On January 6, 2015 434 representatives and 33 senators will take the following oath: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
An Oath of Office is prescribed by the Constitution of the United States, Article VI, clause 3: “The Senators and Representatives before mentioned, … shall be bound by Oath or Affirmation, to support this Constitution;” Although the U.S. Constitution directed that Congressmen should be bound by an oath, the Constitution did not explicitly lay out the text of this oath. By contrast, the oath the president takes appears in the Constitution, Article II, Section 1, Clause 8: “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.”
Not surprisingly perhaps, the first law passed by the first Congress was “An Act to regulate the Time and Manner of administering certain Oaths” (1 Stat. 23). The oath prescribed in this law was quite simple: “I, A.B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.” Congress directed that within three days of the passage of this law (June 1, 1789) the oath should be administered to one of the Senators who would then administer the oath to the President of the Senate who would swear in the other senators. The Speaker of the House was directed to administer this oath to the representatives in the House. This simple version of the oath remained in effect until 1862 and the Civil War.
In July 1862, Congress passed a law prescribing a new oath of office which sought to ensure the loyalty past, present and future, of all persons appointed or elected to office in the U.S. government (ch. CXXVIII, 12 Stat. 502). This law became known as the Ironclad Test Oath. The first section of the law required the oath takers to swear they had never voluntarily borne arms, or given aid to those engaged in armed hostility against the United States, or supported any pretended government within the United States. The affirmation section of the oath was also longer:
And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God;
This law also included penalties for those who swore falsely, “shall be guilty of perjury” and more ominously that they should be “rendered incapable forever after of holding any office or place under the United States.” This of course, meant that no one from the Confederacy could ever hold office in the Union. Congressmen themselves were initially not required to take this oath although many did so voluntarily. However, by 1864 the Senate under the prodding of Senator Sumner, made the Test Oath mandatory for all senators and the House likewise followed suit.
In practical terms, the oath had to be amended after the conclusion of the Civil War and the return of the Confederate states to the Union. Congress took a first step towards modifying this oath in 1868. On July 11, 1868 Congress passed a law (ch. CXXXIX, 15 Stat. 85) which modified the 1862 oath. This modified oath was to be administered to those for whom all legal disabilities arising from their participation in the late rebellion had been removed. This removal could only be achieved by an act of Congress – and an act passed by a two-thirds vote of each chamber. This oath omitted the sections requiring the oath taker to swear he had never been in rebellion or aided a rebellion against the United States. The oath simply repeated the ‘affirmative’ section of the 1862 oath. It is interesting to note that Congressmen from Union states were still required to use the 1862 version of the oath.
The Revised Statutes, published in 1873-74, reflected this split. Sections 1756 and 1757 cover “[e]veryone person elected or appointed to an office of honor or profit … excepting the President.” Section 1756 reiterates the terms of the Ironclad Oath – requiring the oath taker to affirm he has never borne arms against the United States since he was a citizen, nor supported any hostile government. Section 1757 reflects changes made in 1871. In this section anyone who is not disqualified from office by the terms of the Fourteenth Amendment but who on account of “his participation in the late rebellion” cannot take the oath in section 1756, may take a modified version of the oath of office:
I, A.B., do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Again, those who had not participated in the rebellion, were required to take the more extensive version of the oath as laid out in section 1756. However section 1756 was repealed by Congress in a law passed on May 13, 1884 (ch. 46, 23 Stat. 21, 22) and section 1757 was the oath to be taken by all persons elected or appointed to an office excepting the President. When Title 5 of the United States Code was enacted into positive law, the oath as it appeared in section 1757 of the Revised Statutes was included and can be found today in section 3331.
Great article. One minor correction: 34 Senators will take the oath of office today. Because Senator Coburn resigned his seat effective the end of the 113th Congress, both Oklahoma Senators (Senator Inhofe and Senator Lankford) will be sworn in today.