Loyalty Oaths and Un-Americanism

Last week, the State of California avoided a possible constitutional confrontation over its requirement that all public employees sign an oath affirming that they will “support and defend” the United States and California Constitutions “against all enemies, foreign and domestic.”

A mathematics teacher named Marianne Kearney-Brown, who is a Quaker and a pacifist, declined to sign the loyalty oath because it might later be construed as committing her to take up arms to defend the nation, which would violate her religious beliefs. The State finessed the situation by agreeing that the oath would not be interpreted in that manner.

But the real question is why California requires public employees to sign an anachronistic and relatively meaningless loyalty oath at all. Certainly, a truly disloyal employee poses risks to the government. She might (if she were doing something other than teaching remedial math) disclose secret information to an enemy; destroy important government files; make decisions intended to harm the public interest; and recruit other employees to engage in subversive activities. But just how does a loyalty oath guard against such dangers? After all, anyone who is truly disloyal will simply take the oath falsely. No dangerous subversive will be deterred by the requirement of an oath.

The origins of the California loyalty oath, which all state, city, county, public school, community college, and public university employees are required to sign, can be found in the era of McCarthyism.  Added to the state constitution in 1952, the oath was designed, like so many other legal measures of that sorrowful era, not to protect the nation against real subversion, but to frighten, intimidate, and punish individual citizens for exercising their constitutional right to question and criticize the government.

In the 1930s, during the Depression, many Americans questioned both the capitalist system and the political leadership of the nation. On urban breadlines and devastated farms, Americans asked hard questions about the need for economic and political reform. Among the many organizations to which they turned was the Communist Party, which was then a legal political party that regularly ran candidates for public office.

After World War II, with the beginning of the Cold War, most Americans who still had ties to the Communist Party or to organizations with connections to it quickly severed them. But, by then, it was too late. The most infamous question of the next two decades – “Are you now or have you ever been . . . .? – had entered the American lexicon.

Political leaders like Senators Richard Nixon and Joseph McCarthy quickly seized on the opportunity to leverage fear to their political advantage. As Americans worried about the prospect of nuclear war with the Soviet Union and accusations of Soviet espionage spread throughout the nation, right-wing ideologues launched a campaign charging that thousands of Communists had secretly infiltrated the government, the military, the unions, the schools, and the media. 

The U.S. Chamber of Commerce demanded concerted action to drive subversives out of these and other positions of influence.  Francis Cardinal Spellman warned that Communists are “digging deep inroads into our nation” and are “trying to grind into dust the blessed freedoms for which our sons have fought, sacrificed, and died.” In 1947, Congressman J. Parnell Thomas, the new Republican Chairman of the House Un-American Activities Committee, pledged to “ferret out” all those who sought to destroy the American “way of life.”

President Harry Truman charged that such “scaremongers” had “created such a wave of fear and uncertainty that . . . people are growing frightened – and frightened people don’t protest.”

But Joseph McCarthy persisted. “I say one Communist in a defense plant is one Communist too many,” he said in 1952. “One Communist on the faculty of one university is one Communist too many.” The Republican Party platform charged the government with shielding “traitors.”

Within a few years, a plague of loyalty oaths had spread across the nation. By 1956, forty-two states, including California, and more than two thousand county or city governments had enacted loyalty oaths for public employees.  As Truman had warned, a cancer of fear had swept the nation.

The very concept of “loyalty” is painfully elusive. It is defined entirely by a state of mind. Does it mean “my country, right or wrong”? Can a citizen opposed government policies – including a war – and still be “loyal”? Can a citizen be a pacifist and still be “loyal”?

Loyalty oaths reverse the essential relationship between the citizen and the state in a democratic society. As the Framers of our Constitution understood, the citizens of a self-governing society must be free to think and talk openly and critically about issues of governance. In a regime of loyalty oaths, it is the government that defines which thoughts and which ideas are permitted.

Dissenting views, nonconforming views, are deemed “disloyal.” The very existence of such oaths reflects an utter lack of confidence in the American people. Nothing so dangerously corrupts the integrity of a democracy as a lack of faith in its own citizens.

Loyalty oaths serve no legitimate function. The government can and should investigate and punish unlawful conduct. But it should not attempt to intimidate American citizens who express “disloyal” beliefs. It is time for California to recognize that its requirement that public employees swear an oath of fealty to their government is a relic of a shameful past and, quite simply, un-American.

Comments

[Orin Kerr]

Isn't there a pretty big difference between a requirement of a "loyalty oath" for a U.S. Citizen generally and an oath to defend the Constitution for a government employee? A government employee agrees to be an agent of the state; citizens do not.

[none]

1. Loyalty oaths are stupid. But so is getting all upset about them. They must have some import and impact in order to prompt the above response. As Stone implied, though, they don't appear to create any new obligations or duties. Why, then, such a heated objection to forcing people to utter some platitudes? Or, if the oath is not a silly platitude, then why is it all that unreasonable for the State of California to ask its employees to protect and defend its constitution? Maybe it's not all that different than a private-sector employee agreeing to act within not only the bounds of his employment agreement but also within the bounds of the employer's organizational documents. (I think I could humble myself to swear to protect and defend, say, Microsoft's corporate charter -- if they paid me.)

2. I assume Stone objects to the requirement that California legislators and executives be sworn to uphold and enforce the California and US Constitutions (as I assume they are required to do). If, instead, he thinks that that requirement is fine (or maybe even desirable), why must a legislator swear to uphold and defend the constitutions, but other public employees not? In some ways requiring the oath of legislators but not of highway workers is patronizing to the latter. "We would never ask you laborers to do something so profound."

3. Lastly, though I don't know about the genesis of loyalty oaths in general (but I suspect they originated in the US prior to the 1950s), I do know that the first administration to scaremonger about communism was a Democratic one. The raids ordered by Woodrow Wilson's attorney general, Alexander "The Fighting Quaker" Palmer (seriously), were far more excessive than anything McCarthy ever did.

[GP]

As a former government employee who took a loyalty oath to the state of NY, the city of NY, and the United States government, I see no problem with this.

private employers are allowed to conduct background checks, mandate workplace dress codes/hair styles, and impose other burdens on their workers. if workers do not accept these burdens, then they can decline employment and look for work elsewhere.

I am a civil libertarian, but I think the mainstream of civil libertarians in the legal academy and the political world need to get off their high horses. Loyalty oaths impinge on the lives of vanishingly few people. Why not use your influence to draw attention to issues that affect every man, woman, and child in the U.S., like data mining and the impact of technology on privacy.

Professor Stone, get out of the 1950s and into the 21st century.

[TJ]

There is an important logical tension in this debate. Critics of loyalty oaths often insist that they are completely moronic because they are completely meaningless and thus cannot exclude anyone who is disloyal. But of course if loyalty oaths really were meaningless to everybody, then imposing them also causes absolutely no harm.

What loyalty oaths do exclude are people who object to them. These are people who fall into basically two categories: (1) someone who is disloyal and uncommonly serious about abiding by their oaths; and (2) someone who has philosophical or other objections to the oath and is uncommonly serious about oaths.

On a rational basis test, we can imagine that category (1) is not zero, and therefore loyalty oaths are at least miniminally rational. On a more general cost-benefit test, the question is whether category (1) or category (2) dominates, and the respective harm or contribution that each category possesses. Simply saying that loyalty oaths are entirely meaningless refutes itself as an objection to them.

[borbely]

I'm with Professor Stone on this.

Here's an article ( http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/02/29/BAQPVAUVO.DTL ) explaining why the math teacher was fired.

Apparently she added the word "nonviolently" (gasp) to her oath.

Seems counter-productive to me to fire government employees who 1) care about oaths enough not to sign just anything; and 2) believe they have duties greater than "defending" the state or federal constitutions, right or wrong.

(What does defending the Constitution mean? Are people who swear to defend the Constitution bound to oppose amendments to it? If the Supreme Court says the Constitution says "no right to abortion," can a government employee still advocate for a right to abortion?)

- Marc

[itsmewin]

The idea solution would be for California State University East Bay to follow the law as it stands.

Universities have Legal departments, and HR departments. Isn't it a bit odd that they do not know what the EEOC says about this?
The University should modify the oath as long as it still serves its purpose to meet sincere religious objections.

Pretty Simple really.

The EEOC has several letters on this issue including sited cases.

Their conclusion:
II. Conclusion

In short, EEOC urges the Attorney General to reject the argument that § 1011 may not be modified under any circumstances to address an individual's religious objections. The EEOC believes that the USPS's request for specific instruction about what modifications are or are not allowable is inconsistent with the principle that determinations about reasonable accommodation and undue hardship are necessarily fact specific. If an employee needs an accommodation and the modification(s) offered by the USPS does not eliminate the religious conflict, the employee can be required to propose another revision which the USPS can then evaluate for undue hardship. The USPS need not consult either the EEOC or the Department of Justice to make that determination.

EEOC does not believe that the USPS must eliminate the oath requirement entirely. Like any agency, USPS presumably has a compelling interest in assuring the loyalty of its employees. See Biklen v. Board of Education, 333 F. Supp. 902, 909 (N.D.N.Y. 1971), aff'd 406 U.S. 951 (1972) ("The state has a demonstrable and compelling interest that [plaintiff] at least affirm her support of the Constitution[] of the United States"). Eliminating the oath requirement would, thus, undoubtedly constitute an undue hardship