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So Help Me God

by Professor Will Huhn on January 14, 2009

in Abraham Lincoln,Constitutional Law,Wilson Huhn

     Michael Newdow has filed suit to prohibit the Chief Justice John Roberts from stating and President-Elect Barack Obama from repeating the phrase "so help me God" following the oath of office next week at the Inauguration.  Three provisions of the Constitution bear upon this question: the Clause prescribing the presidential oath of office, the Establishment Clause, and the Clause prohibiting any religious test for public office.

     Article II, Section 1, Clause 8 of the Constitution prescribes the oath of office that the President must say in order to take office.  It says:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–''I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

     Article VI, Clause 3 of the Constitution ends with these words – the last substantive provision of the original Constitution:

No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

     The first words of the First Amendment state:

Congress shall make no law respecting an establishment of religion.

     It can be argued that adding the words "so help me God" to the oath of office that the President is legally required to take before assuming office is unconstitutional for three reasons.  First, because the Constitution specifically precribes the content of the oath of office, Presidents, and Chief Justices, and even Congress itself lack the authority to alter it.  Second, for the Chief Justice to prompt the President-Elect to say these words the Chief Justice is making belief in God a requirement for public office – an unlawful religious test.  Finally, it may be argued that for the Chief Justice to administer and the President to recite this phrase constitutes "an establishment of religion" – an endorsement of religion – a violation of the principle of separation of church and state.

     There are also some very persuasive arguments against Newdow's position.  The first response to Newdow's objection is contained in the text of the "oath of office" clause.  Note that the Constitution allows the President to either "swear" or "affirm" that he or she will faithfully execute the laws and will preserve, protect, and defend the Constitution.  One meaning of the term "swear" connotes taking an oath before God, in contrast to an affirmation which is an equally solemn promise but one that is made without religous intent.  The choice to swear or affirm lies with the President, not the Chief Justice, but nevertheless it is perfectly constitutional for Obama to choose to swear his allegiance to the Constitution rather than to simply affirm it.

     The second and more powerful legal argument in favor of allowing the President to say "so help me God" lies in the dual nature of every occupant of public office.  This duality may be illustrated by reference to the history of this phrase.

     The first President to add the words "so help me God" to the oath of office was Abraham Lincoln on the occasion of his second inaugural in 1865.  In addition, as you can see from my previous posting, Lincoln's Second Inaugural Address is suffused with biblical and religious references.  Why isn't Lincoln's entire speech considered to be a violation of the Establishment Clause?

     The answer is that Abraham Lincoln was both President and a private individual – an officeholder and a politician – a government employee and a citizen.  As President he was not permitted to take any action affecting other people's legal rights and responsibilities with respect to religion – as President he had to be strictly neutral with respect to religion.  But as a private citizen he was free to express his belief in God – to go to church, to participate in religious exercises, and to persuade other people to his beliefs.  He did not give up these rights by ascending to public office.  Lincoln's Second Inaugural Address properly incorporates religious imagery meant to convey the fundamental political and moral values that Lincoln adhered to.  Like Lincoln, in my opinion Barack Obama may, at his option, request the Chief Justice to add the words "so help me God" to the oath of office as a further expression of his personal resolve to faithfully execute the laws and to preserve, protect, and defend the Constitution of the United States.

{ 6 comments }

JulioFranco January 15, 2009 at 1:14 pm

Why do you care, Michael Newdow? Why instigate additional bigotry and disrespect of America's traditions?

Grow up, little man. Quit trying to promote your career with contrarian viewpoints while negativity flows from your yapper.

The great thing about the internet is that it provides a stage for nearly everyone to speak to the masses.

The terrible thing about the internet is that it provides a stage for nearly everyone to speak to the masses.

The Reverend January 15, 2009 at 2:53 pm

Newdow is a true American Patriot. Defending the Constitution against all enemies foreign and domestic. Religion, according to the bill of rights, is not to be established by government. Obama, as well as all elected representatives, run our government for us, and therefore, have no right to establish religion on our behalf in any way.

In addition, in response to the "swearing" part…..The Christian godman, Jesus, instructed his followers to let their yays be yays and their nays be nays….WITHOUT SWEARING….a command to speak honestly in all agreements without dressing up the yays and nays with wordy and flowery addendums.

Not only is the "so help me god" part unnecessary and unconstitutional….it also flies in the face of the very Christians who allegedly follow Jesus.

Religionists, as they have for millenia, cling to the bare threads of national symbolic expression of religion to make them feel secure in their faux-insistance that America is a Christian nation.

Good on Newdow. Hope he wins.

Quidpro January 17, 2009 at 11:41 am

To claim that the words, "so help me God" added to the end of the presidential oath is unconstitutional does not make it so. Such language certainly does not "establish" any religion. No does it connote governmental support for any particular religion or religion in general.

As Professor Huhn points out, a ruling prohibiting Obama from invoking the help of God would infringe on his constitutional right of free exercise. It also is tantamount to the imposition of a religious test on Obama in violation of Article VI of the Constitution.

Newdow's case should dismissed.

Dan S. January 17, 2009 at 4:02 pm

A question comes to mind. Why is there not an uproar over the use of Lincoln's inaugural BIBLE during the upcoming ceremony? Not that I agree with Newdow's position, but shouldn't he be contesting the use of religious objects in a government setting rather than trampling on a citizen's right to make a verbal statement regarding his personal accountability to a higher power?

JZ January 18, 2009 at 9:25 am

In response to: "In addition, in response to the "swearing" part…..The Christian godman, Jesus, instructed his followers to let their yays be yays and their nays be nays….WITHOUT SWEARING….a command to speak honestly in all agreements without dressing up the yays and nays with wordy and flowery addendums.

Not only is the "so help me god" part unnecessary and unconstitutional….it also flies in the face of the very Christians who allegedly follow Jesus."

Two points:
Firstly, you are misunderstanding the term "swear" as utilized by Jesus. His command was in response to the religious and social practices of his time. Swearing, in the ancient religious world, connoted far more than simply affirming before a deity. In many customs, to swear to something was to raise that thing to the same level of deity, saying something like "this that I swear to is as permanent, immovable, and timeless as the deity under whom it was sworn". In a world as violent and unpredictable as the ancient world (or this one), no person could actually make that claim and back it up (if you swore you would go to the market on Thursday, but an ox cart ran you over on Wednesday, then the oath had a problem). Additionally, the culture understood that an oath before a deity would be enforced by the deity. So if you swore before your god to go to market on Thursday, your god would make you go to the market on Thursday through some contrivance, or else severely punish you.
Oaths had power, in the older world. Jesus did not want his followers to promise something they could not deliver.

You are right that it all centered around honesty, but an almost equally strong consideration was that Christians ought not invoke God in such a manner as to assert control over him or bring some temporal thing up to his level.

Your application, therefore, is not quite accurate. It is the connotation of "I swear" that Christians are not to repeat. The actual words matter very little. Obama could, with a free religious conscious, use the words "I swear". This is similar to how scholars interpret the biblical instruction against ear piercing; it is not that ear piercing is bad, but that in the old world a pierced ear meant you had willfully chosen a life of slavery to some master-Christians were to have only one master, God. Thus, they could not get their ears pierced. In examining these old prescriptions, the key question is "why?". Always ask why something is prescribed or prohibited and the answer will provide a more accurate biblical teaching.

Secondly, when you say "Not only is the "so help me god" part unnecessary and unconstitutional….it also flies in the face of the very Christians who allegedly follow Jesus," I really don't know where you get this. Even if your first argument against swearing were accurate, this second would not be. The oath is to perform the service well, and it is always permissible to ask the Lord to help you do a non-detestable thing. Asking the Lord to help you sacrifice babies to a foreign god would probably be inappropriate, but asking for help to perform your job (unless your job is to sacrifice babies or something like that) is quite acceptable and good practice for a believing Christian.

For a Christian, nearly any job can be performed normally or performed for the Lord. A job can be simply a requirement or an opportunity to serve. By requesting the Lord's help, Obama would simply be affirming that he, as an individual, wants to serve the people well as president and that he believes he needs god's help to do so.

I don't understand that second part of your comment; it doesn't seem to make sense.

JZ January 18, 2009 at 9:26 am

Sorry for the book. I didn't realize it was that long until I saw it on the screen after clicking to submit.

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