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Oaths 4

In Alabama, a judge entering upon the duties of the office must swear the following oath:

“I, _______, solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.”

The U.S. Constitution, Article VI, states:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

That Article was intended by the Constitution’s authors to apply only to federal office holders. The States/Colonies in the 1700’s generally required a religious test oath of all office holders in the State or Colony. They were not sectarian, but they were Christian. See, for example, Pennsylvania’s Constitution of 1776:

“I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration.”

“And no further or other religious test shall ever hereafter be required of any civil officer or magistrate in this State.”

That oath is interesting because Pennsylvania was founded by Quakers, who did not believe in the Trinity. However, no believer in the Trinity should have had difficulty swearing to Pennsylvania’s oath.

Most of the other States had a Trinitarian oath. See, for example, Delaware’s:

“I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.”

The American thinking about oaths grew naturally from English common law.

“…Under English common law, no one but a believer in God and in a future state of rewards and punishments could serve on a jury or testify as a witness… This is the courtroom atmosphere American inherited. Consequently, in certain places in early America the privilege of serving as a witness or on a jury was expressly restricted to Christians… Oaths on the Bible are still standard fare in American courtrooms today; witnesses, grand jurors, prospective petit jurors, and interpreters are all asked to swear to tell the truth, ‘so help me God.’ ”

Procon.org, http://undergod.procon.org/view.answers.php?questionID=000064, “Why Can One Pledge to Tell the Truth ‘under God’ (or Affirm) in Court?,” article accessed on April 2, 2016, quoting Steven Epstein, JD, Assistant Professor of Legal Writing at the University of Illinois, “Rethinking the Constitutionality of Ceremonial Deism,” Columbia Law Review, Dec. 1996.

Epstein is only partly correct. A change occurred requiring the allowance of “affirmations” by non-religious people. This change occurred because the federal courts used the Fourteenth Amendment to force the States to adopt the same anti-religious test oath thinking which was first enshrined in the U.S. Constitution and applicable only to federal office holders. See Torcaso v. Watkins, 367 U.S. 488 (1961), discussed in Oaths 2.

The ratification debates within the States, as they decided whether to support the new Constitutional form of government, provide some insight into the founders’ thinking.

“In the ratification debates, the defenders of the Constitution put forward two reasons for the religious test ban. First, various Christian sects feared that, if any test were permitted, one might be designed to their disadvantage. No single sect could hope to dominate national councils. But any sect could imagine itself the victim of a combination of the others. Oliver Ellsworth noted that if a religious oath ‘were in favour of either congregationalists, presbyterians, episcopalions, baptists, or quakers, it would incapacitate more than three-fourths of the American citizens for any publick office; and thus degrade them from the rank of freemen.’ More importantly, the Framers sought a structure that would not exclude some of the best minds and the least parochial personalities to serve the national government. In his 1787 pamphlet, “An Examination of the Constitution,” Tench Coxe wrote of the salubriousness of the religious test ban: ‘The people may employ any wise or good citizen in the execution of the various duties of the government.’ ”

Gerard V. Bradley, Professor of Law, Notre Dame Law School, “Religious Test,” The Heritage Foundation website, “The Heritage Guide to the Constitution,” http://www.heritage.org/constitution/#!/articles/6/essays/135/religious-test, accessed on April 2, 2016.

Personally, it’s my opinion that the second reason was more important. “Reasonable” people contributed to the budding republic before, during and after the Revolution. The first reason was belied by the history of the States and Colonies before ratification. The test oaths were Christian but not sectarian to the point they excluded other Christian sects and denominations. They believed in the neutrality of wisdom, that man could without resort to the God of the bible, come up with wise public policy. That theory has been tested and found seriously wanting in our day.

And while the prohibition of religious test oaths applied solely to the federal government in the U.S. Constitution, it spread over time to infiltrate all the States. How? The effectual means of incorporating this doctrine into the apparatus of the States’ civil government was the Fourteenth Amendment to the Constitution and the federal courts.