TEST LAWS. Although the national government had used loyalty tests before the Civil War and Reconstruction, those eras witnessed an attempt to establish criteria of loyalty. Both Abraham Lincoln and Andrew Johnson considered loyalty oaths and disloyalty proceedings to be an integral part of war and reconstruction policy. Despite constant pressure from Congress, Lincoln maintained control of loyalty proceedings in the federal government. He did, however, have to compromise particularly in the case of the "ironclad oath." This oath required every federal officeholder to swear that he had "never voluntarily borne arms against the United States" or given any aid to those so doing or held any office "under any authority or pretended authority in hostility to the United States." Furthermore, each individual had to swear that he had "not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. …" In 1864, Congress broadened the scope of the oath to include its own membership, which would effectively bar returning reconstructed state delegations. On 24 January 1865, Congress extended the oath to lawyers practicing in federal courts.
Under Johnson the issue of loyalty oaths became critical to Radical Republican policy. In Missouri and West Virginia, for example, adoption of the ironclad oath was fundamental to Radical Republican control. Both the federal and state oaths created serious constitutional difficulties, however. Opponents raised various constitutional challenges to the oaths, and in 1866, the Supreme Court heard Cummings v. Missouri and Ex Parte Garland, the former a challenge to the state law and the latter a challenge to the federal test-oath act of 1865.
The decisions in these two cases had been preceded in December 1866 by Ex Parte Milligan, which some Republicans had interpreted as dangerous to their ideas of reconstruction. The decisions rendered in the Cummings and Garland test-oath cases did not allay their suspicions. On 14 January 1867, the Supreme Court invalidated the test oath of 1865 because the oath provision was a bill of attainder and an ex post facto law.
Because of these decisions, Radical Republicans mounted various legislative proposals for curbing what they felt was abuse of judicial power. The Radical Republicans asserted the right of the legislative branch to decide "political" questions, which included the barring of "conspirators" and "traitors" from practicing in federal courts. Meanwhile, in 1867, the Court in Mississippi v. Johnson rejected an attempt to have it rule on the constitutionality of the congressional Reconstruction. It argued that an injunction in this case would interfere in the legitimate political functions of the legislative and executive branches. The Court's decision in 1868 to hear arguments in Ex Parte McCardle did lead to congressional action curtailing the Court's jurisdiction in all cases arising under the Habeas Corpus Act of 1867. The Court's acquiescence in this restriction of its power of judicial review and the acceptance of Congress's right in Texas v. White (1869) to guarantee republican governments in the states obviated any further threats to the Court at this time.
The test oath itself was modified in 1868 for national legislators, who now had only to swear to future loyalty. In 1871, Congress further modified the oath for all former Confederates to a promise of future loyalty. Finally, in 1884, Congress repealed the test-oath statutes.
Foner, Eric. A Short History of Reconstruction, 1863–1877. New York: Harper and Row, 1990.
Kutler, Stanley I. Judicial Power and Reconstruction. Chicago: University of Chicago Press, 1968.
Sniderman, Paul M. A Question of Loyalty. Berkeley: University of California Press, 1981.
Joseph A.Dowling/a. e.