[Congressional Record Volume 143, Number 1 (Tuesday, January 7, 1997)]
[Senate]
[Pages S4-S5]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            THE OATH WE TAKE

  Mr. LOTT. Mr. President, today marks the 105th time since 1789 that 
newly elected Senators have stood before this body's Presiding Officer 
at the start of a new Congress to pledge their support for the 
Constitution of the United States. I would like to take advantage of 
this special event in the life of each new Congress to comment briefly 
about the origins of the oath we take.
  There is a good deal of confusion about the oath and its origin. Some 
believe that the Constitution prescribes its specific text and that all 
Senators since 1789 have taken and signed the oath in the form that we 
know today. Neither is true. While the Constitution specifies a 
separate oath for the President, it leaves to Congress the 
responsibility of preparing an oath for its Members and all other 
Federal officeholders.
  The Oath Act of June 1, 1789, was the first legislation passed by the 
Senate and the first law signed by President George Washington. It 
prescribed the following simple oath: ``I _____ do solemnly swear (or 
affirm) that I will support the Constitution of the United States.'' On 
June 4, 1789, Senate President John Adams administered that new oath to 
all Senators, setting a pattern that future Presiding Officers 
followed, without controversy, for the next 74 years.
  The outbreak of the War Between the States quickly transformed the 
act of oath-taking, which had become a routine procedure after 1789, 
into one of enormous significance. At a time of uncertain and shifting 
loyalties, President Abraham Lincoln ordered all Federal civilian 
personnel to retake the prewar oath of allegiance. When Congress 
convened for a brief emergency session in the summer of 1861, Members 
supplemented the President's action by passing a law requiring civil 
officers to take an expanded oath in support of the Union. Although 
Congress did not then apply this August 1861 oath to its own Members, 
its text is the earliest direct predecessor of the oath we take today.
  When Congress returned for its regular session in December 1861, 
Members who believed that the Union had more to fear from northern 
traitors than from southern soldiers fundamentally revised the August 
1861 statute in July 1862 by adding an ``Ironclad Test Oath'' 
provision. This war-inspired test oath required civil servants and 
military officers to swear not only to future loyalty, as required by 
the existing oaths, but also to affirm that they had never previously 
supported hostilities against the United States. Those 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 in language that is 
identical to the oath we take today.
  Early in 1864, the Senate adopted a rule specifying that all newly 
elected Members must not only orally agree to the test oath, but also 
``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 requirement included Confederate prisoners 
of war seeking parole and southerners who wished to be reimbursed for 
goods confiscated by foraging Union troops. Our modern practice of 
signing the oath comes from this period.
  At the end of the war in 1865, the test oath stood as a formidable 
barrier to President Andrew Johnson's moderate reconstruction policies, 
designed to allow residents of the South to participate in their own 
government. While the President pushed for a rapid reintegration of 
Southern States, those in Congress who wished to impose a harsh peace 
insisted on the test oath, which had been created in part to prevent 
ex-Confederates from taking Federal positions. Many of the oath's

[[Page S5]]

drafters specifically had in mind blocking the return of one of my 
direct Senate predecessors--Jefferson Davis.
  The Constitution's 14th amendment, ratified in 1868, permitted 
Congress to remove barriers to service by former Confederates through a 
two-thirds vote of both Houses. Congress then enacted an oath for those 
in this category, allowing them to ignore the test oath's first 
section, regarding past loyalties, and subscribe only to its second 
section pledging future allegiance. That 1868 oath is identical to the 
one we take today.
  As postwar tensions eased, Congress in 1871 dropped the requirement 
for a two-thirds vote of both Houses for former Confederates entering 
congressional service or government employment. For another 13 years, 
however, all oath takers who were not former Confederates were required 
to take the full test oath. In 1877, to further complicate matters, the 
Senate amended its rules to require that Senators take not only the 
1862 or the 1868 oath, but also the original oath of 1789.
  Reflecting the confusion surrounding these multiple requirements, the 
Senate's archives contain no signed oaths for the years between 1871 
and 1880. From 1880 until 1884, nearly 20 years after the war's 
conclusion, newly elected southern Senators who had participated in 
that conflict signed the 1868 oath, while all the others signed the 
1862 test oath.
  On January 11, 1884, as part of a general revision of its rules, the 
Senate replaced specific references to the rules of 1862 and 1868 with 
the simple statement that is now Rule III of our Standing Rules: ``The 
oaths or affirmations required by the Constitution and prescribed by 
law shall be taken and subscribed by each Senator, in open Senate, 
before entering upon his duties.'' Seven weeks later, bringing to a 
close nearly a quarter century of confusion and acrimony, the Senate 
repealed the 1862 test oath. From that day to this, the high solemn 
oath ``prescribed by law'' has been the oath of 1868.

                          ____________________