At the start of each new Congress, in January
of every odd-numbered year, the entire House of Representatives
and one-third of the Senate performs a solemn and festive
constitutional rite that is as old as the Republic. 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.
The Constitution contains an oath of office
only for the president. For other officials, including members
of Congress, that document specifies only that they "shall be
bound by Oath or Affirmation to support this constitution." In
1789, the First Congress reworked this requirement into a simple
fourteen-word oath: "I do solemnly swear (or affirm) that I will
support the Constitution of the United States."
For nearly three-quarters of a century, that
oath served nicely, although to the modern ear it sounds
woefully incomplete. Missing are the soaring references to
bearing "true faith and allegiance;" to taking "this obligation
freely, without any mental reservation or purpose of evasion;"
and to "well and faithfully" discharging the duties of the
office.
The outbreak of the Civil War quickly
transformed the routine act of oath-taking into one of enormous
significance. On April 30, 1861, at a time of uncertain and
shifting loyalties, President Abraham Lincoln ordered all
federal civilian personnel to retake the 1789 oath. When
Congress convened for a brief emergency session several months
later, members supplemented the president's action by enacting
legislation requiring these employees to take an expanded oath
in support of the Union. Its text is the earliest direct
predecessor of the modern oath.
When Congress returned for its regular
session in December 1861, members who believed that the Union
had more to fear from northern traitors than southern soldiers
fundamentally revised the August 1861 statute, adding a new
first section known as the "Ironclad Test Oath." The
war-inspired Test Oath, signed into law on July 2, 1862,
required civil servants and military officers to swear not only
to future loyalty, as required by the existing oath, but also to
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
more polished and graceful 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
elegantly bound oath book dates from this period.
As tensions cooled during the decade
following the Civil War, Congress enacted legislation permitting
former Confederates to take only the second section of the 1862
oath, the current version. 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,
leaving intact today's moving affirmation of constitutional
allegiance.
