[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[C. Qualifications and Disqualifications]
[§ 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.