Constitutional Contract Law

Loyalty Oaths

Loyalty oaths are statements used as a condition of employment. Their purpose is to try to force individuals from “certain associations, beliefs and principles.” They have been used continually since the Revolutionary War and continue to be used although their use has diminished. This is possibly due to the increase in legislation over loyalty oaths during the late 20th Century. Most loyalty oaths during the Cold War were worded to exclude membership in any communist organizations.

Revolutionary and Civil War oaths most likely held the greatest advantages to military recruitment. During these wars, the logistics of home-front wars pitted brother against brother, family against family. The allegiance of the soldier would be of strategic importance to the commanders.

There are legitimate uses for loyalty oaths, even if it may only provide a “psychological” reassurance of faithfulness. The oaths are not expressly forbidden, and in fact are required in certain circumstances, specifically in Article 2, Section 1, Clause 7 of the Constitution for the swearing in of presidents; and, Article 6, Clause 3 for federal and state public officials. The requirements of these express oaths does not interfere with the First Amendment because the oaths only ask for an “acknowledgment of a willingness to abide by constitutional processes of government (Warren, 228). Still, there is great potential for abuse of such power in these extraordinary examples of discretionary power.

The only role that Loyalty Oaths play in American politics are as a negative response. For example, post WWII, President Truman instituted additional security responses. In the face of McCarthyism, the courts generally upheld the loyalty oath as constitutional employee dismissals. For example, in the 1951 Gamer v. Board of Public Works, the courts found loyalty oaths a reasonable employment demand, and applicants refusing to sign the loyalty oaths would not be considered. Under the Truman administration, this “additional security” allowed government to dismiss public workers if “evidence existed which cast doubt on their loyalty” (p. 226). The worker did not need to commit acts, overt or subtle, of disloyalty; they need only be accused. Eventually, the burden of proof that an employee was disloyal would be placed on the government. The implementation of enforcing the defiance of loyalty oaths in general would seem of great administrative costs to prosecute. Therefore, in most cases, the Loyalty Oaths are empty laws devoid of any contemporary advantages. In fact, writes Warren, “loyalty oaths, even if they exist, have no teeth and play no significant role in the American political system today” (p.228).


Warren, Kenneth (1996)Administrative Law in the Political System. Prentice Hall: New York.