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If the law had been in effect when the eighteenth or prohibition amendment was under discussion, an alien would have been deported if he had been affiliated with an American prohibition organization. But after the eighteenth amendment was passed, another alien would have been excluded or deported if he had belonged to a society which passed a resolution in favor of the repeal of the eighteenth amendment before that repeal was subsequently effected by the twenty-first amendment.
Every amendment to the United States Constitution has effected a change in our organic law because our laws are limited by our written Constitution.
Senator ANDREWS. Those changes to which you were referring were made by the orderly processes of law under the Constitution.
Mr. ÖPPENHEIMER. Yes; but some of them were drastic changes, such as both the eighteenth and nineteenth amendments and their adoption effected drastic changes.
Senator HUGHES. Not in the form of government.
Mr. OPPENHEIMER. They gave Congress a power it never had before. It was a drastic and fundamental change in the laws of the United States. After the adoption of the eighteenth amendment, any alien who either had or expressed an opinion before that amendment was repealed, was subject to deportation. When the Federal Government extended the taxing power so as to tax incomes, that was something which unquestionably effected a change in our American form of government.
Senator ANDREWS. That did not effect a change in the form of government. It simply conferred certain powers upon certain branches of the Government.
Mr. OPPENHEIMER. They took it away from the Congress and put it up to the people, which I think would be held to be a change, a fundamental change in our form of Government.
Today, other amendments to the Constitution, which involve changes in the American form of government, are being seriously discussed pro and con by persons and societies whose allegiance to our country is undivided and unquestioned. These proposed amendments include a single term for the President, the right of the Federal Government to tax income derived from state and municipal securities, and a limitation upon the power of Congress to declare war without a referendum by the people.
Under the proposed bill, an alien, otherwise admissible in every respect, who happened to believe in one of those proposed changes, could not be admitted. If he had no opinion on the matter then but formed an opinion after his admission to the country, he would be deportable, and this would follow at any time before he became a citizen, even though he married an American woman and had American-born children.
Under the proposed bill, an alien would be deportable if he had no opinion himself on any of these matters, but joined a social group or labor union which happened to pass a resolution advocating, for example, the passage of the Ludlow amendment.
When a matter of public interest is before the people, it seems to me that any citizen, whether native-born or alien, who has an opinion on that subject should be privileged to express such opinion. It is only by such discussion, as I understand American history, that the truth can be arrived at. It seems to me that the people are being deprived of their just rights when you start nibbling away at these great constitutional guaranties.
Senator ANDREWS. Do you think those guaranties were intended to affect those who do not subscribe to our form of government, or those who conform to our form of government?
Mr. OPPENHEIMER. The guaranties of the Bill of Rights and of the Supreme Court have established the status of the citizen. A man cannot become a citizen unless he takes the oath of allegiance. This bill takes away those constitutional rights. This bill would deprive every foreign-born citizen, every naturalized citizen, of the right guaranteed to him by the Constitution to discuss an important question before the people for the betterment of America; or if he has not already become a citizen, he could be prevented from doing so. I have in mind particularly in this connection what is known as the Ludlow amendment. Under this bill, even though an alien had no opinion upon any proposed change in the form of our United States Government at the time of his admission, yet, under this bill, after his admission, if he formed an opinion upon that subject, he would be subject to deportation, even though he formed his opinion when he was an American citizen. If he belonged to any organization or society which passed a resolution for or against the Ludlow amendment, even though he knew nothing of it, he would be subject to deportation under this bill. If an alien had an American wife and children, and happened to joing a labor organization or society or club of any kind that passed a resolution endorsing or opposing the Ludlow amendment, he would be subject to deportation, under the provisions of this bill.
Senator ANDREWS. They would not have to investigate all of them, would they?
Representative DEMPSEY. They would not have to investigate any of them.
Mr. OPPENHEIMER. There is no discretion given to the Department of Labor or the Secretary of Labor in that respect. It is the affirmative duty of the Department of Labor to bring about the deportation of every alien who has violated the law.
Is that correct, Mr. Shaughnessy?
Mr. SHAUGHNESSY. That is correct to the same extent that there are perhaps 50 or 75 causes for deportation.
Representative DEMPSEY. Why are they not doing it now? You are reading something into the bill that is not there. It is not a part of it.
Mr. OPPENHEIMER. These people would be advocating or believing in a change in the American form of Government.
Representative DEMPSEY. There is nothing in this bill relating to that at all.
Mr. OPPENHEIMER. I beg to differ with you. Section 137 of the United States Code covers that subject of exclusion of aliens. It excludes from admission into the United States various groups of aliens, including aliens who believe in the change in our form of government, or who are members of or are affiliated with any organization, association, society or groups entertaining such belief. The Department of Labor has the duty of enforcing that law and excluding those aliens.
Representative DEMPSEY. Do you say that it is mandatory upon the Department of Labor to do all these things?
Mr. OPPENHEIMER. Yes.
Representative DEMPSEY. Do you find them making such investigations as you speak of?
Mr. OPPENHEIMER. I think they do the best job they can. They have that duty under the act.
Representative DEMPSEY. They are not required to make investigation into specific instances, are they?
Mr. OPPENHEIMER. They have the duty under the law.
Representative DEMPSEY. You say this law would exclude them if they believe in a change in the American form of Government; if they advocate such a change?
Mr. OPPENHEIMER. If they advocate it or believe in it.
Representative DEMPSEY. It does not say that. You are injecting that, because of the language of the present act.
Mr. OPPENHEIMER. I will leave that to the Senators.
Representative DEMPSEY. You do not think that any change should be made in the immigration laws?
Mr. OPPENHEIMER. I would not say that. I would not say the law is necessarily perfect. I am not in favor of raising the quotas if that is what you mean.
May I continue on this subject?
Mr. OPPENHEIMER. Both the exclusion and deportation phases of the immigration process are enforced by the executive branch of the Government. Neither phase is a matter for the courts. The great majority of aliens who apply for admission or against whom deportation warrants are issued are not represented by counsel, and only an infinitesimal percentage of immigration cases comes before courts on habeas corpus proceedings. (Annual Reports of the Secretary of Labor; National Commission on Law Observance and Enforcement, “The Enforcement of the Deportation laws of the United States.")
Every alien who applies for admission to the United States is examined by the Immigration Department of the Department of Labor. During the fiscal year ending June 30, 1939, 82,989 aliens were admitted for permanent residence. In addition, there were over 28,000,000 alien entries from Canada and Mexico. (Annual Report of the Secretary of Labor for the fiscal year ended June 30, 1939,
Apart from the aliens applying for admission to this country, it is estimated that the alien population legally in the United States, as of July 1, 1939, was in excess of 3,600,000. (Annual Report of the Secretary of Labor for the fiscal year ended June 30, 1939, p. 109.)
Under the proposed bill, it would be the duty of the Immigraiton Department to ascertain if any of these 3,600,000 aliens believed, after the passage of the act, in the making of any changes in the American form of government or was affiliated with any organization which so believed or so advocated.
The personnel of the Immigration and Naturalization Service includes a total of 3,771 persons (Annual Report of the Secretary of Labor for the fiscal year ended June 30, 1939, p. 110). These 3,771 persons would be given the power and duty of making an inquisitorial examination as to the individual beliefs of all the aliens in this country as well as those applying for admission. This examination would include the ascertainment of the political convictions of the aliens in
this country as well as those applying for admission. This examination would include the ascertainment of the political convictions of the aliens and the judging of whether any of those convictions included a belief in any proposed change, however peacefully effected, in our form of government.
Under the proposed bill, we would be giving the employees of an executive department of the Government greater power than we have ever given to our courts.
It is submitted that the Immigration Department has already as much as it can do in enforcing present immigration laws, and that those laws effectively protect us. The proposed bill would give to this executive department duties impossible of performance and powers inimical to our whole system of government.
I submit that the bill strikes at the fundamentals of our principles of government. It has no precedent in American history.
The short-lived and detested Alien and Sedition Acts did not go nearly as far as would the present proposed bill. The Enemy Alien Act (1 U. S. Stat. at L., p. 577) authorized the President to arrest, imprison or banish alien citizens. The Alien Act (1 U. S. Stat. at L., p. 570) gave the President power to expel from the country any alien whom he regarded as dangerous to public peace and safety, or whom he believed to be plotting against the Government. The Sedition Act (1. U. S. Stat. at L., p. 596) made unlawful seditious conspiracies and publications of writings to stir up hatred against our Government or its officers.
These acts were opposed by Jefferson, Madison, and Marshall. Jefferson called them "a monster that must forever disgrace its parents.” Marshall thought them "useless-calculated to create unnecessary discontents and jealousies." He pledged that he would “'indisputably oppose their revival.” He voted to repeal the sedition bill in Congress, voting against his own party.
No aliens were deported under these acts; 10 persons were convicted of seditious libel, but in 1840 and 1850, Congress repaid the fines of the most conspicuous citizens. (1 Encyclopaedia of Social Sciences, p. 635; Albert J. Beveridge, The Life of John Marshall, vol. 2, pp. 382, 389, and 451.)
These acts, unpopular, and condemned as they were, did not seek to exclude or expel aliens who advocated any change in our form of government. Indeed, the closest precedent for the proposed legislation was in England at the time of George III, when the King's judges transported men who wanted to abolish rotten boroughs and the limited franchise, because it was felt that if the people of Great Britain possessed the same privileges as the French they might destroy the constitution (Chafee, Freedom of Speech, p. 217).
I submit that the proposed act would be unconstitutional. The Federal Government has the constitutional right to exclude from admission any aliens for any reason that it may deem proper. But aliens in the United States are entitled to the protection of the first, fifth, and sixth amendments (Yick Wo v. Hopkins, 118 U. S. 356; Truax v. Reich, 239 U. S. 33; Wong Wing v. U. S., 163 U. S. 228; Hague v. C. I. O., 307 U. S. 496, 519).
In Hague v. C. I. O., supra, Mr. Justice Stone, in a separate opinion, said:
It has been explicitly and repeatedly affirmed by this Court, without a dissenting voice, that freedom of speech and of assembly for any lawful purpose are rights of personal liberty secured to all persons, without regard to citizenship, by the due-process clause of the fourteenth amendment.
That the proposed bill, at least as to aliens in this country, would violate the freedom of speech guaranteed to aliens as well as citizens by the Constitution is, it is submitted, clear.
In Stromberg v. California (283 U. S. 359), a conviction of a defendant under a State statute making it a criminal offense to display a red flag as a sign of opposition to organized government was held invalid as violating the guaranty of liberty contained in the fourteenth amendment. Mr. Chief Justice Hughes delivered the opinion of the majority of the Court, and stated:
The question is thus narrowed to that of the validity of the first clause, that is with respect to the display of the flag as "a sign, symbol, or emblem of opposition to organized government,” and the construction which the State court has placed upon this clause removes every element of doubt. The State court recognized the indefiniteness and ambiguity of the clause. The court considered that it might be construed as embracing conduct which the State could not constitutionally prohibit. Thus it was said that the clause "might be construed to include the peaceful and orderly opposition to a government as organized and controlled by one political party equally high-minded and patriotic, which did not agree with the one in power. It might also be construed to include peaceful and orderly opposition to government by legal means and within constitutional limitations." The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the fourteenth amendment. The first clause of the statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside,
In De Jonge v. Oregon (299 U. S. 353), the Supreme Court unanimously held invalid a conviction under an Oregon statute, under which the defendant was convicted for assisting in the conduct of a meeting called under the auspices of the Communist Party, when the meeting itself was held for a lawful purpose and was confined to that purpose. The Court said:
While the States are entitled to protect themselves from the abuse of the privileges of our institutions through an attempted substitution of force and violence in the place of peaceful political action in order to effect revolutionary changes in government, none of our decisions go to the length of sustaining such a curtailment of the right of free speech and assembly as the Oregon statute demands in its present application.
The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more in:perative is the need to preserve inviolate the constitutional rights of free speech, free press, and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.
If I may say a personal word, I do not think Mr. Dempsey feels any more strongly in opposition to the principles of communism or of nazi-ism than I do. I resent them with every fiber of my being. I heartily believe in the American form of government. I am not arguing for any of those foreign principles, and do not believe in them.
Senator ANDREW3. Do you represent any society or organization?