Test Oath Research Articles

Bloody Flag of Anarchy: Unionism in South Carolina during the Nullification Crisis by Brian C. Neumann

Reviewed by: Bloody Flag of Anarchy: Unionism in South Carolina during the Nullification Crisis by Brian C. Neumann James Hill “Trae” Welborn III Bloody Flag of Anarchy: Unionism in South Carolina during the Nullification Crisis. By Brian C. Neumann. (Baton Rouge: Louisiana State University Press, 2022. Pp. xii, 216. $45.00, ISBN 978-0-8071-7690-0.) In Bloody Flag of Anarchy: Unionism in South Carolina during the Nullification Crisis, historian Brian C. Neumann achieves his overarching purposes—to reframe the nullification crisis by “emphasizing the partisan conflict within South Carolina” and to restore “the state’s Union Party to the center of the story, providing insight into the hopes, anxieties, and convictions of Jacksonian-era southern Unionists” (p. 4). Neumann argues that these Unionists “viewed the Union as a fragile experiment in self-government—the last hope of liberty in a world dominated by despotism” (p. 4). This focus enables Neumann to recast larger historiographical perspectives on the coming of the Civil War, the ideological force of Unionism in antebellum America, how an idealized southern manhood shaped these dynamics, and the broader transnational context in which these ideological contests transpired. Neumann’s analysis proceeds chronologically from the “rise of radicalism” in South Carolina between 1822 and 1828 (chapter 1), through the “process of political realignment” that followed between 1828 and 1830 (chapter 2), to the proliferation of “partisanship and political violence” between 1830 and 1832 (chapter 3). The next three chapters chart the convoluted course by which radicalism transformed South Carolina’s political culture, turning the state toward proslavery sectionalism and disunion, beginning with the “nullification winter” of 1832–1833 (chapter 4) and continuing through “the test oath controversy” of 1833–1835 (chapter 5) before terminating in the consensus forged around “the politics of slavery” in 1835–1836 (chapter 6). Throughout Neumann asserts that such reframing focuses less on why the American Union collapsed beneath the strains of slavery and sectionalism and more on how it persisted through these crises as long as it did. This analysis extends perspectives previously forwarded most notably by Elizabeth R. Varon. [End Page 353] Though Neumann readily acknowledges that nullification exposed the fault lines of the Union and Unionism, he also expands on the work of Gary W. Gallagher, especially in arguing that the crisis exhibited the sustained commitment to the Union’s promise and perpetuity, even providing “a lexicon of Unionism for all future crises” (p. 7). A tension between what Neumann terms “martial manhood” and “moderate manhood” inflected both the partisan disputes between nullifiers and Unionists and dissension among Unionists. He shows that as they fought against nullification and disunion, some Unionists defended the Union as the political embodiment of “moderate manhood,” while others adopted the more aggressive “martial manhood” of the nullifiers, albeit to defend the Union rather than destroy it (pp. 7–8). Neumann’s analysis of manhood expands most directly on the gendered analyses of historians Amy S. Greenberg, Stephanie McCurry, and James Brewer Stewart. And alongside scholars of Civil War–era transnationalism such as Edward B. Rugemer, Timothy M. Roberts, Adam I. P. Smith, Ann L. Tucker, and Niels Eichorn, Neumann emphasizes how these events unfolded “against the backdrop of global history,” making frequent and pointed references to the earlier French and Haitian Revolutions as well as “a wave of liberal revolutions” in the 1830s that swept “France, Belgium, Italy, Switzerland, and Poland,” which lent “the crisis in South Carolina . . . [a] global significance” in the minds of its combatants (p. 8). Neumann centers the dissenting arguments of Unionists against the growing tide of radical nullifiers bent on capturing the state’s political system and wielding it toward increasingly defiant ends. Neumann rightly emphasizes that proslavery convictions and antislavery fears permeated these processes among both Unionists and nullifiers throughout. He shows that these factions only reached a formidable and, for Unionists, insurmountable consensus beginning in 1835, when South Carolinians tempered their partisanship in response to the American Anti-Slavery Society’s direct mail and petition campaigns. Neumann succinctly summarizes this trend toward radical proslavery consensus in South Carolina by highlighting that though “some state leaders worked to harness federal power to preserve and expand slavery’s reach” during...

Enlightening Sacrament: English History and the Religious Test Clause

The unamended text of the United States’ original 1788 Constitution contains only one reference to religion. Article VI proclaims that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This Religious Test Clause has received minimal attention over the last two centuries, and the handful of Supreme Court decisions discussing it provides almost no guidance about its legal effect or original meaning. Eighteenth-century English evidence, in contrast, speaks plainly. During the eighteenth century, “religious test” was a term of art, referring to a narrow category of legislation—exemplified in the English Test Act of 1673—which mandated sacramental participation or confession of doctrine as a prerequisite for office. This Article, therefore, examines eighteenth-century and early nineteenth-century sources on “religious tests” in both Britain and America. It argues that the American founders borrowed upon a well-established sacramental discourse about “religious tests” when framing and ratifying the Constitution. Indeed, as one Supreme Court opinion notes, “English history pertinent to a religious test oath” and the founders’ “experience [with such oaths] is written into our Constitution.” After highlighting common features of British and American discourse on “religious tests,” this Article argues that clause in its original meaning prevented the federal government from imposing a confession or mandatory ritual but allowed the government to use burdensome oaths of allegiance. This Article closes by sketching how courts can employ that history to give the Religious Test Clause legal effect today.

Forgery and the Idaho Test Oath

Book Review| April 01 2021 Forgery and the Idaho Test Oath John S. Dinger John S. Dinger JOHN S. DINGER is a graduate of the S. J. Quinney College of Law, University of Utah, Salt Lake City, where he was an editor of the Utah Law Review. In addition to a juris doctorate, he holds degrees in political science and history from the University of Utah. He has published in the Journal of Mormon History, John Whitmer Historical Association Journal, Idaho Law Review, and Utah Law Review. He is presently a deputy prosecuting attorney for Ada County in Boise. Search for other works by this author on: This Site Google Journal of Mormon History (2021) 47 (2): 136–142. https://doi.org/10.5406/jmormhist.47.2.0136 Cite Icon Cite Share Icon Share Twitter Permissions Search Site Citation John S. Dinger; Forgery and the Idaho Test Oath. Journal of Mormon History 1 April 2021; 47 (2): 136–142. doi: https://doi.org/10.5406/jmormhist.47.2.0136 Download citation file: Zotero Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All Scholarly Publishing CollectiveUniversity of Illinois PressJournal of Mormon History Search Advanced Search The text of this article is only available as a PDF. Copyright 2021 by the Board of Trustees of the University of Illinois2021 Article PDF first page preview Close Modal You do not currently have access to this content.

What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths

What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths

Resigned to Fate or Resigning to Vote: The Idaho Test Oath and Woolley v. Watkins

Research Article| October 01 2020 Resigned to Fate or Resigning to Vote: The Idaho Test Oath and Woolley v. Watkins John S. Dinger John S. Dinger JOHN S. DINGER is a graduate of the S. J. Quinney College of Law, University of Utah, Salt Lake City, where he was an editor of the Utah Law Review. In addition to a juris doctorate, he holds degrees in political science and history from the University of Utah. He has published in the Journal of Mormon History, John Whitmer Historical Association Journal, Idaho Law Review, and Utah Law Review. His book, The Nauvoo High Council and City Council Minutes (Signature Books, 2011), won the Best Documentary Book Award from the Mormon History Association and the Best Book Award from the John Whitmer Historical Association. In 2013 he published Significant Textual Changes in the Book of Mormon: The First Printed Edition Compared to the Manuscripts and to the Subsequent Major LDS English Printed Editions (Smith-Pettit Foundation, 2013). He is presently a deputy prosecuting attorney for Ada County in Boise, Idaho. Search for other works by this author on: This Site Google Journal of Mormon History (2020) 46 (4): 60–89. https://doi.org/10.5406/jmormhist.46.4.0060 Cite Icon Cite Share Icon Share Facebook Twitter LinkedIn MailTo Permissions Search Site Citation John S. Dinger; Resigned to Fate or Resigning to Vote: The Idaho Test Oath and Woolley v. Watkins. Journal of Mormon History 1 October 2020; 46 (4): 60–89. doi: https://doi.org/10.5406/jmormhist.46.4.0060 Download citation file: Zotero Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All Scholarly Publishing CollectiveUniversity of Illinois PressJournal of Mormon History Search Advanced Search The text of this article is only available as a PDF. Copyright 2020 by the Board of Trustees of the University of Illinois2020 Article PDF first page preview Close Modal You do not currently have access to this content.

Philadelphia: City of Revolution and Home to Independence

Back to table of contents Previous article Next article Association NewsFull AccessPhiladelphia: City of Revolution and Home to IndependenceMark MoranMark MoranSearch for more papers by this authorPublished Online:20 Feb 2020https://doi.org/10.1176/appi.pn.2020.2b17AbstractPhiladelphia is home to dozens of landmarks of the growing colonial unrest leading to the American Revolution, independence from Great Britain, and the signing of the Constitution.This life-sized exhibit in the Museum of the American Revolution depicts Hessian cavalry troops fighting on the side of the Loyalists.Courtesy of Museum of the American RevolutionLocated between New England and the colonies on the southeastern border of North America and the continent’s most populous city in the late 18th century, Philadelphia seemed destined to become the unofficial capital of the American Revolution.Founded as a city of religious tolerance, the spirit of Philadelphia infused the Revolution: It was home to one of the 18th century’s most famous citizens, Benjamin Franklin; the site of the first and second Continental Congress; and the place where the Declaration of Independence and Constitution of the United States of America were written and signed.Throughout the city and surrounding region are dozens of landmarks of the Revolution. Here are just a few of the most prominent:The Museum of the American Revolution is devoted entirely to the Revolutionary period, holding an important collection of art, manuscripts, and printed works along with British, French, and American weapons used in battle and personal diaries written in camp. The museum illuminates the lives of the founding fathers and common soldiers—as well as enslaved and free black people, American Indians, and women—through immersive displays and artifacts designed as a storytelling experience. Galleries are organized chronologically, leading visitors from the beginning of the conflict through the creation of the United States.Carpenters’ Hall was the site of the First Continental Congress, during which representatives of 12 of the American colonies (Georgia didn’t participate) registered their fury at King George’s taxes and trade policies in 1774. The representatives voted on a trade embargo, the first of many unified acts of defiance. In addition to being historic, the building is an architectural gem.Of course, visitors interested in the American Revolution will want to tour Independence Hall. In the sweltering summer of 1776, 56 delegates gathered at the Pennsylvania State House and pledged their “lives, their fortune, and their sacred honor” by signing the Declaration of Independence. Eleven years later, representatives from 12 states gathered to shape the U.S. Constitution, finally creating one unified nation. Tickets are free and available at the Independence Visitor Center.Families traveling with children to Philadelphia may especially want to visit The Betsy Ross House, home of America’s flagmaker. Betsy herself is at home, plying her trade and regaling visitors with stories of colonial life. The Revolutionary War left the young upholsterer twice a widow. After losing her first husband, John Ross, to an ammunition explosion, she wed John Ashburn, who died after being captured and imprisoned by the British.Congregation Mikveh Israel is the oldest formal congregation in Philadelphia and the oldest continuous synagogue in use in the United States. It is known as “the synagogue of the Revolution.” The congregation’s website states that during the war, Jews from the surrounding colonies came to Philadelphia seeking refuge from the British. Haym Salomon, a member of the congregation, helped to finance and underwrite the war effort and made personal loans to government figures. The website also states that Salomon was part of a delegation protesting the state’s religious test oath and was treasurer for the Society for the Relief of Destitute Strangers. ■ ISSUES NewArchived

With Malice toward Some: Treason and Loyalty in the Civil War Era by William A. Blair (review)

Reviewed by: With Malice toward Some: Treason and Loyalty in the Civil War Era by William A. Blair Lorien Foote With Malice toward Some: Treason and Loyalty in the Civil War Era. William A. Blair. Chapel Hill: University of North Carolina Press, 2014. ISBN 978-1-4696-1405-2, pp. 496, cloth, $40.00. Treason was the ubiquitous word of the Civil War. It pervaded daily conversation, newspapers, official documents, military orders, court cases, and political campaigns. William A. Blair restores this common concept to the central place it held in the practice of daily life during the era and redirects the scholarship on treason from its focus on administrative policy, constitutional theory, or northern Copperheads to the widely shared popular understanding that guided officials from the local to the national level in their actions against treason. Defining and suppressing treason was a collaboration among the loyal people of the Union, the military, and all three branches of government. Blair’s most important contribution is to demonstrate the vital role the military and the provost marshals played in shaping, not just enforcing, policy. With Malice toward Some effectively applies several recent trends in Civil War scholarship to the topic of treason and equally effectively steers it in some new directions. Blair joins the transnational turn in the historiography with its emphasis on the importance of the international laws of war in Union policy-making. He discusses how courts, Congress, and the executive borrowed from Swiss philosopher Emer de Vattel’s definition of a civil war to claim that rebels could simultaneously be enemy belligerents and remain citizens who could be punished for treason later. Heeding Jonathan White’s call to bring the judiciary back into the literature on the Civil War, Blair explains how the courts applied maritime law in a series of important rulings that defined secession as treason subject to civil punishment. Turning to international law for precedents and theories, all three branches of [End Page 68] the Union government reached a consensus about the policies necessary to define and handle treason. Another turn in Civil War scholarship is to treat the military as a vital component in the policy-making process regarding emancipation. Blair demonstrates that the military was equally important in defining and enforcing loyalty. Soldiers and officers shared popular outrage over traitorous speech and made arrests according to community standards of disloyalty, often before officials in Washington had a chance to endorse such decisions. Scholars generally absolve Lincoln of acting arbitrarily, and without disagreeing, Blair reminds us that actions on the ground could give a different impression to those witnessing local arrests. In the occupied South, meanwhile, the military handled women as potential enemies of the state and tied provisions and the ability to practice certain professions to loyalty. One of the book’s most thought-provoking portions is its chapter on the military’s role in fighting treason through intervention in the political process. Blair persuasively argues that the Union army “left a heavy footprint” on elections, particularly in the Border States, where troops supervised test oaths, oversaw balloting at the precincts to prevent disloyal people from voting, and helped secure the outcome of the fall 1863 elections (95). Blair also deserves kudos for delving into a subject most scholars have inexplicably avoided, considering its obvious importance to the conduct of the Civil War: the provost marshal system. He uncovers the various types and levels of provost marshals—civilian special provosts, army provosts, and departmental provosts—that emerged in a grassroots, haphazard fashion in the early stages of the war without central direction. The provost marshals served as internal security against disloyalty. These authorities arrested vigorously, often at the instigation of anxious citizens, and often operated on their own bailiwick unless their actions somehow came to Lincoln’s attention. Considering the deep-seated desire among loyal unionists throughout the war to identify and punish traitors, Blair concludes his study by asking a simple question: why didn’t traitors hang when the war was over? His answer explores a combination of circumstances and public debates that put off trials until the passage of time made such punishment more and more unlikely. Blair reminds us that...

Church–State Relations in the Early American Republic, 1787–1846 by James S. Kabala (review)

Church-State Relations in the Early American Republic, 1787-1846. By James S. Kabala. (London: Pickering 8? Chatto Press, 2013. Pp. 264. Hardcover, $99.00.)Reviewed by Tara Thompson StrauchScholars tend to tell the story of religion and American politics either as an intellectual history of politicians or as an ecclesiastically centered history. This book by James Kabala looks instead at the creation of a Protestant consensus in the public sphere and thus escapes the somewhat artificial divide between political and thought. By looking at the decades between the Constitution and massive influx of Catholic immigrants in the late 1840s, Kabala isolates the immediate consequences of the Constitution's inconclusive statements on the relationship between Church and State. Rather than analyzing Jefferson's wall of separation or Washington's religious awe, although this book talks about both, Kabala looks at the realities of proliferating denominations and outsiders such as Indians, deists, Jews, and atheists. Such realities caused tensions between the secular federal government and the less secular states that, Kabala implies, eventually pushed Americans toward a new understanding of tolerance.Kabala's driving narrative is to uncover the existence of a Protestant non-sectarian consensus among and political leaders, which served to dampen both secular and radicalism within American politics. At times, the author's attempt to organize and political minds according to denomination or party leaves the reader with more exceptions than rules concerning the composition of this consensus; yet it seems quite probable that many Americans did ascribe to a set of common beliefs that marked polite society including acceptance of the trinity, anti-Catholicism, and a future system of rewards and punishments. Even for Unitarian John Quincy Adams, 'Christianity' and 'civilization' were regarded as inseparable (24). Even as Massachusetts, the last state to retain an established church, removed ministerial taxes and other elements of an intertwined church-state relationship, American leaders continued to stress that good civil Americans were Christians of a particular mold.The book begins by examining the confusing and often contradictory relationship between culture and the federal government. Despite the lack of an established church and restrictions on office holders, the United States government had extensive dealings with men and culture in the form of Indian missionaries, congressional chaplains, and Sunday mail, among others. Kabala stresses that political opinion was not decided on any of these governmental positions; often, it depended on the character and political acumen of the men championing these religiously minded institutions. Objections to these offices were often made not because of their nature, but because of the morality of the officeholder or, as in the case of the Sunday mail, the needs of a modem nation.By the beginning of the nineteenth century, the federal government and increasingly the state governments provided general toleration and tacit support to those who belonged to the Non-Sectarian Consensus. At this point, Kabala moves from a broad discussion of religio-political thought to a more concrete discussion of the legal implications of the limits of toleration in the form of test oaths and witness competency. These chapters are the most compelling of the book because their clear argument carefully illustrates the tension between political inclusivity and the fear of moral declension. …

Test Oaths, Belligerent Rights, and Confederate Money: Civil War Lawsuits Before the West Virginia Supreme Court of Appeals

Test Oaths, Belligerent Rights, and Confederate Money:Civil War Lawsuits Before the West Virginia Supreme Court of Appeals Kenneth R. Bailey Charles J. Faulkner, in 1866, successfully challenged a requirement that West Virginia lawyers take a loyalty oath, which had been enacted by the legislature in 1863. His success set off a firestorm of Radical Republican laws to close loopholes in measures designed to punish former Rebels and to keep them from gaining control of state government. Faulkner's appeal, Ex Parte Faulkner, was one of the first to challenge West Virginia's proscriptive laws before the West Virginia Supreme Court of Appeals. As former Rebels sought relief from lower-court decisions, it was followed by many others. The various proscriptive acts impacted the most basic constitutional rights of citizens—property (including the ability to make a living), voting, equal protection of the law, and the right of appeal. Lawsuits challenging the acts, as well as others which arose from actions caused by the Civil War, flooded the courts. Perhaps these legal actions are a footnote to the broader historical themes of the war—slavery, preservation of the Union, right to secede, states' rights, etc. However, an examination of litigation resulting from the war provides another view of the turmoil, anguish, hardship, and anger generated by the conflict. Restrictive legislation was not unique to West Virginia and was common in the other "border states."1 Though West Virginia was not one of the occupied states in the former Confederacy, historians have generally included West Virginia's experience in adjusting to the political struggles of a new state as part of Reconstruction. Historian Eric Foner contends that Reconstruction in West Virginia began in 1861 when the Restored Government of Virginia was created2 by members of what John A. Williams has termed the "political and social elite" of western Virginia.3 That is, the new government immediately instituted measures that were designed to restrict the rights of, and even impose financial and criminal punishments on, those who had joined the Southern cause. In his essay on Reconstruction in West Virginia, historian Randall S. Gooden noted that in 1863 West Virginia's new leaders, because of previous experience in the Restored Government of Virginia, were "already well practiced at internal security,"4 and quickly enacted a new loyalty oath designed [End Page 1] to protect the new state. Regardless of terminology, the war experience and the adjustment to it defined West Virginia's early history. Lawsuits to recover damages from Confederate soldiers and sympathizers were filed in West Virginia courts long before the Civil War ended in April 1865. After the war, disputes over the legality of actions by county officials in Confederate-controlled territory, belligerents' rights, the value of Confederate money, and other issues entered the courts and continued to be contested for another decade. Damage suits against Confederate troops, partisan rangers, guerrillas, or Southern sympathizers were filed and prosecuted by Union civilians who had suffered from unlawful imprisonment, confiscation, or destruction of property. Southerners, who had suffered equally at the hands of Union sympathizers, were unable to seek redress due to the restrictive measures passed by West Virginia's Republican-dominated legislature to punish former Rebels and to tilt the scales of justice to Union supporters. Some of the many lawsuits made their way to the West Virginia Supreme Court of Appeals, and it is to that court that we look for details on the circumstances leading to the suits. Appellants who sought relief from what they considered arbitrary circuit court decisions were initially disappointed by the decisions at the Supreme Court. According to historian Milton Gerofsky, one of the first historians to investigate West Virginia's post-Civil War legal climate, in the years immediately after the war the court simply ratified lower court actions based on legislation influenced by Radical Republicans in the West Virginia legislature.5 However, the eventual easing of restrictions, the "let up," had an aborted beginning as early as the election of 1865.6 The Radicals believed they had covered all bases with a set of legal tools, which included the loyalty oath and voter's test oath. They even allowed lawsuits arising in...

"A pall of orthodoxy": The Painful Persistence of Loyalty Oaths

Who could object to Ohio's anti-terrorist oath? Created as part of the 2006 "Ohio Patriot Act," it merely requires every new public employee to answer "no" to six questions regarding affiliation with, or "material support" to, any organization on the U.S. State Department's "Terrorist Exclusion List." The oath also applies to anybody who has state or city contracts worth more than $100,000 in a given year. Beneath the uncontroversial veneer of this anti-terrorist measure, however, is a reincarnation of the "test oath" that has long been used by governments to coerce their subjects into religious or political conformity. When Ohio attorney Marc Triplett, who contracts with the state to represent indigent defendants, was confronted with the oath in 2006, he secured the help of the American Civil Liberties Union and filed a legal challenge.

Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations

The Religious Test Clause of the United States Constitution states that no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. Although it is the only place in the main text of the Constitution that mentions religion, it has been habitually ignored - until now. In the past several years, a spate of lower federal court nominations and two Supreme Court nominations - the successful nomination of Chief Justice John Roberts and the abortive nomination of Harriet Miers - have occasioned public debate over whether the Religious Test Clause forbids Presidents and/or Senators from supporting, opposing, or even questioning nominees on the basis of religion. More broadly, these events have been the occasion for discussions about whether and how religion may be raised in the public debate surrounding judicial nominees. Because the Roberts and Miers nominations present neat mirror images of each other, with religion used as a disqualification in one nomination and a qualification in the other, it is an opportune moment to assess what the Religious Test Clause has to say about these cases, and about the use of religion in the federal judicial nomination process more generally. This article, a contribution to a Symposium on Religion, Division, and the Constitution, is the first to fully examine these questions. After discussing the invocation of the Religious Test Clause in the recent nomination controversies, it looks carefully at the text and history of the Religious Test Clause. It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on would-be federal office-holders that would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines. And that is all it does. A President may select nominees on the basis of their faith if he chooses; a Senator may question a nominee on his or her faith or religiously derived beliefs, or support or oppose a nominee on that basis. Thus, those public officials, public figures, and commentators who argued during the recent nomination process that the Religious Test Clause barred certain actions or inquiries were wrong. I argue that this conclusion is not only descriptively accurate; it is also normatively sound. There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee. To silence such inquiries because of the dangers of intermixing religion and politics ultimately disserves the broader principle that religion ought to be a fully welcome part of discussion in the public sphere. In addition, the broad reading of the Religious Test Clause, by constitutionalizing an area of politics, unduly limits the scope of popular responsibility for the political process. The best remedy for abuses of religion in the judicial nomination process lies in the realm of ordinary politics, and not in the Constitution. Although the Constitution thus provides few if any barriers to the use and abuse of religion and religious rhetoric in the federal judicial nomination process, nothing prevents us from attempting to craft evaluative criteria that might lead to more fruitful uses of religion in public debate, and to guide our understanding of how well or poorly religion has been used in the public debate surrounding judicial nominations. The article thus offers several principles of constitutional etiquette that might guide our understanding of the sound use of religion in this context, and measures the recent nomination controversies against these standards. It concludes that even with these criteria in place, the invocation of religion in judicial nominations, as elsewhere, may lead to more rather than less division in our national politics. But the price is well worth paying, if our public discussions become richer and deeper as a result.

The Counterrevolution of Slavery: Politics and Ideology in Antebellum South Carolina

The Counterrevolution of Slavery: Politics and Ideology in Antebellum Carolina. By Manisha Sinha. (Chapel Hill: University of North Carolina Press, 2000. Pp. xiii, 362. Maps. Cloth, $55.00; paper, $19.95.) Karl Marx understood movement for secession by slaveholding to be rejection of great principles of American Revolution, specifically those abstract principles exposed in Declaration of Independence, what he termed the first Declaration of Rights of Man(255). He had at least that much in common with George Fitzhugh, somewhat extravagant Virginian proslavery thinker who eagerly celebrated southern secession as solemn protest against doctrines of natural liberty, human equality and social contract as taught by Locke and American sages of 1776 (256). Manisha Sinha, in her important new study, The Counterrevolution of Slavery: Politics and Ideology in Antebellum Carolina, not only supports Marx's and Fitzhugh's perspectives, but proves them. With deft use of manuscript correspondence, published materials, newspapers, and pamphlet debates, Sinha tells unified story of rise to potency of proslavery, antidemocratic planter politics in Carolina and resoundingly demonstrates that movement to secession in Carolina was led by slaveholding class united in their defense of racial slavery and their contempt for democratic principles. Sinha structures book around series of national political conflicts that simultaneously engendered and strengthened defensive, antidemocratic stance of Carolina's political leaders and eventually solidified politics of slavery and secession. Beginning with controversies over tariff and emergence of Calhoun and nullifiers as political force, Sinha gracefully captures place of proslavery thinking and antidemocratic thought in what has sometimes been merely understood as states' rights movement. The nullifiers clearly made slavery the center-piece of their political philosophy in way that even proslavery Jacksonians never would (50). Although in 1830s nullifiers had to contend with strong unionist movement throughout state, their own success in nullification convention and their effective prosecution of test oath of loyalty to Carolina succeeded in demoralizing and weakening their opponents. As sectional controversy over slavery increased with heightened power of abolitionist movement and abolition of slavery in West Indies, defensive power of proslavery separatist thought continued to gain influence. Sinha next turns to territorial crises of 1846-1850 and finds Carolina proslavery ideologues leading polarization of debate over place of slavery in American expansion. Here she shows clearly that increasing significance of proslavery thought to southern nationalism was bound to politics of slavery in Carolina and was shaped by increasing appearance of a link between perceived external and internal threats to slave society (81). The next important decade, from failed secession movement in 1850, to attempt by few Carolinian leaders to reopen African slave trade in mid-1850s, to final drama of secession in 1860, is ably presented as period characterized by rapid maturation and elaboration of proslavery, antidemocratic, secessionist thought. The Carolinian political elite effectively excluded, courted, convinced, or otherwise cajoled timid interests within their own political orbit to necessity of slavery and southern independence. By 1860, South Carolina's unique political heritage and long standing commitment to politics of slavery and separatism groomed state leaders to play historic role in coming of secession and Civil War (220). Sinha effectively proves truth of Edmund Ruffin's belief in 1860 that the people of S. …

Enforcing a Vision of Community: The Role of the Test Oath in Missouri's Reconstruction

Enforcing a Vision of Community: The Role of the Test Oath in Missouri's Reconstruction

Prelude to Article VI: The Ordeal of Religious Test Oaths in Pennsylvania

Prelude to Article VI: The Ordeal of Religious Test Oaths in Pennsylvania

James Blair and the Scottish Church: A New Source

T HE personality and policies of James Blair, bishop's commissary and first president of the College of William and Mary, are of importance for Virginia history in the early eighteenth century. Both personality and policies were strongly influenced by Blair's early experience as a minister in the Scottish church, and a hitherto-unnoticed source in Register House, Edinburgh, sheds light on those years. This source removes a long-standing doubt about Blair's ordination, adds to our knowledge of his pastoral activities, and provides an early instance of that financial high-handedness and political adroitness which Virginians were later to recognize so well. Some of Blair's Virginia policies can be traced not only to his perception of Virginia problems but to his previous career in Scotland, where he was minister of the parish of Cranstoun, near Edinburgh, from i679 until he refused the Test oath in November i68i. The new source is the minute-book of the Presbytery of Dalkeith, in which Cranstoun lies.' Even in Blair's own lifetime questions were raised about the form and validity of his ordination. This became a central issue at the convention of Virginia clergy held in I7I9, where critics of Blair's leadership, representing a considerable opposition to the man and his efforts to reform the churches, used the device of an inquiry into the validity of the ordination of all the Virginia clergy as a means to challenge him. A majority of those present expressed doubt whether he had been episcopally ordained, and Blair himself was unable to produce convincing documentary evidence.' An element of national difference also entered the challenge: the doubters were Church of

The Communist Menace, the Supreme Court, and Academic Freedom

OW MUCH academic freedom may professors claim the light of the cold war? This question deserves careful consideration if the academic profession is to take a realistic stand which it can defend without equivocation. The threat to our free society was the chief, though sometimes unexpressed, concern a number of recent significant Supreme Court cases. It is back of the indifference with which the public greets the protests against test oaths and disclaimers. Unless it is met, the demands for academic freedom will fall on unsympathetic because uncomprehending ears. Does communism represent a threat to our way of life? How shall we judge? Shall we count the number of party members, the number of Communists our legislatures, our schools, on our judicial benches, positions of leadership law, labor, business, and industry? Shall we count the convictions for espionage, sabotage, and treason? Shall we measure the output of literature? Shall we analyze the content of films? Or shall we look abroad? Is it Hungary which serves as the yardstick? Korea? Red China? No doubt the Communist menace consists the minds of the American people of a melange of all these. It is Alger Hiss and the Rosenbergs, Soviet tanks Budapest, and Khrushchev's blustering threats and boasts. But above all, it consists of names names of persons who have been named as Communists or Communist-sympathizers or who have denied or admitted that they were such or who have refused to assert or deny that they were such. The names are the stock-in-trade of various investigating committees, the most prominent (and notorious?) one being the House Un-American Activities Committee. The rationale for the naming is, of course, that to protect ourselves against the Communists we need to know who they are. Do we identify thus an enemy or only a dissident? If we are willing to, grant that communism is a doctrine calling for intellectual exploration like utilitarianism or the quantum theory or Darwinism, then the entire problem takes on a new light. If the Party of the United States is a political association organized to publicize a point of view, to gain converts, and to enact a program just like the Democratic and Republican parties not a conspiracy to commit illegal acts, then again the whole problem is radically recast. Unless we come to grips with this issue, our protestations will seem to many to lack sincerity. The U.S. Congress has officially declared the Party of the United States to be in fact an instrumentality of a conspiracy to overthrow the government of the United States.'The Internal Security Act of 1950 asserts that there exists a world movement which, its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups... and any other

New Light on Cohen v. Wright: California's First Loyalty Oath Case

NATIONAL LIFE, argued a Republican party campaign appeal in 1862, should be maintained and perpetuated... by the ramification of test oaths into all departments of society-mechanical, mercantile, agricultural, and professional.' This approach to a solution of the northern disloyalty problem of the Civil War received widespread application. By the end of 1863, the national Congress and more than a dozen loyal states enacted loyalty oath legislation. California was one of those states.2 To be sure, organized disloyalty in California in 1863 was neither a threat to the safety of the Union nor a danger to the security of the state. Lincoln's extraordinary internal security apparatus had long since cast its network to the Pacific shore. This unprecedented mechanism, sanctioned in Lincoln's opinion by his constitutional powers as commander-in-chief, carelessly cut across traditional boundaries of the federal system and ignored the separation of powers practice of American government. Federal, state, and local officers, military and civil officials of all levels of government, and executive, legislative, and judicial personnel, were all involved in antidisloyalty activities. In California, for example, internal security responsibilities were shared in 1863 by Union Army and Navy commanders, agents of the national State, Treasury, and Post Office Departments, Congress' deputies of the Joint Committee on the Conduct of the War and of the House Committee on the Loyalty of Government Employees, and special civilian provost marshals only vaguely under War Department control. State militiamen, home guard units, municipal policemen, and members of patriotic volunteer organizations assisted national government officers and carried out purely local security policies. Vigilante excesses were common results of this mixture of personnel, policies, and purposes. Arbitrary arrests of sus-

Loyalty Oaths: An Appraisal of The Legal Issues

I T HAS BEEN SUGGESTED that an end be put to horse thievery in the United States by requiring an expurgatory oath under a statute which would broaden the concept of horse thievery.' Under the proposed law, a horse thief would include not only those who actually steal horses but anyone who attempts to steal, aids in stealing, advocates, advises or teaches horse thievery, or anyone who is a member of, or affiliated with, a horse-thief front. An individual could be denied various privileges unless he swears that he is not, never has been, and will not become a horse thief. In like manner, it was proposed shortly after the Civil War by Attorney Whittelsy in the Murphy and Glover Test Oath Cases2 that we could dispense with criminal law and procedure by requiring everyone to swear, from time to time, that he has not committed murder, larceny or other crimes. Refusal to swear under both proposals would not result in criminal punishment but merely in withdrawal of certain privileges such as government employment or the pursuit of a profession. Undoubtedly, there is no need to fear that our legislators will pass an Anti-Horse Thief Act, or a law requiring persons to disavow criminal acts such as murder. But these satires vividly illustrate the flexibility of the oath device. A test oath is a simple means of imposing restrictions and disabilities upon persons regarded as undesirable. It is this very simplicity, as one writer has expressed it, which makes the choice of a test oath a potentially dangerous weapon,

The Impact of the Cold War Upon Civil Liberties

AT A TIME when the fears of some have reached a stage where a school board member in a reputedly enlightened community finds Robin Hood communistic; when a respected organization in its efforts to become the sole custodian of patriotism finds the Girl Scouts subversive; and when the public scene is characterized by the spectacles of perjury trials, the probing of men's minds by legislative inquisitions, and charges and findings of disloyalty with such accompaniments as guilt by association, perpetual jeopardy of those so unfortunate.as to be accused, and expurgation by oath, it is an understatement to say that basic liberties are endangered. In such a state of affairs regardless of whether fears for the national security are rational or irrational or whether suspicions are justified or not,, it is inevitable that legislatures, executives, and courts will reflect popular distempers and respond to them either because they share the public fears or desire to exploit them for political preferment. Legislative response has taken the form of the accusatorial inquisition and statutes designed to outlaw the Communist Party, control subversion, and to revive a form of the test oath for public employees. Executive response has assumed the form of loyalty and security programs, vigorous enforcement of anti-subversive legislation, and the use or misuse on occasion of the files of the secret police and the Civil Service Commission for partisan political purposes. It is hardly surprising, therefore, that the explosion of the atomic bomb, the mounting tensions of the Cold War, and the subsequent development of the hydrogen bomb have produced a crisis in the ancient conflict between liberty and authority, or as currently called, national security. The crisis places in full focus the dilemma which Lincoln faced in 1861 and stated so well when he asked, Must a government of necessity be too strong for the liberties of its own people, or too weak to maintain its own existence?L

The Idaho Anti-Mormon Test Oath, 1884-1892

HOSTILITY AGAINST THE MORMONS in Idaho was so intense that in 1884 the legislature directed a test act against the offending Saints. No member of the Church of Jesus Christ of Latter-day Saints thereafter could vote, hold office, or serve on a jury. Almost a fouth of the territory's population was afflicted. Issues of denial of civil liberties through the enforcement of this test oath were argued in the United States Congress and before the United States Supreme Court in 189o, but without reversal of Idaho's proscriptive oath. Not until 1892, with settlement of the polygamy controversy and withdrawal of the Mormon church from politics, did the Idaho legislature relent and rescind the oath. For some years Mormons had constituted an important minority in Idaho. A Utah boundary survey, approved February 15, 1872, transferred a number of substantial Mormon settlements to Idaho jurisdiction. Thereafter, the largest Mormon population outside Utah was in southern Idaho. An organized anti-Mormon movement, matching one which had just commenced in Utah, stirred southeastern Idaho shortly after the boundary survey. Its inception can be traced in part to attempts to halt Mormon expansion northward from Utah; to distrust engendered by Mormon social and religious separatism; to reaction against economic codperatives, which the Mormons introduced in 1868 and adopted widely in 1874; and to objection to the Mormon custom of unanimous, cooperative voting for Democratic political candidates. The Independent Anti-Mormon party of Oneida County captured southeastern Idaho in 1874 and remained in office for almost a decade. Shifting patterns of settlement, however, led to disorganization and to local collapse of the anti-Mormon movement in the elections of 188o and 1882.