a denial of power to the legislature
to impose other oaths appropriate to
the special office, in addition to the
general office prescribed by the Con-
stitution.
"But the Constitutional Convention
of 1867 sat in reconstruction days,
and many of its members had, no
doubt, personal experiences of the
working of those "Oaths of Loyalty"
which, in Maryland as well as else-
where, had aroused much opposition
and were considered productive of
great injustice. They wanted to make
plain that, so far as qualifiication for
office was concerned, the official oath
should never be used to accomplish
indirectly what could not be done di-
rectly.
"They, therefore, deliberately omit-
ted the authority contained in every
previous Declaration of Rights, giving
the legislature the power to impose
an official oath, and to give emphasis
to this design introduced the positive
prohibition as we now find it."4
CONFLICT WITH OBER LAW
In order to sustain the legality of a
statute requiring loyalty oaths, must the
provisions of the Maryland Constitution
which prescribe an oath of office and
prohibit the legislature from prescribing
additional oaths be supported by a fur-
ther constitutional provision which denies
the right to hold public office to anyone
who advocates the overthrow of the gov-
ernment by force or violence?
The Maryland Subversive Activities
Act, commonly referred to as the Ober
Law, contains various provisions de-
signed to safeguard against sedition and
other subversive activities.5 Section 13 of
4 A. niles, maryland constitutional
law 55-56 (1915).
5 Mo. code ann. art. 85A (1957, repl.
vol. 1964).
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the Act requires every state employee
"to make a written statement which shall
contain notice that it is subject to the
penalties of perjury, that he or she is not
a subversive person as defined in this
article." The employee who either fails
to execute such a statement or admits to
being subversive "shall immediately be
discharged." Section 15 provides the re-
quirement that candidates for election
file affidavits that they are not "subversive
persons."
The relative merits of the arguments
pro and con, regarding the (federal) con-
stitutionality of the loyalty oath, will not
be considered in this memorandum.6 The
only question at hand is, does the consti-
tutional prohibition against prescribing
other oaths render the Ober oaths illegal,
or are they saved by virtue of Article XV,
Section 1 1 ? The latter reads :
"No person who is a member of an
organization that advocates the over-
throw of the Government of the United
States or of the State of Maryland
through force or violence shall be
eligible to hold any office, be it elective
or appointive, or any other position of
profit or trust in the Government of or
in the administration of the business of
this state or of any county, municipal-
ity or other political subdivision of this
State. (Ratified November 2, 1948.)"
It is apparent that Article 37 of the
Declaration of Rights does not preclude
the constitutionality of the oath require-
6 Issues involving First Amendment free-
doms, due process, etc., are dealt with at
length elsewhere. See Shub v. Simpson, 196
Md. 177, 76 A.2d 332 (1950); Prendergast,
Maryland: The Ober Anti-Communist Law,
in the states and subversion 140 (Gell-
horn, ed. 1952) ; R. brown, jr., loyalty and
security (1958); J. bryson, legality of
loyalty oath and non-oath require-
ments for public school teachers
(1963).
325
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