Loyalty oaths and the Supreme Court

Description: Formal pledges or affirmations to support and defend one’s country or a particular regime.

Significance: After the Civil War (1861-1865), the Supreme Court invalidated retroactive “test oaths” that deprived persons of civil privileges for having supported the cause of the Confederacy. Beginning in the late 1950’s, the Court applied increasingly libertarian standards to requirements that public employees take oaths concerning proscribed associations and beliefs.

Throughout recorded history, governments and leaders have utilized loyalty oaths as a means of consolidating power and punishing nonconformists. In England, after the Reformation, such oaths had the effect of restricting the legal rights of Roman Catholics and other religious dissidents. In colonial America, citizens were typically required to take oaths to support and defend their commonwealths, and some oaths included the duty to report dissidents against the government. During the American Revolution, the Continental Congress and state legislatures mandated that citizens pledge allegiance to the U.S. government. Loyalists and Quakers refusing to make this pledge were sometimes punished with exile and confiscation of property.

Although the First Amendment suggests a significant degree of free expression, it has usually not been interpreted as prohibiting all mandatory oaths of loyalty to the United States. Only a small minority of citizens object to making nonreligious affirmations of general loyalty to their country. Nevertheless, there are law-abiding groups, including the Jehovah’s Witnesses, who refuse on religious grounds to affirm allegiance to any secular government. In the modern period, the most controversial oaths have been those that require public employees to swear or affirm that they do not belong to associations that advocate the overthrow of the government through illegal means.

Constitutionally Approved Mandates

Article VI of the U.S. Constitution requires the president, members of Congress and state legislatures, and all executive and judicial officers to pledge by oath or affirmation to support the Constitution. Following this model, Congress has mandated that members of the armed forces, naturalized citizens, and employees in sensitive governmental positions must pledge or affirm allegiance to the United States. Most jurists interpret these requirements to be consistent with the First Amendment’s guarantees of freedom of religion, speech, and association.

In Cole v. Richardson (1972), the Supreme Court upheld legislation requiring positive oaths or affirmations of loyalty similar to the one found in Article VI, so long as they are not unduly vague and do not infringe on constitutional freedoms. The Cole decision allowed the oath to include a pledge to oppose the forceful overthrow of the government. A minority of the justices argued that requiring this pledge was unconstitutional because it might be interpreted in ways that restrict freedom of speech and association. The majority, however, found the pledge acceptable, because the Constitution does not guarantee any right to advocate or endorse the overthrow of the government by violence or other illegal means.

Although Cole upheld the constitutionality of requiring adults to pledge loyalty as a condition of public employment, a federal Court of Appeals in 1994 ruled that such a requirement violated the Religious Freedom Restoration Act (1993), because the government could not show that loyalty oaths served a compelling objective. However, the decision was based on a federal statute that is no longer enforceable, which means that courts in the future may not utilize the decision as a precedent.

Unconstitutional Requirements

Jurists distinguish between positive oaths to support one’s country and negative oaths to refrain from particular acts and associations. One variant of negative oaths, called “test oaths,” makes reference to the past rather than the future. Test oaths became especially common during the Civil War and Reconstruction periods. In 1862, Congress passed the “ironclad test oath” act, which required oaths of past loyalty by public officials. Three years later, the oaths were extended to numerous persons, including lawyers practicing in federal courts. After the war, many of the military regimes of the South also required test oaths as a requirement for public employment.

In 1867, the Supreme Court challenged the constitutionality of these retrospective loyalty oaths in two decisions, Cummings v. Missouri and Ex parte Garland. The first case dealt with a Missouri policy requiring persons in various public positions to swear that they had not supported secession or the Confederacy. Garland examined the federal statute as it applied to lawyers. The Court struck down the test oaths in both cases by 5-4 votes. Writing for the majorities, Justice Stephen J. Field began by concluding that the measures were punitive measures because they prevented persons from practicing their profession. As such, the acts violated the Constitution’s ban on bills of attainder because they punished a class of persons without trials. In addition, Field wrote that they were ex post facto laws because they punished acts that had not been defined as crimes when committed.

During World War I, many states had test oath requirements as parts of professional licensing procedures and criminal syndicalism laws. At the federal level, because of the fear of foreign radicals, test oaths were especially common for naturalization requirements for aliens. Such oaths were upheld in United States v. Schwimmer (1929), when a pacifist was refused citizenship after refusing to swear to take up arms in defense of the United States.

Because of fears of communism after World War II, Congress and most of the states required public employees to sign loyalty oaths that included pledges of nonassociation with the Communist Party or another subversive organization. In 1949, thirty-one professors of the University of California were fired for refusal to take one such oath. In Adler v. Board of Education (1952), the Court upheld New York’s Feinberg law, which provided for the dismissal of any public employee who belonged to an organization that advocated overthrow of the government.

Federal courts began to support more libertarian positions during the 1950’s. Examining an Oklahoma law requiring public employees to take an oath disavowing membership in a subversive organization in Wieman v. Updegraff (1952), the Court ruled that loyalty oath statutes may only punish employees who joined subversive organizations with knowledge of their illegal purposes. The case of Pennsylvania v. Nelson (1956) was particularly notable because when the Court reaffirmed federal primacy in matters of loyalty, it thereby invalidated the criminal statutes in more than forty states. In United States v. Brown (1965), the Court invalidated a federal law that had excluded former communists from holding positions of leadership in labor unions.

During the 1960’s, the Supreme Court found that almost all forms of negative oaths were unconstitutional. In the most important such case, Elfbrandt v. Russell (1966), the issue was an Arizona statute that required employees to take an oath to support the federal and state constitutions, and the oath was accompanied by a legislative interpretation that prohibited employment of persons who knowingly belonged to the Communist Party or another organization advocating the violent overthrow of the government. Failure to take the oath meant discharge, and a person making an untrue oath could be prosecuted for perjury. The Supreme Court overturned the statute in a 5-4 decision, finding that individuals might join an organization because of its legal purposes without supporting its illegal goals. Justice William O. Douglas declared that this interfered with the constitutional right of association, and he also noted that persons not sharing the illegal goals of an organization posed no threat to the public. Elfbrandt meant that a loyalty oath could only be used to punish an employee who acknowledged a specific intent to support a violent revolution or another illegal purpose.

Loyalty statutes applicable to teachers have almost always been designed to prevent the expression of ideas considered dangerous, treasonable, or unorthodox. In Sweezy v. New Hampshire (1957), the Court supported a left-wing professor’s refusal to answer questions about his political beliefs and teachings. Chief Justice Earl Warren emphasized the importance of freedom of expression to an academic institution. A decade later, in Keyishian v. Board of Regents (1967), the Court applied the doctrine of vagueness to invalidate a New York law that, among other things, had criminalized advocacy of violent revolution. Justice William Brennan, Jr., reasoned that the law unduly restricted teachers’ speech in the classroom because the law made it imposible to know which statements about abstract doctrines might be considered treasonable or seditious. He further declared that academic freedom “is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” With Sweezy and Keyishian as precedents, it became almost impossible for public educational institutions to design restrictive loyalty oaths that would be found constitutional.

Bibliography

Gardner, David. The California Oath Controversy. Berkeley: University of California Press, 1967.

Hyman, Harold. To Try Men’s Souls: Loyalty Tests in American History. Westport, Conn,: Greenwood Press, 1982.