Existing comment:
A Form of Punishment:
In Ex Parte Garland, a former member of the Confederate Congress, Augustus H. Garland, challenged an ironclad oath required by Congress to practice before the federal courts, including the Supreme Court. In the second case, Cummings v Missouri, a Roman Catholic priest named John Cummings had been arrested for refusing to take a state loyalty oath required under Missouri's 1865 Constitution. In March 1866, lawyers in both cases argued that the ironclad oaths were punitive and, therefore, bills of attainder and ex post facto laws.
Only a Qualification:
The federal government's defense in Garland was that Congress had the authority to require an oath to ensure admitted traitors did not practice before the federal courts and such an oath was not a punishment because no one was compelled to take it. In Cummings, the attorneys representing Missouri argued that it was an issue of states' rights because the states set their own qualifications for who could vote, hold public office, or practice a profession. The state's loyalty oath did not presume guilt nor was it a punishment; it was simply a qualification.
Bill of Attainder and Ex Post Facto:
A bill of attainder is a legislative act that declares someone guilty and punishes them without a trial. Ex post facto laws are those that try to make actions illegal after they were committed. Article I, Section 9 of the Constitution prohibits such laws.
In 1867, the Test Oath Cases were decided in a pair of 5-4 decisions with Justice Stephen J. Field writing the majority opinions which found the test oaths punitive and in violation of the Constitution. Justice Samuel F. Miller wrote the dissent, disagreeing with the definition of punishment used by the majority, and arguing that such qualifications were like any oath of office. Followed closely in the press, the decisions were viewed as being pro-Southern and underscored the difficulties the nation would face as North and South began rebuilding the Union in the Reconstruction era.
"The Constitution deals with substance and shadows... It is intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised..."
-- Justice Stephen J. Field |