AMENDING NATIONALITY ACT OF 1940

MONDAY, JUNE 30, 1947

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON

IMMIGRATION AND NATURALIZATION,

Washington, D. C.

The subcommittee met at 10 a. m., Hon. Frank Fellows, chairman

of the subcommittee, presiding.

Mr. FELLOWs. The committee will come to order.

We are to consider H. R. 2286 and we will hear Mr. Dolliver. (H. R. 2286 is as follows:)

[H. R. 2286, 80th Cong., 1st sess.]

A BILL To amend the Nationality Act of 1940

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 304 of the Nationality Act of 1940, as amended (U. S. C., 1940 edition, title 8, sec. 704), is amended to read as follows:

"SEC. 304. No person, except as otherwise provided in this Act, shall hereafter be naturalized as a citizen of the United States upon his own petition who cannot speak and read the English language. These requirements shall not apply to any person physically unable to comply therewith, if otherwise qualified to be naturalized."

SEC. 2. Section 307 (a) of the Nationality Act of 1940, as amended (U. S. C., 1940 edition, title 8, sec. 707 (a)), is amended to read as follows:

"(a) No person, except as hereinafter provided in this Act, shall be naturalized unless such petitioner

"(1) immediately preceding the date of filing petition for naturalization has resided continuously within the United States for at least five years and within the State in which the petitioner resided at the time of filing the petition for at least six months;

"(2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship;

"(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; and

"(4) is willing to bear arms in support and defense of the United States." SEC. 3. (a) Section 310 (a) of the Nationality Act of 1940, as amended (U. S. C., 1940 edition, title 8, sec. 710 (a)), is amended to read as follows:

"(a) Any alien who, after September 21, 1922, has married or marries a citizen of the United States, or whose spouse is naturalized during the existence of the marital relation may, if eligible to naturalization, and if such alien shall have resided in the United States in marital union with the United States citizen spouse for at least one year immediately preceding the filing of the petition for naturalization, be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exception:

"(1) No declaration of intention shall be required."

(b) Sections 310 (b) and 311 of the Nationality Act of 1940, as amended (U. S. C., 1940 edition, title 8, secs. 710 (b) and 711), are hereby repealed.

SEC. 4. Section 331 (15) of the Nationality Act of 1940, as amended (U. S. C., 1940 edition, title 8, sec. 731 (15)), is amended to read as follows:

"(15) It is my intention in good faith to become a citizen of the United States and to reside permanently therein, and, If required, I will bear arms in support and defense of the United States.'

1

SEC. 5. Section 332 (17) of the Nationality Act of 1940, as amended (U. S. C., 1940 edition, title 8, sec. 732 (17)), is amended to read as follows:

"(17) I am attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States, and, if required, I will bear arms in support and defense of the United States."

SEC. 6. Section 335 (a) and (b) of the Nationality Act of 1940, as amended (U. S. C.. 1940 edition, title 8, sec. 735 (a) and (b)), is amended to read as follows: "SEC. 335. (a) A person who has petitioned for naturalization shall, before being admitted to citizenship, take an oath in open court

"(1) to support the Constitution of the United States;

"(2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of who or which the petitioner was before a subject or citizen;

"(3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic;

"(4) to bear true faith and allegiance to the same: Provided, That in the case of the naturalization of a child under the provisions of section 315 or 316 the naturalization court may waive the taking of such oath if in the opinion of the court the child is too young to understand its meaning; and

"(5) if required, to bear arms in support and defense of the United States. "(b) The oath prescribed by subsection (a) of this section which the petitioner for naturalization is required to take shall be in the following form:

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that, if required, I will bear arms in support and defense of the United States; and that I take this obligation freely without any mental reservation or purpose of evasion. So help me God. In acknowledgement whereof I have hereunto affixed my signature.'

SEC. 7. Section 338 of the Nationality Act of 1940, as amended (U. S. C., 1940 edition, title 8, sec. 738), is amended by adding at the end thereof the following new subsection:

"(h) If any person hereafter naturalized refuses to bear arms in support and defense of the United States, such refusal shall be sufficient in the proper proceeding to authorize the termination of citizenship, and the cancellation of the certificate of naturalization. Such proceeding shall conform, so far as applicable to that prescribed in subsection (a) hereof."

STATEMENT OF HON. JAMES I. DOLLIVER, REPRESENTATIVE IN CONGRESS FROM THE SIXTH DISTRICT OF IOWA

Mr. DOLLIVER. Mr. Chairman, I want to be perfectly frank about this bill. It was introduced by me several months ago at the request of the American Legion, of which I am a member, and in whose activities I have been rather interested for a good long time.

The purpose of the bill is to rectify a situation which has been created by the interpretation of the naturalization laws by the Supreme Court of the United States with respect to the bearing of arms. The intent of the bill is, as I understand it, to make it a prerequisite for citizenship that the alien requesting citizenship shall say that he shall bear arms in defense of the United States if required.

It seems to me that it is a perfectly reasonable requirement, or preliminary statement, that might be made by nearly anyone who has a bona fide intention of being a loyal citizen of the United States.

Now, probably in connection with the hearings on this bill, there will be those appearing who are opposed to the bill on the ground that it makes no provision for those who have a conscientious objection to the participation in wars. It seems to me that objection is taken care of; and if I am mistaken in this assumption on my part, undoubtedly Mr. Shaughnessy in his testimony will correct me.

The statement in the bill is that he will bear arms "if required." Now, of course, always in our selective-service laws, both in this recently closed war and in World War I, provision was made for the exemption of those persons who entertain conscientious objections to participation in armed conflict, and probably the majority of Congress, perhaps, feels that such a provision was wise, and was not against the national interest, to permit such exemptions. I may say there is some difference of opinion on that subject, too.

Mr. GOSSETT. This would not destroy the status of a naturalized citizen to insist that he was a conscientious objector. This is only a condition precedent to one's becoming a naturalized citizen.

Mr. DOLLIVER. That is right. This has no effect on people who are already citizens.

Mr. GOSSETT. Or on those who would become citizens.

I mean, after they become citizens, the fact that they are required to take the oath that they would bear arms would not preclude them from subsequently becoming a conscientious objector.

Mr. DOLLIVER. That is my understanding and that is my interpretation of the bill, and that is the basis on which it was introduced by me, with that understanding, that this phrase, "If required," is a saving clause which would permit a naturalized citizen coming in after the passage of this bill to claim the exemption under the selective service law of a conscientious objection to military service.

Of course, if in a subsequent selective service law conscientious objection is not recognized, that is an entirely different thing. Mr. GOSSETT. Certainly.

Mr. DOLLIVER. But I take it from this bill that such a person would be given the same recognition under any subsequent selective service law that anybody else would have.

Mr. GOSSETT. In other words, this is a naturalization measure and not a selective service measure.

Mr. DOLLIVER. That is correct.

Mr. Chairman, I simply say these few words to give you my endorsement of the bill and to indicate what I believe the bill does. It seems to me a worthy and desirable piece of legislation.

Mr. GOSSETT. You have provided in your bill, Mr. Dolliver, as far as I understand it, an additional provision that one must be able to speak the English language, and read it.

Mr. DOLLIVER. There is some question about that, especially as far as those who are, say, over 50, or some elderly age of that kind, where it might be rather difficult or impossible for them to learn the English language at that age. However, I think it might be well for the committee in its discretion to put in an age limit.

Mr. Shaughnessy called my attention to the fact that sections 1 and 3 are different with respect to the "if required" provision.

Mr. SHAUGHNESSY. Sections 1 and 3 have no relations to the bearing of arms. Section 1 is what Mr. Gossett just mentioned, that it requires applicants to read as well as speak the English language, and section 3 is that section which requires a uniform period of residence for the spouses of citizens, being three different periods of residence. required, depending upon the day of the marriage.

Mr. DOLLIVER. Of course, that section 3 would simply coordinate and correlate the present provisions of the law.

Mr. SHAUGHNESSY. That is right. It is a standard 5-year period

Mr. DOLLIVER. Mr. Chairman, that is all I have to say, and if I may be excused to attend my own committee meeting, I shall appreciate it.

Mr. FELLOWS. Yes, sir.

Mr. Shaughnessy, will you give us your ideas?

STATEMENT OF EDWARD J. SHAUGHNESSY, SPECIAL ASSISTANT TO THE COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE

Mr. SHAUGHNESSY. H. R. 2286 has three objectives. Section 1 of the bill, Mr. Chairman, would amend section 304 of the Nationality Act of 1940, and that section requires that the applicant for naturalization must be able to speak the English language.

This bill provides that he shall be able to read the English language as well as to speak it.

My department is taking no position on it, leaving it to the legislative policy of the committee, but it wishes to add an amendment to provide that persons 50 years of age need not be required to meet the additional requirement of reading as well as speaking.

If I may be permitted to skip section 2 for the moment, and go to section 3, amending sections 310 (a), 310 (b), and 311 of the Nationality Act of 1940, which deal with naturalization of the spouses of American citizens. Among other things it waives the necessity of filing a declaration of intention to become a citizen, and as to those spouses who married citizens between 1922 and 1934, they require only 1 year's residence in the United States.

Aliens who married the citizens between 1934 and the effective date of the present Nationality Act of 1940, February 13, 1941, require 3 years' residence.

Those who married American citizens since January 13, 1941, and during the life of the act, only require 2 years' period of residence. There seems to be no sound reason in my opinion for the differences of periods of residence.

Mr. FELLOWs. That has to do with section 3?

Mr. SHAUGHNESSY. Section 3; yes, sir.

Now, this puts them all in the 5-year residence class, the same as the person who is not a spouse of the United States citizen.

Mr. GOSSETT. You mean this bill puts them all in the 5-year class? Mr. SHAUGHNESSY. This bill puts them all in the 5-year class. Again my department takes no position on this but leaves it to the legislative policy of the committee.

All this bill does is to waive the first papers, so-called, or the declaration of intention to become a citizen. All the conditions of naturalization of the spouses of citizens are just the same as if they were not married to citizens. It may be that the committee may wish to set a shorter period of residence?

Now, the rest of the bill, sections 2, 4, 6, and 7, as Mr. Dolliver says, amends the various sections of the Nationality Act so as to require, for purposes of naturalization, to, if required, bear arms, except that it is noted on line 19 on page 2, and on line 23, on page 5, the condition, "if required," is not inserted. I assume that that was an oversight because it would appear to be that every section of the

Nationality Law dealing with the provisions for naturalization should be uniform.

Mr. FELLOWS. What does that phrase mean, "if required"?

Mr. SHAUGHNESSY. "If required" would mean that whatever necessary requirements regarding selective service would be enacted by the Congress, or I see a possibility of administrative determinations, perhaps, by, say, the selective service boards, to exempt such classes as they have in the past, such as conscientious objectors.

I might say, Mr. Chairman, and Mr. Gossett, that the Supreme Court has been quite consistent in requiring the condition that they agree to bear arms up to 1946, in the case of Girouard. I have it right here. The case of James Louis Girouard v. The United States. The citation is

Mr. GOSSETT. I might say, Mr. Shaughnessy, that that question seems to be very well discussed in an article appearing in the American Bar Association Journal for February 1947.

Mr. Chairman, at the proper time, I would like to have that inserted in the record. It is just two pages long.

Mr. FELLOWS. Very well. We will do it now.

(The article referred to is as follows:)

[From the American Bar Association Journal, February 1947, vol. 33]

AMERICAN CITIZENSHIP: CAN APPLICANTS QUALIFY THEIR ALLEGIANCE? This article has been prepared in order to bring to the attention of the profession and the public, and the consideration of the Congress, a vital issue which has not yet received the thought and the public discussion which it deserves. The decision of the Supreme Court, by a divided vote in the Girouard case last April, overruled three earlier interpretations of the same laws by the Court and countless rulings by Courts of first instance and Courts of appeal, in naturalization cases. Does the present majority decision reflect a departure from the fundamental principles of a republican form of government? Does it create a situation which calls for action by the Congress to eradicate the consequences of mistaken “judicial legislation"? The Girouard case did not involve a partisian issue or a labor dispute. It reflected a pattern of thought which has recurred in December decisions under the Selective Service Act. It may therefore be used as a detached and objective standard. Our member-readers will recall that while he was reading his emphatic dissent in the Girouard case, the beloved Chief Justice Stone was fatally stricken. Questions posed in this article are accentuated by his last words to his profession and his country.

Prior to April 22, 1946, an alien who refused to bear arms in defense of this country could not be admitted to citizenship in it. On that date that historic rule was nullified and reversed. An applicant otherwise acceptable must now be admitted to citizenship even though he says he will not take up arms in defense of this country and our Constitution and Government.

That change in the law was brought about by the decision of the Supreme Court in the case of Girouard v. United States.1 By a vote of five to three the Court overruled three earlier decisions, saying: "We conclude that the Schwimmer, Macintosh, and Bland cases do not state the correct rule of law."

The authority and duty to specify the requirements for citizenship rest in the Congress, not in the Court. In each of the cases mentioned, the Court had before it a controversy as to the meaning of the language used by the Congress in the Naturalization Act of 1906, the Nationality Act of 1940, and the amendments of 1942. The Congress had provided that an applicant should prove "to the satisfaction of the Court admitting any alien to citizenship" that he had for a period of 5 years "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," and had directed further that he should declare on oath that he would "support and defend the Constitution and laws of the United States