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So Help Me God Barry University School of Law Digital Commons @ Barry Law Faculty Scholarship 2012 Kiss the Book...You're President...: "So Help Me God" and Kissing the Book in the Presidential Oath of Office Frederick B. Jonassen Barry University Follow this and additional works at: https://lawpublications.barry.edu/facultyscholarship Part of the Constitutional Law Commons, and the First Amendment Commons Recommended Citation Frederick B. Jonassen, Kiss the Book...You're President...: "So Help Me God" and Kissing the Book in the Presidential Oath of Office, 20 Wm. & Mary Bill Rts. J. 853 (2012) This Article is brought to you for free and open access by Digital Commons @ Barry Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons @ Barry Law. KISS THE BOOK . YOU’RE PRESIDENT . : “SO HELP ME GOD” AND KISSING THE BOOK IN THE PRESIDENTIAL OATH OF OFFICE Frederick B. Jonassen* INTRODUCTION .................................................854 I. THE LEGAL SIGNIFICANCE OF “SO HELP ME GOD” AS HISTORICAL PRECEDENT IN THE PRESIDENT’S INAUGURATION ...................859 A. Washington’s “So Help Me God” in the Supreme Court ..........861 B. Newdow v. Roberts.......................................864 II. THE CASE AGAINST “SO HELP ME GOD”..........................870 A. The Washington Irving Recollection ..........................872 B. The Freeman Source ......................................874 C. Two Conjectural Arguments for “So Help Me God” Discredited ...879 D. One More Conjecture .....................................881 III. THE EVIDENCE THAT WASHINGTON KISSED THE BIBLE ..............885 A. First-Hand Accounts of the Biblical Kiss ......................885 B. The Subsequent Tradition ..................................890 1. Andrew Johnson......................................892 2. Ulysses S. Grant......................................892 3. Rutherford B. Hayes...................................893 4. James A. Garfield.....................................893 5. Chester A. Arthur.....................................893 6. Grover Cleveland .....................................894 7. Benjamin Harrison....................................894 8. William McKinley ....................................894 9. Theodore Roosevelt ...................................895 10. William Howard Taft ..................................895 11.Woodrow Wilson .....................................896 12.Warren G. Harding....................................896 13.Calvin Coolidge ......................................896 14. Herbert Hoover and Harry Truman ........................897 IV. THE MEANING OF THE OATH ...................................898 A. The Ancient History of the Oath .............................899 B. The Modern History of the Oath .............................906 C. The Credibility of the Oath and the Oath Taker .................911 * Associate Professor of Law, Barry University, Dwayne O. Andreas School of Law. The author thanks his research assistant, Aboubakr Maaroufi, for his careful work and contributions to this project, and Dean Leticia M. Diaz for her generous support. 853 854 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 20:853 V. THE MEANING OF KISSING THE BOOK ............................918 A. The Corporal Oath .......................................918 B. The Loyalty Oath and Kissing the Book .......................922 C. Three Particular Influences .................................923 1. The British Coronation Ceremony ........................923 2. New York State Law...................................925 3. Freemasonry.........................................926 D. Two Peculiar Features of Bible Kissing .......................927 1. The Sortes Biblicae ....................................927 2. Thumb-Kissing.......................................930 E. The Meaning of Kissing the Bible ............................932 VI. THE CONSTITUTIONALITY OF PROMPTING THE PRESIDENT WITH “SO HELP ME GOD” ..........................................933 A. The Kissing of the Book/“So help me God” Tradition and Marsh...933 B. The Kissing of the Book/“So help me God” Tradition and the Establishment Clause Tests .................................936 1. The Oath and Affirmation Choice in the Constitution .........936 2. The Establishment Clause Tests..........................940 a. The Coercion Test .................................941 b. The Lemon Test ...................................942 c. The Endorsement Test ..............................943 C. Some Other Religious Precedents of the First Inauguration ........946 CONCLUSION ..................................................951 INTRODUCTION On the afternoon of September 13, 2001, an unmarked police cruiser was driving through the empty streets of lower Manhattan on its way to Fraunces Tavern, the his- toric restaurant where, on December 4, 1783, George Washington bid farewell to his officers about a month after relinquishing command of the Continental Army that won the Revolutionary War.1 All of lower Manhattan, including Pearl Street where the old tavern still operates, had been closed to the public in the immediate aftermath of the 9/11 attack on the World Trade Center.2 The Masons of the oldest Masonic Lodge in 1 For a first-person account of Washington’s farewell to his officers, see BENJAMIN TALLMADGE, MEMOIR OF COLONEL BENJAMIN TALLMADGE 63–64 (1858), quoted by FRAUNCES TAVERN MUSEUM, http://www.frauncestavernmuseum.org/mus_farewell.html (last visited Mar. 15, 2012). During the Revolutionary War, Colonel Tallmadge was Washington’s chief intelligence officer and may have been responsible for discovering the betrayal of Benedict Arnold. See ALEXANDER ROSE, WASHINGTON’S SPIES: THE STORY OF AMERICA’S FIRST SPY RING passim (2006). Fraunces Tavern is located at 54 Pearl Street, New York, NY 10004. It was established in 1762, and operates to this day. FRAUNCES TAVERN, http://www.fraunces tavern.com (last visited Mar. 15, 2012). 2 Leslie Eaton, In Wounded Financial Center, Trying to Head Off Defections, N.Y. TIMES, Sept. 13, 2001, at A23 (referring to lower Manhattan: “With the area closed off, and 2012] KISS THE BOOK . YOU'RE PRESIDENT . 855 New York State, St. John’s Lodge, founded in 1757, were concerned about one of their most prized possessions: a decorative Bible that was printed in 1767 and had been on display in Fraunces Tavern the day the Twin Towers fell.3 No one had been able to check on the book for two days after the attack. There was a fear that gas leaks in the area could ignite a fire that would damage or destroy the Bible, and thus the Masons asked the Port Authority Police of New York and New Jersey to help them retrieve it, and received a police escort.4 As the police cruiser entered lower Manhattan, Thomas Savini, the Director of the Chancellor Robert R. Livingston Masonic Library in New York City, was shocked and unnerved by the absence of life on the usually chaotic streets. “[T]he air was filled with dust and smoke, and it looked like dusk, even though it was mid afternoon . .”5 The Tavern was covered with rubble and debris, but the building itself appeared to be undamaged.6 Anxiously, Mr. Savini entered and approached the display case where the Bible was housed. He found the precious book unharmed, and carefully wrapped it in the blanket he brought with him to protect the old tome.7 Had this Bible been destroyed or lost as a result of the 9/11 attack, Osama Bin Laden might have claimed yet another cause for celebrating the success of the mission, aside from the murder of three thousand civilians on American soil and the destruction of a modern landmark that plausibly represented the American, if not Western, com- mercial and economic order.8 This potential source of satisfaction was one that Bin their stores and restaurants dark, owners of the host of small businesses in the area were unable to examine the damage or begin to calculate how the disaster had affected them.”); Lower Manhattan to Stay Closed, N.Y. TIMES, Sept. 12, 2001, at A8 (“Lower Manhattan is expected to remain cut off from the rest of the city today, and schools and stock exchanges will be closed.”); Tom Savini, The Rescue of the George Washington Inaugural Bible, THE N. LIGHT, Nov. 2001, at 6. 3 Savini, supra note 2, at 6. On St. John’s Lodge, see Welcome to St. John’s Lodge No. 1, A.Y.M., ST. JOHN’S LODGE NO. 1, http://stjohns1.org/portal/ (last visited Mar. 15, 2012) (“St. John’s Lodge No. 1 is the oldest operating lodge under the jurisdiction of the Grand Lodge of New York F&AM. Originally warranted in 1757 by the Modern Grand Lodge of England . .”). Further information about the auspices under which St. John’s Lodge was established may be found at History of St. John’s Lodge No. 1, ST. JOHN’S LODGE NO. 1, http://www.stjohns1.org /portal/lodge_history (last visited Mar. 15, 2012). A brief description of the Masonic Bible may be found at FEDERAL HALL NATIONAL MUSEUM, http://www.nps.gov/feha/historyculture /george-washington-inaugural-bible.htm (last visited Mar. 15, 2012). The Bible has, at times, been on display on the first floor of the Federal Hall National Memorial, though the author learned from a telephone communication with the National Museum that the Bible was not on display there as of June 2011. 4 Savini, supra note 2, at 6. 5 Id. 6 Telephone Interview with Tom Savini (June 6, 2011). 7 Id. 8 Many immediately identified the symbolism of the targets attacked on 9/11. Consider, for example, World Trade Center Towers Collapse After Attack, N.Y. TIMES,
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