from 1793 allowing various minor state officials to swear an oath with no reference to God.

2) There was no mechanism in place for the people of NY to modify its constitution before 1801.

3) The revised NYS constitution of 1821 explicitly defines a generic oath of office for "Members of the legislature and all officers, executive and judicial, except such inferior officers as may by law be exempted ..." The specified oath does not contain any reference to God. See Art VI, Sec. 6 at .

4) It appears that NY's 1777 religious test oath for statewide elected officials remained on the books until 1821.

The reason I have focused on whether NYS required an oath of office with a doubly defined reference to God is that in my opinion the April 8, 1789 ad hoc oath administered to the attending members of the House of Representatives by NYS Chief Justice, Richard Morris was a necessary accommodation so that Justice Morris could execute his authority to administer the oath, and that it was never intended as a model for the federal oath contained in the first bill, An act to regulate the time and manner of administering certain oaths that was signed by President Washington.

John Ragosta said...

I'm coming to this very late, but let me leave you w/ a teaser: Ray's observation that Virginia is the sole state w/out a test oath (or establishment) has significant 1st Am. implications -- as I show in a forthcoming book on the Statute for Establishing Religious Freedom. Thanks for following up on this Ray.

Mark David Hall said...

Do the above posts assume an oath requirement ending with "So help me God" is a religious test for office? If so, why wouldn't we say Virginia had religious tests for office well into the nineteenth century? Such tests may not have been in the state constitution, but there were statutory requirements for various civil offices.


bpabbott said...

My understanding is that the "so help me God" part is only legally considered a religious test if it is required, and that in cases where it is part of an oath, it may be dropped (at the discretion of the individual) and an affirmation added.

bpabbott said...

Sorry, I forgot the convert the URL to a link for the 'So help me God' wiki entry.