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Part 1 of 2
Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy
Canadian Journal of Law and Jurisprudence Vol. XXVII, No. 1 (January 2014)
by Liav Orgad
Introduction
The Article explores one manifestation of loyalty in liberal philosophy and political practice—loyalty oaths for immigrants. In many democratic states, immigrants seeking to become citizens must take a loyalty oath. Although the content and form of the oath varies, its common feature is that it is mandatory—a prerequisite for citizenship.
Loyalty oaths are particularly interesting because they are a unique platform through which to examine the interrelationship between constitutional law and immigration law. Oaths serve as a means for an immigrant to subscribe to the tenets of the community. However, before imposing an oath on newcomers, the community must define its tenets. The substance of the oath we demand of them is about us. Immigration policy, thus, echoes constitutional identity by mirroring not only the qualities that we value in others but also by reflecting what defines us.
At first glance, citizenship oaths do not raise serious problems of political philosophy. After all, an oath only entails reciting a few words in a public ceremony.
However, a closer review reveals forceful reasons against the use of loyalty oaths in liberal societies. First, the duty of loyalty, imposed on naturalized persons, seeks to influence one’s character traits, emotional attitudes, and internal beliefs; it requires more than just the liberal duty of conformity to the law. Second, the obligation to take a loyalty oath in order to secure citizenship appears to limit individual liberties of the oath-takers, infringe upon their freedom of conscience, and in fact discriminate against naturalized citizens as compared to natural-born citizens, who never must take the oath. In spite of these strong claims against loyalty oaths, the institution of the oath remains an understudied topic.
The Article argues that the use of loyalty oaths is a symptom of a genuine problem in the liberal theory. In some forms, liberalism means to obey the law and otherwise be left alone. But stronger forms of liberalism further require belief in liberal values and institutions. The justification for requiring it is grounded on liberalism itself—its being essential for upholding individual liberties.1 The challenge has always been how to preserve liberal values and institutions without crossing the liberal line into ‘indoctrination.’ However, when the benchmark of loyalty becomes belief rather than behavior, when it is faith rather than action, it gets close to the point of being illiberal, even if its goal is to keep liberalism alive. The more loyalty liberal democracies demand, the less liberal they become. When liberal democracies require “loyalty to the law” (allegiance)—and not just “conformity with the law” (obedience)—they challenge liberalism itself. The Article concludes that loyalty oaths yield high costs but have low benefits, and suggests abandoning them as a legal institution.
The Article proceeds as follows: Part I reveals a global trend in comparative immigration law—the growing appeal to loyalty oaths. Part II shows that modern law still embraces a duty of allegiance in addition to the general duty of obedience and explores the differences between them. Part III traces the function of loyalty oaths and demonstrates that, regardless of the oath’s historical purpose—being a form of social contract, political test, and nation-building symbol— its modern purpose is vague. Part IV presents three liberal problems raised by loyalty oaths: 1) they infringe upon the rule of law; 2) they violate freedom of conscience; and 3) they discriminate against naturalized citizens as compared to natural-born citizens. Part V concludes.
I. The Revival of Loyalty Oaths
In formal terms, a loyalty oath is a statement made by an immigrant acknowledging a duty of loyalty before becoming a citizen. It is often called an Oath of Allegiance, although other titles exist. Technically, stating “I swear” (pledge, affirm, vow, promise, etc.) constitutes taking an oath. In substantive terms, the immigrant is not required to pronounce the words “I swear” but, instead, to acknowledge a substantive duty of loyalty by other means, such as by signing certain immigration documents specifying a duty of loyalty.2
An analysis of loyalty oaths in different democratic states reveals the following. First, oaths are a popular legal institution. Second, they are the final step in the naturalization process. Democratic states do not usually demand a formal oath as a prerequisite for entry. Third, oaths ordinarily apply to all types of immigrants, including spouses of citizens and refugees. Fourth, the object of loyalty is varied—it can include the Queen or other sovereign, the Constitution, democratic principles, the Republic, human rights, and national culture. Finally, the essence of loyalty is diverse. In Austria, for example, the immigrant has three obligations: to “be a loyal citizen of the Republic,” to “conscientiously abide by the laws,” and to “avoid everything that might harm the interests and the reputation of the Austrian Republic.”3 In Ireland, the immigrant must declare “fidelity to the [Irish] Nation” as well as “loyalty to the State.”4 In France, new regulations (2012) demand every naturalized French to adhere to “the principles, values, and symbols of French democracy” and be loyal to “French values.”5 In Australia, the immigrant must take an interesting oath providing that: “From this time forward, I pledge my loyalty to Australia and its people; whose democratic beliefs I share; whose rights and liberties I respect; and whose laws I will uphold and obey.”6
In Britain, there have been two loyalty oaths. The traditional Oath of Allegiance requires every immigrant to “be faithful and bear true allegiance to her Majesty Queen Elizabeth the Second, Her Heirs and Successors.”7 From 2004, every immigrant must also pledge loyalty to the United Kingdom: “I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfill my duties and obligations as a British citizen.”8 Recently, as part of the debate on the meaning of Britishness, a government committee headed by Lord Goldsmith suggested adopting a third oath, an American-style Pledge of Allegiance in public schools. The committee had found that there had been a diminution in British identity. To foster social unity, it turned back to the old means of the oath to the Queen.9 In Canada, new citizens should swear allegiance to Her Majesty Queen Elizabeth II in order to get Canadian citizenship. The oath declares:10
The Canadian oath demands more than simply being an obedient citizen. It requires a person to be “faithful and bear true allegiance” to the Queen, the Head of the Church of England, and extends to her heirs and successors.
In Israel, the present oath of naturalization is minimal—non-Jewish immigrants should swear loyalty to the State of Israel.11 However, a new bill, suggested by the Israeli government, proposes that every immigrant shall swear loyalty to Israel as a “Jewish and democratic State.”12 Immigrants are not asked to accept the existence of a Jewish state but, instead, to swear loyalty to a Jewish state.
In the United States, the oath dates back to 1790. In one of its first acts, the Naturalization Act of 1790, Congress required every newcomer to the New World to take an oath of allegiance “to support the Constitution of the United States.”13 The Naturalization Act of 1795 added a pledge to “defend the Constitution and laws of the United States against all enemies … [and] bear true faith and allegiance to the same.”14 The oath has essentially remained the same ever since.15 In addition, the American oath requires not only loyalty to the U.S. Constitution but also to “entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty.”16 Demanding not just loyalty to the U.S. Constitution, but sole loyalty, presents a case of a “jealous” or “greedy” nation.17
The importance of loyalty oaths is also recognized in international law. The International Court of Justice held that “international law leaves it to each State to lay down the rules governing the grant of its nationality.”18 It further ruled that the process of naturalization involves both the “breaking of [the old] bond of allegiance” and the “establishment of a new bond of allegiance.”19 In fact, the Convention on the Reduction of Statelessness provides that states can refuse to grant citizenship and even deprive a person of his or her citizenship—including those situations in which the person would stay stateless—in cases of disloyalty to the state or “given definite evidence of his determination to repudiate his allegiance to the Contracting State,” or whenever the person has taken an oath of allegiance to another state.20
While countries place great importance on loyalty oaths, there is no underlying theory directing them as a group. Oaths are a grab bag: their diverse objectives, content, and form present a wide range of issues. However, there is a common denominator among them—the fact that nations require loyalty to an object implies that a difference exists between allegiance to the law and obedience to the law. Both citizens and noncitizens must obey the law, yet only citizens owe an additional duty of allegiance. What is the added value of allegiance upon obedience? It is essential to discuss the duty of allegiance before exploring the duty to take an oath of allegiance, because oaths presuppose the existence of a duty of allegiance.
II. Allegiance and Obedience
A theory of allegiance was first fully articulated in the Calvin’s Case by Chief Justice Edward Coke.21 Justice Coke did not elaborate on the distinction between allegiance and obedience, yet a glimpse of medieval England provides a better understanding of this distinction.
Common law demanded allegiance to the King and obedience to acts of Parliament. Allegiance was a natural duty “due from all men born within the King’s dominions immediately upon their birth.”22 The duty of allegiance was absolute, perpetual, and indelible.23 The duty of obedience, conversely, was not natural, but legal, and thus could be relinquished. Another difference is related to the added value of allegiance. Allegiance was “a true and faithful obedience of the subject due to his Sovereign.”24 Allegiance thus was about faithfulness and devotion to an object. A subject had to legally obey the law of Parliament, yet show faithful devotion to the order of the King—for right and wrong, for better and for worse. Allegiance was more than blind obedience to all laws at all times. It implied a positive attitude, an affection or attachment toward the object of loyalty (the law, the Queen, the King). Further, it required the “subordination of one’s own private interest in favour of giving what is due, and perhaps also the exclusion of other legitimate interests.”25
The American colonies broke away from three fundamental premises of allegiance. First, the colonists showed that loyalty to the King was intertwined with recognizing the Parliament’s authority.26 The King and the Parliament were separate entities; yet disavowing the duty to one meant breaching the duty to the other. One cannot be loyal to the King when openly opposing the laws of Parliament (or vice versa). And yet, while the American Revolution blurred the distinction between allegiance and obedience,27 old theories of loyalty still exist. In Canada, for instance, naturalized citizens must pledge to obey the law and be loyal to Queen Elizabeth II. This formula creates a potential conflict between allegiance and obedience. If, albeit an extreme example, a war breaks out between Canada and Britain, a Canadian citizen must obey Canadian law yet be loyal to Queen Elizabeth II, who is nominally the Commander-in-Chief of the British Army.
Second, the American Revolution put an end to the doctrine of allegiance to the King in his personal capacity and replaced it with a theory of allegiance to a legal entity. The English concept of subjecthood was based on feudal ties between the King and his subjects. The modern notion of citizenship, however, presumes legal rather than natural ties between a citizen and a state. Allegiance is not owed to a natural person but to a corporate personhood representing the eternal interests of the Crown.28 Thus, one can be loyal to the legal entity of the King-in-Parliament even if one opposes the King’s order. The American rebels appealed to allegiance to the eternal interests of the Crown, although they opposed the rule of King George III. The United States recognizes this idea in its preamble by according sovereignty to ‘the People,’ a legal entity that exists regardless of a specific time/place.29
Finally, the American Revolution grounded allegiance in contract law theory rather than in natural law. In common law, every subject owed allegiance from the moment he was born. Allegiance was a matter of natural law and not a voluntary act of consent. William Blackstone noted in this direction that “natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth”; it was “a debt of gratitude” for being lucky enough to be born under the King’s protection.30 During the American Revolution, allegiance became a matter of consent. Allegiance turned into a contractual obligation that is defined by law and terminated by law.31 The rapid diffusion of Lockean theories of social contract and consent challenged Coke’s and Blackstone’s old ideas of indelible allegiance. The theory of perpetual allegiance gradually lost coherence and integrity. This development was dramatic since if the law, rather than nature, creates the duty of allegiance (and constitutes its source), then, as noted by John Locke, “[a]llegiance [is] nothing but an Obedience according to law.”32 Allegiance is due because it is required by law.
Contractual allegiance implied another conclusion—that allegiance is conditional. This idea was recognized long before. The pledge of allegiance taken by subjects of the King of Aragon signified it: “We, who are as good as you, swear to you, who are not better than we, to accept you as our Kind and sovereign lord, provided that you observe all our liberties and laws; but if not, then not.”33 In Ancient Greece, a mutual oath was the foundation of the Spartan monarchy. Even the King had to take an oath of allegiance as an expression of a mutual bond. The King swore: “I will exercise my kingship in accordance with established laws of the state;” in return, the people of Sparta swore: “so long he [the king] shall abide by his oath we will not suffer his kingship to be shaken.”34 The American rebels adopted this concept. They argued that allegiance and protection are the quid pro quo of a mutual contract, each given in return for the other. If the King does not protect his people, the people are not bound by allegiance. In fact, the breach of the bond of loyalty is what the American Revolution was all about. The American colonies did not consider the revolution to be treasonous since they believed King George III was the first side to break the mutual contract of loyalty.35
The modern concept of allegiance emerged from English roots. During the American Revolution, allegiance was gradually transformed from a natural duty into a legal duty, owed to a legal entity, rather than to a living person, and based on a mutual, rather than one-sided relationship. Nevertheless, allegiance is still different from obedience in at least two senses. It is broader, because it requires devotion to the best interests of the community even when there is no legal duty of obedience. A person is loyal when he or she unquestionably follows specific patterns of behavior.36 In addition, allegiance is narrower than obedience because allegiance calls for identification. It seeks to assure not only compliance with the law, but also commitment to the law. “Faith only, and inward sincerity,” John Locke observed long ago, “are the things that procure acceptance.”37 A person is loyal when he or she faithfully feels affection to the object of loyalty.38 “Loyalty,” as once held by the U.S. Supreme Court, “is a matter of mind and of heart.”39
To sum up, historically, allegiance and obedience were substantially different. This difference was seemingly blurred by the American Revolution. Modern law, however, sustains some aspects of the old difference, thereby raising the question about the essence of loyalty and its added value. In contemporary immigration law, it seems that the duty of loyalty has three additional burdens related to an immigrant’s character traits (good citizens), emotional attitudes (patriotic citizens), and level of conformity (devoted citizens).40 In order to maintain these added burdens, liberal democracies should suggest a theory justifying the duty of loyalty.
For the sake of this discussion, I assume that the concept of loyalty is justified and that some duties of loyalty can be justified.41 I further assume that the duty of loyalty calls for some level of compliance, either because it is a legitimate duty or because it is based upon other justifications (fairness, consent, friendship, gratitude, etc.). Given these arguable but plausible propositions, I explore the wisdom of one manifestation of loyalty—the oath—and its possible purposes.
III. The Function of Loyalty Oaths
This part explores different purposes of loyalty oaths by tracing their history: First, ancient oaths, which demonstrate the function of the oath as a contract; then, reformation oaths, which present the oath as a political test; and finally, American oaths, which illustrate the oath as a nation-building symbol. On the whole, this part shows that the oath holds no solid purpose and, even if it has a purpose, there is no evidence to indicate that it is rationally served by the oath. The oath, hence, has little benefit.
A. Oaths as a Contract
Oaths can be viewed as the most ancient form of contract. Their origin is rooted in an era in which people believed oaths possessed a magical power: mere words could kill or heal people. The oath’s power relied on faith in its magic and naturally implied a belief in God or other supreme being. Oaths acted as self-inflicted curses used to secure that a promise is fulfilled.42 They included a ‘curse clause’ to indicate the expected harm for violating the contract, and a ‘blessing clause’ to mark the expected gain for its fulfillment.43 Legal sanction was not essential since a breach of an oath was tantamount to breaking a contract with God; ‘Gods became the tools whereby the oath caused to operate.’44 The expression ‘so help me God’ is the invocation of God as a partner to the oath.45 The contractual power of the oath, as Daniel Webster observed, “is found on a degree of consciousness that there is a Power above us that will reward our virtues and punish our vices.”46
In Ancient Greece, the oath gained its political nature. Oaths acted as a contract between men and society. The Ephebic Oath, required from every man before entering into College, provided a basis for the social contract in Athens and had to be taken by every Athenian as a prerequisite for having the status of a citizen.47 The shift in the function of the oath—from a religious appeal to the Supreme Being to a social contract—can explain why the oath is required. Membership in a community requires agreement with some rules. While existing members presumably agree to these rules by tacit consent—implied by continued residence in the host country or maintaining citizenship,48 a doubtful proposition49— new members are required to express explicit consent to the rules of a community. Oaths are thus an expression of a contractual loyalty. Here, too, the oath is founded on religious roots—acquiring new citizenship is tantamount to converting to a new religion. New members must explicitly consent to the rules.
The contractual nature of an oath may also be an act of specification of a legal obligation. At some law schools, students must sign a contract before taking an exam stating their awareness of the rules of ethics and promising to obey them during the exam. The purpose of these contracts is to increase the students’ awareness of the code of conduct during exams. But this raises some interesting questions: Does the contract add new obligations to those written in the student regulations? Is a student, who cheats on an exam after signing the contract, guiltier than a student who commits the same offence without signing the contract? Or does the contract not affect legal responsibility, but instead intend to have a psychological effect that deters fraud? In common law, the function of the oath as a contract intended to concretize the duty of loyalty—but also to add a contractual duty—as Blackstone noted: “The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason: but it does not increase the civil obligation to loyalty.”50 The oath, then, did not affect the scope of the duty of loyalty, but added a new legal obligation; an act of disloyalty was a violation of both natural law and contract law.
The function of the oath as a contract raises some queries, which do not relate to the oath as a contract but rather to its form and content. First, as for the oath’s form, why is it necessary to oblige people to state the words rather than sign a legal document? The oath can be a written contract—a legal document that one must sign in the immigration interview, similar to the procedure of opening a bank account. One may be willing to sign a contract, yet find it difficult to declare some words publicly. Second, as for the oath’s content, loyalty oaths create different classes of social contracts since the duties of loyalty taken by naturalized citizens in the oath are broader than those required of natural-born citizens. Most oaths do not only specify legal obligations, which are written in the law, but also intend to add new contractual obligations, which are not written in the law, thereby expanding the scope of the duty of loyalty. Third, in some situations a contract is inadequate. If an oath implies devotion, then X can agree to love Y but no contract can ensure true love. And finally, the scope of loyalty depends on the contract’s terms and the circumstances in which one promises to be loyal; it yields a confined duty of loyalty.
It may be that the oath is not a legal contract but a moral promise. The fact that one makes promises does not mean that one drafts a contract. Take wedding vows.51 The bride and the groom promise to be faithful partners and love one another from this day until death. Nobody goes to court to seek a remedy because her partner no longer loves her, even though he promised to love her “in sickness and in health” until “death do us a part.” The vow is a moral statement, not a legal contract. The ceremony serves important non-legal functions, such as reminding the couple of the seriousness of their choice and of the weighty obligation they undertake. Couples who follow the vow do it not because of a religious system of rewards and punishments (though in some religions, the vow is binding) but due to a good conscience. However, the analogy of loyalty oaths to wedding vows fails, because the oath is a legal promise followed by a legal sanction. An oath-taker who breaks the oath will not merely be morally condemned for false-swearing, but may be legally guilty for breaching a contract.
B. Oaths as a Political Test
The modern concept of allegiance was developed in medieval England. Fealty tied vassals and lords52 and obligated fidelity in return for protection. Oaths of allegiance were largely derived from oaths of fealty.53 Allegiance was the obligation that subjects owed to the King in return for his protection.54 The incorporation of the oath of fealty into the public sphere occurred in 1534 when Henry VIII’s hopes of reconciliation with Rome were exhausted. Henry passed The Act for Establishment of the King’s Succession,55 forcing recognition of the validity of his marriage to Anne Boleyn. Henry invoked the oath in defense against the Catholic Church to ensure that the loyalty of his subjects was to the new Church of England and not to the Pope. He knew that his subjects had doubts as to the validity of his marriage, which could consequently undermine the validity of the throne. The oath was a mechanism forcing subjects to recognize his marriage.56
Once established, oaths became a common means. After the end of his marriage to Anne Boleyn, Henry passed a new Act that substituted Henry’s new wife, Jane Seymour, for his previous wife.57 This time, the Act provided that a refusal to take the oath would be considered high treason. In 1544, the oath was replaced one more time to state:58
Loyalty oaths were developed in a moment of instability in English history resulting from the break with the Catholic Church. Oaths were a political mechanism to test loyalty to the Crown by obliging subjects to recognize the superiority of the King as the only governor of the realm (an Oath of Supremacy), pledge loyalty to the King (an Oath of Allegiance), and declare against transubstantiation (an Oath of Abjuration).59 The emergence of oaths continued in the next centuries—and popped up especially in times of public hysteria60—until the passage of The Promissory Oaths Act of 1868, which reduced the English oath to its current version.61
The function of the oath as a political test raises a fundamental problem. Empirically, one can reasonably argue that loyalty oaths are a fallacy. If there is one nation that knows this well, it is the United States of America. The American Founding Fathers swore loyalty to King George, yet rebelled against him. Benjamin Franklin noted that “there could be no reliance on their oaths” as they are “the last recourse of liars;” James Wilson wrote that “a good government did not need them, and a bad government could not or ought not be supported.”62 In the most detailed review of oaths in America, Harold Hyman shows that, in an attempt to secure loyalty, oaths provoked disloyalty.63 The most stringent attack on loyalty oaths came from Noah Webster. “Ten thousand oaths” could not create a faithful subject, he argued; oaths of allegiance are a “badge of folly, borrowed from the dark ages of bigotry.”64 In referring to the wisdom of the oath, Webster declared:65
The debate over the function of the oath as a political test continued in the First Congress. Congressman John Page strongly opposed adopting oaths in America. Loyalty oaths, he argued, do not create good citizens. “If we have good laws,” he said, newcomers “will find it in their interest to be good citizens.”66 Page considered loyalty oaths as an inquisition: “Indeed, sir, I fear, if we go on as is proposed now, in the infancy of our Republic, we shall, in time, require a test of faith and politics, of every person who shall come into these States.”67 Congressman Boudinot similarly stated that he “always had considered oaths of allegiance as an imposition. They might keep away men who had scruples, because they had principles; others would swear, and break off, when it suited them.”68 Congressman Hartley found oaths to be false and thought that only a long residency requirement can “assure us of a man’s becoming a good citizen.”69
The oath’s function as a political test is not just empirically false, but also normatively problematic. Oaths act as a bond of trust; taking a loyalty oath indicates that an oath-taker is trustworthy. While this requirement may be reasonable, history shows that oaths were carefully designed to intimidate and exclude non-conformists due to political reasons. In the United States, for instance, this was the case during the Civil War, World War II, and the Cold War. As Chapter IV presents, testing one’s mind and heart yields high cost in term of individual liberties.
One final point: To a great extent, the history of the oath is a history of fear. Oaths were a sign of weakness and were used by the side which perceived a threat to its power. “No loyalty oath is required when loyalty is not in question,” Cass Sunstein claimed.70 Loyalty oaths try to restore conventions that have either ceased to exist or have been seriously jeopardized. The revival of loyalty oaths mirrors exactly the opposite. It reflects the decline of loyalty to an object because it shows the need to protect it. The words of the oath are needed precisely since they have been called into question. Sunstein rightly argued that “sometimes the purpose of oaths is to delegitimate heterogeneity by asserting unity. When this is so, the very existence of the oath tends, ironically, to confirm the existence of the problem.”71
C. Oaths as a Nation-Building Symbol
Loyalty oaths have historically been viewed as one of the greatest forces of society— a nation-building symbol, similar to the flag and the anthem. Montesquieu attributed the strength of the Romans to their use of oaths: “the oath had so much force among these people that nothing attached them more to the laws. In order to observe an oath, they often did what they would never have done for glory or for the homeland.”72 The idea of loyalty as a nation-building symbol was further developed by Rousseau. For Rousseau, loyalty is instrumental; it is a means to an end. Loyalty is relevant only to the extent that it is essential to secure freedom. In order to secure freedoms, citizens must share a bond—its minimum level is controversial— which is based upon developing irrational attachments by appealing to national festivals and rites, not only through rational self-interest in freedom.73
Oaths of allegiance promote solidarity and a feeling of belonging. They aim to create in-and out-groups but, more importantly, to unify the in-group.74 According to this view, the words of the oath are less powerful without the rite. Signing a few words on a piece of paper cannot produce in itself the required sentiment of unity. Rather, the dramatic moment of taking the oath in a public ceremony is what makes the oath memorable. The ceremony usually includes patriotic rituals, such as saluting the flag, reciting the words of the oath in public, and swearing on the Bible—all of which add to the dramatic air of the event.
The success of the oath of allegiance as a nation-building symbol, however, is not self-evidently true. Social science provides some evidence to support the proposition that some people are more prone than others to be either loyal or disloyal. It offers two ways to identify these people. The first way is relative; it touches upon character traits. Some people are more likely to be loyal than others due to specific traits they possess. The second way is situational; it defines a social structure in which people are generally prone to be more loyal. And yet, social science provides no evidence to support the premise that an oath has a positive influence on one’s sense of loyalty.75 Aside from anecdotal evidence, there is no evidence indicating that stating words of loyalty can foster social cohesion. We do not know what transformation occurs in the hearts and minds of people taking a loyalty oath.76 In fact, one may reasonably claim that oaths are counterproductive: a student reciting the Pledge of Allegiance each morning in public school may develop negative, rather than positive, feelings toward the object of loyalty. Think about a man who asks his spouse to declare her love every morning (especially when he does not do the same). After a year, would she love him more or less? Do we really believe that repetition of words—say, “I, solemnly, sincerely, and truly declare, affirm, and swear,”—leads people to be more attached to the object of loyalty? And even if oaths are effective to foster social cohesion, their efficiency obviously depends on their content and context. Forcing a Scotsman or a Catholic Irish to swear allegiance to Queen Elizabeth II, or a non-Jewish immigrant to pledge loyalty to a certain ideology or religion (a Jewish State), can exacerbate social divisions, rather than create social unity. Moreover, unlike pledges in public schools, which are repeated daily, the immigration oath is a one-time event held for just a few minutes. It is naïve to assume that the oath has enough impact on the newcomer’s identity. Civic integration is a product of a long process indeed, not a one-time event.
To be clear: my claim is not against nation-building symbols—I accept the premise that liberal states must maintain a minimum bond holding people together to survive—or against the use of legal means to encourage loyalty. I entirely agree with Gerald Neuman’s statement that “a multicultural society must be held together by loyalty to constitutional principles.”77 My doubt is rather empirical— on the nexus between loyalty oaths and the promotion of social cohesion—and normative—on the coercive nature of oaths as a direct imposition of loyalty. The law can create social conditions that promote a higher degree of commitment and identification. But loyalty cannot be directly imposed by a legal order and cannot be created by the power of oaths alone; attempting to do so would be empirically false and normatively wrong.
To conclude, loyalty oaths played a significant role in human history. To a certain degree, oaths still serve important goals in the contemporary world, especially in ceremonial functions, and in particular among religious communities who have faith in the magical power of the oath.78 However, in a largely secular world, the rationale and justification of the oath is more elusive. It is not just that the benefits of the oath are unclear. Loyalty oaths yield costs. I turn to this now.
IV. Three Problems about Loyalty Oaths
Obviously, if oaths are taken lightly—as in the case of Margaret, who asked her father, Thomas More, to “say the words of the oath and in your heart think otherwise”— they may not raise serious problems. However, oaths exist precisely because we expect that they are taken seriously by the oath-taker. This part of the Article claims that there are three liberal cases against loyalty oaths: the rule of law, freedom of conscience, and equality. First, some oaths are phrased by vague terms that are utilized to incorporate new duties and sanctions. Next, some oaths include ideological terms that infringe freedom of conscience. And finally, oaths are only enforced on naturalized citizens while natural-born citizens are exempt.
A. The Rule of Law and the Loyalty Oath
Imagine that you declare “fidelity to the Nation,” or pledge to “avoid everything that might harm the interests and the reputation of the Republic.” Can you identify your legal obligations from this oath? What about loyalty to Queen Elizabeth II “from this day forward”? Does it make sense to you? While a central tenet in law is clarity in understanding what legal responsibilities are undertaken79—under some views of the rule of law principle, the law should be clear and unequivocal— the substance of oaths is vague.80 It is not possible to understand precisely who owes what and to whom.
Even though oaths in the immigration context have never been invalidated due to their vagueness, oaths in other contexts have. In numerous cases, the U.S. Supreme Court has invalidated loyalty oaths on the ground that the oath-taker could not understand the obligations specified. The Court held that oaths put the oath-taker at continued risk because the range of activities that may be forbidden by the oath is very wide. The Court found the oath to be unconstitutional since its language was “vague, uncertain and broad … a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning … violates due process of law.”81
The vagueness of the oath, struck down by the Court in the case of citizens, has been embraced by the same Court as long as noncitizens are concerned. The oath has traditionally been a means of incorporating unspecified requirements with no measurement allowing oath-takers to identify the forbidden behavior. In one case, the U.S. Supreme Court sustained the view of the U.S. Government that the ambiguous requirement to “support and defend the Constitution” must necessarily mean a duty to bear arms.82 The Court rejected the alternative interpretation that there may be other methods of defending the U.S. Constitution apart from bearing of arms.83
Vagueness of legal terms, one may observe, is not unique to loyalty oaths; think of terms such as proportionality, negligence, and good faith. In fact, vagueness may sometimes be an advantage. The fact that there is no clear consensus about all aspects of being loyal may reduce the cost in terms of freedom of conscience, since lack of consensus leaves room for individual interpretation. Morton Grodzins rightly observes that, unlike totalitarian regimes, “in democratic states it is easy to maintain loyalty because the meaning of national loyalty is ambiguous.”84 Loyalty as a legal standard, similar to negligence, provides a wide range of discretion. The fiercest critics of Israel, for example, including those who call to boycott Israel, argue that they are the most loyal to Israel since they save Israel from itself. This fact mutes the charge that vagueness has costs; it may yield benefit.
Nonetheless, as with other legal standards, the challenge of loyalty is in refraining from abuse of ambiguous terms against certain groups. The point is not vagueness, but abuse.85 Take the promise to “support the U.S. Constitution.” Does it mean supporting judicial interpretation on abortion, gay rights, and the death penalty? When one pledges allegiance to the Constitution, does he or she promise to support any outcome that would result from the amendment procedure? Can an immigrant pledge to support the Constitution yet advocate its repeal? In the United States, for example, immigration law provides that an immigrant is not attached to the Constitution if he or she “disbelieve[s] in the principles of the Constitution.”86 American immigration law holds that the right to advocate a constitutional change stands only to the extent that “the changes advocated would not abrogate the current Government and establish an entirely different form of government.”87 But if one supports the Constitution, it can be claimed that one also supports the possibility of its repeal in light of Article V.88
The argument for supporting the Constitution yet asking for its repeal was made by Charles Roach, who sought to become a Canadian citizen. Roach was legally admitted into Canada in 1955. He graduated from the University of Toronto School of Law and was admitted to the Bar. Roach had fulfilled all necessary requirements to become a citizen, but his application was denied.89 The reason was simple. Roach refused to take an oath to Queen Elizabeth II because he objected to swearing allegiance to a monarchy. Interestingly, the Canadian Court held that Roach could pledge loyalty to the Queen and still advocate fundamental changes in the structure of Canada as long as they are performed according to the amendment procedure.90 Justice Linden dissented. In Linden’s view, Roach could not advocate the abolition of the structure to which he pledged allegiance; he cannot act to replace the monarchy, yet remain loyal to the Queen:91
There are three possible ways to make oaths less vague. The first is to distinguish between oaths of obedience and oaths of allegiance. In some oaths, the key component is legal obedience; one swears to obey the law and observe his or her (legal) duties as a citizen. Yet in other oaths, the key component is allegiance; one swears to bear “fidelity to the nation” and “hold faith to my country,” obligations that are not generally written in the law. Although most oaths combine these two requirements—obedience and allegiance—it is helpful to clarify which specific obligation the oath-taker takes. This distinction, however, does not clarify the very duty of allegiance, which remains vague. For this, further clarifications exist.
The second distinction is between loyalty to the fundamental constitutional structure of a country and loyalty to certain constitutional norms and values. In Constitutional Theory, Carl Schmitt asserts that an oath to a constitution “does not mean an oath regarding every single constitutional norm, nor does [it mean] … submission to everything that comes out by way of [the amendment procedure].”92 Instead, it implies one obligation—to accept, or at least not to undermine, a society’s fundamental structure. In the case of the Canadian Constitution, Justice Linden held that the oath demands “an acceptance of the whole of our Constitution and national life.”93 If one accepts Schmitt’s minimalist view of oaths, and further accepts that Canada’s basic structure is based upon, among other things, its status as being a Constitutional monarchy, Roach’s citizenship petition ought to be denied because Roach seeks to repeal Canada’s fundamental constitutional structure, and not merely to challenge (or amend) a single constitutional norm.
The third distinction is between loyalty to forms and loyalty to contents. An oath can require loyalty to substance (“democratic beliefs,” “culture and customs,” etc.) and it can require loyalty to a legal form—the method for the use of legal power and for amending the legal procedure to create laws (it can, of course, require both). Although form and content are interrelated, they are not the same. Take Roach: If the Canadian Constitution does not allow amending its status as a constitutional monarchy by a particular form, say, a referendum, and the oath requires loyalty to the existing form of decision making, Roach can be excluded as long as he seeks to act differently. But if the oath requires loyalty toward a more substantial matter, Roach can show loyalty to the Queen, even if he objects to a constitutional monarchy, by accepting that a constitutional monarchy is the form of government in Canada. We take this to be the acceptance of a fact, an empirical thing, similar to accepting that there are ten provinces in Canada. This view allows him to promote a change in the constitutional amendment procedure in a way that it will include the form of referendum as a form to change Canada from a constitutional monarchy to a republic.
These three distinctions do not entirely solve the vagueness of oaths but they make the legal obligations taken clearer than their current ambiguous terms. At the end, it would depend on the oath itself to clarify the type and the scope of the duty of loyalty.
Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy
Canadian Journal of Law and Jurisprudence Vol. XXVII, No. 1 (January 2014)
by Liav Orgad
Introduction
Margaret Roper: God more regards the thoughts of the heart than the words of the mouth. Or so you’ve always told me.
Thomas More: Yes.
Roper: Then say the words of the oath and in your heart think otherwise.
More: When a man takes an oath, Meg, he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again.
-- Robert Bolt, A Man for All Seasons (New York: Vintage Books, 1990) at 140
The Article explores one manifestation of loyalty in liberal philosophy and political practice—loyalty oaths for immigrants. In many democratic states, immigrants seeking to become citizens must take a loyalty oath. Although the content and form of the oath varies, its common feature is that it is mandatory—a prerequisite for citizenship.
Loyalty oaths are particularly interesting because they are a unique platform through which to examine the interrelationship between constitutional law and immigration law. Oaths serve as a means for an immigrant to subscribe to the tenets of the community. However, before imposing an oath on newcomers, the community must define its tenets. The substance of the oath we demand of them is about us. Immigration policy, thus, echoes constitutional identity by mirroring not only the qualities that we value in others but also by reflecting what defines us.
At first glance, citizenship oaths do not raise serious problems of political philosophy. After all, an oath only entails reciting a few words in a public ceremony.
However, a closer review reveals forceful reasons against the use of loyalty oaths in liberal societies. First, the duty of loyalty, imposed on naturalized persons, seeks to influence one’s character traits, emotional attitudes, and internal beliefs; it requires more than just the liberal duty of conformity to the law. Second, the obligation to take a loyalty oath in order to secure citizenship appears to limit individual liberties of the oath-takers, infringe upon their freedom of conscience, and in fact discriminate against naturalized citizens as compared to natural-born citizens, who never must take the oath. In spite of these strong claims against loyalty oaths, the institution of the oath remains an understudied topic.
The Article argues that the use of loyalty oaths is a symptom of a genuine problem in the liberal theory. In some forms, liberalism means to obey the law and otherwise be left alone. But stronger forms of liberalism further require belief in liberal values and institutions. The justification for requiring it is grounded on liberalism itself—its being essential for upholding individual liberties.1 The challenge has always been how to preserve liberal values and institutions without crossing the liberal line into ‘indoctrination.’ However, when the benchmark of loyalty becomes belief rather than behavior, when it is faith rather than action, it gets close to the point of being illiberal, even if its goal is to keep liberalism alive. The more loyalty liberal democracies demand, the less liberal they become. When liberal democracies require “loyalty to the law” (allegiance)—and not just “conformity with the law” (obedience)—they challenge liberalism itself. The Article concludes that loyalty oaths yield high costs but have low benefits, and suggests abandoning them as a legal institution.
The Article proceeds as follows: Part I reveals a global trend in comparative immigration law—the growing appeal to loyalty oaths. Part II shows that modern law still embraces a duty of allegiance in addition to the general duty of obedience and explores the differences between them. Part III traces the function of loyalty oaths and demonstrates that, regardless of the oath’s historical purpose—being a form of social contract, political test, and nation-building symbol— its modern purpose is vague. Part IV presents three liberal problems raised by loyalty oaths: 1) they infringe upon the rule of law; 2) they violate freedom of conscience; and 3) they discriminate against naturalized citizens as compared to natural-born citizens. Part V concludes.
I. The Revival of Loyalty Oaths
In formal terms, a loyalty oath is a statement made by an immigrant acknowledging a duty of loyalty before becoming a citizen. It is often called an Oath of Allegiance, although other titles exist. Technically, stating “I swear” (pledge, affirm, vow, promise, etc.) constitutes taking an oath. In substantive terms, the immigrant is not required to pronounce the words “I swear” but, instead, to acknowledge a substantive duty of loyalty by other means, such as by signing certain immigration documents specifying a duty of loyalty.2
An analysis of loyalty oaths in different democratic states reveals the following. First, oaths are a popular legal institution. Second, they are the final step in the naturalization process. Democratic states do not usually demand a formal oath as a prerequisite for entry. Third, oaths ordinarily apply to all types of immigrants, including spouses of citizens and refugees. Fourth, the object of loyalty is varied—it can include the Queen or other sovereign, the Constitution, democratic principles, the Republic, human rights, and national culture. Finally, the essence of loyalty is diverse. In Austria, for example, the immigrant has three obligations: to “be a loyal citizen of the Republic,” to “conscientiously abide by the laws,” and to “avoid everything that might harm the interests and the reputation of the Austrian Republic.”3 In Ireland, the immigrant must declare “fidelity to the [Irish] Nation” as well as “loyalty to the State.”4 In France, new regulations (2012) demand every naturalized French to adhere to “the principles, values, and symbols of French democracy” and be loyal to “French values.”5 In Australia, the immigrant must take an interesting oath providing that: “From this time forward, I pledge my loyalty to Australia and its people; whose democratic beliefs I share; whose rights and liberties I respect; and whose laws I will uphold and obey.”6
In Britain, there have been two loyalty oaths. The traditional Oath of Allegiance requires every immigrant to “be faithful and bear true allegiance to her Majesty Queen Elizabeth the Second, Her Heirs and Successors.”7 From 2004, every immigrant must also pledge loyalty to the United Kingdom: “I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfill my duties and obligations as a British citizen.”8 Recently, as part of the debate on the meaning of Britishness, a government committee headed by Lord Goldsmith suggested adopting a third oath, an American-style Pledge of Allegiance in public schools. The committee had found that there had been a diminution in British identity. To foster social unity, it turned back to the old means of the oath to the Queen.9 In Canada, new citizens should swear allegiance to Her Majesty Queen Elizabeth II in order to get Canadian citizenship. The oath declares:10
I, [name], do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.
The Canadian oath demands more than simply being an obedient citizen. It requires a person to be “faithful and bear true allegiance” to the Queen, the Head of the Church of England, and extends to her heirs and successors.
In Israel, the present oath of naturalization is minimal—non-Jewish immigrants should swear loyalty to the State of Israel.11 However, a new bill, suggested by the Israeli government, proposes that every immigrant shall swear loyalty to Israel as a “Jewish and democratic State.”12 Immigrants are not asked to accept the existence of a Jewish state but, instead, to swear loyalty to a Jewish state.
In the United States, the oath dates back to 1790. In one of its first acts, the Naturalization Act of 1790, Congress required every newcomer to the New World to take an oath of allegiance “to support the Constitution of the United States.”13 The Naturalization Act of 1795 added a pledge to “defend the Constitution and laws of the United States against all enemies … [and] bear true faith and allegiance to the same.”14 The oath has essentially remained the same ever since.15 In addition, the American oath requires not only loyalty to the U.S. Constitution but also to “entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty.”16 Demanding not just loyalty to the U.S. Constitution, but sole loyalty, presents a case of a “jealous” or “greedy” nation.17
The importance of loyalty oaths is also recognized in international law. The International Court of Justice held that “international law leaves it to each State to lay down the rules governing the grant of its nationality.”18 It further ruled that the process of naturalization involves both the “breaking of [the old] bond of allegiance” and the “establishment of a new bond of allegiance.”19 In fact, the Convention on the Reduction of Statelessness provides that states can refuse to grant citizenship and even deprive a person of his or her citizenship—including those situations in which the person would stay stateless—in cases of disloyalty to the state or “given definite evidence of his determination to repudiate his allegiance to the Contracting State,” or whenever the person has taken an oath of allegiance to another state.20
While countries place great importance on loyalty oaths, there is no underlying theory directing them as a group. Oaths are a grab bag: their diverse objectives, content, and form present a wide range of issues. However, there is a common denominator among them—the fact that nations require loyalty to an object implies that a difference exists between allegiance to the law and obedience to the law. Both citizens and noncitizens must obey the law, yet only citizens owe an additional duty of allegiance. What is the added value of allegiance upon obedience? It is essential to discuss the duty of allegiance before exploring the duty to take an oath of allegiance, because oaths presuppose the existence of a duty of allegiance.
II. Allegiance and Obedience
A theory of allegiance was first fully articulated in the Calvin’s Case by Chief Justice Edward Coke.21 Justice Coke did not elaborate on the distinction between allegiance and obedience, yet a glimpse of medieval England provides a better understanding of this distinction.
Common law demanded allegiance to the King and obedience to acts of Parliament. Allegiance was a natural duty “due from all men born within the King’s dominions immediately upon their birth.”22 The duty of allegiance was absolute, perpetual, and indelible.23 The duty of obedience, conversely, was not natural, but legal, and thus could be relinquished. Another difference is related to the added value of allegiance. Allegiance was “a true and faithful obedience of the subject due to his Sovereign.”24 Allegiance thus was about faithfulness and devotion to an object. A subject had to legally obey the law of Parliament, yet show faithful devotion to the order of the King—for right and wrong, for better and for worse. Allegiance was more than blind obedience to all laws at all times. It implied a positive attitude, an affection or attachment toward the object of loyalty (the law, the Queen, the King). Further, it required the “subordination of one’s own private interest in favour of giving what is due, and perhaps also the exclusion of other legitimate interests.”25
The American colonies broke away from three fundamental premises of allegiance. First, the colonists showed that loyalty to the King was intertwined with recognizing the Parliament’s authority.26 The King and the Parliament were separate entities; yet disavowing the duty to one meant breaching the duty to the other. One cannot be loyal to the King when openly opposing the laws of Parliament (or vice versa). And yet, while the American Revolution blurred the distinction between allegiance and obedience,27 old theories of loyalty still exist. In Canada, for instance, naturalized citizens must pledge to obey the law and be loyal to Queen Elizabeth II. This formula creates a potential conflict between allegiance and obedience. If, albeit an extreme example, a war breaks out between Canada and Britain, a Canadian citizen must obey Canadian law yet be loyal to Queen Elizabeth II, who is nominally the Commander-in-Chief of the British Army.
Second, the American Revolution put an end to the doctrine of allegiance to the King in his personal capacity and replaced it with a theory of allegiance to a legal entity. The English concept of subjecthood was based on feudal ties between the King and his subjects. The modern notion of citizenship, however, presumes legal rather than natural ties between a citizen and a state. Allegiance is not owed to a natural person but to a corporate personhood representing the eternal interests of the Crown.28 Thus, one can be loyal to the legal entity of the King-in-Parliament even if one opposes the King’s order. The American rebels appealed to allegiance to the eternal interests of the Crown, although they opposed the rule of King George III. The United States recognizes this idea in its preamble by according sovereignty to ‘the People,’ a legal entity that exists regardless of a specific time/place.29
Finally, the American Revolution grounded allegiance in contract law theory rather than in natural law. In common law, every subject owed allegiance from the moment he was born. Allegiance was a matter of natural law and not a voluntary act of consent. William Blackstone noted in this direction that “natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth”; it was “a debt of gratitude” for being lucky enough to be born under the King’s protection.30 During the American Revolution, allegiance became a matter of consent. Allegiance turned into a contractual obligation that is defined by law and terminated by law.31 The rapid diffusion of Lockean theories of social contract and consent challenged Coke’s and Blackstone’s old ideas of indelible allegiance. The theory of perpetual allegiance gradually lost coherence and integrity. This development was dramatic since if the law, rather than nature, creates the duty of allegiance (and constitutes its source), then, as noted by John Locke, “[a]llegiance [is] nothing but an Obedience according to law.”32 Allegiance is due because it is required by law.
Contractual allegiance implied another conclusion—that allegiance is conditional. This idea was recognized long before. The pledge of allegiance taken by subjects of the King of Aragon signified it: “We, who are as good as you, swear to you, who are not better than we, to accept you as our Kind and sovereign lord, provided that you observe all our liberties and laws; but if not, then not.”33 In Ancient Greece, a mutual oath was the foundation of the Spartan monarchy. Even the King had to take an oath of allegiance as an expression of a mutual bond. The King swore: “I will exercise my kingship in accordance with established laws of the state;” in return, the people of Sparta swore: “so long he [the king] shall abide by his oath we will not suffer his kingship to be shaken.”34 The American rebels adopted this concept. They argued that allegiance and protection are the quid pro quo of a mutual contract, each given in return for the other. If the King does not protect his people, the people are not bound by allegiance. In fact, the breach of the bond of loyalty is what the American Revolution was all about. The American colonies did not consider the revolution to be treasonous since they believed King George III was the first side to break the mutual contract of loyalty.35
The modern concept of allegiance emerged from English roots. During the American Revolution, allegiance was gradually transformed from a natural duty into a legal duty, owed to a legal entity, rather than to a living person, and based on a mutual, rather than one-sided relationship. Nevertheless, allegiance is still different from obedience in at least two senses. It is broader, because it requires devotion to the best interests of the community even when there is no legal duty of obedience. A person is loyal when he or she unquestionably follows specific patterns of behavior.36 In addition, allegiance is narrower than obedience because allegiance calls for identification. It seeks to assure not only compliance with the law, but also commitment to the law. “Faith only, and inward sincerity,” John Locke observed long ago, “are the things that procure acceptance.”37 A person is loyal when he or she faithfully feels affection to the object of loyalty.38 “Loyalty,” as once held by the U.S. Supreme Court, “is a matter of mind and of heart.”39
To sum up, historically, allegiance and obedience were substantially different. This difference was seemingly blurred by the American Revolution. Modern law, however, sustains some aspects of the old difference, thereby raising the question about the essence of loyalty and its added value. In contemporary immigration law, it seems that the duty of loyalty has three additional burdens related to an immigrant’s character traits (good citizens), emotional attitudes (patriotic citizens), and level of conformity (devoted citizens).40 In order to maintain these added burdens, liberal democracies should suggest a theory justifying the duty of loyalty.
For the sake of this discussion, I assume that the concept of loyalty is justified and that some duties of loyalty can be justified.41 I further assume that the duty of loyalty calls for some level of compliance, either because it is a legitimate duty or because it is based upon other justifications (fairness, consent, friendship, gratitude, etc.). Given these arguable but plausible propositions, I explore the wisdom of one manifestation of loyalty—the oath—and its possible purposes.
III. The Function of Loyalty Oaths
This part explores different purposes of loyalty oaths by tracing their history: First, ancient oaths, which demonstrate the function of the oath as a contract; then, reformation oaths, which present the oath as a political test; and finally, American oaths, which illustrate the oath as a nation-building symbol. On the whole, this part shows that the oath holds no solid purpose and, even if it has a purpose, there is no evidence to indicate that it is rationally served by the oath. The oath, hence, has little benefit.
A. Oaths as a Contract
Oaths can be viewed as the most ancient form of contract. Their origin is rooted in an era in which people believed oaths possessed a magical power: mere words could kill or heal people. The oath’s power relied on faith in its magic and naturally implied a belief in God or other supreme being. Oaths acted as self-inflicted curses used to secure that a promise is fulfilled.42 They included a ‘curse clause’ to indicate the expected harm for violating the contract, and a ‘blessing clause’ to mark the expected gain for its fulfillment.43 Legal sanction was not essential since a breach of an oath was tantamount to breaking a contract with God; ‘Gods became the tools whereby the oath caused to operate.’44 The expression ‘so help me God’ is the invocation of God as a partner to the oath.45 The contractual power of the oath, as Daniel Webster observed, “is found on a degree of consciousness that there is a Power above us that will reward our virtues and punish our vices.”46
In Ancient Greece, the oath gained its political nature. Oaths acted as a contract between men and society. The Ephebic Oath, required from every man before entering into College, provided a basis for the social contract in Athens and had to be taken by every Athenian as a prerequisite for having the status of a citizen.47 The shift in the function of the oath—from a religious appeal to the Supreme Being to a social contract—can explain why the oath is required. Membership in a community requires agreement with some rules. While existing members presumably agree to these rules by tacit consent—implied by continued residence in the host country or maintaining citizenship,48 a doubtful proposition49— new members are required to express explicit consent to the rules of a community. Oaths are thus an expression of a contractual loyalty. Here, too, the oath is founded on religious roots—acquiring new citizenship is tantamount to converting to a new religion. New members must explicitly consent to the rules.
The contractual nature of an oath may also be an act of specification of a legal obligation. At some law schools, students must sign a contract before taking an exam stating their awareness of the rules of ethics and promising to obey them during the exam. The purpose of these contracts is to increase the students’ awareness of the code of conduct during exams. But this raises some interesting questions: Does the contract add new obligations to those written in the student regulations? Is a student, who cheats on an exam after signing the contract, guiltier than a student who commits the same offence without signing the contract? Or does the contract not affect legal responsibility, but instead intend to have a psychological effect that deters fraud? In common law, the function of the oath as a contract intended to concretize the duty of loyalty—but also to add a contractual duty—as Blackstone noted: “The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason: but it does not increase the civil obligation to loyalty.”50 The oath, then, did not affect the scope of the duty of loyalty, but added a new legal obligation; an act of disloyalty was a violation of both natural law and contract law.
The function of the oath as a contract raises some queries, which do not relate to the oath as a contract but rather to its form and content. First, as for the oath’s form, why is it necessary to oblige people to state the words rather than sign a legal document? The oath can be a written contract—a legal document that one must sign in the immigration interview, similar to the procedure of opening a bank account. One may be willing to sign a contract, yet find it difficult to declare some words publicly. Second, as for the oath’s content, loyalty oaths create different classes of social contracts since the duties of loyalty taken by naturalized citizens in the oath are broader than those required of natural-born citizens. Most oaths do not only specify legal obligations, which are written in the law, but also intend to add new contractual obligations, which are not written in the law, thereby expanding the scope of the duty of loyalty. Third, in some situations a contract is inadequate. If an oath implies devotion, then X can agree to love Y but no contract can ensure true love. And finally, the scope of loyalty depends on the contract’s terms and the circumstances in which one promises to be loyal; it yields a confined duty of loyalty.
It may be that the oath is not a legal contract but a moral promise. The fact that one makes promises does not mean that one drafts a contract. Take wedding vows.51 The bride and the groom promise to be faithful partners and love one another from this day until death. Nobody goes to court to seek a remedy because her partner no longer loves her, even though he promised to love her “in sickness and in health” until “death do us a part.” The vow is a moral statement, not a legal contract. The ceremony serves important non-legal functions, such as reminding the couple of the seriousness of their choice and of the weighty obligation they undertake. Couples who follow the vow do it not because of a religious system of rewards and punishments (though in some religions, the vow is binding) but due to a good conscience. However, the analogy of loyalty oaths to wedding vows fails, because the oath is a legal promise followed by a legal sanction. An oath-taker who breaks the oath will not merely be morally condemned for false-swearing, but may be legally guilty for breaching a contract.
B. Oaths as a Political Test
The modern concept of allegiance was developed in medieval England. Fealty tied vassals and lords52 and obligated fidelity in return for protection. Oaths of allegiance were largely derived from oaths of fealty.53 Allegiance was the obligation that subjects owed to the King in return for his protection.54 The incorporation of the oath of fealty into the public sphere occurred in 1534 when Henry VIII’s hopes of reconciliation with Rome were exhausted. Henry passed The Act for Establishment of the King’s Succession,55 forcing recognition of the validity of his marriage to Anne Boleyn. Henry invoked the oath in defense against the Catholic Church to ensure that the loyalty of his subjects was to the new Church of England and not to the Pope. He knew that his subjects had doubts as to the validity of his marriage, which could consequently undermine the validity of the throne. The oath was a mechanism forcing subjects to recognize his marriage.56
Once established, oaths became a common means. After the end of his marriage to Anne Boleyn, Henry passed a new Act that substituted Henry’s new wife, Jane Seymour, for his previous wife.57 This time, the Act provided that a refusal to take the oath would be considered high treason. In 1544, the oath was replaced one more time to state:58
I, A. B., having now the veil of darkness of the usurped power authority and jurisdiction of the see and Bishop of Rome clearly taken away from mine eyes, do utterly testify and declare in my conscience that neither the see nor the Bishop of Rome nor any foreign potentate hath nor ought to have any jurisdiction power or authority within this realm neither by God’s law nor by any other just law or means … I shall bear faith truth and true allegiance to the King’s Majesty and to his heirs and successors.
Loyalty oaths were developed in a moment of instability in English history resulting from the break with the Catholic Church. Oaths were a political mechanism to test loyalty to the Crown by obliging subjects to recognize the superiority of the King as the only governor of the realm (an Oath of Supremacy), pledge loyalty to the King (an Oath of Allegiance), and declare against transubstantiation (an Oath of Abjuration).59 The emergence of oaths continued in the next centuries—and popped up especially in times of public hysteria60—until the passage of The Promissory Oaths Act of 1868, which reduced the English oath to its current version.61
The function of the oath as a political test raises a fundamental problem. Empirically, one can reasonably argue that loyalty oaths are a fallacy. If there is one nation that knows this well, it is the United States of America. The American Founding Fathers swore loyalty to King George, yet rebelled against him. Benjamin Franklin noted that “there could be no reliance on their oaths” as they are “the last recourse of liars;” James Wilson wrote that “a good government did not need them, and a bad government could not or ought not be supported.”62 In the most detailed review of oaths in America, Harold Hyman shows that, in an attempt to secure loyalty, oaths provoked disloyalty.63 The most stringent attack on loyalty oaths came from Noah Webster. “Ten thousand oaths” could not create a faithful subject, he argued; oaths of allegiance are a “badge of folly, borrowed from the dark ages of bigotry.”64 In referring to the wisdom of the oath, Webster declared:65
If the government of Pensylvania [sic] is better than that of Great Britain, the subjects will prefer it, and abjuration is perfectly nugatory. If not, the subject will have his partialities in spite of any solemn renunciation of a foreign power … I pray God to enlighten the minds of the Americans. I wish they would shake off every badge of tyranny. Americans!—The best way to make men honest, is to let them enjoy equal rights and privileges … No man will commence enemy to a government which [gives] him as many privileges as his neighbors enjoy.
The debate over the function of the oath as a political test continued in the First Congress. Congressman John Page strongly opposed adopting oaths in America. Loyalty oaths, he argued, do not create good citizens. “If we have good laws,” he said, newcomers “will find it in their interest to be good citizens.”66 Page considered loyalty oaths as an inquisition: “Indeed, sir, I fear, if we go on as is proposed now, in the infancy of our Republic, we shall, in time, require a test of faith and politics, of every person who shall come into these States.”67 Congressman Boudinot similarly stated that he “always had considered oaths of allegiance as an imposition. They might keep away men who had scruples, because they had principles; others would swear, and break off, when it suited them.”68 Congressman Hartley found oaths to be false and thought that only a long residency requirement can “assure us of a man’s becoming a good citizen.”69
The oath’s function as a political test is not just empirically false, but also normatively problematic. Oaths act as a bond of trust; taking a loyalty oath indicates that an oath-taker is trustworthy. While this requirement may be reasonable, history shows that oaths were carefully designed to intimidate and exclude non-conformists due to political reasons. In the United States, for instance, this was the case during the Civil War, World War II, and the Cold War. As Chapter IV presents, testing one’s mind and heart yields high cost in term of individual liberties.
One final point: To a great extent, the history of the oath is a history of fear. Oaths were a sign of weakness and were used by the side which perceived a threat to its power. “No loyalty oath is required when loyalty is not in question,” Cass Sunstein claimed.70 Loyalty oaths try to restore conventions that have either ceased to exist or have been seriously jeopardized. The revival of loyalty oaths mirrors exactly the opposite. It reflects the decline of loyalty to an object because it shows the need to protect it. The words of the oath are needed precisely since they have been called into question. Sunstein rightly argued that “sometimes the purpose of oaths is to delegitimate heterogeneity by asserting unity. When this is so, the very existence of the oath tends, ironically, to confirm the existence of the problem.”71
C. Oaths as a Nation-Building Symbol
Loyalty oaths have historically been viewed as one of the greatest forces of society— a nation-building symbol, similar to the flag and the anthem. Montesquieu attributed the strength of the Romans to their use of oaths: “the oath had so much force among these people that nothing attached them more to the laws. In order to observe an oath, they often did what they would never have done for glory or for the homeland.”72 The idea of loyalty as a nation-building symbol was further developed by Rousseau. For Rousseau, loyalty is instrumental; it is a means to an end. Loyalty is relevant only to the extent that it is essential to secure freedom. In order to secure freedoms, citizens must share a bond—its minimum level is controversial— which is based upon developing irrational attachments by appealing to national festivals and rites, not only through rational self-interest in freedom.73
Oaths of allegiance promote solidarity and a feeling of belonging. They aim to create in-and out-groups but, more importantly, to unify the in-group.74 According to this view, the words of the oath are less powerful without the rite. Signing a few words on a piece of paper cannot produce in itself the required sentiment of unity. Rather, the dramatic moment of taking the oath in a public ceremony is what makes the oath memorable. The ceremony usually includes patriotic rituals, such as saluting the flag, reciting the words of the oath in public, and swearing on the Bible—all of which add to the dramatic air of the event.
The success of the oath of allegiance as a nation-building symbol, however, is not self-evidently true. Social science provides some evidence to support the proposition that some people are more prone than others to be either loyal or disloyal. It offers two ways to identify these people. The first way is relative; it touches upon character traits. Some people are more likely to be loyal than others due to specific traits they possess. The second way is situational; it defines a social structure in which people are generally prone to be more loyal. And yet, social science provides no evidence to support the premise that an oath has a positive influence on one’s sense of loyalty.75 Aside from anecdotal evidence, there is no evidence indicating that stating words of loyalty can foster social cohesion. We do not know what transformation occurs in the hearts and minds of people taking a loyalty oath.76 In fact, one may reasonably claim that oaths are counterproductive: a student reciting the Pledge of Allegiance each morning in public school may develop negative, rather than positive, feelings toward the object of loyalty. Think about a man who asks his spouse to declare her love every morning (especially when he does not do the same). After a year, would she love him more or less? Do we really believe that repetition of words—say, “I, solemnly, sincerely, and truly declare, affirm, and swear,”—leads people to be more attached to the object of loyalty? And even if oaths are effective to foster social cohesion, their efficiency obviously depends on their content and context. Forcing a Scotsman or a Catholic Irish to swear allegiance to Queen Elizabeth II, or a non-Jewish immigrant to pledge loyalty to a certain ideology or religion (a Jewish State), can exacerbate social divisions, rather than create social unity. Moreover, unlike pledges in public schools, which are repeated daily, the immigration oath is a one-time event held for just a few minutes. It is naïve to assume that the oath has enough impact on the newcomer’s identity. Civic integration is a product of a long process indeed, not a one-time event.
To be clear: my claim is not against nation-building symbols—I accept the premise that liberal states must maintain a minimum bond holding people together to survive—or against the use of legal means to encourage loyalty. I entirely agree with Gerald Neuman’s statement that “a multicultural society must be held together by loyalty to constitutional principles.”77 My doubt is rather empirical— on the nexus between loyalty oaths and the promotion of social cohesion—and normative—on the coercive nature of oaths as a direct imposition of loyalty. The law can create social conditions that promote a higher degree of commitment and identification. But loyalty cannot be directly imposed by a legal order and cannot be created by the power of oaths alone; attempting to do so would be empirically false and normatively wrong.
To conclude, loyalty oaths played a significant role in human history. To a certain degree, oaths still serve important goals in the contemporary world, especially in ceremonial functions, and in particular among religious communities who have faith in the magical power of the oath.78 However, in a largely secular world, the rationale and justification of the oath is more elusive. It is not just that the benefits of the oath are unclear. Loyalty oaths yield costs. I turn to this now.
IV. Three Problems about Loyalty Oaths
Obviously, if oaths are taken lightly—as in the case of Margaret, who asked her father, Thomas More, to “say the words of the oath and in your heart think otherwise”— they may not raise serious problems. However, oaths exist precisely because we expect that they are taken seriously by the oath-taker. This part of the Article claims that there are three liberal cases against loyalty oaths: the rule of law, freedom of conscience, and equality. First, some oaths are phrased by vague terms that are utilized to incorporate new duties and sanctions. Next, some oaths include ideological terms that infringe freedom of conscience. And finally, oaths are only enforced on naturalized citizens while natural-born citizens are exempt.
A. The Rule of Law and the Loyalty Oath
Imagine that you declare “fidelity to the Nation,” or pledge to “avoid everything that might harm the interests and the reputation of the Republic.” Can you identify your legal obligations from this oath? What about loyalty to Queen Elizabeth II “from this day forward”? Does it make sense to you? While a central tenet in law is clarity in understanding what legal responsibilities are undertaken79—under some views of the rule of law principle, the law should be clear and unequivocal— the substance of oaths is vague.80 It is not possible to understand precisely who owes what and to whom.
Even though oaths in the immigration context have never been invalidated due to their vagueness, oaths in other contexts have. In numerous cases, the U.S. Supreme Court has invalidated loyalty oaths on the ground that the oath-taker could not understand the obligations specified. The Court held that oaths put the oath-taker at continued risk because the range of activities that may be forbidden by the oath is very wide. The Court found the oath to be unconstitutional since its language was “vague, uncertain and broad … a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning … violates due process of law.”81
The vagueness of the oath, struck down by the Court in the case of citizens, has been embraced by the same Court as long as noncitizens are concerned. The oath has traditionally been a means of incorporating unspecified requirements with no measurement allowing oath-takers to identify the forbidden behavior. In one case, the U.S. Supreme Court sustained the view of the U.S. Government that the ambiguous requirement to “support and defend the Constitution” must necessarily mean a duty to bear arms.82 The Court rejected the alternative interpretation that there may be other methods of defending the U.S. Constitution apart from bearing of arms.83
Vagueness of legal terms, one may observe, is not unique to loyalty oaths; think of terms such as proportionality, negligence, and good faith. In fact, vagueness may sometimes be an advantage. The fact that there is no clear consensus about all aspects of being loyal may reduce the cost in terms of freedom of conscience, since lack of consensus leaves room for individual interpretation. Morton Grodzins rightly observes that, unlike totalitarian regimes, “in democratic states it is easy to maintain loyalty because the meaning of national loyalty is ambiguous.”84 Loyalty as a legal standard, similar to negligence, provides a wide range of discretion. The fiercest critics of Israel, for example, including those who call to boycott Israel, argue that they are the most loyal to Israel since they save Israel from itself. This fact mutes the charge that vagueness has costs; it may yield benefit.
Nonetheless, as with other legal standards, the challenge of loyalty is in refraining from abuse of ambiguous terms against certain groups. The point is not vagueness, but abuse.85 Take the promise to “support the U.S. Constitution.” Does it mean supporting judicial interpretation on abortion, gay rights, and the death penalty? When one pledges allegiance to the Constitution, does he or she promise to support any outcome that would result from the amendment procedure? Can an immigrant pledge to support the Constitution yet advocate its repeal? In the United States, for example, immigration law provides that an immigrant is not attached to the Constitution if he or she “disbelieve[s] in the principles of the Constitution.”86 American immigration law holds that the right to advocate a constitutional change stands only to the extent that “the changes advocated would not abrogate the current Government and establish an entirely different form of government.”87 But if one supports the Constitution, it can be claimed that one also supports the possibility of its repeal in light of Article V.88
The argument for supporting the Constitution yet asking for its repeal was made by Charles Roach, who sought to become a Canadian citizen. Roach was legally admitted into Canada in 1955. He graduated from the University of Toronto School of Law and was admitted to the Bar. Roach had fulfilled all necessary requirements to become a citizen, but his application was denied.89 The reason was simple. Roach refused to take an oath to Queen Elizabeth II because he objected to swearing allegiance to a monarchy. Interestingly, the Canadian Court held that Roach could pledge loyalty to the Queen and still advocate fundamental changes in the structure of Canada as long as they are performed according to the amendment procedure.90 Justice Linden dissented. In Linden’s view, Roach could not advocate the abolition of the structure to which he pledged allegiance; he cannot act to replace the monarchy, yet remain loyal to the Queen:91
If the oath of loyalty permits one to demonstrate that loyalty to the Crown by advocating its abolition, what is the point of that oath? Is that loyalty or is it disloyalty? Is the oath merely a meaningless formality? Is there any commitment to its content required? … If all the oath of allegiance achieves is to get someone to promise not to violate the criminal law and to avoid subversive and illegal political methods, something they are already obligated to do, is it of any value?
There are three possible ways to make oaths less vague. The first is to distinguish between oaths of obedience and oaths of allegiance. In some oaths, the key component is legal obedience; one swears to obey the law and observe his or her (legal) duties as a citizen. Yet in other oaths, the key component is allegiance; one swears to bear “fidelity to the nation” and “hold faith to my country,” obligations that are not generally written in the law. Although most oaths combine these two requirements—obedience and allegiance—it is helpful to clarify which specific obligation the oath-taker takes. This distinction, however, does not clarify the very duty of allegiance, which remains vague. For this, further clarifications exist.
The second distinction is between loyalty to the fundamental constitutional structure of a country and loyalty to certain constitutional norms and values. In Constitutional Theory, Carl Schmitt asserts that an oath to a constitution “does not mean an oath regarding every single constitutional norm, nor does [it mean] … submission to everything that comes out by way of [the amendment procedure].”92 Instead, it implies one obligation—to accept, or at least not to undermine, a society’s fundamental structure. In the case of the Canadian Constitution, Justice Linden held that the oath demands “an acceptance of the whole of our Constitution and national life.”93 If one accepts Schmitt’s minimalist view of oaths, and further accepts that Canada’s basic structure is based upon, among other things, its status as being a Constitutional monarchy, Roach’s citizenship petition ought to be denied because Roach seeks to repeal Canada’s fundamental constitutional structure, and not merely to challenge (or amend) a single constitutional norm.
The third distinction is between loyalty to forms and loyalty to contents. An oath can require loyalty to substance (“democratic beliefs,” “culture and customs,” etc.) and it can require loyalty to a legal form—the method for the use of legal power and for amending the legal procedure to create laws (it can, of course, require both). Although form and content are interrelated, they are not the same. Take Roach: If the Canadian Constitution does not allow amending its status as a constitutional monarchy by a particular form, say, a referendum, and the oath requires loyalty to the existing form of decision making, Roach can be excluded as long as he seeks to act differently. But if the oath requires loyalty toward a more substantial matter, Roach can show loyalty to the Queen, even if he objects to a constitutional monarchy, by accepting that a constitutional monarchy is the form of government in Canada. We take this to be the acceptance of a fact, an empirical thing, similar to accepting that there are ten provinces in Canada. This view allows him to promote a change in the constitutional amendment procedure in a way that it will include the form of referendum as a form to change Canada from a constitutional monarchy to a republic.
These three distinctions do not entirely solve the vagueness of oaths but they make the legal obligations taken clearer than their current ambiguous terms. At the end, it would depend on the oath itself to clarify the type and the scope of the duty of loyalty.