Regarding Oaths of Office

This discussion starts with an analysis of oaths of office at the Federal level, considering both whether oaths function as barriers to service and whether they are appropriate in symbolic terms. We then turn to the same questions with reference to the oaths of office of the various states. Finally, we consider the purpose behind oaths of office and determine whether any changes should be made to oaths of office at either the Federal or state level

Advancing the Search for Compromise: A Response to Professor Hynes

The contractarian and fiduciary-based positions of the Revised Uniform Partnership Act (RUPA) and the observation that RUPA is internally contradictory and does not consistently adopt either position are discussed. Professor Hynes\u27 discussion of the waivability of fiduciary duties under RUPA is critiqued

No Person . . . Shall Ever Be Molested on Account of His Mode of Worship or Religious Sentiments . . . . : The Northwest Ordinance of 1787 and \u3ci\u3eStrader v. Graham\u3c/i\u3e

The Article looks at the first article of compact of the Northwest Ordinance, the religious liberty guarantee: “No person . . . shall ever be molested on account of his mode of worship or religious sentiments . . . .” Congress provided that the Northwest Ordinance articles of compact would “forever remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham, Chief Justice Roger Taney declared the articles of compact to be no longer in force. In evaluating Chief Justice Taney’s reasoning, the question posed at the dawn of the 20th Century by historian Professor Andrew McLaughlin is instructive: “Will they say that, because the men of 1787 did not act and speak in the terms of philosophy which arose from the civilization of the next century . . . they did not do what they intended to do?” Using the language and history of the Northwest Ordinance, the Article argues that Chief Justice Taney’s conclusion was in error. The religious liberty protection of the Northwest Ordinance first article of compact is arguably broader than that of the First Amendment. The article suggests that it should be available to protect individuals disadvantaged and discriminated against on the basis of their beliefs on matters of religion. Such protection would extend to the over ninety million Americans who live in states as to which the first article of compact was made applicable

Religious State Constitution Preambles

The nation would benefit from Americans becoming more tolerant and respectful of the faith decisions of others. One modest step toward such a reconciliation would be to amend the religiously exclusionary language of almost all of our state constitution preambles. Forty-five of the states have preambles that include references to the Christian God. Typical is the Pennsylvania provision: “We, the people of the Commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this Constitution.” Such language either excludes non-Christians from the class of “we, the people,” or ascribes to such citizens gratitude to a deity in which they do not believe. The nation has changed dramatically since the religious preambles were inserted in many state constitutions as a product of the Second Great Awakening of the first half of the 19th Century. Today, such preambles place around three in ten citizens at a remove on the basis of their religious beliefs. The religious preambles were never appropriate, even when those with disfavored religious beliefs were small in number. The inappropriateness of the exclusionary preambles is even more evident in today’s religiously diverse nation. The religious preambles are disrespectful of citizens with disfavored religious beliefs. They have been used to justify practices – the placement of religious monuments in government space, the censorship of films, sectarian religious instruction in public schools, and the denial of tax preferences to disfavored religious groups – that have been held to violate the Establishment Clause. And by seeming to offer support to the fallacious belief that this is an officially Christian nation, the religious preambles foster intolerance and bigotry. As a prudential matter, to foster national reconciliation on matters of religious faith, they should be amended