THE JUDICIAL OATH: I DO SOLEMNLY SWEAR AND AFFIRM...; Or, How Wrong Can It Get?
Gregg Zegarelli Esq.
Managing Shareholder at Technology & Entrepreneurial Ventures Law Group, PC
I was recently visiting a law school in my travails, and I noticed the above plaque prominently displayed inside the front doors.
I don't get offended by much, but I admit that I was offended by this plaque. Not just offended, but deeply offended. Oh, not in an angry way in the manner that everyone seems to be offended at everything these days, but offended in a deeply politico-philosophical way, if there is a thing—and I am rather sure that there is.
Being induced to read this plaque—as prominently and proudly displayed in this esteemed School of American Jurisprudence (Law School)—I could not get past the first line; to wit: "I do solemnly swear and affirm..."
Stop. Stop right there, I thought. Something is wrong!
I stopped, and being the law-abiding dutiful attorney (if not patriot), in much disbelief, I did exactly what every law-abiding dutiful attorney (if not patriot) would do; to wit: I looked up the citation on my telephone, 28 U.S.C. Sect. 453.
Lo and behold, my inclinations were correct! Here is the actual language in the United States Code:
“I, ______ _______, do solemnly swear (or affirm) that I will administer justice without respect to persons...”
At least for any attorney reading this post (or any minimally-trained wordsmith) [1] , I presume you will immediately see the issue too.
No, it's not the poorly-drafted and ambiguously clumsy "without respect to persons" subtext, but, rather, it is the operationally essential "swear and affirm" versus "swear or affirm" language. To lawyers and other wordsmiths, those little words—particularly conjunctions versus disjunctions—make a huge difference in effect, and of course they should make a huge difference in effect. [2 , 3 , 4]
Let us assume for the moment that I am a patriotic, law-abiding, atheist, (which I am entitled to be in America) and perhaps I want to be a federal judge. I would fundamentally detest and hate that I am required (or that it is even suggested within the establishment jurisprudential framework) to "swear" an oath to any god or deity, be it Jesus, Odin, Yahweh, or Zeus. [5]
I may simply choose secularly to affirm; thus, the "or." This is my Constitutional Guarantee. And we lawyers certainly, certainly, know that the entire deal of the American jurisprudential infrastructure does not require "religious tests," being the crazy irrational horror of European heritage that was required pre-Constitution, and continued in the several states until the 14th Amendment (post Civil War).
Article VI. 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.
My gosh, I thought. That plaque is a bust of a prominently-displayed message, particularly in a law school indoctrinating young lawyer minds. [6 , 7 , 8]
So, again, I did what every law-abiding dutiful lawyer (if not patriot) who noticed this plaque would do. I went to the Administrative Office and "complained" and asked to speak with the Dean.
I understand printing and oversights happen and I wanted to bring it to the attention to the Dean, sort of to avoid catastrophic embarrassment for the law school. No problem, the person with whom I spoke acknowledged it and said it would be handled. All well.
So far, so good. But, wait! Then I noticed yet another error. "So help me God." at the end (being the phrase claimed to be freely volunteered at the end of the oath taken by George Washington). I just figured the law school would catch that error too when they vetted the issue.
But, uh oh, I looked at the citation again, 28 U.S.C. Sect. 453. Here is the complete text:
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, _______ _______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _______ under the Constitution and laws of the United States. So help me God.”
[And, again, apart from the poor drafting on the "without respect" clause, I would digress to mention the masculine form "his" that certainly should be updated to satisfy social evolution.]
I could not believe it! And, for "judges" in the United States, no less. What? A judge can be an atheist, affirm as of right, but "shall" say "So help me God"? Talk about a back-door religious test!
The law itself is an unbelievable and deeply offensive construct for American Jurisprudence. I would be happy to take up a lawsuit, pro bono with pleasure, for any attorney seeking admission with standing on the question. I confess that I am embarrassed for myself and regret that I did not see it when I was a young attorney and not then capable enough to see it for myself.
Yes, I am offended. Deeply offended. You know, in a politico-philosophical way. The abortion of a nation conceived in liberty. Irony, hypocrisy, or something medievally horrific like that. [8 , 9 , 10 , 11 , 12 , 13] But not by the plaque at this point. I am offended by 28 USC 453 , as I absolutely should be, as a law-abiding and dutiful attorney (if not patriot) in this profoundly blessed country, The United States of America.
So says the beautiful patriotic Founding Father,?James Madison , the "Father of the U.S.?Constitution":
It is proper to take alarm at the first experiment on our liberties.?We hold this prudent jealousy to be the first duty of citizens and one of the noblest characteristics of the late Revolution.
The freemen of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents.?...?We revere this lesson too much ...?to forget it.
[14] And, the no less beautiful patriotic fellow-Virginian Thomas Jefferson, the "Father of the Declaration of Independence":
But it does me no injury for my neighbor to say there are twenty gods, or no god.?It neither picks my pocket nor breaks my leg.
Reason and experiment have been indulged, and error has fled before them.?It is error alone which needs the support of government.?Truth can stand by itself. Subject opinion to coercion: whom will you make your inquisitors??Fallible men; men governed by bad passions, by private as well as public reasons.?And why subject it to coercion?? To produce uniformity.??
[15 , 16 , 17] So, next time you are in a law school, please look for this plaque. If you see it...well, you know...
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Yes, indeed, I don't get offended by much, but I admit that I was offended by that plaque. Not just offended, but deeply offended. Oh, not in an angry way in the manner that everyone seems to be offended at everything these days.
But offended in a deeply politico-philosophical way, if there is a thing. And I am rather sure that there is.
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*?Gregg Zegarelli , Esq., earned both his Bachelor of Arts Degree and his Juris Doctorate from Duquesne University, Pittsburgh, Pennsylvania. His dual major areas of study were History from the College of Liberal Arts and Accounting from the Business School (qualified to sit for the CPA examination), with dual minors in Philosophy and Political Science. He has enjoyed Adjunct Professorships in the Duquesne University Graduate Leadership Master Degree Program (The Leader as Entrepreneur; Developing Leadership Character Through Adversity) and the University of Pittsburgh Law School (The Anatomy of a Deal). He is admitted to various courts throughout the United States of America.
Gregg Zegarelli , Esq.,?is Managing Shareholder of?Technology & Entrepreneurial Ventures Law Group, PC .?Gregg is nationally rated as "superb" and has more than 35 years of experience working with entrepreneurs and companies of all sizes, including startups,?INC. 500, and publicly traded companies.?He is author of?One: The Unified Gospel of Jesus ,?and?The Business of Aesop ? article series, and co-author with his father,?Arnold Zegarelli , of?The Essential Aesop: For Business, Managers, Writers and Professional Speakers .?Gregg is a frequent lecturer, speaker and faculty for a variety of educational and other institutions.?
The expression set forth in this article are solely the author's and are not endorsed, condoned or supported by any affiliation of the author.
Copyright ? 2022 by?Gregg Zegarelli, Esq. ?Gregg can be contacted through?LinkedIn .
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2 年Maybe a typo from an overzealous 1st year law student