The new Supreme Court Justice, his oath, and what we’ve lost
A new Supreme Court justice must swear two oaths. There is confusion over what the two oaths are, and why he must swear them…
Oaths are sworn to the sovereign authority that has the power to enforce them. A blogger describes this confusion:
Despite our best efforts to explain the two oaths a new justice must take and the traditions surrounding the administration of the oaths, there evidently is still some confusion going around.
When I arrive at the White House press room this morning in advance of Neil Gorsuch’s Rose Garden ceremony, I overhear a correspondent talking on the phone to his editor about the “ceremonial re-enactment” of the oath about to take place.
When he hangs up, I gently offer a clarification: Gorsuch took his constitutional oath, which was administered by Chief Justice John Roberts Jr. in the justices’ conference room at the Supreme Court, at 9 this morning. And at 11 a.m., here at the White House, Justice Anthony Kennedy will administer the judicial oath to Gorsuch, which is just as necessary to become a full-fledged justice.
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The first oath is required by anyone who enters the Federal government. The second oath is required for a federal officer to enter the office ofSupreme Court Justice.
ORIGIN OF THE FIRST OATH
The first oath is mandated by Article VI of the US Constitution, which reads as follows:
“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.”
Unknown to most people now, this was a massive change in the history of government constitutions. It represented a monumental shift in authority compared to the Articles of Confederation. Consider this.
The US Constitution, ratified in 1787, requires not only all officers of the federal government to swear an oath of allegiance to the Constitution, but all officers of the States must also swear an oath to support the US Constitution, as well as the state constitution.
This was a top-down imposition of authority on the States by the Federal Government.
With the Articles of Confederation, however, the States appointed delegates to the federal Congress (Article V):
Each State shall maintain its own delegates in a meeting of the states, and while they act as members of the committee of the states.
To become an officer of the states, the individual states required their officers swear oaths of office. The oaths varied from state to state. If you wanted to be appointed to the national Congress, then you first had to become an officer of one of the states by swearing by that state’s oath.
The only mention of the word “oath” in the Articles is in Article IX. Under the Articles, Congress acted as the final appeals court. Cases could be appealed from the bottom (local jurisdiction) all the way to the top. The representatives of the states participating in the final appeal had to swear an oath given by a judge in the state where the case is tried.
This is reminiscent of the system Jethro described to Moses:
Moreover, look for able men from all the people, men who fear God, who are trustworthy and hate a bribe, and place such men over the people as chiefs of thousands, of hundreds, of fifties,and of tens. And let them judge the people at all times. Every great matter they shall bring to you, but any small matter they shall decide themselves. So it will be easier for you,and they will bear the burden with you. (Ex. 18:21-22)
WHAT WE’VE LOST
So, to put it in plain English: to serve in the Federal government, you had to be appointed by a state government. But to get through the state government, you had to swear a loyalty oath prescribed by that individual state.
Let’s look at a piece of the oath that Delaware required of “Every person who shall be chosen a member of either house, or appointed to any office or place of trust”:
“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.”
To be appointed to national government as a representative of Delaware under the Articles of Confederation, a state citizen had to profess faith in the Triune God of Christianity and acknowledge the divine inspiration of Scripture.
If you were an atheist, this meant the only way you could serve was by lying. If you were a Muslim, you could not serve in state or national government, except by lying.
The Constitution changed this. Notice again this key phrase from Article VI: “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Not only that, but now the States had to revise their constitutions to support the federal Constitution. This is the way it is today.
What group of people do you think this very slight alteration benefited? What group of people, who had been locked out of national government before, could now safely make it their career?
Deists. Unbelievers. Atheists.
NEW GODS, OLD GOD
The Constitutional Convention of 1787 was a major coup. It was a new covenant, designed to replace an old one.
The covenantal oath is sworn to, and enforced, by the maker of the covenant. Prior to the Constitutional Convention, this was always understood to be God. The Framers, therefore, had to invent a new god to whom this oath would be sworn, and who would become its enforcer. That replacement god is found in the Preamble:
“We the people.”
That’s a big shift from the Constitution of Vermont, which in 1777 required its officers to swear its oath to a different God:
“I ______ ________ do solemnly swear, by the ever living God, (or, I do solemnly affirm in the presence of Almighty God) that as a member of this assembly, I will not…”
For more information on this topic, and for the references from the state constitutions extracted here, click here (and go to pages 84-85).