pulsion of loyalty oaths. The universal failure of this means to achieve the end has rarely deterred other despots from employing it. Almost from the inception of the Roman Empire, oaths of loyalty to the emperor were required of Romans to establish their fealty to the state. During the third century, the Roman emperor Decius sought to assure the loyalty of all to the imperial religion by imposing upon every householder the obligat. to take an oath of loyalty to that religion and to obtain a certificate of that fat from a government official. Roman police made a house to house inspect for certificates, and those who were unable to produce such certificates were either exiled or put to death. The purpose of the decree was to combat Christianity, but its ineffectuality was attested by the rapid growth of Chris tianity thereafter and its adoption as the official imperial religion within a century. (Pfeffer, Church, State and Freedom, p. 11.) Sir Thomas More refused to take an oath recognizing that Henry VIII® marriage to Catherine had been void. For this refusal he was executed fr treason. (Fisher, History of England From the Accession of Henry VIII the Death of Henry VIII, in 5 Political History of England, 353.) In 1606, during the reign of James I, an act was passed (3 Jac. I. ch. 4 requiring a long oath avowing that James was the lawful king and declaring that the Pope was without power to discharge his subjects from allegiance t him. The oath was required of all persons holding a variety of government positions. The English Corporation Act of 1661 required all those holding or seeking office to declare under oath their belief in the unlawfulness of taking arms against the king and to disclaim any obligation under the Solemn League and Covenant of the Puritan Church. (13 Car. II, stat. 2, c. 1). In 1662, the Act of Uniformity required every minister to take the Corporation Act oaths (14 Car II, c. 4). A noted English historian commented as follows on these English test oaths: "By another act, no one could serve as a vestryman, unless he made a declaration against taking up arms and the covenant, and engaged to conform to the liturgy ***This, again, was succeeded by a new test, by which the clergy were required to swear that it was not lawful, on any pretense whatever, to take up arms against the King. This test, conceived in the spirit of the High Church, touched the consciences *** of the Calvinistic clergy, many of whom refused to take it, and further swelled the ranks of dissent. While the foundations of the church were narrowed by such laws as these, nonconformists were pursued by incessant persecutions. Eight thousand Protestants are said to have been imprisoned, besides great numbers of Catholics. Fifteen hundred Quakers were confined, of whom 350 died in prison" (2 May, Constitutional History of Eng land 173-174). In this country experiments with loyalty and test oaths accompanied and followed our war for independence. Speaking of such an oath adopted by the New York Legislature in 1783, Alexander Hamilton said: "*** let it be supposed that instead of the mode of indictment and trial by jury, the legislature was to declare that every citizen who did not swear that be had never adhered to the King of Great Britain, should incur all the penalties which our treason law prescribes. Would this not be* ** a direct infringement of the Constitution? * * * it is submitting a new and arbitrary mode of proseen tion to that ancient and highly esteemed one, recognized by the laws and the constitution of the State-I mean the trial by jury" (4 Works of Hamilton, Fed. ed. 1904, 269–270). After the Civil War similar experiments were made, but an end was put to them speedily by two imporant decisions of the U.S. Supreme Court: Cummings v. Missouri, 4 Wall. 277 (1867), and Ex parte Garland, 4 Wall. 333 (1867). Generally, up until recent years our Nation has not been hospitable to loyalty or test oaths. "The test oath," the Supreme Court said as recently as 1946, *18 abhorrent to our tradition" (Girouard v. United States, 328 U.S. 61, 69). The long history of such oaths in the Old World convinced the American people that they were not only ineffectual to secure loyalty, but that indeed they were selfdefeating. However, the great fear which gripped our country in the decs de immediately following the conclusion of World War II gave rise to a host of IIconsidered, panic-induced measures predicated on the completely erroneous as sumption that disloyalty was widespread among our citizens and that the Amer can people could not be trusted to preserve and defend American democracy Foremost among these measures was the host of loyalty oath statutes that spran up throughout the country. We had hoped that this deplorable chapter in American history was closed. Unfortunately, the addition of the loyalty oath provision to the National Defense Education Act indicates that vestiges still remain. THE CLIMATE OF AMERICAN PUBLIC OPINION Nevertheless, we submit that American public opinion today is far ahead of the spirit manifested in the enactment of the loyalty oath provision last year. The American people have recovered from the great fear and are ready to take a calmer and more rational view of measures that seek to restrict liberty purportedly in the interests of national security. American public opinion had no opportunity to express itself in respect to the loyalty oath requirement in the National Defense Education Act because the provision was added in camera without notice to the public. Once the presence of the requirement became known, public reaction and public revulsion was widespread and spontaneous. The Madison (Wis.) Capital Times, February 10, 1959, declared editorially: "The provision *** was another manifestation of McCarthyism. It reflected again the hysterical suspicions that were aroused toward education during the McCarthy era. "This kind of an oath in order to qualify for scholarship aid is not required of other groups that receive aid. It is flatly discriminatory against scholars and in that sense helps defeat the very purpose of the Education Act. "Even if there were some practical way to enforce it, it would still be ineffective. It penalizes the very people we want and expect to have the searching, inquiring minds that are most apt to be asking the challenging questions that need to be asked if freedom is to provide the long-range benefits intended." The San Francisco Sunday Chronicle, February 22, 1959, said: "The faculty of the University of California, as represented by the Berkeley chapter of the American Association of University Professors, is again joined in battle with the nine-lived, multiform special loyalty oath. "This time the professors are asking the administration to withdraw from the student loan program of the National Education Act of 1958. It requires applicants to sign a non-Communist affidavit as well as an oath of allegi ance "None object to the requirement for an oath of allegiance. All resent the special requirement of a non-Communist affidavit, holding it a threat to academic freedom, a slur upon all college students, a useless obeisance to the diehard vestiges of McCarthyism ** "For all the reasons cited above, and doubtless for others, this special nonCommunist requirement is offensive and mischievous***. The Washington (D.C.) Post and Times-Herald, February 1, 1959, called the loyalty oath requirement "an insult to students and teachers" which should be promptly eliminated. The Boston (Mass.) Morning Globe asserted that the requirement was "excess baggage" which may keep from the program inquiring young minds. The Pittsburgh (Pa.) Post-Gazette, February 3, 1959, pointed out that the "loyalty oath provision was tagged onto the bill from the floor at the last moment before passage, with scant debate and little publicity. *** Now that it has had time to reconsider what it adopted so hastily, Congress should abolish the unnecessary and offending oath." The Minneapolis Daily Star, February 8, 1959, said that: "To imply that a student seeking a loan is more of a security risk than any other citizen of these United States is an insult to higher education in general and to the student in particular. It is ironic that an otherwise commendable act designed to aid education contains a stipulation which represents the epitome of anti-intellectualism." The foregoing are merely a sampling of the overwhelming editorial opinion in America's leading newspapers in opposition to the loyalty oath requirement. The world of education has been even more unanimous in its condemnation. Arthur S. Flemming, Secretary of Health, Education, and Welfare stated that the provision would do little or no good since genuinely subversive individuals would have no scruples about signing such an affidavit and taking such an oath. Dr. A. Whitney Griswold, president of Yale University, condemned the provision and stated that loyalty oaths "are at best odious, at worst a potential threat to our profession *** and seem to represent a lack of confidence in our young people and their future as well as in the educational process itself. Loyalty oaths are worse than futile. They tend to alienate the goodwill of the loyal citizens without gaining a corresponding advantage in protecting the public against the actions or intentions of the disloyal" Dr. Griswold's views were endorsed by Dr. Nathan H. Pusey, president of Harvard University, and Dr Robert Francis Goheen, president of Princeton University. Dr. Hugh Borton, president of Haverford College, declared that signing a affidavit of loyalty is "tantamount to signing away one's right to freedon < thought as well as endorsing a Government action which makes the individua.. opportunity for education contingent upon his personal beliefs." President Gould of Carleton College noted wryly that “we give $6 billion to the farmers but don't expect any loyalty oath." Brother Augustine Philip, F.S.C., president of the Roman Catholic Manhattan College, declared that "the imposition of a loyalty oath upon those who seek to obtain loans from the Government is essentially ineffective. It will neither insure loyalty nor ferret out disloyalty. Manhattan College is opposed to such devices as setting up needless complications to be met in the administration of the act." Other university presidents that have spoken out against the loyalty oath requirements in the National Defense Education Act include the presidents of Bates, Bowdoin, Colby, Emory, and Wisconsin. In addition, at least six inst tutions of higher education, Antioch, Bryn Mawr, Haverford, Princeton, Reed and Swarthmore, have declined to accept funds under the act by reason of the oath requirement. Finally, the General Board of the National Council of Churches of Christ, the foremost Protestant organization in the country, has adopted a resolutie strongly condemning the requirement. Calling for repeal of the provision, the general board stated that the requirement was ineffectual, since "persons gear inely disloyal to the United States would not hesitate to sign, rendering the affidavit useless." More important, the board stated, was its objection based upon its "commitment to the God whose service is perfect freedom, a commitment solemnly expressed in the Declaration of Independence. We believe that H.s service and that of our country, is best performed by free students engaged in a free search for truth in a free university. The required affidavit is incompatible with the true freedom implied in this commitment." The genera: board also noted that the American political system rests firmly on trust in the integrity and loyalty of its free citizens, “a trust fully justified." But, the board concluded, the requirement of an affidavit denying disloyalty implies tha "this trust no longer exists." One of the most eloquent statements reflecting the traditional American be tility to loyalty oaths is contained in the recent concurring opinion of Justice Black in the case of First Unitarian Church v. County of Los Angeles (78 S. Ct. 1350, 1354 (1958)): “Loyalty oaths, as well as other contemporary 'security measures,' tend to stifle all forms of unorthodox or unpopular thinking or expression-the kind of thought and expression which has played such a vital and beneficial role in the history of this Nation. The result is a stultifying conformity which in the end may well turn out to be more destructive to our free society than foreign agents could ever hope to be. The course which we have been following the last decale is not the course of a strong, free, secure people, but that of the frightened, the insecure, the intolerant. I am certain that loyalty to the United States car never be secured by the endless proliferation of 'loyalty' oaths; loyalty mast arise spontaneously from the hearts of people who love their country and respect their Government. I also adhere to the proposition that the 'first amendmet” provides the only kind of security system that can preserve a free governmentone that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us.'" THE UNCONSTITUTIONALITY OF THE LOYALTY OATH REQUIREMENT We submit that the loyalty oath provision in the National Defense Education Act is not only unwise, but unconstitutional as well. The oath goes much for ther than the one only recently invalidated by the Supreme Court in Speiser Randall, 78 S. Ct. 1330 (1958). That case involved a California statute what required that every applicant for any form of tax exemption sign an oath reading: "I do not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means, por advocate the support of a foreign government against the United States in evine of hostilities." This statute, it should be noted, was aimed at advocacy, ie, n′′ overt act committed by the specific person involved. The loyalty oath requirement goes much further. It interdicts not merely advocacy but membership in an organization that advocates, even if the individual student seeking the loan does not himself engage in the proscribed advocacy. Moreover, it does not even require the act of membership to disqualify the student from the benefits of the act; it is sufficient if the student believes in the overthrow of government by force or unconstitutional means. It proscribes a mere state of mind, unaccompanied by any overt conduct of any kind. This goes far beyond the encroachment upon liberty assailed in Speiser v. Randall. It represents an attempt by Government to control thought and belief. It seeks to use the benefits of the Education Act to control not merely speech but thought as well. Such an attempt, we submit, is not only completely alien to our democratic traditions, but violative of our Constitution as well. That the benefits of the act are not a right but only a privilege is immaterial. In the Speiser case the Supreme Court made it expressly clear that conditioning of a privilege upon relinquishing of a right guaranteed by the Constitution is as unconstitutional as a direct deprivation of that right. Tax exemption, like loans under the Education Act, is only a privilege. But the Court held it unconstitutional to deprive a person of that privilege merely for refusing to sign an affidavit of nonadvocacy. If an affidavit of nonadvocacy cannot constitutionally be required as a condition precedent to obtaining a privilege from Government, an affidavit of nonbelief can certainly not be required. Liberty of belief is as absolute a liberty as is conceivable in a democratic society. "Freedom to think," said the Supreme Court in Jones v. Opeleika (319 U.S. 103, adopting the dissenting opinion in 316 U.S. 584, 618), "is absolute of its own nature; the most tyrannical government is powerless to control the inner workings of the mind." According to Blackstone, the Greek tyrant Dionysius is "recorded to have executed a subject barely for dreaming that he had killed him; which was held for sufficient proof that he had thought thereof in his waking hours" (4 Blackstone, Commentaries 79, 6th etd.). Our tradition has always deemed repellant governmental attempts to regulate and control what people believe and think. (See Cantwell v. Connecticut, 310 U.S. 296, 303.) It has opposed such attempts whether they were made directly through compulsion, or indirectly through bribery and material inducements. The Supreme Court held in the Speiser case that the First Amendment prohibits Government from seeking to purchase the silence of citizens in respect to matters of public interest. It held that the privilege of tax exemption may not constitutionally be employed to achieve that end. We submit that the privilege of a loan under the Education Act can similarly not constitutionally be employed to purchase silence not only of tongue but of mind as well. Every reason stated by the Court for invalidating the loyalty oath provision in the California tax statute is applicable with far greater force in respect to the loyalty oath provision in the National Defense Education Act. CONCLUSION For these reasons we urge the elimination of the loyalty oath requirement in the National Defense Education Act of 1958 through the enactment of 8. 819. AMERICAN FARM BUREAU FEDERATION, Subject: S. 819. Hon. JAMES E. MURRAY, U.S. Senate, Washington, D.C. DEAR SENATOR MURRAY: The American Farm Burean Federation, a federation of 50 member organizations in 48 States, Puerto Rico, and Hawail, wishes to express to you and other members of the subcommittee the stated belief of the 1,575,000 farm families who are Farm Bureau members, that sorialism, fascism. communism, and other forms of totalitarianism should be oppowed wherever and in whatever form they may be found. Because of this belief and for other reasons enumerated in this letter, we oppose passage of S. 819 and other bills now before your subcommittee to amend the National Defense Education Act, by striking section 1001 (f) the provision dealing with the loyalty oath and disclaimer affidavit. The American Farm Bureau opposed the passage of the National Defense Education Act on the grounds that it was unnecessary and would inject int our State and local education programs Federal controls. Since the American Farm Bureau is an organization of farmers we are very conscious of the willingness of the Congress to establish controls. We do criticize the Congress we simply wish too make it clear that we believe it folly to imagine a program of Federal aid and without Federal control. When it was obvious that the Congress was going to pass the National Defense Education Act, Farm Bureau worked diligently to obtain adoption of the Senate amendment that established the loyalty oath. We sincerely believe the loyalty oath requirement is a very necessary and important part of the National Defeise Education Act since its stated purpose is to strengthen our national defense. It seems to us that recipients of scholarships or payments should be perseas so dedicated to the Constitution of the United States of America and the free enterprise system that they would welcome the opportunity to declare thenselves as true Americans. We doubt seriously the contribution that would be made by recipients that felt otherwise. No doubt if the scholarship or payments provided by the National Defense Education Act accomplishes the purpose of providing the means for recipients to obtain technical training and knowledge in subjects that w strengthen the national defense of the United States, they will also posses knowledge and technical training that could be of major assistance to enemy countries. It is an established national policy that Government officials, members of the Armed Forces, and others vitally concerned with our national defense are required to declare their unqualified support of the Constitution of the United States. In view of this, we see no reason why recipients of scholarships or payments under the National Defense Education Act should be exempt from the preseat loyalty oath and disclaimer affidavit. We believe that every loyal citizen should be ready and willing at any time to assert his loyalty to the United States and to answer freely and unreservedly any questions affecting such loyalty, and that only citizens who do so should be eligible to receive the benefits provided by the National Defense Education Act. The American Farm Bureau Federation appreciates the opportunity of expressing its views on this important matter and respectfully requests that this letter be included in the Record. Sincerely, JOHN C. LYNN, Legislative Director. AMERICAN ASSOCIATION OF LAND-GRANT COLLEGES AND STATE UNIVERSITIES, Senator JAMES E. MURRAY, Chairman, Education Subcommittee, Senate Committee on Labor and Public Welfare, DEAR SENATOR MURRAY: In connection with current hearings of your committee on S. 819, amending section 1001 (f) of the National Defense Education Act. the executive committee of the American Association of Land-Grant Colleges and State Universities has authorized me to submit the following statement for the record: "Resolved, That this association is opposed in principle to the requirement of disclaimer affidavits, except in cases of employment clearly and directly related to national security." Our committee felt that its action should not be taken solely in relation to the disclaimer-affidavit section of the National Defense Education Act, since the disclaimer affidavit is required in or has been proposed in connection with other Federal legislation, in which it is considered equally objectionable. Sincerely, RUSSELL I. THACKREY, Executive Secretary. |