Schneiderman v. United States , 63 S. Ct. 1333 ( 1943 )

Mr. Justice Murphy

delivered the opinion of the Court.

We brought this case here on certiorari, 314 U. S. 597, because of its importance and its possible relation to freedom of thought. The question is whether the naturalization of petitioner, an admitted member of the Communist Party of the United States, was properly set aside by the courts below some twelve years after it was granted. We agree with our brethren of the minority that our relations with Russia, as well as our views regarding its government and the merits of Communism are immaterial to a decision of this case. Our concern is with what Congress meant by certain statutes and whether the Government has proved its case under them.

While it is our high duty to carry out the will of Congress, in the performance of this duty we should have a jealous regard for the rights of petitioner. We should let our judgment be guided so far as the law permits by the spirit of freedom and tolerance in which our nation was founded, and by a desire to secure the blessings of liberty in thought and action to all those upon whom the right of American citizenship has been conferred by statute, as well as to the native born. And we certainly should presume that Congress was motivated by these lofty principles.

We are directly concerned only with the rights of this petitioner and the circumstances surrounding his naturalization, but we should not overlook the fact that we are a heterogeneous people. In some of our larger cities a majority of the school children are the offspring of parents only one generation, if that far, removed from the steerage of the immigrant ship, children of those who sought refuge in the new world from the cruelty and oppression of the old, where men have been burned at the stake, imprisoned, and driven into exile in countless numbers for their political and religious beliefs. Here they have hoped to achieve a political status as citizens in a free world in which men are privileged to think and act and speak according to their convictions, without fear of punishment or further exile so long as they keep the peace and obey the law.

This proceeding was begun on June 30, 1939, under the provisions of § 15 of the Act of June 29, 1906, 34 Stat. 596, to cancel petitioner’s certificate of citizenship granted in 1927. This section gives the United States the right and the duty to set aside and cancel certificates of citizenship on the ground of “fraud” or on the ground that they were “illegally procured.”¹ The complaint charged that the certificate had been illegally procured in that petitioner was not, at the time of his naturalization, and during the five years preceding his naturalization “had not behaved as, a person attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States,² but in truth and in fact during all of said times, respondent [petitioner] was a member of and affiliated with and believed in and supported the principles of certain organizations then known as the Workers (Communist) Party of America and the Young Workers (Communist) League of America, whose principles were opposed to the principles of the Constitution of the United States and advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence.” The complaint also charged fraudulent procurement in that petitioner concealed his Communist affiliation from the naturalization court. The Government proceeds here not upon the charge of fraud but upon the charge of illegal procurement.

This is not a naturalization proceeding in which the Government is being asked to confer the privilege of citizenship upon an applicant. Instead the Government seeks to turn the clock back twelve years after full citizenship was conferred upon petitioner by a judicial decree, and to deprive him of the priceless benefits that derive from that status. In its consequences it is more serious than a taking of one’s property, or the imposition of a fine or other penalty. For it is safe to assert that nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance. By many it is regarded as the highest hope of civilized men. This does not mean that once granted to an alien, citizenship cannot be revoked or cancelled on legal grounds under appropriate proof. But such a right once conferred should not be taken away without the clearest sort of justification and proof. So, whatever may be the rule in a naturalization proceeding (see United States v. Manzi, 276 U. S. 463, 467), in an action instituted under § 15 for the purpose of depriving one of the precious right of citizenship previously conferred we believe the facts and the law should be construed as far as is reasonably possible in favor of the citizen. Especially is this so when the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness. It is not denied that the burden of proof is on the Government in this case. For reasons presently to be stated this burden must be met with evidence of a clear and convincing character that when citizenship was conferred upon petitioner in 1927 it was not done in accordance with strict legal requirements.

We are dealing here with a court decree entered after an opportunity to be heard. At the time petitioner secured his certificate of citizenship from the federal district court for the Southern District of California notice of the filing of the naturalization petition was required to be given ninety days before the petition was acted on (§ 6 of the Act of 1906), the hearing on the petition was to take place in open court (§9), and the United States had the right to appear, to cross-examine petitioner and his witnesses, to introduce evidence, and to oppose the petition (§ 11). In acting upon the petition the district court exercised the judicial power conferred by Article III of the Constitution, and the Government had the right to appeal from the decision granting naturalization. Tutun v. United States, 270 U. S. 568. The record before us does not reveal the circumstances under which petitioner was naturalized except that it took place in open court. We do not know whether or not the Government exercised its right to appear and to appeal. Whether it did or not, the hard fact remains that we are here re-examining a judgment, and the rights solemnly conferred under it.

This is the first case to come before us in which the Government has sought to set aside a decree of naturalization years after it was granted on a charge that the finding of attachment was erroneous. Accordingly for the first time we have had to consider the nature and scope of the Government’s right in a denaturalization proceeding to re-examine a finding and judgment of attachment upon a charge of illegal procurement. Because of the view we take of this case we do not reach, and therefore do not consider, two questions which have been raised concerning the scope of that right.

The first question is whether, aside from grounds such as lack of jurisdiction or the kind of fraud which traditionally vitiates judgments, cf. United States v. Throckmorton, 98 U. S. 61; Kibbe v. Benson, 17 Wall. 624, Congress can constitutionally attach to the exercise of the judicial power under Article III of the Constitution, authority to re-examine a judgment granting a certificate of citizenship after that judgment has become final by exhaustion of the appellate process or by a failure to invoke it.³

The second question is whether under the Act of 1906 as it was in 1927 the Government, in the absence of a claim of fraud and relying wholly upon a charge of illegal procurement, can secure a de novo re-examination of a naturalization court’s finding and judgment that an applicant for citizenship was attached to the principles of the Constitution.

We do not consider these questions. For though we assume, without deciding, that in the absence of fraud a certificate of naturalization can be set aside under § 15 as “illegally procured” because the finding as to attachment would later seem to be erroneous, we are of the opinion that this judgment should be reversed. If a finding of attachment can be so reconsidered in a denat-uralization suit, our decisions make it plain that the Government needs more than a bare preponderance of the evidence to prevail. The remedy afforded the Government by the denaturalization statute has been said to be a narrower one than that of direct appeal from the granting of a petition. Tutun v. United States, 270 U. S. 568, 579; cf. United States v. Ness, 245 U. S. 319, 325. Johannessen v. United States states that a certificate of citizenship is “an instrument granting political privileges, and open like other public grants to be revoked if and when it shall be found to have been unlawfully or fraudulently procured. It is in this respect closely analogous to a public grant of land, . . .” 225 U. S. 227, 238. See also Tutun v. United States, supra. To set aside such a grant the evidence must be “clear, unequivocal, and convincing” — “it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt.” Maxwell Land-Grant Case, 121 U. S. 325, 381; United States v. San Jacinto Tin Co., 125 U. S. 273, 300; cf. United States v. Rovin, 12 F. 2d 942, 944. See Wigmore, Evidence, (3d Ed.) § 2498. This is so because rights once conferred should not be lightly revoked. And more especially is this true when the rights are precious and when they are conferred by solemn adjudication, as is the situation when citizenship is granted. The Government’s evidence in this case does not measure up to this exacting standard.

Certain facts are undisputed. Petitioner came to this country from Russia in 1907 or 1908 when he was approximately three. In 1922, at the age of sixteen, he became a charter member of the Young Workers (now Communist) League in Los Angeles and remained a member until 1929 or 1930. In 1924, at the age of eighteen, he filed his declaration of intention to become a citizen. Later in the same year or early in 1925 he became a member of the Workers Party, the predecessor of the Communist Party of the United States. That membership has continued to the present. His petition for naturalization was filed on January 18, 1927, and his certificate of citizenship was issued on June 10, 1927, by the United States District Court for the Southern District of California. He had not been arrested or subjected to censure prior to 1927,⁴ and there is nothing in the record indicating that he was ever connected with any overt illegal or violent action or with any disturbance of any sort.

Eor its case the United States called petitioner, one Humphreys, a former member of the Communist Party, and one Hynes, a Los Angeles police officer formerly in charge of the radical squad, as witnesses, and introduced in evidence a number of documents. Petitioner testified on his own behalf, introduced some documentary evidence, and read into the record transcripts of the testimony of two university professors given in another proceeding.

Petitioner testified to the following: As a boy he lived in Los Angeles in poverty-stricken circumstances and joined the Young Workers League to study what the principles of Communism had to say about the conditions of society. He considered his membership and activities in the League and the Party during the five-year period between the ages of sixteen and twenty-one before he was naturalized, as an attempt to investigate and study the causes and reasons behind social and economic conditions. Meanwhile he was working his way through night high school and college. From 1922 to about 1925 he was “educational director” of the League. The duties of this nonsalaried position were to organize classes, open to the public, for the study of Marxist theory, to register students and to send out notices for meetings; petitioner did no teaching. During 1925 and 1926 he was corresponding secretary of the Party in Los Angeles; this was a clerical, not an executive position. In 1928 he became an organizer or official spokesman for the League. His first executive position with the Party came in 1930 when he was made an organizational secretary first in California, then in Connecticut and later in Minnesota where he was the Communist Party candidate for governor in 1932. Since 1934 he has been a member of the Party’s National Committee. At present he is secretary of the Party in California.

Petitioner testified further that during all the time he has belonged to the League and the Party he has subscribed to the principles of those organizations. He stated that he “believed in the essential correctness of the Marx theory as applied by the Communist Party of the United States,” that he subscribed “to the philosophy and principles of Socialism as manifested in the writings of Lenin,” and that his understanding and interpretation of the program, principles and practice of the Party since he joined “were and are essentially the same as those enunciated” in the Party’s 1938 Constitution. He denied the charges of the complaint and specifically denied that he or the Party advocated the overthrow of the Government of the United States by force and violence, and that he was not attached to the principles of the Constitution. He considered membership in the Party compatible with the obligations of American citizenship. He stated that he believed in retention of personal property for personal use but advocated social ownership of the means of production and exchange, with compensation to the owners. He believed and hoped that socialization could be achieved here by democratic processes but history showed that the ruling minority has always used force against the majority before surrendering power. By dictatorship of the proletariat petitioner meant that the “majority of the people shall really direct their own destinies and use the instrument of the state for these truly democratic ends.” He stated that he would bear arms against his native Russia if necessary.

Humphreys testified that he had been a member of the Communist Party and understood he was expelled because he refused to take orders from petitioner. He had been taught that present forms of government would have to be abolished “through the dictatorship of the proletariat” which would be established by a “revolutionary process.” He asserted that the program of the Party was the socialization of all property without compensation. With regard to advocacy of force and violence he said: “the Communist Party took the defensive, and put the first users of force upon the capitalistic government; they claimed that the capitalistic government would resist the establishment of the Soviet system, through force and violence, and that the working class would be justified in using force and violence to establish the Soviet system of society.”

Hynes testified that he had been a member of the Party for eight months in 1922. He stated that the Communist method of bringing about a change in the form of government is one of force and violence; he based this statement upon: “knowledge I have gained as a member in 1922 and from what further knowledge I have gained from reading various official publications, published and circulated by the Communist Party and from observation and actual contact with the activities of the Communist Party . . .” ⁵ On cross-examination Hynes admitted that he never attempted a philosophic analysis of the literature he read, but only read it to secure evidence, reading and underscoring those portions which, in his opinion, “had to do with force or violence or overthrowing of this system of government other than by lawful means provided in the Constitution.” He testified that he never saw any behavior on petitioner’s part that brought him into conflict with any law.

The testimony of the two professors discussed Marxian theory as evidenced by the writings of Marx, Engels and Lenin, and concluded that it did not advocate the use of force and violence as a method of attaining its objective.

In its written opinion the district court held that petitioner’s certificate of naturalization was illegally procured because the organizations to which petitioner belonged were opposed to the principles of the Constitution and advised, taught and advocated the overthrow of the Government by force and violence, and therefore petitioner, “by reason of his membership in such organizations and participation in their activities, was not ‘attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.’ ” 33 F. Supp. 510, 513.

The district court also made purported findings of facts to the effect that petitioner was not attached to the principles of the Constitution and well disposed to the good order and happiness of the same, and was a disbeliever in organized government, that he fraudulently concealed his membership in the League and the Party from the naturalization court, and that his oath of allegiance was false. The conclusion of law was that the certificate was illegally and fraudulently procured. The pertinent findings of fact on these points, set forth in the margin,⁶ are but the most general conclusions of ultimate fact. It is impossible to tell from them upon what underlying facts the court relied, and whether proper statutory standards were observed. If it were not rendered unnecessary by the broad view we take of this case, we would be inclined to reverse and remand to the district court for the purpose of making adequate findings.

The Circuit Court of Appeals affirmed on the ground that the certificate was illegally procured, holding that the finding that petitioner's oath was false was not “clearly erroneous.” 119 E. 2d 500.⁷ We granted certiorari, and after having heard argument and reargument, now reverse the judgments below.

I

The Constitution authorizes Congress “to establish an uniform rule of naturalization” (Art. I, § 8, cl. 4), and we may assume that naturalization is a privilege, to be given or withheld on such conditions as Congress sees fit. Cf. United States v. Macintosh, 283 U. S. 605, 615, and the dissenting opinion of Chief Justice Hughes, ibid, at p. 627. See also Tutun v. United States, 270 U. S. 568, 578; Turner v. Williams, 194 U. S. 279. But because of our firmly-rooted tradition of freedom of belief, we certainly will not presume in construing the naturalization and denatural-ization acts that Congress meant to circumscribe liberty of political thought by general phrases in those statutes. As Chief Justice Hughes said in dissent in the Macintosh case, such general phrases “should be construed, not in opposition to, but in accord with, the theory and practice of our Government in relation to freedom of conscience.” 283 U. S. at 635. See also Holmes, J., dissenting in United States v. Schwimmer, 279 U. S. 644, 653-55.

When petitioner was naturalized in 1927, the applicable statutes did not proscribe communist beliefs or affiliation as such.⁸ They did forbid the naturalization of disbelievers in organized government or members of organizations teaching such disbelief. Polygamists and advocates of political assassination were also barred.⁹ Applicants for citizenship were required to take an oath to support the Constitution, to bear true faith and allegiance to the same and the laws of the United States, and to renounce all allegiance to any foreign prince, potentate, state or sovereignty.¹⁰ And, it was to “be made to appear to the satisfaction of the court” of naturalization that immediately preceding_the-application, the applicant “has resided continuously within the United States five years at least, . . . and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”¹¹ Whether petitioner satisfied this last requirement is the crucial issue in this case.

To apply the statutory requirement of attachment correctly to the proof adduced, it is necessary to ascertain its meaning. On its face the statutory criterion is not attachment to the Constitution, but behavior for a period of five years as a man attached to its principles and well disposed to the good order and happiness of the United States. Since the normal connotation of behavior is conduct, there is something to be said for the proposition that the 1906 Act created a purely objective qualification, limiting inquiry to an applicant’s previous conduct.¹² If this objective standard is the requirement, petitioner satisfied the statute. His conduct has been law abiding in all respects. According to the record he has never been arrested, or connected with any disorder, and not a single written or spoken statement of his, during the relevant period from 1922 to 1927 or thereafter, advocating violent overthrow of the Government, or indeed even a statement, apart from his testimony in this proceeding, that he desired any change in the Constitution has been produced. The sole possible criticism is petitioner’s membership and activity in the League and the Party, but those memberships qua- memberships were immaterial under the 1906 Act.

In United States v. Schwimmer, 279 U. S. 644, and United States v. Macintosh, 283 U. S. 605; however,, it was held that the statute created a test of belief — that an applicant under the 1906 Act must not only behave as a man attached to the principles of the Constitution, but must be so attached in fact at the time :of naturalization. We do not stop to reexamine this construction for even'if it* is accepted, the result is not changed.. As mentioned before, we agree with the statement of Chief Justice Hughes in dissent in Macintosh’s case that the behavior requirement is “a general phrase which should be construed, not in. opposition to., but in accord with, the theory and practice of our Government in relation to freedom of conscience.” 283 U. S. at 635. See also the dissenting opinion of. Justice Holmes in the Schwimmer case, supra, 653-55. As pointed out before, this is a denaturalization proceeding, and it is a judgment, not merely a claim or a grant, which is being attacked. Assuming as we have that the United States is entitled to attack a finding of attachment upon a charge of illegality, it must sustain, the heavy burden which then rests upon it to .prove lack .of attachment by “clear, unequivocal, and convincing” evidence, which does not leave the issue in doubt. When the attachment requirement is construed as indicated above, we do not think the Government has carried its burden of proof.

.The claim that petitioner was not in fact-attached to the Constitution and well disposed to the good order and happiness of the United States at the-time of his naturalization and for the previous five year period is twofold: First, that, he believed in such sweeping changes in the Constitution that he simply could not be attached to it; Second, that he believed in and advocated the overthrow by force and violence of the Government, Constitution and laws of the United States. ' ■

In support of its position that petitioner was not in fact attached to the principles of the Constitution because of his membership in the League and the Party, the Government has directed our attention first to petitioner’s testimony that he subscribed to the principles of those organizations, and then to certain alleged Party principles and statements by Party Leaders which are said to be fundamentally at variance with the principles of the Constitution. At this point it is appropriate to mention what will be more fully developed later — that under our traditions beliefs are personal and not a matter of mere association, and that men in adhering to a political party or other organization notoriously do not subscribe unquali-fiedly to all of its platforms or asserted principles. Said to be among those Communist principles in 1927 are: the abolition of private property without compensation; the erection of a new proletarian state upon the ruins of the old bourgeois state; the creation of a dictatorship of the proletariat; denial of political rights to others than members of the Party or of the proletariat; and the creation of a world union of soviet republics. ' Statements that American democracy “is a fraud”¹³ and that the purposes of the Party are “utterly antagonistic to the purposes for which the American democracy, so called, was formed,”¹⁴ are stressed.

Those principles and views are not generally accepted— in fact they are distasteful to most of us — and they call for considerable change in our present form of government and society. But we do not think the Government has carried its burden of proving by evidence which does not leave the issue in doubt that petitioner was not in fact attached to the principles of the Constitution and well disposed to the good order and happiness of the United States when he was naturalized in 1927.

The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come.¹⁵ Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V contains procedural provisions for constitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases, 253 U. S. 350. This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is necessarily not attached to the Constitution. United States v. Rovin, 12 F. 2d 942, 944-45.¹⁶ As Justice Holmes said,1'“Surely it cannot show lack of attachment to the principles of the Constitution that . . . [one] thinks it can be improved.” United States v. Schwimmer, supra (dissent). Criticism of, and the sincerity of desires to improve, the Constitution should not be judged by conformity to prevailing thought because, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate.” Id. See also Chief Justice Hughes dissenting in United States v. Macintosh, supra, p. 635. Whatever attitude we may individually hold toward persons and organizations that believe in or advocate extensive changes in our existing order, it should be our desire and concern at all times to uphold the right of free discussion and free thinking to which we as a people claim primary attachment. To neglect this duty in a proceeding in which we are .called upon to judge whether a particular individual has failed to manifest attachment to the Constitution would be ironical indeed.

Our concern is with what Congress meant to be the extent of the area of allowable thought under the statute. By the very generality of the terms employed it is evident that Congress intended an elastic test, one which should not be circumscribed by attempts at precise definition. In view of our tradition of freedom of thought, it is not to be presumed that Congress in the Act of 1906, or its predecessors of 1795 and 1802,¹⁷ intended to- offer naturalization only to those whose political views coincide with those considered best by the founders in 1787 or by the majority in this country today. Especially is this so since the language used, posing the general test of "attachment” is not necessarily susceptible of so repressive a construction.¹⁸ The Government agrees that an alien “may think that the laws and the Constitution should be amended in some or many respects” and still be attached to the principles of the Constitution within the meaning of the statute. Without discussing the nature and extent of those permissible changes, the Government insists that an alien must believe in and sincerely adhere to the “general political philosophy” of the Constitution.¹⁹ Petitioner is said to be opposed to that “political philosophy,” the minimum requirements of which are set forth in the margin.²⁰ It was argued at the bar that since Article V contains no limitations, a person can be attached to the Constitution no matter how extensive the changes are that he desires, so long as he seeks to achieve his ends within the framework of Article V. But we need not consider the validity of this extreme position for if the Government’s construction is accepted, it has not carried its burden of proof even under its own test.

The district court did not state in its findings what principles held by petitioner or by the Communist Party were opposed to the Constitution and indicated lack of attachment. See Note 6, ante. In its opinion that court merely relied upon In re Saralieff, 59 F. 2d 436, and United States v. Tapolcsanyi, 40 F. 2d 255, without fresh examination of the question in the light of the present record. 33 F. Supp. 510. The Circuit Court of Appeals deduced as Party principles roughly the same ones which the Government here presses and stated “these views are not those of our Constitution.” 119 F. 2d at 503-04.

With regard to the Constitutional changes he desired petitioner testified that he believed in the nationalization of the means of production and exchange with compensation, and the preservation and utilization of our “democratic structure ... as far as possible for the advantage of the working classes.” He stated that the “dictatorship of the proletariat” to him meant “not a government, but a state of things” in which “the majority of the people shall really direct their own destinies and use the instrument of the state for these truly democratic ends.” None of this is necessarily incompatible with the “general political philosophy” of the Constitution as outlined above by the Government. It is true that the Fifth Amendment protects private property, even against taking for public use without compensation. But throughout our history many sincere people whose attachment to the general constitutional scheme cannot be doubted have, for various and even divergent reasons, urged differing degrees of governmental ownership and control of natural resources, basic means of production, and banks and the media of exchange, either with or without compensation. And something once regarded as a species of private property was abolished without compensating the owners when the institution of slavery was forbidden.²¹ Can it be said that the author of the Emancipation Proclamation and the supporters of the Thirteenth Amendment were not attached to the Constitution? We conclude that lack of attachment to the Constitution is not shown on the basis of the changes which petitioner-testified he-desired in the Constitution.

Turning now to a seriatim consideration of what the Government asserts are principles of the Communist Party, which petitioner believed and which are opposed to our Constitution, our conclusion remains the same — ; the Government has not proved by “clear, unequivocal and convincing” evidence that the naturalization court could not have been satisfied that petitioner was attached to' the principles of the Constitution when he was naturalized.

We have already disposed of the principle of nationalization of the agents of-production and exchange with or without compensation. The erection of a new proletariat state upon the ruins of the old bourgeois state, and the creation of a dictatorship of the proletariat may be considered together. The concept of the dictatorship of the proletariat is one loosely used, upon which more words than light have been shed. Much argument has been directed as to how it is to be achieved, but we have been offered no precise definition here. In the general sense the term may be taken to describe a state in which the workers or the masses, rather than the bourgeoisie or capitalists are the dominant class. Theoretically it is control by a class, not a dictatorship in the sense of absolute and total rule by one individual. So far as the record before us indicates, the concept is a fluid one, capable of adjustment to different conditions in different countries. There are only meager indications of the form the “dictatorship” would take in this- country. It does not appear that it would necessarily mean the end of representative government or the federal system. The Program and Constitution of the Workers Party (1921-24) criticized the constitutional system of checks and balances, the Senate’s power to pass on legislation, and the involved procedure for amending the Constitution, characterizing them as devices designed to frustrate the will of the majority.²² The 1928 platform of the Communist Party of the United States, adopted after petitioner’s naturalization and hence not strictly relevant, advocated the abolition of the Senate,⁷ of the Supreme Court, and of the veto power of the President, and replacement of congressional districts with “councils of workers” in which legislative and executive power would be united. These would indeed be significant changes in our present governmental structure— changes which it is safe to say are not desired by the majority of the people in this country — but whatever our personal views, as judges we cannot say that a person who advocates their adoption through peaceful and constitutional means is not in fact attached to the Constitution— those institutions are not enumerated as necessary in the Government’s test of “general political philosophy,” and it is conceivable that “ordered liberty” could be maintained without them. The Senate has not gone free of criticism and one object of the Seventeenth Amendment was to make it more responsive to the public will.²³ The unicameral legislature is not unknown in the country.²⁴ It is true that this Court has played a large part in the unfolding of the constitutional plan (sometimes too much so in the opinion of some observers), but we would be arrogant indeed if we presumed that a government of laws, with protection for minority groups, would be impossible without it. Like other agencies of government, this Court at various times in its existence has not escaped the shafts of critics whose sincerity and attachment to the Constitution is beyond question — critics who have accused it of assuming functions of judicial review not intended to be conferred upon it, or of abusing those functions to thwart the popular will, and who have advocated various remedies taking a wide range.^24a And it is hardly conceivable that the consequence of freeing the legislative branch from the restraint of the executive veto would be the end of constitutional government.^24b By this discussion we certainly do not mean to indicate that we would favor such changes. Our preference and aversions have no bearing here. Our concern is with the extent of the allowable area of thought under the statute. We decide only that it is possible to advocate such changes and still be attached to the Constitution within the meaning of the Government’s minimum test.

If any provisions of the Constitution can be singled out as requiring unqualified attachment, they are the guaranties of the Bill of Rights and especially that of freedom of thought contained in the First Amendment. Cf. Justice Holmes’ dissent in United States v. Schwimmer, supra. We do not reach, however, the question whether petitioner was attached to the principles of the Constitution if he believed in denying political and civil rights to persons not members of the Party or of the so-called proletariat, for on the basis of the record before us it has not been clearly shown that such denial was a principle of the organizations to which petitioner belonged. Since it is doubtful that this was a principle of those organizations, it is certainly much more speculative whether this was part of petitioner’s philosophy. Some of the documents in the record indicate that “class enemies” of the proletariat should be deprived of their political rights.²⁵ Lenin, however, wrote that this was not necessary to realize the dictatorship of the proletariat.²⁶ The Party’s 1928 platform demanded the unrestricted right to organize, to strike and to picket and the unrestricted right of free speech, free press and free assemblage for the working class. The 1928 Program of the Communist International states that the proletarian State will grant religious freedom, while at the same time it will carry on anti-religious propaganda.

We should not hold that petitioner is not attached to the Constitution by reason of his possible belief in the creation of some form of world union of soviet republics unless we are willing so to hold with regard to those who believe in Pan-Americanism, the League of Nations, Union Now, or some other form of international collaboration or collective security which may grow out of the present holocaust. A distinction here would be an invidious one based on the fact that we might agree with or tolerate the latter but dislike or disagree with the former.

If room is allowed, as we think Congress intended, for the free play of ideas, none of the foregoing principles, which might be held to stand forth with sufficient clarity to be imputed to petitioner on the basis of his membership and activity in the League and the Party and his testimony that he subscribed to the principles of those organizations, is enough, whatever our opinion as to their merits, to prove that he was necessarily not attached to the Constitution when he was naturalized. The cumulative effect is no greater.

Apart from the question whether the alleged principles of the Party which petitioner assertedly believed were so fundamentally opposed to the Constitution that he was not attached to its principles in 1927, the Government contends that petitioner was not attached because he believed in the use of force and violence instead of peaceful democratic methods to achieve his desires. In support of this phase of its argument the Government asserts that the organizations with which petitioner was actively affiliated advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence, and that petitioner therefore believed in that method of governmental change.

Apart from his membership in the League and the Party, the record is barren of any conduct or statement on petitioner’s part which indicates in the slightest that he believed in and advocated the employment of force and violence, instead of peaceful persuasion, as a means of attaining political ends. To find that he so believed, and advocated it is necessary, therefore, to find that such was a principle of the organizations to which he belonged and then impute that principle to him on the basis of his activity in those organizations and his statement that he subscribed to their principles. The Government frankly concedes that “it is normally true . . . that it is unsound to impute to an organization the views expressed in the writings of all its members, or to impute such writings to each member . . .”²⁷ But the Government contends, however, that it is proper to impute to petitioner certain excerpts from the documents in evidence upon which it particularly relies to show that advocacy of force and violence was a principle of the Communist Party of the United States in 1927, because those documents were official publications carefully supervised by the Party, because of the Party’s notorious discipline over its members, and because petitioner was not a mere “rank and file or accidental member of the Party,” but “an intelligent and educated individual” who “became a leader of these organizations as an intellectual revolutionary.” ²⁸ Since the immediate problem is the determination with certainty of petitioner’s beliefs from 1922 to 1927, events and writings since that time have little relevance, and both parties have attempted to confine themselves within the limits of that critical period.

For some time the question whether advocacy of governmental overthrow by force and violence is a principle of the Communist Party of the United States has perplexed courts, administrators, legislators, and students. On varying records in deportation proceedings some courts have held that administrative findings that the Party did so advocate were not so wanting in evidential support as to amount to a denial of due process,²⁹ others have held to the contrary on different records,³⁰ and some seem to have taken the position that they will judicially notice that force and violence is a Party principle.³¹ This Court has never passed upon the question whether the Party does so advocate, and it is unnecessary for us to do so now.

With commendable candor the Government admits the presence of sharply conflicting views on the issue of force and violence as a Party principle,³² and it also concedes that “some communist literature in respect of force and violence is susceptible of an interpretation more rhetorical than literal.” ³³ It insists, however, that excerpts from the documents on which it particularly relies, are enough to show that the trial court’s finding that the Communist Party advocated violent overthrow of the Government was not “clearly erroneous,” and hence can not be set aside.³⁴ As previously pointed out, the trial court’s findings do not indicate the bases for its conclusions, but the documents published prior to 1927 stressed by the Government, with the pertinent excerpts noted in the margin, are: The Communist Manifesto of Marx and Engels;³⁵ The State and Revolution by Lenin;³⁶ The Statutes, Theses and Conditions of Admission to the Communist International;³⁷ and The Theory and Practice of Leninism, written by Stalin.³⁸ The Government also sets forth excerpts from other documents which are entitled to little weight because they were published after the critical period.³⁹

The bombastic excerpts set forth in Notes 35 to 38 inclusive, upon which the Government particularly relies, lend considerable support to the charge. We do not say that a reasonable man could not possibly have found, as the district court did, that the Communist Party in 1927 actively urged the overthrow of the Government by force and violence.⁴⁰ But that is not the issue here. We are not concerned with the question whether a reasonable man might so conclude, nor with the narrow issue whether administrative findings to that effect are so lacking in evi-dentiary support as to amount to a denial of due process. As pointed out before, this is a denaturalization proceeding in which, if the Government is entitled to attack a finding of attachment as we have assumed, the burden rests upon it to prove the alleged lack of attachment by “clear, unequivocal and convincing” evidence. That burden has not been carried. The Government has not proved that petitioner’s beliefs on the subject of force and violence were such that he was not attached to the Constitution in 1927.

In the first place this phase of the Government’s case is subject to the admitted infirmities of proof by imputation.⁴¹ The difficulties of this method of proof are here increased by the fact that there is, unfortunately, no absolutely accurate test of what a political party’s principles are.⁴² Political writings are often over-exaggerated polemics bearing the imprint of the period and the place in which written.⁴³ Philosophies cannot generally be studied in vacuo. Meaning may be wholly distorted by lifting sentences out of context, instead of construing them as part of an organic whole. Every utterance of party leaders is not taken as party gospel. And we would deny our experience as men if we did not recognize that official party programs are unfortunately often opportunistic devices as much honored in the breach as in the observance.⁴⁴ On the basis of the present record we cannot say that the Communist Party is so different in this respect that its principles stand forth with perfect clarity, and especially is this so with relation to the crucial issue of advocacy of force and violence, upon which the Government admits the evidence is sharply conflicting. The presence of this conflict is the second weakness in the Government’s chain of proof. It is not eliminated by assiduously adding further excerpts from the documents in evidence to those culled out by the Government.

The reality of the conflict in the record before us can be pointed out quickly. Of the relevant prior to 1927 documents relied upon by the Government three are writings of outstanding Marxist philosophers, and leaders, the fourth is a world program.⁴⁵ The Manifesto of 1848 was proclaimed in an autocratic Europe engaged in suppressing the abortive liberal revolutions of that year. With this background, its tone is not surprising.⁴⁶ Its authors later stated, however, that there were certain countries, “such as the United States and England in which the workers may hope to secure their ends by peaceful means.” ⁴⁷ Lenin doubted this in his militant work, The State and Revolution, but this was written on the eve of the Bolshevist revolution in Russia and may be interpreted as intended in part to justify the Bolshevist course and refute the anarchists and social democrats.⁴⁸ Stalin declared that Marx’s exemption for the United States and England was no longer valid.⁴⁹ He wrote, however, that “the proposition that the prestige of the Party can be built upon violence ... is absurd and absolutely incompatible with Leninism.”⁵⁰ And Lenin wrote “In order to obtain the power of the state the class conscious workers must win the majority to their side. As long as no violence is used against the masses, there is no other road to power. We are not Blanquists, we are not in favor of the seizure of power by a minority.”⁵¹ The 1938 Constitution of the Communist Party of the United States, which petitioner claimed to be the first and only written constitution ever officially adopted by the Party and which he asserted enunciated the principles of the Party as he understood them from the beginning of his membership, ostensibly eschews resort to force and violence as an element of Party tactics.⁵²

A tenable conclusion from the foregoing is that the Party in 1927 desired to achieve its purpose by peaceful and democratic means, and as a theoretical matter justified the use of force and violence only as a method of preventing an attempted forcible counter-overthrow once the Party had obtained control in a peaceful manner, or as a method of last resort to enforce the majority will if at some indefinite future time because of peculiar circumstances constitutional or peaceful channels were no longer open.

There is a material difference between agitation and exhortation calling for present violent action which creates a clear and present danger of public disorder or other substantive evil, and mere doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future time — prediction that is not calculated or intended to be presently acted upon, thus leaving opportunity for general discussion and the calm processes of thought and reason. Cf. Bridges v. California, 314 U. S. 252, and Justice Brandeis’ concurring opinion in Whitney v. California, 274 U. S. 357, 372-80. See also Taylor v. Mississippi, 319 U. S. 583. Because of this difference we may assume that Congress intended, by the general test of “attachment” in the 1906 Act, to deny naturalization to persons falling into the first category but not to those in the second. Such a construction of the statute is to be favored because it preserves for novitiates as well as citizens the full benefit of that freedom of thought which is a fundamental feature of our political institutions. Under the conflicting evidence in this case we cannot say that the Government has proved by such a preponderance of the evidence that the issue is not in doubt, that the attitude of the Communist Party of the United States in 1927 towards force and violence was not susceptible of classification in the second category. Petitioner testified that he subscribed to this interpretation of Party principles when he was naturalized, and nothing in his conduct is inconsistent with that téstimony. We conclude that the Government has not carried its burden of proving by “clear, unequivocal, and convincing” evidence which does not leave “the issue in doubt,” that petitioner obtained his citizenship illegally. In so holding we do not decide what interpretation of the Party’s attitude toward force and violence is the most probable on the basis of the present record* or that petitioner’s testimony is acceptable at face value. We hold only that where two interpretations of an organization’s program are possible, the one reprehensible and a bar to naturalization and the other permissible, a court in a denatural-ization proceeding, assuming that it can re-examine a finding of attachment upon a charge of illegal procurement, is not justified in canceling a certificate of citizenship by imputing the reprehensible interpretation to a member of the organization in the absence of overt acts indicating that such was his interpretation. So uncertain a chain of proof does not add up to the requisite “clear, unequivocal, and convincing” evidence for setting aside a naturalization decree. Were the law otherwise, valuable rights would rest upon a slender reed, and the security of the status of our naturalized citizens might depend in considerable degree upon the political temper of majority thought and the stresses of the times. Those are consequences foreign to the best traditions of this nation and the characteristics of our institutions.

II

This disposes of the issues framed by the Government’s complaint which are here pressed. As additional reasons for its conclusion that petitioner’s naturalization was fraudulently and illegally procured, the district court found, however, that petitioner was a disbeliever in, and a member of an organization teaching disbelief in, organized government,⁵³ and that his oath of allegiance, required by 8 U. S. C. § 381, was false. These issues are outside the scope of the complaint,⁵⁴ as is another ground urged in support of the judgment below as to which the district court made no findings.⁵⁵ Because they are outside the scope of the complaint, we do not consider them. As we said in De Jonge v. Oregon, “Conviction upon a charge not made would be sheer denial of due process.” 299 U. S. 353, 362. A denaturalization suit is not a criminal proceeding. But neither is it an ordinary civil action since it involves an important adjudication of status. Consequently we think the Government should be limited, as in a criminal proceeding, to the matters charged in its complaint.

One other ground advanced in support of the judgment below was not considered by the lower courts and does not merit detailed treatment. It is that petitioner was not entitled to naturalization because he was deportable in 1927 under the Immigration Act of 1918 (40 Stat. 1012, as amended by 41 Stat. 1008 ; 8 U. S. C. § 137) as an alien member of an organization advocating overthrow of the Government of the United States by force and violence. This issue is answered by our prior discussion of the evidence in this record relating to force and violence. Assuming that deportability at the time of naturalization satisfies the requirement of illegality under § 15 which governs this proceeding, the same failure to establish adequately the attitude toward force and violence of the organizations to which petitioner belonged forbids his denaturalization on the ground of membership.

The judgment is reversed and the cause remanded to the Circuit Court of Appeals for further proceedings in conformity with this opinion.

Reversed.

1 At the time this proceeding was started this section read in part as follows:

“It shall be the duty of the United States district attorneys for the respective districts, or the Commissioner of Immigration and Naturalization or Deputy Commissioner of Immigration and Naturalization, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured ...” 8 U. S. C. § 405.

This provision is continued in substance by § 338 of the Nationality Act of 1940, 54 Stat. 1137, 1158, 8 U. S. C. § 738.

2 Section 4 of the Act of 1906 provided:

“Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the State or Territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record.” 34 Stat. 598; 8 U. S. C. § 382.

3 Since 1790 Congress has conferred the function of admitting aliens to citizenship exclusively upon the courts. In exercising their authority under this mandate the federal courts are exercising the judicial power of the United States, conferred upon them by Article III of the Constitution. Tutun v. United States, 270 U. S. 568. For this reason it has been suggested that a decree of naturalization, even though the United States does not appear, cannot be compared (as was done in Johannessen v. United States, 225 U. S. 227, 238) to an administrative grant of land or of letters patent for invention, and that the permissible area of re-examination is different in the two situations.

4 The record contains nothing to indicate that the same is not true for the period after 1927.

5 For a discussion of the adequacy of somewhat similar testimony by Hynes see Ex parte Fierstein, 41 F. 2d 53.

6 IV. “The Court finds that it is true that said decree and certificate of naturalization were illegally procured and obtained in this: That respondent [petitioner] was not, at the time of his naturalization by said Court, and during the period of five years immediately preceding the filing of his petition for naturalization had not behaved as, a person attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same.

“The Court finds that it is not true that at the time of the filing of his petition for naturalization respondent was not a disbeliever in or opposed to organized government or a member of or affiliated with any organization or body of persons teaching disbelief in or opposed to organized government.

“The Court finds that in truth and in fact during all of said times respondent had not behaved as a man attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same, but was a member of and affiliated with and believed in and supported the principles of certain organizations known as the Workers Party of America, the Workers (Communist) Party of America, the Communist Party of the United States of America, the Young Workers League of America, the Young Workers (Communist) League of America and the Young Communist League of America, which organizations were, and each of them was, at all times herein mentioned, a section of the Third International, the principles of all of which said organizations were opposed to the principles of the Constitution of the United States, and advised, advocated, and taught the overthrow of the Government, Constitution and laws of the United States by force and violence and taught disbelief in and opposition to organized government.

V. “The Court further finds that during all of said times the respondent has been and now is a member of said organizations and has continued to believe in, advocate and support the said principles of said organizations.”

VI. (The substance of this finding is that petitioner fraudulently concealed his Communist affiliation from the naturalization court. It is not set forth because it is not an issue here. See Note 7, infra.)

VII. “The court further finds that it is true that said decree and certificate of naturalization were illegally and fraudulently procured and obtained in this: That before respondent [petitioner] was admitted to citizenship as aforesaid, he declared on oath in open court that he would support the Constitution of the United States, and that he absolutely and entirely renounced and abjured all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and that he would support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same, whereas in truth and in fact, at the time of making such declarations on oath in open court, respondent [petitioner] did not intend to support the Constitution of the United States, and did not intend absolutely and entirely to renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and did not intend to support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and/or to bear true faith and allegiance to the same, but respondent at said time intended to and did maintain allegiance and fidelity to the Union of Soviet Socialist Republics and to the said Third International, and intended to adhere to and support and defend and advocate the principles and teachings of said Third International, which principles and teachings were opposed to the principles of the Constitution of the United States and advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence.”

7 That court said it was unnecessary to consider the charge of fraudulent procurement by concealment of petitioner’s Communist affiliation. The Government has not pressed this charge here, and we do not consider it.

8 The Nationality Act of 1940, while enlarging the category of beliefs disqualifying persons thereafter applying for citizenship, does not in terms make communist beliefs or affiliation grounds for refusal of naturalization. § 305, 54 Stat. 1137, fill; 8 U. S. C. § 705.

Bills to write a definition of “communist” into the Immigration and Deportation Act of 1918 as amended (40 Stat. 1012,41 Stat. 1008) and to provide for the deportation of “communists” failed to pass Congress in 1932 and again in 1935. See H. R. 12044, H. Rep. No. 1353, S. Rep. No. 808, 75 Cong. Rec. 12097-108, 72d Cong., 1st Sess. See also H. R. 7120, H. Rep. No. 1023, pts. 1 and 2, 74th Cong., 1st Sess.

9 § 7 of Act of June 29, 1906, 8 U. S. C. § 364.

10 § 4 of Act of June 29, 1906, 8 U. S. C. § 381.

11 § 4 of Act of June 29, 1906, 8 TJ. S. C. § 382.

12 The legislative history of the phrase gives some support to this view. The behavior requirement first appeared in the Naturalization Act of 1795, 1 Stat. 414, which was designed to tighten the Act of 1790, 1 Stat. 103. The discursive debates on the 1795 Act cast little light upon the meaning of “behaved,” but indicate that the purpose of the requirement was to provide a probationary period during which aliens could learn of our Constitutional plan. Some members were disturbed by the political ferment of the age and spoke accordingly, while others regarded the United States as an asylum for the oppressed and mistrusted efforts to probe minds for beliefs. It is perhaps significant that the oath, which was adopted over the protest of Madison, the sponsor of the bill, did not require the applicant to swear that he was attached! to the Constitution, but only that he would support it. See 4 Annals of Congress, pp. 1004-09, 1021-23, 1026-27, 1030-58, 1062, 1064r-66. See also Franklin, Legislative History of Naturalization in the United States (1906), Chapter IV.

The behavior requirement was reenacted in 1802 (2 Stat. 153) at the recommendation of Jefferson for the repeal of the stringent Act of 1798,1 Stat. 566. See Franklin, op. cit., Chapter VI. It continued unchanged until the Act of 1906 which for the first time imported the test of present belief into the naturalization laws when it provided in § 7 that disbelievers in organized government and polygamists could not become citizens. The continuation of the behavior test for attachment is some indication that a less searching examination was intended in this field — that conduct and not belief (other than anarchist or polygamist) was the criterion. The Nationality Act of 1940 changed the behavior requirement to a provision that no person could be naturalized unless he “has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States,” 54 Stat. 1142, 8 U. S. C. § 707. The Report of the President’s Committee to Revise the Nationality Laws (1939) indicates this change in language was not regarded as a change in substance, p. 23. The Congressional committee reports are silent on the question. The sponsors of the Act in the House, however, declared generally an intent to tighten and restrict the naturalization laws. See 86 Cong. Rec. 11939, 11942, 11947, 11949. The chairman of the sub-committee who had charge of the bill stated that “substantive changes are necessary in connection with certain rights, with a view to preventing persons who have no real attachment to the United States from enjoying the high privilege of American nationality.” 86 Cong. Rec. 11948. This remark suggests that the change from “behaved as a man attached” to “has been and still is a person attached” was a change in meaning.

13 Program and Constitution of the Workers Party (1921-24).

14 Acceptance speech of William Z. Foster, the Party’s nominee for the Presidency in 1928.

15 Writing in 1816 Jefferson said: “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of bookreading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” Ford, Jefferson’s Writings, vol. X, p. 42.

Compare his First Inaugural Address: “And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions. During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others, and should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren, of the same principle. We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combad it. I know, indeed, that some honest men fear that a republican government cannot be strong, that this Government is not strong enough.;., but would.the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and, firm on the theoretic and visionary fear that this Government, the world’s best hope, may by possibility want energy to preserve itself? I trust not.” Richardson, Messages and Papers of the Presidents, vol. I, p. 310 (emphasis added).

16 See also 18 Cornell Law Quarterly 251; Freund, United States v. Macintosh, A Symposium, 26 Illinois Law Review 375, 385; 46 Harvard Law Review 325.

As a matter of fact one very material change in the Constitution as it stood in 1927 when petitioner was naturalized has since been effected by the repeal of the Eighteenth Amendment.

17 See Note 12, ante.

18 In 1938 Congress failed to pass a bill denying naturalization to any person “who believes in any form of government for the United States contrary to that now existing'in the United States, or who is a member of or affiliated with any organization which advocates any form of government 'for the United States contrary to that now existing in the United States.” H. R. 9690, 75th Cong., 3d Sess.

19 Brief, pp. 103-04. Supporting this view are In re Saralieff, 59 F. 2d 436; In re Van Laeken, 22 F. Supp. 145; In re Shanin, 278 F. 739. See also United States v. Tapolcsanyi, 40 F. 2d 255; Ex parte Sauer, 81 F. 355; United States v. Olsson, 196 F. 562, reversed on stipulation, 201 F. 1022.

20 “The test is . . . whether he substitutes revolution for evolution, destruction for construction, whether he believes in an ordered society, a government of laws, under which the powers of government are granted by the people but under a grant which itself preserves to the individual and to minorities certain rights or freedoms which even the majority may not take away; whether, in sum, the events which began at least no further back than the Declaration of Independence, followed by the Revolutionary War and the adoption of the Constitution, establish principles with respect to government, the individual, the minority and the majority, by which ordered liberty is replaced by disorganized liberty.” Brief, p. 105.

21 See generally Thorpe, Constitutional History of the United States (1901), vol. Ill, book V.

Compare the effect of the Eighteenth Amendment.

22 Petitioner testified that this was never adopted, but was merely a draft for study.

23 See Haynes, The Senate of the United States (1938), pp. 11, 96-98. 106-115, 1068-74.

24 Compare Nebraska’s experiment with such a body. Nebraska Constitution, Article III, § 1. See 13 Nebraska Law Bulletin 341.

24a E. g., the recall of judicial decisions. See Theodore Roosevelt, A Charter of Democracy, S. Doc. No. 348, 62d Cong., 2d Sess. For proposed constitutional amendments relating to the judiciary and this Court see H. Doc. No. 353, pt. 2, 54th Cong., 2d Sess., pp. 144-64; S. Doc. No. 93, 69th Cong., 1st Sess., pp. 83,86, 93,101, 111, 123, 133.

24b For an account of the attacks on the veto power see H. Doc. No. 353, pt. 2, 54th Cong., 2d Sess., pp. 129-34.

25 ABC of Communism; Lenin, State and Revolution; Statutes, Theses and Conditions of Admission to the Communist International; Stalin, Theory and Practice of Leninism; 1928 Program of the Communist International.

26 “It should be observed that the question of depriving the exploiters of the franchise is purely a Russian question, and not a question of the dictatorship of the proletariat in general. ... It would be a mistake, however, to guarantee in advance that the impending proletarian revolutions in Europe will all, or for the most part, be necessarily accompanied by the restriction of the franchise for the bourgeoisie. Perhaps they will. After our experience of the war and of the Russian revolution we can say that it will probably be so; but it is not absolutely necessary for the purpose of realizing the dictatorship, it is not an essential symptom of the logical concept ‘dictatorship,’ it does not enter as an essential condition in the historical and class concept ‘dictatorship.’ ” Selected Works, vol. VII, pp. 142-3. (Placed in evidence by petitioner.)

27 Brief, pp. 23-24.

28 Brief, pp. 25-26.

29 In re Saderquist, 11 F. Supp. 525; Skeffington v. Katzeff, 277 F. 129; United States v. Curran, 11 F. 2d 683; Kenmotsu v. Nagle, 44 F. 2d 953; Sormunen v. Nagle, 59 F. 2d 398; Branch v. Cahill, 88 F. 2d 545; Ex parte Vilarino, 50 F. 2d 582; Kjar v. Doak, 61 F. 2d 566; Berkman v. Tillinghast, 58 F. 2d 621; United States v. Smith, 2 F. 2d 90; United States v. Wallis, 268 F. 413.

30 Strecker v. Kessler, 95 F. 2d 976, 96 F. 2d 1020, affirmed on other grounds, 307 U. S. 22; Ex parte Fierstein, 41 F. 2d 53; Colyer v. Skeffington, 265 F. 17, reversed sub nom. Skeffington v. Katzeff, 277 F. 129.

31 United States ex rel. Yokinen v. Commissioner, 57 F. 2d 707; United States v. Perkins, 79 F. 2d 533; United States ex rel. Fernandas v. Commissioner, 65 F. 2d 593; Ungar v. Seaman, 4 F. 2d 80; Ex parte Jurgans, 17 F. 2d 507; United States ex rel. Fortmueller v. Commissioner, 14 F. Supp. 484; Murdoch v. Clark, 53 F. 2d 155; Wolck v. Weedin, 58 F. 2d 928.

32 Brief, p. 60.

33 Brief, p. 77. See also Colyer v. Skeffington, 265 F. 17, 59, reversed sub nom. Skeffington v. Katzeff, 277 F. 129. And see Evatt, J., in King v. Hush (Ex parte Devanny), 48 C. L. R. 487, 516-18.

34 Rule 52 (a) of the Rules of Civil Procedure, 28 U. S. C. A., following 8 723 (c).

35 The Manifesto was proclaimed in 1848. The edition in evidence was published by the International Publishers in 1932. Petitioner testified that he believed it to be an authorized publication, that he was familiar with the work, that it was used in classes, and that he thought its principles were correct “particularly as they applied to the period in which they were written and the country about which they were written.”

The excerpts stressed are: “The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions.”

“Though not in substance, yet in form, the struggle of the proletariat with the bourgeoisie is at first a national struggle. The proletariat of each country must, of course, first of all settle matters with its own bourgeoisie.

“In depicting the most general phases of the development of the proletariat, we traced the more or less veiled civil war, raging within existing society, up to the point where that war breaks out into open revolution, and where the violent overthrow of the bourgeoisie lays the foundation for the sway of the proletariat.”

36 This work was written in 1917 between the February and October Revolutions in Russia. The copy in evidence was published in 1924 by the Daily Worker Publishing Company. Petitioner testified that it was circulated by the Party and that it was probably used in the classes of which he was “educational director.”

The excerpts are:

“Fifth, in the same work of Engels, . . . there is also a disquisition on the nature of a violent revolution; and the historical appreciation of its role becomes, with Engels, a veritable panegyric of a revolution by force. This, of course, no one remembers. To talk or even to think of the importance of this idea, is not considered respectable by our modern Socialist parties, and in the daily propaganda and agitation among the masses it plays no part whatever. Yet it is indissolubly bound up with the 'withering away’ of the state in one harmonious whole. Here is Engels’ argument:

“ 'That force also plays another part in history (other than that of a perpetuation of evil), namely a revolutionary part; that as Marx says, it is the midwife of every old society when it is pregnant with a new one; that force is the instrument and the means by which social movements hack their way through and break up the dead and fossilized political forms — of all this not a word by Herr Duehring. . Duly, with sighs and groans, does he admit the possibility that for the overthrow of the system of exploitation force may, perhaps, be necessary, but most unfortunate if you please, because all use of force, forsooth, demoralizes its user! And this is said in face of the great moral and intellectual advance which has been the result of every victorious revolution! . . . And this turbid, flabby, impotent, parson’s modé of thinldng dares offer itself for acceptance to the most revolutionary party history has ever known.’ ”

“The necessity of systematically, fostering among the masses this and only this point of view about violent revolution lies at the root of the whole of Marx’s and Engels’ teaching, and it is just the neglect of such propaganda and agitation both by the present predominant Social-Chauvinists and the Kautskian schools that brings their betrayal of it into prominent relief.”

(Quoting Engels) “ ‘Revolution is an act in which part of the population forces its will on the other parts by means of rifles, bayonets, cannon, i. e., by most authoritative means. And the conquering party is inevitably forced to maintain its supremacy by means of that fear which its arms inspire in the reactionaries.’ ”

37 Petitioner contends that this document was never introduced in evidence, and the record shows only that it was marked for identification. The view we take of the case makes it immaterial whether this document is in evidence or not. The copy furnished us was printed in 1923 under the auspices of the Workers Party. Hynes testified that it was an official publication, but not widely circulated. Petitioner had no recollection of the particular pamphlet and testified that the American party was not bound by it.

Thé excerpts are:

“That which before the victory of the proletariat seems but a theoretical difference of opinion on the question of ‘democracy,’ becomes inevitably on the morrow of the victory, a question which can only be decided by force of arms.”

“The working class cannot achieve the victory over the bourgeoisie by means of the general strike alone, and by the policy of folded arms The proletariat must resort to an armed uprising.”

“The elementary means of the struggle of the proletariat against the rule of the bourgeoisie is, first of all, the method of mass demonstrations. Such mass demonstrations are prepared and carried out by the organized masses of the proletariat, under the direction of a united, disciplined, centralized Communist Party. Civil war is war. In this war the proletariat must have its efficient political officers, its good political general- staff, to conduct operations during all the stages of that fight.

“The mass struggle means a whole system of developing demonstrations growing ever more acute in form, and logically leading to an uprising against the capitalist order of the government. In this warfare of the masses developing into a civil war, the guiding party of the proletariat must, as a general rule, secure every and all lawful positions, making them its auxiliaries in the revolutionary work, and subordinating such positions to the plans of the general campaign, that of the mass struggle.”

38 The copy in evidence was printed by the Daily Worker Publishing Company either in 1924 or 1925. Petitioner was familiar with the work, but not the particular edition, and testified that it was probably circulated by the Party. He had read it, but probably after his naturalization. Hynes and Humphreys testified that it was used in communist classes.

The excerpts are:

“Marx’s limitation with regard to the ‘continent’ has furnished the opportunists and mensheviks of every country with a pretext for asserting that Marx admitted the possibility of a peaceful transformation of bourgeois democracy into proletarian democracy, at least [in] some countries (England and America). Marx did in fact recognize the possibility of this in the England and America of 1860, where monopolist capitalism and Imperialism did not exist and where militarism and bureaucracy were as yet little developed. But now the situation in these countries is radically different; Imperialism has reached its apogee there, and there militarism and bureaucracy are sovereign. In consequence, Marx’s restriction no longer applies.”

“With the Reformist, reform is everything, whilst in revolutionary work it only appears as a form. This is why with the reformist tactic under a bourgeois government, all reform tends inevitably to consolidate the powers that be, and to weaken the revolution.

“With the revolutionary, on the contrary, the main thing is the revolutionary work and not the reform. For him, reform is only an accessory of revolution.”

39 (a) Program of the Communist International, adopted in 1928 and published by the Workers Library Publishers, Inc., in 1929:

“Hence, revolution is not only necessary because there is no other way of overthrowing the ruling class, but also because, only in the process of revolution is the overthrowing class able to purge itself of the dross of the old society and become capable of creating a new society.”

Petitioner “agreed with the general theoretical conclusions stated in” this Program, but he regarded “the application of that theory” as “something else.”

(b) Programme of the Young Communist International, published in 1929: “An oppressed class which does not endeavor to possess and learn to handle arms would deserve to be treated as slaves. We would become bourgeois pacifists or opportunists if we forget that we are living in a class society, and that the only way out is through class struggle and the overthrow of the power of the ruling class. Our slogan must be: 'Arming of the proletariat, to conquer, expropriate and disarm the bourgeoisie.’ Only after the proletariat has disarmed the bourgeoisie will it be able, without betraying its historic task, to throw all arms on the scrap heap. This the proletariat will undoubtedly do. But only then, and on no account sooner.”

(c) Why Communism, written by Olgin, and published first in 1933, by the Workers Library Publishers:

“We Communists say that there is one way to abolish the capitalist State, and that is to smash it by force. To make Communism possible the workers must take hold of the State machinery of capitalism and destroy it.”

Petitioner testified that he had not read this book, but that it had been widely circulated by the Party.

40 Since the district court did not specify upon what evidence its conclusory findings rested, it is well to mention the remaining documents published before 1927 which were introduced into evidence and excerpts from which were read into the record, but upon which the Government does not specifically rely with respect to the issue of force and violence. Those documents are: Lenin, Left Wing Communism, first published in English about 1920; Bucharin and Pre-obraschensky, ABC of Communism, written in 1919 and published around 1921 in this country (petitioner testified that this was never an accepted work and that its authors were later expelled from the International); International of Youth, a periodical published in 1925; The 4th National Convention of the Workers Party of America, pub-fished in 1925; The Second Year of the Workers Party in America (1924); and, The Program and Constitution of the Workers Party of America, circulated around 1924. With the exception of these last two documents, the excerpts read into the record from these publications contain nothing exceptional on the issue of force and violence. The excerpts from the last two documents stress the necessity for Party participation in elections, but declare that the Party fosters no illusions that the workers can vote their way to power, the expulsion of the Socialist members of the New York Assembly (see Chafee, Free Speech in the United States (1941), pp. 269-82) being cited as an example in point. These statements are open to an interpretation of prediction, not advocacy of force and violence. Cf. Note 48,infra.

41 As Chief Justice (then Mr.) Hughes said in opposing the expulsion of the Socialist members of the New York Assembly: “. . . it is of the essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the holding of opinion or to mere intent in the absence of overt acts; . . .” Memorial of the Special Committee Appointed by the Association of the Bar of the City of New York, New York Legislative Documents, vol. 5.143d Session (1920), No. 30, p. 4.

42 See Chafee, Free Speech in the United States (1941), pp. 219-24.

43 See Note 33, ante.

44 See Bryce, the American Commonwealth (1915) vol. II, p. 334; III Encyclopedia of the Social Sciences, p. 164.

45 See Notes 35 to 38 inclusive, ante.

46 Petitioner testified that he believed its principles, particularly as they applied to the period and country in which written. See Note 35, ante.

47 Marx, Amsterdam Speech of 1872; see also Engels’ preface to the First English Translation of Capital (1886).

48 Lenin’s remarks on England have been interpreted as simply predicting, not advocating, the use of violence there. See the introduction to Strachey, The Coming Struggle for Power (1935).

49 See Note 38, ante.

50 Stalin, Leninism, vol. I, pp. 282-83. Put in evidence by petitioner.

51 Lenin, Selected Works, vol. VI. Put in evidence by petitioner. In the same work is the following:

“Marxism is an extremely profound and many sided doctrine. It is, therefore, not surprising that scraps of quotations from Marx— especially when the quotations are not to the point — can always be found among the 'arguments’ of those who are breaking with Marxism. A military conspiracy is Blanquism if it is not organized by the party of a definite class; if its organizers have not reckoned with the political situation in general and the international situation in particular; if the party in question does not enjoy the sympathy of the majority of the people, as proved by definite facts; if the development of events in the revolution has not led to the virtual dissipation of the illusions of compromise entertained by the petty bourgeoisie; if the-majority of the organs of the revolutionary struggle which are recognized to be ‘authoritative’ or have otherwise established themselves, such as the Soviets, have not been won over; if in the army (in time of war) sentiments hostile to a government which drags out an unjust war against the will of the people have not become fully matured; if the slogans of the insurrection (such as ‘All power to the Soviets,’ ‘Land to the peasants,’ ‘Immediate proposal of a democratic peace to all the belligerent peoples, coupled with the immediate abrogation of all secret treaties and secret diplomacy,’ etc.) have not acquired the widest renown and popularity; if the advanced workers are not convinced of the desperate situation of the masses and of the support of the countryside, as demonstrated by an energetic peasant movement, or by a revolt against the landlords and against the government that defends the landlords; if the economic situation in the country offers any real hope of a favorable solution of the crisis by peaceful and parliamentary means.”

52 Article X, §5. Party members found to be strike-breakers, degenerates, habitual drunkards, betrayers of Party confidence, provocateurs, advocates of terrorism and violence as a method of Party procedure, or members whose actions are detrimental to the Party and the working class, shall be summarily dismissed from positions of responsibility, expelled from the Party and exposed before the general public.

53 In 1927 naturalization was forbidden to such persons by § 7 of the Act of 1906, 34 Stat. 598, 8 U. S. C. § 364. Compare § 305 of the Nationality Act of 1940, 54 Stat. 1141, 8 U. S. C. § 705.

54 The complaint did incorporate by reference an affidavit of cause, required by 8 U. S. C. § 405, in which the affiant averred that petitioner’s naturalization was illegally and fraudulently obtained, in that he did not behave as a man and was not a man attached to the Constitution but was a member of the Communist Party which was opposed to the Government and advocated its overthrow by force and violence, and in that: “At the time he took said oath of allegiance, he did not in fact intend to support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.”

While this affidavit is part of the complaint, we think it was not intended to be an additional charge, but was included only to show compliance with the statute. The attachment averment of the affidavit is elaborated and set forth as a specific charge in the complaint. The failure to do likewise with the averment of a false oath is persuasive that the issue was not intended to be raised. When petitioner moved for a non-suit at the close of the Government’s case, the United States attorney did not contend, in stating what he conceived the issues were, that the question of a false oath was an issue.

55 This contention is that petitioner was not well disposed to the good order and happiness of the United States because he believed in and advocated general resort to illegal action, other than force and violence, as a means of achieving political ends.

7 Cf. United States v. Ferreira, 13 How. 40; Gordon v. United States, 2 Wall. 561; Id., 117 U. S. 697; United States v. Jones, 119 U. S. 477; Pocono Pines Assembly Hotels Co. v. United States, 73 Ct. Cls. 447; 76 Ct. Cls. 334; Ex parte Pocono Pines Assembly Hotels Co., 285 U. S. 526.