Loyalty Oaths in the Courtroom


This morning (right now, actually, thanks to the wonders of Verizon wireless broadband) I’m in state district court in one of the counties adjoining Harris County. The judge of this court begins her day by having the courtroom stand for the Pledge of Allegiance.

I am not a big fan of loyalty oaths. I don’t believe that a republic that deserves its citizens’ loyalty needs them to swear their loyalty, nor that a republic that needs its citizens to swear their loyalty deserves that loyalty. Nevertheless, I don’t mind other people swearing loyalty to a flag or a republic as much as they want to. I question their need to do so, though. Having sworn loyalty once, why would they feel it necessary to do so again? Is it to convince themselves? To convince others? Do they protest too much? Or is it because they’ve never given it any thought? I’m reminded of this passage from Catch-22:

Without realizing how it had come about, the combat men in the squadron discovered themselves dominated by the administrators appointed to serve them. They were bullied, insulted, harassed and shoved about all day long by one after the other. When they voiced objection, Captain Black replied that people who were loyal would not mind signing all the loyalty oaths they had to. To anyone who questioned the effectiveness of the loyalty oaths, he replied that people who really did owe allegiance to their country would be proud to pledge it as often as he forced them to. And to anyone who questioned the morality, he replied that “The Star-Spangled Banner” was the greatest piece of music ever composed. The more loyalty oaths a person signed, the more loyal he was; to Captain Black it was as simple as that, and he had Corporal Kolodny sign hundreds with his name each day so that he could always prove he was more loyal than anyone else.

The important thing is to keep them pledging,” he explained to his cohorts. “It doesn’t matter whether they mean it or not. That’s why they make little kids pledge allegiance even before they know what ‘pledge’ and ‘allegiance’ mean.”

I’ve been required to swear, on more than one occasion, to support the U.S. Constitution; I’m basically okay with that (though why I should need to do so more than once is beyond me — did the officials in the Southern District of Texas think I lied when I took the Texas Lawyer’s Oath?) — in a way, that’s just a reaffirmation of my contract.

Anyway, if everyone else in the courtroom wants to get up and swear loyalty to the Republic, I’ll stand respectfully and silently. In this court, though, the judge takes the swearing of loyalty one step farther: she has the courtroom recite the Pledge of Allegiance to the Texas state flag: “Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible.”

I’m not from these parts, so I hadn’t given any thought to the existence of a pledge to the Texas flag. Schoolchildren apparently recite it in the morning; I may at some point have heard of such a thing, but it was not in the forefront of my mind. Now that it is, though, I don’t like it. Not in the criminal courtroom.

I’m in litigation against the State of Texas; the State of Texas is trying to put my client in prison. My duty, under the oath that I’ve taken as a lawyer, is to try to kick the State’s ass. Why should I be expected to swear my loyalty to that same state? More importantly, why should I stand for it when the jury is asked to swear out the same oath?


0 responses to “Loyalty Oaths in the Courtroom”

  1. Mark,

    This is my favorite post in quite some time. And that is saying something, since I get a great deal out of most of your posts! My favorite part:

    “My duty, under the oath that I’ve taken as a lawyer, is to try to kick the State’s ass.”

    That warms my heart, it really does. Keep up the great work for liberty.

  2. My daughter attends a public elementary school in Galveston — the schools in Galveston are actually much better than their reputation, BTW — which has a Spanish-language immersion program. So they do BOTH pledges in BOTH languages every day. It’s pledge-a-plenty there.

    Sometimes we like to tell our fiends that they make the kids do their “moment of silence” (also required by state law) in both languages, too.

  3. Thanks, 6:14 and and 3:51.

    My dad, who grew up in Bellaire, Texas in the 40s 50s — the time of McCarthyism — didn’t have to say the pledge to the Texas flag. He expressed surprise that my daughter says it in second grade. (That, by the way, is a battle that I’ll fight another day.)

  4. Star post Mark. Fortunately, in the UK I don’t have to promise anything. Does the State pledge allegiance to protect your liberty and your client’s rights? Sounds like a bit of a unilateral contract to me – and where I come from that’s unenforceable.

  5. pMandatory pledge of the allegiance in public schools was held unconstitutional previously by the US Supreme Court. There are some brilliant briefs on the subject. Some people did not know about the theory that a Nazi salute or placing your hand over your heart while reciting the pledge of allegiance has over-tones of authoritarianism and some have theorized this is from the German authorities. On the other hand, at the proper time and place, expressions of love of country and love of the flag are okay, too. There is a time and place for everything. Mandatory pledges in the court room might even be grounds for arguments on appeal in the right circumstances and/or for modifications of sentences or other releif. I forget how the US Supreme Court starts their day or how Congress starts its day. However, in a trial court, I think their may be differences which need to be taken into account when you mandate some kind of actions which provides arguments for appeal. What if the defendant is not from Texas or is from another country or another culture, etc., etc. Some of us Okies might take exception to pledging allegiance to your Texas flag!!! Boomer Sooner! How ’bout I sing boomer sooner while you recite your pledge to Texas?

Leave a Reply to shg Cancel reply

Your email address will not be published.