The Oath of Office

A federal or state requirement of an oath of office is not only not violative of the United States Constitution but is expressly sanctioned by this “supreme Law of the Land.” Such an oath requirement does not constitute in any sense or degree a religious test for office such as is barred by the Constitution. This is true whether or not the oath expressly includes the usual closing words, “So help me God.”

The soundness of these conclusions is readily apparent from the words of Article VI of the Constitution requiring that members of Congress and state legislatures, as well as all executive and judicial officials, federal and state “… 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.” Here we find not only in the same sentence but immediately adjoining each other the oath requirement and the prohibition of any religious test. Any contention that such an oath constitutes the forbidden religious test would be to condemn the quoted text as making nonsense. Such a conclusion as to any part of the Constitution is, of course, impermissible. Each and every part of this basic law must be accepted as having equal value and full validity, according to controlling principles of constitutional construction. No provision of the original Constitution can soundly be construed as invalidating any other part thereof. No part of any Amendment can soundly be said to invalidate any part of the Constitution, as amended, unless accomplished expressly—as in the case of the Eighteenth Amendment’s repeal by the Twenty-first Amendment. No such invalidation can be assumed to have been effected by implication, much less accomplished by “judicial interpretation.”

Extensive research in the writings of the Founders, notably those who framed and adopted the Constitution in 1787–1788, supports the above conclusions concerning oath of office and religious test for office. Nothing to the contrary in these writings has been found to exist nor, it is believed, could it be found. Those conclusions are entirely in keeping with the governmental philosophy of the Founders as a group, as recorded in their writings, as well as with the historical records’ evidence of the intent with which the Constitution was framed and adopted.

As the “father of the Constitution,” Madison’s observation regarding Article VI is especially noteworthy by way of illustration in his letter of April 10, 1788, to Edmund Randolph: “As to the religious test, I should conceive that it can imply at most nothing more than that without that exception, a power would have been given to impose an oath involving a religious test as a qualification for office. The constitution [meaning creation] of necessary offices being given to the Congress, the proper qualifications seem to be evidently involved.” [Emphasis added.] Such “proper qualifications” include, for instance, those based on age and citizenship as well as the prescribed oath.

A most interesting statement concerning the oath requirement of Article VI was made by former President John Quincy Adams in his “Jubilee” address on April 30, 1839: “The Constitution had provided that all the public functionaries of the Union, not only of the general but of all the State governments, should be under oath or affirmation of its support. The homage of religious faith was thus superadded to all the obligations of temporal law, to give it strength; and this confirmation of an appeal to the responsibilities of a future omnipotent judge, was in exact conformity with the whole tenor of the Declaration of Independence—guarded against an abusive extension by a further provision, that no religious test should ever be regarded as a qualification to any office or public trust under the United States. The first act of the Congress, therefore, was to regulate and administer the oaths thus required by the Constitution.” [Emphasis added.] [Pamphlet copy, Library of Congress.] The words, “guarded against an abusive extension,” stress that—to the extent that such an oath has religious significance—this fact can never soundly serve as the basis for a claim that such an oath constitutes the forbidden religious test for office. These two things, oath of office and religious test for office, are—under the Constitution—mutually exclusive; and the requirement of such an oath and the prohibition of such a test are entirely compatible constitutionally.…

The acknowledgment of the existence of a Supreme Being in any oath-taking is implied with the same effect as if made express in the usual manner, “So help me God.” It invokes God’s punishment for oath-breaking. Whether express or implied makes no difference. This assumes bona fide oathtaking, not falsely pretended belief in God.…

The oath provision of Article VI has nothing whatever to do with—does not trespass upon—any freedom, or right, guaranteed by the Constitution, as amended; it does not violate freedom to believe or not believe in God, nor freedom of conscience, nor freedom of thought, nor any other freedom. It merely expresses the sovereign people’s mandate as to one important condition, or qualifications pertaining to the privilege (there is no right) of holding office, federal or state. As to “So help me God” in the prescribed forms for federal officials, see for instance U. S. Code, Title 5, Sec. 16; Title 28, Sec. 453.

A recent Supreme Court case merits special mention here: Torcaso v. Watkins, 367 U. S. 488 (1961). There the plaintiff, an applicant to be a notary public in the State of Maryland, sued the state on account of its denial to him of a commission as notary because he would not declare his belief in God as required by the state constitution, which expressly barred any religious test for office in Maryland “other than a declaration of belief in the existence of God.” The U. S. Supreme Court decided merely that this constitutes a religious test for office (as the Maryland Constitution itself expressly labelled it) which violates the First Amendment of the United States Constitution as made applicable—the court stated—to the states by the Fourteenth Amendment. The court’s opinion (in a footnote) expressly stated that Article VI was not considered in deciding the case; so the decision has no bearing upon the question being considered here.

In conclusion, an oath of office—expressly or impliedly including the words, “So help me God”—is not violative of Article VI or any other part of the Constitution, as amended. The oath requirement of Article VI is independently controlling.—HAMILTON A. LONG, member of the New York Bar (retired), in the American Bar Association Journal.

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