September 14, 2015


An Oath to Uphold Only the Just Laws (Stephen L. Carter, 9/14/15, Bloomberg View)

According to her brief, "Davis understood (and understands) this oath to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God, natural law, and her sincerely held religious beliefs and convictions."

Feldman finds this claim not so much unpersuasive as wrongheaded -- a misunderstanding of the nature of the oath. Davis's argument, he writes, "implies that obedience to divine law is somehow baked in to one's constitutional duties and obligations." He adds:

Whom you swear the oath by is different from what you swear to do. Officials in the U.S. definitively don't swear to uphold God's law. They swear to uphold the Constitution, which never mentions God at all.

With all due respect, I think this argument is historically incomplete. Like much scholarly writing today about oaths, it seeks to impose a post-modern outlook on a pre-modern practice. Viewed in this way, the oath is no more than what courts in contract cases might call a signal of an intention to be bound.

But there is much more to the history of the oath. Take the case of jurors. In a subsequent column, Feldman cites the 1797 edition of the Encyclopaedia Britannica for the proposition that invoking the name of God is simply a means for securing the truth of the oath. The actual language he quotes was borrowed by Britannica from the writings of the 18th-century theologian William Paley, who used the example to show how the overuse of oaths was making them "cheap in the minds of the people."

A few chapters later, Paley takes up the subject of the oath of allegiance to the monarch -- an oath also taken in the name of God, and a closer approximation to an oath of office. That oath, Paley argues, does not apply when the king's own misbehavior "makes resistance beneficial to the community" or when the commands of the sovereign "are unauthorized by law."

For Paley, as for many others of the day, the oath of allegiance was never a promise to obey all laws. It was a promise to obey the just ones.

Our modern tendency is to treat the addition of "so help me God" to the oath as merely a proof-text, a means by which listeners can determine the sincerity of the speaker. Scholars tend to note, in passing, that the oath emerged from the idea of a "self-curse" -- that God should punish me if I'm lying. This approach, however, views the oath too narrowly.

The oath, as the linguist Helen Bromhead has argued, also signaled one's membership in the community. An individual who was willing to swear by God to tell the truth marked herself as accepting and submitting to a variety of cultural norms. Legal scholar Christopher J.W. Allen, reminds us of a belief during the Victorian era that "the religious sanction was fundamental to the worth of any testimony because religion was fundamental to morality." So it's easy to understand why the same states that adopted a federal Constitution prohibiting religious tests for federal offices preserved them for state offices. Even today, a dozen state constitutions still require their officials to swear their oaths of office in God's name.

Posted by at September 14, 2015 6:58 PM

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