Part 2 of 2
B. Freedom of Conscience and the Loyalty OathEven when the language of the oath is clear, and perhaps precisely because of that, loyalty oaths often deny freedom of conscience.94 The story of Thomas More, who was executed by Henry VIII because of his refusal to take an oath of supremacy to the Protestant Church, is a well-known historical precedent. The story of Charles Roach, whose citizenship application was denied because of his refusal to take an oath to Queen Elizabeth II, is a recent example.
Born in Trinidad, a previous British colony enslaved by the Crown, Roach asserted that swearing allegiance to the Queen is tantamount to asking a Holocaust survivor to take an oath to a descendant of Hitler.95 The Canadian Court, however, did not find an oath to the Queen as infringing upon freedom of conscience. It held that the oath is religiously-neutral. The Queen is the Head of the Church of England, a Christian Protestant Church, but the Court said that the head of the State could be anyone: “a Muslim, or an Atheist … [or] someone picked at random from a 6/49 kind of lottery.”96 The Court did not explain, however, how this statement fits the simple fact that the Queen must be Christian.
Thomas More and Charles Roach stand for two cases in which loyalty oaths involved an issue of freedom of conscience precisely because the oath was taken seriously. Plenty of other examples exist as well. The U.S. decisions in the flag-salute cases come to mind: Minersville School District v. Gobitis and West Virginia Board of Education v. Barnette. In Gobitis, two children were expelled from a public school because of their refusal to salute the flag and recite the Pledge of Allegiance. Their dedication to the Jehova’s Witnesses faith precluded them from pledging allegiance to the flag, believing that only God is the supreme authority. Justice Frankfurter found the flag and the pledge to be symbols of national unity.97 One may think that he only advocated loyalty as conformity—reciting the pledge and saluting the flag. Nevertheless, Justice Frankfurter emphasized that what is really required for national unity is “unconscious feelings” rooted in one’s mind and spirit.98 For Justice Frankfurter, the pledge is essential because it evokes the children’s “appreciation of the nation’s hopes and dreams … [and evokes the] unifying sentiment without which there can ultimately be no liberties.”99
Following the Gobitis case, West Virginia’s Board of Education adopted a resolution ordering that salutation to the flag would become a regular part of the curriculum. This time, however, Justice Jackson held that the pledge of allegiance is wrong exactly because the “pledge requires affirmation of a belief and an attitude of mind.”100 He agreed that national unity is a legitimate end and that states can foster patriotism, but he rejected the idea that the pledge is an effective means to achieve this aim stating that “those who begin [with] coercive elimination of dissent soon find themselves exterminating dissenters.
Compulsory unification of opinion achieves only the unanimity of the graveyard.”101 Loyalty means the freedom to dissent, not just from minor issues but also from fundamental matters that touch the heart of the constitutional order. In a classic statement, the Court ruled: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”102 Loyalty to America cannot be derived from coercive adherence to non-American ideas such as “compulsory unification of opinion.”
The dispute between Justice Jackson and Justice Frankfurter is the core of the debate on the oath of allegiance. There is a difference between these cases and citizenship cases, but the question is essentially the same: Can an oath of loyalty legitimately interfere with a person’s state of mind? The answer to this, I argue, is largely “no.”
Generally speaking, loyalty oaths—not as such, but their specific form and content—raise five problems of liberalism. The first is related to the Kantian distinction between legality and morality. When “loyalty to the law” means a legal duty to have belief and faith in the law, rather than just obey the law, liberalism moves from a legal to a moral realm. The second is related to the content of the oath, which often requires not only loyalty to liberal values, but also to ideologies and religions, such as the Queen or a Jewish State. The third is related to the coercive element of oaths. The promotion of loyalty is not encouraged indirectly, by creating conditions in which it shall be developed, but is directly imposed by state power. The fourth is related to the absolute nature of oaths, which sometimes deal not only with the “public sphere,” such as political ties, but also with the “private sphere,” such as personal life of immigrants.103 The fifth is the perpetual element of oaths, which frequently ask loyalty “from this day forward.” When these problems are combined, the means (of loyalty) becomes the end (oath taking), and demands of loyalty may violate the very values that they seek to protect.
The illiberal aspect of oaths raises an issue of conscience. Loyalty is invoked to preserve liberal values. In Liberal Loyalty, Anna Stilz makes such a claim. Her argument is three-fold. The first premise is that the existence of just/legitimate states is morally relevant; it is a prerequisite for the existence of freedom.
Only just/legitimate states can define and enforce conditions in which freedom is realized.104 The second premise is that some level of loyalty is essential for the existence of just/legitimate states.105 The third premise is that loyalty must have a particular meaning within a particular state.106 Her conclusion, then, is that some level of a particular state-based loyalty is justified as a means of securing freedom. Loyalty is instrumental. It stands only to the extent that it is essential to guarantee freedom.
Stilz advocates a liberal concept of loyalty. But even in her liberal loyalty, it is not enough to obey the law; one has to have faith in the law. Liberalism, to take the term of the British Prime Minister David Cameron, should be “muscular.” Unlike classical liberalism, which suggests that “as long as you obey the law, we will just leave you alone,” the concept of muscular liberalism demands one “to believe” in liberal values.107 Here rests the most problematic aspect of oaths.
In religious studies, God has two authorities—it tells one what to believe in and it tells one what to do. The first authority should not be coerced. It is analogous to a “good doctor who gives authoritative advice but no commands.”108 In most cases, if one has faith in the authority, its advice would be followed voluntary. But some grey areas exist. There are cases in which a command of what to do is a command to believe. A prevailing Jewish view of the First Commandment in the biblical Ten Commandments sees it as a command to “believe in God.” However, as Avishai Margalit observes, this is a closed circuit. “We accept the commandment to believe in God if we already believe in God and, moreover, already accept His authority to command us.”109 If one believes, one needs no command, and vice versa—if one does not believe, a command to believe, in itself, would end up with no belief. “Beliefs seem to behave like involuntary muscles” and cannot be commanded.110 Instead of a command to believe, we can order a person to adopt a way of life that would lead to a belief. In psychology, for example, if a person smiles enough—i.e., adopts the act of smiling—studies show that, in the end, the person will feel joy. A similar rationale applies to love—one cannot love on demand. Instead, X can command Z to date a woman and hope that, after a few dates, he would feel something toward her; this is an indirect way to encourage love. As Avishai Margalit states, “when we lack belief, we can manipulate ourselves into adopting a suitable way of life with the hope that eventually it will bring about, though indirectly, actual faith in what we want to believe. Adopting a way of life is grist for the mill of the will.”111
The distinction between a command of what to do and a command of what to believe in is important in the context of allegiance. From a liberal view, it is usually not legitimate to explore whether a person believes in the law or believes that the law is morally good. It is not belief (or the will to believe) that is important, but the will to adopt a way of life that would lead to believe. In other words, the trick is to check whether a will to adopt a new way of life exists. If, for example, a person says “I am willing to be loyal,” it would not be enough. It is like saying “I really want to love you.” The desire to be loyal does not in itself creates loyalty, but it is rather the will to adopt a proper way of life that, at the end, may lead to the attitude of loyalty. The law should create conditions and circumstances that encourage loyalty. At most, the law can explore whether a person is willing to fit in.
Should liberal democracies inquire into the reason for one’s willingness to be loyal to an object? The liberal response, I believe, is “no.” In The Concept of Law, H.L.A. Hart develops the idea of “internal point of view.” Hart’s denies the notion that people who accept legal rules should accept their moral legitimacy; people comply because they “accept” the validity of a legal rule, even if not its moral truth.112 Acceptance does not require a specific reason; people can accept a norm due to many considerations, among them self-interest.113 Thus, one may be loyal to the Queen because of moral grounds (one accepts her moral validity), epistemic grounds (one accepts the legitimacy of the framers of the norm and trust their wisdom), democratic grounds (one accepts that the norm reflects the will of the people), or self-interest grounds (one accepts the norm due to a desire for citizenship). One can show loyalty to the Queen, even if he or she disagrees with, or even objects to, a constitutional monarchy, by accepting that a constitutional monarchy is the form of government in Canada. In this view, the reason for one’s willingness to accept the object of loyalty ought not to be tested; as noted before, it is analogous to the acceptance of a fact, similar to accepting that there are ten provinces in Canada. This view may soften the cost in terms of one’s conscience since loyalty would merely mean a “declaration of acceptance” of the object of loyalty.
C. Equality and the Loyalty OathEven if the oath is not vague, and does not infringe upon freedom of conscience, it may be discriminatory. This is because the oath only applies to naturalized citizens. The historical reason for this practice is rooted in common law. In England, the duty of loyalty applied to all subjects in the King’s dominions. There were three categories of loyalty: natural (natural-born subjects), local (alien subjects), and acquired (denization or naturalisation).114 Natural-born subjects owed perpetual allegiance. Alien subjects owed temporary allegiance only during residence in the King’s dominions.115 Acquired allegiance emerged from the oath and was perpetual. However, the fact that only naturalized citizens had to take an oath did not mean that natural-born citizens were released from the duty of loyalty. Both groups had to be equally loyal.116
Natural-born citizens are not required to take the oath due to the premise that their sense of loyalty has been developed by being raised and educated in the country.117 The claim, thus, is that natural-born citizens and naturalized citizens each present a different case; wrongful discrimination exists only when the law does not treat like cases alike. Although there are grounds to distinguish between natural-born and naturalized citizens,
we have no evidence to support the proposition that natural-born citizens are more loyal as a group than naturalized citizens.118
Moreover, the fact that only naturalized citizens must take the oath means that natural born citizens can hold whatever beliefs they desire—they can be pacifists, anarchists, or communists—while naturalized citizens cannot always hold similar views. In Knauer v. United States, the U.S. Supreme Court discussed the case of a native-born German, Knauer, who in 1937 became an American citizen. In 1943, the U.S. government instituted proceedings to denaturalize Knauer on the ground that he did not entirely abjure his allegiance to Germany. Justice Douglas found solid and convincing evidence that Knauer was Nazi before his naturalization and that he continued to be a faithful follower of Hitler even after becoming a U.S. citizen.119 He then affirmed denaturalization on the grounds that the oath “relates to a state of mind and is a promise of future conduct.”120 Justice Rutledge dissented. He refused to take away Knauer’s citizenship because no native-born American could be stripped of his citizenship in a similar case. If Knauer committed a crime, the government should prosecute him, not strip him of his citizenship.121 In practice, still, a natural born citizen is prosecuted, while a naturalized citizen can be denaturalized; a natural born citizen is subject to one burden of proof and trial procedure in criminal law, while a naturalized citizen can be subject to a different procedure and burden of proof in immigration law.122 This is likely because the sanction imposed on naturalized citizens is based on a breach of the contractual promise, not the wrongdoing of the act.
The higher standard of loyalty required from naturalized citizens is visible in other fields as well. Thus, petitions for naturalization were denied because the applicants refused to promise in advance that they would fulfill civil duties that are not mandatory for natural-born citizens. For example, petitions of Jehovah’s Witnesses, who refused to take the portion of the U.S. oath regarding voting due to their religious belief, were denied. Even though voting is not mandatory for U.S. citizens, the Court held that “we must accept our natural-born citizens as we find them,” but “we can scrupulously select those aliens upon whom to confer” citizenship; “more is demanded of an alien than a native-born citizen.”123 The Court did not explain the rationale for its conclusion. On the contrary: it held that “ironically … many naturalized citizens become better citizens than those naturally born.”124
Conclusion: Time to Say Goodbye to the Loyalty Oath?More than a hundred years ago, English anthropologist Edward Burnett Tyler wrote in Popular Science that oaths of allegiance belong to the low stage of civilization. Tyler predicted that, sooner or later, the oath will follow the concept of ordeals and leave the stage of history.125 Oaths are a relic of sanctity and do not reflect intellectual reason. Science, he anticipated, will make the oath disappear. About a century before that, Noah Webster predicted that the time will soon come when all “oaths of allegiance, abjuration, and partial exclusions from civil offices, will be proscribed from this land of freedom.”126 Webster preferred a country that generates loyalty through its laws and policies rather than by a coerced statement. For Webster, only “a good Constitution, and good laws, make good subjects.”127 Yet, more than four hundred years after Henry VIII required Englishmen take an oath of allegiance to the Protestant Church, loyalty oaths still play a key role in modern immigration law in liberal states. In fact, a broader examination reveals that we are a “land of oaths.” Loyalty oaths exist everywhere: oaths of office, military oaths, oaths at universities, judicial oaths, and oaths of witnesses. Liberal democracies have “an oath for all seasons.”
What does not exist, however, is a strong justification for the duty to take a loyalty oath. It is not clear enough what loyalty is, why it is justified politically, and why it is legitimate to be burdened with a duty of loyalty as distinct from the duty to obey the law. It is neither clear what moral goals loyalty oaths serve nor whether any empirical evidence supports the idea that oaths rationally serve their putative purpose. In light of that, it may be the right time to say goodbye to the loyalty oath as a legal institution._______________
Notes:I am grateful to George Fletcher, Malachi Hacohen, Jeffrey Jowell, Christian Joppke, Avishai Margalit, Dora Kostakopoulou, Michele Manspeizer, Barak Medina, Noah Pickus, Amnon Rubinstein, Theodore Ruthizer, Peter Schuck, Adam Shinar, Anna Stilz, and Alexander Yakobson for thoughtful discussions and excellent comments on previous drafts. Special thanks are due to Richard Bronaugh for very helpful comments and suggestions as well as to Odette Simone Ansell for excellent editing work. Earlier versions of the Article were presented at the Kenan Institute for Ethics at Duke University, University of Miami School of Law, the Inaugural YCC Conference of the American Society of Comparative Law at George Washington University, Texas A&M University at Qatar, Bar-Ilan University, the Hebrew University, the Academic Center of Law & Business, and the College of Management Academic Studies; I thank participants and commentators for their comments. Thanks are also due to the Tikvah Center for Law & Jewish Civilization at NYU, Rothschild Foundation, and Fulbright Foundation for their scholarship, which made the research possible.
1. See generally Anna Stilz, Liberal Loyalty: Freedom, Obligation, and the State (Princeton: Princeton University Press, 2009).
2. The Article refers to “loyalty oaths” as an umbrella category for oaths taken in the naturalization process. Unless otherwise mentioned, it focuses on formal oaths.
3. Cited in Dilek Cinar, Country Report: Austria, Research for the EUDO Citizenship Observatory (Italy: European University Institute, 2010) at 17 [emphasis added].
4. Irish Nationality and Citizenship Act, 1956, c 3, s 15(1)(f) [emphasis added].
5. French Civil Code, art 21-24.
6. Australian Citizenship Act, 2007, ss 15 and 27 [emphasis added].
7. Promissory Oaths Act, 1868, s 2.
8. British Nationality Act, 1981, c 61, Schedule 5 [emphasis added].
9. Lord Goldsmith, Citizenship: Our Common Bond (London: Ministry of Justice, 2008) at 84, 97-98.
10. The Citizenship Act, RSC 1985, c C-29, s 24, Schedule 1.
11. Nationality Law, 6 LSI 1952, s 5(c).
12. Approval of the Amendment to s 5(c) to the Nationality Law of 1952 (No. 2313), 2010.
13. Naturalization Act, 1 Stat 1790, c 3, s 1.
14. Naturalization Act, 1 Stat 1795, c 20, s 1.
15. Immigration and Nationality Act, 8 USC 1952 § 1427(f)(2). For the current oath, see 8 CFR 2010 § 337.1(a).
16. 8 USC 2011 § 1448; 8 CFR 2010 § 337 [emphasis added].
17. George P Fletcher, Loyalty: An Essay on the Morality of Relationships (New York: Oxford University Press, 1993) at 40; Sanford Levinson, “Constituting Communities through Words that Bind: Reflections on Loyalty Oaths” (1986) 84 Mich LR 1440 at 1464.
18. Liechtenstein v Guatemala (2005), ICJ Rep 4.
19. Ibid at 23-24.
20. 989 UNTS 1961, art 8(3)(b).
21. Calvin’s Case (1608), 77 Eng Rep 377 (KB) [Calvin’s Case].
22. William Blackstone, Commentaries on the Law of England 1765 (Chicago: University of Chicago Press, 1979) at 357, 369-70.
23. John W Salmond, “Citizenship and Allegiance” (1902) 18 LQR 49 at 50.
24. Calvin’s Case, supra note 21 at 382 [emphasis added].
25. Cited in R E Ewin, “Loyalty in Virtues” (1992) 42:169 Phil Q 403 at 405.
26. Thomas S Martin, “Nemo Potest Exuere Partiam: Indelibility of Allegiance and the American Revolution” (1991) 35:2 Am J Leg Hist 205 at 210. American theorists attempted to utilize the traditional distinction between allegiance and obedience to justify their claims of independence from Parliament. They claimed that they can be loyal to the King even when they are not submitted to Parliament. James Wilson declared that “allegiance to the king and obedience to parliament are founded on very different principles. The former is founded on protection; the latter on representation.” Cited in James H Kettner, The Development of American Citizenship 1608-1870 (North Carolina: The University of North Carolina Press, 2005) at 165.
27. American jurisprudence focused on the Constitution as the subject of both allegiance and obedience. Every naturalized American should take an oath of allegiance to obey the Constitution of the United States, as well as “bear true faith and allegiance to the same” [emphasis added].
28. Donald W Hanson, From Kingdom to Commonwealth: The Development of Civic Consciousness in English Political Thought (Cambridge: Harvard University Press, 1970) at 62.
29. Martin, supra note 26 at 211.
30. Blackstone, supra note 22 at 369-70.
31. In re Stepney Election Petition, Isaacson v Durant, [1886] XVII QBD 54 at 55-56, 62.
32. John Locke, Two Treatises of Government, Peter Laslett, ed, (Cambridge: Cambridge University Press, 1988) at 368 [emphasis in original].
33. Morton Grodzins, The Loyal and the Disloyal: Social Boundaries of Patriotism and Treason (Chicago: University of Chicago, 1956) at ii.
34. Joseph Plescia, The Oath and Perjury in Ancient Greece (Tallahassee: Florida State University Press, 1970) at 22.
35. Kettner, supra note 26 at 165. The U.S. Declaration of Independence explains that the reasons for absolving from all allegiance to the King are rooted, inter alia, in the breach of the bond of allegiance by the King. This interpretation contradicted common law in which allegiance and protection were a reciprocal bond not in the sense that one is dependent on the other—allegiance remains even when protection is lost—but in the sense of parallel existence; both were rooted in natural law.
36. Henry S Commager, Freedom, Loyalty, Dissent (New York: Oxford University Press, 1954) at 141-42.
37. John Locke, A Letter Concerning Toleration (Minneapolis: Filiquarian Publishing, 2007) at 22.
38. Robert P Wolff, “An Analysis of the Concept of Political Loyalty” in Robert P Wolff, ed, Political Man and Social Man: Readings in Political Philosophy (New York: Random House, 1966) 218 at 222-23 [hereinafter: Readings in Political Philosophy]; John Schaar, “The Psychology of Loyalty” in Readings in Political Philosophy 149 at 164; James Connor, The Sociology of Loyalty (New York: Springer, 2007) at 9-34.
39. Hirabayashi v United States (1943), 320 US 81 at 107.
40. Immigration law may examine loyalty as a character trait by the requirement of “good moral character.” It may evaluate loyalty as an emotion due to the requirement of “attachment to the principles of the constitution,” or the requirement to “bear true faith and allegiance.” And it can assess the potential degree of conformity by exploring the immigrant’s willingness to “perform service in the Armed Forces,” or perform other work of national importance.
41. Stilz, supra note 1 at 27-64.
42. Edward B Tyler, “Ordeals and Oaths” (1876) 9 Popular Sci 307 at 318.
43. Moshe Weinfeld, “The Loyalty Oath in the Ancient Near East” (1976) 8 Ugarit Forsch 387 at 398-99.
44. Helen Silving, “The Oath: I” (1959) 68:7 Yale LJ 1329 at 1331; Weinfeld, supra note 43 at 398-99. For religious oaths’ history, see Omychund v Barker (1745), 1 Atk 21, 26 ER 15.
45. In the Bible, invoking God in an oath is a sacred obligation followed by a sanction: “Thou shalt fear the Lord thy God, and serve him, and shalt swear by his name” (Deuteronomy 6: 13). See also John Witherspoon, “Of Oaths and Vows” in Varnum L Colins, ed, Lectures on Moral Philosophy (Princeton: Princeton University Press, 1912) 130.
46. Daniel Webster, “The Christian Ministry and the Religious Instruction of the Young” in The Works of Daniel Webster, vol 6 (Boston: Little, Brown, 1885) 168 at 175.
47. Plescia, supra note 34 at 15-17, 74, from the text of the Ephebic Oath. For the political functions of oaths, see generally James E Tyler, Oaths: Their Origin, Nature, and History (London: John W Parker, West Strand, 1834).
48. Locke, supra note 32 at 348.
49. Kent Greenawalt, “Promise, Benefit, and Need: Ties that Bind Us to the Law” (1984) 18 Geo LR 727 at 737-38.
50. Blackstone, supra note 22 at 356-57.
51. For the wedding vows’ analogy, see Sanford Levinson, Constitutional Faith (New Jersey: Princeton University Press, 1988) at 107-11. See also Leonid Sirota, “Ask Not,” Double Aspect (July 2013), available at:
http://doubleaspectblog.wordpress.com/2013/07/14/ ask-not//2013/07/14/ask-not/.
52. William S Holdsworth, A History of English Law (London: Methuen & co., 1944) at 73.
53. Frederick Pollock, Essays in Jurisprudence and Ethics, vol 9 (London: Macmillan, 1882) at 179.
54. Blackstone, supra note 22 at 354-55.
55. 25 Hen VIII, c 22.
56. 26 Hen VIII, c 2.
57. 28 Hen VIII, c 7.
58. 35 Hen VIII, c 1.
59. See, e.g., 5 Eliz I, c 1, 7 Jac I, c 6, and 30 Car II Stat 2, c 1.
60. Marcy L North, “Anonymity’s Subject: James I and the Debate over the Oath of Allegiance” (2002) 33 New Literary Hist 215; Pollock, supra note 53 at 185-86. The function of the oath as a test can be seen in the title of the Act—The Test Act, 25 Car II, c 2.
61. 31 & 32 Vict, c 72. For earlier oaths, see 1 Will & Mar, c 1, 13 & 14 Wm III, c 6, 1 Geo I stat 2, c 13, 10 Geo IV, c 7, 21 & 22 Vict, c 48.
62. Harold M Hyman, To Try Men’s Souls: Loyalty Tests in American History (Berkeley: University of California Press, 1959) at 1-23, 113-15.
63. Ibid at 343 (describing oaths of allegiance as a political test during the Colonial Era, the Civil War. World War I, World War II, and the Cold War).
64. Noah Webster, “On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclusion from Office” in A Collection of Essays and Fugitive Writings on Moral, Historical, Political and Literary Subjects (New York: Scholars Facsimiles & Reprint, 1977) at 151-53.
65. Ibid.
66. Joseph Gales, ed, Annals of Congress 1790, vol 1 (Washington: Gales and Seaton, 1834) at 1109-10.
67. Ibid.
68. Ibid at 1061.
69. Ibid at 1109-18, 1147.
70. Cass R Sunstein, “Unity and Plurality: The Case of Compulsory Oaths” (1990) 2 Yale JL & Human 101 at 102-03.
71. Ibid at 111.
72. Charles D Montesquieu, The Spirit of the Laws, Anne M Cohler, Harold S Stone & Basia C Miller, eds, (Cambridge: Cambridge University Press, 1989) at 122.
73. Stilz, supra note 1 at 117-30.
74. Sunstein, supra note 70 at 102.
75. Grodzins, supra note 33 at 79-97; Jeremy Bentham, Swear Not at All (London: Richard and Arthur Taylor, Shoe-Lane, 1917) at 1-16.
76. There are studies on the effect of national symbols and ceremonies, yet none of them focus on loyalty oaths, or other oaths. See, e.g., David A Butz, “National Symbols as Agents of Psychological and Social Change” (2009) 30:5 Pol Psychol 779; Ran Hassin at el, “Précis of Implicit Nationalism” (2009) 1167 Ann NY Acad Sci 135. Even within a broader examination of oaths, no study indicates that people who take an oath in courtrooms are more likely to tell the truth than people who testify without taking an oath. See, e.g., Dennis Kurzon, “Telling the Truth: The Oath as a Test of Witness Competency” (1989) 11:4 Intl J Semiotics L 49.
77. Gerland L Neuman, “Justifying U.S. Naturalization Policies” (1994) 35 Va J Intl L 237 at 278.
78. Loyalty is taken seriously, particularly among religious immigrants. See, e.g., Immanuel Wallerstein, “Ethnicity and National Integration in West Africa” (1960) 1:3 Cahiers D’études Africaines 129.
79. Peter H Schuck, “Plural Citizenships” in Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship (Colorado: Westview Press, 1998) 217 at 243-44.
80. Lon L Fuller, The Morality of Law (New Haven: Yale University Press, 1969) at 33-38.
81. Cramp v Board of Public Instruction (1961), 368 US 278; Baggett v Bullitt (1964), 377 US 360 at 366-67.
82. United States v Macintosh (1931), 283 US 605 at 627-29.
83. The Supreme Court overruled the Macintosh case in United States v Girouard (1946), 328 US 61 [Girouard]. The court said that “[bearing of arms] is not the only way in which our institutions may be supported and defended … the worker at the lathe, the seamen on cargo vessels, construction battalions, nurses, engineers, litter bearers, doctors, chaplains—these, too, made essential contributions.” Grodzins at 64-65. Consequently, Congress amended the oath requiring newcomers to pledge to “bear arms on behalf of the United States when required by the law.”
84. Grodzins, supra note 33 at 75.
85. For abusing the oath’s vagueness see, e.g., United States v Schwimmer (1929), 279 US 644.
86. 8 CFR 2010 § 316.11 [emphasis added].
87. Ibid.
88. US Constitution, art V. For this dilemma, see Sanford Levinson, “Pledging Faith in the Civil Religion; Or, Would You Sign the Constitution?” (1987) 29 William & Mary LR 113.
89. Francine Kopun, “He Says Nay to the Queen,” The Toronto Star (11 May 2007), online: The Toronto Star
http://www.thestar.com/news/article/212829—he-says-nay-to-the-queen.
90. Roach v Canada (Minister of State for Multiculturalism and Culture) (FCA), [1994] 2 FC 406 (CA) [hereinafter: Roach II]. See also Roach v Canada (Minister of State for Multiculturalism and Culture), [1992] 2 FC 173 (TD) [hereinafter: Roach I].
91. Roach II, supra note 90 at para 56, Linden JA.
92. Carl Schmitt, Constitutional Theory, translated by Jeffrey Seitzer, ed, (Durham: Duke University Press, 2008) at 81.
93. Roach II, supra note 90 at para 20, Linden JA [emphasis added].
94. The more abstract the oath is, the less it violates freedom of conscience, because abstract terms allow discretion to individual interpretations. But the more abstract it is, the less legal meaning it has, since it is unclear what one’s duties are.
95. Mark Steyn, “Windsor Hassle; What Kind of Country Will We End up with if New Canadians are Allowed to Explicitly Reject the Constitutional Order?” Western Standard (4 June 2007) 54, online: Western Standard
http://www.westernstandard.ca/website/a ... 51&start=1.
96. Roach I, supra note 90 at para 17; Roach II, supra note 90.
97. (1940), 310 US 586 at 595-96.
98. Ibid at 600.
99. Ibid at 597.
100. West Virginia State Board of Education v Barnette (1943), 319 US 624 at 633.
101. Ibid at 641.
102. Ibid at 642. The Court did not rule that it is unconstitutional to require children to pledge allegiance but, rather, that a child has a protected right not to pledge if it offends one’s conscience.
103. In Baumgartner v United States (1944), 322 US 665, for example, the American government asked the Court to denaturalize a citizen based upon what he wrote in his diary—that Hitler’s speeches are wonderful.
104. Stilz, supra note 1 at 27-64.
105. Ibid at 64-84.
106. Ibid at 113-36.
107. “PM’s Speech at Munich Security Conference” The Official Site of the British Prime Minister Office (5 February 2011), online: The Official Site of the British Prime Minister Office https:// www.gov.uk/government/speeches/pms-speech-at-munich-security-conference.
108. Avishai Margalit, “Revisiting God’s Authority” (2013) 80:1 Soc Res 1 at 5.
109. Ibid.
110. Ibid.
111. Ibid at 6.
112. HLA Hart, The Concept of Law, 2nd ed by Penelope A Bulloch & Joseph Raz (Oxford: Oxford University Press, 1994) at 88-91.
113. Ibid at 198, 110-17, 255-56. Hart focuses on officials, who work within the legal system, and says little about private citizens. While officials must take an ‘internal point of view’ of the law—it is a prerequisite for a legal system to exist—citizens may take such a view. This is because officials work with the rules of recognition, and people in the citizen’s role do not. For that latter role, in order to achieve stability, citizens must obey or have seen a duty to obey. Ibid at 116.
114. Calvin’s Case, supra note 21 at 383. The option of naturalization was first created in 1350 by an act of Parliament. The Act, De Natus Ultra Mare, provided that an alien who becomes a subject of the Crown shall have similar rights to those of natural subjects. 25 Edw III Stat 1350.
115. Salmond, supra note 23; Martin, supra note 26.
116. Blackstone, supra note 22 at 356-57; Calvin’s Case, supra note 21 at 389.
117. Citizens, however, are required to take a loyalty oath on various occasions, including upon joining the military, taking on a governmental job, becoming a lawyer, and (in some countries) getting a passport.
118. Levinson, supra note 17 at 1454. See also Schneider v Rusk (1964), 377 US 163 at 168 (some distinctions between natural-born and naturalized citizens are invalid discrimination since they “proceed on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born”).
119. (1946), 328 US 654 at 662-68.
120. Ibid at 671.
121. Ibid at 675-77.
122. Patrick Weil shows that in the United States a breach of the loyalty oath is no longer a ground for denaturalization. See Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic (Philadelphia: University of Pennsylvania Press, 2012). While the practice has changed, formal law, however, remains the same.
123. In re Petition for Naturalization of Haesoon Kook Matz, [1969] 296 F Supp 927.
124. Ibid.
125. Tyler, supra note 42 at 321.
126. Webster, supra note 64 at 151-53.
127. Ibid.
