One’s Own Self, Like Water

The Law Society’s demand for a “Statement of Principles” is a totalitarian values test

In my last post, I outlined the scope of the Law Society of Upper Canada’s demands that all lawyers subject to its regulation, including those who are retired or working outside Ontario, produce a “Statement of Principles that acknowledges” a purported “obligation to promote equality, diversity and inclusion” ― not only in the practice of law but “generally”. I also explained that no such obligation exists at present, because none is imposed by the Rules of Professional Conduct or other rules applicable to lawyers, as they now stand, and that it is doubtful whether the Law Society could lawfully impose such an obligation under its enabling statute.

I have not seen meaningful responses to these concerns. On the contrary, they have been echoed in an op-ed in the Globe and Mail by Arthur Cockfield. Instead, those who defend the Law Society argue that whatever limitation of our rights the Law Society’s demands produce, the limitation is justified if analysed under the proportionality framework of s 1 of the Canadian Charter of Rights and Freedoms. They also point to the fact that lawyers are already required, by s 21(1) of Law’s Society’s By-Law 4, to swear an oath upon entry into the profession.

I agree with the Law Society’s defenders that the “Statement of Principles” that it wants us to produce is indeed similar to an oath, and in particular to the oath required by s 21(1), which I will refer to as “the lawyers’ oath”. They are similar in nature, in purpose ― and in their uselessness and questionable constitutionality. I will discuss these points below, drawing heavily on the criticisms of the Canadian citizenship oath (and, specifically, of its reference to the Queen) that I have developed over the course of four years of blogging on this topic, and especially in an article on this issue published in the National Journal of Constitutional Law. (Indeed, though it was not the focus of my argument, I briefly discussed the lawyers’ oath in the article.) Some of those who defend the Law Society have sought to accuse its critics of hypocrisy over our purported failure to object to oaths, and especially to oaths of allegiance to the Queen. Whatever the rhetorical value of such accusations ― and I think that it is nil, since they do not refute our substantive objections ― this topic is not new to me.

Start, then, with the nature of the oath or “Statement of Principles”. Both are forced expressions of commitment to acting in certain ways. Though a “Statement of Principles” might, depending on the way in which it is formulated, ostensibly stop just short of being a promise, I think that any distinction between acknowledging an obligation and promising to fulfill an obligation is one without a difference in this context. In his National Post op-ed criticizing the Law Society’s demands, Bruce Pardy treated the “Statement of Principles” as a forced expression of support of support for the Law Society’s policies, which I think is quite right. As Prof. Pardy pointed out, in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, the Supreme Court has condemned such demands as “totalitarian and as such alien to the tradition of free nations like Canada”. (296) Although in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 the Court made it clear that this holding did not apply to compelled statements of fact, this (wrongheaded, in my view) narrowing of the National Bank holding is not relevant here. But, as I have argued in my blog posts and article, coerced commitments are more than expressions of opinion. They are impositions not only on the freedom of speech of those who must make them, but also on their freedom of conscience. Oaths, as the Supreme Court explained in R v Khan, [1990] 2 SCR 531 work by “getting a hold on [the] conscience” of those who take them, notably ― but not only, as I shall presently explain ― by making the thing sworn to a matter of moral, and not merely legal, obligation. The  “Statement of Principles” is similar, in that it is an attempt to make every lawyer embrace, as a matter of his or her personal morality, and thus conscience, the principles set out in that statement.

The other way in which oaths typically impinge on conscience, and also a point of similarity between the lawyers’ oath and the “Statement of Principles” is that, because they typically impose vague obligations that go well beyond the requirements of any positive law, they demand frequent if not constant exercise of moral judgment about the precise scope of the duties being sworn to. As I wrote in my article, the lawyers’ oath

requires lawyers, among other things, to “protect and defend the rights of interests” of their clients; to “conduct all cases faithfully”; not to “refuse causes of complaint reasonably founded, nor [to] promote suits upon frivolous pretences”; to “seek to ensure access to justice”; and to “champion the rule of law and safeguard the rights and freedoms of all persons.” These (and the other requirements of the oath) are not straightforward obligations. Discharging them requires lawyers to think about just what their duties are. … [T]o a considerable degree, the judgment required is a moral one. In some cases, that is because the lawyers’ duties are couched in moral terms (like “faithfulness” …). In other cases, the degree to which one can and ought to fulfill these duties must necessarily be left to individual conscience. (How far must one go to “ensure access to justice”: does it require one to limit one’s fees? How much pro bono work need one do? Can one “ensure access to justice” while being a member of a state-enforced cartel devoted to raising the cost of legal services?) In other cases still, it is because the lawyers’ duties can conflict (for instance, when the defence of a client’s interests might suggest launching a “suit upon frivolous pretences”), requiring moral judgment about which is to prevail. In short, a lawyer must constantly, or at least frequently, rely on his or her conscience to determine just what it is that his or her oath requires. (152)

The “Statement of Principles” would be meant to do the same thing, requiring lawyers (those, at least, who take it seriously) to be constantly asking themselves what their general “obligation to promote equality, diversity and inclusion” requires. It is no answer that the requirement is merely to comply with relevant human rights legislation. Not only is no “Statement of Principles” necessary to achieve that, but this legislation does not actually apply to many lawyers, such as those who are retired and not engaged in the sorts of relationships or activities which such legislation covers. The whole point of a “Statement of Principles” is to go beyond the positive law.

These impositions on freedom of conscience ― and, of course, the compelled expression  of opinion that the lawyers’ oath and “Statement of Principles” also are ― require justification. I do not think that any exists. In my article, I take the Canadian citizenship oath through the Oakes proportionality analysis, and find that it fails at every step. (Interestingly, as I also note in the article, the Law Society itself dropped the mandatory oath to the Queen due to constitutional concerns.) Of course, the issues with the lawyers’ oath and the “Statement of Principles” are not the exactly same. Yet there are also some common points.

In particular, both supposedly serve the sort of “[v]ague and symbolic objectives” of which the Supreme Court told us to be wary in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519 while having a tenuous relationship to these objectives. The lawyers’ oath is unlikely to make many lawyers more ethical, or more committed to the Rule of Law. One is ethical, or a “champion of the Rule of Law”, because one believes in these things ― not because one was made to swear to them. Similarly, even the Law Society’s defenders tend to acknowledge that requiring us to produce a the Statement of Principles is not going to do much to make the legal profession more diverse or inclusive. A symbolic expression of commitment to a set of values, no matter how attractive, is no more necessary than a symbolic expression of commitment to one’s country, no matter how great ― which, I explain in the article on  the citizenship oath, and as Liav Orgad explained in more detail in his study of loyalty oaths, is to say not necessary at all.

This is all the more so since the Law Society explicitly states that the requirement to produce a “Statement of Principles” can be satisfied by the simple expedient of “adopting” one of the sample “Statements” supplied by the Law Society itself. Indeed, the Law Society’s defenders suggest that since we could easily “adopt” one of those sample statements, regardless of whether we believe in them, or some other “Statement” so vague and bland that, as Annamaria Enenajor put it to me on Twitter,  “a closet [sic] neo-nazi lawyer could get down with” it, the whole thing is really no big deal. This again is similar to the lawyers’ oath. I have no doubt that if Justice Abella chooses to re-join the bar after her retirement from the Supreme Court, she will feel no compunctions about promising to “champion the rule of law” ― even though it is a matter of public record that “[t]he ubiquitous phrase ‘rule of law’ annoys her“, and that she prefers something called “the rule of justice”. But to the extent that the Law Soceity’s fellow-travellers are right, it is difficult to see how the “Statement of Principles” is meaningfully addressing a pressing and substantial concern, and it must fail the proportionality test for that reason.

There is, however, another possibility. As with the citizenship oath and the lawyers’ oath, while most people may be content to make a pretended commitment to ideas or principles they do not understand or indeed secretly despise, some are not. They take a thing of that nature, whether called an oath or a Statement of Principles, seriously. They agree with Robert Bolt’s Thomas More that “[w]hen a man takes an oath … he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again”. And, just like More refused to falsely swear an oath to regard Henry VIII as head of the Church, they will not tick off box on the Law Society’s form to acknowledge an obligation to promote ideals the Law Societey’s interpretation of which  they do not share, or indeed the Law Society’s authority to impose which they reject. As to such people ― as to those who refuse to live in the closet ― the Law Society’s demand is not a trivial, if useless, imposition. As prof. Pardy argues, and as the Supreme Court has long accepted, forcing people to endorse opinions that they do not share is totalitarian ― or at any rate no less oppressive than the government of Henry VIII. As to such people, the Law Society’s demands will, at all events, fail the “proportionality strictu sensu” test, because totalitarian demands for ideological compliance always impose a greater cost than whatever benefit the state (or, in this case, the Law Society) can hope to obtain by imposing them.

Beyond the dry terminology of proportionality analysis, it is important to understand that what is at stake here is neither more nor less than a values test for the practice of law. While some have resisted this implication (going so far as to argue that a requirement to produce a “Statement of Principles” is not a values test even though a requirement to provide it to the Law Society would be one!), others among the Law Society’s fellow travellers are quite comfortable with it. In their view, there is nothing wrong with a legal profession in which only people who hold the right values ― and those who are sufficiently unprincipled to dissemble about theirs ― are welcome to remain, while those who are deemed to be wrong, and who refuse to hide in the closet in response, are shown the door. The undesirables are not yet pushed out ― it may be that the Law Society’s policy is nothing more than a paper tiger, a “demand” that will not be meaningfully enforced. But it could also be a warning, and a test. Even if the Law Society does not try coercion now, acquiescence to its demands it will embolden it do so in the future. As others have argued, it will also show that the legal profession is supine enough to comply with the authorities’ attempts to impose orthodoxy on it. And this leads me to a final question for those who support the Law Society. Are you really so confident of always being among those whose orthodoxy will be imposed on others? Thomas More ― the historical one, the one who confiscated books and rejoiced in the burning of heretics ― was so confident. May you fare better than he did.

New Swearwords

The Prime Minister wants to make a meaningless addition to our unconstitutional citizenship oath

As the CBC reports, the Prime Minister’s mandate letter to the new Minister of Immigration, Refugees and Citizenship directs him to “[w]ork in collaboration with the Minister of Indigenous and Northern Affairs to make changes to the Oath of Canadian Citizenship to reflect the Truth and Reconciliation’s [sic] Calls to Action.” What the Truth and Reconciliation Commission suggested was adding the clause “including Treaties with Indigenous Peoples” to the undertaking to “faithfully observe the laws of Canada”. This addition is silly ― and, meanwhile, the oath remains unconstitutional, as I have long argued here and in an article published in the National Journal of Constitutional Law.

Having new citizens undertake to “faithfully observe … Treaties with Indigenous Peoples” is meaningless exercise in symbolic politics. The treaties in question do not bind citizens. Citizens trying to ascertain the duties they subscribe by taking the oath in this form would find none. The treaties do not require them to do or not to do anything. They impose obligations on (and give rights to) the Crown ― i.e. the government. An individual citizen can no more “observe” these treaties than he or she can fail to do so.

The addition of meaningless language further devalues the citizenship oath ― though admittedly it is already not worth very much. Many citizens, new and old alike, including indeed the authors of the guidebook used to help prepare would-be citizens for their citizenship test, misunderstand the reference to the Queen in the existing oath, thinking that it means that “we profess our loyalty to a person”. What is more, as the Court of Appeal for Ontario observed in the course of dismissing a challenge to the constitutionality of the reference to the Queen, in  McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1,

a former plaintiff in this proceeding who had taken the oath of the citizenship, has publicly recanted the oath to the Queen while, at the same time, confirming the remainder of the oath. Mr. Charles was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status.

The government of Canada, in other words, thinks that the oath means nothing at all (imagine, by contrast, a judge’s reaction to a witness telling her that he “recants” his promise to say nothing but the truth), and goodness knows what those who take the oath think it means. The Prime Minister’s new plan does not change that.

Nor does it address the unconstitutionality of the oath in its current form. While it has upheld the oath, I have argued here that the McAteer decision is a “parade of judicial horribles“. It misreads the relevant precedents and relies on conclusory assertions about the value of the citizenship oath while ignoring the oath’s history as an embodiment of distrust and the distinctive way in which an oath (contrary to a statutory command) operates by enlisting the conscience of the person who takes it. As I explain in more detail in my article, the citizenship oath in its current form is an imposition on individual conscience that is not justified by any pressing and substantial objective, is not rationally connected to the purposes it supposedly serves, is not minimally restrictive (since it could easily be re-written to accommodate the scruples of those who object to it), and is not proportional to the harms it inflicts on objectors. It is, in short, contrary to s 2(a) of the Canadian Charter of Rights and Freedoms, and cannot be “saved” by s 1.

This is what the Prime Minister ought to have asked the Immigration, Refugees and Citizenship Minister to address. Instead, he chose to focus on a meaningless gesture. I have written here that “oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company”. Another feature of swearwords is that their precise contents matters very little; only the emotions they convey are of any significance, as this latest news confirms.

 

State v. Conscience

Freedom of conscience, state authority, and the case of the citizenship oath

As I had already mentioned, last week I spoke at a discussion on freedom of conscience that the Runnymede Society organized at McGill on Tuesday. It was a lot of fun, and as always at McGill there were some great questions from the students who came out. For those of my readers who weren’t there though, I thought I’d post my prepared remarks. I ended up moving a few things around in the presentation, but this is close enough to the substance of what I said. Those of you who have followed my posts on the citizenship oath probably won’t find much that’s new here, but if you’ve missed them, this is a flavour.

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The idea of freedom of conscience has been in conflict with state authority for as long as it existed, which is to say about 500 years. (Since it’s the Runnymede Society that has invited us here, I would have loved to say something about the Magna Carta ― but although freedom of the Church is the very first article of the Great Charter, there is nothing there about freedom of conscience, or for that matter about other “fundamental rights” protected by section 2 of its Canadian descendant. Indeed, the development of the very idea of conscience is associated with Aquinas, who was only born 10 years after the Magna Carta was issued.)

Lord Acton puts the idea of freedom of conscience beautifully and concisely. It is the belief that “the knowledge of good and evil is not the sublime prerogative of states, nations, and majorities. … Its action is to limit power by causing the sovereign voice within to be heard above the expressed will and settled custom of surrounding men.” Needless to say, the man or woman who seeks to live by his or her own lights is bound to clash with the state, which wants to reserve the prerogative of defining good and evil for itself, for reasons both righteous (of which Hobbes and Locke remind us) and corrupt, of which Lord Acton does: “The passion for power over others can never cease to threaten mankind, and it is always sure of finding new and unforeseen allies in continuing its martyrology.”

The conflict is ineradicable, but the weapons by which it is waged change. We have forced the state to abandon the executioner’s sword, and we have now at our disposal the instrument of judicial review of legislation. When Henry VIII became the first monarch to demand that all of his subjects swear allegiance to him (in his newfound capacity as the head of the Church of England), Sir Thomas Moore, who refused, was beheaded. When people who seek to become Canadian citizens refuse to swear that they will “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors,” they are allowed to go to court and to challenge the requirement that they take the oath.

As some of you may know, recently a group of would-be Canadians did just that. They lost, however, both at the Superior Court of Justice and at the Court of Appeal for Ontario. The Supreme Court refused to hear their appeal. Still, we thought that it might be interesting to come back to this case, as an illustration of the conflict between the authority of the state and the conscience of individuals. The case, I should note, was litigated under the heading of freedom of expression, not freedom of conscience. But although I believe that the applicants should have prevailed on that claim too, I think that it fails to capture the really interesting and distinctive feature of the problem of the oath, which is the way in which it is tied up with conscience.

Originally, swearing an oath meant incurring a religious obligation, but the idea of an oath persists, even in a secular state, cut off from its religious roots. Any oath, as the Supreme Court has recognized, is an attempt to “get a hold” of the conscience of the person who swears it. Breaking an oath would be immoral, even if one doesn’t believe that it would result in damnation―and regardless of any criminal sanction that might follow. But an oath typically involves morality at another level as well, in that its performance is almost always a matter of moral judgment. This is not a conceptual truth―some oaths are not of that sort―but the law tends to require oaths in those situations where it cannot describe and therefore impose the obligations it would like to demand because they are vague, subjective, and ultimately appeal to the conscience of the person who is to perform them.

I’ll mention just one example other than the citizenship oath itself, drawn from the oath that you will swear when you are called to the bar. Those of you who will be called in Ontario, and perhaps in other provinces too, will swear, among other things, to “seek to ensure access to justice”. This is not a straightforward obligation. Discharging it will require you to think about just what your duties really are; a judgment that is no doubt partly intellectual, but also, to a considerable extent, moral. Ensuring access to justice is, for a single lawyer and for the profession as a whole, a matter of degree, and you must decide how far to go. Should you limit your fees? How much pro bono work should you do? Can you “ensure access to justice” while being a member of a state-enforced cartel whose raison d’être is to increase the cost of legal services? The oath does not answer these questions; there is no rule to guide you; you must figure these things out for yourselves, in conscience. What the oath does―if you take it seriously, and not just as an ancient ritual, which in fairness it might be―is it “gets a hold” of your conscience and directs you to ask yourselves some very hard questions.

Oaths of allegiance are similar in that they enlist the conscience of those who swear them; they require these persons to ask themselves what it means to be loyal to that to which they pledge allegiance, and what that duty of loyalty that they impose might require in various circumstances. The oath of allegiance is not reducible to those obligations that state imposes by law―for example with the provisions of the Criminal Code regarding treason. If it were, there would be no need for it. The reason an oath is required is that something more―namely, a moral commitment that goes beyond legal obligation―is thought to be necessary.

The people who challenged the citizenship oath―unlike, I suspect, most of those who swear it but regard it as a mere meaningless formality (myself included, I confess)―have thought about it would mean to “bear true allegiance to Elizabeth II, Queen of Canada.” They think that would mean being personally loyal to the monarch and politically loyal to the monarchy, both of which they regard as intolerable. And the courts that have passed on their claim implicitly agree that the state could not actually impose this sort of condition on acquiring Canadian citizenship. But, they have said, this is all a misunderstanding. Swearing allegiance to the Queen of Canada does not mean swearing allegiance to Elizabeth R. personally; nor does it mean endorsing the monarchy as a system of government. If only the people who are challenging the oath understood it correctly, they’d realize that it is not the sort of imposition that they imagine it to be.

Now, I take it from Philippe Lagassé, who spoke at McGill not long ago, that the courts are right as a matter of Crown law. The Queen of Canada to whom the oath refers is the personification of the Canadian state, and an entirely distinct entity from the head of the Church of England, for instance. But, I submit, the state―and keep in mind that the courts are a branch of the state―cannot have it both ways. It cannot ask people to swear an oath, and thus to work out for themselves, as a matter of conscience, what their obligations are, and then turn around and say that those who have done this exercise got the answer wrong. The state can impose legal obligations by statute, in which case people’s misunderstanding of the law cannot ground a constitutional challenge to it, as the Supreme Court has held in Khawaja. A statute merely tells you what to do or not to do; it does not have anything to do with your conscience. But if the state, instead of enacting a statute, exacts an oath, and thus appeals to conscience, must respect the conscientious judgment of the people whose morality it seeks to enlist. In this instance, it means that the courts should have recognized the burden on the persons who challenged the oath to the Queen, and required the state to justify the imposition of this burden under section 1 of the Charter.

I don’t have the time to go through the complete section 1 analysis, which is unfortunate because there is a lot to say there, both about the futility of loyalty oaths generally and about the defects of ours in particular. I’ve gone over that in more detail in an article. I will only make one point that has to do directly with freedom of conscience. At the last stage of the Oakes justification test, we have to consider the impact of the infringement on the claimant. If we think only of the oath’s infringement of freedom of expression, as the Ontario courts have done, that impact is very limited. But if we consider the oath as an enlistment of the conscience of those who swear it for the rest of their lives, it is, I believe a rather more serious business.

Ultimately, the Canadian state does not care very much about the oath it exacts from its new citizens. One of the people who had challenged the oath to the Queen withdrew from the proceedings, swore the oath, and became a citizen. He then proceeded to write to the government telling it that he recanted the oath he just swore. The government wrote back saying that this didn’t matter. Now imagine, for a second, that you are testifying in court, and decide to tell the judge that you recant your oath to tell the truth ― and the judge tells you that this is fine, and just go on. Still, it is a reminder of the conflict between conscience and authority ― even if authority may not be inclined, in this instance, to fight as hard as it once did.

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In case you want to see more of my thinking on the matter of the citizenship oath, the paper I mention above is here. As for the Lord Acton quotes, they are drawn from his magnificent Lectures on Modern History.

Events Next Week

I’ll be visiting McGill and Yale next week. Come say hello!

Next Tuesday, the 29th, I’ll be taking part in a discussion on “Conscience and the Constitution in Canada” at the McGill Faculty of Law (specifically, in NCDH 101). I will be speaking on the conflict between freedom of conscience and state authority, in particular as it played out in the litigation about the constitutionality of the Canadian citizenship oath, about which I have written a great deal here. The other participant will be Brian Bird, a doctoral candidate at McGill, who will be speaking about the legal history of freedom of conscience in Canada. The fun starts at 1PM and goes on until 2:15.

By the way, this event is organized by the Runnymede Society, which is a new group that aims at fostering conversations and debates on matters constitutional in Canadian law schools, and in particular at presenting students with a broader range of views and perspectives than they might otherwise be exposed to. I think it is a very exciting and useful project, and I am very excited to be taking part in one of their first events. Thanks to the Runnymede Society’s president, Joanna Baron, for inviting me!

And next Thursday, the 31st, I will be moderating a panel on “Popular Sovereignty and a Québec Constitution” at the Symposium on Does Québec Need a Written Constitution?,which will be taking place at Yale, in Luce Hall (LUCE), Room 203. The proceedings start at 9:45, and the panel that I’ll be chairing ― and on which Maxime St-Hilaire (a sometime guest here at Double Aspect), Mark Walters, and Nelson Wiseman will be speaking starts at 1PM. Many thanks to Richard Albert, the convener of the Symposium, for inviting me to do this.

If you are able to attend either event, please come say hello!

The Swearing Show

Niqabs at citizenship oath swearing ceremonies are a big deal. Not really a big deal, mind you, because, as Radio-Canada reports, according to Citizenship and Immigration Canada, there have been exactly two women since 2011 who refused to go through with the oath because of the ban on the niqab which the government had illegally decreed. But politically a big deal. Yet while the niqab and the citizenship oath are the hot new celebrity couple of Canadian politics, all the attention is focused on the niqab, even though all that there was to say about it has already been said some time ago, by Emmett Macfarlane and by Tabatha Southey. If there was anything left to add, Andrew Coyne has added it. The oath, for its part, languishes in obscurity. I would like to remedy that.

You might think that focusing on the oath is a waste of time; that it is only a pretext for the Conservatives to score some political points by attacking the infinitesimal minority of Muslim women who wear the niqab. But why was this particular pretext chosen? After all, the same party is apparently uninterested by banning niqabs from the polling stations ― and yet you’d think that this would be at least as much of a bigot-vote-winner as banning them from citizenship oath ceremonies. So I think it is worth asking what is special about the oath.

There are two ways of seeing the citizenship oath. One is presented in the judgments of the Ontario courts that have upheld its reference to the Queen against a constitutional challenge by some anti-Monarchists who refused to swear “true allegiance” to Elizabeth II, her heirs and successors. The persons challenging the oath argued that the Queen symbolized inequality, privilege, and oppression. Not so, held the Superior Court of Justice in McAteer et al. v. Attorney General of Canada, 2013 ONSC 5895: “the oath to the Queen is in fact an oath to a domestic institution that represents egalitarian governance and the rule of law.” [65] For its part, the Court of Appeal for Ontario, in McAteer v. Canada (Attorney General), 2014 ONCA 578, held that the oath represented “a symbolic commitment to our form of government and the unwritten constitutional principle of democracy.” [62]

As I explained in a paper arguing that, contrary to the courts’ findings, the citizenship oath is indeed an unconstitutional violation of freedom of conscience, the other way of seeing the Canadian citizenship oath, as all loyalty oaths, is as an expression of the state’s fear of its new citizens’ disloyalty. I wrote that

if there is an implicit logic that can justify imposing the oath of allegiance on all would-be naturalized citizens, it is that they are all people whose commitment to Canada is doubtful (their decision to seek Canadian citizenship notwithstanding!), if not potential traitors. (158)

Otherwise, why is the oath even necessary? The government and the courts never answered this question (in part, one must admit, because the people challenging the oath did not dare ask it ― they accepted the principle of the oath unquestioningly).

To me at least, the role that the citizenship oath has come to play in the niqab controversy suggests that my jaundiced view of the oath is closer to reality than the courts’ optimistic one. If the oath were about equality, it would not be seen as an opportunity for singling out a minuscule unpopular group for legal retribution and public opprobrium. If it were about the Rule of Law, it would not be the occasion for bending legal procedures and ignoring legal advice in order to score political points. If it were about respecting our form of government, it would not be the scene of a blatant violation of the Canadian Charter of Rights of Freedoms. On the other hand, if what the oath really represents is a fear of the outsiders, of those who are different ― whether they think differently (like the anti-Monarchists) or dress differently (like the women who wear the niqab) ― and who are therefore said to stand against Canadian values and deemed disloyal despite the absence of any evidence of their disloyalty, then it makes a lot of sense for the oath to be treated in these ways.

We would do well, I submit, to ask ourselves again why exactly it is that we need an oath of citizenship. Mr. Coyne writes that “[n]o one else’s life is made the poorer because, somewhere in Canada, a women is swearing allegiance to this country with her face covered.” Nor are anyone’s rights infringed. That is true of course. But the same thing would be true if one simply became a citizen upon having satisfied a citizenship judge that one has met the legal requirements. The theatre of the oath-swearing can be dispensed with. The actors do not even understand their lines, and now we’re fighting over their costumes too. There are other shows in town more deserving of everyone’s time and attention.

No Blurred Lines

Last week, I published a lament for the Charter challenge to the Canadian citizenship oath, which the Supreme Court refused to hear, over at the Policy Options blog. Philippe Lagassé has published a thoughtful response, arguing that contrary what I have been saying all along, the case really was about “the legitimacy of the Crown” as a part of the Canadian constitution, so that its rejection was a good thing, because it prevented this legitimacy from being undermined. In particular, prof. Lagassé argues that

[h]ad the courts found that the appellants’ individual interpretation of the oath should trump the constitutional sense, the line between personal views and legal fact would have been blurred. The Crown would no longer have any definitive meaning; instead of personifying the Canadian state, the Queen could plausibly be whatever anyone believes she might be. Suffice it to say, we would not accept this with respect to other public institutions. Individuals are not free to interpret parliamentary statutes in any way they want, for example. Similarly, we expect court rulings to be respected, notwithstanding our personal disagreements with their reasoning. It’s unclear why we shouldn’t afford the Crown the same standing, except for the fact that the monarchy is contentious. If the case had gone the other way, the Crown would arguably have become a lesser part of the constitution as compared to Parliament and the judiciary, one that can be disregarded if it clashes with our personal beliefs.

As I’ve already stated here, I am a monarchist myself, and have no wish to see the Crown a lesser part of the constitution. Fortunately, however, that would not have been the consequence of a judgment in favour of those challenging the oath.

Indeed, there are two ways of arguing this point. One is to say that the government coercing speech is, regardless of that speech’s content a violation of the freedom of expression, which must be justified under s. 1 of the Charter. I will not elaborate on this point here, partly because I am hoping that Ben Oliphant will do so over at Policy Options (no pressure!), and mostly because I think that, although legally correct and sufficient, this argument obscures what is really going on with the citizenship oath.

The other response to prof. Lagassé’s concerns, which I find more attractive, addresses instead of avoiding the content of the oath. Indeed, it focuses on what is really distinctive about it. As I argue in greater detail in a paper published last year, an oath requires the oath-taker to work out for him- or herself the precise nature of the obligations he or she subscribes as a result of taking it. The oath will typically describe those obligations in inherently terms ― such as “allegiance” in the case of citizenship oath ― which are not only inherently vague but also require moral judgment in order to applied to specific situations.

This is in contrast to statutory commands and judicial decisions, to which prof. Lagassé compares the citizenship oath. The contrast with judicial decisions is perhaps most obvious. Court orders tell those at whom they are aimed exactly what to do. Pay the plaintiff 10 000$. Stop dumping your factory’s waste into the river. Re-write the statute within a year or see it become unenforceable. Indeed, impossibility to formulate a precise order can be reason for a court to refuse to intervene in a dispute.

Statutory commands aren’t always as definitive, because they can use standards as well as bright-line rules, the standards used in statutes normally appeal to understandings that are widely shared and the subject of substantial agreement among those whose behaviour is regulated (whether the society at large or some specific group). Perfection in this regard is unattainable, but complete failures ― statutes that fail to guide behaviour to the point of not lending themselves to meaningful judicial debate ― can be declared unconstitutional. We may have to consult a lawyer to figure out the meaning of statute, but we need not consult our consciences.

Swearing the citizenship oath requires one (if one takes the oath seriously, which admittedly most of those who take it probably do not) to do just that. Indeed the oath would be quite unnecessary if it did not. A citizen is already bound by laws regarding treason and others which set out his or her legal obligations to the state (or to Her Majesty as its embodiment). If the oath ― not just the specific oath to the Queen, but any form of citizenship oath ― is not to become entirely redundant, it must be regarded as imposing not legal obligations, but conscientious ones.

Once this is understood, the response to prof. Lagassé’s concerns becomes clear. Our legal system does not impose its own understandings on people’s consciences. And sometimes ― though not always ― it makes exceptions to its own rules in order to accommodate people’s conscientious objections. This does not mean that the rules to which we make exceptions lack a definitive meaning, or have a lesser standing than others, or that we blur the line between personal views and legal fact.

Consider the case of a Sikh student who wants to wear a kirpan to school. Let’s say the school considers the kirpan to be a weapon. The student, however, considers it to be a religious object, and wearing it a religious duty. The school can have a general rule prohibiting weapons ― but, as the Supreme Court has decided in Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, it must still allow the student to bring his kirpan. Now in Multani, the general prohibition did not define a weapon. But what if had done so, and the kirpan clearly fell within that definition? Surely, it would ― and should ― have made no difference to the Court’s decision. That decision would not have meant that the definition was unclear or unimportant, or that the student’s views could replace the “legal fact” of its meaning. What it would have meant is that, because of the conflict between legal fact and conscientious belief, the state had to justify (under s. 1 of the Charter) its insistence on overriding such belief, and that in this particular case, the state’s justification was unpersuasive.

Similarly, in the case of citizenship oath, the question is not whether the Crown has a definitive meaning in Canadian law, but whether the state has sufficient justification to impose this legal meaning on people whose conscientious understanding of a duty of allegiance to that Crown differs from the legal one. To acknowledge that the state doesn’t have good reason to do so would not have compromised the position of the Crown in Canadian law.

What Does This Mean?

Those of you who have been following this blog for a while will recall that I take a lot of interest in oaths; especially, but not exclusively, citizenship oaths. A paper of mine arguing that the Canadian citizenship oath is unconstitutional as an unjustified infringement of the freedom of conscience came out in the last issue of the National Journal of Constitutional Law. The key move in my argument is to say that, since oaths generally implicate the conscience of the persons who take them, their subjective interpretations of the obligations oaths impose on them are determinative, in the same way as religious believers’ interpretations of the requirements of their faith are, and courts are not entitled to tell them that they simply mistaken about the duties they subscribe by swearing the oath. You will also recall that Canadian courts have not seen it fit to embrace that viewpoint. Both Ontario’s Superior Court and its Court of Appeal (as well as, once upon a time, the then-Appellate Division of the Federal Court) have found that the citizenship oath is constitutional, holding that the anti-monarchists who objected to taking it were wrong to understand it as preventing them from holding their beliefs or engaging in pro-republican activities.

So of course I found Orin Kerr’s recent post over at the Volokh Conspiracy about the meaning of an oath, required of U.S. federal employees, to “defend the Constitution of the United States against all enemies … and … bear true faith and allegiance” to it very interesting. Interesting, but also, to me, unsatisfying.

Prof. Kerr notes that

[o]n its face, it’s not totally clear what it means to “defend the Constitution” and “bear true faith” to it. For example, some people support a constitutional amendment to repeal Citizens United, which would cut back on First Amendment protections. If you took the oath, are you obligated to oppose that amendment in order to faithfully defend the Constitution? Or imagine you work in a federal building and there’s a Christmas display that you think violates the Establishment Clause. Does your oath obligate you to take steps to stop the violation, and if so, what steps?

The first of these questions, especially, mirrors the dilemma faced by republicans asked to swear allegiance to the “Queen of Canada,” who must ask themselves whether this allegiance prevents them from holding on to and working to promote their reformist views.

But prof. Kerr accepts, unquestioningly so far as I can tell, that there is a truth of the matter about these questions; and, further, that this truth can be established by reference to history. Now this history is very interesting. The current wording of the oath, prof. Kerr explains, goes back to the aftermath of the Civil War, when the oath in that form was only required of former Confederate soldiers. Others could swear a more general ― though no less vague ― oath to “support” the Constitution. This seems to provide evidence for Liav Orgad’s claim, made in his excellent paper on loyalty oaths, that “the history of the oath is a history of fear,” specifically a fear of disloyalty ― a claim that I endorse and develop in my article. Only later was the obligation to take the oath to defend the Constitution extended to other federal employees, though prof. Kerr does not explain why.

Prof. Kerr concludes that this “historical context suggests” that the oath does not require federal employees

to oppose constitutional amendments or to take down questionable Christmas displays … [It] is probably best understood in its historical context as a promise to oppose political reforms outside the Constitution. You have to stay loyal to the government that is based on the Constitution, and you can’t support a rebellion or overthrow of that government.

This is more or less what the Canadian courts have concluded regarding the meaning of our citizenship oath. But, as I explain in greater detail in my other posts, and in my paper, this approach ignores the distinctive character of an oath. An oath is not a statutory command (though it is of course prescribed by statute). It is an imposition of vague obligations, whose precise significance the oath-taker has to work out for him- or herself, as a matter of conscience. Statutes can and must be authoritatively interpreted by courts, possibly with reference to the historical context in which they were enacted. But no court, in a free society, can tell a person what his or her conscientious duty is, for conscience is an internal tribunal, not answerable to any external one. If a person wants to look to history, or to law, or to anything else, in working out the meaning, to him or her of the oath ― that is to say, his or her conscientious duties ― good and well. But that’s his or her choice, and not, in Lord Acton’s words, the “sublime prerogative assigned to states, or nations, or majorities” ― or to judges.