Strengthening Constitutional Self-Government

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A Religious Oath?

Until I read the interview with Justice Thomas, to which Joe links below, I had not read the Judiciary Act of 1789 in quite some time, and had forgotten that it prescribes an oath of office for Justices (Section 8).

Justice Thomas notes that he takes his oath of office seriously. The text of the oath reads: To "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."


What stands out is the line, "and do equal right to the poor and to the rich."

Given the time and place at which the oath was written, the language was probably ultimately traceable to Leviticus 19:15: "You shall do no injustice in judgment; you shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor." If so, it might have interesting implications for our establishment clause jurisprudence.

And the "So help me God" part of the oath suggests that they members of the First Congress agreed with John Locke’s Letter Concerning Toleration that atheists could not be good citizens, for "those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist."

Discussions - 8 Comments

And the "So help me God" part of the oath suggests that they members of the First Congress agreed with John Locke�s Letter Concerning Toleration that atheists could not be good citizens, for "those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist."

Evidence?

Isn't that self-evident? The oath is sealed with an appeal to God.

Steve, it is a suggestion and we know Locke's thought was popular at the time.

It is a good point. Aside from that "undermining of religion" business, to whom do you swear an oath if you think there is nothing greater than yourself? If you are the ultimate, you can presumably only swear upon your own head or honor, perhaps upon your child's head as in something you might love more than yourself, but we would have to know your disposition towards truth, honor or towards your child. Such a reflexive oath couldn't carry the same weight as an oath that implies eternal damnation if broken. "The fear of the Lord is the beginning of wisdom." A believer has to be careful about God. What does an atheist have to be careful of?

I mean evidence that the First Congress, or a working majority, agreed with Locke on this point. The last part of Article VI seems to go another way.

I infer from that, combined with the no religious test clause, that they did not regard belief in God as "religion." Why else would the same Congress that sent what is now the first amendment to the states think it was perfectly legitimate to force all Justices to take an oath to God?

I'm not trying to catch anybody up. I don't have a considered view on these historical matters, which seem mixed and ambiguous.

If so, it might have interesting implications for our establishment clause jurisprudence.

I think what you meant to say was "this should have interesting implications." Unfortunately, it will not. History if full of oaths, Congressional prayers, etc. That does not stop the courts from ignoring it all when ceating and then applying dubious precedent.

The problem with Richard Adams' suggestion is that, if we follow Locke's strictures, Catholics wouldn't be good citizens either.

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