Jason DavisApr 26, 2018

Funpost! I do solemnly swear

Welcome back for another weekly Funpost!

Jim Bridenstine became NASA's thirteenth administrator Monday, after reciting the oath of office administered by Vice President Mike Pence. It's not like I regularly watch these ceremonies, but I could have solemnly sworn Bridenstine's oath was different than the standard presidential oath. So in the storied tradition of the Funpost!, I donned my powdered wig and strolled to the library for an afternoon of constitutional law research.

Na, I Googled it!

The oath of office for the president is specified word-for-word in Article II of the U.S. Constitution. Here's the relevant excerpt:

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."

Hmm, at some point, we should really go back and update all the "he" pronouns in America's founding documents. I suggest we call it the Control-F Inclusivity Act. 

What's the deal with the "(or affirm)" part? That's for people who take the Bible literally. There's a passage from the Sermon on the Mount saying you shouldn't SWEAR to tell the truth because you're ALWAYS telling the truth. So if that's your belief, you can affirm, but apparently no one ever does that.

The Article II oath only applies to the president. What about everyone else in government? Article VI says they have to take an oath, too:

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 […]

Executive officers! That covers Bridenstine; he's a presidential appointee. But what's he supposed to say? For that, we turn to U.S. Code Title 5, Section 3331:

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: "I, AB, 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."

I was right! This is indeed different from the presidential oath. Did Pence and Bridenstine get it right? Let's go to the tape, skipping to 12:00 to find out:

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Sounds like they nailed it, with one exception: both Pence and Bridenstine said "upon which I am about to enter," but the correct phrase is actually "on which I am about to enter. Close enough. I don't think we're going to need a re-do, unlike President Obama's first inauguration, where Chief Justice John Roberts blew it and went off-script.

You may have noticed that the presidential oath does not explicitly include "so help me God." Apparently there is some SPICY HISTORICAL DEBATE on which president first added the phrase. Since the U.S. ostensibly separates church and state, the legal basis for including "so help me God" is that the phrase is optional and comes after the official oath, meaning the Chief Justice could just as easily say "Shall we get lunch?" and the new president could answer, "We shall get lunch."

For non-presidential oaths, "so help me God" is written into the official text. However, from what I can tell there is a loophole allowing you to omit the phrase if you choose to AFFIRM rather than SWEAR. The basis for that dates back to the Judiciary Act of 1789.  

Now, my reading of the Judiciary Act is that the God opt-out is only available to judges and court officers. U.S. Code Title 5, Section 3331 seems to have last been updated in 1966, and is derived from an older version. So if we're looking for bona-fide proof of the God exception, we might need to trace that section back through time, or, you know, consult an ACTUAL expert.

But alas, I must reasonably limit the amount of time I spend on each week's Funpost!, so I'm going to wrap this one up. If you have any questions or topics for a future Funpost!, send me an email at [email protected].

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