In case I haven’t mentioned it before, for the last 2 years, I’ve been an adjunct at a community college, where I teach Intro. to Anthropology. I actually love my job — I love teaching, I love working with the kind of students who go to community college (which kind of student I used to be one of), and I feel it’s the absolute best preparation for whatever job I end up working full-time. That’s not to say it’s easy being an adjunct — the pay is low, I get no benefits, I have virtually no contact with the rest of my department, I do not get to select my textbooks, and I have no assurance of employment beyond the term of my current contract. Which, by some unusual logic of college administration, I generally sign 3-4 weeks after I start teaching each semester.
As of tomorrow, we’re 4 weeks into the semester, so it was time to pop by the department office and sign my contract. This time, however, there was a little something extra awaiting my attention — a loyalty oath. To be taken in front of a notary public. The text goes like this:
I,____, do solemnly swear (or affirm) that I will support, protect and defend the Constitution and Government of the United States, and the Constitution and Government of the State of Nevada, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any State notwithstanding, and that I will well and faithfully perform all the duties of the office of _______ on which I am about to enter; (if an oath) so help me God; (in an affirmation) under the pains and penalties of perjury.
As I stood there, stunned almost beyond speech (I am, after all, a student of Cold War anthropology and McCarthyism), I was told that it was a requirement of Homeland Security, which turned out on further examination not to be entirely true.
The oath itself dates back to Nevada’s statehood in 1864, when, with the Civil War still raging, the question of loyalty was a very live issue. According to Article 11, Sec. 5, “…all Professors in said University, or Teachers in said Schools of whatever grade, shall be required to take and subscribe to the oath as prescribed in Article Fifteenth of this Constitution.” Article 15 spells out the oath above, which is the oath of office in this state. Although the oath has been a constitutional requirement for over 140 years, however, this is the first time I’ve been asked to take it, despite having signed (and fulfilled) 7 contracts with the school before today. So in a way the department secretary is right — for some reason, the oath passed out of practice, and is now being revived, and the only possible reason to revive it is concern about terrorism.
Now, I am not now nor have I ever been a terrorist, and I don’t have much sympathy for those who are (understanding, maybe, but never sympathy). And I’m as committed to the Constitution and the values it embodies as any American, probably more than most. And I don’t have a problem with swearing an oath to defend the Constitution or those values, although as a friend pointed out to me, loyalty oaths have no function except to weed out people like me who object on principle to the extortion of oaths of loyalty. The people who are disloyal certainly aren’t going to balk at signing a loyalty oath! Where I have a problem, though, is to the part about supporting, protecting, and defending the government; sometimes the government does things that I, for one, am not willing to defend, that don’t deserve to be defended.
The Supreme Court would seem to agree with my discomfort. Although oaths requiring allegiance to the Constitution have generally been upheld — and as a public employee, I don’t really have any qualms about being required to act in accordance with the US and state Constitutions under which I am employed — those mandating allegiance to the government or its institutions have generally been overturned, most notably in the case of Baggett v. Bullitt (1964). This case overturned a Washington state law requiring an oath similar to the one required in Nevada, on numerous grounds.
First of all, the Court recognized that professors and teachers cannot be expected to police the activities of their students, even when their teaching may well provide those students with knowledge with which to act against the government.
Teaching and advising are clearly acts, and one cannot confidently assert that his counsel, aid, influence or support which adds to the resources, rights and knowledge of the Communist Party or its members does not aid the Party in its activities, activities which the statute tells us are all in furtherance of the stated purpose of overthrowing the Government by revolution, force, or violence.
Although the Nevada oath is not explicitly anti-Communist (prompting University Regents in the ’50s to seek further loyalty oaths to weed out Communists) , the intention is similar: if I am to take seriously the oath to protect the government from its “enemies, domestic and foreign”, I must adopt a policy of self-censorship to prevent inadvertantly aiding or inciting action against the government, placing an undue burden on my ability to teach.
Secondly, the Court found the language of the Washington oath too vague, and the Nevada oath is even more vague. The Washington oath bound it’s giver to ” promote respect for the flag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government of the United States.” The Court found that:
The oath may prevent a professor from criticizing his state judicial system or the Supreme Court or the institution of judicial review. Or it might be deemed to proscribe advocating the abolition, for example, of the Civil Rights Commission, the House Committee on Un-American Activities, or foreign aid.
How much less specific is Nevada’s oath to “bear true faith, loyalty, and allegiance” to the state and federal governments? Am I allowed to question specific laws in my classroom, or to criticize specific institutions? I regularly describe the involvement of agents of the government acting through USAID, the CIA, and the World Bank in creating conditions of poverty and even genocide — can this be allegiance to the government? And what about my activities outside of the classroom — if I protest the actions of the government, which is hardly “supporting, protecting, and defending”, will I be perjuring myself?
Finally, the Court found that the Washington oath, which left all too vague what actions might be considered loyal or disloyal, placed upon teachers and professors a burden which would restrict their First Amendment right to freedom of speech (and, by extension, academic freedom). Because the determination of disloyalty could only be made by the adjuudication of each instance of alleged disloyalty, professors would be forced by their oaths to avoid not only speech they would find disloyal but speech they imagine might be construed as disloyal.
We are dealing with indefinite statutes whose terms, even narrowly construed, abut upon sensitive areas of basic First Amendment freedoms. The uncertain meanings of the oaths require the oath-taker – teachers and public servants – to “steer far wider of the unlawful zone,” Speiser v. Randall, 357 U.S. 513, 526 , than if the boundaries of the forbidden areas were clearly marked. Those with a conscientious regard for what they solemnly swear or affirm, sensitive to the perils posed by the oath’s indefinite language, avoid the risk of loss of employment, and perhaps profession, only by restricting their conduct to that which is unquestionably safe.
Again, this kind of imposed self-censorship is directly at odds with the requirements of teaching. “[M]easures which purport to define disloyalty,” the Court finds, “must allow public servants to know what is and is not disloyal.”
Loyalty oaths simply cannot function to assure loyalty, and so their imposition demands we look beyond the text itself for its meaning. Although I imagine that administering loyalty oaths makes those who administer it feel like they are taking some sort of action against a vague and unsettling threat, I think it is more fruitful to consider the oath as a display of power. The State is not telling me to be loyal — if they were, they would spell out what explicitly they consider disloyal — they are rather asserting their ability to force me to declare my loyalty. In Baggett v. Bullitt, the Court is clear in stating that one cannot perjure oneself in advance unless I swear not to do specific acts defined in the oath. Under the law, then, I cannot be punished for doing things I now swear not to do, or not doing things I now swear to do, because really I’m not swearing to do or not to do any specific “things”. The oath, then, is not a promise (or threat) of a future act of State power, it is itself the act of State power. I am being constructed by the State as a subject who declares — who must declare — his allegiance to that State.
And I will do it, on the grounds that a commitment to the Constitution implies a commitment to the government thus constituted, which government is a thing separate from — and indeed, often needs defense from — the people who occupy positions within that government at any given moment. In the end, it is not the oath itself that bothers me, but rather the having-to-take-the-oath, the being-asked-to-declare-my-loyalty-which-I’ve-given-no-reason-to-question. And, of course, the whole McCarthian stink of the thing.