U.S. Supreme Court

United States v. Schwimmer,279U.S. 644 (1929)United States v.Schwimmer

No. 484

Argued April 12, 1929

Decided May 27, 1929

279U.S. 644

CERTIORARI TO THE CIRCUIT COURT OFAPPEALS

FOR THE SEVENTHCIRCUIT

Syllabus

1. Because of the great value of the privileges conferred bynaturalization, the statutes prescribing qualifications andgoverning procedure for admission are to be construed with definitepurpose to favor and support the government. P.279 U. S.649.

2. In order to safeguard against admission of those who areunworthy or who for any reason fail to measure up to requiredstandards, the law puts the burden upon every applicant to show bysatisfactory evidence that he has the specified qualifications. P.279 U. S.649.

3. On applications for naturalization, the court's function isto receive the testimony, to compare it with the law, and to judgeon both law and fact. P.279 U. S.649.

4. When, upon a fair consideration of the evidence adduced uponan application for citizenship, doubt remains in the mind of thecourt as to any essential matter of fact, the United States isentitled to the benefit of such doubt, and the application shouldbe denied. P.279 U. S.650.

Page 279 U. S. 645

5. That it is the duty of citizens by force of arms to defendour government against all enemies whenever necessity arises is afundamental principle of the Constitution. P.279 U. S.650.

6. Whatever tends to lessen the willingness of citizens todischarge their duty to bear arms in the country's defense detractsfrom the strength and safety of the government. And their opinionsand beliefs, as well as their behavior indicating a disposition tohinder in the performance of that duty, are subjects of inquiryunder the statutory provisions governing naturalization, and are ofvital importance. P.279 U. S.650.

7. The influence of conscientious objectors against the use ofmilitary force in defense of the principles of our government isapt to be more detrimental than their mere refusal to bear arms.The fact that, by reason of sex, age, or other cause, they may beunfit to serve does not lessen their purpose or power to influenceothers. P.279 U. S.651.

8. The applicant was a woman 49 years of age, a linguist,lecturer, and writer, well educated and accustomed to discussgovernments and civic affairs. She testified that she would nottake up arms in defense of the country; that she was willing to betreated as the government dealt with conscientious objectors whorefused to take up arms in the recent war, and that she was anuncompromising pacifist with no sense of nationalism, but only a"cosmic" sense of belonging to the human family. Taken as a whole,her testimony showed that her objection to military service restedupon reasons other than mere inability, because of her age and sex,personally to bear arms; it was vague and uncertain in itsdescription of her attitude towards the principles of theConstitution, and failed to sustain the burden resting upon her toshow what she meant, and that her pacifism and lack ofnationalistic sense did not oppose the principle making it a dutyof citizenship by force of arms, when necessary, to defend thecountry against its enemies, and that her opinions and beliefswould not impair the true faith and allegiance required by theNaturalization Act.Held, that the district court wasbound by the law to deny her application. P.279 U. S.651.

27 F.2d 742 reversed; district court affirmed.

Certiorari, 278 U.S. 595, to review a decree of the circuitcourt of appeals which reversed a decree of the district courtdenying the present respondent's application fornaturalization.

Page 279 U. S. 646

MR. JUSTICE BUTLER delivered the opinion of the Court.

Respondent filed a petition for naturalization in the DistrictCourt for the Northern District of Illinois. The court found herunable, without mental reservation, to take the prescribed oath ofallegiance, and not attached to the principles of the Constitutionof the United States, and not well disposed to the good order andhappiness of the same, and it denied her application. The circuitcourt of appeals reversed the decree, and directed the districtcourt to grant respondent's petition.Schwimmer v. UnitedStates, 27 F.2d 742.

The Naturalization Act of June 29, 1906, requires:

"He [the applicant for naturalization] shall, before he isadmitted to citizenship, declare on oath in open court . . . thathe will support and defend the Constitution and laws of the UnitedStates against all enemies, foreign and domestic, and bear truefaith and allegiance to the same."

U.S.C. Tit. 8, § 381.

"It shall be made to appear to the satisfaction of the court . .. that, during that time [at least five years preceding theapplication], he has behaved as a man of good moral character,attached to the principles of the Constitution of the United Statesand well disposed to the good order and happiness of the same. . .."

Section 382.

Respondent was born in Hungary in 1877, and is a citizen of thecountry. She came to the United States in August, 1921, to visitand lecture, has resided in Illinois since the latter part of thatmonth, declared her intention to become a citizen the followingNovember, and filed petition for naturalization in September, 1926.On a preliminary form, she stated that she understood theprinciples

Page 279 U. S. 647

of and fully believed in our form of government, and that shehad read, and in becoming a citizen was willing to take, the oathof allegiance. Question 22 was this: "If necessary, are you willingto take up arms in defense of this country?" She answered: "I wouldnot take up arms personally."

She testified that she did not want to remain subject toHungary, found the United States nearest her ideals of a democraticrepublic, and that she could wholeheartedly take the oath ofallegiance. She said: "I cannot see that a woman's refusal to takeup arms is a contradiction to the oath of allegiance." For thefulfillment of the duty to support and defend the Constitution andlaws, she had in mind other ways and means. She referred to herinterest in civic life, to her wide reading and attendance atlectures and meetings, mentioned her knowledge of foreignlanguages, and that she occasionally glanced through Hungarian,French, German, Dutch, Scandinavian, and Italian publications, andsaid that she could imagine finding in meetings and publicationsattacks on the American form of government, and she would conceiveit her duty to uphold it against such attacks. She expressedsteadfast opposition to any undemocratic form of government, likeproletariat, fascist, white terror, or military dictatorships. "Allmy past work proves that I have always served democratic ideals andfought -- though not with arms -- against undemocraticinstitutions." She stated that, before coming to this country, shehad defended American ideals, and had defended America in 1924during an international pacifist congress in Washington.

She also testified:

"If . . . the United States can compel its women citizens totake up arms in the defense of the country -- something that noother civilized government has ever attempted -- I would not beable to comply with this requirement of American citizenship. Inthis

Page 279 U. S. 648

case, I would recognize the right of the government to deal withme as it is dealing with its male citizens who, for conscientiousreasons, refuse to take up arms."

The district director of naturalization, by letter, called herattention to a statement made by her in private correspondence: "Iam an uncompromising pacifist. . . . I have no sense ofnationalism, only a cosmic consciousness of belonging to the humanfamily." She answered that the statement in her petitiondemonstrated that she was an uncompromising pacifist.

"Highly as I prize the privilege of American citizenship, Icould not compromise my way into it by giving an untrue answer toquestion 22, though for all practical purposes I might have doneso, as even men of my age -- I was 49 years old last September --are not called to take up arms. . . . That 'I have no nationalisticfeeling' is evident from the fact that I wish to give up thenationality of my birth and to adopt a country which is based onprinciples and institutions more in harmony with my ideals. My'cosmic consciousness of belonging to the human family' is sharedby all those who believe that all human beings are the children ofGod."

And, at the hearing, she reiterated her ability and willingnessto take the oath of allegiance without reservation, and added:

"I am willing to do everything that an American citizen has todo except fighting. If American women would be compelled to dothat, I would not do that. I am an uncompromising pacifist. . . . Ido not care how many other women fight, because I consider it aquestion of conscience. I am not willing to bear arms. In everyother single way, I am ready to follow the law and do everythingthat the law compels American citizens to do. That is why I cantake the oath of allegiance, because, as far as I can find out,there is nothing that I could be compelled to do that I cannot do.. . . With reference to spreading propaganda among the womenthroughout

Page 279 U. S. 649

the country about my being an uncompromising pacifist and notwilling to fight, I am always ready to tell anyone who wants tohear it that I am an uncompromising pacifist and will not fight. Inmy writings and in my lectures, I take up the question of war andpacifism if I am asked for that."

Except for eligibility to the Presidency, naturalized citizensstand on the same footing as do native-born citizens. All alike oweallegiance to the government, and the government owes to them theduty of protection. These are reciprocal obligations, and each is aconsideration for the other.Luria v. United States,231 U. S. 9,231 U. S. 22. Butaliens can acquire such equality only by naturalization accordingto the uniform rules prescribed by the Congress. They have nonatural right to become citizens, but only that which is by statuteconferred upon them. Because of the great value of the privilegesconferred by naturalization, the statutes prescribingqualifications and governing procedure for admission are to beconstrued with definite purpose to favor and support thegovernment. And, in order to safeguard against admission of thosewho are unworthy, or who for any reason fail to measure up torequired standards, the law puts the burden upon every applicant toshow by satisfactory evidence that he has the specifiedqualifications.Tutun v. United States,270 U.S. 568,270 U. S. 578.And see United States v. Ginsberg,243 U.S. 472,243 U. S.475.

Every alien claiming citizenship is given the right to submithis petition and evidence in support of it. And, if the requisitefacts are established, he is entitled as of right to admission. Onapplications for naturalization, the court's function is "toreceive testimony, to compare it with the law, and to judge on bothlaw and fact."Spratt v.Spratt, 4 Pet. 393,29 U. S. 408.We quite recently declared that:

"Citizenship is a high privilege, and when doubts existconcerning a grant of it, generally at least,

Page 279 U. S. 650

they should be resolved in favor of the United States andagainst the claimant."

United States v. Manzi,276 U.S. 463,276 U. S. 467. Andwhen, upon a fair consideration of the evidence adduced upon anapplication for citizenship, doubt remains in the mind of the courtas to any essential matter of fact, the United States is entitledto the benefit of such doubt, and the application should bedenied.

That it is the duty of citizens by force of arms to defend ourgovernment against all enemies whenever necessity arises is afundamental principle of the Constitution.

The common defense was one of the purposes for which the peopleordained and established the Constitution. It empowers Congress toprovide for such defense, to declare war, to raise and supportarmies, to maintain a navy, to make rules for the government andregulation of the land and naval forces, to provide for organizing,arming, and disciplining the militia, and for calling it forth toexecute the laws of the Union, suppress insurrections, and repelinvasions; it makes the President commander in chief of the armyand navy and of the militia of the several states when called intothe service of the United States; it declares that, a wellregulated militia being necessary to the security of a free state,the right of the people to keep and bear arms shall not beinfringed. We need not refer to the numerous statutes thatcontemplate defense of the United States, its Constitution andlaws, by armed citizens. This Court, in theSelective Draft LawCases,245 U. S. 366,speaking through Chief Justice White, said (p.245 U. S. 378)that

"the very conception of a just government and its duty to thecitizen includes the reciprocal obligation of the citizen to rendermilitary service in case of need. . . ."

Whatever tends to lessen the willingness of citizens todischarge their duty to bear arms in the country's defense detractsfrom the strength and safety of the government.

Page 279 U. S. 651

And their opinions and beliefs, as well as their behaviorindicating a disposition to hinder in the performance of that duty,are subjects of inquiry under the statutory provisions governingnaturalization, and are of vital importance, for if all or a largenumber of citizens oppose such defense, the "good order andhappiness" of the United States cannot long endure. And it isevident that the views of applicants for naturalization in respectof such matters may not be disregarded. The influence ofconscientious objectors against the use of military force indefense of the principles of our government is apt to be moredetrimental than their mere refusal to bear arms. The fact that, byreason of sex, age, or other cause, they may be unfit to serve doesnot lessen their purpose or power to influence others. It is clearfrom her own statements that the declared opinions of respondent asto armed defense by citizens against enemies of the country weredirectly pertinent to the investigation of her application.

The record shows that respondent strongly desires to become acitizen. She is a linguist, lecturer, and writer; she is welleducated and accustomed to discuss governments and civic affairs.Her testimony should be considered having regard to her interestand disclosed ability correctly to express herself. Her claim atthe hearing that she possessed the required qualifications and waswilling to take the oath was much impaired by other parts of hertestimony. Taken as a whole, it shows that her objection tomilitary service rests on reasons other than mere inability becauseof her sex and age personally to bear arms. Her expressedwillingness to be treated as the government dealt withconscientious objectors who refused to take up arms in the recentwar indicates that she deemed herself to belong to that class. Thefact that she is an uncompromising pacifist, with no sense ofnationalism,

Page 279 U. S. 652

but only a cosmic sense of belonging to the human family,justifies belief that she may be opposed to the use of militaryforce as contemplated by our Constitution and laws. And hertestimony clearly suggests that she is disposed to exert her powerto influence others to such opposition.

A pacifist, in the general sense of the word, is one who seeksto maintain peace and to abolish war. Such purposes are in harmonywith the Constitution and policy of our government. But the word isalso used and understood to mean one who refuses or is unwillingfor any purpose to bear arms because of conscientiousconsiderations, and who is disposed to encourage others in suchrefusal. And one who is without any sense of nationalism is notwell bound or held by the ties of affection to any nation orgovernment. Such persons are liable to be incapable of theattachment for and devotion to the principles of our Constitutionthat are required of aliens seeking naturalization.

It is shown by official records and everywhere well known that,during the recent war, there were found among those who describedthemselves as pacifists and conscientious objectors many citizens-- though happily a minute part of all -- who were unwilling tobear arms in that crisis and who refused to obey the laws of theUnited States and the lawful commands of its officers, andencouraged such disobedience in others. Local boards found itnecessary to issue a great number of noncombatant certificates, andseveral thousand who were called to camp made claim because ofconscience for exemption from any form of military service. Severalhundred were convicted and sentenced to imprisonment for offensesinvolving disobedience, desertion, propaganda, and sedition. It isobvious that the acts of such offenders evidence a want of thatattachment to the principles of the Constitution of which

Page 279 U. S. 653

the applicant is required to give affirmative evidence by theNaturalization Act.

The language used by respondent to describe her attitude inrespect of the principles of the Constitution was vague andambiguous; the burden was upon her to show what she meant, and thather pacifism and lack of nationalistic sense did not oppose theprinciple that it is a duty of citizenship, by force of arms whennecessary, to defend the country against all enemies, and that heropinions and beliefs would not prevent or impair the true faith andallegiance required by the act. She failed to do so. The districtcourt was bound by the law to deny her application.

The decree of the circuit court of appeals isreversed.

The decree of the district court is affirmed.

MR. JUSTICE HOLMES, dissenting.

The applicant seems to be a woman of superior character andintelligence, obviously more than ordinarily desirable as a citizenof the United States. It is agreed that she is qualified forcitizenship except so far as the views set forth in a statement offacts

"may show that the applicant is not attached to the principlesof the Constitution of the United States and well disposed to thegood order and happiness of the same, and except insofar as thesame may show that she cannot take the oath of allegiance without amental reservation."

The views referred to are an extreme opinion in favor ofpacifism and a statement that she would not bear arms to defend theConstitution. So far as the adequacy of her oath is concerned, Ihardly can see how that is affected by the statement, inasmuch asshe is a woman over fifty years of age, and would not be allowed tobear arms if she wanted

Page 279 U. S. 654

to. And as to the opinion, the whole examination of theapplicant shows that she holds none of the now-dreaded creeds, butthoroughly believes in organized government and prefers that of theUnited States to any other in the world. Surely it cannot show lackof attachment to the principles of the Constitution that she thinksthat it can be improved. I suppose that most intelligent peoplethink that it might be. Her particular improvement looking to theabolition of war seems to me not materially different in itsbearing on this case from a wish to establish cabinet government asin England, or a single house, or one term of seven years for thePresident. To touch a more burning question, only a judge mad withpartisanship would exclude because the applicant thought that theEighteenth Amendment should be repealed.

Of course, the fear is that, if a war came, the applicant wouldexert activities such as were dealt with inSchenck v. UnitedStates,249 U. S. 47. Butthat seems to me unfounded. Her position and motives are whollydifferent from those of Schenck. She is an optimist, and states instrong and, I do not doubt, sincere words her belief that war willdisappear, and that the impending destiny of mankind is to unite inpeaceful leagues. I do not share that optimism, nor do I think thata philosophic view of the world would regard war as absurd. Butmost people who have known it regard it with horror, as a lastresort, and even if not yet ready for cosmopolitan efforts, wouldwelcome any practicable combinations that would increase the poweron the side of peace. The notion that the applicant's optimisticanticipations would make her a worse citizen is sufficientlyanswered by her examination, which seems to me a better argumentfor her admission than any that I can offer. Some of her answersmight excite popular prejudice, but, if there is any principle ofthe Constitution that more imperatively calls for attachment thanany other, it is the principle of free

Page 279 U. S. 655

thought -- not free thought for those who agree with us, butfreedom for the thought that we hate. I think that we should adhereto that principle with regard to admission into, as well as to lifewithin, this country. And recurring to the opinion that bars thisapplicant's way, I would suggest that the Quakers have done theirshare to make the country what it is, that many citizens agree withthe applicant's belief, and that I had not supposed hitherto thatwe regretted our inability to expel them because they believed morethan some of us do in the teachings of the Sermon on the Mount.

MR. JUSTICE BRANDEIS concurs in this opinion.

MR. JUSTICE SANFORD, dissenting.

I agree, in substance, with the views expressed by the circuitcourt of appeals, and think its decree should be affirmed.