71 U.S. 277 (1867), argued 15, 16, 19, and 20 Mar. 1866, decided 14 Jan. 1867 by vote of 5 to 4; Field for the Court, Miller in dissent. Ex parte Garland, 71 U.S. 333, argued 13–15 Mar. 1866, decided 14 Jan. 1867 by vote of 5 to 4; Field for the Court, Miller in dissent. These cases challenged the constitutionality of retrospective loyalty oaths established during the Civil War. Cummings involved a Missouri regulation requiring persons in various occupations to swear that they had not aided or sympathized with the rebellion; Garland concerned a federal statute compelling attorneys who practiced in federal courts to swear that they had not supported the Confederacy.
Writing for 5-to-4 majorities in both cases, Justice Stephen J. Field noted that although the laws did not impose fines or imprisonment, they were punitive measures because they prevented former rebels from practicing their occupations. Therefore, he held that they violated the Constitution's ban on bills of attainder and ex post facto laws. They were bills of attainder, Field explained, because they subjected a designated class to punishment without a trial; they were ex post facto laws because they imposed punishment for acts that had not been criminal when committed or inflicted additional punishment for acts that had been. Speaking for the four Republicans on the Court, Justice Samuel Miller denied that the measures inflicted punishment and therefore that they were bills of attainder or ex post facto laws. They were, he contended, regulations to assure that practitioners in various professions possessed the qualifications—including the moral character—essential to serve the public.
The Court has never repudiated these decisions, and in U.S. v. Brown (1965) it invoked them to strike down a federal law excluding former communists from serving as officers of labor unions.
Donald G. Nieman