In this connection, the Court, it is to be noted, stressed the 5-year limitation upon the power of cancelation. The Court said, p. 26: "That the taking up of a permanent residence in a foreign country shortly following naturalization has a bearing upon the purpose with which the latter was sought, and affords some reason for presuming that there was an absence of intention at the time to reside permanently in the United States, is not debatable. No doubt, the reason for the presumption lessens as the period of time between the two events is lengthened. But it is difficult to say at what point the reason so far disappears as to afford no reasonable basis for the presumption. Congress has indicated its opinion that the intervening period may be as much as 5 years without rendering the presumption baseless. That period seems long, and yet we are not prepared to pronounce it certainly excessive or unreasonable. But we are of opinion that as the intervening time approaches 5 years, the presumption necessarily must weaken to such a degree as to require but slight countervailing evidence to overcome it. On the other hand, when the intervening time is so short as it is shown to have been in the present case, the presumption cannot be regarded as yielding to anything short of a substantial and convincing explanation. So construed, we think the provision is not in excess of the power of Congress." It may be suggested that section 8 of H. R. 6250, in proposing to amend section 738 (a) of the Nationality Act of 1940 (title 8, sec. 738, U. S. C.) by providing for suits for revoking citizenship of a naturalized alien "on the ground that his utterances, writings, actions, or course of conduct establish his political allegiance to a foreign state or sovereignty" is not inconsistent with the concession of the Supreme Court in Mackenzie v. Hare, that a citizen cannot be deprived of his citizenship without his concurrence. It may be urged that such naturalized citizen by "utterances, writings, actions, or course of conduct" establishing "his political allegiance to a foreign state or sovereignty" thereby indicates his concurrence in the revoking of his citizenship. In the Mackenzie case, however, the Supreme Court was only able to uphold the act depriving an American-born woman of her citizenship by marriage to an alien, on the ground, as stated by the Court, p. 212: "It deals with a condition voluntarily entered into with notice of the consequences. 66* * * It is as voluntary and distinctive as expatriation and its consequences must be considered as elected." In other words, Congress, by providing that marriage to an alien should deprive an American-born woman of her citizenship, could at least have been said to have made a definite act, the exact consequence of which the woman knew in advance, tantamount to the woman's concurrence in the surrender of her citizenship. This may also be said of section 401 (title 8, sec. 801, U. S. C.), which provides for "General means of losing United States nationality." There, every act indicating surrender of nationality is definitely defined. It is to be observed, moreover, that section 401 expressly applies both to naturalized and to native-born citizens. Furthermore, it will be noted that (title 8, sec. 800, U. S. C.), in recognizing the right of voluntary expatriation by all persons, and sections 404, 405, 406, and 407 of the Nationality Act of 1940 (respectively title 8, sec. 804, 805, 806, and 807, U. S. C.) in providing for the expatriation of naturalized citizens, expressly define the specific acts which shall constitute expatriation, and make definite exceptions of certain specific conditions which shall not imply expatriation. Moreover, it is to be noted that section 408 of the Nationality Act (title 8, sec. 808, U. S. C.) specifically provides that, "the loss of nationality under this chapter shall result solely from the performance by a national of the acts or fulfilment of the conditions specified in this chapter." As against these existing definite provisions as to the specific acts and conditions which shall constitute concurrence of citizens, both native-born and naturalized, in loss of nationality, or shall constitute voluntary expatriation, section 8 of H. R. 6250 proposes to deprive a naturalized citizen only of his citizenship, "on the ground that his utterances, writings, actions, or course of conduct establish his political allegiance to a foreign state or sovereignty." There is nothing to define what utterances, what writings, what actions, or what course of conduct shall "establish his political allegiance to a foreign state or sovereignty". In other words, this proposed amendment to section 338 (a) of the Nationality Act of 1940, aside from unconstitutionally discriminating against naturalized citizens, affords such citizens no adequate knowledge, in the language of the Court in Mackenzie v. Hare, of “ * * * a condition voluntarily entered into, with notice of the consequences." Whether the utterances, writings, actions, or course of conduct, will or will not establish that the political allegiance of such naturalized citizen is to a foreign state or sovereignty, cannot possibly be known to such citizen in advance, unless such acts come within the specific acts already defined in section 401 of the Nationality Act, such as taking an oath of allegiance to a foreign state, or entering its armed forces without authority of the laws of this country, or a formal renunciation of nationality before a diplomatic or consular officer in a foreign state. As to such acts, the proposed amendment is unnecessary. As to any other "utterances, writings, actions, or course of conduct," it is unconstitutional, since their nature is not defined by the proposed amendment and therefore cannot be known to the citizen at the time he performs them, but can only be subsequently determined by the construction which may be placed on them by a given court, with the possibility that another court might reach an entirely opposite construction. It is submitted, therefore, that the proposed amendment to section 338 (a) is either unnecessary or unconstitutional. Respectfully submitted. FEBRUARY 17, 1942. JOHN F. FINERTY, Counsel for American Civil Liberties Union. Senator MALONEY. Mr. Bennett, I think we will give you a chance to be heard now, and I will hear Mr. Oppenheimer next. STATEMENT OF WILLIAM S. BENNETT, ATTORNEY, BENNETT, HOUSE & COURTS, NEW YORK Mr. BENNETT. Mr. Chairman, I have already given you a copy of the amendment that I suggest. Senator MALONEY. You have a copy here, yourself? Mr. BENNETT. Yes. Senator MALONEY. Will you please identify yourself for the record and then submit the copy of your suggested amendment? Mr. BENNETT. Yes. William S. Bennett, 25 Broadway, New York City. I happen to be the only surviving member of the Fiftyninth Congress that drafted the Naturalization Act, and therefore I am in a position to give the genesis of this situation. When we came to drafting the act, we found, to the amazement of those who live on the eastern seaboard that from Ohio west the constitutions of the States, several of the States-Indiana, Michigan, and Nebraska-for very good and sufficient reasons permitted the people to vote who had merely filed declarations of intention. Senator MALONEY. I would like to know what those good and sufficient reasons are. Mr. BENNETT. Yes. Well, they are these: The territories were being settled up very rapidly and settled up by immigrants from very good countries, as they thought and as events proved. And they adopted as a policy that since they evinced enough interest in becoming permanent citizens to file declarations of intention that they ought to be permitted to take a part in the government. The State of Nebraska elected a governor who was not a citizen of the United States, and the right so to do was contested and upheld by the Supreme Court of the United States in the case of Ward against Nebraska. Well, the inevitable result was that where these people found that they could exercise all the rights of citizenship by merely filing a declaration of intention, and it was difficult to become-it was annoying, at least, to become a citizen, and file applications for second papers; and there was no uniform rule-they just went ahead and filed, and considered themselves citizens, and were not harmed or did not harm anybody. When we drafted our uniform Naturalization Act Senator MALONEY. May I interrupt you there? Mr. BENNETT. Certainly. Senator MALONEY. I knew it happened, but I was wondering what led you to believe there were good and sufficient reasons for permitting any such thing to happen? Mr. BENNETT. Those were good and sufficient reasons. You take a State-take States like the Dakotas or Nebraska itself, and in the earlier days in Michigan and Indiana, although in a lesser degreewhere a large proportion of the people who were clearing the land and doing the actual work of citizenship could not become citizens for 5 years after they arrived in the country; and yet it was felt they ought to have some voice in the Government. That became the State policy. I am not saying it was right. Senator HOLMAN. That is, particularly in local government of which they were a component part. Mr. BENNETT. Exactly. Senator HOLMAN. I can get that theory. Senator HOLMAN. Applicable to the pioneering of our country, and the immigrants came pretty generally and are the sources of the hardy pioneers that went out and would work in the open spaces. Mr. BENNETT. Yes, sir. Senator HOLMAN. But today we have entirely different conditions, of a different kind of people coming, that swarm together in cities and bring on all the congestion and untoward conditions incident to slums and such. And I sometimes think the Government has got to cut, got to make the Government fit the conditions. Mr. BENNETT. With that argument I have no quarrel at the moment. Senator HOLMAN. Yes. Mr. BENNETT. Because this proposed amendment does not touch on that at all, it relates entirely to one of those races sometimes called Nordic. And you have those who came here many years ago as German nationals. We in our bill protected every one of that kind, by permitting the declarations of intention to retain their validity, the old declarations of intention; although we provided as to the new declarations of intention, in our bill, that they should only remain valid for 7 years, and if a man did not exercise his right within those 7 years his declaration of intention became invalid for all purposes. So of course he could not vote if he filed a new declaration under our bill. But it was soon found by the Congress that in order to protect this older immigrant there was additional legislation necessary, and in 1918 the Congress passed a bill which is substantially the same as section 320 of the Nationality Act of 1940. I think the wording is identical, except that the 5 years mentioned in the act are the years 1909 to 1914. Subsequently the Congress amended the 5-year period to be the 5 years preceding July 1, 1920, and now the House has made the period the 5 years preceding July 1, 1925. But the act of 1918, having been passed on the 18th day of May 1918 when we were at war with the Germans and the Austrians; as unfortunately we are again-for the first time introduced into the law the words "a person not an alien enemy." Well, those few words did not remain effective very long, because we were soon at peace with both Germany and Austria. So up until the 8th of December, I think it was, this year Senator MALONEY. When we declared the existence of a state of war; yes. Mr. BENNETT. Up until the 8th of December 1941, we had no alien enemies, and the law was applicable to everybody. When this H. R. 6250 got on the floor of the House, they found that those words made necessary a new section for the protection of some very excellent people who had come to this country when young as Germans. The specific case of the amendment proposed by Representative McCormack and Representative Martin, practically jointly, was of a man who thought he was a citizen, who had come here young and who had been here at the time his father was naturalized, and who would have become a citizen if his father had not negligently failed to write his name in the proper space in the proper paper. This man went ahead and voted and exercised other acts of citizenship, and today would be doing the same thing if it had not happened that he went around and wanted to act as a sponsor of another man applying for naturalization and described himself as a citizen of the United States. They checked up and found out his father had not written his name in the proper place in the application. So that the House inserted Section 13, which merely says "A person born of alien parents in a foreign country." They had to do that, because by the 8th of December Senator HOLMAN. Will you enlighten me, please? What is the exact meaning? Is there a prohibition about citizenship of nativeborn of alien parents, and what is that? I did not get the reference that you just made. I did not get your point. Mr. BENNETT. Here is the reason why the existing law does not cover these people: Section 320 is in the law now, and has been in the law since 1918. It says: A person not an alien enemy, who resided uninterruptedly within the United States during the period of five years next preceding July 1, 1920, and was on that date otherwise qualified to become a citizen of the United States, except that such person had not made a declaration of intention required by law and who during or prior to that time, because of misinformation regarding the citizenship status of such person, erroneously exercised the rights and performed the duties of a citizen of the United States in good faith -may not become a citizen, but may file the petition for naturalization prescribed by law without making the preliminary declaration of intention, and upon satisfactory proof to the court that petitioner has so acted may be admitted as a citizen of the United States upon complying with the other requirements of the naturalization laws. The trouble arises, Senator Holman, that the law which protected everybody up until the 8th of December 1941, since that date, because of the declaration of war, is no longer a protection to men who have resided in this country for years and exercised the rights and been under the impression that they were citizens, because technically they are now alien enemies, although they may have sons in every branch of the armed services. So that the gentlemen from Massachusetts--the majority and the minority leaders of the House, it just happened-found that in order to protect their Massachusetts people, and they found there were others similarly situated, and they joined and introduced, and I may say it was passed unanimously, an amendment which does not say anything about alien enemies, but says, "a person born of alien parents in a foreign country," and so forth; which is the same thing. Senator HOLMAN. May or may not do what? Mr. BENNETT. In that particular case it is this: who entered the United States as a minor prior to July 1, 1924, and who on or before the effective date of this Act was a registered voter in any State and a bona fide resident of a State or of the District of Columbia and who claims citizenship through the naturalization of a parent, upon proof satisfactory to the Immigration and Naturalization Service in the declaration of such party shall be held to be lawfully admitted into the United States for permanent residence. I may say for the record, gentlemen, that the amendment was referred to the Department of Justice and approved by it because of the obvious validity of it. It did not cover all of the cases; they never do. So there are some cases which do not fit those exact situations, and to cover them I have drafted one. Because there are in New York City some of these people who lived in Middle Western States and who voted in Middle Western States under the laws out there, and who came to New York State under the impression that they were American citizens, and only found that they are not when the Alien Registration Act was passed and they consulted attorneys to find out whether they were citizens, and for the first time found out that they were not citizens of the United States although they had exercised the rights of citizenship under misinformation. In order not to make it too broad, I have drawn a rather rigid statute, so it would cover only people who have been here a long time. Well, I will read it: A person born of alien parents in a foreign country, who first entered the United States as a minor prior to July 1, 1912— Thirty years ago— and who on or before the effective date of this Act has resided uninterruptedly within the United States for more than twenty years and was at the time of his entry into the United States and still is qualified to become a citizen of the United States, except that a declaration of intention required by law heretofore filed by such person prior to January 1, 1920, expired by operation of law while, because of misinformation regarding the citizenship status of such person, such person was erroneously exercising the rights and performing the duties of a citizen of the United States in good faith, may file the petition for naturalization prescribed by law without making the preliminary declaration of intention, and upon satisfactory proof to the Court that petitioner has so acted may be admitted as a citizen of the United States upon complying with the other requirements of the naturalization laws. I would like to call to your attention that the latter paragraph is- Mr. BENNETT. Certainly. Senator HOLMAN. The thought that occurs to me: You make one of your conditions that through misinformation he votes erroneously. Mr. BENNETT. That is right. Senator HOLMAN. Suppose they have been exercising these functions of a citizen, not through misinformation, but deliberately; who |