Prerequisite: None

Exam Type: No Exam

The Constitution of the United States has two separate clauses requiring public officials to take oaths of loyalty. The best known, of course, is the oath taken by incoming Presidents in Article II. But Article VI also requires every public official, at any level of government, must take an oath of loyalty to the national Constitution. The latter was especially important because it signaled that we were leaving behind any notion of genuine state “sovereignty” to one of national “sovereignty.” I.e., former state loyalties would now be secondary to the loyalties required by the new constitutional order. An essential task facing supporters of the new Constitution was to create a distinct national sense of identity and loyalty to complement—or, ultimately, supplant—more provincial identities and loyalties. Robert E. Lee and Jefferson Davis, among many others, are evidence of the fact that the aim was not realized, that state loyalties dominated national ones for many people in 1861, with the result that 750,000 people died.

So one central question is what these oaths can possibly mean. Do we actually know what constitutes loyalty to the United States Constitution, so that, presumably, we could identify somone as violating the oath for anything short of Treason, which, of course, is identified as some overt acts in behalf of a country at war with the United States? If someone were charged with violating the oath, would we, as their defense lawyers, start out by pleading that the oath is simply “void for vagueness” with regard to giving adequate notice to any reasonable person as to what constitutes (dis)obedience? Jefferson Davis, as was true of many other Confederates, believed that the Constitution, correctly understood, allowed a “sovereign state” to withdraw from an essentially voluntary Compact of States.

These opening paragraphs assume a singular focus of loyalty, in this case to the country (or the Constitution). . However, the reality in which all of us live our lives features membership in multiple institutions that make their own claims of loyalty. Plural loyalties may create significant conflicts between or among them. Begin with the reality of dual citizenship, including (possibly, State and national citizenship within the United States, let alone citizenship in more than one country). Does this by definition generate the problem of “dual loyalty,” an accusation sometimes directed at “hyphenated Americans.” The United States for many decades rejected dual citizenship, requiring naturalized citizens to “renounce, abjure, and repudiate all loyalties to foreign princes and potentates.” (For Protestants, that included repudiation of Papal leadership.). The United States is now more generous, especially with US citizens, like Peter Thiel, say, who become citizens of another country after, in Thiel’s case, becoming a U.S. national. (He was born in Germany.) Should dual (or multiple) citizenship be encouraged and recognized as an aspect of the cosmopolitan world within which many of us live, or is there something inherently problematic about it.

But consider as well the loyalties owed to (or expected from) one’s intimates, including family and friends. We will look at testimonial privileges that allow, for example, a spouse to refuse to give important, useful testimony to the state or a priest to testify about what criminal misconduct someone might have confessed. The late Charles Fried wrote an important article The Lawyer as Friend, which we shall read, in which he defended the sometimes extraordinary obligations of loyalty owed by lawyers toward their clients by presuming, in effect, that friendship implies levels of loyalty that may, on occasion, generate a variety of dilemmas. Does “zealous representation” require indifference to the harm one’s client may wish to inflict on others, including the society at large?

Obviously, these questions cannot possibly be covered fully in full in the six sessions of our reading course. But my hope is that we can explore some of the dilemmas and leave with a better sense of what is at stake. A number of readings will be drawn from a book of essays, The Virtue of Loyalty, which takes on the question of whether loyalty is in fact always a virtue, or whether “blind loyalty” is in fact something to be worried about. And does the notion of “blind loyalty” have limits? That is, might we speak of someone being blindly loyal to the state, her family, her political party, or any other entity to which one might in some sense expect loyalty?

An auxiliary question involves the importance we place ontaking an oath. They are an ancient practice, often presented within an explicitly religious context. But they have obviously maintained themselves into our own society, even if we accept Max Weber’s notion that we are all, in important respects, “disenchanted.” So what, for example, do wedding vows of lifetime loyalty mean in a society that freely accepts the possibility of no-fault divorce? Has the meaning of such vows changed over time, and this true of oaths in general

The readings will be drawn from a variety of disciplines, including some relevant law cases and philosophical analyses of the concept of loyalty. As always, there is no requirement of an examination or formal paper, but, also as always, each student will be asked/required to present one “response paper” to some aspect of the readings assigned for a particular week, The point of the response papers is to provide an agenda for class discussion during the particular week it is written.

Note: This reading group will meet on the following dates: TBD.