A mild form of loyalty oath is embedded in the Constitution itself. The President must swear (or affirm): "that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States." And Article VI, in conjunction with the supremacy clause, requires that members of Congress, state legislators, 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." These are usually called affirmative oaths, in contrast to negative oaths in which oath-takers are required to abjure certain beliefs, words, or acts. In their most searching form, negative oaths probe the past as well as the future.
In Article VI, the constitutional oath of support is immediately followed by the proscription of any religious test for holding office. Loyalty oaths, called test oaths, were rife in an age of warring faiths defended by princes. They tested orthodoxy of belief and thus loyalty to the sovereign. Henry VIII launched Anglo-American constitutional practice on a sea of oaths, whose chief purpose was to root out followers of the pope of Rome. The Stuart kings exacted oaths from the first settlers, and the settlers in turn invoked them against each other. When George Calvert, the Roman Catholic first Lord Baltimore, attempted to settle in Virginia, he was confronted with an oath that he could not take. He perforce made the hard voyage back to England; his successors got their own grant to what became Maryland and promptly imposed an oath pledging fidelity to themselves.
Wary though they became of oaths with a religious content, those who made our Revolution, as well as those who resisted it, routinely exacted political loyalty oaths from military and civilians under their control. When one occupying force displaced the other, it could become a matter of life and liberty to have one's name on the wrong roster. At the same time, there was room for claims of duress and duplicity. BENJAMIN FRANKLIN expressed with his usual pithiness what was doubtless a shared cynicism when he wrote in 1776: "I have never regarded oaths otherwise than as the last recourse of liars."
One might have thought that the Framers, with revolutionary excesses fresh in their memories, meant the constitutional oaths to be exclusive of any others; but when the CIVIL...