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January 16, 2005

Clarence Thomas, God, and the Constitution

There is a report that Justice Clarence Thomas told a new Justice of the Alabama Supreme Court that "a judge should be evaluated by whether he faithfully upholds his oath to God, not to the people, to the state or to the Constitution."  (Hat tip: Ignatz, via Atrios.)

If this is true, and if it is an accurate reflection of the way Thomas sees his job -- and those are both big ifs (see update below) -- it's very worrisome.  Article VI of the U.S. Constitution says that all federal and state judicial officers "shall be bound by Oath or Affirmation, to support this Constitution."  It says nothing about taking an oath to God -- quite the contrary, it says that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."  In fact, the only oath whose text is set forth in the Constitution -- the oath that the President must take -- is, in full, as follows:

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.

Notice that there's not even a "so help me God" there?  George Washington added those four words on his own, and most Presidents since have used them as well, but they're not in the Constitution.

So the Constitution itself is pretty clear on this: if you're going to hold office under the Constitution of the United States, your duty must be to that Constitution, first, last, and always.  The Constitution doesn't care whether or not you believe in God (an atheist who will support the Constitution is fully qualified to sit as a judge, and some famous judges are indeed atheists), or whether or not you intend to devote your life to carrying out God's will.  But if you believe that your role as an instrument of God's will might at times conflict with your duty to support the Constitution, and if in the event of such a conflict you would choose God's will over the Constitution, then you should not sit as a judge, because you are unable to carry out your oath of office.

This is why Thomas's alleged comment is so problematic: it sets up the possibility of a judge's duty to God conflicting with his duty "to the people, to the state or to the Constitution," and it seems to conclude that the correct choice for the judge to make in the event of such a conflict is to go with the duty to God.  That seems inconsistent with the oath of office that every federal and state judge must take.  So did Thomas really say what the news report says he said?  And if he said it, did he mean it the way it sounds, or was he just making an offhand comment that could have been interpreted differently?  I have emailed the reporter and I hope that he can provide some additional information.

IMPORTANT UPDATE: Justice Parker's prepared remarks at his investiture, in which he relates Justice Thomas's comments, are here, and you can listen to Parker's actual speech here.  My transcription of the relevant portion of Parker's recorded speech (at about 3:30 of the tape) is as follows:

Just moments before I placed my hand on the Holy Scripture, Justice Thomas soberly addressed me and those in attendance.  He admonished us to remember that the worth of a justice should be evaluated by one thing, and by one thing alone: whether or not he is faithful to uphold his oath - an oath which as Justice Thomas pointed out is not to the people; it's not to the state; it's not even to the Constitution, which is sworn to be supported, but it is an oath which is to God Himself.

Interestingly, the clause "which is sworn to be supported" does not appear in the prepared remarks as reprinted on Parker's website -- apparently Parker ad-libbed it in his speech. 

We do not know, of course, whether Justice Parker's recollection of Thomas's remarks is accurate (although he sounds pretty confident in his speech).  If it is, it seems that (1) Thomas's remarks were not offhand conversation, but rather were delivered to an audience; and (2) his remarks were quite specific about the nature of a judge's duties and to whom the judge's ultimate obligation is owed.  We report, you decide.

FURTHER UPDATE: Upon reflection and some thoughtful comments from colleagues, I agree that a reasonable interpretation of Justice Thomas's actual remarks (as reported by Justice Parker and transcribed above) is that the oath to support the Constitution is an oath sworn before God, and is therefore especially important.  If Thomas indeed said that a judge's oath is not an oath "to the Constitution," that was perhaps a poor choice of words -- to me, asking for God's assistance ("so help me God") in carrying out the secular duty of supporting the Constitution is not the same as swearing an oath "to God Himself."  Nonetheless, the words are both second-hand and sufficiently ambiguous that Thomas is entitled to the benefit of the doubt.

Posted by David at 11:53 PM in Law and Lawyers | Permalink


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I don't see why it is problematic that Justice Thomas thinks that what really matters is whether a judge upholds his or her oath to God. Justice Thomas swore an oath to God to uphold the Constitution. His comment suggests that he takes that oath very seriously precisely because he swore to God that he would faithfully uphold the Constitution. If he is faithful to God then he will defend and uphold the Constitution and that should make the People very happy indeed.

Justice Thomas is perhaps the most thoughtful member of the Court and he also goes to the wall to try and enforce the written Constitution, not some evolving personal code of Justice. He has served with great honor and integrity.

Posted by: Prof. Rick Duncan | Jan 17, 2005 12:01:43 PM

I also don't see the scandal here. Whatever Justice Thomas told Justice Parker, Parker was pointing out that Justice Thomas merely believes an oath of office is sworn before God. Almost everyone who swears such an oath would probably agree.

Posted by: David Illingworth II | Jan 17, 2005 5:15:43 PM

My unscholarly view is that Justice Thomas is a great and courageous man, and, most of all, a pious man of great depth.

I hope he becomes Chief Justice.

Posted by: Navy Davy | Jan 17, 2005 7:31:02 PM

Indeed, an oath is by definition to God, viz. "A solemn or formal declaration invoking God (or a god, or other object of reverence) as witness to the truth of a statement, or to the binding nature of a promise or undertaking" (OED). Hence the allowance since 1789 to make an "oath (or affirmation)," an affirmation being "A formal and solemn declaration, having the same weight and invested with the same responsibilities as an oath, by persons who conscientiously decline taking an oath" (OED). At the founding, that meant Quakers. In other words, "so help me God" is fine, but redundant. Like it or not, Justice Thomas's characterization of a Justice's duty is quite accurate.

Posted by: Brian | Jan 17, 2005 9:57:28 PM

Now, let's not get carried away. I said I'm willing to give Thomas the benefit of the doubt, not that everything he said is A-OK. And it bears mention that Tom Parker, the new Alabama Justice that Thomas swore in after making his comments, is actually a pretty scary character, a Roy Moore ("Ten Commandments judge") protege with well-established ties to white supremacist groups. Even the very conservative Thomas boosters at Southern Appeal call Parker a "wacko" and criticize Justice Thomas for agreeing to administer the oath of office to him. (Thanks to ACSBlog for these links.)

Posted by: David | Jan 17, 2005 10:51:45 PM

I agree, let's not get carried away with throwing roses in Thomas's path. (The "most thoughtful member of the Court?" Please.)

IF he meant to remind the person taking the oath that they were swearing to God to uphold the Constitution and telling them that was a very important thing, I'd be a tad uncomfortable on church-state separation grounds, but as it was apparently a personal statement, I'd let it pass.

IF on the other hand he was saying that their duty to God overrides their duty to the Constitution, he is unfit to be on the bench.

Someone should just ask Thomas what he meant.

Footnote for Brian: "So help me God" obviously is not redundant since by the very definition you quote an oath can invoke some "other object of reverence" rather than God or "a god." The difference you cite is not between an oath and an affirmation but between swearing (on a Bible) and affirming (without one).

Posted by: LarryE | Jan 18, 2005 2:20:16 AM

I don't see how the character of Judge Parker (or Justice Thomas, for that matter) is relevant to the accurate characterization of what precisely a Justice does when swearing an oath of office. Nor did I intend to express any opinion on that count. I note only that Justice Thomas correctly stated that a Justice who swears an oath swears it to God, and by extension, a Justice who makes an affirmation does not swear an oath to God.

Posted by: Brian | Jan 18, 2005 2:21:53 AM

Regardless of how they swear their oath, it all boils down to the fact that you can serve your "god", or you can "preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic", but you can't always do both at the same time. At some point you have to choose your loyalties and decide which one is more important to you. As for me and my house, I will serve the Constitution.

Posted by: NoSpam | Jan 23, 2005 7:53:55 AM

too long!!!!!!!!!!!!!!!!!!

Posted by: Olly Tbuggar | Feb 1, 2005 8:47:29 AM

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