« ForrigeFortsett »
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.
Support the Constitution.
This oath to support the Constitution is required of all officers, both National and State, and belonging to either of the three departments, executive, legislative, judicial. Oath to The Constitution itself (Article II, Section 1, Clause 8) prescribes the oath to be taken by the President of the United States. The first statute enacted under the Constitution was for the purpose of carrying into effect the present clause. On the 1st of June, 1789, a law was passed, prescribing the oath as well as the time and manner of taking it, by the officers of the United States and of the several States. Objection was made to the bill on the ground that while an oath was obligatory upon all officers, State and National, there was no provision in the Constitution empowering Congress to pass a law enjoining the oath. To this it was replied that the general declarations of the Constitution could not be carried into effect without particular regulations adapted to the circumstances, and that these regulations must be made by Congress.1
The same objection has been made in numerous other instances, but the answer above given is sufficient. Were the objection to be regarded as valid, the wheels of government must stop. The Constitution is full of provisions requiring the performance of various duties, while no express power is given to Congress to pass laws prescribing the mode of performance. But Congress has always regarded itself as possessing the requisite power. In the first statute enacted under the Constitution, Congress decided that it had this power, and the law then enacted has remained in force to this day. In regard to a similar clause, the Supreme Court held that "the end being required, it is a just and necessary implication that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end. The National government, in the absence of all positive provisions to the
1 Annals of Congress, I. p. 266.
contrary, is bound, through its proper departments, legislative, judicial, or executive, to carry into effect all the rights and duties imposed on it by the Constitution."
The act of June 1st, 1789, prescribed the following oath: "I, A. B., do solemnly swear, or affirm (as the case may be), that I will support the Constitution of the United States." On the 2d of July, 1862, a very stringent oath of office was prescribed for all persons who should be elected or appointed to any office under the general government. The act required the person to take oath that he had never taken arms against the United States or aided its enemies; that he had not sought or held office under, or yielded any support to, any pretended government hostile to the United States. It was applied to attorneys by an amendment made in 1865.
This oath has been called the "iron-clad oath," and it was this act which was pronounced unconstitutional by the Supreme Court, so far as it related to attorneys of that Court. In 1868 (July 11th) the retrospective part of the iron-clad oath was abolished for those persons having had participation in the late rebellion, from whom all legal disabilities shall have been removed by act of Congress, by a vote of two thirds of each House. In 1871 (February 15th), the act of 1868 was made applicable to all who participated in the rebellion who are not ineligible to office by the provisions of the Fourteenth Amendment. The law of 1862 has recently been repealed.
The last clause-touching a religious test-provides for universal toleration. No desire has ever been manifested to remove this prohibition and introduce a religious test.
When the convention of South Carolina ratified the Constitution, they proposed this among other Amendments—that the word "other" should be inserted after the word "no"; implying that an oath or affirmation to support the Constitution was itself a religious test.1
1 Jour. Cont. Cong., XIII. page 171.
RATIFICATION OF THE CONSTITUTION.
The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.
The Articles of Confederation provided that no alteration should be made in them "unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislature of every State." This provision was entirely disregarded in adopting Confederation the present Constitution, showing that those Articles were not regarded as any thing more than a provisional Constitution. They were in the "form of a compact among the States," in the language of Mr. Madison.
The PEOPLE, in whose name the Declaration of Independence was made on the 4th of July, 1776, had nothing to do with the Articles of Confederation. These had "no higher sanction than a mere legislative ratification."1 The Convention had now framed a Constitution in the name of the people, by whom it was to be ratified. Thus the old Articles of Confederation were practically ignored by the Convention and by the people of the United States.
Action of the
In the resolution of the Continental Congress, adopted February 21st, 1787, which provided for calling the Convention, it was stipulated that the Convention should report to Congress and to the several State legislatures for action by all these bodies. But the Convention, as seen in this Article, did not ask the ratification of their work, either by Congress or by the State legislatures, but by conventions of the people. They not only ignored the old Constitution, they also disregarded the directions of Congress as expressed in the resolution under which the Convention itself had been called. In
1 Federalist, No. 43.
the Convention Mr. Madison said it was essential that the direct action of the people should be had; and that the new Constitution should be ratified in the most unexceptionable form by the supreme authority of the people themselves.
The Constitution was to be binding when ratified by the conventions of nine States-two thirds of the whole number. This was the number required under the Confederation for declaring war, making treaties, emitting bills of credit, etc. The Constitution was signed by the members of the Convention September 17th, 1787, and forwarded to Congress, with a resolution requesting that it be transmitted to the Constitution several States for ratification by conventions. Another resolution was adopted by the Convention, making suggestions to Congress in regard to the mode of putting the Constitution into operation after it should be ratified. Accompanying these resolutions was a letter to the President of Congress by George Washington, President of the Convention.
On the 28th of September Congress voted unanimously to transmit the Constitution to the several State legislatures, to be Action of Con- by them submitted to "Conventions of delegates gress and the chosen in each State by the people thereof." It was ratified by Delaware December 7th; by Pennsylvania, December 12th; by New Jersey, December 18th; by Georgia, January 2d, 1788; by Connecticut, January 9th; by Massachusetts, February 7th; by Maryland, April 28th; by South Carolina, May 23d; and by New Hampshire, June 21st. This made the requisite number of States.
On receiving the intelligence that the ninth State had ratified the Constitution, Congress appointed a committee to report a Plan for the plan for putting the new government into operation. This committee reported July 14th. On the 13th of September final action was taken, providing for the election of the two Houses of Congress, and of a President and Vice-president, and appointing the 4th day of
March as the day on which to commence proceedings. that day Virginia and New York had ratified the Constitution, making eleven States. North Carolina had deferred it, and Rhode Island refused to call a convention. Both, however, ratified it subsequently; the former, November 21st, 1789, the latter May 29th, 1790. It will be remembered that Rhode Island sent no delegate to the Convention that framed the Constitution.
States had Persisted in their Refusal.
The question naturally arises, what would have been the relation of these two States to the United States had they finally refused to ratify the Constitution. It has been held by some that their status would have been that of foreign nations. This view is believed to be untenable. While the Constitution was undergoing discussion in the conventions, the question as to the relations to the others of any States that should not ratify it, was justly considered a very delicate one. The object of the friends of the Constitution was to induce every State voluntarily to adopt it; and to announce, beforehand, what would be the consequences of a refusal, might be construed into a threat, and so obstruct the attainment of the desired object.1 Of this question Mr. Madison said, "The flattering prospect of its being merely hypothetical forbids an overcurious discusssion of it. It is one of those cases which must be left to provide for itself. ** Considerations of a common interest and above all the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.""
After the Constitution went into operation, this question soon came before Congress. On the 5th of June, 1789, a resolution was introduced into the House of Representatives, urging the legislature of Rhode Island to call a convention. In
The View of
July a law was passed imposing a tonnage duty of fifty cents a ton on
1 Farrar, page 490.
2 Federalist, No. 43.