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LOYALTY OATH

A mild form of loyalty oath is embedded in the Constitution itself. The President must swear (or affirm): "that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States." And Article VI, in conjunction with the supremacy clause, requires that members of Congress, state legislators, and "all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution." These are usually called affirmative oaths, in contrast to negative oaths in which oath-takers are required to abjure certain beliefs, words, or acts. In their most searching form, negative oaths probe the past as well as the future.

In Article VI, the constitutional oath of support is immediately followed by the proscription of any religious test for holding office. Loyalty oaths, called test oaths, were rife in an age of warring faiths defended by princes. They tested orthodoxy of belief and thus loyalty to the sovereign. Henry VIII launched Anglo-American constitutional practice on a sea of oaths, whose chief purpose was to root out followers of the pope of Rome. The Stuart kings exacted oaths from the first settlers, and the settlers in turn invoked them against each other. When George Calvert, the Roman Catholic first Lord Baltimore, attempted to settle in Virginia, he was confronted with an oath that he could not take. He perforce made the hard voyage back to England; his successors got their own grant to what became Maryland and promptly imposed an oath pledging fidelity to themselves.

Wary though they became of oaths with a religious content, those who made our Revolution, as well as those who resisted it, routinely exacted political loyalty oaths from military and civilians under their control. When one occupying force displaced the other, it could become a matter of life and liberty to have one's name on the wrong roster. At the same time, there was room for claims of duress and duplicity. BENJAMIN FRANKLIN expressed with his usual pithiness what was doubtless a shared cynicism when he wrote in 1776: "I have never regarded oaths otherwise than as the last recourse of liars."

One might have thought that the Framers, with revolutionary excesses fresh in their memories, meant the constitutional oaths to be exclusive of any others; but when the CIVIL WAR came, loyalty oaths again became ubiquitous. In the Confederacy, oaths were linked to the passes routinely required for any travel. Of more gravity, taking an oath was often for captives and hostile civilians the only alternative to rotting in prison or starving. The multiplicity of oaths and the pressure to yield to them resulted in their becoming unreliable indicia of loyalty. Union authorities were impelled to create a bureaucracy to interrogate oath-takers, thus anticipating modern LOYALTY-SECURITY PROGRAMS.

President ABRAHAM LINCOLN favored relatively mild oaths pledging only future loyalty. The sterner Congress fashioned the "ironclad" test oath that required denials of past conduct that secessionists could not possibly make. Those oaths barred even repentant rebels from government and the professions. The Supreme Court plausibly characterized such oaths as legislative punishment, and declared them BILLS OF ATTAINDER, inthe TEST OATH CASES (1867).

Little was heard of loyalty oaths in WORLD WAR I. After that war, many states singled out teachers for loyalty oaths; but they were only affirmative oaths on the constitutional model, repugnant chiefly because of the mistrust implicit in demanding them.

The waves of anticommunist sentiment that subsided only during the WORLD WAR II alliance with Russia led to a new proliferation of oaths that penalized membership in subversive organizations (sometimes specifying the Communist party) and advocacy or support of violent overthrow of governments.

All this came to a boil in the tormented Cold War–McCarthy era, when oaths old and new, state and federal, were combined with loyalty-security programs to purge communist influences from public employment and licensed occupations.

When oath cases came before the Court in the 1950s, it first sustained the constitutionality of elaborate oaths, requiring only that communist affiliations must be with knowledge of illegal ends (WIEMAN V. UPDEGRAFF, 1952), and suggesting that an employee must have an opportunity for an explanatory hearing (Nostrand v. Little, 1960). But in the 1960s, when the tide of public opinion turned against the excesses of the 1950s, the Court turned too. In half a dozen cases, of which the climactic one was KEYI-SHIAN V. BOARD OF REGENTS (1967), the Court found oaths that were barely distinguishable from those it had upheld in the 1950s to be void for vagueness or overbreadth. The majority opinions paraded an alarming catalog of possible dilemmas that teachers in particular could not escape and overwhelmed the expostulations of dissenters that the Court had created a "whimsical straw man" who was "not only grim but Grimm." For good measure, the Court, in UNITED STATES V. BROWN (1965), unsheathed the bill of attainder weapon of 1867 to strike down an oath that would exclude a former communist from any office in a labor union.

Such successes against negative oaths emboldened teachers and other public servants who resented having essentially affirmative oaths directed at them. But variants of the Article VI oath to support the Constitution were uniformly upheld. The capstone case was Cole v. Richardson (1972). There the Court, while reaffirming in generous FIRST AMENDMENT terms the 1960s cases, found no fault in an obligation first to support and defend the constitutions of the United States and the Commonwealth of Massachusetts and, second, to oppose their violent overthrow. The second clause, Chief Justice WARREN E. BURGER wrote, "does not expand the obligation of the first; it simply makes clear the application of the first clause to a particular issue. Such repetition, whether for emphasis or cadence, seems to be the wont of authors of oaths." He added in a footnote that "The time may come when the value of oaths in routine public employment will be thought not 'worth the candle' for all the division of opinion they engender." Justice THURGOOD MARSHALL, arguing in partial dissent that the second clause should be repudiated, reflected the persisting division between willing and unwilling oath-takers when he wrote, understatedly, that "Loyalty oaths do not have a very pleasant history in this country."

The fear that hellfire would follow a false oath must have faded since the seventeenth century. Nowadays public exposure, and a perjury prosecution, are the serious sanctions. Compulsory oath-taking is welcome to some, a matter of indifference to others, an offense to conscience for a few. A notable instance of a loyalty oath that hit the wrong targets occurred at the University of California in 1949–1952. When the university regents, after prolonged and wounding controversy, insisted on their power to impose a noncommunist oath, twenty-six members of the faculty refused to take it and were ejected. They won a pyrrhic victory in the California Supreme Court, which held that the regents' oath had been supplanted by an oath required of all state employees, but that the statewide oath somehow did not contravene a state constitutional prohibition of any test oath beyond the constitutional oath of support. Some of the nonsigners in time returned; one became president of the university and so did the historian of the episode, who called it "a futile interlude."