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Since 1925, when I resigned from the Railroad Administration, I have been in private practice, representing the smaller railroads and the larger shippers.
I also represented Tom Mooney before the Supreme Court of the United States and the Supreme Court of California. I also made the last argument for Sacco and Vanzetti on habeas corpus the night they were executed, the argument being before Mr. Justice Holmes. I was counsel for Eamon de Valera in the Supreme Court of New York in the Irish bond litigation, involving intricate questions of international law. And I have been counsel for the American Civil Liberties Union in numerous cases before the Supreme Court and other courts.
In my opinion, section 8 of H. R. 6250 would be unconstitutional, based on three decisions of the Supreme Court of the United States and on the fourteenth amendment.
These decisions are that of Chief Justice Marshall in Osborn v. Bank of United States, (9 Wheat, 738); United States v. Wong Kim Ark, (169 U. S., 649); Mackenzie v. Hare, (239 U. S., 299). Í shall also find it necessary to refer briefly to two other decisions of the Supreme Court, in Johannessen v. United States (225 U. S. 227) and Luria v. United States (231 U.S., 9). And in reading from these cases, the amount I will read will be a sentence or two.
In Osborn v. Bank of the United States, Chief Justice Marshall said at page 827:
A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes member of the society, possessing all the rights of a native citizen, and standing, in the 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 it, so far as respects the individual.
I call your attention to the exercise of the power in naturalization exhausts the power of Congress. The Chief Justice continues: 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.
In United States v. Wong Kim Ark, the court said at page 703:
The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away.
Then the Court quotes from Chief Justice Marshall's decision. It then proceeds to discuss the fourteenth amendment.
I now want to direct your attention to the language of the Court in Mackenzie v. Hare, which so far as I know is the latest decision in which the Supreme Court
Senator Holman. May I inquire: Citizens do lose their citizenship, however, by being convicted of certain crimes, do they not?
Mr. FINERTY. Yes; and I will touch on that, Senator. Those provisions apply alike to naturalized and native-born citizens. For instance, desertion from the Army and naval forces.
Senator HOLMAN. Your contention is that when once a citizen there is no qualification, that is, no limitation to the rights of citizenship?
Mr. FINERTY. Yes.
Mr. FINERTY. That is correct; and in that connection I am going to refer, after referring to the Mackenzie case, to the fourteenth amendment.
However, I want first to direct your attention to the language of the court in Mackenzie v. Hare, where the court said at pages 311 and 312:
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.
That was the law depriving a married woman of her citizenship by marriage to an alien. It deals with a condition
Senator HOLMAN. Pardon me just a minute. A female citizen, single, marries an alien; she does not then lose her citizenship?
Mr. FINERTY. Yes; she did at the time, under that act, the act of 1906, she lost her citizenship unless she did certain acts. She lost her citizenship in any event, if she married, but can regain it by doing certain acts involved in the act itself. And the question involved in the Mackenzie case was whether she lost her citizenship though she continued to reside in the United States where she would have a right, after the dissolution of her marriage, if she did reside in the United States, to restoration of her citizenship.
Senator HOLMAN. The reason I asked the question, I knew of two particular cases in the last war.
Mr. FINNERTY. Yes.
I want to re-read that last sentence: The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequence.
Then skipping down, without omitting anything: The marriage of an American woman with a foreigner has consequences of like kind, may involve national complications 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.
And I direct your attention again to this last sentence: It is as voluntary and distinctive as expatriation and its consequence must be considered as elected.
In other words, the Supreme Court on the question before it in the Mackenzie case conceded that the Congress was without power to deprive either a naturalized or any citizen of his citizenship without his concurrence. And I shall point out later that Congress has never attempted to do that except where, upon the theory of the Mackenzie case, it has given notice in advance that certain acts would constitute what might be called a concurrence in the deprivation of citizenship.
Now, the fourteenth amendment, section 1, the first sentence 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.
Now it is that, to my mind, that makes it impossible to say that, whatever was the situation before the fourteenth amendment, there
cannot any longer be two classes of citizens of the United States. The Constitution prior to the fourteenth amendment contained no definition of what was or would be a citizen of the United States. The fourteenth amendment supplies that definition and it is noted that it creates one class known as citizens of the United States, and it does not create two classes known, as some people would try to make it appear, as native-born citizens and naturalized citizens. Those terms, so far as they are now used in congressional legislation or otherwise, must be considered as used wholly for convenience and, as I will indicate, in certain instances to differentiate between conditions that could not possibly affect a native-born citizen, such as residence abroad in the country of his birth; but would only affect naturalized citizens. Those are not discriminations which would be very abundant and are simply realizing or giving recognition to certain differences in the origin of one class of citizens.
Senator HOLMAN. Any place in your argument are you going to touch upon citizens of dual nationality?
Mr. FINERTY. I don't think there is such a thing. And I might as well say here, Senator, that as shown in the very exhaustive study of the questions of the right to surrender citizenship or to become a naturalized subject or citizen, the majority and minority opinions in the Wong Kim Ark case practically exhaust the subject. They show there that certainly up to the passage of the expatriation act by the Congress, in 1868 (that is sec. 800, title 8, U. S. C.) there was the greatest dispute; not whether a citizen could be deprived of his citizenship, but whether he could even surrender it if he wanted to.
The opinion of the Supreme Court in the Wong Kim Ark case quotes the statutes of China, under the Empire and prior to the Republic, that made it a crime to become naturalized in another country, and provided for the beheading of the naturalized citizen and any accessory to the naturalization—including apparently the immigration inspectors in this country, if the Emperor of China could have apprehended them; and provided for the family of the expatriated Chinese to become slaves of high officials, and for anyone knowing of his expatriation and not informing the Government they are to be strangled.
Well, that was fairly drastic, but was not more drastic in reality than the attitude of the British Government which, as late as 1856, as I recollect it, through the British Ambassador informed the United States Government that it was the opinion of His Majesty's Government that no Englishman could become a naturalized citizen of the United States, and that to do so would be treason. That opinion is quoted in the Wong Kim Ark case.
So I think that I am fairly safe in saying that there is no decision of the Supreme Court of the United States, and no decision anywhere, recognizing the right of Congress to deprive involuntarily anyone of his citizenship, and that any provisions for the deprivation of citizenship are based on the doing of specific acts which, under the Mackenzie case, it would be assumed in doing the citizen, native or naturalized, would indicate as an acquiescence in their losing of the citizenship. I think it is a fairly thin theory, but that is the only theory, was that Congress at any rate could suspend the statute on those indications in the Mackenzie case.
I do want to point out that it may be contended that the decisions of Chief Justice Marshall in Osborn v. The Bank and Mr. Justice Gray in the Wong Kim Ark case, were in those cases dictum. Well, that is entirely true in Osborn v. Tie Bank, and it is not true in the Wong Kim Ark case, because it would seem the only distinction or one of the basic distinctions between the majority and minority opinions in that case was based on this very opinion of the majority that Congress had no power to deprive a naturalized citizen of his citizenship.
I therefore want to submit-and I will be very brief after thisthat Congress is without power to deprive either a naturalized or a native-born citizen of citizenship against his will, and may not provide for loss of citizenship by either except on a basis applying to both.
Now, may I very briefly say that the decisions in the Johannessen and Luria cases are in no way inconsistent to that proposition. In both of those cases Congress recognized that irrespective of any act of the Congress a court had inherent jurisdiction to set aside a decree of naturalization on the ground of fraud. One of the questions involved in those cases was whether the Congress could authorize another court, a new naturalization court, to set aside such a decree; it being alleged that that was a collateral attack. But the court said that that was well within the power of Congress, and it also held that the retrospective features of those acts were not contrary to the ex post facto provisions of the Constitution, holding that those provisions applied merely to criminal statutes.
Now, I want to call attention to the fact that sections 401, 402, and 404 of the Nationality Code are not inconsistent with the recognition either of the necessity of uniformity in the treatment of naturalized and native-born citizens, or with the recognition that the consent of the citizen is necessary before he can be deprived of his citizenship.
Section 800, U. S. C., is not properly a part of the Nationality Code, but is so codified in the U. S.C., and that is the provision or the act of 1868, Revised Statutes 1999, in which the Congress recognizes expatriation as a natural right. As I say, there has been a dispute between the English Government, the Chinese Government, and the United States Government as to that, and especially in the English Government on the civil law. But Congress declared in section 800, U. S. C., that that was a natural right of all persons.
Now, obviously, that applies both to naturalized and native-born citizens.
I call your attention, also, to the fact that section 401, providing a general means of losing United States nationality, applies both to naturalized and native-born citizens. And I also call your particular attention to the fact that every act by which nationality can be lost under that section is specifically denoted. There is no doubt:left; no room for construction. Certain substantive acts constitute grounds for assuming the assent of the citizen to losing his citizenship.
Section 404, it is true, applies only to naturalized citizens, and provides additional grounds for expatriation on naturalized citizens by residence abroad. Now, the first two of those grounds both refer to residence in the place of birth of the naturalized citizen or the place of birth of his parents, or where he was formerly a national. Now that could not, of course, apply to a native-born citizen, and therefore is not inconsistent with the general recognition of the right of all citizens under section 800, U. S. c., to expatriate themselves.
There is a question whether section 404 (c), providing for residing continuously for 5 years in any foreign state, except as provided in section 406 hereof, in applying only to naturalized citizens is not in conflict with the provisions of section 402, which merely makes the same thing a presumption of expatriation as to a native-born citizen.
I think it is possible to argue that to that extent section 404 (c) is unconstitutional. But as it is merely a matter really of evidence, the question could never be raised and is not pertinent to the immediate question here.
What I do want to call to your attention is the fact that in every one of those sections there is not the slightest doubt left as to what acts constitute a surrender of citizenship or what acts constitute expatriation.
And if I may just conclude by a couple of paragraphs: As against these existing definite provisions as to the sepcific acts and conditions which will constitute concurrence of the citizen, both native and foreign born in loss of nationality, or shall constitute voluntary expatriation, section 8 of H. R. 6250 proposes to deprive a naturalized citizen of his citizenship on the ground that his utterances, writings, actions, or course of conduct establishes that his political allegiance is 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 individually discriminating against naturalized citizens, affords such citizens no adequate knowledge, in the language of the court in Mackenzie v. Hare, "a condition voluntarily entered into, with notice of the consequence.” Whether the utterances, writings, actions, or course of conduct will or will not establish that political allegiance of such naturalized citizen to a foreign state or sovereignty cannot possibly be known by such citizen in advance, unless such acts are within the specific acts already defined in sections 401 and 404 and the other sections on expatriation and surrender of citizenship in the Nationality Act, which I have already read.
Now, those specific acts are substantive acts, such as the taking of 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, on the 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 specifically determined by the construction which may be placed upon them by a given court, with the great possibility that another court might reach an entirely opposite construction.
I most respectfully submit, therefore, that the proposed amendment to section 338 (a) is either unnecessary or unconstitutional. And I am greatly obliged to you.
Senator MALONEY. Thank you very much, Mr. Finerty.