Mr. FINERTY. Senator Maloney, I have this brief which I have prepared and which I would like to file as a supplement to the American Civil Liberties Union brief. Senator MALONEY. Very well; that will be made a part of the record. (The briefs referred to are in full as follows:) BRIEF OF AMERICAN CIVIL LIBERTIES UNION WITH REGARD TO H. R. 6250 The American Civil Liberties Union is concerned with only one section of H. R. 6250, namely, section 8, and is concerned with this because it believes that the changes proposed in that section gravely affect freedom of opinion and assembly of naturalized citizens. As originally introduced at the request of the Department of Justice, and as approved by the Committee on Immigration and Naturalization of the House of Representatives, section 8 of the proposed bill sought to amend section 338 (a) of the Nationality Act of 1940 by adding thereto the following words: "or on the ground that his conduct establishes that his political allegiance is, to a foreign state or sovereignty." Section 338 (a) is the section which authorizes the institution of judicial proceedings for the revocation of the citizenship of any naturalized citizen on the ground of fraud or illegality. The bill was passed by the House of Representatives with the addition of certain words so that the new matter now reads: "or on the ground that his utterances, writings, actions or course of conduct establishes that his political allegiance is to a foreign state or sovereignty." It will thus be noted that the proposals expand the ground for revocation of citizenship from fraud or illegality in extraordinary ways. Fraud and illegality are both matters which under all prior law and legal theory relate only to occurrences at the time of naturalization. They are in the original proposal extended to conduct occurring thereafter, without limitation of time. The present bill proceeds now, in addition, to permit revocation merely for words or utterances. Nor is any test given which is capable of giving real guidance in a period of emotional stress, as to what utterances, or what kind of utterances, are envisaged. 1. In the opinion of the American Civil Liberties Union such a bill is unnecessary, dangerous, and unconstitutional. The ostensible necessity for the bill is referred to in the report of Mr. Dickstein (No. 1544; 77th Cong., 1st sess.). says (p. 4): He "This will enable the Government not only to take away the citizenship of persons who succeeded in getting naturalized although their true allegiance was to a foreign state or sovereign, but it should enable the Government, upon revocation of naturalization, to classify them in many instances, as alein enemies and, accordingly, subject them to the laws and regulations affecting alien enemies in time of war or during national emergencies." It will be noted at the very outset that Mr. Dickstein's characterization of this bill is not correct. This bill does not forfeit the citizenship only of persons who became naturalized, although their true allegiance was to a foreign state or sovereignty. To accomplish this objective, existing law is wholly adequate, since a person who became naturalized and did not in good faith renounce his allegiance to a foreign state, was clearly guilty of fraud. And if it was considered desirable to call express attention in the law to this particular variety of fraud, the law should have been formulated in terms so as to indicate that citizenship could be revoked only if it appeared that at the time of naturalization there had not been an honest intent to abjure allegiance to a foreign state. 2. Before considering further objections to the bill, it may be helpful to point briefly to the existing provisions of law dealing with loss of citizenship. In addition to section 338, to which we have already referred, there are three statutory provisions. The first of these, section 401, affects both native-born and naturalized citizens, the other two sections, 402 and 404, affect nationals and naturalized citizens respectively. Under section 401 citizenship may be lost by a number of acts, such as naturalization elsewhere, voting elsewhere, or formal renunciation-formerly marriage by a woman to an alien was included in this category. The significant feature of this section of the law, however, is that it does not decree loss of citizenship except on proof of definite and specific acts concerning which there can be no substantial doubt. Even when, as in sub divisions "g" and "h," loss of citizenship is based on more doubtful factors, such as desertion in time of war or treason, the loss of citizenship results not from proof of these facts in a proceeding dealing with citizenship, but only after conviction for the offense charged. 3. The provisions which deal only with naturalized citizens also rest on specific and definite acts. Thus section 404 creates a presumption of loss with regard to certain of the grounds specified in section 401 where the naturalized citizen has lived 6 months or more in a State of which either parent may have been a national. And section 404 provides for the loss of citizenship (with certain exceptions) after residence of a definite number of years in a foreign country, the length of time depending on whether or not it was the country of the naturalized citizen's birth. 4. It is apparent from the foregoing that until now Congress has been careful not so to condition loss of citizenship as to infringe the rights of naturalized citizens to take an active part in the affairs of this country. Such part must, of course, include the right to the fullest discussion of public matters, including matters of international interest and concern. The proposed law does away with all that. It makes it impossible for a naturalized citizen, with any safety, to enter into any discussion which might be interpreted as an approval of something done or proposed by a foreign country, lest this be held by some court, in a time of excitement, to show that his political allegiance is to such country. Particularly is this so since there is no time limit in the bill, nor is it confined to war or other emergency situations. Indeed, it is possible that under the bill, as drawn, proceedings might be instituted to cancel the citizenship of a person because of opinions expressed many years before the bill became law. It is easy to conjure up situations in which the citizenship of persons of German or Italian birth might be challenged because of opinions expressed many years ago favorable to the regimes now existing in those countries. So the citizenship of persons of Spanish birth might be challenged because of positions taken by them on one side or the other of the recent Spanish civil war. Indeed, the citizenship of persons of Irish birth might even be challenged because of their strong views in favor of Irish neutrality in the present war. And it is no answer to say that many of these fears may not be realized, or that if unwarranted litigation ensues, the court will protect the naturalized citizen. In the absence of real need, no law should be enacted under which such proceedings might take place. And the fear of such proceedings is bound to restrict the freedom of all naturalized citizens. As Representative Fish is quoted as having said, this creates "second class" citizenship. 5. In view of the fact that naturalized citizens are, like native-born citizens, subject to jail sentences if they do anything which is harmful to the country, and in many cases lose civil rights in consequence, no sound reason seems to exist for singling out naturalized citizens for further penalties. And, as we shall show, we believe that this proposed legislation is unconstitutional both as denial of due process and as invading freedom of speech and of assembly. 6. That the bill even in its original form would not meet the objections heretofore made is clear. To penalize only the naturalized citizen, the penalization involving loss of citizenship, for conduct which occurs after naturalization would be unfair discrimination. Our objections apply to the unequal treatment which would thereby be accorded to citizens of this country. Furthermore, the word "conduct" standing alone is vague and nebulous. Many prosecutions could be undertaken, proof of which might rest solely on words or writings. The same evil situation might result as though the bill in its present form were in effect. 7. A reason advanced in support of section 8 of the bill is that the Government should be able to withdraw its privilege of citizenship from those who are later shown to be disloyal. The recent espionage convictions in Brooklyn where the majority of the defendants were naturalized Americans of German origin are cited as an example. If Congress had wished to make a conviction for espionage a means for loss of citizenship it could have done so. There could be no objections if the penalty were to apply equally to native as well as foreign-born citizens, and if it applied only to acts committed after such penalty was created. But to impose the heavy penalty of loss of citizenship upon only one class of citizens for actions which did not constitute grounds for loss of citizenship when the acts were committed would be a breach with out historic past, and a violation of the great American tradition which has always placed the naturalized and nativeborn Americans on the same footing and basis and which has always condemned ex post facto laws. 8. That a naturalized citizen has (with the exception of the right to become President) all of the rights of a native-born citizen is well settled. See Luria v. United States (231 U. S. 9). In that case an attack was made upon the provisions of the 1906 Naturalization Act, which provided that if a naturalized citizen returned to the country of his nativity or took permanent residence in any other foreign country, that should be prima facie evidence of a lack of intention to become a permanent citizen of the United States. The Supreme Court upheld the law on the ground that it did not affect the substantive right of citizenship, but merely provided a method of establishing the absence of one of the requisites of citizenship, namely, an intention to become a permanent resident here. The Court stressed the fact that the statute created merely a presumption and that it applied for only 5 years after the issuance of the original certificate. The Court expressly noted that the statute did not disturb rights acquired through lawful naturalization. That statute thus differed from the one here under consideration, since the latter permits cancelation of naturalization without any proof that at the time of naturalization the alien had failed to comply with the requirements. Finally, the Court stressed the fact that the statute was limited in time and particularly emphasized that the value of the presumption decreased as the period lengthened. However, we have here neither a presumption nor a limitation of time. Therefore, the various considerations which induced the Court to sustain the statute in the Luria case are all now absent. 9. Attention should also be called to Johannessen v. United States (225 U. S. 227). There a proceeding was instituted to cancel a certificate on the ground that it had been fraudulently and illegally procured. The chief constitutional objection was that the statute was an ex post facto law because retrospective. While this was overruled, the Court pointed out that it did not doubt that a law would be void which deprived a citizen of a substantial right because of something in his past conduct which was not an offense at the time it was committed. The law now under consideration does deprive a naturalized citizen of a substantial right which he may lawfully have obtained merely because of some act committed by him in the past. 10. In this connection we call attention to the case of Mackenzie v. Hare (239 U. S. 299). In that case the former provision of law by which women lost their citizenship when they married foreigners was challenged. The Court upheld that law because of the peculiar nature of the marriage relationship. Mr. Justice McKenna said: "It may be conceded that a change of citizenship cannot be arbitrarily imposed; that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences." We believe that the proposed amendment is void, either as a denial of due process or as an ex post facto law, if it should be construed to apply to persons already naturalized, particularly if proceedings be taken against them because of opinions uttered or acts done prior to the enactment of this law. 11. But our basic objection to the proposed law is that, as last amended, it is bound to impose serious restrictions on freedom of speech and of assemblage. These restrictions will exist regardless of the actual legal proceedings taken under the act. The more existence of the act will operate in terrorem. Naturalized citizens will be forced to weigh their words and actions, not with a view to the best interests of the country as a whole, but with a view to their own status only. In this way, free and needed discussion will be hampered and its areas seriously restricted. Restraints will have been imposed upon these citizens as effectively as though the statute carried criminal penalties with it. Yet no one could doubt that such a statute would be unconstitutional. The Supreme Court has in recent years recognized the great importance to a democratic community of the provisions of the first amendment. It has held void acts of both legislatures and courts which interfered with this guaranty. Herndon v. Lowry (301 U. S. 342); Schneider v. Irvington (308 U. S. 147); Thornhill v. Alabama (310 U. S. 88); Carlson v. Alabama (310 U. S. 106; Cantwell v. Connecticut (310 U. S. 296); and Bridges v. California, decided December 8, 1941. But that these cases all arose from the States and were, therefore, strictly under the fourteenth amendment rather than the first does not detract from the principle involved. However, if the Congress enacts bills of the character now proposed, it is fair to assume that to this list of State cases will be added cases arising under acts of Congress as well. 12. The amendments proposed by section 8 of this bill should be defeated in the Senate as an unnecessary, undesirable, and unconstitutional departure from existing law. The risks of mistakes under such a bill are incalculable. The need for such a bill has not been demonstrated. And it is bound to create cleav ages between groups of citizens rather than the unity so demanded in our present crisis. Respectfully submitted. Of counsel: AMERICAN CIVIL LIBERTIES UNION. Edward Borchard, Yale University Law School; Zechariah Chafee, CONGRESS IS WITHOUT POWER TO DEPRIVE EITHER A NATURALIZED OR A NATIVEBORN CITIZEN OF CITIZENSHIP AGAINST HIS WILL, AND MAY NOT PROVIDE FOR THE LOSS OF CITIZENSHIP BY EITHER, EXCEPT ON BASES APPLYING TO Вотн In United States v. Wong Kim Ark (169 U. S. 649, p. 703), Mr. Justice Gray, speaking for the majority, said: "The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away." The Court then refers to the following language, used by Chief Justice Marshall in Osborn v. United States Bank (9 Wheat. 738, p. 827): "A naturalized citizen becomes a member of society, possessing all rights of native citizens and standing, in view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts insofar as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States precisely under the same circumstances under which a native might sue.' The opinion in the Wong Kim Ark case then continues: "Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation." It is to be noted that the dissents of Chief Justice Fuller and Justice Harlan in the Wong Kim Ark case do not contain any dissent from that portion of the majority opinion holding the Congress is without power to take away citizenship, once conferred. It may be suggested that both in the Wong Kim Ark case and in Osborn v. United States Bank, supra, this holding was dicta. This, however, is by no means clear in the Wong Kim Ark case. It may very well be said to have been essential to the chain of reasoning by which the majority, in that case, held that a child, born here, of Chinese parents becomes a citizen, although his parents could not be naturalized. However this may be, the fourteenth amendment puts it beyond question that Congress, once having exercised its constitutional power under article 1, section 8, clause 4 of the Constitution, to naturalize a person, is without power to deprive such naturalized citizen of his citizenship, without his consent. The first sentence of section 1 of the fourteenth amendment reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Prior to the fourteenth amendment, there was, as shown by the majority and minority opinions in the Wong Kim Ark case, no definition of what constituted a citizen of the United States. That amendment supplied such definition, and it is particularly to be noted, makes no distinction in this respect between persons born and persons naturalized in the United States. In other words, so far as constitutional definition is concerned there is only a single class, "citizens of the United States," and not two classes, "native-born citizens" and "naturalized citizens," It is therefore beyond the power of Congress to make a distinction in substantive rights based upon any such unconstitutional classification. Moreover, in the latest case in which the Supreme Court has considered the question of loss of citizenship, Mackenzie v. Hare (239 U. S. 299), the Court says, p. 311: "It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen.' In that case, the Court held that no exception in favor of an American-born woman who marries a resident foreigner and remains within the jurisdiction of the United States may be read into the provisions of the act of March 2, 1907 (34 Stat. et al. 1228, ch. 2534), that— "Any American woman who marries a foreigner shall take the nationality of her husband, but may resume her American citizenship, at the termination of the marital relation, if within the United States, by continuing to reside therein, and, if abroad, by returning to the United States or by registering as an American citizen." The Court held that the Congress could validly forfeit the citizenship of such American-born woman, even though she remained within the jurisdiction of the United States. * * * The Court, after using the language just quoted, continued (pp. 311-312): "The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. And this is an answer to the apprehension of counsel that our construction of the legislation will make every act, though lawful, a renunciation of c tizenship. The marriage of an American woman with a foreigner has consequences of like kind, as her physical expatriation may involve. Therefore, as long as the relation lasts, it is made tantamount to expatriation. This is no arbitrary exercise of government. It is one which, regarding the international aspects, judicial opinion has taken for granted would not only be valid, but demanded. It is the conception of the legislation under review that such an act may bring the Government into embarrassments, and, it may be, into controversies. It is as voluntary and distinctive as expatriation and its consequences must be considered as elected." It is true that Johannessen v. United States (225 U. S. 227), decided in 1911, and Luria v. United States (231 U. S. 9), decided in 1913, hold that a naturalized alien may be deprived of his citizenship, where a fraud was practiced upon the court which naturalized him. In the Johannessen case, the alien had applied to the court for naturalization, less than 4 years after his first arrival in this country in 1892, and a certificate was issued based upon perjured testimony, that he had resided within the United States for a period of 5 years at least. The facts were not discovered by the Government until 1908. Proceedings were brought under the act of June 29, 1906 (34 Stat. et al., 596-601), authorizing district attorneys to apply to any Federal court to set aside naturalizations obtained by fraud. The Court, in effect, held that the State court which had originally granted naturalization, would itself have had inherent right to set aside its decree because obtained by fraud. It further held (p. 236), that Congress had power to authorize an attack, in a court other than the one granting a certificate of citizenship, if it had been obtained by fraud. The court likewise held that the fact that the act authorizing the proceedings to cancel such naturalization was specifically retrospective, did not make it void as an ex post facto law. The court stated that the prohibition of Act 1, section 9 of the Constitution against ex post facto law applies only to criminal punishments and has no relation to retrospective legislation of any other description. Luria v. United States upheld the act of June 29, 1906, section 15 (34 Stat. et al., 596, 601), which provides that taking up a permanent residence in a foreign country, within 5 years after granting of a certificate of citizenship, shall be considered prima facie evidence of lack of intention to become a permanent citizen of the United States, at the time of the application for citizenship, and shall be, in the absence of countervailing evidence, sufficient to warrant the cancelation of the certificate as fraudulent. The Court held that this provided a rule of evidence and not of substantive right. Here again, the Court merely upheld the power of Congress to cancel naturalization because of fraud existing at the time such decree of naturalization was procured, and held it, likewise, within the power of Congress to make it prima facie evidence of fraud for the naturalizaed alien, within 5 years after naturalization, to take up permanent residence abroad. 69296-42- -3 |