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Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy

  • Liav Orgad
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The Article examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental problems related to their content and form: the rule of law, freedom of conscience, and equality.The Article reveals liberal concerns associated with the added value of the duty of “loyalty to the law” (allegiance), as distinct from the duty to “obey the law” (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.

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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 Stilz, Anna, 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 Cinar, Dilek, 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, c3, 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. Goldsmith, Lord, 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. Fletcher, George P, Loyalty: An Essay on the Morality of Relationships (New York: Oxford University Press, 1993) at 40 ; Levinson, Sanford, “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. Blackstone, William, Commentaries on the Law of England 1765 (Chicago: University of Chicago Press, 1979) at 357, 369-70.

23. Salmond, John W, “Citizenship and Allegiance” (1902) 18 LQR 49 at 50.

24. Calvin’s Case, supra note 21 at 382 [emphasis added].

25. Cited in Ewin, R E, “Loyalty in Virtues” (1992) 42:169 Phil Q 403 at 405.

26. Martin, Thomas S, “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 Kettner, James H, 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. Hanson, Donald W, 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. Locke, John, Two Treatises of Government, Laslett, Peter, ed, (Cambridge: Cambridge University Press, 1988) at 368 [emphasis in original].

33. Grodzins, Morton, The Loyal and the Disloyal: Social Boundaries of Patriotism and Treason (Chicago: University of Chicago, 1956) at ii.

34. Plescia, Joseph, 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. Commager, Henry S, Freedom, Loyalty, Dissent (New York: Oxford University Press, 1954) at 141-42.

37. Locke, John, A Letter Concerning Toleration (Minneapolis: Filiquarian Publishing, 2007) at 22.

38. Wolff, Robert P, “An Analysis of the Concept of Political Loyalty” in Wolff, Robert P, ed, Political Man and Social Man: Readings in Political Philosophy (New York: Random House, 1966) 218 at 222-23 [hereinafter: Readings in Political Philosophy]; Schaar, John, “The Psychology of Loyalty” in Readings in Political Philosophy 149 at 164; Connor, James, The Sociology of Loyalty (New York: Springer, 2007) at 934.

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. Tyler, Edward B, “Ordeals and Oaths” (1876) 9 Popular Sci 307 at 318.

43. Weinfeld, Moshe, “The Loyalty Oath in the Ancient Near East” (1976) 8 Ugarit Forsch 387 at 398-99.

44. Silving, Helen, “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 Witherspoon, John, “Of Oaths and Vows” in Colins, Varnum L, ed, Lectures on Moral Philosophy (Princeton: Princeton University Press, 1912) 130.

46. Webster, Daniel, “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 Tyler, James E, Oaths: Their Origin, Nature, and History (London: John W Parker, West Strand, 1834).

48. Locke, supra note 32 at 348.

49. Greenawalt, Kent, “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 Levinson, Sanford, Constitutional Faith (New Jersey: Princeton University Press, 1988) at 107-11. See also Sirota, Leonid, “Ask Not,” Double Aspect (July 2013), available at: http://doubleaspectblog.word Press.com/2013/07/14/ask-not//2013/07/14/ask-not/.

52. Holdsworth, William S, A History of English Law (London: Methuen & co., 1944) at 73.

53. Pollock, Frederick, 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. North, Marcy L, “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. Hyman, Harold M, To Try Men’s Souls: Loyalty Tests in American History (Berkeley: University of California Press, 1959) at 123, 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. Webster, Noah, “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. Gales, Joseph, ed, Annals of Congress 1790, vol 1 (Washington: Gales and Seaton, 1834) at 110910.

67. Ibid.

68. Ibid at 1061.

69. Ibid at 1109-18, 1147.

70. Sunstein, Cass R, “Unity and Plurality: The Case of Compulsory Oaths” (1990) 2 Yale JL & Human 101 at 102-03.

71. Ibid at 111.

72. Montesquieu, Charles D, The Spirit of the Laws, Cohler, Anne M, Stone, Harold S & Miller, Basia C, 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; Bentham, Jeremy, Swear Not at All (London: Richard and Arthur Taylor, Shoe-Lane, 1917) at 116.

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., Butz, David A, “National Symbols as Agents of Psychological and Social Change” (2009) 30:5 Pol Psychol 779 ; Hassin, Ran 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., Kurzon, Dennis, “Telling the Truth: The Oath as a Test of Witness Competency” (1989) 11:4 Intl J Semiotics L 49.

77. Neuman, Gerland L, “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., Wallerstein, Immanuel, “Ethnicity and National Integration in West Africa” (1960) 1:3 Cahiers D’études Africaines 129.

79. Schuck, Peter H, “Plural Citizenships” in Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship (Colorado: Westview Press, 1998) 217 at 243-44.

80. Fuller, Lon L, The Morality of Law (New Haven: Yale University Press, 1969) at 3338.

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 Levinson, Sanford, “Pledging Faith in the Civil Religion; Or, Would You Sign the Constitution?” (1987) 29 William & Mary LR 113.

89. Kopun, Francine, “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. Schmitt, Carl, Constitutional Theory, translated by Seitzer, Jeffrey, 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. Steyn, Mark, “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/article.php?id=2551&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 ConferenceThe 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. Margalit, Avishai, “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 Bulloch, Penelope A & Raz, Joseph (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 Weil, Patrick, 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.

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