Thursday

References on Presidential Oath article

January 20, 2013-
Updates as needed-as of now this is a work in progress

This article is written to extend and provide references for the essay,Presidential Oath of Office-to God or Country.    


Sections are:
Meaning of secularity in President's oath only
Lawsuit Newdow v. Roberts et al-2008
Media Distortions
Wikipedia- to come

Why only the President?

While I have imputed great meaning to the subtle signal by Roberts that the Presidential oath does not contain reference to God, we have also just had the oath taking by the Vice President, as shown here.

This was concluded,  as had been previously for the President, with the prompting of "So help me God," being in the exact same assertive repetition that had been traditional for he President.  Yet, in this case, this is not a breach of the constitution, as the oath for every office but President is by statute.  No one can be required to take such an oath, as the Constitution prohibits any religious test for public office, but only the President is protected against social pressure to adhere to a faith in God by there being a secular prescribed oath.

A search of the Internet showed no discussion of this at the Constitutional convention or the Federalist Papers.  Given the immersion of the inaugural ceremony in prayers and references to God, the slight hint that it is not part of the Presidential oath of office may seem like a firecracker during a military siege. Yet, the symbolism remains of this particular prescribed oath.

Given that surveys show that atheists constitute at least 10% of Americans, perhaps considerably more, combined with the last overt atheist leaving Congress, its fair to say the the universal support of "under God" in the Pledge means that at least 40 of these elected officials are being less than candid. It is exceedingly unlikely that we will have an overt atheist elected to the presidency in the life times of anyone reading this.  Since, like Obama, anyone elected President, no matter what his/her deepest convictions, will present a religious persona, they must continue the tradition of the prayer appended to the constitutional oath.

This makes Roberts actions, as limited as it may be, the most that can be hoped for at this time.  Presidents must get elected, and do so many times before ever getting close to the office.  They must answer to the press and to the people, while a Supreme Court Justice needs to do none of this.  So, it was a person in this position who did what he could to hearken to the original intent of the founders for a secular government.

So, no cheers for secularists, who still must sing with the choir if a political career is chosen.  And speaking for them, we can be thankful that thy no longer need to be quite as complicit in going along with what is a formal secular government that is as of now one that is steeped in prayerful reverence for God Almighty.  
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Lawsuit

This is the original suit of filed 12/30/08, was a broad demand to eliminate the many religious prayers included in the inauguration, article 1 relating to the oath of office.  It was rejected and then appealed to the ninth circuit court of appeals as described below.


This is the text of the appeal decision, that affirmed the district court rejection.  In its entirety it outlines the thrust of Newdow's legal efforts relating to the First Amendment Establishment Clause, that is now in its second decade.  This was an appeal to reverse the ruling of the district court to reject the arguments against inclusion of religious aspects of the inauguration ceremony

Page 9 of the decision describes the limits of courts to act.  The courts are not empowered to do what is "right"

It is a basic constitutional requirement that a dispute before a federal court be “an actual controversy ......This rule assures that “federal courts are presented with disputes they are capable of resolving,”

Mike Newdow is a certified Emergency Room Physician, who studied law to pursue his particular interests that include the subject that he has become known for, encapsulated in the phrase, "separation of church and state." While, as we know, our courts are a central venue for social change, they are always in tension with that other channel, the political system in all its messy complexity.

Newdow became a national figure in 2002 in his attempt to remove, "under God" from the pledge of allegiance, which did get to the Supreme Court where he argued his point.  He has initiated several other suits, including the one focused on here, that have always been unsuccessful.  This was not because they lacked merit, but rather that they were on the wrong side of that other important "separation" that of court and politics.  I use the word politics in its largest sense, that of the chain of values, norms, opinions and demands that reside in the interaction between opinion leaders, including elected officials, and the general public.

Judiciary branches of government, while having absolute power to negate the actions of the executive and legislative branches are aware of the tenuousness of this authority. Historically, in spite of formal constitutional mandates, it is understood that if they go too far, they could lose authority or worse.  This is why eliminating racial segregation was a half century long process of hundreds of cases in the lower courts, finally culminating in Brown. v. Board of Education.  Even after all of this groundwork, the unanimous decision brought a violent reaction across the country with demands for impeachment of the Chief Justice.

In my personal discussion with Mr. Newdow, I made the point that while  components of the inauguration ceremonies do have a religious element, the attempt have the courts enjoin them was unrealistic for the reasons just described.  I noted that only in the oath of office was there a specific breach of the letter of he law, the exact wording of the oath in Article 2, Section 1, including the only option allowed, to substitute "swear" with "affirm."

The ninth circuit decision linked above ruled against the appeal based on specific rules of "standing" and more general rules that place limits on what can be adjudicated.  I will argue below that elements of this decision were factually and logically inaccurate.

pp12 of Decision

Plaintiffs do not claim President Obama’s recitation of“So help me God” at the conclusion of his oath injured them.The President cannot be denied the prerogative of making such a religious reference, they concede, because doing so would abrogate his First Amendment rights.

For sure, if it were otherwise, George Washington could not have begun the tradition by appending “So help me God” to his own oath; Lincoln could not have offered a war-weary nation “malice toward none” and “charity for all [] with firmness in the right as God gives us to see the right”; Kennedy could not
have told us “that here on earth God’s work” must be our own; nor could President Reagan have evoked “the shining city . . .built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace” in his farewell address. Instead, plaintiffs claim they
are injured because “God” was referenced by the Chief Justice and the prayer leaders in the course of the 2009 ceremony.

 That quoted above is the most egregious of casuistry.  It conflates a specific demand that the United States Constitution be adhered to, in this case in the recitation of specific words, never elsewhere defined in the entire document. It then ignores the meaning of  deviation from this single statement defined by such authoritative instructions, treating like other speeches by eminent Presidents, that the appellants have never argued should be proscribed. The appellant and the court agree on first amendment rights of Presidents that are only to be restricted by constitutional limitations, as unquestionably exist for this particular oath--and, parenthetically, none others.

They are also in error in citing the first use of the prayerful four word appendage to George Washington's first inauguration, a fact disputed by historians and thus having no place as a citation in this case. Beyond this factual error is one of law, even if this were factual, the Constitution may only be revised by amendment, not by erosion by continuous error, no matter its provenance.

These references, they argue, might have misled the uninformed to think the imprimatur of the state had been placed on the invocation of the Almighty and contributed to a social stigma against them as atheists. 

This sentence ignored the specific complaint against the addition of the four word prayer in the Oath of Office,  the correction of which is separable from the larger argument against the religious overtones of the inauguration ceremony.  Personally, I have done informal surveys, and almost all responses to my query of the last phrase of the oath of office of the president is, "so help me God."   While the ninth court of appeals ignored this, I believe that Chief Justice John Roberts did not.

We now come to the most relevant paragraph of this appeals court decision:

We will assume, without holding, that plaintiffs’ claimed injury is an injury in fact and that it can be fairly traced to the conduct of the defendants. It is in the third element, redressability, where we find two problems with plaintiffs’ case for standing.

The court thus acknowledges that plaintiff has, in fact, been injured by the officials conducting the oath of office, yet it says that they could do nothing to redress this.  Without personal expertise in constitutional law, I cannot challenge this conclusion.

What has happened in response to the specific demand that the oath of office be the exact thirty five words of the constitution, without any reference to the establishment clause at all, is that Justice Roberts as attempted to redress this claim that the existing administration of the oath,  misled the uninformed to think the imprimatur of the state had been placed on the invocation of the Almighty. 

There can be no doubt, confirmed by surveys, that the traditional taking of the oath of office by identical words of prompter and oath taker, often preceded by, "Are you ready to take the constitutional oath of office?" did mislead the public.
It matters not that the deviation was in a prayer to God, or words expressing an ideal of social justice, or of maintaining individual liberty.  Any deviation from the specific words do not complete the process of installation of a President of the United States.  The oath to defend and protect the Constitution, certainly includes protecting its specific instructions, which requires no standing to enforce at all, or else bestows standing on every citizen of this country.

Justice Roberts, by asking the oath taker whether he desires to conclude with "so help me God" has addressed this appropriately, but only if it becomes public knowledge, which it has not in the four years since he first initiated it in 2009. His prompting has affirmed the constitutional rule of law, and the founders intent that this nation, under the Constitution, be one of secular values that include the protection of religious expression.
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Media Distortions

A search of the Internet shows no analysis of Robert's modification.  There were isolated mentions after the 2008 oaths of office of the last phase being a question, but no reason ever given for it.  My personal attempt was mostly limited to political web sites and Wikipedia, which will be described in a separate section.

Today there is this article on Huffington Post,,that while covering the same issue, has errors and ignores the specific issue covered here.  Among the errors are this,

"Although the phrase was used in federal courtrooms since 1789, the first proof it was used in a presidential oath of office came with Chester Arthur's inauguration in September 1881. Every president since, including Obama, has followed suit." 

Chester Arthur's did use the four words, but not as part of the oath of office, something I discovered from the archives of the New York Times-as I describe in the Wikipedia section below.  There were no recordings of the exact words of the oath before such technology of the twentieth century, as newspapers simply reported the oath was administered, without further elaboration.  There is simply no way of knowing whether or not these words were used in the absence of such reportage.

The Huffington article is mentioned not for specific criticism, but  that it reflects the absence of analysis of this breach of constitutional law in legal or mass publications.

The actual history of the oath, from the earliest recording of Franklin Roosevelt, shows that none of them would have given any hint that the final four words were not part of the constitutional oath.   The one exception which is included in this video of all extant oaths, is that administered by Chief Justice Warren Berger to Ronald Reagan in 1981. He did change to the second person, "so help you God." But unlike Roberts there was no change of inflection, but a continuation of a statement. 

In addition there is no indication that this was an intentional response to these words not being part of the constitution, as he did not do this change in grammatical person when he administered the oath to Jimmy Carter previously.
For anyone who cares to listen, Chief Justice John G. Roberts, has gone as far as can be expected to show the world that our Presidential oath of office is secular.


------What follows is a draft, that is being left open as it is being revised-----

Introduction to editor of local newspaper of OpEd submission:

Maybe a billion people will view the Presidential Oath of Office either live or recorded, yet only you and a few others will be aware of the slight change made by the Chief Justice in administering this oath during the last inauguration--and why it matters. It will take about two minutes for you to listen to the audio of this oath taken after the miscues on the Capitol steps the day before. The simple question for you is whether the last four words, "so help me God" were posed as a question. You will also notice that what went before Roberts used the first person, to be repeated exactly by the President; and then he changed the final phrase to a question.

You can google or research the issue, but the reason, and even the fact of this change between the two parts, the first thirty five words and the last four are not to be found anywhere. They were not accidents, as they were repeated twice by Justice Roberts.
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Wikipedia

This is from the article Presidential Oath of Office

A Federal law suit filed in the District of Columbia by Michael Newdow on December 30, 2008 contended the second, current form of administration, where both the Chief Justice and the President articulate the oath, appending "So Help Me God", to be a breach of the constitutional instructions. The suit distinguishes between the words spoken by the administrator, which must conform to the exact 35 words of the constitution, and the President, who has a right to add a personal prayer, such as "So Help Me God."[34]

 Chief Justice Roberts' reply was that his "prompting" for these four extra-constitutional words were to be recited "after" the oath of office, and not as a part of the oath as claimed in the suit.[35]



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