Constitution, Article 6 – Debts, Supremacy, Oaths

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

While the oath-taking dates back to the First Congress in 1789, the current oath is a product of the 1860s, drafted by Civil War-era members of Congress intent on ensnaring traitors.

In 1789, the 1st United States Congress created a fourteen-word oath to fulfill the constitutional requirement:

“I do solemnly swear (or affirm) that I will support the Constitution of the United States.”

It also passed the Judiciary Act of 1789, which established an additional oath taken by federal judges:

I do solemnly swear (or affirm), that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me, according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States. So help me God.

The outbreak of the Civil War quickly transformed the routine act of oath-taking into one of enormous significance. In April 1861, a time of uncertain and shifting loyalties, President Abraham Lincoln ordered all federal civilian employees within the executive branch to take an expanded oath.

When Congress convened for a brief emergency session in July, members echoed the president’s action by enacting legislation requiring employees to take the expanded oath in support of the Union. This oath is the earliest direct predecessor of the modern version of the oath.

When Congress returned for its regular session in December 1861, members who believed that the Union had as much to fear from northern traitors as southern soldiers again revised the oath, adding a new first section known as the “Ironclad Test Oath.” The war-inspired Test Oath, signed into law on July 2, 1862, required that…

every person elected or appointed to any office … under the Government of the United States … excepting the President of the United States” to swear or affirm that they had never previously engaged in criminal or disloyal conduct.

Those government employees who failed to take the 1862 Test Oath would not receive a salary; those who swore falsely would be prosecuted for perjury and forever denied federal employment.

The 1862 oath’s second section incorporated a different rendering of the hastily drafted 1861 oath. Although Congress did not extend coverage of the Ironclad Test Oath to its own members, many took it voluntarily.

Angered by those who refused this symbolic act during a wartime crisis, and determined to prevent the eventual return of prewar southern leaders to positions of power in the national government, congressional hard-liners eventually succeeded by 1864 in making the Test Oath mandatory for all members.

The Senate then revised its rules to require that members not only take the Test Oath orally, but also that they “subscribe” to it by signing a printed copy. This condition reflected a wartime practice in which military and civilian authorities required anyone wishing to do business with the federal government to sign a copy of the Test Oath. The current practice of newly sworn senators signing individual pages in an oath book dates from this period.

As tensions cooled during the decade following the Civil War, Congress enacted private legislation permitting particular former Confederates to take only the second section of the 1862 oath. An 1868 public law prescribed this alternative oath for “any person who has participated in the late rebellion, and from whom all legal disabilities arising therefrom have been removed by act of Congress.”

Northerners immediately pointed to the new law’s unfair double standard that required loyal Unionists to take the Test Oath’s harsh first section while permitting ex-Confederates to ignore it.

In 1884, a new generation of lawmakers quietly repealed the first section of the Test Oath, leaving intact the current affirmation of constitutional allegiance.

The history of the Oath for Federal employees can be traced to the Constitution, where Article II includes the specific oath the President takes – to “preserve, protect, and defend the Constitution of the United States.” Article VI requires an oath by all other government officials from all three branches, the military, and the States.

It simply states that they “shall be bound by oath or affirmation to support the Constitution.”

The very first law passed by the very first Congress implemented Article VI by setting out this simple oath in law: “I do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.”

On November 9, 1775. the Continental Congress adopted an oath of secrecy, one more stringent than the oaths of secrecy it would require of others in sensitive employment:

“RESOLVED, That every member of this Congress considers himself under the ties of virtue, honour and love of his country, not to divulge, directly or indirectly, any matter or thing agitated or debated in Congress, before the same shaft have been determined, without the leave of the Congress: nor any matter or thing determined in Congress, which a majority of the Congress shall order to be kept secret, And that if any member shall violate this agreement, he shall be expelled this Congress, and deemed an enemy to the liberties of America, and liable to be treated as such, and that every member signify his consent to this agreement by signing the same.”

On June 12, 1776, the Continental Congress adopted the first secrecy agreement for employees of the new government. The required oath read:

“I do solemnly swear, that I will not directly or indirectly divulge any manner or thing which shall come to my knowledge as (clerk, secretary) of the board of War and Ordnance for the United Colonies. . . So help me God.”