Doubtful for Two Reasons
"There are two causes to doubt whether the University as an institution is put under legal obligations by the act. The first is the point which you appear to have made according to the newspaper items I have seen viz, that the act may be construed as issuing commands only to teachers and to the officers of the state. The transition from Every citizen . . . shall etc. (employing a verb in the active voice) to 'No professor . . . shall be permitted,' in the passive voice, suggests the construction which you doubtless first assumed.
May Be Unconstitutional
"The more important point is that there is also a possibility that the statute is unconstitutional. If it is unconstitutional, anyone who cooperates in its enforcement is cooperating in harassment of citizens in violation of the supreme law of the land. It is hard to answer the question satisfactorily because in so far as the oath refers to support of the federal and state constitutions, I find it to be absolutely without meaning. Section 2a expressly recognizes 'The basic principle of the constitution which assures every citizen, etc. the right to advocate changes . . . in both the state and federal constitutions.' Obviously, one may thus teach that the Electoral College, for instance, is a silly anachronism. It is thus not necessary to support the constitutions in a partisan sense the way one supports a political candidate, or his country when it is a belligerent. Unlike public officers we teachers in private institutions, at least, have no official duties to perform under the constitutions. I can hardly conceive of any act of a teacher that would violate this oath except perhaps the advocacy of overthrowing the government by force, and that would be unlawful in the absence of the statute.
Condemns Blue Eagle
"It is a strange spectacle that a community which has barely stopped flaunting a blue eagle with the words 'we do our part' (in carrying out the greatest conspiracy against the Constitution in the history of the United States) should now suddenly be attempting to rush to Constitution Worship. If this statute were a Republican political dodge it would be intelligible, but it appears to be something more insidious. The Legislature is requiring us to say 'Hocus pocus' which I regard as a petty personal indignity . . . .
Derides American Legion
"Suppose the Legislature should pass a law 'Be it onacted, etc., as follows:
"'Sec. 1. Every member of the American Legion shall refrain from drunkenness, lewdness, or the advocacy of uneconomic or selfish measures.
"'Sec. 2a. No such member need observe prevalent standards of sobriety, morality, or fair play so long as he follows his own personal standards.
"'Sec. 3. There shall be no penalty for violation of this statute.'
"I think members of the Legion would justifiably be slightly annoyed. I am probably slightly annoyed also. If I were not, I might write you a somewhat shorter letter.
"As the 'Teachers' Oath Act' stands, the Legislature seems to be making merely a nasty gesture suggestive of Hitler or Mussolini. Legislators who voted for it were flirting with violation of their own oaths to support the Constitution, but it is not clear that they have accomplished even that. Yours sincerely, James A. McLaughlin."