DocketNumber： 2
Judges： Murphy, Douglas, Rutledge, Stone, Jackson, Roberts, Frankfurter
Filed Date： 10/11/1943
Status： Precedential
Modified Date： 10/19/2024
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
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
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
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
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.
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
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
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
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
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 . . .”
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,
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.
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.
When petitioner was naturalized in 1927, the applicable statutes did not proscribe communist beliefs or affiliation as such.
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.
.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
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.
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,
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.
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.
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
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.
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
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
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,
With commendable candor the Government admits the presence of sharply conflicting views on the issue of force and violence as a Party principle,
In the first place this phase of the Government’s case is subject to the admitted infirmities of proof by imputation.
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.
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
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,
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
The judgment is reversed and the cause remanded to the Circuit Court of Appeals for further proceedings in conformity with this opinion.
Reversed.
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.
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.
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.
The record contains nothing to indicate that the same is not true for the period after 1927.
For a discussion of the adequacy of somewhat similar testimony by Hynes see Ex parte Fierstein, 41 F. 2d 53.
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 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 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.
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.
§ 7 of Act of June 29, 1906, 8 U. S. C. § 364.
§ 4 of Act of June 29, 1906, 8 U. S. C. § 381.
§ 4 of Act of June 29, 1906, 8 TJ. S. C. § 382.
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
Program and Constitution of the Workers Party (1921-24).
Acceptance speech of William Z. Foster, the Party’s nominee for the Presidency in 1928.
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
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.
See Note 12, ante.
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.
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.
“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.
See generally Thorpe, Constitutional History of the United States (1901), vol. Ill, book V.
Compare the effect of the Eighteenth Amendment.
Petitioner testified that this was never adopted, but was merely a draft for study.
See Haynes, The Senate of the United States (1938), pp. 11, 96-98. 106-115, 1068-74.
Compare Nebraska’s experiment with such a body. Nebraska Constitution, Article III, § 1. See 13 Nebraska Law Bulletin 341.
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.
For an account of the attacks on the veto power see H. Doc. No. 353, pt. 2, 54th Cong., 2d Sess., pp. 129-34.
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.
“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.)
Brief, pp. 23-24.
Brief, pp. 25-26.
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;
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.
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.
Brief, p. 60.
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.
Rule 52 (a) of the Rules of Civil Procedure, 28 U. S. C. A., following 8 723 (c).
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.”
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*150 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.’ ”
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,’ be*151 comes 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.”
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*152 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.”
(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*153 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.
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.
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.
See Chafee, Free Speech in the United States (1941), pp. 219-24.
See Note 33, ante.
See Bryce, the American Commonwealth (1915) vol. II, p. 334; III Encyclopedia of the Social Sciences, p. 164.
See Notes 35 to 38 inclusive, ante.
Petitioner testified that he believed its principles, particularly as they applied to the period and country in which written. See Note 35, ante.
Marx, Amsterdam Speech of 1872; see also Engels’ preface to the First English Translation of Capital (1886).
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).
See Note 38, ante.
Stalin, Leninism, vol. I, pp. 282-83. Put in evidence by petitioner.
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*157 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.”
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.
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.
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
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.
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.