I have written at great length recently about a challenge, now before the Superior Court of Ontario, to the constitutionality of the requirement that would-be Canadian citizens swear an oath of allegiance to the Queen (my posts on the topic are all here). For those who want to read more on the topic, Liav Orgad’s recent paper called “Liberalism, Allegiance, and Obedience: the Inappropriateness of Loyalty Oaths in a Liberal Democracy” is both timely and very interesting. As the title suggests, Prof. Orgad argues that oaths of allegiance ― whether to the Queen, to the nation, or to the constitution ― are something liberal states should not be requiring of their new citizens (or anyone else). It is a rather more radical argument than that advanced by the applicants in the current challenge, and deserves careful consideration.
Prof. Orgad observes that the requirement of an oath of allegiance as a part of the process of naturalization is a widespread one, although the oaths themselves are quite varied. Yet it is not quite clear what the purpose of the oath is. It stands to reason that “the fact that nations require loyalty to an object implies that a difference exists between allegiance and obedience to the law. Both citizens and noncitizens must obey the law yet only citizens owe an additional duty of allegiance” (6). But both the meaning of the concept of allegiance and the significance of an oath in this context are not obvious. Prof. Orgad argues that allegiance means “devotion to the best interest of” as well as “identification” with its object; it involves treating its object as paramount over one’s other duties and interests. It is a very onerous duty. As for the oath, it can mean (and has historically been understood as) one of three things: an expression of a contractual undertaking; a “political test”; or a “symbol of nation-building.” Yet it is not particularly clear which of these meanings the modern oaths of allegiance have, and thus just what purpose they serve.
Furthermore, argues prof. Orgad, while the purpose and thus the benefits of the oaths are uncertain, their drawbacks are significant. First, they are problematic from a Rule of Law standpoint, because they are so vague that the oath-taker cannot really know what obligations he or she incurs as a consequence of taking one. Second, they infringe the oath-taker’s freedom of conscience. An oath is not just “a command what to do” but “a command what to believe” (30); it works not only in the realm of action (as a law’s prescriptions do) but also in the realm of morality. And third, oaths discriminate between naturalized and natural-born citizens, subjecting the thoughts and actions of the former to scrutiny which the latter avoid, with potentially dire consequences.
Prof. Orgad’s final verdict is, accordingly, damning:
It is not clear enough what loyalty is, why it is justified politically, and why it is legitimate to be burdened with a duty of loyalty as distinct from the duty to obey the law. Neither is it clear what moral goals loyalty oaths serve nor whether any empirical evidence supports the idea that oaths rationally serve their putative purpose. In light of that, it may be the right time to say goodbye to loyalty oaths as a legal institution. (34)
There is much that is interesting in this article; it would not have been possible for me to cover it all here, especially the rich historical details. (For those interested in the history of the use and abuse of the citizenship oath in the United States, I heartily recommend an excellent book that I ought to have mentioned earlier, The Sovereign Citizen by Patrick Weil. I should add, for transparency’s sake, that I know prof. Weil and have done some work for him, including a little ― very little ― for this book.)
I do have a couple of objections to prof. Orgad’s arguments. The first is that he seems to assume that, whatever its exact meaning, loyalty or allegiance is an onerous, momentous obligation. It might not be. As I explain in my prior posts, the majority of the Federal Court of Appeal in Roach v. Canada (Minister of State for Multiculturalism and Citizenship),  2 F.C. 406, thought that the oath of allegiance to the Queen was little more that an acknowledgement of the current constitution, which did not prevent the person who took it to work for constitutional change. Prof. Orgad recognizes this possibility (31), but perhaps does not give it enough attention. Somewhat similarly, my second objection is that prof. Orgad seems to take it for granted that taking an oath of allegiance imposes an actual legal obligation, albeit one the contents of which is ill-defined. This has sometimes been the case, as in the American examples he invokes (and which prof. Weil discusses in greater detail), where citizens were “de-naturalized” for having been Communists, Nazis, or pacifists ― in contravention, it was said, to their oath of allegiance to the constitution of the United States. But, as prof. Weil explains, such de-naturalizations are no longer possible in the United States; nor are they possible in Canada. Any obligation one incurs as a result of taking an oath of allegiance might be symbolic, or at least conscientious, but not legal, which would undermine, at least to some extent, prof. Orgad’s arguments based on the Rule of Law and also on equality. In any case, despite these quibbles, prof. Orgad’s paper is most interesting, and his arguments based freedom of conscience are, in my view, very persuasive.
An interesting question is how they might affect the current challenge to the Canadian citizenship oath. Prof. Orgad’s paper will be published in the Canadian Journal of Law and Jurisprudence, and may well be read by judges deciding the case, especially if it makes its way to the Court of Appeal and the Supreme Court. The “problem” is that it proves rather more than the applicants want. They insist that they are fine with a citizenship oath, so long as the Queen is no part of it. This might seem like a prudent position ― it is usually best to make one’s arguments the least radical possible ― but Prof. Orgad shows that a court adopting it would be making an unprincipled compromise. At the same time, a court presumably cannot go further than the applicants ask and strike down the citizenship oath completely. I’m not quite sure what the way out of this conundrum is.
In any event, prof. Orgad’s paper shows, I think, that oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company.
H/T: Larry Solum