The Jewish Winning Candidates and Not Swearing In – A Halachic Analysis

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(By Rabbi Yair Hoffman for 5tjt.com)

J.B. Pritzker is a Jewish billionaire. He is also scheduled to be sworn in as the next governor of the state of Illinois.

Jared Polis, also Jewish, will be the next governor of Colorado.  Michigan Democrat Elissa Slotkin was raised on a farm and worked for the CIA, both of which are not particularly Jewish preoccupations.  She will be sworn in for a seat in the House of Representatives.

Elaine Luria, a former Navy commander who is Jewish, won a house seat in a coastal Virginia district that encompasses the Norfolk U.S. Navy base. She had once even organized a Pesach seder on an aircraft carrier.

Dean Phillips, a Jewish Democrat in Minnesota whose father was killed in the Vietnam War before he was born, won a House seat as well.

Susan Wild, a Democrat in Pennsylvania, is also Jewish.  She is on the local Jewish federation’s board of directors.

The common denominator of them all is that they will be sworn or affirmed into their newly elected roles.

AFFIRMING RATHER THAN SWEARING

Generally, what Jews do whenever they must swear is they “affirm” instead of swear.  The alternative of affirming rather than swearing is actually a right that is found in the U.S. Constitution.  Article Two Section One of the Constitution regarding the oath of Presidential Office states:

“Before he enters on the execution of his office, he shall take the following oath or affirmation. 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.”

In fact, President Franklin Pierce chose to affirm rather than make an oath in 1853.  No other president, as of yet, did that.

The reason why this right is found in the constitution, however, is not because of Jewish practice.  It was included there is most probability to address the Quaker’s literal interpretation of the Christian bible.

WHY DO JEWS AFFIRM?

The question is, however, why is it that Jews affirm rather than swear?  Doen’t the verse in Parshas Va’Eschanan (6:13 no irony intended) tell us the exact opposite – ubishmo tishava?  In fact, the Gemorah in Shavuos (35b) indicates that an unnecessary vow in Hashem’s Name is forbidden by the Torah – but when it is necessary to swear – it is actually a Mitzvah to do so in His Name.  This is the indication of the Gemorah in Shavuos.

LISTED IN THE MITZVOS

Indeed, in the Rambam’s Sefer haMitzvos it is listed as an actual Mitzvah (#7).  It is also listed as a Mitzvah in the Sefer HaChinuch (Mitzvah 435), in the SMaG as Mitzvah 123, in the SMaK #109, and in the Sefer Yereim (267).  The BaHaG #32 lso lists it as a Mitzvah.  Why then do Jews, when they must, not swear?

TWO POSSIBILITIES

There are perhaps to possible rationales for the Jewish practice not to swear but rather to affirm.  The first possibility is out of concern for other Rishonim that do not hold it as an actual Mitzvah, but rather as permission to swear.  This is the view of the Ramban in his peirush al haTorah and in his Hasagos to the Rambam’s Sefer HaMitzvos. It may also be indicated in the commentary of Rashi to the Gemorah in Tmurah 3b.   It is also the view of the Rashbatz (Zohar HaRakiya 14).  Their view is to avoid it unless it is absolutely necessary, perhaps so as not to possibly come to violate a Shvuas Shav – an unnecessary oath.  The Ramban’s view is that this Mitzvah is actually a lav habah michlal assei – a negative commandment that comes from an inference of a positive statement which, in his view, does not qualify to be listed as a Mitzvah.  He attempts to prove his position from the general indication of the Gemorah in Tmurah 3b.

There are authorities who feel that the Ramban’s animadversions to the Rambam’s position are so strong that this was actually the view of the Rambam too (See Tvuos Shor, Chidushim Shavuos 39a – although the Sefer haChinuch disagrees).

The second possibility as to why Jews do not swear and rather affirm is on account of a fascinating Midrash that is found in BaMidbar Rabba (22:1) and in the Midrash Tanchuma Parshas Matos (1).

The Holy One Blessed be He said to Israel:  Do not think that it is permitted for you to swear in My Name even if it is true.  You may only do so if you have within you the following qualities:  You have to be G-d-fearing like Avraham , Iyov and Yosef.. You must fulfill oso saavod – Him you shall serve.. You must fulfill uvo sidbak – you must cleave to Him..  The Midrash lists other requirements as well and provides a number of illustrations.

REALLY TWO POSSIBILITIES

The discerning reader may note that the Ramban actually quotes the Midrash and suggests that the double language of the verse uvo sishava alludes to the requirements set forth in the Midrash .  How then can this article suggest that there are two different possibilities?

The answer is that the Midrash can be understood in the context of being true even if it is not a lav haba michlal assai – but rather a Mitzvah with stiff requirements.  Yibum is a case in point.  It is certainly a regular Mitzvah that is listed among the 613 Mitzvos.  It is just that there are very stiff requirements to it.  By the same token, we can understand this Midrash as a regular Mitzvah but one with strong requirements.

SERIOUS ISSUE

The idea of swearing is a very serious issue.  The Sefer Chassidim 419 states that one who was forced to do so should accept upon himself a form of Kaparrah – atonement in order to make up for it.  Other sources mention a custom to fast each year on the day that one was forced to make such an oath.  Regardless, we must all be thankful that we live in a country that allows us to practice our religion so freely.  This is something that all US citizens, regardless of party affiliation should agree upon.

The author can be reached at yairhoffman2@gmail.com




3 COMMENTS

  1. For those who noticed, when Pres Rivlin took his oath in front of Knesset, he said “mitchayyev,” instead of “nishba.” Immediately afterward, he made a Shehecheyanu.

  2. Halachically, is there any difference between an oath and an affirmation? The only difference between the two is that the affirmation doesn’t mention G-d. This makes a difference to Quakers and some other Christian sects, but it seems to me that under halacha both have the status of a shevu’oh, so the sources about avoiding shevu’os are irrelevant. The only question then becomes do you take this shevu’oh in Hashem’s name or not, and even if we don’t hold like the Rambam that it’s a mitzvah it still seems to me that deliberately leaving Him out borders on chilul haShem.

  3. He publicly and flagrantly is committing much worse evil
    was the newly elected governor of Colorado necessary to be mentioned

    Let him rot