[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[C. Qualifications and Disqualifications]
[Â§ 12. Loyalty]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 769-771]
 
                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 12. Loyalty

    Loyalty to the United States or to its government is not listed as 
one of the standing qualifications for membership in 
Congress.(13) The Supreme Court decided in 1969 that 
Congress could not add to the constitutional qualifications for 
Members, and could only adjudge the absence or lack of the standing 
qualifications of age, citizenship, and residency.(14) The 
Powell case did not specifically discuss, however, the constitutional 
provisions which are related to loyalty and which could be construed as 
qualifications for membership.
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13. The congressional precedents on loyalty all arose prior to 1936 
        (see 1 Hinds' Precedents Sec. Sec. 449, 451, 457, 459, 620). 
        The last House debate on exclusion for disloyalty occurred in 
        1919 through 1921 (see 6 Cannon's Precedents Sec. Sec. 56-58).
14. Powell v McCormack, 395 U.S. 486 (1969).
            A state cannot require of a congressional candidate 
        declarations of loyalty, or affidavits averring lack of intent 
        to seek forcible overthrow of the government. Shubb v Simpson, 
        76 A.2d 332 (Md. 1950).
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    First, the Constitution requires that every Member swear to an oath 
to support the Constitution.(15) If a Member-elect were 
afflicted with insanity he could probably not take a meaningful oath, a 
question which has arisen in the Senate but not in the 
House.(16)
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15. U.S. Const. art. VI, Sec. 3. The form of the oath which is taken 
        appears at 5 USC Sec. 3331. For detailed information on the 
        evolution of the oath of office, see Ch. 2, supra.
16. See 1 Hinds' Precedents Sec. 221, where the Senate allowed a 
        Senator-elect to be sworn after satisfying itself that he had 
        the mental capacity to take the oath.

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[[Page 770]]

    The House has not reached the question whether an express disavowal 
of the oath to support the Constitution by a Member-elect would 
prohibit him from taking office. In a recent case the Supreme Court 
denied to state legislators the power to look behind the mere 
willingness of a legislator-elect to swear to uphold the Constitution, 
in order to test his alleged sincerity in taking the 
oath.(17) The court did however distinguish the facts before 
it from a hypothetical situation where a legislator might swear to an 
oath pro forma while declaring or manifesting his disagreement with or 
indifference to the oath being taken.(18)
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17. Bond v Floyd, 385 U.S. 116 (1966). The state legislature had 
        attempted to exclude Mr. Bond because he had voiced objections 
        to certain national policies. The main argument proposed by the 
        Georgia state legislature for excluding him was that since the 
        taking of the oath was an enumerated qualification for office, 
        and since the legislature had the sole power to judge the 
        meeting of qualifications, the body had the power to look 
        beyond the plain words of the oath and the simple willingness 
        to take it, in order to adjudge the state of mind of the 
        legislator taking it.
18. Id. at p. 132.
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    The 14th amendment to the Constitution imposes a further test of 
loyalty on Representatives, by prohibiting the taking of office by any 
person who has engaged in insurrection or given aid or comfort to the 
enemies of the United States after previously having taken the official 
oath to support the Constitution.(19) Early in this century, 
the House denied a seat to a Member-elect under the provisions of the 
14th amendment.(20)
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19. U.S. Const. amend. 14, Sec. 3. Congress may, by a vote of two-
        thirds, remove such disability for any person. The disabilities 
        arising from Civil War activities were generally removed by the 
        Act of June 6, 1898, Ch. 389, 30 Stat. 432. For congressional 
        determination of the meaning of ``aid and comfort'' to enemies, 
        as used in the 14th amendment, see 6 Cannon's Precedents 
        Sec. Sec. 56-58.
20. See 6 Cannon's Precedents Sec. Sec. 56-58. When the Member-elect in 
        that case, Mr. Victor L. Berger (Wisc.) was excluded, his 
        conviction for espionage was presently being appealed in the 
        federal courts. After the Supreme Court voided his conviction, 
        Berger et al. v U.S., 255 U.S. 22 (1921), Mr. Berger was 
        elected to succeeding Congresses.
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    In the period immediately following the Civil War, the Congress 
added a statutory qualification to those enumerated in the Constitution 
by requiring a loyalty ``test oath'' of Members-elect.(1) A 
number of persons were

[[Page 771]]

denied seats in the House by virtue of that provision.(2)
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 1. Act of July 2, 1862, 20 Stat. 502, termed the ``iron-clad'' or 
        ``test'' oath because of its exhaustive definition of 
        disloyalty. See the extensive discussion at 1 Hinds' Precedents 
        Sec. 449 on whether that oath was unconstitutional, the House 
        finding that it was not, despite a decision by the Supreme 
        Court that the oath was unconstitutional as applied to lawyers, 
        since it operated to perpetually exclude persons from a 
        profession in an ex post facto manner. See Ex parte Garland, 4 
        Wall. 333 (1866). The minority opposition in the House to the 
        1862 oath argued that the oath was unconstitutional for two 
        reasons: first, it was an ex post facto law, punishing 
        individuals, without a trial, for offenses committed before the 
        enactment; second, it purported to add qualifications to those 
        enumerated in the Constitution for Members.
 2. See 1 Hinds' Precedents Sec. Sec. 449, 451, 459, 620.
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                            Cross References
Administration of the oath and challenges to the right to be sworn, see 
    Ch. 2, supra.
Administration of the oath to officers, officials, and employees, see 
    Ch. 6, supra.
Conduct, punishment, censure, and expulsion, see Ch. 12, infra.