Settled Science - Settled Law
Tuesday, June 18, 2019
The swearing-in ceremony of the Senate for the impeachment trial got me thinking, not about the impeachment since the amount of information on that is overwhelming, but rather about oaths.
We are awash in oaths. Personally, I remember my first oath, other than learning the pledge of allegiance, a form of oath, was the cub scout oath, then there were the various military oaths, the social security oath, the oath for your passport, then my swearing in as a lawyer, appearing in front of judges who were sworn in, in trials where a jury is sworn in, and questioning witnesses who were under oath. I am not that unique, so I assume all who read this are also awash in oaths. You would think with the air thick with "oathiness" that no one could or should lie. Not so! So then, what is the real meaning or significance of an oath?
Self-interest is perhaps a fundamental fact of human nature. Everyone seeks to promote the welfare of self and family before that of others and may even be tempted to lie for that purpose. Humans developed a system of rising above base instincts like this one using oaths. Amongst primitive societies, my favorite is the lore of Ostyaks. This Siberian tribe brought the head of wild boar to a council meeting where an an oath was taken on the head of a boar who was called upon to devour the oath taker if he did not tell the truth. From written records, the swearing of an oath before divine symbols goes back to the Sumerian civilization (4th to 3rd millennia) where one swore by this life (Ankh). The earliest record of an oath taken in the name of a Judeo/Christian god is by Abraham to Abimelech (Genesis xxiv.2.3.9). Interestingly, Christians of the Apostolic age were opposed to the use of oaths because they believed them to be a product of evil and were forbidden by Jesus in his sermon on the Mount. There is one essential feature of all of these oaths, which is fundamental to their real or supposed efficacy, which is that the vengeance of the being would be invoked if the oath taker did not speak the truth.
Early American jurists and philosophers often debated whether agnostics or groups like the Quakers could testify or even hold office since, respectively, they did not believe in a higher authority or were forbidden to take oaths. Hence, the common law developed the alternative of the Affirmation, allowing early founders like Roger Penn to hold public office. At about the same time, we moved away from the English tradition of the administration of oaths by Clergy and swearing upon a bible to the simple act of raising a hand to an oath administered by a Judge. The use of the Bible has also fallen away. In 2014, the US Ambassador to Switzerland was sworn in with her hand covering a Kindle. I want to be sworn in holding the book, The Cat in the Hat.
The Senatorial oath for the impeachment trial did not require truth telling, it only required an effort to be impartial. The Presidential Oath of office omits telling the truth: "I do 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." Yet, President Clinton was impeached for essentially telling one lie: "I did not have sex with that woman." The Washington Post as of Jan.19, 2020 reports that President Trump has made 16,241 false or misleading claims. Even if the Post is off by 50%, the effect of that kind of presidential mendacity is overwhelming. Perhaps a fix might be to amend the Oath to require truth telling. What is the lesson for our children? What is effect of a body of Presidential lies on our country?
In the 4th century BC a Greek philosopher named Isocrates left us with the following: "Democracy destroys itself because it abuses its right to freedom and equality. It teaches its citizens to consider audacity as a right, lawlessness as a freedom, abrasive speech as equality and anarchy as progress." Blatantly perpetrating untruthfulness is the foundation for Isocrates' lesson. What are your thoughts?