Note 541 — Chapter VI · JOHN WILKES, VICTOR BERGER, AND THE FIVE MEMBERS (continued 2)

Assembly Outline, 75. The subsequent Assembly Brief reached me too late for extended comment upon its argument (64–76, 195) that the Constitution, by requiring an oath to support it, also impliedly requires an “inner state of mind” and so makes “disloyalty” or membership in a “disloyal organization” a disqualification for taking the oath, which the Assembly is authorized to investigate. The dangers of such a vague disqualification are obvious and no precedent exists for this doctrine. Even in the exasperations and exacerbations of politics after the Civil War Congress only refused the Test Oath to men found to have committed in the past the very acts which the oath denied. When the Constitution requires a solemn oath as to the future, it leaves the guarantee of its performance, not to the speculations of other human beings, but to the strongest sanctions of conscience and religion. Cf. note 551.