A Radical Republican constitutional convention began in Missouri 137 years ago today. We tell that story on today’s ACROSS OUR WIDE MISSOURI. We recall that event because of something going on in Virginia.
Virginia’s Republican Central Committee wants voters in the party’s presidential primary election March 6th to promise to support the eventual Republican nominee before they’re allowed to cast a ballot. As we understand it, a person voting in the Republican primary for, say, Michele Bachman, would have to sign a pledge to support Herman Cain if he would win the primary (we don’t think either is on the ballot in Virginia. We’re just using them as examples. The process of getting on the ballot is under legal challenge as we write this). As far as we know there’s no punishment for violating your oath. What are they going to do? Political excommunication? P:rohibit you from donating to party candidates or committees? Oh, surely, they wouldn’t go that far.
Why would the party do this?
Virginia Republican Chairman Pat Mullins doesn’t want Democrats voting in the Republican primary. He says the state needs to make people register as Republicans or Democrats. How to keep Democrats from voting in the Republican primary? Make them sign a loyalty oath, of course.
Missouri once had a state loyalty oath. It was part of the constitution written by Radical Republicans at the end of the Civil War in that convention that started on January 6, 1865. The Jefferson National Expansion Memorial museum (the JNEM is the formal name for the Gateway Arch complex in St. Louis) has a copy of an Oath of Loyalty Book with signatures of men holding or seeking public office from 1868-1871.
If you did not take the oath that you had been a loyal citizen to Union-controlled Missouri during the Civil War and that you would uphold the provisions of the 1865 constitution, you were denied many basic citizenship rights including the right to practice a profession including preaching and teaching, to hold public office, to serve as a corporate trustee, or to vote. Violators could be fined $500.
More than 800 sheriffs, judges, and other officials were thrown out of office under the constitution. Two members of the three-member state supreme court were removed from their offices by the state militia, their positions filled by Radicals who would make sure the constitution’s provisions were upheld.
The Catholic Church launched a strong opposition movement with St. Louis Archbishop Peter Kenrick telling priests they could not take the oath because their “does not emanate from the State, and we cannot, without compromising the ecclesiastical state, consent to take it.” And he flatly stated, “No Catholic Priest in Missouri will take it.”
Dozens of priests and nuns and Protestant ministers were arrested. One was Father John Cummings, the pastor of St. Joseph’s Church in Louisiana, in Pike County, who was arrested after preaching to a group of railroad workers on September 3, 1865, and fined $500 for preaching without having taken the state loyalty oath. He refused to pay the fine. The restructured Missouri Supreme Court made sure his conviction was upheld. The case went to the United States Supreme Court.
The First Amendment Freedom of Religion was not the issue in these proceedings, as one might think it would have been. The legal issue was the loyalty oath as a legal standard.
Cummings’ attorneys argued that the loyalty oath in the constitution was an ex post facto law–a law that criminalized past acts that were not crimes at the time they were committed and that it assumed the clergy (and others by reference although this case was only a clergy case) was guilty of treason until proven innocent. That would be a “bill of attainder” which is forbidden by the United States Constitution that establishes a person is innocent until proven guilty.
The court ruled 5-4 on those legal points to overturn Cummings’ conviction and find the loyalty oath unconstitutional.
The Cummings case and the Virginia Republican loyalty oath discussion might seem to be an apple and an orange. But consider what Justice Stephen Johnson Field wrote in the Cummings opinion:
“The theory up;on which our political institutions rests is, that all men have certain inalienable rights–that among those are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined…Under this form of legislation the most flagrant invasion of private rights, in periods of excitement, may be enacted, and individuals, and even whole classes, may be deprived of political and civil rights.”
The Virginia loyalty oath is not ex post facto law as defined in the Cummings case. But Justice Field’s thoughts that “the most flagrant invasion of private rights, in periods of excitement, may be enacted, and individuals, and even whole classes, may be deprived of political and civil rights” might ring true to critics of the Virginia effort.
We’ve never understood loyalty oaths. Loyal citizens don’t need them. Disloyal citizens can take them with their fingers crossed and continue to speak, think, and act in ways that are counter to the efforts to deny them rights we share under the First Amendment. In election years, those who want our votes are quick to remind us that our right to vote is sacred. Should a profession of loyalty be a limit on that right? Virginia Republicans have scheduled a January 21 meeting to reconsider whether the party loyalty oath really serves the political process. The Cummings case from Missouri raises the question of whether taking a loyalty oath as a condition of exercising a basic right is very American.
We don’t make people register to vote by party in Missouri, a state known for diverse independent attitudes and shifting sympathies. Missourians can decide which party speaks to them and for them most effectively every four years and choose the primary that’s most meaningful to them. Yes, some do cross over on primary election day. Their motives are their own. Some might want to vote for the weakest possible candidate. Some might want to vote for the most acceptable one, just in case the candidate from their own party, who might not have a primary opponent, loses in the general election. In Missouri, voters are free to exercise their own opinions for their own reasons.
To paraphrase the Mexican bandit from BLAZING SADDLES: “Loyalty oaths? We don’t need no stinkin’ loyalty oaths!!”
Apparently some words to that effect have been spoken in Virginia. We’ll see what happens on the 21st.