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THE LOYALTY DILEMMA:
TO PLEDGE OR NOT TO PLEDGE?
Almost every immigrant in the Western world must take a
loyalty
oath as a prerequisite for citizenship. Yet, the oath is a relic
of
another era, dating back to ancient Greece. This Article
explores the
wisdom and legality of loyalty oaths and presents three
concerns
about loyalty oaths: one is a concern about the duty of loyalty,
the
other is about loyalty oath, and the third about specific
contents and
forms of loyalty oaths. It is unclear what loyalty is, why it is
justified,
and why it is legitimate to require loyalty, as distinct from
the duty to
obey the law of the land. Nor is it clear what normative purpose
do
loyalty oaths serve, or what empirical evidence exists to
support the
idea that the oath rationally serves a legitimate purpose. In
light of
the human rights violations caused by loyalty oathsin terms
of
equality, the rule of law, liberty, and freedom of
consciencethe
Article concludes that loyalty oaths generate costs with little
benefits.
INTRODUCTION I. THE REVIVAL OF LOYALTY OATHS A. An Oath for All
Seasons
B. Canada: Monarchy Lover
C. The United States: Constitutional Idolatry
D. Israel: Jewish Obsession
II. THE DUTY OF LOYALTY A. Allegiance and Obedience
B. Essentials
C. Legitimacy
D. Justification
III. THE FUNCTION OF LOYALTY OATHS A. Contract
B. Political Test
C. Nation-Building
D. Empirical Puzzle
IV. THREE CONCERNS ABOUT LOYALTY OATHS A. The Rule of Law
B. Freedom of Conscience
C. Equal Protection
CONCLUSION: TIME TO SAY GOODBYE
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INTRODUCTION
The puzzle of political loyalty has dominated Western philosophy
for centuries. And yet, the concept of loyalty is a conundrum. The
law contains no commonly-accepted definition of what it means to be
loyal and generally does not offer clear standards to measure
loyalty or criteria to determine its essence. Constitutional
provisions and statutes do not attempt to clarify political
loyalty. Rather, legal documents seek to define disloyalty:
treason, espionage, and other related crimes. Loyalty remains a
vague legal concept.
This Article explores one case of loyaltyloyalty oaths for
immigrants. In many democratic states, every immigrant seeking to
become a citizen must take a loyalty oath. The content and form of
the oath varies between states, but the common feature is that it
is mandatorya prerequisite for citizenship. At first glance, oaths
seemingly raise no problem. After all, oaths only entail reciting a
few words in a public ceremony. Yet, a closer review reveals deep
concerns. The first is related to duty of loyalty, regardless of
the oath. The duty of loyalty, imposed on every citizen,
natural-born or naturalized, requires more than conformity to the
law; it seeks to influence one's character traits, emotional
attitudes, and internal beliefs. The second relate to the loyalty
oath as a manifestation of the duty of loyalty. Loyalty oaths limit
basic liberties of the oath-taker, infringe upon freedom of
conscience, and discriminate against noncitizens by demanding a
higher level of conformity compared to that required of
natural-born citizens. Nevertheless, in spite of these concerns,
loyalty oaths for immigrants remain an understudied topic.1 This is
surprising in light of their growing use and peculiar content and
form.
Loyalty oaths serve as a means in which the oath-taker
subscribes to the tenets of the community through creedal
affirmation. Before imposing this duty on newcomers, however, the
community should first define its own tenets. Immigration law,
thus, mirrors constitutional faith by reflecting not only on who
"we" think "we" are, and what kind of nation "we" want to be, but
also functions as a mirror to reflect the qualities that "we" value
in others. Yet, loyalty oaths are just one step in the path to
citizenship. In order to evaluate their wisdom and legitimacy, we
first need to present our own theory of citizenship by examining
the ultimate goals of the naturalization process.2
The Article proceeds as follows: Part I presents a global survey
of loyalty oaths in the democratic world. It reveals a recent trend
in comparative law: the growing appeal of loyalty oaths in
citizenship laws. It also demonstrates the complex legal issues
surrounding loyalty oaths. Part II critically examines the duty of
loyalty and discusses the differences between allegiance and
obedience. It shows that, historically, there was a fundamental
distinction between allegiance and obedience, yet this distinction
was blurred by the American Revolution. Nonetheless, this blurring
has not completely erased. Modern law still embraces of a duty of
loyalty in addition to the duty to obey the law. Part II then
investigates whether the added value of loyalty can be justified by
providing three views of loyaltycharacter traits, emotional state,
and conformityand examines their justifications. It shows that even
the strongest explanation, under which loyalty is required to
secure freedom, is flawed. It then explores whether the duty of
loyalty can be justified by
1 For analysis of the history of the U.S. Oath of Allegiance,
see generally NOAH PICKUS,
TRUE FAITH AND ALLEGIANCE: IMMIGRATION AND AMERICAN CIVIC
NATIONALISM (2005). 2 See Liav Orgad, Illiberal Liberalism:
Cultural Restrictions on Migration and Access to
Citizenship in Europe, 58(1) AMER. J. COMP. L. 53 (2010).
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other theoriescontent, friendship, and gratitudeand explains why
all fail a scrutiny test. The justifications for the added value of
loyalty are thus weak.
Even if the duty of loyalty is justified, there is a need to
further justify the oath as an external manifestation of it. Part
III, therefore, traces the functions of loyalty oaths. Whatever the
purposes of loyalty oaths weresome options are contract, political
test, and nation-building symbolit is unclear what legitimate
purposes they serve today. In addition, there is no evidence to
support the conclusion that loyalty oaths rationally serve a
legitimate purpose.
Regardless if loyalty oaths are justified, their specific
content and form must be justified. Hence, Part IV discusses three
concerns raised by the content and form of loyalty oaths: 1) they
infringe upon the rule of law; 2) they discriminate against
noncitizens; and 3) they violate freedom of conscience. Loyalty
oaths are not just words. Nor they are just a ceremony. They have
far-reaching legal implications. And they affect future behavior of
naturalized citizens by imposing new limitations, which are not
required from natural-born citizens and exposing them to sanctions,
among other things, the option of denaturalization. Loyalty oaths,
thus, yield cost. Part V concludes.3
I. THE REVIVAL OF LOYALTY OATHS
For various reasonsinter alia, subjective concerns that the
national identity is being eroded due to the corrosive effects of
globalization on the one hand and by immigrants and minorities
demanding political recognition on the other handloyalty oaths have
recently been returned to the forefront of legal discussion.
Through a qualitative analysis of loyalty oaths in different
stateswith special emphasis on Canada, the United States, and
Israelthis part highlights a recent trend in comparative
immigration law: the increasing use of loyalty demands in
contemporary citizenship discourses. The aim is not to compare
between states but to present the growing interest in loyalty
oaths, their complexity, and the legal issues involved in taking a
loyalty oath.
A. AN OATH FOR ALL SEASONS
What is a "loyalty oath" for immigrants? In formal terms, the
oathin which the immigrant acknowledges a duty of loyaltyis a
statement taken by an immigrant before officially becoming a
citizen. It is usually called an Oath of Allegiance or an Oath of
Citizenship, although other titles exist.4 In most cases, the oath
is taken during a public ceremony. Technically, stating "I swear"
or similar words (pledge, affirm, vow, promise, etc.) constitutes
taking of an oath. Alongside a formal classification, it is
possible to identify a substantive oath through its content. In
substantive terms, the oath does not require participation in a
public ceremony, and the immigrant is not even required to
pronounce the words "I swear" or similar words. However, she
acknowledges her duty of loyalty by other means, such as by signing
immigration documents that specify, explicitly or implicitly, a
duty of loyalty.
Analysis of loyalty oaths in different democratic states reveals
the following findings. First, loyalty oaths are a popular
instrument. Second,
3 The Article offers no alternatives for loyalty oaths because
it is its thesis that no alternative
is needed, and because a discussion on alternatives requires a
preliminary inquiry whether loyalty is a virtue or a sin, and
whether immigration law is the right platform for its
promotion.
4 The Article refers to "loyalty oaths" as an umbrella category
for oaths taken in the immigration context. Unless otherwise
mentioned, it focuses on formal loyalty oaths.
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loyalty oaths are generally the last step in the naturalization
processbefore receiving citizenship. Democratic states do not
demand a formal oath as a prerequisite for entry, though some
states require signing an "integration pact," which can be seen as
a substantive oath, as a prerequisite for entry.5 Third, except for
rare exemptions based upon mental disability, religious belief, and
age, loyalty oaths apply to all types of immigrants, including
family members and refugees. Fourth, the object of the oath is
diverseloyalty is required to the Queen, Constitution, democratic
principles, human rights, interests of the Republic, territorial
integrity, and the national culture.
Finally, the content of loyalty is diverse. While most states
require loyalty, very few actually define loyalty. In addition,
some states impose broader obligations. In Austria, for instance,
the immigrant has three obligations: "be a loyal citizen of the
Republic," "conscientiously abide[s] by the laws," and "avoid[s]
everything that might harm the interests and the reputation of the
Republic."6 In Ireland, the immigrant must declare "fidelity to the
Irish Nation" and "loyalty to the State."7 In Latvia, the immigrant
should pledge to "defend the independence of the State of Latvia,
live and work honestly in order to augment the prosperity of the
State and the People of Latvia."8 In Lithuania, the immigrant
should pledge loyalty to the Constitution, as well as to "protect
the territorial integrity of the State . . . respect the state
language of Lithuania, its culture and customs, and to strengthen
the democratic Lithuanian State."9 In Hungary, the immigrant should
be loyal to the Republic, "consider Hungary my country . . . honor
and observe the Constitution and laws."10 In Georgia, the immigrant
should "recognize Georgian as a state language of Georgia and
undertake to respect Georgian culture and national traditions."11
In other countries, such as the United States, the oath requires
not only being loyal to the host-country but also renouncing
loyalty to the fatherland country or other foreign entities.12 An
interesting oath is the Pledge of Commitment in Australia, which
states:13
From this time forward under God 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.
In Britain, there are currently 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."14
5 Orgad, supra note 2, at 66, 80-82. 6 Cited in Dilek Cinar,
Country Report: Austria, EUDO CITIZENSHIP 17 (2010) (emphasis
added), available at
http://eudo-citizenship.eu/docs/CountryReports/Austria.pdf. 7 See
Section 15(1(e) of the Irish Nationality and Citizenship Acts 1956
(emphasis added),
available at
http://www.inis.gov.ie/en/INIS/consolidationINCA.pdf/Files/consolidationINCA.pdf.
8 See art. 18 of the Citizenship Law (emphasis added), available at
http://unpan1.un.org/intradoc/groups/public/documents/untc/unpan018407.pdf.
9 See art. 15 of the Law on Citizenship, available at
http://www.litlex.lt/Litlex/eng/Frames/Laws/Documents/55.HTM. 10
See Section 7(4) of the Act LV of 1993 on Hungarian Citizenship,
available at
http://www.mfa.gov.hu/kulkepviselet/US/en/en_Konzuliinfo/en_ki_magyarallampolgarsag.htm.
11 See 29 of the Organic Law of Georgia on Citizenship of Georgia,
available at
http://www.unhcr.org/refworld/pdfid/44ab816f4.pdf. 12 8 U.S.C.
1448. 13 See art. 15 of the Australian Citizenship Act of 2007
(emphasis added), available at
http://www.citizenship.gov.au/ceremonies/pledge/. 14 See art. 2
of the Promissory Oaths Act 1868, available at
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From 2004 on, every immigrant must also take a Pledge of
Loyalty, which provides: "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."15 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 of the Pledge of Allegiance in public schools.
The committee found that there has been a diminution in national
identity.16 To foster social unity, it turned back to the old means
of the oath. The committee believed the Queen to be the bond to
rebind the British together.17 Obviously, this social bond is seen
in a completely different manner by Scots and Catholic Irish, who
consider an oath to the Queen as a source of division rather than
unity.18
In France, a new revision to the Civil Code requires candidates
for citizenship to sign a Charter of Rights and Responsibilities.19
As of January 1, 2012, the new regulations further require that
every naturalized French "adherence to the principles, values, and
symbols of French democracy," and be loyal to "French values."20
These rules were adopted after President Nicolas Sarkozy denounced
multiculturalism as a failure and expressed hope that an oath of
allegiance to French values will strengthen French identity: "If
you come to France, you accept to melt into a single community,
which is the national community . . . we have been too busy with
the identity of those who arrived and not enough with the identity
of the country that accepted them."21
While many countries place great importance on loyalty oaths,
and subject their immigrants to many different versions, there is
no underlying theory directing them. Loyalty oaths are like a
"potluck dinner," everything seems to be present: their diverse
objectives, content, and form present a wide range of legal issues.
Focusing on three statesCanada, the United States, and Israel, I
illustrate the current immigration debates surrounding the
oath.
B. CANADA: MONARCHY LOVER
Thousands of new Canadian citizens every year should swear
allegiance to Queen Elizabeth II as a prerequisite for citizenship.
The current oath states:
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
http://www.legislation.gov.uk/ukpga/Vict/31-32/72/body. 15 See
schedule 5 of the British Nationality Act 1981 (amended 2004)
(emphasis added),
available at
http://www.legislation.gov.uk/ukpga/1981/61/schedule/5. 16 See
Citizenship: Our Common Bond 84 (2008). 17 Id. at 97-98. 18 See
Alan Travis, How to Feel More British: Oath of Allegiance and a
Special Day, THE
GUARDIAN, Mar. 12 2008. Minister Nick Herbert calls this
proposal "synthetic patriotism." See Pupils to Take Allegiance
Oath, BBC NEWS, Mar. 11, 2008.
19 See French Civil Code, book I, title I, Ch. III, Sec. I 3
Art. 21-24, available at
http://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=LEGITEXT000006070721&idArticle=LEGIARTI000024197100&dateTexte=20111207.
In 2011, this revision was sustained by the Le Conseil
Constitutionnel, available at
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2011/2011-631-dc/decision-n-2011-631-dc-du-09-juin-2011.97377.html
20 The Charter (la charte des droits et devoirs du citoyen
franais), drafted by France's High Council for Integration, is
available at
http://www.lefigaro.fr/assets/pdf/droitsetdevoirs.pdf.
21 See Nicolas Sarkozy Joins David Cameron and Angela Merkel
View that Multiculturalism has Failed, MALN ONLINE, Feb. 11,
2011.
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Successors, and that I will faithfully observe the laws of
Canada and fulfill my duties as a Canadian citizen.22 The oath of
citizenship demands more than to be an obedient citizen. It
requires to be "faithful and bear true allegiance" to the Queen,
the Head of the Church of England, and extends to her heirs and
successors. Obedience alone does not fulfill the requirement;
rather, the law must be observed "faithfully."
Not every immigrant is willing to taking such an oath. Charles
Roach is an example. Roach was legally admitted into Canada in 1955
to study at the University of Saskatchewan. Soon after graduation,
he began his legal studies at the University of Toronto and was
admitted to the Bar in 1963. Roach is a human rights activist.23 He
pays taxes and fulfills all other responsibilities as a citizen.
Yet Roach is not a citizen. He did everything necessary to become a
citizen but his application has been denied for 57 years. The
reason is simple. Roach refuses to take the Oath of Citizenship to
Queen Elizabeth II because he objects to swearing allegiance to a
monarchy. Born in Trinidad, a previous British colony enslaved by
the Crown, he asserts that swearing allegiance to the Queen is
tantamount to self-deception and betrayal of his principles. He
notes that it is similar to asking a Holocaust survivor to take an
oath to a descendant of Hitler.24 But it is not just Queen
Elizabeth II. It's not personal; it is against his conscience and
religion to swear allegiance to any living person.
In 1992, Roach went to court. He claimed that the oath to the
Queen violates the Canadian Charter of Rights and Freedoms. It
infringes upon freedom of conscience because it forces him to
choose between citizenship and conscience. And it discriminates
against noncitizens, who must swear allegiance, while citizens are
exempt. Roach's petition was rejected.25 His appeal was
dismissed.26 But Roach did not give up. He appealed to the Supreme
Court but his application was denied.27 It took him a few more
years to find the way back to court, this time, as a class action.
In 2007, Roach's action was firstly heard on the merits28 but
finally rejected in the appeal.29 No court was willing to
invalidate the oath of citizenship, or any of its portions.
The grounds for rejecting Roach's claims are interesting. First,
the Court ruled that the monarchy is part of Canada's
constitutional identity. The subject of the oath is required to
"express agreement with the fundamental structure of our country as
it is," and "be bound in conscience to perform an act or to hold an
ideal faithfully and truly."30 Apparently, the Court did not find a
compulsory conscience-based oath to the Queen as infringing
upon
22 See the Citizenship Act, R.S.C. 1985, c. C-29, s. 24,
schedule 1. 23 See, e.g., Francine Kopun, He Says Nay to the Queen,
THE STAR, May 11, 2007. 24 See, e.g., 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 54, June 4, 2007.
25 See Roach v. Canada (Minister of State for Multiculturalism
and Culture) [1992] 2 F.C. 173 (T.D.) (henceforth: Roach I).
26 See Roach v. Canada (Minister of State for Multiculturalism
and Culture) (FCA) [1994] 2 F.C. 406 (C.A.) (henceforth: Roach
II).
27 See Roach v. Minister of State for Multiculturalism and
Culture [1994] 113 D.L.R. 67. 28 See Roach v. Canada (Secretary of
State) 2007 CanLII 17373 (ON SC) (noting that "there
is a plausible argument that this requirement violates the
Charter of Rights and Freedoms."). 29 See Roach v. Canada (Attorney
General), 2009 WL 459764 (Ont. S.C.J.). The Ontario
Superior Court of Justice dismissed the motion to certify the
action as a class action as it failed to meet statutory
requirements. The court did not rule on the merits of the
constitutional claims.
30 Roach II, supra note 26, at para 4, 36 (MacGuigan J.A. and
Linden J.A.). Interestingly, Roach pledged allegiance to the Queen
when he joined the Canadian Armed Forces and, again, when admitted
to the Bar. See Roach v. Canada (Attorney General), 2009 CanLII
7178 (Sup. Ct. J.) at para 17.
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freedom of conscience. Next, the Court held that the oath is not
to Queen Elizabeth II, as a person, but rather, to her legal
capacity as the Head of the State.31 This capacity, the Court
ruled, is religiously-neutral. The Queen is the Head of the Church
of England, a Christian Protestant Church, yet, the Court said, 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."32 As a
result, there is no violation of freedom of religion. The Court did
not explain how this statement fits the simple fact that the Queen
must be Christian and can only marry a Christian. Furthermore, the
Court pointed out that the oath-taker can legally act to change
Canada's constitutional structure once he receives the status of
citizenship. Accordingly, there is no infringement upon of freedom
of speech.33 The Court did not explain how one can act to replace
the system of monarchy, yet remain loyal to the Queen.34 Finally,
the Court found that exemption of natural-born citizens is not
discriminatory because it is meaningless. Natural-born citizens are
indeed exempt from the oath, yet not from its obligations; they,
too, should be faithful and bear true allegiance.35
Roach lost in court. But the last word on this issue is yet to
come. During recent years, there have been many attempts to modify
the citizenship oath to accommodate those objecting to the
monarchy.36 The legal discussion on the future of the oath is just
part of a fierce debate on the future of Canada. The Federal Court
was aware that underscoring the pure legal debate on the oath there
was a hot potato. It observes it by noting that "what our country
may come to be . . . is for millions of Canadian citizens to work
out over time"; thus, Roach "cannot use his dream of a republican
Constitution as a legal basis for denying the legitimacy of the
present form of government."37 The oath is "not a matter to be
taken lightly."38 It is a "solemn intention to adhere to the
symbolic keystone of the Canadian Constitution . . . [and] an
acceptance of the whole of our Constitution and national life."39
Acceptance "relies on the individual's inner sense . . . [the]
conscience of the taker of the oath."40 But while the majority
opinion found the oath to be valid, the dissenting opinion held
that the demand of "loyalty to a particular political theory"
contrasts "the very heart of democracy" and should be struck
down.41
C. THE UNITED STATES: CONSTITUTIONAL IDOLATRY
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
31 Roach II, supra note 26, at para 4 (MacGuigan J.A.). 32 Roach
I, supra note 25, at para 17 (Jayal J.). See also Roach II, supra
note 26 ("the oath
requires no statement of allegiance to Anglicanism nor to the
Queen in relation to her role in the Church of England.").
33 Roach II, supra note 26, at para 7 (MacGuigan J.A.). 34 Id.
at 56 (Linden J.A.) ("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? . . . 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?").
35 Id. at para 13-14 (MacGuigan J.A.). 36 See Bryce Edwards, Let
Your Yea be Yea: The Citizenship Oath, the Charter, and the
Conscientious Objector, 60 U. TORONTO L. REV. 39, 60-64 (2002).
For more recent bills, see
http://www.canadian-republic.ca/media_releases.html.
37 Roach II, supra note 26 (MacGuigan J.A.). 38 Id. at para 42
(Linden J.A.). 39 Id. at para 20 (Linden, J.A.) (emphasis added).
40 Id. 41 Id. (MacGuigan J.A. & Linden J.A.).
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the Constitution of the United States."42 The Naturalization Act
of 1795 added the pledge to "defend the Constitution and laws of
the United States against all enemies . . . [and] bear true faith
and allegiance to the same," as well as the requirement to be
attached to the principles of the Constitution.43
The debates in the First Congress on the bill establishing a
uniform rule of naturalization reveal that members of Congress were
suspicious of loyalty oaths. In referring to the idea of eternal
loyalty, Congressman Elias Boudinot stated: "The word forever
implied that these people were not at liberty to return home, and
reassume their allegiance to their own country." "What," he
wondered, "if the United States were to become a tyrannical
Government? Were people not to have the liberty of leaving it?"44
Some members of the First Congress found the idea of an oath
disturbing. Congressman Boudinot pointed out the absurdity "to
enact oaths which the very makers of the law could not agree about
the meaning of."45 He asserted 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."46 Congressman Hartley was noted to
have found oaths to be false since they are not effective to secure
loyalty.47 Similar views were shared by other members of
Congress.48 The First Congress distrusted oaths, yet the bill was
eventually passed with no special discussion on the reasons for the
oath. The oath has essentially remained the same ever since.49
In 1997, the U.S. Commission on Immigration Reform found the
oath to be archaicthe language uses words such as "potentate" and
"abjure"and offered revising it to be solemn and meaningful. The
Commission provided no theory to base the oath of allegiance, nor
did it specify its aims, yet suggested to revising the oath to
include the essence of Americanism. In the proposed oath, the
immigrant: a) renounces all "former political allegiances"; b)
gives "sole political fidelity and allegiance from this day
forward" to "the United States of America"; c) supports and
respects the U.S. Constitution and laws (in the current oath, the
requirement is to "support and defend" the Constitution); and d)
defend the Constitution against all enemies by military or civilian
services.50 While the U.S. Commission suggested changes to the
oath, it saw no problem with the concept of an oath or its proposed
content.51
In September 2003, the Homeland Security Department (HSD)
accepted the majority of the Commissions recommendations, with
slight differences
42 See Naturalization Act of 1790, ch.3, 1, 1 Stat. 103. 43 See
Naturalization Act of 1795, ch.20, 1, 1 Stat. 414. 44 See Annals of
Cong. of the United States, Jan. 1795, 1061. 45 Id. 46 Id. James
Madison, likewise, warned that "It [is] hard to make a man swear
that he
prefer[s] the Constitution of the United States, or to give any
general opinion, because he may, in his own private judgment, think
Monarchy or Aristocracy better and yet be honestly determined to
support this Government as he finds it. See 4 Annals of Cong. of
the United States, 1022-23, Dec. 26, 1794. See also Harrison Otis:
"A Frenchman is a Frenchman everywhere . . . [t]hough he may take
his naturalization oath in this country, it does not alter his
character." See 8 Annals of Cong. of the United States,
2064-65.
47 See Annals of Cong. of the United States, 1st Cong., Feb.
1790, 1147. 48 Id. at 1004, 1149. 49 See 316(f)(2) to the
Immigration and Naturalization Act [INA]. For the current oath,
see
8 C.F.R. 337.1(a) (2010). In current oath, the immigrant should:
(a) support for the Constitution; (b) renounce prior allegiance;
(c) defend of the Constitution against all enemies; (d) bear true
faith and allegiance; and (e) bear arms or perform noncombatant
service when required. See also Adjudicator's Field Manual, U.S.
Citizenship and Immigration Services, 2011, ch. 75.
50 See U.S. Comm'n on Immigration Reform, Becoming an American:
Immigration and Immigrant Policy 50-51 (1997) (emphasis added).
51 Supra note 40.
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the immigrant must "support, honor, and be loyal to the United
States, its Constitution, and its laws."52 The HSD did not explain
how an immigrant can (or should) "honor" the Constitution; how this
requirement is different than the requirement to "support" the
Constitution; or what is the distinction between a duty of loyalty
to the Constitution, the laws, and the United States.
The American debate regarding the oath is still going in
Congress53 and is obviously different than the one in Canada.
Nevertheless, there are at least three common features. First, in
both countries, some are calling to modify the language of the oath
to accommodate social changes that have been occurred since its
adoption. In Canada the oath dates back to 1870; in the United
States, it was first adopted in 1790. Second, in both countries the
oath itself is not being challenged. Third, in both countries, the
oath focuses on constitutional identity. In Canada the immigrant
pledge allegiance to a constitutional monarchy. In the United
States, the immigrant must support, bear true faith, and allegiance
to the Constitution, reflecting the American philosophy of
constitutional nationalism. American identity, asserts Sanford
Levinson, is based upon constitutional faith.54 One is expected to
adhere, support, and venerate the Constitution. The recent revival
of "constitutional idolatry," followed by calls for constitutional
pledges and ceremonies, is rooted in a long history.55 The oath
mirrors this dedication to the Constitution.
D. ISRAEL: JEWISH OBSESSION
In 2009, Avigdor Lieberman, Israel's Minister of Foreign Affairs
and the head of the right-wing party, Yisrael Beiteinu, submitted a
bill to impose a loyalty oath on citizens and noncitizens alike.
The present oath upon naturalization is minimalnon-Jewish
immigrants swear to be loyal to the State of Israel.56 However, the
bill proposed that every potential immigrant swear loyalty to
Israel as a Jewish and democratic State, a Zionist state, the flag,
and the anthem.57 Since Israel is a Jewish and democratic state,
Lieberman did not understand why asking a non-Jewish immigrant to
swear loyalty to a Jewish and democratic State raises problems.
Thus, Lieberman wonders, if the nature of the state as Jewish and
democratic is protected by the Basic Law, why is it wrong to
request pledging loyalty to these concepts?
Following much criticism, the bill, approved by the Israeli
Government, was modified by requiring only noncitizens to swear
loyalty to Israel as a Jewish and democratic state. Prime Minister
Netanyahu noted that being a Jewish and democratic State is the
raison d'etre of Israel and new immigrants must accept it.58
Netanyahu may be correct, but this is not what the bill is about.
Immigrants are not asked to accept the legitimacy of a Jewish
state, nor the right of the Jewish people to live in its own state.
Instead, immigrants are asked to swear loyalty to a Jewish state.
Swearing loyalty to a certain ideology or religion is not the same
as accepting it as the law of the land.
52 See John J. Miller, Oath on Ice, NATIONAL REVIEW, Sept. 15,
2003. 53 See, e.g., "To Prescribe the Oath of Renunciation and
Allegiance for Purposes of the
Immigration and Nationality Act," House Judiciary, Subcommittee
on Immigration, Border Security, and Claims, 108th Congress, Apr.
1, 2004.
54 See, generally, SANFORD LEVINSON, CONSTITUTIONAL FAITH
(1988). 55 Cited in Lexington, The Perils of Constitution-Worship,
THE ECONOMIST, 23 Sept., 2010. 56 See art. 5(c) to the Nationality
Law of 1952. 57 See the Population Registration Bill (Amendment:
Loyalty Declaration to the State, Flag,
and Anthem), 2009, 811/18 [Hebrew]. 58 See Meeting 74 of the 32
Government, 10 Oct., 2010, "Approval of the Amendment to
art. 5(c) to the Nationality Law of 1952" [Hebrew].
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10
Even those who recognize Israels legitimacy may have a problem
to swear loyalty to it. In Israel, even an oath to the Basic Laws
might pose difficulties. It is not only because the Basic Laws
define Israel as a Jewish and democratic state,59 but also because
they include other controversial issues, such as Basic Law:
Jerusalem, Capital of Israel that provides that the unified city,
including East Jerusalem, is an Israeli territory.60 Israel's Basic
Laws, like constitutions in other nation-states, is exclusionary.
It asks non-members of the majority group to pledge allegiance to
the majority's beliefs. And it includes clauses that prevent
candidates or parties to participate in the national election if
their objects negate the existence of Israel as a Jewish and
democratic State.61
The idea of being loyal to a Jewish and democratic state may be
difficult for at least two minority groups. Ultra-Orthodox Jewish
immigrants may have great difficulty swearing loyalty to democracy
and the rule of law, and non-Jewish immigrants, especially of
Palestinian descent, may have great difficulty swearing loyalty to
a Jewish state. However, since the bill only applies to non-Jewish
immigrants, ultra-Orthodox immigrants will not be affected. Indeed,
even in the current law, Jewish immigrants requesting Israeli
citizenship are exempted from taking the oath. This discrepancy
raises a troubling question. If `loyalty is attached to
citizenship, and noncitizens are presumed to be non-loyal, why
should Jewish immigrants be exempt? It may be that loyalty is based
on ethnicity, rather than on citizenship and, further, that the
purpose of the Israeli oath is to exclude non-Jewish immigrants. In
Israel, as in Canada, the oath debate reflects a fierce debate on
constitutional identity. Due to various reasonsamong others
subjective concerns that the Jewish state is jeopardizedthere is a
recent obsession with Israel's Jewish character, with the loyalty
oath providing a tool to strengthen Israel's identity.
The brief survey of loyalty oaths in Canada, the United States,
and Israel shows three tales of nations that require immigrantsor
intend to require themto swear loyalty to the fundamental structure
of the society: a monarchy, a constitution, or a Jewish state. Yet,
the fact that nations require loyalty to an object, and not just
legal obedience, implies that a difference exists between
allegiance and obedience. If such a difference exists, what does
allegiance mean? It is essential to discuss the legitimacy of
loyalty, regardless of the loyalty oath, before exploring the
legitimacy of oaths, or of a specific oath, because the oath
presupposes the existence of a duty of loyalty.
II. THE DUTY OF LOYALTY
Loyalty oaths are one manifestation of the duty of loyalty that
is expected from citizens. But what is loyalty? What is the added
value of allegiance to obedience? Is it legitimate for democracies
to demand loyalty? This part examines these issues. It analyzes the
distinction between allegiance and obedience, offers possible
meanings of loyalty, and explores its justifications.
A. ALLEGIANCE AND OBEDIENCE
In order to understand the split between allegiance and
obedience, we must go back to medieval England. In common law, one
had to be loyal to the
59 See art. 1a of the Basic Law: Human Dignity and Liberty; art.
2 of the Basic Law:
Freedom of Occupation. 60 See art. 1 of the Basic Law:
JerusalemCapital of Israel, 5740-1980, 34 LSI 209 (1980). 61 See
art. 7a of the Basic Law: The Knesset. XXX
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11
King and obey acts of Parliament. There were differences between
allegiance and obedience. One difference was that allegiance was a
natural duty "due from all men born within the king's dominions
immediately upon their birth."62 Subjects owed a permanent and
perpetual allegiance to the King.63 The tie of allegiance was
absolute and indelible. Conversely, the duty to obey the law was
not natural but legal and could be relinquished. This distinction
is not semantic. If allegiance is indelible, rebellion against the
King might be treason, even when the King violates his trust.
However, if the duty to obey the law is not indelible, the subjects
will obey the law as long as the ruler rules them according to law.
If the ruler becomes a tyrant, the subjects are not only permitted
but obligated to rebel.64 Another difference was related to the
added value of allegiance. Allegiance was "a true and faithful
obedience of the subject due to his Sovereign."65 Allegiance thus
was about faithfulness. It was a broader requirement than
obedience. One had to legally obey the law of Parliament yet show
faithful devotion to the law and order of the lord King, that is,
to be attached to the King, right and wrong, for better and for
worse.
English distinction between allegiance and obedience was more
theoretical than practical. In reality, allegiance to the King
meant obeying acts of Parliament, and opposing acts of Parliament
meant breaching the duty of allegiance to the King. Until the
American Revolution, English law had succeeded in avoiding
confrontation with the simple fact that the theories of indelible
allegiance and legal obedience were somehow overlapping. Yet, the
American colonies broke away from three fundamental premises of
loyalty.
First, the colonists demonstrated that one cannot be loyal to
the King while disavowing the authority of Parliament. Loyalists
and patriots alike knew that, in reality, "it would not be possible
to renounce allegiance to Parliament without breaking the bond of
loyalty to the King."66 The King and the Parliament were separate
entities yet breaching the duty to one of them, allegiance of
obedience respectfully, meant breaching the duty to the other. The
American Revolution blurred the distinction between these two
concepts. Indeed, the American interpretation of loyalty was
incorporated into the U.S. Oath of Allegiance. Every naturalized
American should take an oath to "support and defend the
Constitution and laws of the United States" and "bear true faith
and allegiance to the same."67 There is no split in the object of
loyalty and legal obedience. Yet, the old interpretation of loyalty
still exists until this day. In Canada, for instance, naturalized
citizens must pledge not only to obey the law but also to be loyal
to Queen Elizabeth II. This formula creates a potential conflict
between allegiance and obedience. If, to take an extreme example,
there would be a war between Canada and Great 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.68 It
is a peculiar case of distinct sovereign states that share loyalty
to the same entity.
Second, the American Revolution put an end to the doctrine of
allegiance to the King in his natural capacity and replaced it with
a theory of allegiance to the legal entity called the King. Being
loyal to the King does not mean
62 See WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
357, 369-70
(1765). 63 See John. W. Salmond, Citizenship and Allegiance, 18
L. Q. REV. 49, 50 (1902). 64 See Thomas S. Martin, Nemo Potest
Exuere Partiam: Indelibility of Allegiance and the
American Revolution, 35(2) AMER. J. LEG. HIST. 205, 208-09
(1991). 65 See Calvin's Case 7 Coke Report 1a, 77 ER 377, 382
(emphasis added). 66 Id. at 210. 67 8 C.F.R. part 337 (2010)
(emphasis added). 68 See art. 15 to the Constitution Act, 1867, 30
& 31 Victoria, c.3. XXX
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12
loyalty to a specific person, but loyalty to the
King-in-Parliament. Loyalty is not owed to a natural person but
rather to a "corporate person" representing the eternal interests
of the Crown.69 Indeed, the American rebels claimed allegiance to
eternal interests of the common law. This historical lesson
indicates that one should never be loyal to a specific person or
entity; rather, loyalty is owed to eternal interests represented by
a legal entity.70 The United States recognizes this principle in
its preamble by according sovereignty to "the People," a legal
entity that exists, regardless of a specific time and place.
Finally, the American Revolution grounded allegiance in contract
law theories, not on indelible natural law. Loyalty is a
contractual obligation. It is defined by the law and can be changed
or ended by the law.71 The idea that allegiance is conditioned was
recognized long before.72 The pledge of allegiance of 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."73 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"; the people of Sparta swore: "so long he [the
king] shall abide by his oath we will not suffer his kingship to be
shaken."74 The American rebels adopted this idea. In fact, the
breach of the mutual bond of loyalty is what the American
Revolution was all about.75
The concept of allegiance, then, has changed: from a natural
duty to a legal duty, toward a legal entity rather than a specific
living person, and based on a mutual rather than a one-sided
relationship. Nevertheless, it would not be completely accurate to
imply symmetry between allegiance and obedience. Allegiance is
different from obedience in at least two senses. It is broader,
because it requires commitment even when there is no legal duty to
follow a certain principle or entity. In this regard, loyalty
imposes broader obligations than that which is imposed by the law.
In addition, loyalty is narrower than obedience, because loyalty,
in some of its meanings, calls for identification; it seeks to
assure not only compliance with the law but also commitment to it.
"Faith only, and inward sincerity," John Locke has long found, "are
the things that procure acceptance."76 For instance, if one pays
taxes not because one believes that paying taxes is just, but only
because it is a legal obligation followed by a legal sanction, one
has no loyalty to the norm of paying taxes.
The American Revolution has blurred the differences between
allegiance and obedience, yet modern law still includes them. The
differences can be shown by the fact that citizens and noncitizens
alike must obey the law, yet
69 See DONALD W. HANSON, FROM KINGDOM TO COMMONWEALTH: THE
DEVELOPMENT
OF CIVIC CONSCIOUSNESS IN ENGLISH POLITICAL THOUGHT 62 (1970).
70 Martin, supra note 64, at 211. 71 See Queen's Bench Division
1886 XVII 54, 55-56, 62. 72 Reciprocity in the theory of loyalty
existed in common law, yet was not grounded on
contract law but on natural law. See Calvin's Case, supra nota
65, at 382 ("for as the subject oweth to the King his true and
faithful ligeance and obedience, so the Sovereign is to govern and
protect his subjects . . . ligeance is the mutual bond and
obligation between the King and his subjects, whereby subjects are
called his liege subjects, because they are bound to obey and serve
him; and he is called their liege lord, because he should maintain
and defend them.").
73 See MORTON GRODZINS, THE LOYAL AND THE DISLOYAL: SOCIAL
BOUNDARIES OF PATRIOTISM AND TREASON ii (1956).
74 See JOSEPH PLESCIA, THE OATH AND PERJURY IN ANCIENT GREECE 22
(1970). 75 The U.S. Declaration of Independence explains that the
reasons for absolving from all
allegiance to the Crown are rooted, inter alia, in the breach of
loyalty of King George III. 76 See JOHN LOCKE, A LETTER CONCERNING
TOLERATION 22 (2007).
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13
only citizens must also be loyal. Had allegiance and obedience
been the same, what would be left of the distinction? Modern law
indicates that the duty to be loyal demands more than just obeying
the law. It has an added value. What this value really means
depends on the meaning of loyalty. To this I turn now.
B. ESSENTIALS
What do we require by a duty of loyalty? At least three
explanations exist. Firstly, in psychology, loyalty may be a
character trait. A person is loyal in the same as he or she may be
brave, gentle, or jealous. Loyalty means holding a certain
disposition of characterwhat exactly is it is disputed in
psychologyand disloyalty is the absence of this trait, or holding a
contrary trait.77 Thus, not everyone can be loyal as not everyone
can be brave. One has the disposition to be loyal, or just the
capacity to develop such a disposition.
Secondly, in sociology, loyalty may be an emotional state. A
person is loyal when he or she feels some emotional devotions to
some principles.78 It was the German sociologist Ferdinand Tnnies
who introduced two types of human associations: Gemeinschaft, which
is based upon sentimental values and whose members share common
beliefs, and Gesellschaf, which has no sentimental values and whose
membership is based upon pure self-interest.79 Gemeinschaft loyalty
means sharing sentiment; disloyalty is either the absence of this
sentiment, or a holding a conflicting sentiment.80 To evaluate
loyalty means to test the intensity of the emotional tone of the
loyalist to the object; in its highest form, it means patriotism
and the love of one's country.
Thirdly, in social psychology, loyalty may be conformity. A
person is loyal when he or she unquestionably follows some patterns
of behavior, or avoids following them. A loyal person conforms to
rules without inquiring into their wisdom and morality; a disloyal
person is one who is unwilling to show conformity, or acts in the
opposite direction. The requirement of loyalty is "easily
satisfied. For it wants not intellectual conviction or spiritual
conquest but mere outward conformity."81 It is satisfied with the
flag salute regardless of one's feelings toward the flag. It is
merely a matter of behavior.
Whatever the meaning of loyalty ischaracter trait, emotional
state, and conformitypeople are loyal to an object: be it a person,
an institute, an ideal, or a cause. Loyalty implies a subjectobject
relationship. Robert Wolff argues that loyalty can be naturalarisen
out of human relationships (a son to his father, a clansman to his
clan, etc.)or contractualoriginated from an act of commitment (a
vassal to the lord, a citizen to the state, etc.).82
It is also important to bear in mind that loyalty is a relative
concept and often the level of loyalty of X to Z is defined in the
relationship of X toward W. X may be seen as less loyal to Z
because an expression of loyalty or disloyalty toward W, a
competitor or ally of Z. Thomas More's last words on
77 See Robert P. Wolff, An Analysis of the Concept of Political
Loyalty, in POLITICAL MAN
AND SOCIAL MAN: READINGS IN POLITICAL PHILOSOPHY 218, 219-20,
229-30 (Robert P. Wolff ed., 1966) (henceforth: READINGS IN
POLITICAL PHILOSOPHY).
78 Id. at 222-23. See also JAMES CONNOR, THE SOCIOLOGY OF
LOYALTY 9-34 (2007). 79 See, generally, FERDINAND TNNIES, COMMUNITY
AND CIVIL SOCIETY (Jose Harris ed.,
Margaret Hollis trans., 2001). 80 See John Schaar, The
Psychology of Loyalty, in READINGS IN POLITICAL PHILOSOPHY,
supra note 77, at 149, 164. 81 See HENRY S. COMMAGER, FREEDOM,
LOYALTY, DISSENT 141-42 (1954). 82 Id. at 225-28.
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14
the scaffold were "I die as the King's good servant but God's
first."83 His mere disloyalty to King Henry VIII was his greater
loyalty to God. Hence, the boundaries of loyalty are often set up
in the relationship between three actors.
Loyalty, then, is a complex concept having different meanings
and forms. So, what do we require by the duty of loyalty? In the
field of naturalization law, it is possible to find a mixture of
each of these characteristics of loyalty. U.S. immigration law, for
example, may examine loyalty as a character trait by the
requirement of "good moral character."84 It may evaluate loyalty as
an emotion by the requirement of "attachment to the principles of
the U.S. Constitution,"85 or by the requirement to take an oath of
allegiance to "bear true faith and allegiance" to the U.S.
Constitution.86 By the same oath, U.S. law can assess the level of
conformity, or potential degree of conformity, by the immigrant's
willingness to "perform noncombatant service in the Armed Forces of
the United States" and to "perform work of national
importance."87
C. LEGITIMACY
The duty of loyalty may have an added value to the duty to obey
the law: the requirement of character trait (good citizens),
emotional state (patriotic citizens), and conformity (devoted
citizens). This value is usually not imposed by law reports; no
country, for example, has an explicit legal duty to be patriotic or
of love of the country. Why, then, is it legitimate for democratic
states to require loyalty, as distinct from the duty to obey the
law?
One possible explanation for the legitimacy of loyalty relies on
individual freedom. A popular claim in the literature finds the
justification for loyalty in its connection with freedom. 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.88 The
second premise is that some level of loyalty is essential for the
existence of just/legitimate states.89 The third premise is that
loyalty must have a particular meaning within the boundary of a
particular state.90 The conclusion, then, is that some level of a
particular state-based loyalty is justified as a means of
guaranteeing freedom. The minimum level is controversial: some
insist on shared political values, others on common culture. But
whatever it is, there must be a minimum bond to which everyone is
loyal. The legitimacy of loyalty is instrumental; it is a means to
an end. Loyalty stands only to the extent that it is essential to
secure freedom.
The claim of the connection between freedom and loyalty is
persuasive, yet is not sensitive to the changing meaning of
loyalty. If, for example, loyalty is a character trait, liberal
states cannot legitimately require people to be loyal since it is
less legitimate to forge one's personality traits by a legal
83 See Lacey B. Smith, English Treason Trials and Confessions in
the Sixteenth Century,
15(4) J. HIST. OF IDEAS 471, 481 (1954). 84 See INA, 101(f)
& 316(d)& (e). 85 See INA, 316(a). For the attachment
requirement, see In re Shanin, 278 Fed. 739, 740-
41 (D.C. Mass, 1922) (Attachment refers to "the mental attitude
of the petitioner toward this country."); In re Siem, 284 Fed. 868
(D.C. 1922) ("Attached in reference to principles, by all standard
authorities, means having regard and affection for and sustaining
by moral force.").
86 See INA, 316(f)(2). 87 See 8 C.F.R. part 337 (2010). 88 See
ANNE STILZ, LIBERAL LOYALTY: FREEDOM, OBLIGATION, AND THE STATE
27-64
(2009). 89 Id. at 64-84. 90 Id. at 113-36.
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15
order.91 Direct imposition of loyalty is a sign of
dictatorshipas was the case in Nazi Germany, when all soldiers were
forced to swear allegiance to Hitler. In democratic states, duties
of loyalty are indirect. They are encouraged through loyalties to
sub-state groups, such as families and clubs, and are implemented
by using indirect means, such as education systems, national
holidays and symbols and, often, crises such as wars.92 Thus, if
loyalty is a character trait, liberal states cannot directly impose
it, let alone sanction not having it. To do it would undermine the
very freedom states seek to achieve. Similarly, if loyalty is an
emotional attitude, liberal states cannot legitimately order people
to be loyal as no liberal state can seriously command people to
love X or hate Y. Emotions are evolved, not ordered.93 On the other
hand, if loyalty is conformity, liberal states may demand some of
its manifestations, such as paying taxes and serving in the armed
forces. Conformity does not seek to interfere with one's belief,
nor does it seek acceptance or rejection of some dogmas and creeds.
Rather, it focuses on external acts, or on the avoidance of some
external acts. As long as some external acts are legitimate, there
exists no inherent moral problem in demanding that they be
observed.
The legitimacy of loyalty thus depends on various factors: the
meaning of loyalty, its form, and whether loyalty is an end, or
just a means to an end, and the value of this end. Some duties of
loyalty are legitimate; others do not. It is at least doubtful
whether the duty of loyalty can be justified in all of its
meanings. To justify the duty of loyalty, one must show a
justification and, further, that it justifies a specific meaning of
the duty of loyalty. To be clear: I do not claim that loyalty is
illegitimate, or that it is illegitimate to foster a sense of
loyalty. My claim focuses on the duty of loyalty given the
proposition that this duty implies some additional burden to legal
obedience.
D. JUSTIFICATION
When the duty of loyalty is legitimate, there is a reason to
comply with it. Yet it may be justified to impose a duty of loyalty
even when this duty (or some of its meanings) is considered
illegitimate based on other justifications. The question of
obedience even to some illegitimate duties is not unique to
loyalty. It always emerges in the broader discussion on legal
obedience. I briefly present three possible justifications, and
explain why all of them fail.
The first justification is consent. We have a duty to be loyal
when, and only when, we consent to be loyal, expressly or tacitly,
directly or through the authority of an elected government. Express
consent is demonstrated in cases of contractual loyalty, as in the
case of loyalty oaths. Tacit consent is implied by continued
residence in the host state, or holding its citizenship.94 Yet this
proposition fails. First, the idea of tacit consent by mere
continued residence is false.95 English doctrine asserted that
allegiance was indelible, nemo potest exuere partiamonce a subject,
always a subject. Thus, until roughly the end of the Nineteenth
Century, every English subject owed irrevocable allegiance to the
Crown. Although English law has been changed since, there are
states in which voluntary loss of citizenship is still difficult if
at all possiblein Israel, for instance, a person cannot give up
citizenship without the approval
91 Wolff, supra note 77, at 218, 232. 92 GRODZINS, supra note
73, at 69. The boundary of direct and indirect loyalty is blurred.
93 Wolff, supra note 77, at 218, 232, 237-38. 94 See JOHN LOCKE,
TWO TREATISES OF GOVERNMENT 348 (Peter Laslett ed., 1689, 1988). 95
See Leslie Green, Law and Obligations, in THE OXFORD HANDBOOK OF
JURISPRUDENCE
AND PHILOSOPHY OF LAW 514, 528 (Joles Coleman et al eds.,
2002).
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16
of the Minister of the Interior96and, as a result, there is no
legal way to opt out of loyalty. When the duty of loyalty is not
based upon free choice, its foundation is less justified. Third,
often, there is no practical way to opt out. People may be willing
to leave their country, and change their allegiance, yet emigration
requires more than social conditions and economic resources.
Fourth, the theory of consent may justify the principle of loyalty,
but it says nothing about its scope; the boundary of the consent
remains vague. And finally, there are issues in which consent may
not be sufficient. If loyalty implies emotions, X can agree to love
Z but a mere contract ensures no love.
The second justification is based upon friendship. We should be
loyal toward friends and other like-minded relationships.97 The
virtue of friendship received considerable attention in Aristotle's
writings. In its high form, friendship contributes to one's
personality and happiness.98 It rests, in its essence, on loyalty.
To create loyalty, people should share history and experience; they
must have "eaten salt" together.99 Loyalty cannot be created by
consent. Loyalty is not based on ethics (it is just) or
utilitarianism (it is cost-effective) but on personal
relationshipit is mine: my country, my son, my people.100 Thus,
although there may be utilitarian explanations why a parent should
not be more loyal to his son than to a stranger's son, choosing to
save one's son and not a more talented yet stranger's son when the
two children are drowning is likely to be justified on the simple
fact that it is my son. The children are equally in need, and the
stranger's son can make a greater contribution to society, and yet,
most people will choose to save their son because he is theirs.101
The focal point is personal relationship. However, the shortcoming
of the friendship theory appears in the fact that friendship theory
might justify loyalty, but cannot equally justify a duty to be
loyal.102
The third justification is related to gratitude. We have a duty
to be loyal in return for something. Duties of gratitude are not
the strict form of indebtedness, as in a legal duty to repay for a
good, but rather acts that we are morally expected to perform in
return to benefits received.103 Loyalty, explained William
Blackstone, is "a debt of gratitude; which cannot be forfeited,
canceled, or altered, by any change of time, place, or
circumstance."104 A person lives in a certain community in which he
receives protection and welfare and, in return, he must express
gratitude. The classic example appears in Plato's Crito. The dialog
refers to the discussion of Socrates and his wealthy friend Crito.
Socrates is found guilty of subversive teaching and must choose
whether to escape from prison, using Crito's financial support, or
to submit to the death sentence rendered against him. Socrates
decides to stay in Athens. The story illustrates a radical example
of obedience, but it also reveals a deep theory of loyalty as
gratitude. Socrates explains to Crito that if he were to flee, "the
laws and Constitution of Athens
96 See art. 10 of Israel's Nationality Law [1952]. 97 Green,
supra note 95, at 528. 98 See ARISTOTLE THE NICOMACHEAN ETHICS 207,
238-47 (J. L. Ackrill & J. O. Urmson
eds., David Ross trans., 1998). 99 Id. at 197. 100 See GEORGE P.
FLETCHER, LOYALTY: AN ESSAY ON THE MORALITY OF RELATIONSHIPS
3-24 (1993). 101 Id. at 61; Andrew Oldenquist, Loyalties, 79 J.
PHIL. 173, 186 (1982). 102 Locke, supra note 94, at 314. 103 See
SIMON KELLER, THE LIMITS OF LOYALTY 101-15 (2007). For the
distinction
between a debt of gratitude and a duty to repay back, see Robert
E. Ewin, Loyalty and Virtues, 42 PHI. Q. 407-08 (1992).
104 BLACKSTONE, supra note 62, at 357.
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17
would come and confront" him demanding explanations for his
disloyalty:105 Socrates could have left Athens, but his stay
indicated his satisfaction with its law. But the dialog is not only
about consent. Athenian laws required loyalty as an act of
gratitude in return for their aid for Socrates birth, education,
and personality.106 The theory of gratitude, however, fails,
because there are many ways to express gratitudesuch as paying
taxes and serving in the armed forcesand loyalty may only be one of
them. In addition, if loyalty depends on what the beneficiary
received, the theory of gratitude may lead to the conclusion that
persons who suffered historical wrongs should not be forced to be
loyal since they have nothing substantial for which to express
gratitude.
To sum up, historically, there was a real difference between the
duty of loyalty and the duty to obey the law. This difference had
been blurred by the American Revolution. Modern law, however,
sustains the old difference, thereby raises the question about the
essence of loyalty and its added value. As noted, loyalty may have
three additional burdens related to one's character trait,
emotional attitude, and level of conformity. In order to maintain
these burdens, democratic states should ground them on a legitimate
cause, or offer other theories that may justify a duty of loyalty.
This part briefly shows that common justifications of loyalty
largely fail to justify a duty of loyalty.107 For the sake of
convenience, I assume that some duties of loyalty are justified. I
ask now whether the duty to take a loyalty oath can be justified.
The next part investigates its possible benefits. The last part
examines its generated costs.
III. THE FUNCTION OF LOYALTY OATHS
Given that a duty of loyalty exists as distinct from a duty to
obey the law, that it is somehow justified, and that it applies to
every citizen, natural born or naturalizedthree disputed
propositionsone may ask why do we need an oath as a manifestation
of it? What is the added value of the oath? Why not having a
presumption that every citizen, natural-born or naturalized, is
presumed to be loyal without an oath? The fact that states require
an oath, and require it only from naturalized citizens, indicates
that the oath has (or should have) a specific purpose. This part
explores different purposes of the oath by tracing the history of
the oath: 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. Although these
functions can apply together, they are analyzed separately. On the
whole, this part shows that loyalty oaths have no solid purpose
and, even if they have one, there is no evidence to indicate that
the oath rationally serves it. This part questions what the point
of loyalty oaths for immigrants is. It demonstrates that the oath
has little benefit.
A. CONTRACT
Oaths can be viewed as an ancient form of a contract. The origin
of the oath is rooted in a pre-religious era in which people
believed they possessed a magic power. The oath was deemed to be an
effective tool that could have a magical effect by the power of
words alone: mere words could kill or heal
105 See PLATO, CRITO 13 (C. Emlyn Jones author, 2010). 106
Fletcher, supra note 100, at 55-57. 107 It does not mean that
states cannot outlaw or sanction disloyal acts. Yet, as long as
loyalty is an independence legal institution, its added burden
should be justified separately.
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people. Much before religion gained power, oaths were a
"self-curse . . . utilized as a means of guaranteeing that a
promise would be performed."108 The oath's power relied on faith in
its magic. When religion gained power, "the curse ceased to exist
as an independent being and gods became the tools whereby the oath
was caused to operate."109 The oath became a promise followed by a
divine punishment for its breach. The expression "so help me God"
is the invocation of God as a partner to the oath.110 A legal
sanction was not essential because perjury was seen as a crime
against God itself.111 Often, oaths included a "curse clause" to
indicate the expected harm for violating the pact, and a "blessing
clause" to mark the expected gain for its fulfillment.112
In the ancient world, loyalty oaths were popular.113 In Ancient
Athens, there were three types of oaths: in public life, judicial
life, and international arena.114 The oaths in public life divided
into oaths for citizens and oaths for officials. Oaths of the
citizensa "citizen" did not include women, slaves, and
childrenprovided a framework for the social contract. In order to
receive the civic status of a citizen, every child had to enroll
into a unit called the "phratry."115 The father had to present his
child and swear that it was his legitimate child.116 When the child
reached the age of eighteen, and before entering the military
service, the child had to take the "ephebic oath."117 Only then he
became an Athenian citizen.118 There was no legal penalty.
Breaching the oath was tantamount to breaking a contract with the
gods.119 The function of the oath had later been legalized in Rome.
The prevalent belief was that the gods punish all lieswhether based
on oaths, or not. Thus, the oath "added nothing to the fear of
retribution, and declined in importance."120 This was the
historical moment in which a divine oath was replaced by a legal
institution.
The function of the oath as a contract raises a fundamental
problem. The fact the oath-taker calls God to become a partner to
his vows does not make God a partner in the contract. Nor does it
mean that God will impose a sanction on the oath-taker upon
breaking the promise, or punish for perjury. God "does not need us
to draw His attention to our words, or to the secrets of our
hearts; He does not need our permission to punish, should we dare
to utter with our lips, what our conscience knows to be wrong."121
The function of the oath, thus, might be different: "To show that
we are not calling the attention of God to man, but the attention
of man to God,that we are not calling upon Him to punish the
wrong-doer, but on man to remember, that He will."122 This view
sees the oath as a contract between the oath-taker and the
citizenry.
108 See Helen Silving, The Oath: I, 68(7) YALE L.J. 1329, 1330
(1959). 109 Id. at 1331. For religious oaths' history, see Omichund
v. Barker , S.C. 1 Atk. 21 (1744). 110 See Edward B. Tyler, Ordeals
and Oaths, 9 POPULAR SCIENCE 307, 318 (1876). 111 Silving, supra
note 108, at 1334. 112 See Moshe Weinfeld, The Loyalty Oath in the
Ancient Near East, 8 UGARIT FORSCH
387, 398-99 (1976). 113 Id. at 383. 114 See, generally, PLESCIA,
supra note 74. 115 Id. at 15-16. 116 See id., at 16, for the text
of the oath. 117 See id., at 16-17. For the ephebic oath, see also
John W. Taylor, The Athenian Oath,
13(7) THE CLASSIC JOURNAL 495 (1916); Oscar W. Reinmuth, The
Genesis of the Athenian Ephebia, 83 TRANS. PROC. AM. PHILOL. ASSOC.
34 (1952).
118 PLESCIA, supra note 11, at 74. 119 Id. at 88. 120 Silving,
supra note 108, at 1337. 121 See JAMES E. TYLER, OATHS: THEIR
ORIGIN, NATURE, AND HISTORY 14 (1834). 122 Id.
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The function of the oath as a social contract may explain why
the oath is required. Membership in a community may require
agreement of some rules. While existing-members are presumed to
agree to the rules by tacit consent, foreign members seeking to
join an existing community are often required, as a matter of fact
(regardless if it is just or not), to express an explicit consent
to the rules of the community or its tenets. A possible analogy is
conversion to Judaism. Those who are born Jewish do not need to
prove their Jewishness. Yet, non-Jewish persons seeking to be part
of the Jewish community should undertake a formal process of
conversion to prove their Jewishness. In this analogy, acquiring
new citizenship is tantamount to converting into a new religion.
New members must explicitly consent or undergo some procedures.
The contractual nature of the oath may also be an act of
specification of a general legal obligation. At some law schools,
there is a practice of obliging students to sign a contract before
taking an exam. The student should sign a form in which he or she
is aware of the rules of ethics and promise to obey them during the
exam. The main purpose of such contracts is to increase the
student's awareness to the code of conduct during exams. One may
ask what the contract adds to the students' general obligations,
which are written in any event in the student regulations. For
example, is a student, who committed a disciplinary offence by
cheating in an exam after signing the contract, guiltier than a
student who committed the same offence without signing the
contract? Will (or should) he or she be punished differently? Or
perhaps the contract does not affect the legal responsibility, but
intends to have psychological effects that deter fraud? Is this the
right analogy of the loyalty oath? If yes, the content of most
loyalty oaths should have been different since they do not just
specify general legal obligations, which are written anyway in the
law, but mainly add new contractual requirements that are not
written in the law.
The function of the oath as a social contract is problematic. At
first, if the purpose is a contract, why is it necessary to oblige
people to say the words rather than to sign a legal document? One
may be willing to sign a contract yet find it difficult to declare
the words. Insisting on an oral instead of a written contract may
indicate that the real purpose of the oath is different. If the
oath is a contract, it can also be a legal document that one must
sign in the immigration interview, the same as happens when one
opens a bank account. This is not a fundamental problem with the
function of the oath as a social contract but rather with its form.
In addition, the duties of loyalty taken by naturalized citizens in
the oath, namely, their "social contract," are broader than those
presumed regarding natural-born citizens.123 It leads to different
classes of contracts and of duties of loyalty. This, too, is not a
fundamental problem with the function of the oath as a contract but
rather with its terms.
B. POLITICAL TEST
A second view of the oath is as a political test. The oath is a
marker for the oath-takerit marks her new identity and
identificationand for the communityit delimits the borders of a
community by stating its essentials. Oaths are a bond of trust;
taking an oath shows that the oath-taker wroth trust.
The modern concept of allegiance was developed in medieval
England. In the feudal system, there was a personal tie of fealty
between the vassal and the lord.124 Fealty was the obligation of
fidelity that vassals owed to their lord
123 Comparing the content of oaths reveals that loyalty oaths
required of naturalized citizens
set a stricter standard than do loyalty oaths required of
officials, judges, and even presidents. 124 See WILLIAM S.
HOLDSWORTH, A HISTORY OF ENGLISH LAW 73 (3rd ed, vol. 9, 1944).
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in return for protection. Allegiance was the obligation that
subjects owed to the King, the supreme lord of the land, in return
for his protection.125 Modern oaths of allegiance derive from the
old English oath of fealty.126 The incorporation of the oath of
fealty into the public sphere was made in 1534 when Henry VIII's
hopes of reconciliation with Rome were exhausted. Henry passed The
Act for Establishment of the King's Succession,127 whose subjects
had to recognize the validity of his marriage to Anne Boleyn. Henry
invoked the oath as a defensive means against the Catholic Church.
He wanted to assure that the political loyalty of his subjects is
owed to the new head of the Church of England, and not to the Pope.
He also knew that the subjects may have doubts about the validity
of his marriage to Anne Boleyn, which consequently could have
undermined the validity of the throne. The oath thus was a
political mechanism forcing the subjects to recognize the
marriage.128
Ye shall swere to beare faith truth and obedyence alonely to the
Kynges Majestye and to his heires of his body of his moost dere and
entierly belovyd laufull wyfe Quene Anne begotten or to be
begotten, And further to the heires of oure said the Soveraign
Lorde accordyng to the lymytacion in the Statute. Two years after
the end of his marriage with Anne Boleyn, Henry passed
a new actthe Act for the Establishment of the Succession of the
Imperial Crown of this Realm
129which replaced the previous oath with a new oath of
allegiance and substituted Henry's new wife, Jane Seymour, for his
previous wife, Anne Boleyn.130 This time, the Act provided that a
refusal to take the oath would be considered high treason.131 In
1544, the oath was replaced once more, and, again, a refusal to
take the oath was deemed high treason:132
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 hate 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.
These oaths were developed in a moment of instability in English
history
resulting from the break with the Catholic Church. Oaths were a
mechanism to test loyalty to the Crown by obliging people to
renounce loyalty to the Pope, who was mocked as the Bishop of Rome,
and 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), accept the Protestant faith and
125 BLACKSTONE, supra note 62, at 354-55. The King's duty to
protect "was meant to fulfill
the most immediate needs of ordinary people: minimal security
against conquest, civil war, anarchy, and private violence." See
Judith Shklar, American Citizenship: The Quest for Inclusion, in
THE TANNER LECTURES ON HUMAN VALUES XI 385, 391 (Grethe B. Peterson
ed., 1990)
126 See FREDERICK POLLOCK, ESSAYS IN JURISPRUDENCE AND ETHICS
179 (1882). 127 25 H. VIII. C. 22. 128 26 H. VIII c. 2 (for the
full, much longer version of the oath see, id). 129 28 H. VIII. c.
7. 130 POLLOCK, supra note 126, at 182. 131 Id. 132 35 H. VIII. c.1
(for the full, much longer version of the oath see, id).
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declare against transubstantiation (an Oath of Abjuration).133
The Gunpowder Plot of 1605 provoked an outbreak of panic and
hysteria and yielded a strict policy of surveillance on Popish
recusants.134 The Popish Recusants Act, passed by the Jacobean
Parliament, established a new oath, which included "a promise to
bear allegiance to the Crown notwithstanding any Papal sentence of
excommunication or deprivation."135 This oath added the words "upon
the true faith of a Christian," which later became an issue for
Jewish subjects.136
The emergence of oaths of allegiance continued after the
Restoration. After the Revolution of 1688, however, the previous
forms of the oath were abolished, and a concise form of oath to
King William and Queen Marry was adopted.137 In 1701, following the
death of King James II., and in the last days of William III., a
new Act was passed, imposing, again, very long oaths of allegiance,
supremacy, and abjuration, which remained in force for nearly a
century.138 Finally, the Promissory Oaths Act of 1868 cut down the
oath of allegiance to its current form.139 Frederick Pollock, who
offered a detailed historical account of oaths of allegiance in
England, explains the reason for the current modest oath by saying
that "we no longer stand in fear of Pope or Pretender."140 Pollock
ends up with the conclusion that "every clause and almost every
word in the statutory oaths of allegiance . . . was directed
against a distinct and specific political danger."141 Loyalty
Oaths, he indicates, were a "repressive legislation against mere
speculative opinions."142
Oaths of allegiance were essential cargo that traveled with
Englishmen to the New World in America.143 In 1640, Massachusetts
was the first colony to depart from the English royal oath of
allegiance and replaced it with a new Puritan oath.144 The new oath
did not impose any requirement of loyalty to a specific king or a
church. But don't be mistaken: emulating practices at home, the
colonies invoked oaths as a political weapon. Nevertheless, many
Founding Fathers knew that loyalty oaths were a fallacy. There was
no better proof for that than the American Revolution itself. Some
of the Founding Fathers swore loyalty to King George II yet
rebelled against him. Thomas Jones commented that oaths "were
become mere farces. The loyalists laughed at them, the rebels
despised them, and by both they were held in contempt"; Benjamin
Franklin noted that "there could be no reliance on their oaths" as
they are "the last recourse of liars"; and James Wilson wrote: "a
good government did not need them [the loyalty oaths], and a bad
government
133 See, e.g., respectfully, 5 Eliz. c. 1 (1562), 7 Jac. 1, c. 6
(1609), and 30 Car. II, Stat. 2, c. 1
(1678). 134 See Marcy L. North, Anonymity's Subject: James I and
the Debate over the Oath of
Allegiance, 33(2) NEW LITERARY HISTORY 215 (2002). 135 POLLOCK,
supra note 126, at 185-86. The function of the oath as a test can
be seen by
the title of the ActThe Test Act of 1673, 25 Car. II. c. 2. 136
Id. at 187-88, 193-94. A well-known example is the story of Lionel
de Rothschild, who
was elected a few times to the House of Commons yet refused to
swear allegiance upon the true faith of Christian. See STANLEY
WEINTRAUB CHARLOTTE AND LIONEL: A ROTHSCHILD LOVE STORY, 125-50
(2003).
137 For the full text of the oath see id., at 189. 138 For the
very detailed text of the oath see, id., at. 189-91. See also 1
Geo. I., st. 2, c. 13. 139 31 & 32 Vict. c. 72. 140 POLLOCK,
supra note, at 126. 141 Id. at 196-97. 142 Id. at 197. For oaths in
England see also FREDERIC W. MAITLAND, THE CONSTITUTION
HISTORY OF ENGLAND, 115-18, 364-67 (1931). 143 See HAROLD M.
HYMAN, TO TRY MEN'S SOULS: LOYALTY TESTS IN AMERICAN
HISTORY 1-22 (1959). It was only natural that the first item
printed when the first printing press had brought to the colonies
was the loyalty oath. For the full text of the oath see id., at
15.
144 Id. at 21-23.
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could not or ought not be supported"145 The wisdom of loyalty
oaths was not clear. In the most detailed review of loyalty oaths
in America, Harold Hyman shows that, in an attempt to secure
loyalty, loyalty oaths provoked disloyalty. "Never in America's
history have loyalty tests provided security," he says.146
Interestingly, 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."147 Webster, the very
incarnation of Americanism, asserted that oaths are un-Americans.
In referring to their quality to test political loyalty, he
said:
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;
never suspect a set of men will be rogues, and make laws
proclaiming that suspicion . . . No man will commence enemy to a
government which givs him as many privileges as his neighbors
enjoy.148 The history of the oath is a history of fear. Oaths were
a sign of
weakness. They have been used by a side who perceived that it
was under threat. "No loyalty oath is required when loyalty is not
in question," Cass Sunstein observed.149 Loyalty oaths thus try to
restore conventions that have ceased to exist, or have been
seriously jeopardized. In fact, the preponderance of loyalty oaths
mirrors exactly the opposite. It reflects a decline of loyalty and
its being undermined because it shows the need to protect it. The
words of the oath are needed precisely because they have been
called into question.
C. NATION-BUILDING
Loyalty oaths have historically been seen as one of the greatest
forces of society. "The oath," says Lycurgus, the great Athenian
orator of the 4th Century B.C., "is the power that holds democracy
together."150 Loyalty oaths were a socio-religious force aimed at
uniting people together. They were seen as a nation-building
symbol, similar to the national flag and national anthem. "No
country can subsist a twelve-month where an oath is not thought
binding; for the want of it must necessarily dissolve society,"
ruled the New Jersey Supreme Court.151 Montesquieu attributing 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."152
145 Id. at 113-15. 146 Id. 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). 147 See
Noah Webster, On Test Laws, Oaths of Allegiance and Abjuration, and
Partial
Exclusion from Office, in A COLLECTION OF ESSAYS AND FUGITIV
WRITINGS ON MORAL, HISTORICAL, POLITICAL AND LITERARY SUBJECTS
151-53 (1790, 1977). Webster preferred a country that generates
loyalty through what it has to offer, rather than by a coerced
statement. For Webster, "a good Constitution, and good laws, make
good subjects." Id.
148 Id.
149 See Cass R. Sunstein, Unity and Plurality: The Case of
Compulsory Oaths, 2 YALE J.L. & HUMAN. 101, 102-03 (1990).
150 PLESCIA, supra note 74, at XXX. 151 See Imbrie v. Marsh, 3
N.J. 578, 581 (1950), cited Omychund v. Barker , 1 Atk. 21, 34
(Ch. 1744). 152 See CHARLES D. MONTESQUIEU, THE SPIRIT OF THE
LAWS 122 (Anne M. Cohler et al
eds., 1989).
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The idea of nation-building symbols was developed by Rousseau.
In order to maintain a particular legitimate state, there is a need
to put together a particular society. To this end, citizens must
share a particular bond, which is based not only upon rational
self-interest in having freedom but also upon developing irrational
attachments by appealing to national myths, festivals, and
rites.153 National identity should be developed. For Rousseau,
public rites are a nation-building instrument to secure freedom
since they trigger loyalty.
Viewing oaths of allegiance under this lens indicates another
function of that oath. The oath is not merely aimed at creating
in-groups and out-groups but at unifying an in-group together.154
The important element of the oath is not its content but its form.
The oath may be useless without the rite. Signing a few words on a
piece of paper would not produce the required sentiment of unity.
The ritual function of the oath is its essence. Immigrants should
take the oath in a dramatic momentusually, in a public ceremony or
in a court of law. The ceremony often includes patriotic rituals,
such as saluting the flag, reciting the words of the oath in
public, and sometimes swearing on the Bible.
The function of the oath of allegiance as a nation-building
symbol is not clear-cut. To begin with, aside from anecdotal
evidence, there is no empirical evidence to indicate that prating
words of loyalty foster social cohesion. On the contrary: it may be
possible that a person who recites the Pledge of Allegiance each
morning in a public school would feel negative rather than positive
feelings toward the objects of loyalty. Think about a man who asks
his spouse to declare her love every morning. After a year, would
she love him more or less? At the end, as the U.S. Supreme Court
held regarding the flag salute, "a person gets from a symbol the
meaning he puts into it, and what is one man's comfort and
inspiration is another's jest and scorn."155 Next, even if loyalty
oaths are an effective means to achieve social cohesion, their
efficiency obviously depends on their content. Forcing a Scotsman
to swear allegiance to Queen Elizabeth II, a non-Jewish immigrant
to pledge loyalty to a Jewish State, or an objector to monarchy to
swear loyalty to the Crown may exacerbate social divisions rather
than create social unity. Moreover, if the form of the oath (i.e.,
the ceremony) serves more the purpose of the oath as a
nation-building symbol than its content, the effectiveness of the
oath in the immigration context is, at least, unclear. Unlike
pledges of allegiance in public schools, which are repeated every
day, the immigration oath is a one-time event that is held for just
a few minutes. It is nave to assume that these few minutes have
such a great impact on newcomers' identity and identification.
Civic integration and the development of national identity is
usually a product of a long process, not necessary a one-time
event. To be clear: the claim is not against the importance of
nation-building symbolsI accept the proposition that states must
maintain a minimum "bond" to hold people together in order to
survivebut rather against the nexus between the oath, especially a
one-time oath, and the national identity.
It may be possible that the oath is not a legal institution but
a symbolic statement whose virtue is to be found in the ceremony.
After all, the fact the one makes promises does not mean one makes
a contract. Oaths can be a type of a moral promise, which, even if
it has a moral force, is not legally binding. Think about wedding
vows. The bride and the groom promise to be faithful partners, and
love one another from this day until death. Nobody really goes
153 STILZ, supra note 88, at 117-30. 154 See Sanford Levinson,
Constituting Communities through Words that Bind: Reflections
on Loyalty Oaths, 84 MICH. L. REV. 1440 (1986); Sunstein, supra
note 149, at 102. 155 See West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 632-33 (1943).
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to court to seek a remedy because her partner does not love her
anymore, even though he promised to love her until death "does us a
part." Such a vow is a moral statement, not a legal contract. If
the analogy of oaths to wedding vows stands, the oath should not
have legal sanctions when a person breaches a promise. The fact
that it is not the case, and that the oath is not a moral but a
legal promise, indicates that the analogy of the oath to a wedding
vow fails.
D. EMPIRICAL PUZZLE
Social science and political psychology provide some evidence to
support the proposition that some individuals and groups are more
prone than others to be loyal or disloyal. It further offers two
ways to identify these individuals and groups. The first way is
relative; it touches upon character traits. Some people are more
likely to be loyal than others due to their traits. The second way
is situational; it defines a social structure in which people are
generally prone to be more loyal, such as the level of satisfaction
and dissatisfaction of individuals and groups.156 Loyalty is a
mixture of