An oath, whether taken by a court witness or a public
official, inherently signified a belief in God. There are abundant examples
that this was not just an eighteenth century phenomenon. For instance, an 1834
legal guide for Tennessee judges declared: Judges, justices of the peace, and
all other persons who are or shall be empowered to administer oaths, shall
require the party to be sworn to lay his hand upon the holy evangelists of
Almighty God in token of his engagement to speak the truth as he hopes to be
saved in the way and method of salvation pointed out in that blessed volume; and
in further token that if he should swerve from the truth, he may be justly
deprived of all the blessings of the gospels and be made liable to that
vengeance which he has imprecated on his own head; and after repeating the
words, ‘So help me God,’ shall kiss the holy gospels as a scale of confirmation
to said engagement.
There were, however, some groups which held religious
convictions for not conforming to this method of oath taking the Quakers, for
example. Tolerant of such groups, the legal guide provided this recourse: In
all cases where the person to be sworn shall be conscientiously scrupulous in
taking a book oath then the party shall stand with his right hand lifted up
towards Heaven in token of his solemn appeal to the Supreme God whose dwellings
are in the highest Heavens, and also in token that if he should swerve from the
truth he would draw down the vengeance of Heaven upon his head with these
words, viz: “ ‘You solemnly appeal to God, as a witness of truth and avenger of
falsehood, as you shall answer for the same at the great day of judgment, when
the secrets of all hearts shall be made known, that,’ &c.
The evidence is clear: the Founders, and even legal
authorities for generations afterwards, viewed a belief in God as an inherent
part of taking an oath. The Constitution required an oath of office, but
prohibited a religious test; an oath, however, presupposed a belief in God;
therefore, only under the most extreme and absurd application of Article VI
could a belief in God have been considered a religious test. Consequently, when
the Torcaso Court struck down the requirement of belief in God to hold office,
it essentially struck down the requirement that public officials take an oath
to uphold the Constitution.
