Debates in the Several State Conventions/Volume 4/Oath
OPINIONS,
SELECTED FROM DEBATES IN CONGRESS,
from
1789 to 1836,
involving
CONSTITUTIONAL PRINCIPLES.
Oath.—On a Bill prescribing the Oath to support the Constitution.
May 6, 1789.
Mr. GERRY said, he did not discover what part of the Constitution gave to Congress the power of making this provision, (for regulating the time and manner of administering certain oaths,) except so much of it as respects the form of the oath; it is not expressly given by any clause of the Constitution, and, if it does not exist, must arise from the sweeping clause, as it is frequently termed, in the 8th section of the 1st article of the Constitution, which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." To this clause there seems to be no limitation, so far as it applies to the extension of the powers vested by the Constitution; but even this clause gives no legislative authority to Congress to carry into effect any power not expressly vested by the Constitution. In the Constitution, which is the supreme law of the land, provision is made that the members of the legislatures of the several states, and all executive and judicial officers thereof, shall be bound by oath to support the Constitution. But there is no provision for empowering the government of the United States, or any officer or department thereof, to pass a law obligatory on the members of the legislatures of the several states, and other officers thereof, to take this oath. This is made their duty already by the Constitution, and no such law of Congress can add force to the obligation; but, on the other hand, if it is admitted that such a law is necessary, it tends to weaken the Constitution, which requires such aid: neither is any law, other than to prescribe the form of the oath, necessary or proper to carry this part of the Constitution into effect; for the oath required by the Constitution, being a necessary qualification for the state officers mentioned, cannot be dispensed with by any authority whatever, other than the people, and the judicial power of the United States, extending to all cases arising in law or equity under this Constitution. The judges of the United States, who are bound to support the Constitution, may, in all cases within their jurisdiction, annul the official acts of state officers, and even the acts of the members of the state legislatures, if such members and officers were disqualified to do or pass such acts, by neglecting or refusing to take this oath.
Mr. BLAND had no doubt respecting the powers of Congress on this subject. The evident meaning of the words of the Constitution implied that Congress should have the power to pass a law directing the time and manner of taking the oath prescribed for supporting the Constitution. There can be no hesitation respecting the power to direct their own officers, and the constituent parts of Congress: besides, if the state legislatures were to be left to direct and arrange this business, they would pass different laws, and the officers might be bound in different degrees to support the Constitution. He not only thought Congress had the power to do what was proposed by the Senate, but he judged it expedient also.
Mr. JACKSON. The states had better be left to regulate this matter among themselves; for an oath that is not voluntary is seldom held sacred. Compelling people to swear to support the Constitution will be like the attempts of Britain, during the late revolution, to secure the fidelity of those who fell within the influence of her arms; and like those attempts they will be frustrated. The moment the party could get from under her wings, the oath of allegiance was disregarded. If the state officers will not willingly pay this testimony of their attachment to the Constitution, what is extorted from them against their inclination is not much to be relied on.
Mr. LAWRENCE. Only a few words will be necessary to convince us that Congress have this power. It is declared by the Constitution, that its ordinances shall be the supreme law of the land. If the Constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently, every general declaration it contains is the supreme law. But then these general declarations cannot be carried into effect without particular regulations adapted to the circumstances: these particular regulations are to be made by Congress, who, by the Constitution, have power to make all laws necessary or proper to carry the declarations of the Constitution into effect. The Constitution likewise declares that the members of the state legislatures, and all officers, executive and judicial, shall take an oath to support the Constitution. This declaration is general, and it lies with the supreme legislature to detail and regulate it.
Mr. SHERMAN. It appears necessary to point out the oath itself, as well as the time and manner of taking it. No other legislature is competent to all these purposes; but if they were, there is a propriety in the supreme legislature's doing it. At the same time, if the state legislatures take it up, it cannot operate disagreeably upon them, to find all their neighboring states obliged to join them in supporting a measure they approve. What a state legislature may do, will be good as far as it goes. On the same principle, the Constitution will apply to each individual of the state officers: they may go, without the direction of the state legislature, to a justice, and take the oath voluntarily.
This, I suppose, would be binding upon them; but this is not satisfactory; the government ought to know that the oath has been properly taken; and this can only be done by a general regulation. If it is in the discretion of the state legislatures to make laws to carry the declaration of the Constitution into execution, they have the power of refusing, and may avoid the positive injunctions of the Constitution. As the power of Congress, in this particular, extends over the whole Union, it is most proper for us to take the subject up, and make the proper provision for carrying it into execution, to the intention of the Constitution.