One item that I noticed on the New York bar form was the question of whether there was anything keeping me from swearing to uphold the federal and NY constitutions.
My question is, what about the oaths all the other states make me swear to uphold their constitutions? Now, in theory this isn't a problem. But what if, say, NY and California get into some sort of tussle, legal or otherwise. Who am I bound to support?
Actually, this isn't entirely a silly question. The fact of the matter is that I've already had to swear a loyalty oath to California years ago when I got my job as a soccer referee for Cal intramurals. Because I was working for the university (albeit at $8/hr for maybe 10 hours a week) I had to sign the oath as part of my employment paperwork. (Note - this may not be the version I initially signed way back in 1992, but it was something similar.)
I'm surprised it's still there. It was controversial from the get-go, and according to this article, overturned by a court case.
In any case, what good is an oath that you are forced to sign? Oh, sure, no gun was pointed to my head. But the threat of the loss of a job, particularly a non-fungible one that may be your only realistic option given your skillset (e.g., it's not like Berkeley was rife with employment opportunities for soccer referees other than the intramural position), and certainly the loss of a vocation (e.g., being a lawyer), seems like enough to create a climate of duress.
An oath would seem to make a little more sense in terms of the lawyering because lawyers are considered officers of the courts, which themselves derive their legitimacy from them constitutions that either establish them or their mechanisms for establishment. But what does it mean to swear to uphold a Constitution? Does it mean one must accept the institutions they create? Or accept every law those institutions create? What if such acceptance conflicts with zealous advocacy, when a law legitimately passed may still be illegitimate? Or what if you simply just disagree with it?
The problem with loyalty oaths is that they are often overreaching things that require allegiance more than they require assent to recognize certain sources of law, which it seems is all that is necessary here. And as with other issues connected to sources of law it doesn't seem so farfetched that there couldn't one day be a conflict between them.