Editor: Richard Bronaugh Vincent Chiao Mariano Croce Timothy Endicott Burke A. Hendrix Liav Orgad Nahshon Perez Anthony R. Reeves Francisco J. Urbina Equality, Assurance and Criminalization A Practice Theory of Legal Pluralism: Hart’s (inadvertent) defence of the indistinctiveness of law Arbitrariness The Coxford Lecture Historical Injustice, Rawlsian Egalitarianism, and Political Contestation Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy Libertarianism, Rectification and Property Rights: A Re-evaluation The Binding Force of Nascent Norms of International Law Is it Really That Easy? A Critique of Proportionality and ‘Balancing as Reasoning’ Discourse and Negotiations across the Indigenous/non-Indigenous Divide Mathieu Gagnon Victoria Freeman Toby Rollo Doris Farget Gordon Christie Michael Coyle Vol. XXVII, No. 1 Contempt No More In Defence of Reconciliation Mandates of the State: Canadian Sovereignty, Democracy, and Indigenous Claims Words that Fly Back and Forth Between Two Mutually Oblivious Worlds: What is the Legal Meaning of an “Indigenous Way of Life”? ‘Obligations’, Decolonization and Indigenous Rights to Governance Negotiating Indigenous Peoples’ Exit From Colonialism: The Case for an Integrative Approach Western Law | The University of Western Ontario January 2014 The Canadian Journal of law and JurisprudenCe is published biannually. Articles may be sent by e-mail attachment, preferably in Word, to: CJLJeds@ uwo.ca or by ordinary mail to The Editor, Canadian Journal of Law and Jurisprudence, Faculty of Law, UWO, London ON, Canada N6A 3K7. 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Phone: (519) 661-2111, ext. 88406. Fax: (519) 661-3790. E-mail: cjlj@uwo.ca The Canadian Journal of Law & Jurisprudence 25-YEAR CUMULATIVE INDEX to Volumes 1 through 25 is now available at a cost of $18 plus postage as noted above (total price: Canada $27.75; USA $31.40; Rest of World $34.70). ISSN 0841-8209 © 2014 Canadian Journal of law and JurisprudenCe C . J . L . J . TABLE OF CONTENTS Vincent Chiao Mariano Croce Timothy Endicott Burke A. Hendrix Liav Orgad Nahshon Perez Anthony R. Reeves Francisco J. Urbina Equality, Assurance and Criminalization ....................... 5 A Practice Theory of Legal Pluralism: Hart’s (inadvertent) defence of the indistinctiveness of law .... 27 Arbitrariness The Coxford Lecture .................................. 49 Historical Injustice, Rawlsian Egalitarianism, and Political Contestation ............................................... 73 Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy .......................................................... 99 Libertarianism, Rectification and Property Rights: A Re-evaluation.............................................................. 123 The Binding Force of Nascent Norms of International Law .......................................................... 145 Is it Really That Easy? A Critique of Proportionality and ‘Balancing as Reasoning’ ........... 167 Discourse and Negotiations across the Indigenous/non-Indigenous Divide Mathieu Gagnon Victoria Freeman Toby Rollo Doris Farget Gordon Christie Michael Coyle Contempt No More ........................................................ 197 In Defence of Reconciliation ......................................... 213 Mandates of the State: Canadian Sovereignty, Democracy, and Indigenous Claims............................. 225 Words that Fly Back and Forth Between Two Mutually Oblivious Worlds: What is the Legal Meaning of an “Indigenous Way of Life”?.................. 239 ‘Obligations’, Decolonization and Indigenous Rights to Governance .................................................... 259 Negotiating Indigenous Peoples’ Exit From Colonialism: The Case for an Integrative Approach ........................ 283 Western Law The University of Western Ontario London, Ontario Canada Vol. XXVII, No. 1 alis volat propriis January 2014 99 Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy 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. 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. Canadian Journal of Law and Jurisprudence Vol. XXVII, No. 1 (January 2014) 100 Orgad 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 1. See generally Anna Stilz, Liberal Loyalty: Freedom, Obligation, and the State (Princeton: Princeton University Press, 2009). Liberalism, Allegiance, and Obedience 101 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. 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. 102 Orgad 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 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. Nationality Law, 6 LSI 1952, s 5(c). Approval of the Amendment to s 5(c) to the Nationality Law of 1952 (No. 2313), 2010. Naturalization Act, 1 Stat 1790, c 3, s 1. Naturalization Act, 1 Stat 1795, c 20, s 1. Immigration and Nationality Act, 8 USC 1952 § 1427(f)(2). For the current oath, see 8 CFR 2010 § 337.1(a). 8 USC 2011 § 1448; 8 CFR 2010 § 337 [emphasis added]. 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. Liechtenstein v Guatemala (2005), ICJ Rep 4. Ibid at 23-24. 989 UNTS 1961, art 8(3)(b). Liberalism, Allegiance, and Obedience 103 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 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. 104 Orgad 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 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]. Liberalism, Allegiance, and Obedience 105 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, 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. 106 Orgad 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 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. Liberalism, Allegiance, and Obedience 107 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 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. 108 Orgad 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 falseswearing, 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 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. Liberalism, Allegiance, and Obedience 109 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 26 Hen VIII, c 2. 28 Hen VIII, c 7. 35 Hen VIII, c 1. See, e.g., 5 Eliz I, c 1, 7 Jac I, c 6, and 30 Car II Stat 2, c 1. 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. 56. 57. 58. 59. 60. 110 Orgad 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,” 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. Liberalism, Allegiance, and Obedience 111 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 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. 112 Orgad 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 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. Liberalism, Allegiance, and Obedience 113 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 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. 114 Orgad 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 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. Liberalism, Allegiance, and Obedience 115 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. 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]. 116 Orgad 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. B. Freedom of Conscience and the Loyalty Oath Even 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. 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/article.php?id=2551&start=1. 96. Roach I, supra note 90 at para 17; Roach II, supra note 90. Liberalism, Allegiance, and Obedience 117 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 97. 98. 99. 100. 101. 102. (1940), 310 US 586 at 595-96. Ibid at 600. Ibid at 597. West Virginia State Board of Education v Barnette (1943), 319 US 624 at 633. Ibid at 641. 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. 118 Orgad 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 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. Liberalism, Allegiance, and Obedience 119 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 Ibid. Ibid. Ibid at 6. 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. 109. 110. 111. 112. 120 Orgad 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 Oath Even 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.118 114. 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”). Liberalism, Allegiance, and Obedience 121 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 (1946), 328 US 654 at 662-68. Ibid at 671. Ibid at 675-77. 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. 119. 120. 121. 122. 122 Orgad 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. 125. Tyler, supra note 42 at 321. 126. Webster, supra note 64 at 151-53. 127. Ibid.