The BCIS had planned to roll out a not so new, but simplified form of the Oath of Renunciation and Allegiance which new citizens must take on September 17th, "Citizenship Day". September 17, once the focus of Americanization ceremonies as "I am an American Day", commemorates the anniversary of the Battle of Antietam. That was the bloodiest single day in American history, and it allowed Lincoln to issue the Emancipation Proclamation. But hopes that the Bush administration could get an assimilation initiative off the ground with a new Oath were shortlived. Proving once again the dysfunction of immigration politics, the BCIS backed off revising the Oath. This was largely prompted by some Senators, led by Lamar Alexander (R-TN), who have found in the archaic Oath a new political issue. So the Congress may put its foot down - no revised Oath without legislation.
"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty and particularly to _____, of whom (or which) I have heretofore been a subject (or citizen); that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely without any mental reservation or purpose of evasion. So help me God."In the Nationality Act of 1940, Congress incorporated those words into a statutory requirement that the elements of the naturalization oath prescribed by regulation all be present in the words spoken to make it a binding act.
So over more than a dozen decades, the Oath was hammered out in a mutually reinforcing process between courts, the Congress, appointed Commissions - and experience, in what worked to provide meaning for the new citizens.
But it is not true, as Senator Alexander and others have said, that Congress never enacted the Oath into law. It was simply regulated language first, although much of it had been statutory language for re-acquiring citizenship before that. Likewise, the Oath is radically different from the flag, or the national anthem: those are symbols. The Oath is an act - and unlike the flag (which can be quite patriotically worn as a hat these days), or the anthem (listen to any amateur sing it), it is not to be tampered with lightly.
And that is why it was revised. But those who reject the revision do not seem to have thought this through.
A major motivator for codifying Renunciation and Allegiance in 1940 specifically, reinforcing the requirement going back to 1790, was Hitler's attempt to call on ethnic Germans in the United States for support. But the 1940 act did not re-affirm the specificity requirement, although it added a requirement to use the phrase "That I will bear arms on behalf of the United States when required by the law..."
It is easy to see why: many immigrants were naturalizing in those years. The record for new citizens was set in 1943-4 (when Joe DiMaggio's parents become citizens), until the Clinton administration initiative doubled that record in 1996.
Rapid changes in the world as well as the numbers posed new issues. Consider a typical case: an individual born in the Austro-Hungarian Empire as the subject of a Hapsburg, who immigrated to the U.S. as the unhappy citizen of a wobbly republic, and now at their naturalization ceremony was regarded by the Third Reich as an expatriate. What specific loyalty must be renounced and abjured?
This was the substantive origin of the clunky phrase "of which or whom I have heretofore been", the grammatical knot that persuades many that the Oath must be revised. It was hard enough to understand in 1940.
Finally, after World War Two (during which conscientious objectors' Constitutional rights became important), Congress in 1950 made allowances for those who would perform "noncombatant service in the armed forces". In the 1952 McCarren-Walter Act, Congress returned to earlier practice with a statute calling for an oath with five specific elements, but leaving the actual words to regulation and the discretion of judges - which, it should be noted, may never have been lost. The judiciary is a co-equal branch, and the LAW merely requires the five elements set out in the statute: : support for the Constitution, renunciation of prior allegiance, defense of the Constitution against all foreign and domestic enemies; true faith and allegiance; and to bear arms or noncombatant service as required.
The 1952 Act also emphasized the special responsibilities of the judiciary: "[T]he judge or someone designated by him shall address the newly naturalized citizen upon the form and genius of our Government and the privileges and responsibilities of citizenship; it being the intent and purpose of this section to enlist the aid of the judiciary, in cooperation with civil and educational authorities, and patriotic organizations in a continuous effort to dignify and emphasize the significance of citizenship."
According to the BCIS website, the current Oath is:
"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."(The BCIS adds) In some cases, INS allows the oath to be taken without the clauses: "...that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by law..."
But - leaving aside the anachronist reference to the "INS" on the BCIS's own website - it is also not necessarily up to the BCIS exactly which language is used at naturalizations. Judges have discretion, within the five elements of the statute.
And that is what the Senate legislation proposes to change. Why?
In 1997, the U.S. Commission on Immigration Reform unanimously recommended a new Naturalization Oath written by the late Richard Estrada. A small, personal matter: a Republican appointed to the Commission by Senator Simpson, Estrada was a conservative, a ferocious critic of the Clinton administration and no fan of high levels of even legal immigration, who referred to himself as "when it comes to illegal immigration, I am an abolitionist".
It says a lot about the broken politics of immigration that the Oath he drafted has been attacked as a Clinton idea - particularly since the Clinton administration ran away from it as well as the Commission's broad agenda for a new Americanization movement (not to mention its family unification and anti-terrorism proposals).
The Estrada Oath hit all five statutory requirements in clear, even soaring language:
"Solemnly, freely, and without any mental reservation, I hereby renounce under oath all former political allegiances. My sole political fidelity from this day forward is to the United States of America. I pledge to support and respect its Constitution and laws. Where and if lawfully required, I further commit myself to defend them against all enemies, foreign and domestic, either by military or civilian service. This I do solemnly swear, so help me God."As reported, the Bush BCIS intended to unveil the following new Oath at a ceremony on September 17:
"Solemnly, freely, and without mental reservation, I hereby renounce under oath all allegiance to any foreign state. My fidelity and allegiance from this day forward is to the United States of America. I pledge to support, honor, and be loyal to the United States, its Constitution, and its laws. Where and if lawfully required, I further commit myself to defend the Constitution and laws of the United States against all enemies, foreign and domestic, either by military, noncombatant, or civilian service. This I do solemnly swear, so help me God.There are a few slight differences --- "former political allegiances" becomes "all allegiance to any foreign state", begging the question why the narrower renunciation that is limited only to a state was substituted for the broader "all" prior political allegiance. The Estrada Oath's "sole political fidelity" becomes 'fidelity and allegiance", and "support and respect" becomes a "pledge to support, honor, and be loyal to" the U.S., its Constitution and laws.
But what attracted the most attention, as noted by John Miller of National Review and Greg Easterbrook of the New Republic, was the replacement of the phrase "to bear arms" with what they considered the namby-pamby language "either by military, noncombatant, or civilian service".
Since the latter is a lawful requirement for all, and the former is not, it is unclear what their objection actually amounts to. Surely they don't actually LIKE the idea of an Oath that is literally meaningless simply because it is grandly incomprehensible.
Former Attorney General Edwin Meese thundered that the Bush BCIS was proposing to unilaterally change the law by re-wording the Oath. Senator Alexander hurriedly drafted legislation to enshrine "of whom or which I have heretofore been" in Federal law - for the third time, by my count: 1940, 1950, and 1952.
Which brings up the question of judicial discretion in meeting the statutory requirements without necessarily using precisely those words.
Shortly after the Commission proposed the Estrada Oath, when I was Communications Director for the Jordan Commission, I got a phone call from an Immigration Judge on the west coast who shall remain nameless. He asked about the new language , and when I explained how the Commissioners had arrived at it by using the five statutory requirements, for a copy. He - and a number of other immigration judges - have been using it at their discretion for years as a better, more clear and thus, more moving oath for naturalization ceremonies, ever since.
One wonders if former Attorney General Meese and Senator Alexander will want to investigate this, and urge the Bush administration to find a defect in the naturalization of who knows how many new Americans since, as the former Attorney General stated, the new language materially alters the Oath.
Alexander, at least, wants to remove entirely the discretion of the judges who actually DO naturalizations from using language that immigrants will easily understand, by prescribing only the archaic language of the traditional Oath be used - and requiring an act of Congress to change it.
Which returns to John Fonte's demand, specifically that new citizens understand what "abjure" means, and more broadly, what the Oath itself means. If Alexander is serious, much less National Review's Miller (who wants America's great writers to have a crack at a new Oath), they had better be prepared for an interesting debate.
What are the words for, anyway? Why these words?
The form of the traditional Oath that Alexander wants to set in law is essentially one very long sentence of 121 words. There are three matched pairs of words which establish the early rhythm: "absolutely and entirely"; "renounce and abjure"; and "allegiance and fidelity". The advantage of the pairing for rhythmic purposes is somewhat undercut by the apparent redundancy of words that seem to have the same meaning, especially since this is not a symbol but an act with legal force.
There is only a minor distinction between "absolutely", denoting totality, and "entirely", which denotes completeness. (A glass can be half-full of absolutely hot water, but it cannot be entirely full of absolutely half its contents.)
There is a larger distinction between "allegiance", which denotes a relationship and derives from the feudal notion of loyalty between ruler and ruled, and "fidelity", which involves an individual more than a relationship, resonating with the notion of a creed, i.e., a faith (as in "infidel", one outside the faith).
But clearly, the most critical distinction in these paired phrases is between "renounce" and "abjure". To renounce is to give up, to reject or deny; while to abjure is to state with the force of an oath. In that sense, "abjure" states that, if the oathtaker does not mean the oath, it is perjury to take it. When Joan of Arc was threatened with torture in order to recant crowning the King of France, the word she was required to accept was "abjure".
The long phrase "foreign prince, potentate, state or sovereignty" is one of the oldest and most consistently used in the Oath, verbatim from the New York State oath before the Federal government took control over naturalization in 1790. Both the Estrada and the BCIS oath drop it, while Senator Alexander proposes to keep it. Although relatively few immigrants now come from countries ruled by princes, many - particularly refugees - now come from lands ruled by gangsters and warlords, surely the modern equivalent of "potentates". But the construction and placement of the phrase may itself have a blurring effect, especially since the Oath no longer names the specific country or entity to which the immigrant owed allegiance.
The biggest rhetorical obstacle, of course, is the grammarian's knot that results: "of whom or which I have heretofore been". Its place in the text, in any case, is key to the structure. Before that, the Oath is about putting down prior obligations, after, it is about picking up a new one.
The traditional Oath then does two more paired phrases: "subject or citizen", which reminds us that the United States invented citizenship in a world full of subjects. The critical distinction is that a subject's rights come down from the sovereign; while the American purpose of government is to protect the rights of all with the powers granted it by citizens, the idea on which the United States was founded. (This is why dual and even multiple citizenship is lawful in the United States - it is "We, the People", not the government, that is sovereign.)
"True faith and allegiance" echoes the renunciation phrase "allegiance and fidelity"; it is what the oathtaker takes up for the U.S., having put it down for the prior sovereign.
Here, the Oath turns to affirmation, and the words "I will" are repeated five times, addressing (after renunciation) the remaining statutory requirements.
So the real question within the question of revising the language of the Oath is dual citizenship. It is unlikely that those who reject revising the Oath want to stomp on that landmine.
But that is why it is not simply the Naturalization Oath, but more precisely the Oath of Renunciation and Allegiance. Its language literally rules out multiple citizenship the way marriage vows require "forsaking all others". Yet the Oath's language comes from a time when dual citizenship was not allowed by U.S. law, as it is now, and before the courts removed expatriating powers from the government as unConstitutional.
In addition to raising the effectiveness of the Oath as the ultimate instrument on the meaning of U.S. citizenship, Fonte's assertion that immigrants must learn "what abjure means", begs the question: does it mean anything? Fonte insists that it simply means to renounce, and thus can be eliminated. (So why complain when it WAS eliminated?)
But that's not quite true.
"Abjure" is defined as a renunciation under oath, as of a heresy. Thus a new citizen is renouncing a prior fidelity to a former country, the way a heretic might renounce his errors and lack of faith, or a spouse prior loves. Another meaning of "abjure" is "to swear to abandon forever"; which may be closer to the meaning at the root of its original use in the New York State language. Hobbes used abjure in this sense in his Dialogue on Common Laws to note that a felon could escape the death sentence through exile, i.e., "by abjuring the realm." (Such exile to the colonies was a common form of immigration, and in fact founded the state of Georgia.)
Yet many U.S. citizens, including immigrants, travel abroad and even return to the lands of their birth where they may retain family, cultural and other ties that were simply unthinkable in 1790, when the oceans were wider and the sky was not a highway.
Debate about dual and multiple citizenship thus reflects a sea-change in international attitudes. Convicts exiled to Georgia or Australia were still Crown subjects, even though they had 'abjured the Realm'. At the time of the Founding (and until quite recently), the concern for international law was that no individual should be stateless, that there would always be a government responsible to, and more importantly, FOR, an individual who might be committing crimes or generally mucking about the planet. Accordingly, states discouraged dual or multiple citizenship precisely to ensure that only one government - but a government, anyway - would be responsible for individuals.
Whether they admit it or not, many conservatives in particular no longer believe this. This change is pretty clearly revealed not only in the increasing reliance on illegal aliens and guest workers, rather than potential citizens, in American immigration, but also in the telling exchange the restrictionist Peter Brimelow tells of arch-conservative Wall Street Journal editorialist Robert Barkley: "I think the nation-state is dead," Barkley told the astonished Brit turned U.S. citizen. "Kenichi] Ohmae [author of The Borderless World, a prophet of economic regionalism popular among businessmen] is right."
Moreover, the Supreme Court and lower decisions support the view, stated blunted in Afroyim vs. Rusk in 1967, that the U.S. government has no power to remove an individual's citizenship once lawfully acquired. So the "expatriating acts" enacted by Congress (which resulted in the only naturalization oath, to RE-acquire citizenship, ever written by the Congress), have all been vacated by the courts. Only a U.S. citizen can say when - or if - they choose to give up their U.S. citizenship; the government is powerless.
Another clear fact is that the U.S. has a sovereign right to say who is (or may become) an American citizen - under the Constitution. But we cannot say who is (or may acquire) a Mexican, Israeli, or any other citizenship. Should such a nation choose to continue regarding as its own those who had formerly been, yet who 'renounced and abjured' such to naturalize as U.S. citizens, there is nothing the U.S. can do about another nation's laws.
(Personally, I propose a simple rule: Dual citizenship is good, only so far as it extends the rights, privileges and obligations of U.S. citizens; to the extent it does not, it's bad.)
But dual citizenship conflicts directly with the words of the traditional Oath, and thus also with equal protection under the Constitution.
Because the 14th amendment requires that all citizens "born or naturalized" receive equal protection of the laws, it is not likely that the Constitution will allow different treatment for naturalized citizens regarding their rights recognized by foreign governments than are provided to other U.S. citizens.
The word "abjure", then - which Lamar Alexander and roughly a third of his colleagues wants to keep, but which the Bush administration was prepared to give up - poses a dilemma. If it means what it says, not only to state as an oath but "to abandon forever", it is potentially grounds for asserting a defect in naturalization in those who were not, in fact, swearing to abandon forever their previous homeland. Many new citizens, particularly those with elite international skills, may want to be 'citizens of the global economy', in the phrase of Computerworld editorialist Mary Fran Johnson, while enjoying U.S. citizenship, as well as EU or other passports.
(Let the record show that despite his confidence that the nation-state is dead, Barkley retains his U.S. passport. Wonders will never cease.)
On the other hand, if abjure does not mean what it says, this presents the question whether the Oath can fulfill its instructive purpose when it contains words that are not only archaic but actually meaningless.
Finally, the ultimate question is precisely what purposes the Oath is supposed to serve. As a legally binding statement, it is necessary for naturalization (with the exception of young children) so the specifics of the Oath's language are vital. Yet if "abjure" is not meaningful in a literal sense, it becomes unclear what the renunciation means in law. That is a strong argument for removing only the meaningless word 'abjure', while retaining the statutory requirement to renounce as the Jordan Commission and (briefly) the Bush administration proposed to do. If any of the verbs (as opposed to a noun, like "potentate") in the Oath is wholly meaningless, the commitment made by the oathtaker has substantially changed.
So there are instances in which the law has changed, but the oath has not.
Those conservatives who insist that the actual legal obligation reflected in the Oath's old phrase "to bear arms" is significantly altered by the new language, are simply wrong. The U.S. government does not have the power to force conscientious objects to bear arms, and there are many who naturalize (the elderly, for instance) who would hesitate to make such a commitment, as a moral matter (swearing an oath for many is a religious act) if they cannot meet it. One has to wonder why conservatives would insist on preserving language that is hard to understand "of whom or which I have heretofore been", or literally contrary to fact and law, e.g., "to bear arms" for those who can't or won't.
What are they conserving?
As a commitment made freely in specific language, the Oath of Renunciation and Allegiance has served for more than 213 years as the primary means of naturalizing U.S. citizens. It must serve an essential, instructive function that has increasingly been impeded by its form and archaic phrasing. There have been several efforts, notably by the late Richard Estrada, a number of immigration judges and most recently, the BCIS, to make it more effectively meaningful by relying the underlying statutory requirements.
But despite the distinct potential that changing the language will now simply become one more political lever against sensible immigration reform, clearly the most difficult word in the oath "abjure", has had its historical meaning, in the sense of "exile", completely outmoded by globalization. (For example, international law no longer recognizes exile as a punishment for crimes.)
Moreover, the original purpose of the renunciation in the Oath is not simply to abandon, but also to commit to equality in the law which, at the time the original language was crafted in New York State before 1790 and elaborated all over the country thereafter, existed ONLY in the United States.
The Estrada Oath and the BCIS version both capture that commitment to the U.S. Constitution. In proposing a revised oath, BCIS especially sought to affirmatively resolve the obstacles the traditional Oath poses for new Americans, without cracking open the massive nest of nightcrawlers involved in dual citizenship, much less the defect in naturalization and equal protection issues raised by clinging to "abjure".
But not everybody wants to avoid them. John Miller, the National Review writer who put this can of worms on the table by publishing the BCIS draft, considered it a "despicable comment" when he read that Tim Edgar of the ACLU had said: "I think some are confused about this new oath, maybe trying to invent controversy for the purpose of casting doubt on the loyalty of new Americans and on the dedication of the immigration service, and I think that's a shame."
It may offend some, but there is simply no other way to read the motivation of those who oppose the Oath's revision - once they know the history and meaning of the current language. This was not written by Thomas Jefferson or James Madison, nor by whatever "rowdy patriots" Senator Alexander had in mind. There is nothing sacred about the wording. It derives from a long and not specifically inspiring history, for a very precise and inspiring purpose: to make new Americans for the 21st century, just as it did for the 19th and 20th. It cannot do that, if it is not understood by those who say it, and if it does not mean what it says: period.
So if Senator Alexander and the cosponsors of his legislation want to codify the traditional Oath into law they will have to confront the question of dual loyalties and multiple citizenship that is embedded in the words. But it may be impossible for anybody to improve much on the Estrada/BCIS revisions without debating the five statutory requirements. That would lead straight to an argument about citizenship and loyalties, about equal protection and differences between natives and naturalized citizens.
Is there any good place for traction on that slippery slope?
Paul Donnelly writes about immigration and citizenship. He can be reached at firstname.lastname@example.org
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.