Abstract
Expression of belief can be free only with a background of freedom to be silent. Individual liberty flourishes when the state and society are excluded altogether from the realm of private individual belief. While guarding against abuse of governmental power, very carefully specified limits to the dissemination of racist, bigoted beliefs might be acceptable in a free society. But legal or social intrusion into privately held belief is not consistent with individual liberty. Oaths, the Pledge of Allegiance, and intrusive questioning of creedal and political belief or personal feelings must be treated with great suspicion in a liberal society. The right of silence has a more central place within the realm of liberal principles than the right to disseminate.
I am grateful to Deirdre Golash for her comments, which led to significant improvement of this essay.
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Notes
- 1.
John Adams, “The Report of a Constitution, or Form of Government, for the Commonwealth of Massachusetts,” in The Revolutionary Writings of John Adams (Indianapolis: Liberty Fund, 2000), 311. Adams wrote the Massachusetts Constitution, including the religious test oath, except for the provision of tax support for religion and the special status accorded Harvard, which were added in committee. At the age of 85, Adams was elected to the Convention to revise the Massachusetts Constitution and tried unsuccessfully to secure complete religious freedom. See David McCullough, John Adams (New York: Simon & Schuster, 2001), 631.
- 2.
Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 33, 325.
- 3.
John Stuart Mill, “On Liberty,” in The philosophy of John Stuart Mill: ethical, political, and religious, ed. Marshall Cohen (New York: Modern Library, 1961), 278; for a clear account of the role of social coercion, see 221–225.
- 4.
James Madison, Notes of Debates in the Federal Convention of 1787 (New York: W. W. Norton, 1987), 561.
- 5.
Amar, 22. Madison’s “prophetically numbered Fourteenth Amendment” also protected freedom of the press and trial by jury from infringement by the states. It died in the Senate.
- 6.
Ralph Ketcham, James Madison: A Biography (Charlottesville: University Press of Virginia, 1990), 165.
- 7.
“Faith & Politics: What He Believes,” Newsweek, July 21, 2008.
- 8.
Ibid, 320.
- 9.
William B. Sprague, Annals of the American Pulpit; or Commemorative Notices of Distinguished American Clergymen of Various Denominations, From the Early Settlement of the Country to the Close of the Year Eighteen Hundred and Fifty-Five, v. 5 (New York: Robert Carter & Brothers, 1861), 394.
- 10.
Separately from American constitutional issues of religious liberty, Mill explains the irrationality of injecting religious belief into any oath taking in “On Liberty,” 219–222.
- 11.
Also note the list of offices in Amendment XIV, Section 3. I explain the relevance of this Section to the question of citizen oaths below.
- 12.
Donald S. Lutz, ed. Colonial Origins of the American Constitution: A Documentary History, (Indianapolis: Liberty Fund, 1998), 303–304.
- 13.
Ibid, 227.
- 14.
Ibid, xxxvi–xxxvii.
- 15.
Ibid, xxxv–xxxvi.
- 16.
For a subtle commentary, see William Ian Miller, Faking It (Cambridge: Cambridge University Press, 2003), 9–13. Mill’s point about requiring oath takers to express belief in God is also pertinent: only those (but not all of those) who take expressions of belief seriously will resist the pressure to conform in public, and so actual belief cannot be authenticated by public conformity, where reputation and other benefits and burdens are at stake.
- 17.
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Despite this decision, attempts to coerce expression of belief through the Pledge continue, modified with various opting out clauses that purport to make the legislation consistent with Barnette. See Frazier v. Winn, 535 F.3d 1279 (11th Cir. 2008). The court considered a Constitutional challenge to the Florida Pledge of Allegiance statute, section 1003.44(1), Florida Statutes (“Pledge Statute”), which applies to students at all grade levels from kindergarten to twelfth grade: “The pledge of allegiance to the flag … shall be rendered by students... The pledge of allegiance to the flag shall be recited at the beginning of the day in each public elementary, middle, and high school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge. When the pledge is given, civilians must show full respect to the flag by standing at attention, men removing the headdress, except when such headdress is worn for religious purposes….”. The court held that a straightforward construal of the statute’s requirement to stand at attention applied even to those excused from the pledge, and that this severable provision therefore violates the First Amendment. The court did not invalidate the parental authority provision as such, but left open the possibility that as applied to older students the balance might sometimes tip toward protecting the student’s separate right to freedom of expression rather than the parental right to rear children. From my perspective, the opting out procedure places both the student and parents in the position of having silence taken, correctly or incorrectly, as an expression of disloyalty. Also see Wooley v. Maynard, 430 U.S. 705 (1977), holding that New Hampshire violated the First Amendment by requiring all automobile vehicles to bear license plates with the state motto, “Live Free or Die.” The opinion relied upon Barnette, and proclaimed that the state is not authorized to require that individuals profess ideological views they find unacceptable.
- 18.
Keyishian v. Bd. of Regents, 385 U.S. 589 (1967).
- 19.
Friedrich A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), 257.
- 20.
In 2008 California State University, Fullerton reversed its decision to terminate the employment of Wendy Gonaver, who had refused to sign the loyalty oath unless she was allowed to attach a pacifist qualification. In a compromise the University allowed a revised statement to be attached. On my view, no oath is reasonably required of such employees, with or without attached qualifications.
- 21.
Mill, “Utilitarianism,” 331–335.
- 22.
Consider, for example, Mill’s reference to “the judicious utilitarianism of Aristotle,” in “On Liberty,” 213.
- 23.
Ibid, 248. Mill explicates the idea of the intrinsic good of individuality as a component of well-being throughout the chapter, but especially in the first nine paragraphs: 248–258.
- 24.
Ibid, 257.
- 25.
Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1983), 86.
- 26.
Hayek, 155.
- 27.
Joel Feinberg, “The Concept of an Absolute Constitutional Right,” in Freedom of Expression, ed. Fred R. Berger (Belmont, CA: Wadsworth, 1980), 83–84.
- 28.
Robert Bolt, A Man for All Seasons (New York: Vintage Books, 1990), 95.
- 29.
Ibid, 98.
- 30.
Mill, “On Liberty,” 289.
- 31.
Marshall Cohen, “Introduction,” in Ibid, xxxii.
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Henley, K. (2010). Oaths and the Pledge of Allegiance: Freedom of Expression and the Right to Be Silent. In: Golash, D. (eds) Freedom of Expression in a Diverse World. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8999-1_12
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