Coercive and exclusionary test oaths commonly require foreswearing past associates, conduct, or beliefs, but mandatory commitments about future behavior, such as the Mayflower Compact and the Declaration of Independence, have also served informally as the basis for test oaths. The Articles of Confederation left anti‐Tory exclusionary oaths to the states. Skeptical about oaths, the Constitution's framers forbade religious tests for office but, seeking unity, specified an oath for the president (Art. II, sec. 1) and required all federal and state officers to swear an unspecified oath to support the new Constitution (Art. VI). In the 1832–1833 nullification controversy, South Carolina obliged its officials to swear primary loyalty to the state, not the nation.
Test oaths proliferated during the Civil War and Reconstruction. Initially, the Union used oaths to identify security risks. An 1861 statute required an oath of future loyalty from federal officials. Then, the 1862 “ironclad test oath” act demanded past loyalty, and in 1865 Congress extended it to lawyers in federal courts, contractors, and pensioners. With approval from Abraham Lincoln and most congressmen, the Union army applied this form in the occupied South to would‐be officials and licensed professionals—a policy that was capable of wholly redefining civil leadership. In 1865–1866 President Andrew Johnson ignored the 1862 act. The Supreme Court's 1867 decisions in Ex parte Garland and Cummings v. Missouri blunted the oaths' potential to broaden access to political and professional leadership by blacks and Unionist whites. The Court's majority denounced the federal and Missouri oaths as ex post facto laws and bills of attainder prohibited by Article I, section 9, as substantive denials of property rights in professions, and as infringements on the president's pardoning power. Arguing that loyalty was a legitimate requirement for office, the dissenting justices insisted that pardons did not erase guilt and that the majority was aggrandizing judicial power by voiding the Missouri constitution's oath requirement. Military Reconstruction failed to deny ex‐rebels political and professional dominance, in part because of the Test Oath decisions.
World War I inspired few official oaths but many concerns about the loyalty of “hyphenated Americans” and labor unionists. During the war and the ensuing first “red scare,” test‐oath requirements infused federal naturalization proceedings for aliens (upheld in United States v. Schwimmer, 1929) and states' professional licensing procedures and criminal syndicalist laws. During World War II, President Franklin D. Roosevelt concluded that security was weakened by numerous, local, unaccountable loyalty‐enforcers. Except for the Japanese‐American relocations, few excesses marred the home front. This resulted in part because private groups such as the American Civil Liberties Union monitored abuses of the Bill of Rights and in part because the Court's decisions on flag‐salute laws (West Virginia Board of Education v. Barnette, 1943), on denaturalizing pro‐Nazi citizens (Baumgartner v. United States, 1944), and on implementing the 1917 Espionage Act (Hartzel v. United States, 1944), gave new meaning to some Bill of Rights guarantees.
The cold war's red scare eroded these gains (see Communism and Cold War). Federal and state legislative investigations, as well as private “superpatriots,” exaggerated security threats posed by the few communists in government, classrooms, and unions. Public employees (especially teachers) and labor union officers were faced with having to sign disclaimers stating that they were not communists. The Supreme Court, while condemning congressional excesses in United States v. Lovett (1946), sustained loyalty policies in Wieman v. Updegraff (1952). But the Warren Court forced security policies to conform to Bill of Rights standards. In Pennsylvania v. Nelson (1956), the Court reaffirmed federal primacy in loyalty matters, thereby invalidating criminal statutes in more than forty states. The Court in United States v. Brown (1965), Keyishian v. Board of Regents (1967), and Brandenburg v. Ohio (1969), held state loyalty statutes to be bills of attainder and so vague as to violate the First Amendment, thus defending Americans' liberty more effectively than had the 1867 Test Oath decisions.
Neither the post–World War II “Second Reconstruction” in race relations nor the Vietnam War resurrected claims that test oaths are essential to America's internal or external security. As the 1990s opened, a diminished cold war made revival of test oaths unlikely but, as suggested by history and by revived proposals for a constitutional amendment to punish flag desecrations, not impossible.
Bibliography
- Harold M. Hyman, To Try Men's Souls: Loyalty Tests in American History (1959)
— Harold M. Hyman
