1. Assuming that, in the absence of fraud, a certificate of
citizenship can be set aside under §15 of the Naturalization
Act of 1906 as "illegally procured" because the finding by the
naturalization court that the applicant was attached to the
principles of the Constitution was erroneous, the burden is upon
the Government to prove the error by clear, unequivocal and
convincing evidence; a mere preponderance of evidence which leaves
the issue in doubt will not suffice. P.
320 U. S.
124.
2. In construing the Acts of Congress governing naturalization
and denaturalization, general expressions should not be so
construed as to circumscribe liberty of political thought. P.
320 U. S.
132.
3. The Government sued in 1939 to cancel a certificate of
citizenship, granted in 1927, charging that it had been "illegally
procured," in that the defendant, at the time of the naturalization
and for five years preceding, was not attached to the principles of
the Constitution, but was, in fact ,a member of, and affiliated
with, and believed in and supported the principles of, certain
communistic organizations in the United States which were opposed
to the principles of the Constitution and advocated the overthrow
of the Government of the United States by force and violence.
Held:
(1) That the evidence, which is reviewed in the opinion, fails
to show with the requisite degree of certainty that during the
period in question the defendant was not attached to the principles
of the Constitution. P.
320 U. S.
135.
(2) Attachment to the principles of the Constitution is not
necessarily incompatible with a desire to have it amended. P.
320 U. S.
137.
(3) Utterances of certain leaders of the party organizations in
question, advocating force and violence, are not imputable to the
defendant. P.
320 U. S.
146.
(4) Under the conflicting evidence in this case, the Court can
not say that the Government proved with the requisite certainty
that the attitude of the Communist party in the United States in
1927 towards force and violence was in the category of agitation
and exhortation calling for present violent action which creates a
clear
Page 320 U. S. 119
and present danger of public disorder or other substantive evil,
rather than a mere doctrinal justification or prediction of the use
of force under hypothetical conditions at some indefinite future
time, not calculated or intended to be presently acted upon, but
leaving opportunity for general discussion and calm reason. P.
320 U. S.
157.
4. The Court does not consider findings made by the District
Court in this case upon issues outside of the scope of the
complaint; in a denaturalization case, as in a criminal case, the
Government is limited to the matters charged in the complaint. P.
320 U. S.
159.
119 F.2d 500 reversed.
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
Page 320 U. S. 120
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, 601, 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
Page 320 U. S. 121
they were "illegally procured." [
Footnote 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, [
Footnote 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
Page 320 U. S. 122
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 canceled 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,
276 U. S. 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
Page 320 U. S. 123
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 reexamining 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 reexamine a finding and judgment of
attachment
Page 320 U. S. 124
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 reexamine 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.
[
Footnote 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 reexamination 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
Page 320 U. S. 125
opinion that this judgment should be reversed. If a finding of
attachment can be so reconsidered in a denaturalization 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,
270 U. S. 579;
cf. United States v. Ness, 245 U.
S. 319,
245 U. S. 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. 225 U.S.
227,
225 U. S. 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,
121 U. S. 381;
United States v. San Jacinto Tin Co., 125 U.
S. 273,
125 U. S. 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
Page 320 U. S. 126
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, [
Footnote 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.
For 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 highschool 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
Page 320 U. S. 127
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
Page 320 U. S. 128
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. . . . [
Footnote
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,
Page 320 U. S. 129
"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, [
Footnote 6] are but the most
Page 320 U. S. 130
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
Page 320 U. S. 131
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 F.2d
500. [
Footnote 7] We granted
certiorari, 314 U.S. 597, 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.
Page 320 U. S. 132
United States v. Macintosh, 283 U.
S. 605,
283 U. S. 615,
and the dissenting opinion of Chief Justice Hughes,
ibid.
at page
283 U. S. 627.
See also Tutun v. United States, 270 U.
S. 568,
270 U. S. 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
denaturalization 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
283 U. S. 635.
See also Holmes, J., dissenting in
United States v.
Schwimmer, 279 U. S. 644,
279 U. S.
653-655.
When petitioner was naturalized in 1927, the applicable statutes
did not proscribe Communist beliefs or affiliation as such.
[
Footnote 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. [
Footnote 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. [
Footnote 10] And, it was to "be made to appear to the
Page 320 U. S. 133
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. [
Footnote 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.
[
Footnote 12] If this
Page 320 U. S. 134
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.
Page 320 U. S. 135
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
283 U. S. 635.
See also the dissenting opinion of Justice Holmes in the
Schwimmer case, supra, 279 U. S.
653-655. 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
Page 320 U. S. 136
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 unqualifiedly 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" [
Footnote 13] and that the purposes of the Party are
"utterly antagonistic to the purposes for which the American
democracy, so called, was formed," [
Footnote 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.
Page 320 U. S. 137
The constitutional fathers, fresh from a revolution, did not
forge a political straitjacket for the generations to come.
[
Footnote 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.
Page 320 U. S. 138
United States v. Rovin, 12 F.2d
942, 944, 945. [
Footnote
16] As Justice Holmes said, "Surely it cannot show lack of
attachment to the principles of the Constitution that [one] thinks
that 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
Page 320 U. S. 139
Chief Justice Hughes dissenting in
United States v.
Macintosh, supra, at
283 U. S. 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, [
Footnote 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. [
Footnote 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.
Page 320 U. S. 140
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. [
Footnote 19]
Petitioner is said to be opposed to that "political philosophy" the
minimum requirements of which are set forth in the margin.
[
Footnote 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.
Page 320 U. S. 141
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, 504.
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. [
Footnote
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
Page 320 U. S. 142
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
Page 320 U. S. 143
for amending the Constitution, characterizing them as devices
designed to frustrate the will of the majority. [
Footnote 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, 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 government 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. [
Footnote 23]
The unicameral legislature is not unknown in the country. [
Footnote 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
Page 320 U. S. 144
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.
[
Footnote 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. [
Footnote 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.
Page 320 U. S. 145
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. [
Footnote 25] Lenin, however, wrote that this was not
necessary to realize the dictatorship of the proletariat. [
Footnote 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
Page 320 U. S. 146
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
Page 320 U. S. 147
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. . . . [
Footnote 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." [
Footnote
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 was not so wanting in evidential
support as to amount to a denial of due process, [
Footnote 29] others have held
Page 320 U. S. 148
to the contrary on different records, [
Footnote 30] and some seem to have taken the position
that they will judicially notice that force and violence is a Party
Principle. [
Footnote 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, [
Footnote
32] and it also concedes that "some communist literature in
respect of force and violence is susceptible of an interpretation
more rhetorical than literal." [
Footnote 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. [
Footnote 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,
Page 320 U. S. 149
are: The Communist Manifesto of Marx and Engels; [
Footnote 35] The State and Revolution of
Lenin; [
Footnote 36] The
Statutes,
Page 320 U. S. 150
Theses and Conditions of Admission to the Communist
International; [
Footnote 37]
and The Theory and Practice of Leninism,
Page 320 U. S. 151
written by Stalin. [
Footnote
38] The Government also sets forth excerpts from other
documents which are entitled to little
Page 320 U. S. 152
weight because they were published after the critical period.
[
Footnote 39]
Page 320 U. S. 153
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. [
Footnote 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
Page 320 U. S. 154
findings to that effect are so lacking in evidentiary 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.
[
Footnote 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. [
Footnote 42] Political writings are often
over-exaggerated polemics bearing the imprint of the period and the
place in which written. [
Footnote 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
Page 320 U. S. 155
as much honored in the breach as in the observance. [
Footnote 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. [
Footnote 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. [
Footnote 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." [
Footnote
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
Page 320 U. S. 156
course and refute the anarchists and social democrats. [
Footnote 48] Stalin declared that
Marx's exemption for the United States and England was no longer
valid. [
Footnote 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." [
Footnote 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. [
Footnote 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
Page 320 U. S. 157
of his membership, ostensibly eschews resort to force and
violence as an element of Party tactics. [
Footnote 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
Page 320 U. S. 158
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,
274 U. S.
372-380.
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
testimony. 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 denaturalization proceeding,
assuming that it can reexamine 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
Page 320 U. S. 159
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, [
Footnote 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, [
Footnote
54] as is another ground urged
Page 320 U. S. 160
in support of the judgment below as to which the district court
made no findings. [
Footnote
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. 299 U.S.
353,
299 U. S. 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
Page 320 U. S. 161
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.
[
Footnote 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 or Deputy
Commissioner of 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.
[
Footnote 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.
[
Footnote 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,
225 U. S. 238)
to an administrative grant of land or of letters patent for
invention, and that the permissible area of reexamination is
different in the two situations.
[
Footnote 4]
The record contains nothing to indicate that the same is not
true for the period after 1927.
[
Footnote 5]
For a discussion of the adequacy of somewhat similar testimony
by Hynes,
see Ex parte Fierstein, 41 F.2d 53.
[
Footnote 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."
[
Footnote 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.
[
Footnote 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, 1141, 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.
[
Footnote 9]
Section 7 of Act of June 26, 1906, 8 U.S.C. § 364.
[
Footnote 10]
Section 4 of Act of June 26, 1906, 8 U.S.C. § 381.
[
Footnote 11]
Section 4 of Act of June 26, 1906, 8 U.S.C. § 382.
[
Footnote 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,
1064-66.
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 subcommittee 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.
[
Footnote 13]
Program and Constitution of the Workers Party (1921-24).
[
Footnote 14]
Acceptance speech of William Z. Foster, the Party's nominee for
the Presidency in 1928.
[
Footnote 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 book-reading; 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 and hand
with the progress of the human mind. If that becomes more
developed, more enlightened, if any discoveries are made, any
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 as
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 difference 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 combat
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).
[
Footnote 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.
[
Footnote 17]
See note 12
ante.
[
Footnote 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.
[
Footnote 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, note;
United States v. Olsson, 196
F. 562,
reversed on stipulation, 201 F. 1022.
[
Footnote 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, established principles with
respect to government, the individual, the minority, and the
majority by which ordered liberty is replaced by disorganized
liberty."
Brief, p. 105.
[
Footnote 21]
See generally Thorpe, Constitutional History of the
United States (1901), vol. III, book V.
Compare the effect of the Eighteenth Amendment.
[
Footnote 22]
Petitioner testified that this was never adopted, but was merely
a draft for study.
[
Footnote 23]
See Haynes, The Senate of the United States (1938), pp.
11, 96-98, 106-115, 1068-74.
[
Footnote 24]
Compare Nebraska's experiment with such a body.
Nebraska Constitution, Article III, § 1.
See 13
Nebraska Law Bulletin 341.
[
Footnote 24a]
^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.
[
Footnote 24b]
^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.
[
Footnote 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.
[
Footnote 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.)
[
Footnote 27]
Brief, pp. 23, 24.
[
Footnote 28]
Brief, pp. 25, 26.
[
Footnote 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.
[
Footnote 30]
Strecker v. Kessler, 95 F.2d 976, 96 F.2d 1020,
affirmed on other grounds, 307 U. S. 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.
[
Footnote 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.
[
Footnote 32]
Brief, p. 60.
[
Footnote 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 the
King v. Hush (Ex parte
Devanny), 48 C.L.R. 487, 516, 518.
[
Footnote 34]
Rule 52(a) of the Rules of Civil Procedure, following section
723(c).
[
Footnote 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."
[
Footnote 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, parsons' mode of thinking
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."
[
Footnote 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.
The 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."
[
Footnote 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."
[
Footnote 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.
[
Footnote 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 Preobraschensky, 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, published 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.
[
Footnote 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.
[
Footnote 42]
See Chafee, Free Speech in the United States (1941),
pp. 219-234.
[
Footnote 43]
See note 33
ante.
[
Footnote 44]
See Bryce, the American Commonwealth (1915) vol. II, p.
334; III Encyclopedia of the Social Sciences, p. 164.
[
Footnote 45]
See notes 35 to 38
inclusive ante.
[
Footnote 46]
Petitioner testified that he believed its principles,
particularly as they applied to the period and country in which
written.
See note
35 ante.
[
Footnote 47]
Marx, Amsterdam Speech of 1872;
see also Engels'
preface to the First English Translation of Capital (1886).
[
Footnote 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).
[
Footnote 49]
See note 38
ante.
[
Footnote 50]
Stalin, Leninism, Vol. I, pp. 282, 283. Put in evidence by
petitioner.
[
Footnote 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 by 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."
[
Footnote 52]
"Article X, § 5. Party members found to be strikebreakers,
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."
[
Footnote 53]
In 1927 naturalization was forbidden to such persons by § 7
of the Act of 1906, 34 Stat. 598, 8 U.S.C. § 364, 8 U.S.C.A.
§ 364. Compare § 305 of the Nationality Act of 1940, 54
Stat. 1141, 8 U.S.C. § 705.
[
Footnote 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 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 nonsuit 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.
[
Footnote 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.
MR. JUSTICE DOUGLAS, concurring.
I join in the Court's opinion, and agree that petitioner's want
of attachment in 1927 to the principles of the Constitution has not
been shown by "clear, unequivocal and convincing" evidence. The
United States, when it seeks to deprive a person of his American
citizenship, carries a heavy burden of showing that he procured it
unlawfully. That burden has not been sustained on the present
record, as the opinion of the Court makes plain, unless the most
extreme views within petitioner's party are to be imputed or
attributed to him and unless all doubts which may exist concerning
his beliefs in 1927 are to be resolved against him, rather than in
his favor. But there is another view of the problem raised by this
type of case which is so basic as to merit separate statement.
Sec. 15 of the Naturalization Act gives the United States the
power and duty to institute actions to set aside and cancel
certificates of citizenship on the ground of "fraud" or on the
ground that they were "illegally procured." Sec. 15
"makes nothing fraudulent or unlawful that was honest and lawful
when it was done. It imposes no new penalty upon the wrongdoer. But
if, after fair hearing, it is judicially determined that, by
wrongful conduct, he has obtained a title to citizenship, the act
provides that he shall be deprived of a privilege that was never
rightfully his."
Johannessen v. United States, 225 U.
S. 227,
225 U. S.
242-243.
And see Luria v. United States,
231 U. S. 9,
231 U. S. 24.
"Wrongful conduct" -- like the statutory words "fraud" or
"illegally procured" -- are strong words. Fraud connotes
Page 320 U. S. 162
perjury, concealment, falsification, misrepresentation, or the
like. But a certificate is illegally, as distinguished from
fraudulently, procured when it is obtained without compliance with
a "condition precedent to the authority of the Court to grant a
petition for naturalization."
Maney v. United States,
278 U. S. 17,
278 U. S.
22.
Under the Act in question, as under earlier and later Acts,
[
Footnote 2/1] Congress prescribed
numerous conditions precedent to the issuance of a certificate.
They included the requirement that the applicant not be an
anarchist or polygamist (§ 7), the presentation of a
certificate of arrival (
United States v. Ness,
245 U. S. 319),
the requirement that the final hearing be had in open court
(
United States v. Ginsberg, 243 U.
S. 472), the residence requirement (R.S. § 2170),
the general requirement that the applicant be able to speak the
English language (§ 8), etc. The foregoing are illustrative of
one type of condition which Congress specified. Another type is
illustrated by the required finding of attachment. Sec. 4, as it
then read, stated that it "shall be made to appear to the
satisfaction of the court" that the applicant
"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. [
Footnote 2/2]"
It is my view that Congress, by that provision, made the finding
the condition precedent,
Page 320 U. S. 163
not the weight of the evidence underlying the finding. Such a
finding can, of course, be set aside under § 15 on grounds of
fraud. But, so far as certificates "illegally procured" are
concerned, this Court has heretofore permitted § 15 to be used
merely to enforce the express conditions specified in the Act. It
is, of course, true that an applicant for citizenship was required
to come forward and make the showing necessary for the required
findings. § 4. But, under this earlier Act, it was not that
showing, but the finding of the court, which Congress expressed in
the form of a condition. If § 15 should be broadened by
judicial construction to permit the findings of attachment to be
set aside for reasons other than fraud, then the issue of
illegality would be made to turn not on the judge's being satisfied
as to applicant's attachment, but on the evidence underlying that
finding. Such a condition should not be readily implied.
If an anarchist is naturalized, the United States may bring an
action under § 15 to set aside the certificate on the grounds
of illegality. Since Congress, by § 7 of the Act, forbids the
naturalization of anarchists, the alien anarchist who obtains the
certificate has procured it illegally, whatever the naturalization
court might find. The same would be true of communists if Congress
declared they should be ineligible for citizenship. Then proof that
one was not a communist and did not adhere to that party or its
belief would become like the other express conditions in the Act --
a so-called "jurisdictional" fact "upon which the grant is
predicated."
Johannessen v. United States, supra, p.
225 U. S. 240.
But, under this Act, Congress did not treat communists like
anarchists. Neither the statute nor the official forms used by
applicants called for an expression by petitioner of his attitude
on, or his relationship to, communism, or any other foreign
political creed except anarchy and the like.
Page 320 U. S. 164
The findings of attachment are entrusted to the naturalization
court with only the most general standard to guide it. That court
has before it, however, not only the applicant, but at least two
witnesses. It makes its appraisal of the applicant and it weighs
the evidence. Its conclusion must often rest on imponderable
factors. In the present case, we do not know how far the
naturalization court probed into petitioner's political beliefs and
affiliations. We do not know what inquiry it made. All we do know
is that it was satisfied that petitioner was "attached to the
principles of the Constitution of the United States." But we must
assume that that finding, which underlies the judgment granting
citizenship (
cf. Tutun v. United States, 270 U.
S. 568), was supported by evidence. We must assume that
the evidence embraced all relevant facts, since no charge of
concealment or misrepresentation is now made by respondent. And we
must assume that the applicant and the judge both acted in utmost
good faith.
If the applicant answers all questions required of him, if there
is no concealment or misrepresentation, the findings of attachment
cannot be set aside on the grounds of illegality in proceedings
under § 15. It does not comport with any accepted notion of
illegality to say that, in spite of the utmost good faith on the
part of applicant and judge, and in spite of full compliance with
the express statutory conditions, a certificate was illegally
procured because another judge would appraise the evidence
differently. That would mean that the United States, at any time,
could obtain a trial
de novo on the political faith of the
applicant.
It is hardly conceivable that Congress intended that result
under this earlier Act, except for the narrow group of political
creeds such as anarchy for which it specially provided. Chief
Justice Hughes stated in his dissent in
United States v.
Macintosh, 283 U. S. 605,
283 U. S. 635,
that the
Page 320 U. S. 165
phrase "attachment to the principles of the Constitution" is a
general one
"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."
We should be mindful of that criterion in our construction of
§ 15. If findings of attachment which underly certificates may
be set aside years later on the evidence, then the citizenship of
those whose political faiths become unpopular with the passage of
time becomes vulnerable. It is one thing to agree that Congress
could take that step if it chose.
See Turner v. Williams,
194 U. S. 279. But
where it has not done so in plain words, we should be loathe to
imply that Congress sanctioned a procedure which in absence of
fraud permitted a man's citizenship to be attacked years after the
grant because of his political beliefs, social philosophy, or
economic theories. We should not tread so close to the domain of
freedom of conscience without an explicit mandate from those who
specify the conditions on which citizenship is granted to or
withheld from aliens. At least when two interpretations of the
Naturalization Act are possible, we should choose the one which is
the more hospitable to that ideal for which American citizenship
itself stands.
Citizenship can be granted only on the basis of the statutory
right which Congress has created.
Tutun v. United States,
supra. But where it is granted, and where all the express
statutory conditions precedent are satisfied, we should adhere to
the view that the judgment of naturalization is final and
conclusive except for fraud. Since the United States does not now
contend that fraud vitiates this certificate, the judgment below
must be reversed.
[
Footnote 2/1]
For the Act in its present form,
see 8 U.S.C. §
501
et seq.
[
Footnote 2/2]
This provision was recast by the Act of March 2, 1929, 45 Stat.
1513, 1514; 8 U.S.C. § 707(a)(3), into substantially its
present form. For the legislative history,
see 69
Cong.Rec. 841; S.Rep. No. 1504, 70th Cong., 2d Sess. The provision
now reads:
"No person, except as hereinafter provided in this chapter,
shall be naturalized unless such petitioner . . . (3) during all
the periods referred to in this subsection 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."
MR. JUSTICE RUTLEDGE, concurring.
I join in the Court's opinion. I add what follows only to
emphasize what I think is at the bottom of this case.
Immediately, we are concerned with only one man, William
Schneiderman. Actually, though indirectly, the
Page 320 U. S. 166
decision affects millions. If, seventeen years after a federal
court adjudged him entitled to be a citizen, that judgment can be
nullified and he can be stripped of this most precious right by
nothing more than reexamination upon the merits of the very facts
the judgment established, no naturalized person's citizenship is or
can be secure. If this can be done after that length of time, it
can be done after thirty or fifty years. If it can be done for
Schneiderman, it can be done for thousands or tens of thousands of
others.
For all that would be needed would be to produce some evidence
from which any one of the federal district judges could draw a
conclusion, concerning one of the ultimate facts in issue, opposite
from that drawn by the judge decreeing admission. The statute does
not, in terms, prescribe "jurisdictional" facts. [
Footnote 3/1] But all of the important ones are
"jurisdictional," or have that effect, if, by merely drawing
contrary conclusion from the same, though conflicting, evidence at
any later time, a court can overturn the judgment. An applicant
might be admitted today upon evidence satisfying the court he had
complied with all requirements. That judgment might be affirmed on
appeal, and again on certiorari here. Yet the day after, or ten
years later, any district judge could overthrow it, on the same
evidence, if it was conflicting or gave room for contrary
inferences, or on different evidence all of which might have been
presented to the first court. [
Footnote
3/2]
If this is the law and the right the naturalized citizen
acquires, his admission creates nothing more than citizenship in
attenuated, if not suspended, animation. He acquires but
prima
facie status, if that. Until the Government
Page 320 U. S. 167
moves to cancel his certificate and he knows the outcome, he
cannot know whether he is in or out. And when that is done, nothing
forbids repeating the harrowing process again and again, unless the
weariness of the courts should lead them finally to speak
res
judicata.
No citizen with such a threat hanging over his head could be
free. If he belonged to "off-color" organizations, or held too
radical or, perhaps, too reactionary views, for some segment of the
judicial palate, when his admission took place, he could not open
his mouth without fear his words would be held against him. For
whatever he might say or whatever any such organization might
advocate could be hauled forth at any time to show "continuity" of
belief from the day of his admission, or "concealment" at that
time. Such a citizen would not be admitted to liberty. His best
course would be silence or hypocrisy. This is not citizenship. Nor
is it adjudication.
It may be doubted that the framers of the Constitution intended
to create two classes of citizens, one free and independent, one
haltered with a lifetime string tied to its status. However that
may be, and conceding that the power to revoke exists, and rightly
should exist to some extent, the question remains whether the power
to admit can be delegated to the courts in such a way that their
determination, once made, determines and concludes nothing with
finality.
If every fact in issue going to the right to be a citizen can be
reexamined, upon the same or different proof, years or decades
later; and if this can be done
de novo, as if no judgment
had been entered, whether with respect to the burden of proof
required to reach a different decision or otherwise, what does the
judgment determine? What does it settle with finality? If review is
had and the admission is affirmed, what fact is adjudicated if,
next day, any or all involved can be redecided to the contrary?
Can
Page 320 U. S. 168
Congress, when it has empowered a court to determine and others
to review and confirm, at the same time or later authorize any
trial court to overturn their decrees for causes other than such as
have been held sufficient to overturn other decrees? [
Footnote 3/3]
I do not undertake now to decide these questions. Nor does the
Court. But they have a bearing on the one which is decided. It is a
judgment which is being attacked.
Tutun v. United
States, 270 U. S. 568.
Accordingly, it will not do to say the issue is identical with what
is presented in a naturalization proceeding, is merely one of fact,
upon which therefore the finding of the trial court concludes, and
consequently we have no business to speak or our speaking is
appellate intermeddling. That ignores the vital fact that it is a
judgment, rendered in the exercise of the judicial power
created by Article III, which it is sought to overthrow, [
Footnote 3/4] not merely a grant like a
patent to land or for invention. [
Footnote 3/5] Congress has plenary power over
naturalization. That, no one disputes. Nor that this power, for its
application, can be delegated to the courts. But this is not to
say, when Congress has so placed it, that body can decree in the
same breath that the judgment rendered shall have no conclusive
effect. Limits it may place. But that is another matter from making
an adjudication under Article III merely an advisory opinion or
prima facie evidence of the fact or all the facts
determined. Congress has, with limited exceptions, plenary power
over the jurisdiction of the federal courts. [
Footnote 3/6] But to confer the jurisdiction and at the
same time nullify entirely the effects of its exercise are not
matters heretofore thought,
Page 320 U. S. 169
when squarely faced, within its authority. [
Footnote 3/7] To say, therefore, that the trial
court's function in this case is the same as was that of the
admitting court is to ignore the vast difference between
overturning a judgment, with its adjudicated facts, and deciding
initially upon facts which have not been adjudged. The argument
made from the deportation statutes likewise ignores this
difference.
It is no answer to say that Congress provided for the
redetermination as a part of the statute conferring the right to
admission and therefore as a condition of it. For that too ignores
the question whether Congress can so condition the judgment, and is
but another way of saying that a determination, made by an exercise
of judicial power under Article III, can be conditioned by
legislative mandate so as not to determine finally any ultimate
fact in issue.
The effect of cancelation is to nullify the judgment of
admission. If it is a judgment, and no one disputes that it is,
that quality, in itself, requires the burden of proof the court has
held that Congress intended in order to overturn it. That it is a
judgment, and one of at least a coordinate court, which the
cancelation proceeding attacks and seeks to overthrow requires this
much at least -- that solemn decrees may not be lightly overturned,
and that citizens may not be deprived of their status merely
because one judge views their political and other beliefs with a
more critical eye or a different slant, however, honestly and
sincerely, than another. Beyond this we need not go now in
decision. But we do not go beyond our function or usurp another
tribunal's when we go this far.
Page 320 U. S. 170
The danger, implicit in finding too easily the purpose of
Congress to denaturalize Communists, is that, by doing so, the
status of all or many other naturalized citizens may be put in
jeopardy. The other and underlying questions need not be determined
unless or until necessity compels it.
[
Footnote 3/1]
Cf., however, the concurring opinion of MR. JUSTICE
DOUGLAS,
ante, p.
320 U. S. 161.
[
Footnote 3/2]
There is no requirement that the evidence be different from what
was presented on admission, or "newly discovered."
[
Footnote 3/3]
Cf. United States v. Throckmorton, 98 U. S.
61;
Kibbe v.
Benson, 17 Wall. 624. No such cause for cancelation
is involved here.
[
Footnote 3/4]
Tutun v. United States, 270 U.
S. 568.
[
Footnote 3/5]
Cf. Johannessen v. United States, 225 U.
S. 227.
[
Footnote 3/6]
Cf. Lockerty v. Phillips, 319 U.
S. 182.
[
Footnote 3/7]
Cf. 54 U. S.
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.Cl. 447;
id., 76 Ct.Cl. 334;
Ex parte Pocono Pines
Assembly Hotels Co., 285 U.S. 526.
MR. CHIEF JUSTICE STONE, dissenting.
The two courts below have found that petitioner, at the time he
was naturalized, belonged to Communist Party organizations which
were opposed to the principles of the Constitution, and which
advised, advocated and taught the overthrow of the Government by
force and violence. They have found that petitioner believed in and
supported the principles of those organizations. They have found
also that petitioner
"was not, at the time of his naturalization . . . , 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."
I think these findings are abundantly supported by the evidence,
and hence that it is not within our judicial competence to set them
aside -- even though, sitting as trial judges, we might have made
some other finding. The judgment below, canceling petitioner's
citizenship on the ground that it was illegally obtained, should
therefore be affirmed. The finality which attaches to the trial
court's determinations of fact from evidence heard in open court,
and which ordinarily saves them from an appellate court's
intermeddling, should not be remembered in every case save this one
alone.
It is important to emphasize that the question for decision is
much simpler than it has been made to appear. It is whether
petitioner, in securing his citizenship by naturalization, has
fulfilled a condition which Congress
Page 320 U. S. 171
has imposed on every applicant for naturalization -- that during
the five years preceding his application,
"he has 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. [
Footnote 4/1]"
Decision whether he was lawfully entitled to the citizenship
which he procured, and consequently whether he is now entitled to
retain it, must turn on the existence of his attachment to the
principles of the Constitution when he applied for citizenship, and
that must be inferred by the trier of fact from his conduct during
the five-year period. We must decide not whether the district court
was compelled to find want of attachment, but whether the record
warrants such a finding.
The question, then, is not of petitioner's opinions or beliefs
-- save as they may have influenced or may explain his conduct
showing attachment, or want of it, to the principles of the
Constitution. It is not a question of freedom of thought, of
speech, or of opinion, or of present imminent danger to the United
States from our acceptance as citizens of those who are not
attached to the principles of our form of government. The case
obviously has nothing to do with our relations with Russia, where
petitioner
Page 320 U. S. 172
was born, or with our past or present views of the Russian
political or social system. The United States has the same interest
as other nations in demanding of those who seek its citizenship
some measure of attachment to its institutions. Our concern is only
that the declared will of Congress shall prevail -- that no man
shall become a citizen or retain his citizenship whose behavior for
five years before his application does not show attachment to the
principles of the Constitution.
The Constitution has conferred on Congress the exclusive
authority to prescribe uniform rules governing naturalization.
Article I, § 8, cl. 4. Congress has exercised that power by
prescribing the conditions in conformity to which aliens may obtain
the privilege of citizenship. Under the laws and Constitution of
the United States, no person is given any right to demand
citizenship, save upon compliance with those conditions.
"An alien who seeks political rights as a member of this nation
can rightfully obtain them only upon terms and conditions specified
by Congress. Courts are without authority to sanction changes or
modifications; their duty is rigidly to enforce the legislative
will in respect of a matter so vital to the public welfare."
United States v. Ginsberg, 243 U.
S. 472,
243 U. S. 474.
And whenever a person's right to citizenship is drawn in question,
it is the judge's duty loyally to see to it that those conditions
have not been disregarded.
The present suit by the United States, to cancel petitioner's
previously granted certificate of citizenship, was brought pursuant
to an Act of Congress (Section 15 of the Act of June 29, 1906, 34
Stat. 601), enacted long prior to petitioner's naturalization.
Section 15 authorizes any court by a suit instituted by the United
States Attorney to set aside a certificate of naturalization "on
the ground of fraud or on the ground that such certificate of
citizenship was illegally procured." Until now, this Court,
without
Page 320 U. S. 173
a dissenting voice, has many times held that, in a suit under
this statute, it is the duty of the court to render a judgment
canceling the certificate of naturalization if the court finds upon
evidence that the applicant did not satisfy the conditions which
Congress had made prerequisite to the award of citizenship.
Johannessen v. United States, 225 U.
S. 227;
Luria v. United States, 231 U. S.
9;
Maibaum v. United States, 232 U.S. 714;
United States v. Ginsberg, 243 U.
S. 472;
United States v. Ness, 245 U.
S. 319;
Maney v. United States, 278 U. S.
17,
278 U. S. 23;
Schwinn v. United States, 311 U.S. 616.
Provision for such a review of the judgment awarding citizenship
is within the legislative power of Congress, and plainly is subject
to no constitutional infirmity,
Johannessen v. United States,
supra, 225 U. S.
236-240, especially where, as here, the statute
antedated petitioner's citizenship, and the review was thus a
condition of its award.
Luria v. United States, supra,
231 U. S. 24. Our
decisions have uniformly recognized that Congress, which has power
to deny citizenship to aliens altogether, may safeguard the grant
of this privilege, precious to the individual and vital to the
country's welfare, by such procedure for determining the existence
of indispensable requisites to citizenship as has been established
in § 15.
"No alien has the slightest right to naturalization unless all
statutory requirements are complied with; and every certificate of
citizenship must be treated as granted upon condition that the
government may challenge it, as provided in § 15, and demand
its cancelation unless issued in accordance with such requirements.
If procured when prescribed qualifications have no existence in
fact, it is illegally procured; a manifest mistake by the judge
cannot supply these, nor render their existence nonessential."
United States v. Ginsberg, supra, 243 U. S. 475.
Speaking for a unanimous Court, Mr. Justice Brandeis thus stated
what was, until today, the settled law:
"If a certificate is procured when the prescribed
Page 320 U. S. 174
qualifications have no existence in fact, it may be canceled by
suit."
Tutun v. United States, 270 U.
S. 568,
270 U. S. 578.
Congress has not seen fit to interpose any statute of limitations.
And there is no suggestion that the Government was derelict in not
bringing the suit earlier, or that petitioner has been prejudiced
by delay. Hence, the issue before us is whether petitioner, when
naturalized, satisfied the statutory requirements. It is the same
issue as would be presented by an appeal from a judgment granting
or denying naturalization upon the evidence here presented,
although it may be assumed that, in this proceeding, the burden of
proof rests on the Government, which has brought the suit, to
establish petitioner's want of qualifications.
We need not stop to consider whether petitioner's failure, in
his naturalization proceeding, to disclose facts which could have
resulted in a denial of his application constituted fraud within
the meaning of the statute. For present purposes, it is enough that
the evidence supports the conclusion of the courts below as to
petitioner's want of attachment to the principles of the
Constitution, and that § 15 has, ever since its enactment in
1906, been construed by this Court as requiring certificates of
citizenship to be canceled as illegally procured whenever the court
finds on evidence that at the time of naturalization the applicant
did not in fact satisfy the statutory prerequisites.
To meet the exigencies of this case, it is now for the first
time proposed by the concurring opinion of MR. JUSTICE DOUGLAS that
a new construction be given to the statute which would preclude any
inquiry concerning the fact of petitioner's attachment to the
Constitution. It is said that in a § 15 proceeding the only
inquiry permitted, apart from fraud, is as to the regularity of the
naturalization proceedings on their face; that -- however
Page 320 U. S. 175
much petitioner fell short of meeting the statutory requirements
for citizenship -- if he filed, as he did,
pro forma
affidavits of two persons, barely stating that he met the statutory
requirements of residence, moral character and attachment to the
Constitution, and if the court, on the basis of the affidavits,
made the requisite findings and order, then all further inquiry is
foreclosed.
To this easy proposal for the emasculation of the statute there
are several plain and obvious answers.
Section 15 authorizes and directs the Government to institute
the suit to cancel the certificate of naturalization on the ground
of fraud or on the ground that the certificate was illegally
procured. Until now, it has never been thought that a certificate
of citizenship procured by one who has not satisfied the statutory
conditions for citizenship is nevertheless lawfully procured. But
the concurring opinion of MR. JUSTICE DOUGLAS suggests that, for
purposes of § 15, "attachment to the principles of the
Constitution" is not a condition of becoming a citizen. It suggests
that the statute is satisfied, even though the applicant was never
in fact attached to the principles of the Constitution, so long as
such attachment was made to appear, from
pro forma
affidavits, to the satisfaction of the naturalization court. This
is said to be the case regardless of whether, in fact, the
affidavits, and the certificate of citizenship based on them, are
wholly mistaken, and despite the fact that the naturalization
proceeding, as apparently it was here, is an
ex parte
proceeding in which the Government is not represented.
It would seem passing strange that Congress -- which authorized
cancelation of citizenship under § 15 for failure to hold the
naturalization hearing in open court instead of in the judge's
chambers (
United States v. Ginsberg, supra), or for
failure to present the requisite certificate of arrival in this
country (
Maney v. United States,
Page 320 U. S. 176
supra) -- should be thought less concerned with the
applicant's attachment to the principles of the Constitution, and
that he be well disposed to the good order and happiness of the
United States. For what could be more important in the selection of
citizens of the United States than that the prospective citizen be
attached to the principles of the Constitution?
Moreover, if, in the absence of fraud, the finding of the
naturalization court in this case is final, and hence beyond the
reach of a § 15 proceeding, it would be equally final in the
case of a finding, contrary to the actual fact, that the applicant
had been for five years a continuous resident in the United States,
since that requirement, too, is set forth in the sentence of §
4 which provides that "it shall be made to appear to the
satisfaction of the court." Yet it is settled that a certificate of
citizenship based on a mistaken finding of five years' residence is
subject to revocation.
United States v. Ginsberg, supra.
And in
Schwinn v. United States, supra, it appeared, from
extrinsic evidence first offered in a § 15 proceeding, that
the witnesses at the naturalization hearing had been mistaken as to
the length of time they had known the applicant, and that, for a
part of the five-year period, no witness had been produced with
actual knowledge of the applicant's residence or qualifications. We
held, without dissent, 311 U.S. 616, "that the certificate of
citizenship was illegally procured," and, for that reason, we
affirmed a judgment canceling it. [
Footnote 4/2] If we are to give effect to the language
and purpose of Congress, it would seem that we must reach the same
result in the case of the naturalization court's mistaken or
unwarranted finding of attachment to the principles of the
Constitution, even though
Page 320 U. S. 177
the conduct of the applicant and his witnesses at the
naturalization hearing fell short of perjury.
The purpose of § 15 -- like that of § 11, which
authorizes the Government to appear in a naturalization proceeding
to contest the application -- is not merely to insure the formal
regularity of the proceeding, but to protect the United States from
the injury which would result from the acceptance as citizens of
any who are not lawfully entitled to become citizens. Congress left
the naturalization proceeding simple and inexpensive by permitting
it ordinarily to be conducted
ex parte. Thus,
approximately 200,000 certificates of naturalization were issued
during the year in which petitioner became a citizen. Annual Report
of the Secretary of Labor, 1940, p. 115. But, by § 15,
Congress afforded the Government an independent opportunity to
inquire into any naturalization if, upon later scrutiny, it
appeared that the certificate of citizenship had not been lawfully
procured. As the Court declared in
United States v. Ness,
supra, 245 U. S. 327,
"Section 11 and Section 15 were designed to afford cumulative
protection against fraudulent or illegal naturalization." All this
was made abundantly clear by decisions of this Court more than
twenty-five years ago.
See Johannessen v. United States, supra;
Luria v. United States, supra; United States v. Ginsberg, supra;
United States v. Ness, supra, 245 U. S.
325-327. In the intervening years, Congress has often
revised the naturalization laws, but it has not thought it
appropriate to modify this Court's interpretation of the function
of § 15 in the naturalization procedure.
This is persuasive that the interpretation of § 15 now
proposed defies the purpose and will of Congress. It is
inconceivable that Congress should have intended that a naturalized
citizen's attachment to the principles of the Constitution -- the
most fundamental requirement for citizenship -- should be the one
issue which, in the absence
Page 320 U. S. 178
of fraud, the Government is foreclosed from examining. To limit
the Government to proof of fraud in such cases is to read
"illegality" out of the statute in every instance where an alien
demonstrably not attached to the principles of the Constitution has
procured a certificate of citizenship. Even if we were to recast an
Act of Congress in accordance with our own notions of policy, it
would be difficult to discover any considerations warranting the
adoption of a device whose only effect would be to make certain
that persons never entitled to the benefits of citizenship could
secure and retain them. That could not have been the object of
Congress in enacting § 15.
As we are not here considering whether petitioner's certificate
of naturalization was procured by fraud, there is no occasion, and
indeed no justification, for importing into this case the rule,
derived from land fraud cases, that fraud, which involves personal
moral obliquity, must be proved by clear and convincing evidence.
The issue is not whether petitioner committed a crime, but whether
he should be permitted to enjoy citizenship when he has never
satisfied the basic conditions which Congress required for the
grant of that privilege. We are concerned only with the question
whether petitioner's qualifications were so lacking that he was not
lawfully entitled to the privilege of citizenship which he has
procured. There is nothing in § 15, nor in any of our numerous
decisions under it, to suggest that such an issue is to be tried as
fraud is tried, or that it is not to be resolved, as are other
cases, by the weight of evidence. No plausible reason has been
advanced why it should not be. But the point need not be labored,
for no matter how it is determined, it can give no aid or comfort
to petitioner. The evidence in this case, to which I shall refer
and on which the courts below were entitled to rely is clear, not
speculative, and, since petitioner himself has not challenged it,
the trial court was
Page 320 U. S. 179
entitled to accept it as convincing, which it evidently did.
The statute does not, as seems to be suggested, require as a
condition of citizenship that a man merely be capable of attachment
to the principles of the Constitution -- a requirement which
presumably all mankind could satisfy. It requires, instead, that
the applicant be, in fact, attached to those principles when he
seeks naturalization, and § 15 makes provision for the
Government to institute an independent suit, subsequent to
naturalization, to inquire whether that condition was then, in
fact, fulfilled. Congress had exhibited no interest in petitioner's
capabilities. Nor did Congress require only that it be not
impossible for petitioner to have an attachment to the principles
of the Constitution. The Act specifies the fact of attachment as
the test, requiring this to be affirmatively shown by the
applicant; and, by § 15, Congress provided a means for the
United States to ascertain that fact by a judicial
determination.
The prescribed conditions for the award of citizenship by
naturalization are few, and readily understood, and we must accept
them as the expression of the Congressional judgment that aliens
not satisfying those requirements are not worthy to be admitted to
the privilege of citizenship. Congress has declared that, before
one is entitled to that privilege, he must take the oath of
allegiance "that he will 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." Act of
June 29, 1906, § 4 (Third), 34 Stat. 597. And as I have said,
the applicant must make it appear to the court admitting him to
citizenship that, for the five years preceding the date of his
application, he has resided continuously within the United States,
and
"that, during that time, he has behaved as a man of good
Page 320 U. S. 180
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."
Moreover, at the time of petitioner's naturalization, the
statutes of the United States excluded from admission into this
country
"aliens who believe in, advise, advocate, or teach, or who are
members of or affiliated with any organization, association,
society, or group, that believes in, advises, advocates, or
teaches: (1) the overthrow by force or violence of the Government
of the United States. . . ."
Act of October 16, 1918, § 1, 40 Stat. 1012, as amended by
subsection (c) of the Act of June 5, 1920, 41 Stat. 1008, 1009. The
statutes also barred admission to the United States of
"aliens who . . . knowingly circulate, distribute, print, or
display, or knowingly cause to be circulated, distributed, printed,
published, or displayed . . . any written or printed matter . . .
advising, advocating, or teaching: (1) the overthrow by force or
violence of the Government of the United States. . . ."
Ibid., subsection (d). And, by § 2 of the Act of
October 16, 1918, it was provided that any alien who, after
entering the United States, "is found . . . to have become
thereafter a member of any one of the classes of aliens" just
enumerated shall be taken into custody and deported.
See
Kessler v. Strecker, 307 U. S. 22. Quite
apart from the want of attachment to the Constitution and the
consequent disqualification of such aliens for citizenship, their
belonging to any of these classes would disqualify them for
citizenship since their presence in the United States, without
which they cannot apply for citizenship, would be unlawful. And, in
the light of the evidence -- presently to be discussed -- even the
Court's opinion concedes (p.
320 U. S.
153)
"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
Page 320 U. S. 181
force and violence."
In addition, the evidence makes it clear beyond all reasonable
doubt that petitioner, up to the time of his naturalization, was an
alien who knowingly circulated or distributed, or caused to be
circulated or distributed, printed matter advocating the overthrow
of the Government by force or violence.
Wholly apart from the deportation statute, the judgment should
be affirmed because the trial court was justified in finding that
petitioner, in 1927, was not and had not been attached to the
principles of the Constitution. My brethren of the majority do not
deny that there are principles of the Constitution. The Congress of
1795, which passed the statute requiring an applicant for
naturalization to establish that he has "behaved as a man . . .
attached to the principles of the constitution" (1 Stat. 414),
evidently did not doubt that there were. For some of its members
had sat in the Constitutional Convention. In the absence of any
disclaimer, I shall assume that there are such principles, and that
among them are at least the principle of constitutional protection
of civil rights and of life, liberty and property, the principle of
representative government, and the principle that constitutional
laws are not to be broken down by planned disobedience. I assume
also that all the principles of the Constitution are hostile to
dictatorship and minority rule, and that it is a principle of our
Constitution that change in the organization of our government is
to be effected by the orderly procedures ordained by the
Constitution, and not by force or fraud. With these in mind, we may
examine petitioner's behavior as disclosed by the record, during
the five years which preceded his naturalization, in order to
ascertain whether there was basis in the evidence for the trial
judge's findings. In determining whether there was evidence
supporting the finding of petitioner's want of attachment to
constitutional principles, courts must look, as the statute
admonishes, to see whether, in the five-year
Page 320 U. S. 182
period, petitioner behaved as a man attached to the principles
of the Constitution. And we must recognize that such attachment, or
want of it, is a personal attribute to be inferred from all the
relevant facts and circumstances which tend to reveal petitioner's
attitude toward those principles.
Petitioner, who is an educated and intelligent man, took out his
first papers in 1924, when he was eighteen years of age, and was
admitted to citizenship on June 10, 1927, when nearly twenty-two.
Since his sixteenth year, he has been continuously and actively
engaged in promoting, in one way or another, the interests of
various Communist Party organizations affiliated with and
controlled as to their policy and action by the Third
International, the parent Communist organization, which had its
headquarters and its Executive Committee in Moscow. [
Footnote 4/3]
Page 320 U. S. 183
The evidence shows petitioner's loyalty to the Communist Party
organizations; that, as a member of the Party, he was subject to
and accepted its political control, and that, as a Party member,
his adherence to its political principles and tactics was required
by its constitution.
Petitioner was born in Russia on August 1, 1905, and came to the
United States in 1907 or 1908. In 1922, when a 16-year old student
at a night high school in Los Angeles, he became one of the
organizers and charter members of the Young Workers League of
California. For two or three years -- and during the five-year
period which we are examining -- he was educational director of the
League; it was his duty "to organize forums and studies for
classes."
"My job was to register students in the classes and send out
notices for meeting; in other words, to organize the educational
activities of the League for which instructors were supplied."
The outlines of the curriculum of this educational program were
established by the League's national committee. The League (whose
name was later changed to the Young Communist League) was
affiliated with the Communist International. [
Footnote 4/4] In 1928, just after he was naturalized,
petitioner became "organizer" or "director" of the League -- "I was
the official spokesman for the League, and directed its
administrative and political affairs and educational affairs."
Petitioner was a delegate to the League's National Convention
Page 320 U. S. 184
in 1922, and again in 1925. Meanwhile, on February 8, 1924, he
had filed a declaration of intention to become a citizen of the
United States.
At the end of 1924, petitioner joined the Workers Party (which
later changed its name to the Workers Communist Party, and, still
later, to the Communist Party of the United States of America). The
Party was a section of the Third International. The Party
constitution, at the time petitioner became a member, provided
(Article III, § 1) that
"every person who accepts the principles and tactics of the
Workers Party of America and agrees to submit to its discipline and
engage actively in its work shall be eligible to membership."
Applicants for membership were required (Article III, § 2)
to sign an application card reading as follows:
"The undersigned declares his adherence to the principles and
tactics of the Workers Party of America as expressed in its program
and constitution, and agrees to submit to the discipline of the
party and to engage actively in its work."
It was likewise provided (Article X, §§ 1, 2) that
"all decisions of the governing bodies of the Party shall be
binding upon the membership and subordinate units of the
organization," and that "any member or organization violating the
decisions of the Party shall be subject to suspension or
expulsion." [
Footnote 4/5] During
1925 and 1926, petitioner was "corresponding
Page 320 U. S. 185
secretary" of the Workers Party in Los Angeles. As such, he
wrote down the minutes and sent out communications for meetings,
and a letter which he signed in his capacity as "city central
secretary" indicates that he was in charge of outgoing
correspondence with affiliates of the Party. In 1925, he attended
the Party convention.
After his naturalization, petitioner attended the Sixth World
Congress of the Communist International, at Moscow, in 1928, and,
from 1929 to 1930, he was district organizational secretary of the
Party for a district which included Arizona, Nevada and California.
At various subsequent times, he was district organizer in
Connecticut, in Minnesota, and in California. He ran twice as the
Party's candidate for governor of Minnesota. He held other official
positions in the Party, and, at the time of the hearing in the
district court, was California State Secretary of the Party and a
member of the State Central Committee. These facts, while not
directly probative of his behavior during the five-year period
1922-1927, at least establish that his early devotion to the Party
organizations was not transitory, nor inconsistent with his genuine
and settled convictions.
The evidence shows, and it is not denied, that the Communist
Party organization at the time in question was a revolutionary
party having as its ultimate aim generally, and particularly in
England and the United States, the overthrow of capitalistic
government and the substitution for it of the dictatorship of the
proletariat. It sought to accomplish this through persistent
indoctrination of the people in capitalistic countries with Party
principles, by the organization in those countries of sections of
the
Page 320 U. S. 186
Third International, by systematic teaching of Party principles
at meetings and classes held under Party auspices, and by the
publication and distribution of Communist literature, which
constituted one of the basic principles of Party action.
In accordance with the policy established at its Second World
Congress in 1920, the Party press was brought under Party control
through ownership of the various publication agencies. Strict
adherence to Party principles was demanded of all publications,
which were required to be edited by Party members of proved loyalty
to the proletarian revolution. Propaganda was required to conform
to the program and decisions of the Third International. Editors
were removed, and Party members expelled, for noncompliance.
Publications not conforming to Party principles were barred from
Party classes.
Many such Communist Party publications were introduced at the
trial, and constitute a large part of the evidence in this case.
Perusal of the record can leave no doubt of petitioner's
unqualified loyalty to the Communist Party. His continuous services
to the Party for twenty years in a great variety of capacities, and
his familiarity with Party programs and literature, are convincing
proof of his complete devotion to Communist Party principles and
his desire to advance them. Throughout, he has been a diligent
student of Party publications. Many of them were used in the
Communist classes of which he was educational director in the years
immediately preceding his naturalization. All were particularly
brought to his attention as they were introduced in evidence, and
excerpts relative to the issues were discussed in open court.
Except as may be later noted, he did not deny familiarity with them
or disavow their teachings. They were the official exposition of
the doctrines of the Party to which he had formally pledged his
allegiance,
Page 320 U. S. 187
diligently disseminated by him for the indoctrination of his
fellow countrymen, especially the members of the youth
organizations of the Party. In the circumstances, and especially in
the absence of any disavowal by petitioner or the assertion by him
of ignorance of the principles which they proclaimed, they are
persuasive evidence of the nature and extent of his want of
attachment to the principles of the Constitution. In appraising
them in this aspect, it will be most useful to state in somewhat
summary form some of the teachings of these publications,
classified with reference to principles of the Constitution to
which they relate, and to give a few typical examples, of which
many more could be given from the evidence.
Unless otherwise noted, I shall refer only to those with which
petitioner was familiar, and which were published under the
auspices of the Party and by its official publication agencies.
As I have said, it is not questioned that the ultimate aim of
the Communist Party, in 1927 and the years preceding, was the
triumph of the dictatorship of the proletariat and the consequent
overthrow of capitalistic or bourgeois government and society.
Attachment to such dictatorship can hardly be thought to indicate
attachment to the principles of an instrument of government which
forbids dictatorship and precludes the rule of the minority or the
suppression of minority rights by dictatorial government. But the
Government points especially to the methods by which that end was
to be achieved to show that those who pursue or advocate such
methods exhibit their want of attachment to the principles of the
Constitution. Methods repeatedly and systematically advocated, in
the Communist Party literature to which I have referred, include,
first, a softening-up process by which the breakdown and
disintegration of capitalistic governments was to be achieved by
systematic
Page 320 U. S. 188
and general resort to violation of the laws, and, second, the
overthrow of capitalistic governments by force and violence.
It was proclaimed that,
"For all countries, even for most free 'legal' and 'peaceful'
ones in the sense of a lesser acuteness in the class struggle, the
period has arrived when it has become absolutely necessary for
every Communist party to join systematically lawful and unlawful
work, lawful and unlawful organization. . . . The class struggle in
almost every country of Europe and America is entering the phase of
civil war. Under such conditions, the Communists can have no
confidence in bourgeois laws. They should create everywhere a
parallel illegal apparatus which, at the decisive moment, should do
its duty by the party, and in every way possible assist the
revolution. In every country where, in consequence of martial law
or of other exceptional laws, the Communists are unable to carry on
their work lawfully, a combination of lawful and unlawful work is
absolutely necessary. [
Footnote
4/6]"
"Opposition
Page 320 U. S. 189
in principle to underground (illegal) work and an unwillingness
to understand the absolute necessity for a Communist Party of
combining legal with illegal work"
was, in fact, one ground for expulsion from the Party of a
minority faction. [
Footnote 4/7]
Advocacy of illegal conduct generally was accompanied by advocacy
of particular types of illegality. The Party was instructed to
arouse workers to "mass violation" of an injunction "whenever and
wherever an injunction is issued by courts against strikers."
[
Footnote 4/8] In the literature of
the period now in question, unlawful tactics were particularly to
be directed toward government armed forces. In addition to
"systematic unlawful work," "it is especially necessary to carry on
unlawful work in the army, navy, and police." [
Footnote 4/9] Refusal to participate in "persistent
and systematic propaganda and agitation" in the army was "equal to
treason to the revolutionary
Page 320 U. S. 190
cause, and incompatible with affiliation with the Third
International," [
Footnote 4/10]
and this because "it is necessary, above all things, to undermine
and destroy the army in order to overcome the bourgeoisie."
[
Footnote 4/11]
There is abundant documentary evidence of the character already
described to support the court's finding that the Communist Party
organizations, of which petitioner was a member, diligently
circulated printed matter which advocated the overthrow of the
Government of the United States by force and violence, and that
petitioner aided in that circulation and advocacy. From the
beginning, and during all times relevant to this inquiry, there is
evidence that the Communist Party organizations advocated the
overthrow of capitalistic governments by revolution to be
accomplished, if need be, by force of arms. We need not stop to
consider the much-discussed question whether this meant more than
that force was to be used if established governments should be so
misguided as to refuse to make themselves over into proletarian
dictatorships by amendment of their governmental structures, or
should have the effrontery to defend themselves from lawless or
subversive attacks. For, in any case, the end contemplated was the
overthrow of government, and the measures advocated were force and
violence.
Page 320 U. S. 191
The fountain head of Communist principles, the Communist
Manifesto, published by Marx and Engels in 1848, had openly
proclaimed that Communist ends could be attained "only by the
forcible overthrow of all existing social conditions." After 1920,
these teachings were revived and restated in Party publications
which, in the period we are now considering, were used in the
Communist educational program that petitioner was directing. They
recognized that
"the proletarian revolution is impossible without the violent
destruction of the bourgeois governmental machine and the putting
of a new one in its place'"
that
"the dictatorship of the proletariat cannot be the result of the
peaceful development of bourgeois society and democracy; it can be
the result only of the destruction of the bourgeois army and State
machine, the bourgeois administrative apparatus, and the whole
bourgeois political system;"
that
"the dictatorship of the proletariat is born not of the
bourgeois state of things, but of its destruction after the
overthrow of the bourgeoisie, of the expropriation of landed
proprietors and capitalists, of the socialization of the essential
instruments and means of production, of the development of the
proletarian revolution through violence. The dictatorship of the
proletariat is the revolutionary power resting on violence against
the bourgeoisie. [
Footnote
4/12]"
Petitioner testified that at the time of his naturalization he
subscribed to the philosophy and principles of socialism as
manifested in the writings of Lenin.
The State
Page 320 U. S. 192
and Revolution, by Lenin, with which petitioner was
familiar, and which was circulated by the Literature Department of
the Communist Party in 1924 and 1925 and used by Communist Party
classes, declared:
"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. [
Footnote 4/13]"
And in order that there might be no misunderstanding of the term
"revolution," Engels' definition of revolution was revived and
restated as follows:
"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. [
Footnote 4/14]"
"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. [
Footnote 4/15]"
"The working class cannot achieve victory over the bourgeois by
means of the general strike alone, and by the policy of folded
arms. The proletariat must resort to an armed uprising. [
Footnote 4/16]"
"To say that the revolution can be achieved without civil war is
to say that a 'peaceful' revolution is possible. . . . Marx was a
believer in civil war -- that is, the armed struggle of
Page 320 U. S. 193
the proletariat against the bourgeoisie. . . . The teachers of
Socialism took the revolution very seriously. It was clear to them
that the proletariat could not convert the bourgeoisie, and that
the workers would have to impose their will upon their enemies
through a war carried on by guns and bayonets. [
Footnote 4/17]"
The Party teachings in this and other publications were that
revolution by force of arms was a universal principle and
consequently one which embraced the United States, and obviously
was intended to do so when taught in Communist classes in the
United States. Communist publications in evidence were at pains to
point out that
"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 proletariat democracy at
least [in] some countries (England and America). . . . 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. [
Footnote 4/18]"
In order to determine whether petitioner's behavior established
his attachment to the principles of the Constitution, we are
entitled to consider the political system which his Party proposed
to establish and toward which his own efforts in promoting the
Communist cause were directed. About this there is and can be no
serious dispute. Under the new system, existing constitutional
principles were to be abandoned. In the new government to be
established by the Communists, the freedoms guaranteed
Page 320 U. S. 194
by the Bill of Rights were to be ended.
". . . There can be no talk of 'freedom' for everybody. The
dictatorship of the proletariat is incompatible with the freedom of
the bourgeoisie. The dictatorship is, in fact, necessary to deprive
the bourgeoisie of their freedom, to chain them hand and foot in
order to make it absolutely impossible for them to fight the
revolutionary proletariat. [
Footnote
4/19]"
There was to be "immediate and unconditional confiscation of the
estates of the landowners and big landlords" and
"no propaganda can be admitted in the ranks of the Communist
parties in favor of an indemnity to be paid to the owners of large
estates for their expropriation. [
Footnote 4/20]"
The new state was not to include "representatives of the former
ruling classes." [
Footnote
4/21]
"The dictatorship of the proletariat cannot be a 'complete
democracy, a democracy for
all, for rich and poor alike;
it has to be a State that is democratic,
but only for the
proletariat and the propertyless, a State that is dictatorial,
but only
against the bourgeoisie.' . . . Under the
dictatorship of the proletariat, democracy
is proletarian:
it is democracy for the exploited majority, based on the limitation
of the rights of the exploiting minority and directed against this
minority. [
Footnote 4/22]"
The aims of the Communists could be achieved only by
"the annihilation of the entire bourgeois governmental
apparatus, parliamentary, judicial, military, bureaucratic,
administrative, municipal,"
and it was necessary for the Communists "to break and destroy"
the "apparatus." [
Footnote 4/23]
The annihilation of the existing political structure was
Page 320 U. S. 195
deemed as necessary in the United States as elsewhere. [
Footnote 4/24] If elected to public
office, the Communist was directed to "facilitate this task of
destruction" of the existing "apparatus," since the "bourgeois
State organizations" were to be utilized only "with the object of
destroying them." [
Footnote
4/25]
It is unnecessary to give further examples of the teachings of
Communist Party organizations with which the documentary evidence
is shot through and through.
320
U.S. 118app|>Appended to this opinion are excerpts from two
exhibits. These have been chosen not because they prove more than
others, but only because they express in short form ideas which
permeate all. The evidence, as a whole, and the exhibits which we
have especially mentioned, show a basis for finding in the Party
teachings, during the period in question, an unqualified hostility
to the most fundamental and universally recognized principles of
the Constitution. On the argument, we were admonished that
petitioner favored change in our form of government, which is
itself a principle of the Constitution, since the Constitution
provides for its own amendment, and that, in any case, the
Communist Party had greatly modified its aims in more recent years.
It is true that the Constitution provides for its own amendment by
an orderly procedure, but not through the breakdown of our
governmental system by lawless conduct and by force. It can hardly
satisfy the requirement of "attachment to the principles of the
Constitution" that one is attached to the means for its
destruction. And whether, at some time after 1927, the Party may
have abandoned these doctrines is immaterial.
It would be little short of preposterous to assert that vigorous
aid knowingly given by a pledged Party member
Page 320 U. S. 196
in disseminating the Party teachings, to which reference has
been made, is compatible with attachment to the principles of the
Constitution. On the record before us, it would be difficult for a
trial judge to conclude that petitioner was not well aware that he
was a member of and aiding a party which taught and advocated the
overthrow of the Government of the United States by force and
violence. It would be difficult also to find as a fact that
petitioner behaved as a man attached to the principles of the
Constitution. The trial judge found that he did not. And the same
evidence would seem to furnish plain enough support for the trial
judge's further finding that petitioner did not behave as a man
attached "to the good order and happiness" of the United
States.
Petitioner's pledge of adherence to Communist Party principles
and tactics, and his membership in the Communist organizations,
were neither passive nor indolent. His testimony shows clearly
that, during the crucial years, he was a young man of vigorous
intellect and strong convictions. He spent his time actively
arranging for the dissemination of a gospel of which he never has
asserted either ignorance or disbelief. His wide acquaintance with
Party literature and his zealous promotion of Party interests for
many years preclude the supposition that he did not know the
character of its teachings and did not aid in their advocacy. They
are persuasive that he was without attachment to the constitutional
principles which those teachings aimed to destroy. Yet the Court's
opinion seems to tell us that the trier of fact must not examine
petitioner's gospel to find out what kind of man he was, or even
what his gospel was; that the trier of fact could not "impute" to
petitioner any genuine attachment to the doctrines of these
organizations whose teachings he so assiduously spread. It might as
well be said that it is impossible to infer that a man is attached
to the principles of a religious movement from the fact that he
conducts
Page 320 U. S. 197
its prayer meetings, or, to take a more sinister example, that
it could not be inferred that a man is a Nazi and consequently not
attached to constitutional principles who, for more than five
years, had diligently circulated the doctrines of Mein Kampf.
In neither case, of course, is the inference inevitable. It is
possible, though not probable or normal, for one to be attached to
principles diametrically opposed to those to the dissemination of
which he has given his life's best effort. But it is a normal and
sensible inference which the trier of fact is free to make that his
attachment is to those principles, rather than to constitutional
principles with which they are at war. A man can be known by the
ideas he spreads as well as by the company he keeps. And when one
does not challenge the proof that he has given his life to
spreading a particular class of well defined ideas, it is
convincing evidence that his attachment is to them, rather than
their opposites. In this case, it is convincing evidence that
petitioner, at the time of his naturalization, was not entitled to
the citizenship he procured because he was not attached to the
principles of the Constitution of the United States and because he
was not well disposed to the good order and happiness of the
same.
MR. JUSTICE ROBERTS and MR. JUSTICE FRANKFURTER join in this
dissent.
[
Footnote 4/1]
By § 4 of the Act of June 29, 1906, 34 Stat. 598, it is
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."
[
Footnote 4/2]
The district court's decision was based on both fraud and
illegality. The Circuit Court of Appeals relied upon fraud alone,
112 F.2d 74, but our affirmance was rested "on the sole ground" of
illegality.
[
Footnote 4/3]
During the whole period relevant to this litigation, the
Communist Party was a world organization, known as the Third
Communist International (or Comintern), created in 1919, of which
the Communist Parties in each country were sections. The supreme
governing body of the Third Communist International -- which
exercised control of the Party program, tactics and organization --
was the World Congress of the Communist International. Between
meetings of the Congress, its authority was vested in the Executive
Committee of the Communist International. The resolutions of the
Congress, and, between meetings, those of the Executive Committee,
were binding on all sections. In the United States, the Workers
Party of America, a Communist organization, was established in
1921. It was affiliated with the Communist International, and had
sent delegates to the Third World Congress of the International
earlier in that year. The Workers Party of America has been since
continued, and successively known as the Workers (Communist) Party
and as the Communist Party of the United States of America. The
Party sent accredited representatives to the Communist
International, and recognized the leadership of the International.
It was affiliated with the Third International, of which it
constituted a section. All the events with which this litigation is
concerned occurred long prior to the dissolution of the Comintern
in May, 1943.
[
Footnote 4/4]
The Young Workers League was affiliated with the Young Communist
International and the Communist International. It sent delegates to
the Congress of the Young Communist International. It was also
closely related to the Workers Party, and sent delegates to the
Party Conventions. At its Third National Convention, the Party
adopted the following resolution:
"The task of reaching the youth with the message of Communism,
of interesting them in our cause and organizing them for the
militant struggle against the existing social order and its
oppression and exploitation is of major importance for the whole
Communist movement. In carrying on this work, the Young Workers
League is preparing the fighters for Communism who will soon stand
in the ranks of the Party as part of its best fighters."
The Second Year of the Workers Party of America. Report of The
Central Executive Committee to the Third National Convention. Held
in Chicago, Illinois, Dec. 30, 31, 1923 and Jan. 1, 2, 1924.
Theses, Program, Resolutions. Published by the Literature
Department, Workers Party of America, 1009 N. State St., Chicago,
Ill. (p. 122).
[
Footnote 4/5]
Program and Constitution, Workers Party of America. Adopted at
National Convention, New York City, December 24-27, 1921. Amended
at National Convention, Chicago, Ill., December 30-31, 1923, and
January 1, 1924. Published by Literature Department, Workers Party
of America, 1113 W. Washington Boulevard, Chicago, Ill.
[
Footnote 4/6]
See pp. 18, 28, of Statutes, Theses and Conditions of
Admission to the Communist International. Adopted by the Second
Congress of the Communist International, July 17 to August 7, 1920.
The edition of this document in evidence in the present case was
published in March, 1923, under the auspices of the Workers Party
of America, and contained the following statement on the inside
front cover:
"The Workers Party declares its sympathy with the principles of
the Communist International, and enters the struggle against
American capitalism, the most powerful of the capitalist groups,
under the inspiration and leadership of the Communist
International."
"It rallies to the call 'WORKERS OF THE WORLD UNITE.'"
Petitioner testified that he had no recollection of "this
particular edition," but that "I have no doubt that possibly a
pamphlet" like it was sold in Party bookstores. This document was
marked for identification, and the court later denied a motion to
exclude it and other exhibits from the evidence. During the trial,
petitioner's counsel twice referred to the document as having been
put in evidence. Petitioner's counsel included it, with all other
exhibits in evidence or offered for identification, in his
designation of the record to be made up in the circuit court of
appeals. It was so included by order of the court. Despite the
Government's oversight in failing formally to say that the exhibit
was being introduced in evidence, it obviously was deemed to be in
evidence by both the parties and the trial court. The exhibit is
unquestionably relevant and competent evidence, and it became a
part of the record before the courts below.
[
Footnote 4/7]
See p. 94 of The 4th National Convention of the Workers
(Communist) Party of America. Held in Chicago, Ill., August 21-30,
1925. Published by the Daily Worker Publishing Co., 1113 W.
Washington Blvd., Chicago, Ill. The publisher's notice inside the
back cover stated that this pamphlet was "absolutely indispensable
to any member of the party." The pamphlet, which was the official
report of the convention, was sold and circulated by the Party in
Los Angeles in 1925. Petitioner disclaimed familiarity with the
literature of this convention, but testified that he had attended
the convention. He also testified he was in agreement with the
general program and principles of the Workers (Communist)
Party.
[
Footnote 4/8]
Ibid., p. 107. This was part of a resolution, adopted
unanimously by the Party Convention, relating to "Party Policies
for Trade Union Work."
[
Footnote 4/9]
Statutes, Theses and Conditions of Admission to the Communist
International (
see 320
U.S. 118fn4/6|>note 6,
supra), p. 19.
[
Footnote 4/10]
Ibid., p. 28.
[
Footnote 4/11]
A B C of Communism, p. 69. This was written by N. Bucharin &
E. Preobraschensky, in 1919, translated into English in June, 1921,
and published between 1920 and 1924 by the Lyceum-Literature
Department, Workers Party of America, 799 Broadway, New York City.
There was evidence that this pamphlet was a basic work of Party
study classes in 1924 and 1925; that it was expressly designed for
such purposes, was officially circulated by the Party, and was
still advertised by the Workers Library Publishers in 1928.
Petitioner testified that he had read the work and was familiar
with it, although he said that the authors had later been expelled
from the Russian Communist Party.
[
Footnote 4/12]
The Theory and Practice of Leninism, by Stalin, pp. 33, 32,
30-31. Published for the Workers Party of America by the Daily
Worker Publishing Co., Chicago, Ill. This pamphlet was used in
Communist Party classes in 1924 and 1925, and was circulated by the
Literature Department of the Communist Party and sold in Party
bookshops. Five thousand copies were published between January 15
and August 1, 1925.
[
Footnote 4/13]
P. 16, new edition, April, 1924. Published for the Workers Party
of America by The Daily Worker Publishing Co., Chicago, Ill.
[
Footnote 4/14]
Ibid., p. 44.
[
Footnote 4/15]
Statutes, Theses and Conditions of Admission to the Communist
International (
see 320
U.S. 118fn4/6|>note 6,
supra), p. 15.
[
Footnote 4/16]
Ibid., p. 36.
[
Footnote 4/17]
A B C of Communism (
see 320
U.S. 118fn4/12|>note 12,
supra), pp. 109, 110.
[
Footnote 4/18]
The Theory and Practice of Leninism, by Stalin (
see
320
U.S. 118fn4/12|>note 12,
supra), p. 32. To the same
effect
see The State and Revolution, by Lenin (
320
U.S. 118fn4/13|>note 13,
supra), p. 26.
[
Footnote 4/19]
A B C of Communism (
see 320
U.S. 118fn4/11|>note 11, supra), pp. 65, 66.
[
Footnote 4/20]
Statutes, Theses and Conditions of Admission to the Communist
International (
see 320
U.S. 118fn4/6|>note 6,
supra), p. 82.
[
Footnote 4/21]
Ibid., p. 46.
[
Footnote 4/22]
The Theory and Practice of Leninism, by Stalin (
see
320
U.S. 118fn4/12|>note 12,
supra), pp. 31, 32.
[
Footnote 4/23]
Statutes, Theses and Conditions of Admission to the Communist
International (
see 320
U.S. 118fn4/6|>note 6,
supra), pp. 11, 44.
[
Footnote 4/24]
See 320
U.S. 118fn4/19|>note 18,
supra.
[
Footnote 4/25]
Statutes, Theses, and Conditions of Admission to the Communist
International (
see 320
U.S. 118fn4/6|>note 6,
supra), pp. 44, 45, 46.
|
320
U.S. 118app|
APPENDIX
Excerpts from Exhibit 26 -- Statutes, Theses and Conditions of
Admission to the Communist International (
see 320
U.S. 118fn4/6|>note 6,
supra):
"The Communist International makes its aim to put up an armed
struggle for the overthrow of the International bourgeoisie and to
create an International Soviet Republic as a transition stage to
the complete abolition of the State. The Communist International
considers the dictatorship of the proletariat as the only means for
the liberation of humanity from the horrors of capitalism.
Page 320 U. S. 198
The Communist International considers the Soviet form of
government as the historically evolved form of this dictatorship of
the proletariat."
P. 4.
"Under the circumstances which have been created in the whole
world, and especially in the most advanced, most powerful, most
enlightened and freest capitalist countries by militarist
imperialism -- oppression of colonies and weaker nations, the
universal imperialist slaughter, the 'peace' of Versailles -- to
admit the idea of a voluntary submission of the capitalists to the
will of the majority of the exploited, of a peaceful, reformist
passage to Socialism is not only to give proof of an extreme petty
bourgeois stupidity, but it is a direct deception of the workmen, a
disguisal of capitalist wage-slavery, a concealment of the truth.
This truth is that the bourgeoisie, the most enlightened and
democratic portion of the bourgeoisie, is even now not stopping at
deceit and crime, at the slaughter of millions of workmen and
peasants, in order to retain the right of private ownership over
the means of production. Only a violent defeat of the bourgeoisie,
the confiscation of its property, the annihilation of the entire
bourgeois governmental apparatus, parliamentary, judicial,
military, bureaucratic, administrative, municipal, etc., even the
individual exile or internment of the most stubborn and dangerous
exploiters, the establishment of a strict control over them for the
repression of all inevitable attempts at resistance and restoration
of capitalist slavery -- only such measures will be able to
guarantee the complete submission of the whole class of
exploiters."
P. 11.
"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."
P. 15.
"For all countries, even for most free 'legal' and 'peaceful'
ones in the sense of a lesser acuteness in the class struggle, the
period has arrived, when it has become absolutely necessary for
every Communist party to join systematically lawful and unlawful
work, lawful and unlawful organization."
P. 18.
Page 320 U. S. 199
"It is especially necessary to carry on unlawful work in the
army, navy, and police, as, after the imperialist slaughter, all
the governments in the world are becoming afraid of the national
armies, open to all peasants and workingmen, and they are setting
up in secret all kinds of select military organizations recruited
from the bourgeoisie and especially provided with improved
technical equipment."
P. 19.
"The class struggle in almost every country of Europe and
America is entering the phase of civil war. Under such conditions,
the Communists can have no confidence in bourgeois laws. They
should create everywhere a parallel illegal apparatus which, at the
decisive moment, should do its duty by the party, and in every way
possible assist the revolution. In every country where, in
consequence of martial law or of other exceptional laws, the
Communists are unable to carry on their work lawfully, a
combination of lawful and unlawful work is absolutely
necessary."
P. 28.
"A persistent and systematic propaganda and agitation is
necessary in the army, where Communist groups should be formed in
every military organization. Wherever, owing to repressive
legislation, agitation becomes impossible, it is necessary to carry
on such agitation illegally. But refusal to carry on or participate
in such work should be considered equal to treason to the
revolutionary cause, and incompatible with affiliation with the
Third International."
P. 28.
"Each party desirous of affiliating with the Communist
International should be obliged to render every possible assistance
to the Soviet Republics in their struggle against all
counter-revolutionary forces. The Communist parties should carry on
a precise and definite propaganda to induce the workers to refuse
to transport any kind of military equipment intended for fighting
against the Soviet Republics, and should also by legal or illegal
means carry on a propaganda amongst the troops sent against the
workers' republics, etc."
P. 30.
"The world proletariat is confronted with decisive battles. We
are living in an epoch of civil war. The critical hour has struck.
In almost all countries where there
Page 320 U. S. 200
is a labor movement of any importance, the working class, arms
in hand, stands in the midst of fierce and decisive battles. Now,
more than ever ,is the working class in need of a strong
organization. Without losing an hour of invaluable time, the
working class must keep on indefatigably preparing for the
impending decisive struggle."
P. 33.
"Until the time when the power of government will have been
finally conquered by the proletariat, until the time when the
proletarian rule will have been firmly established beyond the
possibility of a bourgeois restoration, the Communist Party will
have in its organized ranks only a minority of the workers. Up to
the time when the power will have been seized by it, and during the
transition period, the Communist Party may, under favorable
conditions, exercise undisputed moral and political influence on
all the proletarian and semi-proletarian classes of the population,
but it will not be able to unite them within its ranks. Only when
the dictatorship of the workers has deprived the bourgeoisie of
such powerful weapons as the press, the school, parliament, the
church, the government apparatus, etc. -- only when the final
overthrow of the capitalist order will have become an evident fact
-- only then will all or almost all the workers enter the ranks of
the Communist Party."
Pp. 33, 34.
"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."
P. 36.
"As soon as Communism comes to light, it must begin to elucidate
the character of the present epoch (the culminations of capitalism,
imperialistic self-negation and self-destruction, uninterrupted
growth of civil war, etc.). Political relationships and political
groupings may be different in different countries, but the essence
of the matter is everywhere the same: we must start with the direct
preparation for a proletarian uprising, politically and
technically, for the destruction of the bourgeoisie, and for the
creation of the new proletarian state."
"Parliament at present can in no way serve as the arena of a
struggle for reform, for improving the lot of the working
Page 320 U. S. 201
people, as it has at certain periods of the preceding epoch. The
center of gravity of political life at present has been completely
and finally transferred beyond the limits of parliament. On the
other hand, owing not only to its relationship to the working
masses, but also to the complicated mutual relations within the
various groups of the bourgeois itself, the bourgeoisie is forced
to have some of its policies in one way or another passed through
parliament, where the various cliques haggle for power, exhibit
their strong sides, and betray their weak ones, get themselves
unmasked, etc., etc. Therefore it is the immediate historical task
of the working class to tear this apparatus out of the hands of the
ruling classes, to break and destroy it, and to create in its place
a new proletarian apparatus. At the same time, however, the
revolutionary general staff of the working class is vitally
concerned in having its scouting parties in the parliamentary
institutions of the bourgeoisie in order to facilitate this task of
destruction."
Pp. 44, 45.
"Parliamentarism cannot be a form of proletarian government
during the transition period between the dictatorship of the
bourgeoisie and that of the proletariat. At the moment when the
accentuated class struggle turns into civil war, the proletariat
must inevitably form its State organization as a fighting
organization, which cannot contain any of the representatives of
the former ruling classes; all fictions of a 'national will' are
harmful to the proletariat at that time, and a parliamentary
division of authority is needless and injurious to it; the only
form of proletarian dictatorship is a Republic of Soviets."
"The bourgeois parliaments, which constitute one of the most
important apparatus of the State machinery of the bourgeoisie,
cannot be won over by the proletariat any more than can the
bourgeois order in general. The task of the proletariat consists in
blowing up the whole machinery of the bourgeoisie, in destroying
it, and all the parliamentary institutions with it, whether they be
republican or constitutional-monarchical."
Pp. 45, 46.
"Consequently, Communism repudiates parliamentarism as the form
of the future; it renounces the same as a form of the class
dictatorship of the proletariat; it repudiates the possibility of
winning over the parliaments;
Page 320 U. S. 202
its aim is to destroy parliamentarism. Therefore, it is only
possible to speak of utilizing the bourgeois State organizations
with the object of destroying them. The question can only and
exclusively be discussed on such a plane."
"All class struggle is a political struggle, because it is
finally a struggle for power. Any strike, when it spreads through
the whole country, is a menace to the bourgeois State, and thus
acquires political character. To strive to overthrow the
bourgeoisie, and to destroy its State, means to carry on political
warfare. To create one's own class apparatus -- for the bridling
and suppression of the resisting bourgeoisie, whatever such an
apparatus may be -- means to gain political power."
P. 46.
"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 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."
P. 47.
"On the other hand, an acknowledgement of the value of
parliamentary work in no wise leads to an absolute, 'in all and any
case' acknowledgement of the necessity of concrete elections and a
concrete participation in parliamentary sessions. The matter
depends upon a series of specific conditions. Under certain
circumstances, it may become necessary to leave the parliament. The
Bolsheviks did so when they left the pre-parliament in order to
break it up, to weaken it, and to set up against it the Petrograd
Soviet, which was then prepared to head the uprising; they acted in
the same way in the Constituent Assembly on the day of its
dissolution, converting the Third Congress of Soviets into the
center of political events. In other circumstances a boycotting of
the elections may be necessary, and a direct, violent storming of
both the great bourgeois State apparatus and the parliamentary
bourgeois clique, or a participation in the elections with a
boycott of the parliament itself, etc. "
Page 320 U. S. 203
"In this way, while recognizing as a general rule the necessity
of participating in the election to the central parliament and the
institutions of local self-government, as well as in the work in
such institutions, the Communist Party must decide the question
concretely, according to the specific conditions of the given
moment. Boycotting the elections or the parliament or leaving the
parliament is permissible chiefly when there is a possibility of an
immediate transition to an armed fight for power."
P. 49.
"A Communist delegate, by decision of the Central Committee, is
bound to combine lawful work with unlawful work. In countries where
the Communist delegate enjoys a certain inviolability, this must be
utilized by way of rendering assistance to illegal organizations
and for the propaganda of the party."
P. 51.
"Each Communist member [of the legislature] must remember that
he is not a 'legislator' who is bound to seek agreements with the
other legislators, but an agitator of the Party, detailed into the
enemy's camp in order to carry out the orders of the Party there.
The Communist member is answerable not to the wide mass of his
constituents, but to his own Communist Party -- whether lawful or
unlawful."
P. 52.
"The propaganda of the right leaders of the Independents
(Hilferding, Kautsky, and others), proving the compatibility of the
Soviet 'system' with the bourgeois Constituent Assembly, is either
a complete misunderstanding of the laws of development of a
proletarian revolution or a conscious deceiving of the working
class. The Soviets are the dictatorship of the proletariat. The
Constituent Assembly is the dictatorship of the bourgeoisie. To
unite and reconcile the dictatorship of the working class with that
of the bourgeoisie is impossible."
P. 64.
"After the victory of the proletariat in the towns, this class
[the landed peasants or farmers] will inevitably oppose it by all
means, from sabotage to open armed counter-revolutionary
resistance. The revolutionary proletariat must, therefore,
immediately begin to prepare the necessary force for the
disarmament of every single man of this class, and together with
the overthrow of the capitalists
Page 320 U. S. 204
in industry, the proletariat must deal a relentless, crushing
blow to this class. To that end, it must arm the rural proletariat
and organize Soviets in the country, with no room for exploiters,
and a preponderant place must be reserved to the proletarians and
the semi-proletarians."
P. 80.
"The revolutionary proletariat must proceed to an immediate and
unconditional confiscation of the estates of the landowners and big
landlords. . . . No propaganda can be admitted in the ranks of the
Communist parties in favor of an indemnity to be paid to the owners
of large estates for their expropriation."
P. 82.
Excerpts from Exhibit 8 -- The State and Revolution, by Lenin
(
see 320
U.S. 118fn4/13|>note 13,
supra):
"We have already said above, and shall show more fully at a
later stage, that the teaching of Marx and Engels regarding the
inevitability of a violent revolution refers to the capitalist
State. It cannot be replaced by the proletarian State (the
dictatorship of the proletariat) through mere 'withering away,'
but, in accordance with the general rule, can only be brought about
by a violent revolution. The hymn sung in its honor by Engels and
fully corresponding to the repeated declarations of Marx (see the
concluding passages of the Poverty of Philosophy and the Communist
Manifesto, with its proud and open declaration of the inevitability
of a violent revolution; also Marx's Criticism of the Gotha Program
of 1875, in which, thirty years after, he mercilessly castigates
its opportunist character) -- this praise is by no means a mere
'impulse,' a mere declamation, or a mere polemical sally. The
necessity of systematically fostering among the masses this and
only this point of view about violent evolution 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."
"The substitution of a proletarian for the capitalist State is
impossible without violent revolution, while the abolition of the
proletarian State -- that is, of all States -- is only possible
through 'withering away.'"
Pp. 15, 16.
Page 320 U. S. 205
"The State is a particular form of organization of force; it is
the organization of violence for the purpose of holding down some
class. What is the class which the proletariat must hold down? It
can only be, naturally, the exploiting class,
i.e., the
bourgeoisie. The toilers need the State only to overcome the
resistance of the exploiters, and only the proletariat can guide
this suppression and bring it to fulfillment -- the proletariat,
the only class revolutionary to the finish, the only class which
can unite all the toilers and the exploited in the struggle against
the capitalist class for its complete displacement from power."
Pp. 17, 18.
"The doctrine of the class war, as applied by Marx to the
question of the State and of the Socialist revolution, leads
inevitably to the recognition of the political supremacy of the
proletariat, of its dictatorship,
i.e., of an authority
shared with none else and relying directly upon the armed force of
the masses. The overthrow of the capitalist class is feasible only
by the transformation of the proletariat into the ruling class --
able to crush the inevitable and desperate resistance of the
bourgeoisie and to organize, for the new settlement of economic
order, all the toiling and exploited masses."
"The proletariat needs the State, the centralized organization
of force and violence, both for the purpose of guiding the great
mass of the population -- the peasantry, the lower middle-class,
the semi-proletariat -- in the work of economic Socialist
reconstruction."
Pp. 18, 19.
"But, if the proletariat needs the State as a particular form of
organization of force against the capitalist class, the question
almost spontaneously forces itself upon us: is it thinkable that
such an organization can be created without a preliminary breaking
up and destruction of the machinery of government created for its
own use by the capitalist class? The Communist Manifesto leads us
straight to this conclusion, and it is of this conclusion that Marx
wrote summing up the practical results of the revolutionary
experience gained between 1849 and 1851."
P. 19.
"Hence, Marx excluded England, where a revolution, even a
people's revolution, could be imagined and was then possible
without the preliminary condition of the
Page 320 U. S. 206
destruction 'of the available ready machinery of the
State.'"
"Today, in 1917, in the epoch of the first great imperialist
war, this distinction of Marx becomes unreal, and England and
America, the greatest and last representatives of Anglo-Saxon
'liberty,' in the sense of the absence of militarism and
bureaucracy, have today completely rolled down into the dirty,
bloody morass of military-bureaucratic institutions common to all
Europe, subordinating all else to themselves. Today, both in
England and in America, the 'preliminary condition of any real
people's revolution' is the breakup, the shattering of the
'available ready machinery of the State' (perfected in those
countries between 1914 and 1917, up to the 'European' general
imperialist standard)."
P. 26.
"But from this capitalist democracy -- inevitably narrow,
stealthily thrusting aside the poor, and therefore to its core,
hypocritical and treacherous -- progress does not march along a
simple, smooth and direct path to 'greater and greater democracy,'
as the Liberal professors and the lower middle class Opportunists
would have us believe. No, progressive development -- that is,
towards Communism -- marches through the dictatorship of the
proletariat, and cannot do otherwise, or there is no one else who
can break the resistance of the exploiting capitalists, and no
other way of doing it."
"And the dictatorship of the proletariat -- that is, the
organization of the advance guard of the oppressed as the ruling
class for the purpose of crushing the oppressors -- cannot produce
merely an expansion of democracy. Together with an immense
expansion of democracy -- for the first time becoming democracy for
the poor, democracy for the people, and not democracy for the rich
folk -- the dictatorship of the proletariat will produce a series
of restrictions of liberty in the case of the oppressors,
exploiters, and capitalists. We must crush them in order to free
humanity from wage-slavery; their resistance must be broken by
force. It is clear that where there is suppression, there must also
be violence, and there cannot be liberty or democracy."
"Engels expressed this splendidly in his letter to Bebel when he
said, as the reader will remember, that"
"the proletariat
Page 320 U. S. 207
needs the State not in the interests of liberty, but for the
purpose of crushing its opponents, and, when one will be able to
speak of freedom, the State will have ceased to exist."
"Democracy for the vast majority of the nation, and the
suppression by force -- that is, the exclusion from democracy -- of
the exploiters and oppressors of the nation: this is the
modification of democracy which we shall see during the transition
from Capitalism to Communism."
Pp. 63, 64.
"Again, during the transition from Capitalism to Communism,
suppression is still necessary; but, in this case, it is the
suppression of the minority of exploiters by the majority of
exploited. A special instrument, a special machine for suppression
-- that is, the 'State' -- is necessary, but this is now a
transitional State, no longer a State in the ordinary sense of the
term. For the suppression of the minority of exploiters by the
majority of those who were but yesterday wage-slaves is a matter
comparatively so easy, simple, and natural that it will cost far
less bloodshed than the suppression of the risings of the slaves,
serfs, or wage laborers, and will cost the human race far
less."
Pp. 64, 65.
MR. JUSTICE JACKSON.
I do not participate in this decision. This case was instituted
in June of 1939 and tried in December of that year. In January,
1940, I became Attorney General of the United States and succeeded
to official responsibility for it. 309 U.S. iii. This I have
considered a cause for disqualification, and I desire the reason to
be a matter of record.