Last week, the state of California avoided a possible constitutional confrontation over its requirement that all public employees sign an oath affirming that they will "support and defend" the United States and California constitutions "against all enemies, foreign and domestic."
A mathematics teacher named Marianne Kearney-Brown, who is a Quaker and a pacifist, declined to sign the oath because she felt that it might later be construed as committing her to take up arms to defend the nation, which would violate her religious beliefs. The state finessed the situation by agreeing that the oath would not be interpreted in that manner.
But the real question is why California requires public employees to sign an anachronistic and relatively meaningless loyalty oath at all.
Certainly, a truly disloyal employee could pose risks to the government. She might (if she were doing something other than teaching remedial math) disclose secret information to an enemy, destroy important government files, make decisions intended to harm the public interest and recruit other employees to engage in subversive activities.
But just how does a loyalty oath guard against such dangers? After all, anyone who is truly disloyal will simply take the oath falsely. No dangerous subversive will be deterred by the requirement of an oath.
The origins of the California loyalty oath, which all state, city, county, public school, community college and public university employees are required to sign, can be found in the McCarthy era. It was added to the state Constitution in 1952 and was designed, like so many other legal measures of that sorrowful era, not to protect the nation against real subversion but to frighten, intimidate and punish individual citizens for exercising their constitutional right to question and criticize the government.
Worse yet, it was designed to punish them for having exercised those rights decades earlier. In the 1930s, during the Depression, many Americans on urban bread lines and devastated farms had asked hard questions about the need for economic and political reform. Among the many organizations to which they turned was the Communist Party, which was then a legal political party that regularly ran candidates for public office.
By the end of World War II, with the beginning of the Cold War, most Americans who still had ties to the Communist Party or to organizations with connections to it quickly severed them. But by then it was too late. The most infamous question of the next two decades -- "Are you now or have you ever been ... ?" -- had entered the American lexicon.
Political leaders such as Sens. Richard Nixon and Joseph McCarthy quickly seized on the opportunity to leverage fear to their political advantage. As Americans worried about the prospect of nuclear war with the Soviet Union, and accusations of Soviet espionage spread throughout the nation, right-wing ideologues launched a campaign charging that thousands of communists had secretly infiltrated the government, the military, the unions, the schools and the media.
The U.S. Chamber of Commerce demanded concerted action to drive subversives out of these and other positions of influence. Francis Cardinal Spellman warned that communists were "digging deep inroads into our nation" and "trying to grind into dust the blessed freedoms for which our sons have fought, sacrificed and died."
President Harry Truman charged that such "scaremongers" had "created such a wave of fear and uncertainty that ... people are growing frightened -- and frightened people don't protest."
But McCarthy persisted. "I say one communist in a defense plant is one communist too many," he said in 1952. "One communist on the faculty of one university is one communist too many."
Within a few years, a plague of loyalty oaths had spread across the nation. By 1956, 42 states, including California, and more than 2,000 county or city governments had enacted loyalty oaths for public employees.
As Truman had warned, a cancer of fear had swept the nation.
The very concept of "loyalty" is painfully elusive. It is defined entirely by a state of mind. Does it mean "my country, right or wrong"? Can a citizen oppose government policies -- including a war -- and still be "loyal"? Can a citizen be a pacifist and still be "loyal"?
Loyalty oaths reverse the essential relationship between the citizen and the state in a democratic society. As the framers of our Constitution understood, the citizens of a self-governing society must be free to think and talk openly and critically about issues of governance.
In a regime of loyalty oaths, it is the government that defines which thoughts and which ideas are permitted. Dissenting views and nonconforming views are deemed "disloyal." The very existence of such oaths reflects an utter lack of confidence in the American people. Nothing so dangerously corrupts the integrity of a democracy as a lack of faith in its own citizens.
Loyalty oaths serve no legitimate function. The government can and should investigate and punish unlawful conduct. But it should not attempt to intimidate U.S. citizens who express "disloyal" beliefs.
It is time for California to recognize that its requirement that public employees swear an oath of fealty to their government is a relic of shameful past and, quite simply, un-American.
Geoffrey R. Stone is a professor of law at the University of Chicago.
Copyright 2008 Los Angeles Times