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by Courts and writers on constitutional law. tablishes the supremacy of the Constitution, as well as the supremacy of all laws passed in pursuance thereof, which means all laws which are constitutional, and also the supremacy of all treaties which are made under the authority of the United States.19
Judge Story says: "The propriety of this clause would seem to result from the very nature of the Constitution. If it was to establish a national government, that government ought, to the extent of its powers and rights, to be supreme. It would be a perfect solecism to affirm that a national government should exist with certain powers, and yet that in the exercise of those powers it should not be supreme. What other inference could have been drawn than of their supremacy if the Constitution had been totally silent? And surely a positive affirmance of that which is necessarily implied cannot, in a case of such vital importance, be deemed unimportant. The very circumstance that a question might be made, would irresistibly lead to the conclusion that it ought not to be left to inference. It will be observed that the supremacy of the laws is attached to those only which are made in pursuance of the Constitution,-a caution very proper in itself; but in fact the limitation would have arisen by irresistible implication if it had not been expressed.
"In regard to treaties, there is equal reason why they should be held, when made, to be the supreme law of the land. It is to be considered that treaties constitute solemn compacts of binding obligation among nations: and unless they are scrupulously obeyed and enforced, no foreign nation would consent to negotiate with us; or if it did, any want of strict fidelity on our part in the discharge of the treaty stipulations would be visited by reprisals or war. It is, therefore, indispensable that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. ''20
19 Ex parte Siebold, 100 U. S. 371, 399; Tennessee v. Davis, 100 U. S., 257, 263; Northern Securities Co. v. United States, 193 U. S. 197, 344; McCray v. United States, 195 U. S. 27, 60; Gulf, Colorado & S. F. Ry. v. Heefly, 158 U. S. 98, 104.
20 Story on the Constitution, vol. 2, secs. 1837, 1838.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The Articles of Confederation did not require officers of the States to support them. So far as requiring judicial officers to support the Constitution the language of this section was anticipated by Mr. Madison in his letter of April 16, 1787, to Washington, in which he said, "It seems at least necessary that the oaths of the Judges should include a fidelity to the general as well as local Constitution.' '21
The plan which Mr. Randolph submitted for a Constitution provided that the legislative, executive and judiciary powers within the several States ought to be bound by oath to support the Articles of Union.22 When this provision first came before the Committee of the Whole its consideration was postponed. Later, it was again considered, when Mr. Sherman opposed it as unnecessary and as intruding into the State jurisdictions.
Mr. Gerry also did not like the clause, and thought there was as much reason for requiring an oath of fidelity to the States from national officers, as vice versa.
Mr. Luther Martin moved to strike out the words, "within the several States," observing that if the new oath should be contrary to that already taken by State officers it would be improper; if coincident, the oaths already taken would be sufficient. But the motion was lost.
The resolution as proposed by Mr. Randolph then passed by a vote of six to five.23 The Committee of the Whole reported the resolution to the Convention substantially as it was adopted.24
In the Convention, when the
21 Madison's Writings, vol. 1, 289;
tory, vol. 1, 312, note.
22 Journal, 63.
23 Journal, 149, 150.
24 Journal, 162.
resolution came up for
Thorpe's Constitutional His
consideration, Mr. Williamson suggested that a reciprocal oath should be required from national officers, to support the governments of the States.
Mr. Gerry moved to insert, as an amendment, that the oath of the officers of the national Government also should extend to the support of the national Government, which was agreed to without debate.25
Mr. Wilson said he was never fond of oaths, considering them as a left-handed security only. A good government did not need them, and a bad one could or ought not to be supported.25a
The resolution as reported was agreed to without objection. It was then reported by the Committee of Detail as follows: "The members of the legislatures, and the executive and judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution.''28 When this was being considered in the Convention the words "or affirmation were added after the word "oath."'27
This provision is a very general one. It includes the officers of the executive, legislative and judicial branches of the General Government and of each State government. All are required by this section to take an oath or affirmation to support "this Constitution," that is, the Constitution of the United States. It was eminently proper that this clause should be inserted in the Constitution. Every officer should take an oath to support the national Constitution, because he owes an ob
25 Journal, 409, 410.
25a Mr. Gouverneur Morris seems to have agreed with Mr. Wilson on the subject of oaths, especially when taken by members of legislative bodies. In a letter to Mr. Pickering, he said, "the legislative lion will not be entangled in the meshes of a logical net. The legislature will always make the power, which it wishes to exercise, unless it be so organized, as to contain within itself the sufficient check. Attempts to restrain it from outrage, by other means, will only render it more outrageous. The idea of binding legislators by oaths is puerile. Having sworn to exercise the powers granted, according to their true intent and meaning, they will when they feel a desire to go farther, avoid the shame if not the guilt of perjury, by swearing the true intent and meaning to be, according to their comprehension, that which suits their purpose." Sparks' Life of Gouverneur Morris, vol. 3, 323.
26 Journal, 461.
27 Journal, 640.
ligation of the most binding kind to his government. The suggestion of Mr. Gerry in the Convention that there was as much reason for requiring an oath of fidelity from national officers to the States, as from the State officers to the General Government, did not meet with favor in the Convention, and it certainly was not based upon sound principle. For the reason above stated, every officer of the State government should take an oath to support the national Constitution, but it does not follow that every national officer should take an oath to support the constitution of every State, because such an officer does not owe any special allegiance to every State in the Union.
The Constitution does not prescribe the form of the oath nor does it confer the power to do so upon any branch of the Government. It has, however, always been exercised by the legislative branch of the Government.
The oath of office may be administered by the President of the Senate, or by the presiding officer of that body for the time being, to each Senator, previous to his taking his seat.28 The oath may be administered to the President of the Senate by any member of that body.
The Speaker of the House of Representatives administers the oath to the members and delegates thereof, and to the clerk before entering on any other business. Any member of the House may administer the oath to the Speaker. As a matter of practice the oath is generally administered by the member who has served the longest in the House.
History of the oath under this clause. The first act passed by Congress, which was on June 1, 1789, prescribed the following form of oath or affirmation required by this clause: "I, A... B..., do solemnly swear or affirm that I will support the Constitution of the United States. "29 28 The following is the oath which members of Congress are required to take: "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." R. S. Sec. 1757, Jefferson's Manual, 393.
291 U. S. Statutes at Large, 23.
This continued to be the form of the oath until July 2, 1862, when, on account of the war between the States, Congress passed an act which provided:
"Every person elected or appointed to any office of honor or profit, either in the civil, military or naval service, except the President and the persons embraced by the section following, shall before entering upon the duties of such office, and before being entitled to any part of the salary or other emoluments thereof, take and subscribe the following oath:
“‘I, A....... B..., do solemnly swear or affirm that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought, nor accepted, nor attempted to exercise the functions of any office whatever, under any authority, or pretended authority, in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. 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.' ''30
This is the oath so often referred to as the "ironclad oath." The act of Congress which prescribed this oath was declared unconstitutional by the Supreme Court so far as it related to attorneys at law.31
On July 11, 1868, Congress passed the following act: "Whenever any person who has participated in the late rebellion, and from whom all legal disabilities arising therefrom have been removed by act of Congress by a vote of two-thirds of each house, has been or shall be elected or appointed to any office or place of trust in or under
30 R. S., Sec. 1756, U. S. Statutes at Large, vol. 12, 502.
31 Ex parte Garland, 4 Wallace, 333.