By Geoffrey R. Stone|March 11, 2008
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.
