PrintJanuary 4, 2007
The Congressional Oath of Office: A Quandary
Keith Ellison's plan to take the Congressional oath of office with his hand on the Quran has triggered one of those disputes that seem to generate more heat than light. In such cases, it is usually best to defer discussion until one has first defined the problem-going back to its origins, looking for any inherent inconsistencies, and then working forward toward a consideration of all future ramifications. That is what I have tried to do here.
Origins
Our troubles with the congressional oath of office, or with any oath in American public life, began with Article VI, clause 3 of the. Constitution:
"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." [emphasis added]
This is pretty straightforward and the oath for the first Congress of 1789 was simply
"I do solemnly swear (or affirm) that I will support the Constitution of the United States."
The option of affirming was probably for Quakers, who object on religious grounds to being forced to swear.
But the seeds of inconsistency were latent in the unconscious but universal assumption that, except for a few ostracized atheists, all decent men believed in a Judeo-Christian God, and in the third of his ten commandments, and would therefore be somewhat hesitant about swearing falsely. I therefore suspect that the customs of taking that oath with one's hand on a Bible and of adding the phrase "so help me God" (as George Washington did in taking the presidential oath in 1789) crept in as harmless and universally accepted embellishments. At the time, no one would have dared to object to these gestures as violations of the phrase in boldface above.
In short, the founders of our country and the writers of our Constitution rather naively assumed that a publicly expressed belief in a Judeo-Christian God was and would forever remain an intrinsic characteristic of Western civilization. They did not feel that this assumption of a 'universal religious belief' constituted an "establishment of religion" or a "religious test" or in any way violated the Constitution. This position is substantiated by the mention of God in our currency, the institution of Congressional and military chaplains, and the invocation of prayers at most Federal ceremonies.
Moreover, although to some degree aware that religions such as Islam did not always accept peaceful coexistence with other religions or obedience to non-religious civil law, they never dreamed that the American population or U.S. Congress would include a significant number of believers in such religions.
I am not defending these viewpoints; I am merely pointing out that they unintentionally created ambiguities that have never been properly resolved.
Changing the oath
In the intervening two centuries, the only factor that caused substantial modification of the Congressional oath of office was the threat of treason. The outbreak of the Civil War raised the issue of possible pro-South sympathy or even treason by U.S. officials. Accordingly, in 1861 and 1862, Congress hastily enacted legislation requiring "every person elected or appointed to any office" to swear or affirm that they had never previously engaged in criminal or disloyal conduct. This "Ironclad test oath" was included in the Congressional oath of office in 1864 and was modified several times after the war to include former Confederates. Some of these provisions were relaxed and others retained until, in 1884, the oath attained its present form:
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."
This is the oath that will be taken by the entire House of Representatives on January 4.
A second issue, which did not overtly affect the oath but rather the right of some citizens to take it, was the question of religious treason, in particular by Catholics. During the nineteenth century, partly as an consequence of prior vilification and persecution in England, Catholics in America were often accused of being subjects of a foreign prince (i.e. the pope) and therefore ineligible for public office. But despite the persistent efforts of the Know-Nothing party and Masonic groups, Catholics were never officially excluded from Congress or made to take a special oath. However, this prejudice did serve to keep many Catholics from public office, most conspicuously in the presidential election of 1928.
The question of the loyalty of American Catholics was largely washed away by the blood of Catholic soldiers during two centuries of U.S. wars, some of them against Catholic countries. However, all vestiges of the issue were (or should have been) obliterated by the Lateran Treaty of 1929, whereby the political aspect of the Catholic Church was confined to a tiny principality that is very unlikely to ever go to war against us. Nonetheless anti-Catholicism is still a behind-the-scenes issue in American politics and even in Congress.
Similarly, since 1949, American Jews have often been accused of a conflict between loyalty to America and to Israel, both in obviously bigoted websites and even in the mainstream media.
Modern issues
One factor that may in future affect the Congressional oath is the war against religion during the past sixty years. Starting with Justice Hugo Black's farfetched citation of a private letter of Thomas Jefferson as a precedent for law, anti-religious groups such as the ACLU have been trying to build their famous "wall of separation" between church and state. This has been used as a justification for attempting to exclude any trace of public religion, such as displays of Christmas cribs, the ten commandments, or even a cross, on public land. In sharp contrast to the implicit 'universal religion' belief 'of our founding fathers, the "wall" enthusiasts seek to abolish the use of a Bible or the "so help me God" phrase in the Congressional oath.
Another factor makeing a clear conception of the meaning and validity of the Congressional oath more urgent, is the increasingly diverse religious structure of the American people. A steadily growing percentage of Americans and American congressmen profess no religion at all. Some of these are avowed atheists, to whom the Bible is a questionable piece of literature to which they feel no reverence or allegiance whatever. Asking them to swear "so help me God" on a Bible would be fatuous; having them agree to do so would be hypocrisy. The same is true for Buddhists-and for Muslims, who profess to regard the Judeo-Christian Bible as at best a document superseded by the Quran.
Conclusion
At least one issue is clear: Mr. Ellison has a perfect right to refuse to swear on the Bible. It is not part of our law but merely a custom, one which we can hardly expect a Muslim or atheist to follow. Similarly, like any Quaker, he would seem to have the right to decline to swear and to 'affirm' instead.
However, several other questions remain. They derive from the fact that, for the first time in U.S. history, we have within our citizenry adherents of a religion which, at least in the eyes of some fraction of its believers, professes unremitting warfare against the United States as one of its religious goals. This raises the question of whether Mr. Ellison has a right to swear or affirm at all-whether, as a Muslim, he might feel compelled to betray any oath to the U. S. government if he perceives it to conflict with the goals of Islam.
This would seem to depend on what branch of Islam Mr. Ellison belongs to. Fundamentalist Muslims, citing passages in the Quran and Haditha, believe that Islam must be at war with all other religions and non-religious governments until it has brought the whole world under its sway. They also believe that Muslims are subject to no civil law other than Islamic Sharia. On the other hand, other Muslims feel no such conflict with U.S. laws, largely because they ignore certain parts of Islamic doctrine which they find uncomfortable.
But if Mr. Ellison is a fundamentalist, how can he swear to "support and defend the Constitution of the United States (part of the dar al Harb or "House of War") against all enemies, foreign and domestic"? To resolve this question, I think that Mr. Ellison should be persuaded (though he cannot be required) to publicly declare the exact nature of his Islamic faith and whether or not it would conflict with his obligation, for example, to refrain from revealing U.S. secrets to our Islamic enemies. Before cries of outrage are raised that someone even dares raise this issue, consider that there are conspicuous precedents for public inquiry about an officeholder's potential religious-civic conflicts. Think of the questions that were recently asked of Catholic Supreme court nominees by liberal Democratic senators.
This raises another question: would Mr. Ellison feel bound by any kind of oath or disclosure? The concept of taqiyya (lying to infidels) has been a source of dispute between Sunnites and Shiites for centuries. But as far as I am aware, neither faction absolutely abjures it or admits that an oath to infidels is absolutely binding. Mr. Ellison should be allowed to swear on the Quran after all. One can only hope that his oath sworn on a Quran will be all the more binding than one not thus sanctified.
