ARTICLE VI

Debt Assumption

           All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

(ARTICLE VI, CLAUSE 1)

To finance the War of Independence, the American states and the Continental Congress sold millions of dollars in public bonds to soldiers, ordinary Americans, and investors both within America and abroad. The Constitutional Convention first addressed the debt issue during its debates on the proposed powers of Congress. On August 21, 1787, the Convention considered this proposal: “The Legislature of the U.S. shall have the power to fulfil the engagements which have been entered into by Congress, and to discharge as well the debts of the U-S: as the debts incurred by the several States during the late war, for the common defence and general welfare.”

Whether Congress could discharge the state debts was left unsettled because the ensuing debate centered on a different question: Would the new federal government necessarily inherit the debt obligations of the old Continental and Confederation Congresses? There was precedent for such an action in Article XII of the Articles of Confederation, which declared that the Confederation Congress was liable for “monies borrowed and debts contracted by” the old Continental Congress.

Nor was this the only support. Writers on the law of nations, such as Dutch jurist Hugo Grotius, held that the various forms of government were only different means by which political societies achieved the same basic ends. In their view, political societies existed prior to and separate from their particular forms of government (e.g., monarchy or aristocracy), and they could change that form without destroying their existence or altering their fundamental obligations to other countries.

Elbridge Gerry objected that the August 21 proposal only gave the new Congress the “power” rather than the obligation to pay back the debt. He feared that this wording would allow Congress to neglect the rightful return on bonds due to the creditor “class of citizens.” To Oliver Ellsworth and Roger Sherman, such a concern was misplaced because the “U-S heretofore entered into Engagements” by Congresses “who were their agents” and “will hereafter be bound to fulfil them by their new agents.”

While Edmund Randolph agreed that the United States was still liable for its obligations, he maintained that the “new Govt” was one of enumerated powers and thus would have only the power given to it by the Constitution. Without an explicit grant of constitutional power, the federal government would be in the strange position of not having the authority to pay off the debts still owed by the country. Unlike Randolph, James Madison held that the obligation to pay debts necessarily conferred the power to pay debts whether or not the Constitution gave the new government such a specific power. Madison argued that the new federal government would receive its constitutional power in domestic matters through enumerated grants from the people of the states; but the states themselves “never possessed the essential rights of sovereignty,” which were “war, peace, treaties,” and other powers over external affairs. Thus, in matters relating to repayment of debts to foreign bondholders, the new national government would inherit its powers directly from the Articles. Thus, Congress did not need an explicit grant of power from the new Constitution. In defending the clause against Anti-Federalist criticism, Madison maintained that its insertion was not a legal or constitutional necessity but was done only “for the satisfaction of the foreign creditors of the United States.” The Federalist No. 43.

Following a motion by Gouverneur Morris on August 25, the convention changed the clause from a grant of power to Congress to an obligation of the United States. The change was then accepted by the convention, which split the power to “pay the Debts,” leaving it in Article I, Section 8, from the obligation to uphold “debts” and “Engagements,” moving the latter to Article VI. A few commentators later thought that “engagements” also referred to the central government’s obligations to the people of the Northwest Territory under the Northwest Ordinance (1787), but none of the Framers in Philadelphia made that connection while debating the clause.

After some political struggles in the early 1790s, the new federal government made good on the bond obligations inherited from the Articles of Confederation, thus vitiating the possibility for serious constitutional controversy. Subsequently, early Supreme Court cases like Ware v. Hylton (1796) and Terrett v. Taylor (1815) settled constitutional issues of contracts and property rights from the pre-Constitution era, not by interpreting the Debt Assumption Clause, but by invoking the Supremacy Clause of Article VI.

The clause’s purpose, therefore, was less legal than it was to reaffirm the Grotian principle that the nation as a juridical entity maintained its international obligations even through changes in the form of government. Inasmuch as a primary motivation for the calling the Constitutional Convention was to create a solid financial basis for the country to honor its foreign debts, the Debt Assumption Clause had a salutary effect on the United States’ standing in the international community.

Jeffrey Sikkenga

See Also

Article I, Section 8, Clause 1 (Spending Clause)

Suggestions for Further Research

David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789–1791, 61 U. CHI. L. REV. 775 (1994)

PETER ONUF, STATEHOOD AND UNION: A HISTORY OF THE NORTHWEST ORDINANCE (1987)

Significant Cases

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796)

Terrett v. Taylor, 13 U.S. (9 Cranch) 43 (1815)

Supremacy Clause

           This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

(ARTICLE VI, CLAUSE 2)

Any federal system needs a strategy for dealing with potential conflicts between the national and local governments. There are at least three strategies available. First, each government could be given exclusive jurisdiction over its respective sphere, which would avoid altogether the possibility of direct conflict. Second, the governments could have concurrent jurisdiction, but one government could be given power to veto actions of the other, either in the event of actual conflict or in general classes of cases. Third, both governments could be allowed to act without mutual interference, but one government’s acts could be given primacy over the other’s acts in the event of actual conflict.

The Supremacy Clause embodies the third strategy. It is a conflict-of-laws rule specifying that certain national acts take priority over any state act that conflicts with national law. In this respect, the Supremacy Clause follows the lead of Article XIII of the Articles of Confederation, which provided that “[e]very state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them.” While the last portion of the Supremacy Clause specifically singles out only state court judges as bound by federal law, the declaration of federal supremacy in the clause’s opening portion is general and binds all legal actors, ranging from federal officials to state jurors. In fact, Article VI, Clause 3, the Oaths Clause, requires all legislative, executive, and judicial officers of both state and federal governments to swear to support the U.S. Constitution.

The Supremacy Clause does not distinguish among the three named sources of federal law: the Constitution, the laws of the United States, and treaties. All are equally supreme over competing sources of state law or other sources of federal law (such as federal common law). Thus, the Supremacy Clause does not itself establish the supremacy of the Constitution over federal statutes or treaties. Rather, constitutional primacy over other sources of “supreme” federal law is a structural inference from the nature of the Constitution—as elaborated by Chief Justice John Marshall in Marbury v Madison (1803). The sequencing of sources of federal law in the Supremacy Clause, with the Constitution coming first, is some modest evidence in favor of constitutional primacy, which is precisely how Marshall’s argument in Marbury employed the clause. One could use similar intra-textual and structural considerations to argue that federal statutes must always take precedence over federal treaties, but standard law has long been that federal statutes and treaties are equally supreme, with the latest enactment controlling in the event of conflict between them.

Modern law also treats federal administrative regulations as supreme over competing sources of state law. See Geier v. American Honda Motor Co., Inc. (2000). This conclusion rests more uneasily with the language of the Supremacy Clause, which names only the Constitution, the laws of the United States made pursuant thereto, and treaties as supreme federal instruments. Normally, one thinks of the “Laws of the United States . . . made in Pursuance” of the Constitution as statutes enacted in accordance with the lawmaking procedures of Article I, Section 7, and administrative regulations do not fit that description. But the courts have attempted to resolve the possible contradiction by holding that administrative regulations are made pursuant to a delegation of law from Congress. Thus, they take on the character of federal “laws.” Whatever the correct answer may be as a matter of original meaning, the principle of federal regulatory supremacy over state law is now firmly established. Indeed, federal regulations have emerged as the most frequent source of federal-state conflicts.

The Supremacy Clause does not grant power to any federal actor, such as Congress. It is an interpretative rule that deals with resolving conflicts between the federal and state governments once federal power has been validly exercised. It does not preclude other strategies for dealing with potential national and state conflicts, nor does it allocate power between the national and state governments. Other parts of the Constitution do that.

There was support at the Constitutional Convention for a supremacy clause that would adopt other conflict-resolving strategies. James Madison, among others, favored a direct congressional power to veto state laws, and he even seconded the strong proposal of Charles Pinckney “that the National Legislature shd. have authority to negative all [state] Laws which they shd. judge to be improper.” The Convention repeatedly rejected all such proposals for a federal veto power over state laws. The objective of the Framers throughout was to devise strategies that would reduce occasions for national and state conflict.

The Supremacy Clause in its final form was adopted by the Convention without serious dissent. Indeed, the essence of its final form was proposed by the Anti-Federalist Luther Martin. While some Anti-Federalists subsequently objected in broad terms to the prospect of federal supremacy, nothing in those debates negated the general understanding that the Supremacy Clause was a straightforward conflict-of-laws rule designed to resolve conflicts between state and federal law touching on the same subject.

The clause’s language, context, and history leave some important questions unanswered. For example, what constitutes a conflict? Must it be literally impossible to comply with both the state and federal rules, or is it enough that a state’s law will in some fashion alter or stand as an obstacle to the operation of the federal rule? Properly applied as a conflict-of-laws provision, the Supremacy Clause would lead a common law court to acknowledge that a conflict does not always occur simply because two sovereigns have legislated on a common subject; both Congress and the courts recognize that principle today.

Consequently, the modern Court has fashioned subsidiary rules to try to determine when there is a genuine conflict between a state and federal law on the same subject, or, in modern parlance, whether the federal law has “preempted” the state law. Modern doctrine generally holds that preemption occurs whenever it is intended by Congress. That intent, of course, can most directly be demonstrated by an express provision in a federal statute declaring the statute’s preemptive effect (or lack thereof). Even in the absence of an express preemption provision, however, state law is preempted “[w]hen Congress intends federal law to ‘occupy the field’” or “to the extent of any conflict with a federal statute.” Crosby v. National Foreign Trade Council (2000). Conflicts can also result either when it is literally impossible to comply with both state and federal law, Pliva, Inc. v. Mensing (2011), or, much more commonly, when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz (1941). Determining whether a state law sufficiently obstructs federal purposes and is thus preempted “is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby. There is, however, an interpretative presumption against preemption in areas of traditional state concern. As the Court stated in Rice v. Santa Fe Elevator Corp. (1947), “[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”

The preemption doctrine in its current form is a twentieth-century development. No state statute was invalidated for anything other than a straightforward conflict with a specific federal enactment until 1912, and the focus on congressional intent as the touchstone of preemption did not emerge until the New Deal, when the locus of reformist legislation shifted from the states to the federal government.

In addition to serving a central role in preemption analysis, the Supremacy Clause is often seen as the source of the principle that states cannot regulate, interfere with, or control dera . . . instrumentalities. This principle is generally traced to McCulloch v. Maryland (1819), in which the Court held that Maryland could not constitutionally tax the operations of the Bank of the United States. Chief Justice Marshall declared in McCulloch that

           [i]t is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain.

Modern law has to some extent qualified the broadest implications of this early formulation of the supremacy principle. If federal supremacy indeed “remove[s] all obstacles” to federal action that might be posed by state regulation, states could be constitutionally forbidden even from taxing the salaries of federal employees. The Court indeed embraced such an idea for some time before specifically rejecting it in Graves v. New York ex rel. O’Keefe (1939). Modern law maintains instead that “[a] state regulation is invalid only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals.” North Dakota v. United States (1990) (plurality opinion).

While the federal government can prevent states from interfering with federal operations, whether through taxes or otherwise, that does not necessarily mean that the Supremacy Clause is the basis upon which Congress exercises its power to protect federal operations, for the Supremacy Clause is not a grant of power to Congress. Rather, the valid exercise of any one of Congress’s enumerated powers can constitute the constitutional source of a statute that effectively preempts a state law. In particular, the Necessary and Proper Clause would be a vehicle for a statute that explicitly disables state law from operating in an area of federal concern. Thus, for an explicitly preemptive statute to be constitutional, it must be “necessary and proper for carrying into execution” some enumerated federal power, subject, of course, to the constitutional limits of the Necessary and Proper Clause itself.

For example, Congress could decide (explicitly or implicitly) that it alone should regulate the radiological-safety aspects involved in the construction and operation of a nuclear plant and thus preempt the field from any state regulation of nuclear power safety. Pacific Gas & Electric v. Energy Resources Commission (1983). Congress could decide (explicitly or implicitly) that it wanted gradually to phase in passive restraints in automobiles, thus preempting a local tort law that required airbags to be installed in all new cars. Geier v. American Honda Motor Co., Inc. Congress might decide that it wanted an area in interstate commerce to be regulated only by the free market and not by the states, thus precluding state legislation in this particular area altogether.

Inasmuch as any state statute that regulates federal activities in ways forbidden by a congressional statute would conflict with valid federal law, Congress is thus logically free to permit state regulation of federal instrumentalities through a sufficient expression of intent. For example, the Supreme Court has allowed Congress either to authorize or to limit state taxation of federal banks. Carson v. Roane-Anderson Co. (1952). In any event, the sequence is this: Congress, under its delegated powers, or a state, under its police power, may establish legal rules dealing with the same subject. It then falls to the courts to determine, under the Supremacy Clause, whether the state and federal rules are in conflict.

Article VI, Section 2, has separate provisions for treaties and federal laws. There is a textual distinction in the clause between laws “made in pursuance [of the Constitution]” and treaties “made under the authority of the United States.” See Missouri v. Holland (1920). The effectiveness of national treaties was a special concern of the Founding generation. This language ensured that treaties entered into by the United States prior to ratification of the Constitution—most notably, the 1783 treaty of peace with Great Britain and its guarantees against confiscations of loyalist property—took precedence over conflicting state laws, and the language in the Supremacy Clause targeting state court judges no doubt reflected the concern about treaty enforcement. The phrasing does not in any way imply that treaties are “supreme” even if they conflict with other constitutional provisions. The Supreme Court has declared that neither a treaty approved by the Senate nor an executive agreement made under the president’s authority can create obligations that violate constitutional guarantees such as found in the Bill of Rights. Reid v. Covert (1957).

Like federal statutes, treaties are “supreme” only when they are effective as domestic law. Thus, the manner in which treaties become legally effective is important for determining when they take priority over state law. “Self-executing treaties” become part of the law of the United States directly. On the other hand, the courts will not enforce “non-self-executing treaties” until they are carried into law by an act of Congress. Determining whether a treaty is self-executing or non-self-executing is a complex and confusing task, as lower courts have readily averred. In general, the courts will regard a treaty as non-self-executing if it requires any governmental funding to accomplish its purposes, or if there is any expressed intent by the terms of the treaty, the president, the Senate, or even the record of negotiation that indicates that the government desired that the treaty be non-self-executing.

In addition, there is a vigorous debate among scholars over what was the Framers’ original understanding on this point. One group holds that the Framers intended that most treaties were to be self-executing (unless the terms of the treaty indicate otherwise). Another group of commentators argues that any treaty that impinges upon Congress’s Article I powers is non-self-executing. Otherwise, the Framers’ careful system of protecting the people from onerous legislation through the separation of powers could be outflanked by the president and the Senate alone.

However a treaty becomes part of the law of the United States, it is on a par with other federal laws and can be repealed by Congress, though the United States’ obligations under international law remain. Under Supreme Court precedents, the last expression of the sovereign will controls what will be enforced, so an act of Congress that is in conflict with a treaty will control if the act became law after the Senate ratified the treaty, and vice versa. To avoid such conflicts, the courts have fashioned a prudential rule whereby laws will be interpreted to be in harmony with United States treaty obligations if at all possible.

Gary Lawson

See Also

Article I, Section 8, Clause 18 (Necessary and Proper Clause)

Article VI, Clause 3 (Oaths Clause)

Suggestions for Further Research

DAVID E. ENGDAHL, CONSTITUTIONAL FEDERALISM IN A NUTSHELL (1987)

Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767 (1994)

S. Candice Hoke, Transcending Conventional Supremacy: A Reconstruction of the Supremacy Clause, 24 Conn. L. Rev. 829 (1992)

Vasan Kesavan, The Three Tiers of Federal Law, 100 Nw. U. L. Rev. 1479 (2006)

Gary Lawson, Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy, 110 Mich. L. Rev. First Impressions 33 (2011)

Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727 (2008)

Jonathan F. Mitchell, Stare Decisis and Constitutional Text, 110 Mich. L. Rev. 1 (2011)

Caleb Nelson, Preemption, 86 Va. L. Rev. 225 (2000)

Jordan J. Paust, Self-Executing Treaties, 82 Am. J. Int’l L. 760 (1988)

Catherine M. Sharkey, Inside Agency Preemption, 110 Mich. L. Rev. 521 (2012)

John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999)

Significant Cases

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)

Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299 (1851)

Missouri v. Holland, 252 U.S. 416 (1920)

Graves v. New York ex rel. O’Keefe, 306 U.S. 466 (1939)

Hines v. Davidowitz, 312 U.S. 52 (1941)

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)

Carson v. Roane-Anderson Co., 342 U.S. 232 (1952)

Reid v. Covert, 354 U.S. 1 (1957)

Pacific Gas & Electric Co. v. Energy Resources Conservation & Development Comm’n, 461 U.S. 190 (1983)

North Dakota v. United States, 495 U.S. 423 (1990)

Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)

Geier v. American Honda Motor Co., 529 U.S 861 (2000)

PLIVA, Inc. v. Mensing, 132 S. Ct. 55 (2011)

Arizona v. Inter Tribal Council of Ariz., 133 S. Ct. 2247 (2013)

Oaths 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.…

(ARTICLE VI, CLAUSE 3)

Although the practical application of the Constitution is largely in the hands of state judges, the primacy of the Constitution ultimately depends on officers of the law—in particular, officers of each branch of government—being equally bound to its support. In this sense, the Oaths Clause is the completion of the Supremacy Clause. Stated more precisely, the Oaths Clause, along with the president’s oath of office prescribed in Article II, Section 1, Clause 8, is the practiced mechanism to uphold the Constitution’s supremacy as invoked in the Supremacy Clause of Article VI, Clause 2.

In England, subjects were required to swear loyalty to the reigning monarch; many early American documents included oaths of allegiance to the British king. During the American Revolution, General George Washington required all officers to subscribe to an oath renouncing any allegiance to King George III and pledging their fidelity to the United States. Most of the new state constitutions included elaborate oaths that tied allegiance to and provided a summary of the basic constitutional principles animating American constitutionalism. There was no oath in the Articles of Confederation.

At the Constitutional Convention, Edmund Randolph proposed, as part of the Virginia Plan, “that the Legislative Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union.” When it was objected that this would unnecessarily intrude on state jurisdiction, Randolph responded that he

           considered it as necessary to prevent that competition between the National Constitution & laws & those of the particular States, which had already been felt. The officers of the States are already under oath to the States. To preserve a due impartiality they ought to be equally bound to the Natl. Govt. The Natl. authority needs every support we can give it.

The Oaths Clause helps to fulfill the Framers’ plan to integrate the states into the electoral, policymaking, and executory functions of the federal union, subject to the limits of the Tenth Amendment. For example, the Supreme Court has held that Congress may not “conscript” the legislatures or executive officers of a state directly into federal service. New York v. United States (1992); Printz v. United States (1997). In The Federalist No. 27, Alexander Hamilton offered a careful and nuanced description of the Oaths Clause: “[t]hus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.”

For the sake of consistency and unity, the delegates amended the Oaths Clause to cover officers of the national government as well. Later, the delegates added the words “or affirmation” (to oblige the Quakers and other sects that refused oaths as a matter of religious doctrine) as well as the ban on federal religious tests (Article VI, Clause 3).

The simple declaration to “support the Constitution” has constitutional significance at all levels of government. An opinion of the attorney general in 1875 declared that members of Congress do not assume office until the completion of the oath, but that a state may not question a state representative’s motives and refuse to allow him to take the oath and his seat. Bond v. Floyd (1966). The oath was at the heart of Chief Justice John Marshall’s opinion in Marbury v. Madison (1803), obliging judges to give priority to the Constitution over ordinary legislative acts. Justice Joseph Story likewise stated in his Commentaries on the Constitution of the United States (1833) that officers sworn to support the Constitution are “conscientiously bound to abstain from all acts, which are inconsistent with it,” and that in cases of doubt they must “decide each for himself, whether, consistently with the Constitution, the act can be done.” But taking the oath does not relieve a judge from obedience to higher judicial authority, even if he thinks the higher court is acting contrary to the Constitution. Glassroth v. Moore (2003). Beyond the mechanism of the separation of powers, the Oaths Clause places an independent obligation on officeholders to observe the limits of their authority.

The Framers’ general understanding was that proscribing religious tests did not necessarily remove the religious significance of the general oath. “The Constitution enjoins an oath upon all the officers of the United States,” Oliver Wolcott noted at the Connecticut ratifying convention. “This is a direct appeal to that God who is the avenger of perjury.” Customarily, officeholders add the words “so help me God” at the completion of their oaths.

The very first law passed by the first session of the House of Representatives was “An Act to regulate the Time and Manner of administering certain Oaths.” Two days later, the chief justice of New York administered to the representatives an oath to “solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.” The Senate amended the legislation to apply to state officers, who are also subject to Article VI. When Representative Elbridge Gerry objected that Congress had no authority to specify the oath of state officers, the response was that Congress was implicitly authorized by Article VI itself, if not by the Necessary and Proper Clause, to prescribe oaths for the states.

Congress’s argument was that the Constitution, by requiring public officials to be “bound by Oath or Affirmation” to support it, also empowered the Congress to decide on when such oath would be taken and what the oath would be. This understanding carried a broad interpretation of implied congressional power that was later used as justification for the Fugitive Slave Act in 1793—another instance of Congress legislating specific rules for states to follow the much broader Fugitive Slave Clause (Article IV, Section 2, Clause 3). The breadth of Congress’s authority would later be upheld, on similar grounds, by the Supreme Court in Prigg v. Pennsylvania (1842). There is some doubt, however, whether Congress could constitutionally require an oath of state officials, because Article VI is not a grant of power to Congress and therefore cannot be implemented by the Necessary and Proper Clause (Article I, Section 8, Clause 18), though Congress can use the Necessary and Proper Clause to prescribe the oath for federal officers.

During the Civil War, Congress promulgated an oath to require civil servants and military officers not only to swear allegiance to the United States but also to affirm that they had not engaged in any previous disloyal conduct. Congress repealed the latter condition in 1884, leaving wording that is nearly identical to the current oath taken by members and federal employees.

Under current law any individual elected or appointed to an office of honor or profit in the civil service or uniformed services, except the president, shall take the following oath: “I, [name], 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.” (5 U.S.C. § 3331.) By federal statute, all state officers shall take an oath in the simple form first promulgated in 1789. (4 U.S.C. § 101.)

Matthew Spalding

See Also

Article I, Section 3, Clause 6 (Trial of Impeachment)

Article I, Section 8, Clause 18 (Necessary and Proper Clause)

Article II, Section 1, Clause 8 (Presidential Oath of Office)

Article VI, Clause 2 (Supremacy Clause)

Article VI, Clause 3 (Religious Test)

Suggestions for Further Research

14 Op. Att’y Gen. 406 (1874)

Patrick O. Gudridge, The Office of the Oath, 20 CONST. COMMENT. 387 (2003)

HAROLD M. HYMAN, TO TRY MENS SOULS: LOYALTY TESTS IN AMERICAN HISTORY (1981)

Gary Lawson, The Constitution’s Congress, 89 B.U. L. REV. 399 (2009)

Gary Lawson, Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy, 110 MICH. L. REV. FIRST IMPRESSIONS 33 (2011)

Nash E. Long, The “Constitutional Remand”: Judicial Review of Constitutionally Dubious Statutes, 14 J.L. & POL. 667 (1998)

MATTHEW A. PAULEY, I DO SOLEMNLY SWEAR: THE PRESIDENTS CONSTITUTIONAL OATH (1999)

Vic Snyder, You’ve Taken an Oath to Support the Constitution, Now What? The Constitutional Requirement for a Congressional Oath of Office, 23 U. ARK. LITTLE ROCK L. REV. 897 (2001)

Significant Cases

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842)

Bond v. Floyd, 385 U.S. 116 (1966)

New York v. United States, 505 U.S. 144 (1992)

Printz v. United States, 521 U.S. 898 (1997)

Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003)

Religious Test

           . . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

(ARTICLE VI, CLAUSE 3)

The Constitution contained one explicit reference to religion: the Article VI ban on religious tests for “any office or public trust under the United States.” Despite much constitutional litigation over the boundary between church and state in the years since—most of it since World War II—there are no judicial decisions construing the religious test ban. This is not to suggest that the clause has been ineffectual. On the contrary: no federal official has ever been subjected to a formal religious test for holding office. The Article VI religious test clause, because it is relatively clear, is a self-executing success.

By its plain terms, the ban extended only to federal officeholders. States were free at the time of the Founding to impose religious tests as they saw fit. And they did. State tests generally limited public offices to Christians or, in some states, only to Protestants. National offices were, on the other hand, open to everyone. While today this freedom from religious tests seems obvious, this clause was remarkably progressive for its time.

The surviving accounts of the Constitutional Convention indicate that the Article VI ban “was adopted by a great majority of the convention, and without much debate.” Only North Carolina opposed the prohibition; the Connecticut and Maryland delegations were divided. All the other delegates were in favor. But even some “nay” voters did not favor religious tests for federal office. Connecticut’s Roger Sherman, for example, thought the ban unnecessary, because “the prevailing liberality” provided sufficient security against restrictive tests.

The “prevailing liberality” was not, however, as prevailing as Sherman believed. In fact, the clause was hotly disputed in some states during the 1788–1789 struggles over ratification of the Constitution. The main objection was that “Jews,” “Turks,” “infidels,” “heathens,” and even “Roman Catholics” might hold national office under the proposed Constitution. The times were such that the force of this objection was, for many, substantial and self-evident. Pennsylvania’s Benjamin Rush expressed the more restrained view that “many pious people wish the name of the Supreme Being had been introduced somewhere in the new Constitution.” The Religious Test Clause was thus a focal point for reservations about the Constitution’s entirely secular language.

Some defenders of the Constitution argued, in response, that a belief in God and a future state of reward and punishment could, notwithstanding the test ban, be required of public officers. On this interpretation, Article VI would rule out only sectarian tests, such as would exclude some Christians (but not others) from office. Others asserted that the constitutional requirement that officers take an oath to support and defend the Constitution necessarily implied that officers had to affirm at least some tenets of natural religion. See Oaths Clause, Article VI, Clause 3.

Defenders of the Constitution put forward two reasons for the religious test ban. First, various Christian sects feared that, if any test were permitted, one might be designed to their disadvantage. No single sect could hope to dominate national councils. But any sect could imagine itself the victim of a combination of the others. Oliver Ellsworth noted that if a religious oath “were in favour of either congregationalists, presbyterians, episcopalions, baptists, or quakers, it would incapacitate more than three-fourths of the American citizens for any publick office; and thus degrade them from the rank of freemen.” More importantly, they argued that the Constitution wisely declined to exclude some of the best minds and the least parochial personalities to serve in the national government. In his 1787 pamphlet, “An Examination of the Constitution,” Tench Coxe said of the religious test ban: “The people may employ any wise or good citizen in the execution of the various duties of the government.”

The limitation of Article VI, Clause 3, to federal officeholders was effectively eliminated by the Supreme Court in the 1961 case, Torcaso v. Watkins. Relying upon the First Amendment religion clauses, the Court struck down religious tests for any public office in the United States. Torcaso means that not even a simple profession of belief in God—as was required of Roy Torcaso, an aspiring notary public—may now be required.

The scope of anyone’s immunity from disqualification from office on religious bases now depends upon the meaning of the Establishment and Free Exercise of Religion Clauses, not upon Article VI. At present, the central rule enunciated by the Supreme Court for Establishment Clause jurisprudence is the “endorsement” test. It stipulates all public authority—from state and federal to the most local municipal body—must never do or say anything that a reasonable person could understand to be an “endorsement” of religion, i.e., that favors adherents over non-adherents. Nothing in the neighborhood of a religious test for office could survive application of this norm.

The Establishment Clause thus totally eclipses the Religious Test Clause. Questions about the precise scope of the sort of “religious test” banned, and about whether “office[s] of public trust” include members of Congress as well as the most junior postal worker, no longer matter—save, perhaps, to historians.

Gerard V. Bradley

See Also

Amendment I

Suggestions for Further Research

Morton Borden, JEWS, TURKS, AND INFIDELS (1984)

Gerard V. Bradley, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself, 37 Case W. Res. L. Rev. 674 (1987)

Significant Case

Torcaso v. Watkins, 367 U.S. 488 (1961)