THE CHAIRMAN: Before the Chair-
man answers that question, let me state
simply so that the official transcript will
show it, that the Supreme Court of the
United States this morning handed down
its opinion in the case of Whitehill v.
Elkins, No. 25, October Term, 1967. The
majority opinion delivered by Mr. Justice
Douglas and the minority opinion delivered
by Mr. Justice Harlan, with whom Mr.
Justice Stewart and Mr. Justice White
concurred, have been reproduced, and
copies are on the desk of each delegate. The
opinion and suit dealt with the requirement
that a teacher at the University of Mary-
land take an oath required by the Mary-
land statute, commonly referred to/as the
Ober Act.
Delegate Boyer has had a copy of this
opinion for somewhat longer than the re-
maining delegates, and he may be able to
comment more fully about it.
DELEGATE BOYER: I would be very
glad to answer Delegate Bennett's ques-
tion if I could. I received a copy of the
opinion about, I guess a half hour ago. We
were in the Committee room, and to be
perfectly honest, I have not read it myself
yet. All I know is what I have heard on
the radio, driving down here this morning,
that it was a 6 to 3 decision in which the
majority said that the Ober Law of Mary-
land was too vague to reach the constitu-
tional test, and the minority said the only
thing they could find in the majority opin-
ion was that they did not like loyalty oaths.
I have not read the opinion to really,
truly answer that, sir.
THE CHAIRMAN: Delegate Blair.
DELEGATE BLAIR: Mr. Chairman, I
do not think it materially affects the ques-
tion today regarding the oath, because in
the case of Shub v. Simpson, in 177 Mary-
land, the Court of Appeals held that the
oath in the Ober case was not an oath. It
was alleged to be an oath, but the Court
actually found it not to be an oath; so,
therefore, it is more in the nature of a
declaration or affirmation independent of
the concept of being an oath. I think that
the question of the Ober Law as far as the
voting today on the oath is concerned, is
not of material import. I think it would
be, however, important for us to read and
determine the meaning of the Supreme
Court decision in the case insofar as it
pertains to the retention of Article XV,
Section 11 of the Constitution. I think that
that article and section were enacted for
the purpose of implementing the Ober Law; |
so it may be that when the Committee on
General Provisions determines whether to
retain in the Constitution Article XV, Sec-
tion 11, which was the basis for the Ober
Law, that at that time we can consider
the constitutionality and the decision of
the Supreme Court in ruling on the uncon-
stitutionality of the Ober Law.
I think the Ober Law may decide that
Article XV, Section 11 may not be neces-
sary, and then again, it may be necessary
for other purposes, but I think that will
come when we meet it. I think the impor-
tant question before us right now is the
question of whether or not there is a need
to consider the Ober Law in connection
with the oath, and my conclusion in that
respect is, it is not.
DELEGATE BOYER: Further answer-
ing Delegate Bennett's question, the Gen-
eral Provisions Committee did consider the
theological interpretation of the impact of
the oath and also the Ober Law, and it
was our considered opinion that we should
frame our oath as we have presented it to
you so it would be flexible because we knew
at the time that the Whitehill case was
pending in the Supreme Court and not
being able to second-guess which way the
Supreme Court would rule, and knowing
that that rule, whatever it may be, would
be final, we have deliberately reworded the
oath section so that it would not affect it.
THE CHAIRMAN: Are there any
further questions for purposes of clarifica-
tion? Delegate Lord?
DELEGATE LORD: Mr. President, I
would like to further comment, as a mem-
ber of the subcommittee, on the question
raised by Delegate Sickles about the mean-
ing of the term, "office of profit or trust."
In the final report of the Commission, at
pages 558 and following, there is a lengthy
excerpt from an opinion of Judge Barnes
of the Court of Appeals of Maryland in the
case of Board of Supervisors of Elections
for Anne Arundel County v. the Attorney
General. The way this applies to the ques-
tion by Delegate Sickles is that in the re-
citation of the case law and opinions of
the Attorney General on this subject, Judge
Barnes refers to many different examples
of "offices of profit or trust". He says that
"all officers elected by the people are pub-
lic officers", and this applies to local as
well as statewide elections. He also gives
many examples, but the applicable ones to
the question would be members of the
Howard County Metropolitan Commission,
members of the Court Development Com- |
