The Oath or Affirmation Clause

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. . . .

—Judge Gregory G. Katsas & Andrew W. Smith

Introduction

There are two oath clauses in the Constitution: Article II provides specific wording of the President’s Oath and Article VI requires that a range of federal and state officeholders must be “bound by Oath or Affirmation, to support this Constitution.” The Oath or Affirmation Clause in Article VI built upon a long-standing tradition of requiring leaders to take oaths to follow the law in the discharge of their offices. No doubt a careful observer can find some cases where a willful judge found a way to reach an unconstitutional result—something that is doubly true for statutes enacted by Congress—but as the Framers recognized, the oath seeks to provide the essential ingredient in a functional legal system: An officer’s loyalties lie foremost with the Constitution.

History Before 1787

In England, the king swore an oath to govern “according to the Statutes in Parliament Agreed on and the Laws and Customs of the same.”¹ English judges similarly saw their oaths as creating a duty to decide cases in accord with the law.² Americans inherited this tradition and upon winning their independence further entrenched it. The signers of the Declaration of Independence “mutually pledge[d] to each other our lives, our fortunes, and our sacred honor.”³ Early state constitutions mandated that certain officers take an oath or affirmation,⁴ and at least some state courts recognized that these oaths mattered.⁵ In North Carolina, judges relied on “the obligation of their oaths” to “give their opinion” that a state law was unconstitutional.⁶

Unlike the state constitutions, the Articles of Confederation lacked a general oath requirement. They prescribed only one oath: A judge who decided disputes between states was required to swear “well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, affection, or hope of reward.”⁷ The Articles also did not require delegates to the national legislature to take an oath to the Confederation: In this “firm league of friendship,” allegiances remained with the states.⁸

The Constitutional Convention

As part of the Virginia Plan, Edmund Randolph proposed that “the Legislative, Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union.”⁹ This proposal prompted some pushback. Roger Sherman of Connecticut worried that requiring state officers to swear an oath to the federal Constitution would “unnecessarily intrud[e] into the State jurisdictions.”¹⁰ But Randolph reminded the Convention that state officers are “already under oath to the States.” To avoid partiality among these officers, state officers “ought to be equally bound” to the national government.¹¹ “If the state judges are not sworn to the observance of the new government,” Randolph asked, “will they not judicially determine in favor of their state laws?”¹²

Implicit in the debate between Sherman and Randolph was the understanding that an oath shapes an officer’s loyalties in deciding matters before him, but not everyone shared this opinion. James Wilson of Pennsylvania was “never fond of oaths, considering them as a left handed security only.”¹³ Because the left hand helps the right hand, the oath was only a “secondary security.”¹⁴ Wilson explained that a good government “did not need [oaths], and a bad one could not or ought not to be supported.”¹⁵

Luther Martin of Maryland proposed to remove “within the Several states” from the text. Under this proposal, it seems that only federal officers would be required to take an oath to the Constitution.¹⁶ That proposal was defeated by a vote of 7 to 4. Randolph’s proposal was accepted by a vote of 6 to 5.¹⁷

The Convention returned to Randolph’s proposal on July 23. Elbridge Gerry of Massachusetts proposed that “the Officers of the National Government” should also take an oath to “support . . . the Natl. Govt.”¹⁸ Gerry explained that this revised oath would “cure” any perception that the federal and state governments were not part of the same “General System.”¹⁹ Gerry’s proposal was approved unanimously.²⁰

On August 6, John Rutledge of South Carolina delivered the Committee of Detail’s report.²¹ This report expressly provided that “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.”²² It also provided a separate oath for the President.²³ However, the Framers did not provide specific wording for the Article VI oath as they had done for the President’s oath. Instead, they left that task to Congress.

On August 30, James Madison of Virginia proposed a religious accommodation: An officeholder who could not swear an “oath” could alternatively take an “affirmation.”²⁴ That proposal passed unanimously. The text was referred to the Committee of Style, which made a slight revision: “Members of the Legislatures” was changed to “the senators and representatives before mentioned.”²⁵ The clause now provided that “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.”²⁶ In the end, Randolph prevailed: Both federal and state officers must bind themselves to support the U.S. Constitution.

The Ratification Debates

During the ratification debates, supporters of the Constitution hailed the benefits of the Oath or Affirmation Clause. In Federalist No. 27, Alexander Hamilton noted that the oath worked hand-in-hand with the Supremacy Clause to ensure the “regular and peaceable execution of the laws of the Union.” In Federalist No. 44, Madison explained that the Oath or Affirmation Clause was necessary because “members and officers of the State Governments . . . will have an essential agency in giving effect to the Federal Constitution.” At the Connecticut ratifying convention, Oliver Wolcott emphasized that the oath filled a void left by the Constitution’s elimination of religious tests. Wolcott stated that a religious test was no longer a “necessity” because the Constitution “enjoins an oath upon all the officers of the United States,” which amounts to a “direct appeal to that God who is the avenger of perjury.”²⁷

Conversely, the Anti-Federalists saw these unifying and stabilizing effects of the Oath or Affirmation Clause as bugs, not features. James Winthrop, writing as Agrippa, complained that “state officers are also bound by oath to support this constitution,” thereby “binding the state judges and other officers, to execute the continental laws in their own proper departments within the state.” When combined with the Supremacy Clause, Winthrop noted, the oath ensured that even “questions between citizens of the same state are to be decided by the general laws and not by the local ones.”²⁸ But both sides shared the view that the oath to the Constitution mattered, displacing a judge’s freedom to decide a case however he preferred.

Oaths in the First Congress

The House and Senate were supposed to assemble on March 4, 1789, but on that date, they lacked a quorum.²⁹ Shortly after the House obtained a quorum, the members voted to approve an oath by a resolution.³⁰ On April 8, the Chief Justice of New York administered the oath to the Speaker and then to the other members present.³¹ However, at that point, the Senators and Vice President John Adams had not yet taken oaths of office. Adams also had not participated in the joint session on April 6 when the electoral votes were counted and George Washington was elected President.³²

On May 6, Congress passed the first oath statute.³³ The oath provided, “I, A. B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.” Justice Joseph Story related that “a few members” worried about “the constitutional authority of congress to pass such an act” but that, ultimately, “it was approved without much opposition.”³⁴ On June 1, President Washington signed the bill into law.³⁵ This was the first statute the President signed—a testament to the importance of oaths at the time. Two days later, Vice President Adams took his Article VI oath and then proceeded to issue the oath to the other Senators present and to the Secretary of the Senate.³⁶ Yet even before taking the oath, Senators and the Vice President had transacted business.³⁷

The Oath and the Judiciary

Federal judges have long cited their oath as a basis for the power of judicial review. In Marbury v. Madison (1803), Chief Justice John Marshall explained that because “a judge swear[s] to discharge his duties agreeably to the constitution of the United States,” he may not apply a “law repugnant to the constitution.”³⁸ This duty is binding even when (or maybe especially when) the Constitution points in a direction that diverges from a judge’s own preferences. Justice Joseph Story defended his decision in Prigg v. Pennsylvania (1842),³⁹ which upheld the Fugitive Slave Act, based on his oath. Story wrote that he had to issue a decision helpful to slaveholders despite his abolitionist convictions because he “cannot forget or repudiate my solemn obligations at pleasure.”⁴⁰

The U.S. Supreme Court has also connected the federal judiciary’s limited jurisdiction to the oath. Arizona Christian School Tuition Organization v. Winn (2011) observed that Article III’s limits on jurisdiction exist in part because the “legislative and executive departments of the Federal Government, no less than the judicial department, have a duty to defend the Constitution.”⁴¹ The Court added that this “shared obligation is incompatible with the suggestion that federal courts might wield an ‘unconditioned authority to determine the constitutionality of legislative or executive acts.’”⁴²

The oath may provide an important backdrop in the exercise of judicial review. For instance, the Court has reviewed laws with a “presumption of constitutional validity” in part because legislators “are required to take an oath to support the Federal Constitution.”⁴³ Justice Clarence Thomas has similarly observed that courts should afford the executive branch a “presumption of regularity . . . for a coordinate branch of government whose officers . . . take an oath to support the Constitution. . . .”⁴⁴ The oath also informs some jurists’ understanding of stare decisis. Echoing Marbury, Justice Thomas has argued that judges take an oath to support the Constitution—not judicial precedents—and a precedent demonstrably inconsistent with constitutional text should therefore not be followed.⁴⁵

Contemporary judges have explained that the oath holds our legal system together by compelling officers to follow the law, not their personal preferences. When Justice Antonin Scalia spoke at Chief Judge Jeffrey Sutton’s investiture, “he did not talk about textualism or originalism,” but “instead devoted his remarks to the words of the oath.”⁴⁶ To Judge Frank Easterbrook, the oath meant that he had made a “contract”: “In exchange for receiving power and lifetime tenure I agreed to limit the extent of my discretion.”⁴⁷ Chief Judge William H. Pryor Jr. has argued that “the oath requires that judges apply the meaning of enacted texts even if doing so, in their view, works against the common good.”⁴⁸ Putting it simply, Chief Judge Sutton reminds us that “‘where there’s a will there’s a way’ is not part of the oath.”⁴⁹

The Oath and Congress

Members of Congress, like the President and judges, have looked to the oath as a constraint on their power. James Madison argued that the legislator should take “the same view of the official oath . . . as is taken by a Judge.”⁵⁰ Senator Mike Lee of Utah has stated that Senators, who take an Article VI oath, “are never excused from our responsibility to look out for, protect, and defend the Constitution of the United States.”⁵¹ Under this view, members of Congress retain the ability to interpret the Constitution for themselves.⁵² Scholars remain divided, however, as to whether the Article VI oath dictates any specific interpretive methodology.⁵³

The Article VI Oath Clause has also been seen as the only oath that can be imposed on members. In 1862, during the Civil War, Congress enacted the Ironclad Oath statute.⁵⁴ The law required holders of certain federal positions to swear that they did not support people “engaged in armed hostility” against the United States. Taking the oath falsely was a crime, and a convicted person could be disqualified from holding certain positions.⁵⁵ In 1863, Senator Charles Sumner of Massachusetts put forward a resolution requiring all Senators to take the newly prescribed loyalty oath.⁵⁶ Senator James Asheton Bayard, Jr., of Delaware, however, argued that Congress did not have the power to add additional qualifications for elected positions that are created by the Constitution. Bayard claimed that the Article VI oath, which was imposed by the Constitution, was the only oath that members could be required to take.⁵⁷ After a debate, a majority of Senators disagreed with Bayard, and Sumner’s resolution was passed. Bayard, a three-term Senator, resigned in protest on a point of principle.⁵⁸ The loyalty oath would not last long. Congress repealed the statute in 1868, the same year the Fourteenth Amendment was ratified.⁵⁹ Section 3 of the Fourteenth Amendment would disqualify certain people who had taken oaths to the Constitution and engaged in insurrection from holding certain positions.

The Oath and State Officials

The Oath of Affirmation Clause applies to specific state officials: members of state legislatures and “all executive and judicial Officers . . . of the several states.”⁶⁰ In Printz v. United States (1997), Justice David H. Souter’s dissent argued that the oath requirement showed that Congress has the power to commandeer state officials and mandate that they enforce federal law. Souter, quoting Madison, wrote that “[i]t is appropriate for state officials to make an oath or affirmation to support the Federal Constitution because, as explained in The Federalist, they ‘have an essential agency in giving effect to the federal Constitution.’”⁶¹

The majority disagreed, holding that Congress cannot commandeer state executive officials, despite those officials’ federal oath. Justice Scalia’s majority opinion explained that state officials are bound only by laws “made in Pursuance [of the Constitution]” and that “laws conscripting state officers [to] violate state sovereignty . . . are . . . not in accord with the Constitution.”⁶² A textual inference confirmed the point. The oath forces state executive and legislative officers to support “this Constitution,” but the Supremacy Clause imposes an additional obligation on state judges: “[T]he Judges in every State shall be bound” by the “Laws of the United States.”⁶³ Scalia wrote that “courts should have been viewed distinctively in this regard; unlike legislatures and executives, they applied the law of other sovereigns all the time.”⁶⁴ The “anti-commandeering” doctrine has been defended and criticized by originalist scholars.⁶⁵

Open Questions

• The First Congress assembled on March 4, 1789. However, it was not until June 3 that the President, Vice President, and all members of Congress had taken their oath of office. When did the constitutional terms for these elected positions begin? In 1790, the First Congress determined that all of their terms began on March 4,⁶⁶ and this date was reflected in the Presidential Succession Act of 1792.⁶⁷ How could an officer’s constitutional term begin before he took a constitutional oath?
• The President and Vice President are not expressly enumerated in the Article VI Oath or Affirmation Clause, but this provision does refer to “executive . . . Officers of the United States.” Do the President and Vice President fall in this category?⁶⁸ The first oath statute expressly refers to the Vice President in his legislative capacity as “President of the Senate.”⁶⁹

1. Coronation Oath Act 1688, 1 W. & M. c. 6 (Eng.). ↩︎
2. Declaration of Judges on Unlawful Imprisonments (June 9, 1591), in 5 W.S. Holdsworth, A History of English Law 495 (1927); Philip Hamburger, Law and Judicial Duty, 72 Geo. Wash. L. Rev. 1, 23–24 (2001). ↩︎
3. Declaration of Independence, ¶ 32. ↩︎
4. S.C. Const. of 1776, arts. VI, XXXIII; N.J. Const. of 1776, art. XXIII; Del. Const. of 1776, art. XXII; Pa. Const. of 1776, § 40; N.C. Const. of 1776, art. XII; Ga. Const. of 1776, art. XXIV; Vt. Const. of 1777, ch. 2, § IX; S.C. Const. of 1778, art. XXXVI; Mass. Const. of 1780, ch. VI. ↩︎
5. Jeffrey Sutton, Who Decides? States as Laboratories of Constitutional Experimentation 46–47 (2022). ↩︎
6. Bayard v. Singleton, 1 N.C. 5, 6 (1787). ↩︎
7. Articles of Confederation, art IX, § 2. ↩︎
8. Id., art. III. ↩︎
9. 1 Farrand’s 22, 28. ↩︎
10. Id. at 194, 203. ↩︎
11. Id. at 203. ↩︎
12. Id. at 207. ↩︎
13. 2 Farrand’s 87. ↩︎
14. Roberta Bayer, James Wilson’s Views on Oaths, James Wilson Inst., Anchoring Truths, https://perma.cc/WF8X-BWN6. ↩︎
15. 2 Farrand’s 87. ↩︎
16. 1 Farrand’s 194. ↩︎
17. 1 Farrand’s 194. ↩︎
18. 2 Farrand’s 87. ↩︎
19. 2 Farrand’s 88. ↩︎
20. Id. ↩︎
21. Id. at 177. ↩︎
22. Id. at 188 (emphasis added). ↩︎
23. Id. at 185. ↩︎
24. Id. at 468. ↩︎
25. Id. at 565, 579, 590. ↩︎
26. Id. at 603. ↩︎
27. 2 Elliot’s 202. ↩︎
28. Storing 4.16.19. ↩︎
29. S. Jour., 1st Cong., 1st Sess. 3 (Mar. 4, 1789); H.R. Jour., 1st Cong., 1st Sess. 3 (Mar. 4, 1789). ↩︎
30. H.R. Jour., 1st Cong., 1st Sess. 7 (Apr. 6, 1789). ↩︎
31. Id. at 11 (Apr. 8, 1789). ↩︎
32. S. Jour., 1st Cong., 1st Sess. 7–8 (Apr. 6, 1789). ↩︎
33. H.R. Jour., 1st Cong., 1st Sess. 29 (May 6, 1789). ↩︎
34. 2 Story’s Commentaries § 1840. ↩︎
35. An Act to regulate the Time and Manner of administering certain Oaths, 1 Stat. 23 (1789). ↩︎
36. S. Jour., 1st Cong., 1st Sess. 31 (June 3, 1789). ↩︎
37. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 428 (2023). ↩︎
38. 5 U.S. 137, 180 (1803). ↩︎
39. 41 U.S. 539 (1842). ↩︎
40. Letter from Joseph Story to Ezekiel Bacon (Nov. 19, 1842), in 2 Life and Letters of Joseph Story 431 (1851). ↩︎
41. 563 U.S. 125, 133 (2011). ↩︎
42. Id. (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)). ↩︎
43. Illinois v. Krull, 480 U.S. 340, 351 (1987). ↩︎
44. Dep’t of Commerce v. New York, 588 U.S. 752, 792 (2019) (Thomas, J., dissenting in part); Aram A. Gavoor & Steven Platt, In Search of the Presumption of Regularity, 74 Fla. L. Rev. 729, 757–59 (2022). ↩︎
45. Gamble v. United States, 587 U.S. 678, 716–18 (2019) (Thomas, J., concurring). ↩︎
46. NR Symposium, Antonin Scalia—A Justice in Full (Feb. 29, 2016), https://perma.cc/3EPE-AVAD. ↩︎
47. Frank Easterbrook, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1122 (1998). ↩︎
48. William Pryor, Politics and the Rule of Law, Heritage Found. Lecture (Oct. 20, 2021), https://perma.cc/WKC6-257S. ↩︎
49. Jeffrey Sutton, A Review of Richard A. Posner, How Judges Think, 108 Mich. L. Rev. 859, 874 (2010). ↩︎
50. Letter from James Madison to Charles J. Ingersoll (June 25, 1831), https://perma.cc/N44S-5YKV. ↩︎
51. 159 Cong. Rec. S6771 (2013). ↩︎
52. Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Pa. Const. L. 1, 28–29 (2016). ↩︎
53. Christopher Green, Is the Oath Argument for Originalism Circular?, The Originalism Blog (May 11, 2020), https://perma.cc/WU35-6499. ↩︎
54. Act to Prescribe an Oath of Office, and for other Purposes, ch. 127, Pub. L. No. 37-127, 12 Stat. 502 (1862) (repealed 1868). ↩︎
55. Myles S. Lynch, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, 30 Wm. & Mary Bill of Rts. J. 153, 165 (2021). ↩︎
56. Cong. Globe, 38th Cong., 1st Sess. 31, 37 (1864). ↩︎
57. Josh Blackman & Seth Barrett Tillman, Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, 15 N.Y.U. J.L. & Liberty 1, 36–39 (2021). ↩︎
58. Senator Resigns to Protest Loyalty Oath, United States Senate, https://perma.cc/FLJ8-6WCF. ↩︎
59. The Senate’s First Act—The Oath Act, United States Senate, https://perma.cc/V9B7-A6VY. ↩︎
60. Tillman & Blackman, supra at 419 n.324, 421–22. ↩︎
61. 521 U.S. 898, 943 (1997) (Souter, J., dissenting). ↩︎
62. Id. at 924–25 (majority opinion). ↩︎
63. Id. at 907. ↩︎
64. Id. ↩︎
65. Richard Re, Promising the Constitution, 110 Nw. U. L. Rev. 299, 343 (2016); Saikrishna Prakash, Field Office Federalism, 79 Va. L. Rev. 1957, 2001 n.231 (1993); Anthony J. Bellia, Jr. & Bradford R. Clark, The International Law Origins of American Federalism, 120 Colum. L. Rev. 835, 924–34 (2021); Wesley J. Campbell, Commandeering and Constitutional Change, 122 Yale L.J. 1104, 1133–37 (2013). ↩︎
66. 1 Annals of Cong. 1010–11 (1790). ↩︎
67. 1 Stat. 239, 241 (1792). ↩︎
68. Tillman & Blackman, supra at 431–33. ↩︎
69. 1 Stat. 23. ↩︎