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Such decisions are not arrived at by technical considerations of the law and the books, but spring directly from the personal opinions of the men on the bench.
In discussing the question of how a man will act and vote on the Supreme Bench, Charles Evans Hughes in his book The Supreme Court of the United States, admits that personal views on social and economic issues are determining factors:
"If you could get further down to the bedrock of conviction as to what are conceived to be fundamental principles of government and social relations, you might be able to get closer to accurate prophecy. But you can not expect to have judges worthy of the office who are without convictions and the question from that point of view is not as to the qualifications of judges but whether you will have a court of this character and function." :
A few weeks ago the court majority reversed a Supreme Court ruling which had stood for 30 years and which held that States have a constitutional right to impose certain taxes. The reversal was not made on the basis of the Constitution, but on the basis of the personal opinion of the judges that the old decision was not good policy. As Justice McReynolds,
in the majority opinion, said:
"The practical effect of it has been bad."
Therefore, the personal convictions, as well as the legal qualifications, of the members of the Supreme Court determine whether the laws of Congress shall be thrown in the waste basket and whether court-made laws are to be fastened upon the country for the benefit of special interests.
To what kind of man is President Hoover going to give such inordinate power? What kind of court will Hoover create?
Will he add again, as with Hughes's appointment, to the majority. Or will he strengthen that small but brilliant minority of Holmes, Brandeis. and sometimes Stone, whose liberalism and fidelity to the Constitution are the people's hope of justice?
Hoover was elected as a liberal.
[Washington Star, June 6, 1929]
JUDGMENT OF NATION DIVIDED ON SCHWIMMER CASE DECISION
Denial of citizenship to Rosika Schwimmer by decision of the United States Supreme Court, with three justices dissenting, raises again the question of the status of the professional pacifist. Supporters of the majority opinion emphasize the point that an alien seeking citizenship is not demanding a right but seeking a privilege, and that nationalism requires a willingness to indorse the principle of taking up arms in the national defense. Those who accept the minority opinion of Justice Holmes, concurred in by Justices Brandeis and Sanford, insist that tolerance and the American principle of free thought and speech are endangered by the majority attitude.
"We take young men and send them to war without asking their leave. We send men to prison who refuse. That is on the principle of national selfpreservation," says the Milwaukee Journal, with the query, "If we require this of young men born citizens, can we welcome to citizenship any one whose influence would be in favor of their refusing?" The Savannah News observes as to Mrs. Schwimmer: "She would not without effort permit a person to take from her her personal belongings. Why should she not be in favor of fighting for her country, when country means the protection of the life and liberties of its people? The most prominent thing about pacifists is their inconsistency." "Those who would accept citizenship with reservations should be barred," declares the Indianapolis Star, while the St. Louis Globe-Democrat calls the decision "sound and just and thoroughly American," and the Syracuse Herald contends that "the principles of sound and loyal citizenship apply to all alike." The New York Evening Post comments: "As the majority points out, Mme. Schwimmer is asking not a natural right but a privilege. She presumes to impose a condition upon her acceptance of the privilege that she asks-the privilege to disregard the Nation's first law, that of national self-preservation." "Every true American," in the opinion of the Long Beach Press-Telegram, "cherishes a sincere hope for peace, but it is coupled with a willingness to defend the Union against all foes. That this is a better brand of pacifism than that which is militant for ingrafting of alien theories on the body politic of the republic is a safe conclusion, in which all good citizens will join." The
Texarkana Gazette offers the further conclusion that “there are enough conscientious objectors already holding American citizenship without formally bestowing citizenship on aliens who are avowedly opposed to taking up arms in defense of the Nation, should occasion arise."
Similar views are held by the Savannah Press, Fort Wayne News-Sentinel, and Columbus Evening Dispatch, and numerous others. The Charleston Daily Mail feels that "the Nation has no place and small use, if any, for the citizen who is willing to enjoy all the benefits of the country without, when the Nation is in peril, serving it to the best of his ability in such ways as he can." The Lansing State Journal argues that "to have admitted Mme. Schwimmer to citizenship, after she had declared, as she has declared, of record, that she had no sense of nationalism and only a cosmic consciousness of belonging to the human race, would have been to absolve practically every citizen of allegiance to the Government."
In the dissenting opinion of Justice Holmes is a plea for free thought and the statement: "I would suggest that the Quakers have done their share to make the country what it is; that many citizens agree with the applicant's beliefs and that I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount." On this point the Asheville Times States: "Justice Holmes has lived to see some of his dissenting opinions of past years virtually wholly adopted by the majority of his colleagues. He may not live to see his philosophy of freedom to think incorporated into the law of the land. Surely, however, that reasonably liberal doctrine will some day prevail."
"While the patriotic duty of citizenship is to support the country in times of peril, going to the very last sacrifice," the Philadelphia Evening Bulletin says, "there is no interest of national safety nor any tradition of American patriotism to be endangered by the admission to the Nation of men and women whose obedience to the prince of peace is so exact and liberal that they will not fight." The Columbus, Ohio, State Journal thinks that "it really requires more courage to be an honest and intelligent conscientious objector than it does to follow the crowd and go out and fight, and we need all the moral courage we can get in this country and all the various points of view that thoughtful people take."
"A Benjamin Franklin who could be proved to have said 'There is no such thing as a good war or a bad peace' would have to remain an alien," says the Brooklyn Daily Eagle, and the Birmingham News asks, "If the Government in time of war lets off thousands of Quakers who are men, why should the Supreme Court of the United States prescribe this lone opponent of arms bearing, who in this case is a woman?" The Cleveland Plain Dealer comments: "Millions, we believe, hate the thought of the uncompromising pacifist,' but will regret to see the great Supreme Court make that thought a bar to American citizenship. That branch of Government, even if no other, should be a defender of tolerance."
"Readers of the minority opinion of the court, which defends the case of conscientious objectors," suggests the New York Sun, "may be struck by the ironical thought that it was written by the sole war veteran on the Supreme Court bench, one who bears the scars of wounds received at Balls Bluff, Antietam, and Maryes Heights." The Springfield Republican also points out that "it is with that background of gallantry under fire that Justice Holmes declares in the case of Mme. Schwimmer: 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.'"
"The dissenting opinion of Justice Holmes," asserts the Little Rock Arkansas Democrat, "not only is a 'golden text of liberalism,' but it is a whole system of morals in government. Written with that clarity which marks all opinions by the grand old liberal, it further typifies the man in that it contains common sense, free from petty prejudices and artificial patriotism.”
[New York World on Macintosh and Schwimmer cases, June 26, 1929]
A JUDGE-MADE THEORY OF CITIZENSHIP
In the case of Mme. Schwimmer the Supreme Court, by a vote of 6 to 3, denied citizenship to a woman, 49 years of age, admittedly qualified in all other respects, because she had declared that she would never take up arms. In the case of Dr. Douglas Macintosh, a Canadian, who served at the front as chaplain
during the war, for 20 years professor of theology at the Yale Divinity School, the district court has refused citizenship because Doctor Macintosh has declared that his willingness to bear arms would be determined by his conscientious opinion as to the righteousness of the particular war. Both case are purely theoretical, since both Mme. Schwimmer and Doctor Macintosh are too old to be drafted into military service. The theoretical question raised in the Schwimmer case is whether an alien may become a citizen if he holds the same view of war as a native Quaker. The theoretical question in the Macintosh case is whether an alien may became a citizen if he puts loyalty to the dictates of his conscience ahead of loyalty to the declared will of the President and a majority in Congress.
The full text of Judge Burrows's opinion in the Macintosh case is not available to us at the moment, but from the extracts available it appears that the courts are by way of inventing a theory of citizenship which has strange implications. According to Judge Burrows, a citizen, be he native-born or naturalized, loses all right of individual judgment and action the moment Congress declares that a state of war exists. From that moment on every citizen is at the absolute disposition of the President as absolutely as if he were a private soldier at the front.
The absoluteness of this doctrine is as naive as it is intolerable.
The majority of wars in which any great power engages are not life and death struggles in which its existence is at stake but little wars of policy, interest, or accident. It is absurd to lay down a rule which makes it the absolute obligation of the citizen to give unquestioning support to every war. Such a rule would condemn Calhoun and Lincoln, who opposed the Mexican War.
The rule is contrary to the fundamental policy of the United States. It tacitly assumes that a declaration of war puts universal conscription into effect. We do not have, and there is no prospect that we shall have, a permanent conscription law. Our fundamental military policy is and always has been voluntary-that is to say, based on just such right or private judgment as Doctor Macintosh asserts. Conscription has been invoked twice in our history-during the Civil War and during the World War-and immediately abandoned at the end of these wars. The clear deduction from these precedents is that in the American scheme of things conscription does not automatically follow a declaration of war, as Judge Burrows seems to imagine, but that conscription can be put into effect only when by a separate decision Congress has declared that the emergency of war is great enough to justify it. When an extraordinary emergency of this kind arises, men of such manifest good faith as Doctor Macintosh will present no serious problem. He presented none to Canada during the World War.
In view of the fact that conscription is not our permanent policy, it would seem to be going pretty far for judges to deal with applicants for citizenship as if conscription was our permanent policy.
[Labor, June 8, 1929]
JUSTICE HOLMES, DEFENDER OF LIBERTY
Rosika Schwimmer is a pacifist; also she is a woman of culture and a writer and lecturer of marked ability. She does not believe in war under any circumstances, and says she would refuse to bear arms if war came.
For this reason, the Supreme Court last week refused to let Mrs. Schwimmer become a citizen of this country-which has just renounced war by solemn treaty.
She is a woman over 50 years of age, and would not be allowed to bear arms if she wanted to," remarks Justice Oliver Wendell Holmes in one of those brief dissenting opinions which often are as fine essays as any his famous father ever wrote.
"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. "The Quakers have done their share to make the country what it is. I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount."
Labor suspects that the Schwimmer decision will be known in history only by this dissent to it-in which Justice Brandeis concurs.
Justice Holmes is not a pacifist. He is a soldier, three times grievously wounded in defense of his country during the Civil War. He was 88 years old last March.
But age can not wither nor custom dull the razor edge of his intellect; and, perhaps because he has remained a real soldier in spirit, he is not afraid to take a chance in so good a cause as that of free speech.
[New York City American, April 26, 1930]
WHAT'S THE ANSWER?-A LIBRARY IN MINIATURE
(Continued from Thursday)
1. What was the Rosika Schwimmer case?
2. What was the Mrs. Gordon Mackenzie case?
3. What are the provisions of the so-called Griffin bill?
4. What is the Steck bill?
5. What was the Law of 1907?
1. Mme. Schwimmer was born in Austria in 1877. In 1921 she entered the United States and declared her intention to become a citizen. In 1926 she filed her petition for naturalization. She refused to say that she would take up arms in defense of the United States, and was denied naturalization by the court. Her appeal was won in the Circuit Court of Appeals, but when it reached the United States Supreme Court it was reversed and her petition denied.
2. Mrs. Gordon Mackenzie, born in California, married a British subject in 1909 and continued to live in California. By the terms of the Act of 1907 'any woman who marries a foreigner shall take the nationality of her husband." Mackenzie did not become a citizen of the United States, but in 1913 Mrs. Mackenzie tried to vote and was refused registration in California. She appealed and the case reached the Supreme Court, which ruled against her. However, the case did attract attention to the discrimination against American-born women, so that in 1922 Congress passed a law giving American women the right to nationality independent of that of a husband. Marriage to an alien no longer deprived her of American citizenship.
3. That no person otherwise qualified shall be debarred from naturalization by reason of religious views or opinions concerning the lawfulness of war. This bill is pending.
4. It would require every alien to declare that when called he will bear arms in defense of the United States. This bill also is pending.
5. Any woman who lost her citizenship by marriage to an alien might, if the marital status be terminated by death or divorce, resume her American citizenship by registering as an American citizen at a consulate or by returning to this country and continuing to reside here.
[New York Telegram, April 29, 1930]
EDUCATORS TO WORK ON THE YOUNG
(By Harry Elmer Barnes)
It is well to keep hammering away at the savagery of our criminal courts and the barbarism of our prison methods. The most elementary considerations of humanity would dictate this.
But he who would prevent crime will center his attention upon the children who feed the ranks of adult delinquents. Few persons turn to crime in the midst of a law-abiding career. Moreover, few adult criminals are ever fully reformed. The prevention of crime is essentially a child problem.
Dr. Walter N. Thayer, the newly appointed superintendent of prisons in Maryland, went to the core of the matter. He advocated that the Department
of Education assign to the various schools psychiatrists and sociologists who would make a careful study of the problems of each child to prevent the formation of antisocial habits.
Such a scheme would be an advance over sole reliance upon juvenile courts and child guidance clinics to straighten out criminally inclined children. It is easier to deal with a juvenile delinquent than with an adult criminal. But it is much simpler to take the kinks out of a problem child before he elbows his way into the ranks of delinquents.
Parents may object to such procedure at first. But they can quickly be taught that it is better to have an erratic child scientifically treated in youth than to look at him through bears 15 years later.
The repression of crime is, after all, more directly a problem for the department of education than for the department of correction. The latter only gets the junk heap. Educators have the raw material to work on.
GIVE THE SERMON ON THE MOUNT A CHANCE
Shall individual convictions or the dictates of the General Staff rule the minds of Americans? Should one be more loyal to the spirit of the Prussian "goose step" than to the Sermon on the Mount? This is the core of the issue raised by the action of the courts in denying citizenship to those who refuse to give an unqualified promise to bear arms against potential enemies of this country.
Beginning with the case of the estimable Rosika Schwimmer, citizenship has been denied to other sincere pacifists, such as Prof. Douglas C. MacIntosh, of Yale University; Mrs. Margaret Dorland Webb, member of the Society of Friends; Miss Martha Graber, a Mennonite nurse; Herman Euns, another Mennonite; the Rev. T. F. King, a Methodist minister; M. Tapolscanyi, a communist, and Jacob Becker, a Chicago citizen who declared that he would kill human beings.
Commenting on the Schwimmer case, Justice Oliver Wendell Holmes said in his dissenting opinion:
"I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant's belief and that I had not supposed that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount."
A bill has been introduced in the House of Representatives by Congressman Anthony J. Griffin, of New York, which will end this disgraceful situation. This would amend the present naturalization law by the proviso
'That no person mentally, morally, and otherwise qualified shall be debarred ffrom citizenship by reason of his or her religious views or philosophical opinions with respect to the lawfulness of war as a means of settling international disputes."
Will Congress still permit an American to have a conscience? Will it allow a private citizen to "renounce war as an instrument of national policy" in accordance with the words of the Kellogg pact?
[New York World, April 6, 1930]
WOMEN MUST FIGHT-RULING IS UNDER FIRE
HOUSE COMMITTEE BURIES GRIFFIN BILL EXEMPTING PACIFISTS FROM NATURALIZATION BAR
(By Elisabeth May Craig)
WASHINGTON, April 5.-"American men never have asked their women to fight for them; I don't see why we should begin now," says Representative James H. Sinclair of North Dakota, who is greatly disturbed over the repeated refusal of the Labor Department to grant American citizenship to women who refuse to promise to fight for the United States if necessary.
"Time was when the Labor Department did not interpret too literally the word defend' in the oath of allegiance which every alien must take when