True Allegiance

I have blogged at great length about the Canadian citizenship oath, which requires naturalized Canadians to swear “true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, [and] Her Heirs and Successors”. So I’m happy to report that all this blogging has led me to produce a (hopefully) scholarly paper, which I will be presenting at a conference on Emerging Issues in Canadian Public Law at the University of Ottawa exactly two weeks from today. I have posted the draft paper on SSRN, and would welcome any feedback. Here is the abstract:

Would-be Canadian citizens are required to swear an oath, which includes a promise of “true allegiance” to the Queen. For some, swearing allegiance to a what they regard as a person embodying inequality, colonialism, and oppression goes against their deeply-held republican or egalitarian values. However, Canadian courts have so far rejected Charter challenges to the citizenship oath.

This article argues that the oath is, nevertheless, unconstitutional, albeit on a basis different from that mostly canvassed by the courts which have considered it. Rather than an infringement of freedom of expression, the citizenship oath should be analyzed as a violation of the freedom of conscience of those required to take it. Like most oaths, it is an attempt not only to impress the importance of the obligation it imposes on those who take it, but also to enlist their sense of right and wrong ― that is to say, their conscience ― in the service of the state’s objectives. 

Because the citizenship oath is a violation of freedom of conscience, it is irrelevant that those who object to it may be misunderstanding its true significance, or the real nature of “the Queen” in Canadian law. As in freedom of religion cases, courts must recognize their subjective conception of their conscientious obligations, and the extent to which taking the oath conflicts with them. With this in mind, it becomes apparent that the reasons advanced to justify the oath under s. 1 of the Charter cannot do so.

You can download the full paper here.

One of the excuses I give myself for spending so much time on this blog is that it will, one day, help my scholarship. Well, here’s the first evidence that this is not entirely wishful thinking. However, as I have now found out, there is quite a way to go between even a series of posts and an academic paper. It is certainly not a matter of stitching the posts together and sprinkling them with scholarly-looking footnotes. My thinking has changed somewhat in the process of writing, and there is, hopefully, more depth to the paper than to the blog posts that preceded it. (This is a lesson, also, for those who might be tempted to appraise blog posts as if they were mini-papers, and to criticize them for not living up to that standard. It is not a standard that blog posts, even relatively long and researched ones, such as many of mine, are meant to attain. The two media are really quite different.) Still, I know that I would never had written this paper if I hadn’t done the preliminary reading and thinking as part of my blogging, and the posts really were helpful in developing my ideas. On the whole, then, a positive experience.

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