Do You Swear You're Not A Subversive Person?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Matt: That I will support the constitutional laws of the United States of America and will, by precept and example, promote respect for the flag. When I say those words out loud and put my right hand up, does that make me believe those things?

0:00:18 Jenessa: When your behaviors and your words do not line up with your values, that creates this really uncomfortable feeling. You are going to seek to resolve that. How do I get rid of this ick?

0:00:36 Jenessa: Welcome to Opening Arguments, the podcast that analyzes law and the news. With me is Matt Cameron, immigration attorney.

0:00:43 Matt: And with me is Jenessa Seymour, former scientist and current voting rights attorney. And Jenessa, I just have one question for you before we begin. Are you now, or have you ever been, a podcaster?

0:00:55 Jenessa: I plead the fifth. Am I allowed to do that one on an oath?

0:01:01 Matt: I understand how you might want to disclose, may not want to disclosure some associations, particularly seedy associations, with this program. Yes, today we're talking about loyalty oaths, which unfortunately has become kind of relevant in maybe the last 10 years or so, maybe, I don't know. More and more so in the last few months. But this is, of course, in our continuing series on some of our favorite cases from the Warren Court era. And I wanted to talk about one that's not very well known, even in this genre of cases, not very Well -known. It's called Begott v. Bullitt, which is a fantastic name, just a lot of fun to say. I've been enjoying it, from 1964. So we're going to talk a little bit about the history of loyalty oaths in America and elsewhere, and how this sort of fit into the McCarthy era, how the Supreme Court handled the McCarthy area, both good and bad, and kind of where things stand today. So I've got a lot to talk about, and plus some science, as I understand it.

0:01:52 Jenessa: I'm really excited to talk about how this can actually affect our belief system it's it's pretty complex the way it interacts with how we think about ourselves and our

0:02:04 Matt: Makes a lot of sense. I never thought about it before, but I look forward to talking about that. So yeah, let's take a break, come back, and get started on pledging our loyalty to whatever we're talking about here.

0:02:14 Jenessa: Values mm

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0:02:18 Matt: Weeks ago about anti -Americanism as a candidacy thing for citizenship, for naturalization, about the idea that the Trump administration could look for evidence of anti - American association activities. And of course, that sounds very familiar to anybody who knows the basic history of the 20th century. Certainly a lot of looking for anti -americanism. You got the Red Scares in 1918 and onward. And then of course the McCarthy era that I'm sure most people are familiar with. When you're talking about the history of loyalty oaths specifically, Specifically, I wanted to sort of make sure we know what we're talking about here. For example, you and I both have sworn an oath to be lawyers because we have to swear an oath for the Constitution and upholding our system of government. I didn't really have any trouble taking that one.

0:02:57 Jenessa: Yeah part of the constitution says you're allowed to change the constitution so my oath includes I don't like certain parts of

0:03:05 Matt: It's one of my favorite parts of the Constitution. It's also one of the least useful ones, unfortunately. So, you know, we all have to occasionally take oaths to get to certain places to do certain things, but I'm talking about sort of the more authoritarian, draconian kinds kinds of oaths that, especially in this case, that are just too vague to be actually useful to anybody and are just designed to catch you, basically. And so I want to talk a little bit about some of that history. Now, just outside of the United States, I have to mention, of course, the Third Reich, because I have been mentioning quite a lot recently. Hitler very famously made all civil servants, including judges and lawyers, take an oath. As of 1934, I swear I will be faithful and obedient to the leader of the German Reich and people, Adolf Hitler, to observe the law and to conscientiously fulfill my official duties so help me God. So a personal loyalty oath to the Fuhrer was required. And imagine just like waking up one day and just to continue being a lawyer or judge, you have to take that oath to the leader of the United States. Pretty gross. You also had to sing both Deutschland Ober alles and Horst Veselin. You had to say two songs as if it were painful enough to take an oath to Adolf Hitler.

0:03:08 Jenessa: It unfortunately lately so I guess if you're tone deaf you're just out

0:04:16 Matt: You're out. No more civil service. And we'll talk more about sort of what the effects that might be. But I did want to note that only, as far as history records, only one judge refused to take this oath. Imagine that. You've been a judge in Germany your whole life, and suddenly you're taking an oath not to the constitution or the legal system. It does say to observe the law, but your first oath is to Hitler.

0:04:34 Jenessa: That does feel very meaningful that his name was the very first thing and then all these that is usually relevant the the first thing and then these other things

0:04:42 Matt: Yeah, the order. Sure. Full credit to Martin Gaudier, who refused the oath. He actually wrote in a letter to his brother that he was not going to give Hitler a blank check to exert his will. Sounds familiar. But good for him, actually. He actually didn't have any consequences. It was a little surprising he was able to resign and leave. He did later get imprisoned for desertion because he opposed the war, but he sounds like he's a pretty conscientious guy all around. It was early enough, I think, that they weren't just locking people up as soon as they refused to take the oath.

0:05:07 Matt: Oaths can have many purposes, and we'll talk about maybe what the more scientific sort of understanding of it is. But of course, one of the main reasons that the oaths we're going to talk about existed was so they could prosecute you later, because it was actually under oath. It perjurer's testimony, right, potentially, that you'd be swearing to. So if you say that you have no associations or that you you believe or don't believe certain things, they could prosecute you later. But I did want to mention before we get going in the McCarthy stuff, there was actually a history of loyalty oaths after the Civil War during Reconstruction, where you had to swear that you had never basically been involved in waging war against the United States, which would be nice to know that you've always supported the United Saints, the Union. And there were two cases for that because the Missouri Constitution actually was amended in 1865 to require an oath of past loyalty to the United State to teach or hold office. And then there was a similar one in ex parte Garland in 1866 as well, where you had to swear that, since I've been a citizen, I've voluntarily given no aid, countenance, counselor, encouragement to persons engaged in armed hostility thereto. Which all sounds fine, except that you're talking about past conduct. You're talking About an oath as to things you did in the past. So the Supreme Court found that was actually ex post facto, that you were passing a law to punish something after the fact,

0:05:05 Jenessa: Oh interesting oh oh interesting

0:06:16 Matt: And that it actually constitutes a bill of attainder, which is when you take something from somebody without due process or judicial process.

0:06:23 Jenessa: Interesting it's really interesting too that they said to hold office like I think you know we can understand why you would want it to be somebody who's loyal to the u .s serves the u -s but it's interesting they include teachers in that as

0:06:23 Matt: Yeah, I thought that was interesting. Interesting. Yes.

0:06:39 Jenessa: Well arguably in the south that would have been really nice if they would stop teaching like the war of northern aggression that's been a huge problem problem that the South continues to not teach slavery.

0:06:47 Matt: It is interesting too, because reaching through the cases we're going to talk about, there are dozens of loyalty oath cases. And I was having a little trouble sort of sorting through them all, trying to get the holding straight, trying understand the history of this. It's pretty convoluted, but most of them, I think I can say pretty confidently involve teachers, especially during the Cold War. They thought it was especially important that we didn't have teachers that had any kind of association with leftist or communist ideas.

0:07:10 Matt: The Supreme Court has kind of wavered even over the course of a decade or so that we're going to talk about, about loyalty oaths and how they feel about them and how they apply them. And the case that we're going to talk about I think today, Beckett v. Bullitt, is kind of the high point when they were being the most favorable to individual civil rights. They weren't always quite so. So a lot of what we're gonna talk about is kind of the shadow of Joseph McCarthy and the House on American Activities Committee, which of course was investigating alleged communism throughout the United States. And there were some communists in the United States in high positions. It did happen. Certainly not as many as McCarthy said. Stood up and waved a list around and said they did a list, he never had a list. He was always pretty paranoid, didn't really have a lot to back it up. I actually just, for fun as I was preparing this, because I do like to try to get a number of backgrounds, I tried to listen to a book defending McCarthy and saying that he was essentially right. Yeah, it's pretty great. It starts out with the guy trying to find McCarthy's grave, which is kind of a hidden secret in Wisconsin, apparently. I didn't find it to be very convincing. I listened to a couple of chapters and it's written, of course, by some dark money Claremont type guy. As with all of these things, history tells very variations of things that happened, right? And there were some communists in government, there weren't very many. And a lot of people's lives were ruined by the McCarthy hearings and by the Hollywood madness, especially in all the blacklisting.

0:08:30 Matt: The author tries to make a point that I found pretty unconvincing that Stalin ruined many more people's wives. And I was like, well, yeah, he had gulags. Of course he ruined more people'S lives.

0:08:37 Jenessa: And? Sure. So did malaria. Like, what's your point? So I don't know a ton about this history, but I'm always a little confused around, they were always like trying to hunt down quote unquote communists. I would would have assumed what they really meant and maybe this is part of the propaganda is like russian spies like stalin spies but it sounds like more just people who vaguely believe in not capitalism or something like that's a huge spectrum right of people who are foreign assets that you do want out of government versus people who just believe in ideology that one guy doesn't like that's that's a big range of people hmm

0:09:25 Matt: There was this idea idea that Stalin was actually paying people in the US government, not just spies, but people that would propagate communist ideas. And there was, to some degree, that was to a very minor degree happening, like the Russian government was paying for some things in the U .S. And there were plenty of what they called fellow travelers, of course, who were just leftists at universities and other places that weren't necessarily registered members of the Communist Party, but maybe read Marx or talked about Marxist economics.

0:09:49 Matt: And then, of course, the useful idiots that we still have plenty of those today. They're especially obsessed with the idea that there is a whole secret network of actual communists in the the United States who were going to be somehow taking it over. You might have heard something about Whitaker Chambers and the Alger Hiss hearings. Oh man, that would be, yeah.

0:10:02 Jenessa: I don't know that actually I like slept through a 7 a .m history class so I might have missed a lot of

0:10:08 Matt: That's probably worth a whole other episode at some point to talk about the Alger His case, because it's one of the most interesting legal things of that era. And it really, I mean, it turned out that Alger Hiss was lying about quite a lot. And he was trying to pretend like he didn't know this guy, Whitaker Chamber, who was a communist. I'm not that well -versed in it. I don't want to get it wrong. But there was a lot going on during this time in public and a lot of hysteria. And you know coming off of you have to remember that the house on american activities committee starts in 1938 it's going through the 40s into the early 50s by the end of the 50s people are pretty much done with mccarthy they see where he's at I think it was 53 was the famous turning point right with have you no shame where he is grilling some guy you know for no reason in front of everybody and on tv the court kind of follows this too and the warren court is most famous for its protections of civil liberties and individual rights and we see that reflected in this case we're going to talk about, and sort of this trajectory around this I want to talk about very quickly. Because before Warren, we had a case called Dowds, where they basically took a look at loyalty oaths, and there were a couple of these where the court kind of was willing to let national security concerns override First Amendment concerns. When particular conduct is regulated in the interest of public order and the regulation results in an indirect conditional partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular particular circumstances presented. Garner v. Board of Employment. The Supreme Court held that employment is a privilege, so you can require certain oaths if you have to, because governments want to assure themselves of fidelity to the very presuppositions of our scheme of government on the part of those who seek to serve it. And what a lot of this comes down to is what you know that you're taking an oath to or about, how

0:11:42 Matt: Much you know. And that's what this case we're going to talk about comes down with, with Begott v. Bullitt. Pick one on Viman v. Updegraff in 1952, they found that there has to be a scienter requirement. You have to know that you're you're associated with these groups or that you are intentionally lying about it, right? Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power. It's a good quote. Just a lot of looking at different kinds of loyalties. And there were so many throughout the states because they were so concerned about communist and totalitarian government that pretty much every state had some version of this and the federal government. The early cases on this from the early 50s seemed like they were pretty okay with the idea that it is the applicant's burden essentially to prove loyalty. But the Warren Court was more interested in saying that the garden has to be in the government to prove disloyalty, which makes a lot more sense.

0:11:56 Jenessa: Of course hmm

0:12:28 Matt: That's how it should be, obviously.

0:12:29 Jenessa: When we're saying loyalty here we're focused on you know I could I could imagine for example probably wasn't how it worked back then but like doctors for example they agree to keep patient information confidential that's like a a pledge an oath but that's not what we're talking about some very concrete agreement that is part of the job like loyalty here sounds like what is that

0:13:00 Matt: Again, like we're talking about, there's loyalty to our system of government and constitution and generally due process of law, that's all fine. But then a lot of these were saying that they weren't providing support. That's where it starts to be a problem. So cramp v. board, there's a Florida loyalty oath that was was pretty bad. You had to swear that, this is to be a teacher, you had to swear that you'd never lent your aid, advice, counsel, or influence to the Communist Party. And they pointed out that there's no concrete formulation of what any of those words mean, right?

0:13:29 Matt: So if you publish an editorial saying, hey, let's not, let's stop doing McCarthyism, right, maybe that's providing advice and counsel or influence. It suffers what they call the vice of vagueness, as a lot of these did, that they used a lot of vague, indeterminate words to try to get people to swear to things that they could be prosecuted for later. And that's really the, like I said, the real problem. So there's a turning point. One of the the big moments in the Warren Court, which I'd love to do a whole separate episode on, was actually called Red Monday. That's what J. Edgar Hoover called it, I should say. That'S NOT WHAT THE SUPREME COURT CALLED IT. But on June 17th, 1957, it was, you know, obviously, Brown v.

0:13:29 Jenessa: Uh yeah

0:14:02 Matt: Board was the big breakout moment that we talked about in the Warren Court, kind of staking its claim for individual rights. But Red Monday was really arguably, I guess, people consider it to be one of the major turning points in the court after that. They raised four different decisions on the same day having to do with members of the Communist Party. And they were all pretty favorable, not saying that communists were great, but just that they were in favor of academic freedom, in favor if not having to answer questions about your activities. Sweezy was a big one that was a progressive economist in New Hampshire. He refused to answer about his activities in New Hampshire and lectures he'd given and stuff, and they said that was fine. Konigsberg v. State Bar, that reversed the State Bar decision to deny a law license to somebody who declined to answer communist ties. And they actually said not because of loyalty, but because of bad moral character. And so so they said that wasn't acceptable. And then when it came back in front of the court, the bar examiner said, well, actually it was obstruction because you weren't answering our questions.

0:14:52 Jenessa: We just keep changing our reason here yeah

0:14:54 Matt: Right, right. Of course, because we got to keep you out. These decisions weren't perfect, but there's four, including Dennis and Watkins was another big one. That was the first major challenge to the HUAC itself, to the House of Americans Activities Committee. And the court actually pretty significantly limited what the committee could do. It was kind of the end of the committee's power because in Watkins, I think it was an automaker, but he was saying, you know, know, I'll talk about myself, but I'm not going to tell you about anybody else. That's not what I'm here for, right? This is outside the power of your committee. You can't just ask me about political activities of people I know. And they agreed. They thought that was fine, that they shouldn't have to ask the questions like that. Yates reversed the conviction of some Communist Party leaders in California based on some real issues with the California law, the way that was written about what it means to organize, to advocate. And there's another case called Dennis. So that just what you need to know. So a lot of people got very alarmed very quickly thinking the Supreme Court had gone red or was otherwise supporting communists and had decisions like this.

0:15:47 Matt: There was just a lot of consideration of convictions under the Smith Act, which effectively is no longer a law, but essentially it was a Cold War era thing that could criminalize certain kinds of speech or advocacy. It is really hard to kind of trace a through line of the court's philosophy on this, partly because I think it was starting to change with the times, but also because the composition of the court changed at the point at which Justice Frankfurter was off off the court in 61. And then JFK took office in 61 also. They weren't prosecuting. JFK and RFK, the attorney general, they're not prosecuting the Smith Act anymore. So they weren't looking at those anymore. Although one of the last things they did with the Smith act was to uphold a six year sentence under it. So there's kind of this early fifties, they seem like they're okay with a lot of this kind of McCarthy stuff. Getting into the later fiftys, the Warren court is looking like it's maybe pushing back, looking more at individual liberties, maybe seeing how much of this is actually necessary. And dann in 62, Arthur Goldberg is appointed and changes the balance again to

0:15:46 Jenessa: Appointed

0:16:41 Matt: The Supreme Court.

0:16:42 Jenessa: To which position again oh yeah okay

0:16:43 Matt: So Arthur Goldberg replaced Frankfurter. They had been upholding, for example, the Subversive Activities Control Act. They generally thought that was fine before that point, which just for those that aren't familiar, that that allowed people who registered as communists, like you had to actually register as a member of the Communist Party to have your mail labeled. You could have a hold on your passport. You can be disqualified from citizenship. You still can be. And yet Frankfurters, who really was not great on these cases, he said, just to give the idea of how he was in these cases. He's like, yeah, that's all hypothetical. Can't really consider that in this case. Those are all things that could happen, I guess, maybe, even though there are clear legal consequences of registration.

0:17:14 Jenessa: Wait so he was saying it's hypothetical but

0:17:20 Matt: Right. But not in the present case.

0:17:21 Jenessa: It what it wasn't because it was happening oh oh okay

0:17:22 Matt: So we can't really factor any of that in, right? The McCarran Act is fine because we can really think about that.

0:17:26 Jenessa: Wait also did you just say it's still still true that if somebody openly calls themselves a communist, that could stop them from getting citizenship?

0:17:35 Matt: Yep. Just had a Chinese client with an interview last week where we had to fully document his exit from the Chinese Communist Party, even though basically to get ahead, just like in many places, you have to be a member of the party in China. Yeah, you've got to formally leave and disavow. It can be pretty hard in some of these cases. Yeah.

0:17:51 Matt: No, you can't have have any association with communist or totalitarian. That's been the law since 1952, the McCarran -Walter Act, actually, or related legislation. Even Watkins, which I was telling you about in 1957, was basically, if not reversed, it was extremely narrowed when they looked at a similar case of the teacher who refused to answer questions in the HUAC. And they decided that Watkins was actually about pertinency. It's not just that we can stop people from being asked about whatever. It has to be pertinent to whatever is being asked about whether or not you have to to talk about other people.

0:18:19 Matt: First Amendment generally, what the Warren court did hold was a right not to answer questions along with the right to speak. Justice Harlan found that the government interest in national security outweighed First Amendment rights for things like this. Right.

0:18:30 Jenessa: So obviously to a large extent, you have a right to not answer in the sense that what are they going to do? Throw you in jail. But I mean, does that mean there's, when they say you have the right to not answer, does it mean there are no consequences or like, oh, you don't have to answer. You could lose your job though.

0:18:47 Jenessa: So you kind of do like, Like, where are they drawing the line?

0:18:50 Matt: And they're talking about the HUAC specifically when you're under oath in front of a committee, but yeah, no, it's exactly the same thing though. I was thinking about Alexander Hamilton wrote very famously that a power over a man's subsistence amounts to a power of his will, right? You can control things a lot if somebody's a livelihood depends depends on how they answer your question. My point is, though, that Red Monday was pretty much effectively either narrowed down or almost completely reversed by 1959, two years later, because the courts started to see where the wind was blowing.

0:19:16 Matt: And also because Congress introduced something called the Jenner Act, which was just one in a long line of Republicans trying to figure out a way to severely restrict what the court can see. They basically were trying to take the court's jurisdiction from certain things, which may or may not be constitutional. But they withdrew that threat basically once the court started to go their way on these kinds of cases. So that's all kind of the backdrop. There's plenty more. The loyalty oath issue itself comes up in Bega v. Bullitt in a big way. So before we get into the facts of Bega V. Bullett, let's take a break and we can come back and talk about the science of loyalty oaths, which I know nothing about. About.

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0:19:54 Matt: So I'm raising my hand and taking an oath and saying, well, let's actually, let's take this one here. Actually, this is from the actual Bega v. Bullitt case we're going to talk about. I solemnly swear or affirm, this if the state of Washington, that I will support the constitutional laws of the United States of America and of the state Washington, and will by precept and example, promote respect for the flag and the institutions of the US of America and state of washington, reverence for law and order and undivided allegiance to the government of the united states. So when I say those words out loud and put my right hand up, does that make me believe those things?

0:19:57 Jenessa: This Is exactly the question I had. I was really curious because, you know, certainly if somebody sues to say, just on principle, you can't make me say this. And certainly, like we're talking about, you can't make me go to jail. You can't make me lose my job. There's different consequences here, right? If they want to just say on principle I'm not going to not support that. But what are the consequences, you know, if they're standing up and saying, you can't make me, also you can'T make anybody else do it, are they protecting the rest of us from something really serious? What if it can make you believe things? And as we saw in the beginning, talking about the Third Reich, like those oaths start to get more and more concrete and more and More devious. So So I wasn't sure. And I was a little outside my wheelhouse. So I reached out to my whole network. I talked to my social psych professor from undergrad, Dr. Stilwell. I talked two of my colleagues. Dr. Erin Cooley studies prejudice. Dr. Rebecca Dyer studies moral development. And my sister -in -law, Melissa Seymour, is a licensed mental health counselor. And I'm just bouncing ideas off of everybody. Like, what do you think? And we didn't have a clear, concrete answer. This isn't like a solved problem. But we kept, in each of these conversations, coming back to a couple of things that would influence whether taking this oath is going to affect you. One of them is your values, your core values. So for example, if some pledge you take aligns with your values it can push you towards those behaviors. So there was one study where they had people take a pledge, I'm going to at least once a month, go down to the park and join this group that is picking up litter. Presumably, we all share the value that would be a good thing to do.

0:22:25 Matt: Communists. You mean you're going to join the Communist Party. Okay. Got it.

0:22:29 Jenessa: Yes, a communist litter grabber. And what they found was, particularly for people who took that pledge in public, they were way more likely to do it, even though there were no consequences for not following it. So I know a lot of times we think like, oh, people stand up and they take their oath of office and like, who cares? It's not real. If you, especially if that aligns with your values, the mere act of taking that pledge in public, a lot of people do take that seriously and it affects their behavior. So that can be used in a really positive way. Accountability, I made a promise not just to myself, but to you, I'm going to do this. What if those values are bad or what if it's not my values and you're going to force me to say something I don't believe, Or maybe I'm not sure if I believe it. The thing we were all landing on was cognitive dissonance. People have probably heard that term before, but in psychology, it has a really concrete definition. It originated in psychology in the 50s. And what it means is when your behaviors and your words do not line up with your values, that creates this really uncomfortable feeling, cognitive dissonance, and you are going to seek to resolve that. How do I get rid of this ick? That act of resolving, there's lots of different healthy and unhealthy ways that we're going to try to do that. The real question is like what's going to send you down the healthy path and the unhealthy path? There's one study, it's like the one that developed this concept. It's going to sound like it's not related, but I swear we will get the connection. There's a lot of details we could get into that would bog us down and take forever. So I'll say this was really thorough and thoughtful in its design and did a really good job of making sure participants were not going to pick up on this or, you know, that it would feel natural and organic. But basically, you bring everybody in and they do the most boring experiment you could ever imagine. Just, you know, put these little things onto this peg. Now take them back off. Now put them back on like 30 minutes. Wind this yarn around this spool. Now unwind it. Now wind it again for like 30 moments. It couldn't be more boring.

0:24:52 Jenessa: And then the control group will immediately go to an interview. The person will say, hey, just tell me about the experiment. Did did you think it was hard? Did you think this, this? Was it interesting? And sure enough, we can confirm with the control group, this was boring as hell. The experimental groups, they're going to do the boring experiment. They're goingto do that interview at the end. But in the middle, essentially, they're gonna be put in a situation where they're asked to lie to somebody and say it was interesting. And they're told this person is another participant event coming in. Of course, it's not true. So they think this person's going to go do this study. They're going to find out it's boring, but I have to lie to them and say it's not. And then I'm going to ask you, OK, tell the truth. Was it interesting or not in this interview? One group, I'll give you 20 bucks. Go tell them it's interesting. The other group, I'll give you a dollar. Well, the $20 group says in the interview, no, that was boring. That sucked. The $1 group says, yeah, it was kind of interesting. I kind going to have fun. You know, they're not giving the maximum fun rating. They're not like delusional, but they're like, yeah, I enjoyed it. So what happened? Basically for the group that got paid 20 bucks, we all come in with this, don't lie. Lying is bad as a value. And I lied. And now you're asking me to tell the truth. So I have to confront that I lied cognitive dissonance. How do do I resolve it? Well, why did I lie? Because he gave me 20 bucks. This was

0:26:29 Jenessa: 1959. That's a lot of money. It was a harmless lie. This is not hard to resolve. I can keep my value. Don't lie. I can keep myself evaluation. I don't tell really serious lies. I benefited hugely and the other person was barely harmed. I'm not like suddenly a monster. And yeah, I told a lie. Sorry. Oops. The $1 group has to go, am I the kind of person who would lie for a freaking dollar? Oh my god, I, no. You know what? No, I'm not. I know I'm not the kind of person who would lie for a dollar. I guess I didn't lie. I guess I liked it. And yeah, yeah.

0:26:59 Matt: For a dollar. Right? Just waffled. I just waffled. Okay. Oh, I see what you're saying. That's how you resolve the correctness of existence, since you just decide that retroactively it was fine.

0:27:20 Jenessa: And you can think of this all happening unconsciously. A lot of people are not really in touch with their emotions. So you ask me, tell the truth, how was it? And I don't know why I'm just suddenly sweating. I'm so uncomfortable. And the thought pops into my head, it was fun. And this suddenly removes the discomfort. And that's what I'm going to say. And now I have convinced myself of my own lie to myself. So sometimes we resolve the dissonance by going through this process of like, listen, nobody's perfect. I violated my values. Whoops, I'm gonna fix it. I'll do better next time. And sometimes we dissolve it by going, going, I'm going to change my values. I guess I don't believe the value. And sometimes we resolve it by going, I didn't do what I did. I didn't lie. I did not cheat. I do not steal. I will edit my memory completely. And it is startling to watch, but the person is often unaware that they are doing this. Okay, how is this related? So imagine somebody says, you have to take this oath, and they put a gun to your head. Tell me the grass is blue. Tell me you hate your mom. Well, of course, you're going to just say it like it's harmless and you don't want to die. So when you try to resolve the dissonance of first of all, why did you lie? And second of all, is this thing false? Is it true? No, it isn't true. Why did I lie? Because I didn't want to die and it was harmless. What this is telling us is the The higher stakes, the higher the consequence of saying this thing that violates your values, that is false, it's actually less likely to work.

0:29:07 Jenessa: The problem is going to be when it's lower stakes, when the consequences are less obvious, when it is more just like social pressure. Everybody is standing up and saying the pledge. And I just kind of look around and I go, oh, we are all standing. Oh, okay. Put my hand over my heart. Chant the thing. I am not a follower. I don't just do things because other people do it. I wouldn't jump off a bridge just because everyone did. I guess I believe it. I believe that I said it because I believe it, damn it. And this is the risk. So really, how are we going to prevent this in our own lives? First of all, if the value is really strong, I am so confident this goes against my values. You're going to have a really hard time getting the person to say it and resolve the conflict in favor of a new value. It was so strong to begin with. The conflict weighs towards I did something wrong. Oh no, I won't do it again. If the value wasn't strongly held, we're going to weigh towards resolving it as changing the value.

0:30:14 Jenessa: If the consequences are terrible, I will lose my job. I'm going to die. You could almost reinforce the a value. I am a rebel now. You put a gun to my head and say pledge to Trump? Hell no. If there's just this calm social pressure, psychological resilience comes in. So partly that's childhood. You've been taught, hey, you can disagree and I still love you and you will still be supported. Not everybody had that as a kid. And you can also have current circumstances. You have friends and family who, if you're rejected by one social group, you're not going to be alone. So you're willing to say, no, I'm not going to just say what everybody else said so that I don't get rejected. I will say what I feel. So that resiliency is also going to come in. So we have a lot of interacting factors, basically. Figure out what your values are. Sit down and really assess that. Is this really my value? Because I never act in accordance with it. I guess not. Making sure that I understand what actions and beliefs go along with that value and having that social support network so that if somebody is trying to get me to swear I totally believe this other thing, I feel that I can just leave this group and I can go find other support. I'm not alone. That one's easier said than done. Unfortunately, the very people we wish we could support through that process, almost by definition, we don't know them because they don't have other friends, including us, right? So it's tough. Yeah.

0:32:02 Matt: Maybe likely to be surrounded by people who agree with them. I'm thinking about this in the context of They Thought They Were Free, that book by Milton Meyer that I've mentioned on the show before. And there's a part in it, it's just very striking. There is some question about the accuracy and historicity of They They thought they were free, but it's a great book. It's just such a good read, at least the first two -thirds of it before he starts talking about what's wrong with Germans as a people. And again, I can't blame him. He's an American Jew who's going back to Germany and trying to understand 10 or 15 years later what's going on with Germans. And he gets some really pointed commentary about these people that claim they knew nothing or that didn't care what was going on in Germany or who thought that Hitler's only mistake was invading Russia that he ever did. He talks to an academic at one point who's telling him, I don't remember what field he was in, it might've even been law. But this academic is saying there was a point at which we just showed up and there was loyalty oath waiting for us and we all had to sign it. And I've thought a lot about what might've happened if everybody just decided not to sign it.

0:32:30 Jenessa: Tough. Oh.

0:32:57 Matt: He said, basically, nobody really took it seriously enough. It's just a piece of paper. Nobody really cared that much about Hitler, but we just had to do it and move on with our lives or we'd lose our jobs. And it's very much like what you're saying, the social pressure of just like, this is what we have to do now. I'm not a follower, but whatever, it's just a piece a paper. Just the fact that, you know, as we've also discussed on the show before, that you could go through all of this very intentional targeting of Jewish professionals, especially lawyers and judges, and the bar had nothing to say about it, and other lawyers never said anything about it. There was just sort of a general tacit understanding that this is what is happening now. And I think that's my real concern with this kind of thing. And one of the reasons I want to talk about this is because there's been talk back and forth about different ways that the Trump administration now is measuring loyalty or interviewing or screening for loyalty.

0:32:57 Jenessa: Yeah, what?

0:33:44 Matt: You know, there was a screening question that came out. I mean, they have people they're calling MAGA commissars, which is a very funny way to, yeah, like if you really want to go as authoritarian as possible, who are asking questions like, what was your MAGA revelation moment in job interviews?

0:33:56 Jenessa: What? Ew.

0:33:56 Matt: Yeah.

0:33:57 Jenessa: Ew.

0:33:57 Matt: Like when did you come to realize you supported the president?

0:33:59 Jenessa: That's like a religious question of, like, joining the group.

0:34:04 Matt: Your road to Damascus, like when didyou have the scales fall from your eyes and realize that Donald Trump is the best president on earth, you know? This is for high level jobs that they would have to talk about things like January 6th and generally speaking, how you feel about America First policies. There was a memo that was scrapped that was going to formally integrate a lot of this into the job process, but these are just reports that came back from the AP. Trump instituted, he brought something back from The Eisenhower Days, again, Cold War era, of calling May Day Loyalty Day. He actually signed an executive order calling it that.

0:34:32 Matt: Authoritarians require this kind of loyalty, and certainly we've seen it throughout, and we're familiar with Schedule F allowing people to fill jobs that were previously not political with political appointees and loyalists. Schedule G, I think they were calling it would just be the one that comes and goes with the president, right? So you could guarantee it was loyalists. A lot of very concerning things, but to create a government of this kind, you have to fill it with loyalists, and so this is just something that was on my mind because it's not inconceivable that this kind of thing could trickle down to different parts of society, especially when you're talking about the Trump administration right now coming after federal funding for schools.

0:35:03 Matt: You can imagine maybe loyalty oaths eventually starting to come into universities, into federal funding grants, into science grants. I could certainly see things like that happening. It sounds paranoid, but nothing really can be too paranoid right now with this kind of thing. Right.

0:35:16 Jenessa: This is already happening. Think about the Florida, like... Don't say gay, Bill. You have teachers who have this value, some of them very strongly, some of them more weakly, some of them the other way, saying, the oath you're taking, I'm not going to affirm the gender of a child who tells me they're trans, if you have a super strong value of like, that's wrong, we've already seen the first teacher who is being penalized for doing it anyway, because screw you. If somebody is on the fence about that, and it's like, well, I could lose my job, and I didn't feel very strongly either way, we can see how that dissonance might resolve into, I guess it is wrong.

0:36:04 Jenessa: Why would I just go along with what the government says? Because I agree with the government. Yeah, yeah, okay.

0:36:10 Matt: That'll do it. Yeah. The provision that's been introduced as an executive issue now into naturalization proceedings that you can be disqualified for anti -Americanism or anti - American groups associations, right? You know, as we talked about, there are people who believe that the Democratic Party is an anti -american group. It's not that much of a jump to think that you could have people disqualified from naturalization because they've supported certain political parties or positions or taken certain and ideological stances that are not currently covered by the law, like communism or totalitarianism.

0:36:37 Jenessa: I think that's really relevant too, because as we talk about like unconstitutionally vague, this idea that these terms are so vague, I think sometimes it can be tempting to say, oh, what's the harm? I'll just go along because it's so vague. Like, yeah. I'm patriotic. Screw it. But I know what you're you're trying to do, right? I would describe myself as patriotic. I do not mean what they mean when they say that.

0:37:00 Jenessa: So I know if I sign that, I don't mean what they mean. I am agreeing to something that I would not want to agree to. I think the problem is, if you just agree to this vague thing and you at first tell yourself, well, I'm not really agreeing to anything. But now you've created a scaffolding for I did publicly pledge that I would support American values, and we didn't define that. You just created the baseline for someone to start defining American values for you.

0:37:34 Jenessa: So if we don't come in with a strong feeling of what are my values, what are my American values? It's this. And if you try to force me to do something that I actually pledge to uphold this and you try to make me do this other thing no if I'm just vaguely yeah sure american values whatever you could just start filling in that blank with whatever you want and I might be more likely to go along with it

0:37:59 Matt: No, those kinds of ambiguities create, I mean, that is, I mean we talked about this, there's no definition of anti-Americanism in immigration law. That's not a thing that's ever been used before. Nobody knows what that means. And I think I have to hope if it were being challenged to an honest court, the court would have to find that that is too vague in the way that it will actually in what we're about to talk about. So let's take a break here and come back and talk about what kind of ambiguities can actually get your loyalty Oath struck down and beg it be bullet.

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0:40:03 Matt: Beg it be a bullet. I just love saying that. 1964. We're looking at two Washington state laws. And one of them is a straight up loyalty oath, which is kind of like a positive statement, right? A positive loyalty oath more of the classic kind. And the other was a negative disclaimer. It was like saying I'm not something. I'm doing something. The University of Washington faculty had been challenging this for about nine years before it got up finally, because there is just too much in here that was too vague. I read you one of them when you're talking about promoting respect for the flag and institutions, reverence for law and order, and undivided allegiance to the government. Again, that's just a little too vague, and we'll see why. The other one's even more concerning. So this is for state employment. It shall require every employer applicant for employment to state under oath whether or not he or she is a member of the Communist Party or another subversive organization.

0:40:54 Matt: In refusal to answer on any grounds shall be caused for immediate termination or refusal to accept application. Complication. So a subversive person or organization means any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises, teaches by any means, any person to commit attempt to commit or aid in the commission of any act intended to overthrow, destroy, or alter, or to assist in the overthrow, destruction, or alteration of the constitutional form of government of the United States or of the state of Washington or any political subdivision. So yeah, like you were saying, advocating for amending the constitution could be included in this definition.

0:41:28 Jenessa: That was like kind of fitting okay with like overthrowing the government is literally a crime altering the government that's what I do when I vote. I vote for people to make laws. Like what?

0:41:41 Matt: Right. This also starts to get into, as Justice White points out in the majority, it's not only if you're committing these things, but if you aid or better advise somebody else in aiding a third person to commit an act, which will assist yet a fourth person in the overthrow alteration of government, right? He also makes the point that it would be blinking reality not to acknowledge that there are some among us always ready to affix a communist label upon those whose ideas they violently oppose.

0:42:06 Jenessa: You know, I like that because I feel like this court often fails to acknowledge like practical realities like that. To be able to step back and say by the literal text of the law, it is trying to punish people who do X, Y, Z. To then step back и say, okay, but in the real world, what we're seeing is people who aren't doing that, getting the label of someone who is, that matters.

0:42:34 Jenessa: Like how the law is actually playing out in practice matters.

0:42:32 Matt: Yeah, that's right.

0:42:38 Jenessa: And I worry often that the current court just refuses to acknowledge reality sometimes. It's frustrating.

0:42:48 Matt: Yeah, it's kind of a running joke between me and Casey about the they'll often say, well, we don't think anything too much is going to come out of this. Like, you know, what's the worst that can happen?

0:42:55 Jenessa: And then it happens immediately.

0:42:57 Matt: Right. Even a case like Melendez Diaz back in 2009, a big one for criminal law, where it requires that in every drug case, you have to bring in the analyst that tested the certificate, you can't just introduce the certificate. You have to back it up because of the confrontation clause. And Scalia was big on the confrontation cause. It's a great decision. It's one of his best. And he's literally in there in here. He's like, Oh, I don't know, it can't be that bad. Like it's not going to cause that much trouble to have, you It's like, well, yeah, you're talking about stretched state budgets. I completely support this. They should have to come in. If you're going to put somebody away for many years in a drug felony, you'd better be sure. And anybody who knows the story of Annie Dukin in Massachusetts, which definitely deserves another episode, knows that you have to bring that person in and cross -examine them because all kinds of things can happen if you don't, if you just allow a state employee to just submit a certificate without being available to testify. Kind of off topic, but I agree with you generally that the court, especially now, is not as aware of some of the consequences of things that it's finding.

0:43:46 Jenessa: Yeah. I agree with the outcome. He failed to acknowledge, kind of refused to acknowledge you are going to bog down this system like those people are running hundreds of tests a day if they're gonna have to testify in every single one of these but if the reasoning is sound then it's like good too

0:44:00 Matt: Potentially. Yeah. That's how it goes. Just invest more in drug labs and make sure we have the best people. Yeah. So I was saying before about the Reconstruction Era oaths that we're talking about past conduct, and they got into this about future conduct too. And they said, well, you can't have somebody take a very vague statement about what they're not going to do in the future. They can promise that they're going to uphold our system of government and that they'll not going help to overthrow the government. Like you said, that's already a crime anyway. But we really have to limit what it is you're trying to make people swear to. And I think just as a basic holding, this is really the height, I think, of, you know, after Red Monday, this is sort of the height of their pro -civil liberties sort of findings during this era. Now, this was well after McCarthy is basically finished. So that was 1964, 10 years later in Colby Richardson. Of course, we're out of the Warren era. So I wanted to highlight this as a really good, strong, straightforward thing from the Warren era saying you can't have a vague statement. You have to know what you're attesting to. They were looking at something in Colvy Richardson. This is the Burger Court now. And this is a Massachusetts oath. And it says that this is somebody who was a social research director in Massachusetts refused to take this oath. And she was being forced to swear or affirm not only that she'll uphold and defend the Constitution, but that I will oppose the overthrow of the government by force, violence, or any illegal unconstitutional method. So now you have to agree that you oppose something,

0:44:08 Jenessa: Bad so sad and will oppose like that could be anything what it immediately evoked in my mind was a very physical action like I'm going to join the military as opposed to like, just, I will philosophically oppose it in my own head.

0:45:29 Matt: Right? But that one was actually upheld. That was found to be okay. And I wanted to find the holding there so I can explain. But it is, like I said, it's very hard to tease out almost a consistent line on these cases because there are still loyalty oaths. There are still built into a lot of state jobs.

0:45:43 Matt: They're not as vague. They have generally been whittled down to the merits of an actual loyalty oath that we can live with. But this does kind of put the burden back on the applicant rather than on the government. The government doesn't have to prove anything. You just have to proof and state affirmatively that you oppose something. But they did find ultimately that this was constitutionally permissible. So I do wonder today what today's Supreme Court might find with some of this, how far it might go. Sure.

0:46:08 Jenessa: I almost feel like a lot of our oaths, even if they don't say it explicitly, they seem to at least implicitly acknowledge that it is an oath to the country, to the Constitution, and not to any one individual. Very explicitly not to the current president. It's to the job you're doing. And I would hope that if god forbid somebody tried to institute here's the named individual like that should be crystal clear but if you're talking about like I know it's not an official oath but you're taking about a job interview asking you about your mega awakening that that is code for trump that is not the republican party that is a very specific movement associated with a a single candidate. That's barely connected to Vance, his own vice president. It's definitely not connected to his last vice president,

0:46:41 Matt: I would hope. Right. Yeah.

0:47:09 Jenessa: So I would hope they would figure out that it can't be to a person. We got rid of kings for a reason.

0:47:18 Matt: Yeah. Even something like to the president's policies, right? Because I could see that coming in like a sneaky way to do it, right. But that's not what you're doing. Like you're not taking an oath to the executive branch and to the, you know, to the President's policies. Again, you could be fired for cause if you are actively undermining any given President's policy. Sure.

0:47:21 Jenessa: Yeah, sure, right.

0:47:33 Matt: But you're swearing an oath, to uphold the law. I think that should be as bad as far as it goes.

0:47:37 Jenessa: And you could think, for example, the president is the commander -in -chief of the military. The military very specifically takes an oath that they're not going to follow unconstitutional orders and that's that's literally even if it comes from the very top so they are very explicitly taking an oath to the constitution and not to any specific individual they follow the orders of people above them because those orders are presumably constitutional but you can refuse on those grounds so at least hypothetically It seems so built in. I would hope that line holds. That seems very important to me.

0:48:16 Matt: Yeah, but again, who knows what's coming in the next few years. It's just something I wanted to flag. And I don't think that we're going to have a court that is as good on individual liberties and weighs them as heavily as the Warren court did. And that's why I want to to talk about the Warren Court, obviously, to remind ourselves about where we can go again in actually caring about individual liberties and consequences for real people for some of these things.

0:48:34 Matt: But the way that the Trump administration is using language, we've certainly talked plenty about this, especially in the homelessness EO, about just how fascist and openly fascist they're willing to sound in the way they talk about this. The appropriate use of civil commitment to restore public order, shifting homeless individuals into long-term institutional settings, that kind of stuff. That kind of language, when you make it policy and And when you incorporate it into things like oaths that people have to take, I have to think that that does start to... Because again, we've reached this over -the -window moment where the government talks like that. Carolyn Leavitt, the press secretary, makes all kinds of statements that would have seemed outlandish just a few years ago. I still think they are, but they've become more and more normalized about the way she talks about the president and about his policies. That's why I think it's good to look out for this stuff. It's good To be cognizant that we're never too far away from this kind of thing happening. And this is how the worst people, worst leaders in history have gotten the worst things done is by building up a network and army of loyalists that do the things that go along with the kind of language that they use. And right now, the language is all about crime and disorder in American streets and about

0:49:35 Matt: Excuses for sending in the military into blue cities, right? And I have to bring this up, that it does seem at this point, it's not really seem, I mean, it has been this way for a while, that ICE and CBP are essentially becoming a paramilitary force that are responsible only to the president, right, that are accountable only to president. And I could see that happening. I mean, you're talking about creating a special National Guard unit that is just to go and handle disorders. They can be flown around the country 24 hours, ready to go. They could be flown into anywhere where there's any kind of right or disorder, and they're lowering the requirements for it and basically just letting people in off the street to join this paramilitary group. And that's how the worst governments get the worst things done. Maybe we're getting a little off topic, but I do think this is all actually pretty on topic. It all goes to the same thing.

0:50:14 Jenessa: I think it's exactly tied in because the more cohesive that group feels to one another and loyalty to some particular ideology some particular concern to the president the the more they're going to struggle to find their own individual values and to get out of that and to break out of acting in such a unified manner. It only takes one person saying I don't agree to give other people the freedom to realize they don't have to agree and that there is space to disagree, that it's not weird and crazy to disagree.

0:50:56 Jenessa: But when there's so much pressure to just conform conform conform it's its own kind of oath happening um even if it's not explicit so unfortunately I think the accountability is going to have to come from the ground up at this point that we all ourselves have to be creating our own resiliency creating ourown understanding of our values and creating space for one another to find our values to findour dissonance between one another and just get comfortable in that discomfort or else it just turns into this mush of everybody agreeing with a bunch of nonsense that's being fed to you.

0:51:38 Matt: No, I think it was Sinclair Lewis that said that it's impossible to get a man to understand something when his salary depends on him not understanding it. And that's a very similar kind of thing. You know, I've said this from the beginning of the second Trump term since he was elected, that we're all going to have to start making choices. And we're also going to be going to start even just the smallest ways, picking our sides and seeing where we stand. And I don't know if we're going to Have this dramatic a moment as the Germans did in 1934, but it's certainly not unforeseeable. And if there's going to Be such an oath, it had better be very, very, Very specific, and it better not include the president, But who knows? And that's the best I can make of the current law, because like I said, it is a muddle now. It's really not really clear what kind of loyalty oath might survive if challenged. And I remember this actually came up, we were making some jokes about it, but during the Fannie Willis case, one of the things that they were challenging Nathan Wade, the special prosecutor's appointment on, was that he had not signed the special thing saying he's not a subversive person that you still have to sign in Germany. Excuse me, let me say it again. Nathan Wade had not assigned the

0:52:36 Matt: Special saying that you're not a subversiv person that they still in Georgia. And that may not be constitutional. Nobody's really challenged it. These things are still out there. There was a thing where Trump was supposed to have signed something like that to be on the Illinois ballot and never got around to it. I don't care. But these things are still out there and they still exist to some degree. And there's still lots of people to get jobs that have to sign something or they're saying that they're not subversive people. Another big moment in Warren Court history. And I want to talk more sometime about Red Monday and about how they handled the McCarthy era. Because like I said, it is a mess. It's way too much to talk about in one hour.

0:53:05 Matt: But this is a good start. So good stuff. Any other thoughts on loyalty oaths today?

0:53:06 Jenessa: Don't do it. Try not to do it, you know. And hey, also, apparently, if you got a gun to your head, you probably aren't as at much risk. So screw it. Say whatever you got to say. Get yourself out of there. But yeah, don't just go along to get along in these more simple situations, these more subtle situations. It's risky.

0:53:30 Matt: As Mark Twain said, patriotism is loving your country all the time and your government when it deserves it.

0:53:35 Jenessa: There we go.

0:53:35 Matt: That works for me. I wish I could take that oath. Well, we'll see you next time where we're going to come back for some rapid response. We've got some great stuff lined up for rapid response this week, and then we'll be right back on Friday for some more rapid response to talk about what's going on in this week's news. So we'll See you then.

0:53:51 Jenessa: See ya. I'm going to go down to the park and join this group that is picking up litter.

0:54:35 Matt: Oh, communist. I mean, you're going join the communist party. Okay, got it. You also had to sing both Deutschland Über alles and Horst-Wessel-Lied to to sing two songs as if it were painful enough to take an oath to Adolf Hitler.

0:54:49 Jenessa: So I guess if you're tone deaf, you're just out.