1. A petition for naturalization presents a case for the
exercise of the judicial power, to which the United States is a
proper, and always a possible, adverse party. P.
283 U. S.
615.
2. Naturalization is a privilege, to be given, qualified, or
withheld as Congress may determine, and which the alien may claim
as of right only upon compliance with the terms which Congress
imposes.
Id.
3. That admission to citizenship is regarded by Congress as a
serious matter is apparent from the conditions and precautions by
which it has carefully surrounded the subject.
Id.
Page 283 U. S. 606
4. In specifically requiring that the court shall be satisfied
that the applicant, during his residence in the United States, has
behaved as a man of good moral character, attached to the
principles of the Constitution of the United States, etc., it is
obvious that Congress regarded the fact of good character and the
fact of attachment to the principles of the Constitution as matters
of the first importance. P.
283 U. S.
616.
5. The statute specifically requires examination of the
applicant and witnesses in open court and under oath, and
authorizes the government to cross-examine concerning any matter
touching or in any way affecting the right to naturalization, in
order that the court and the government may discover whether the
applicant is fitted for citizenship, and, to that end, by actual
inquiry, ascertain, among other things, whether he has intelligence
and good character; whether his oath to support and defend the
Constitution and laws of the United States, and to bear true faith
and allegiance to the same will be taken without mental reservation
or purpose inconsistent therewith; whether his views are compatible
with the obligations and duties of American citizenship; whether he
will upon his own part observe the laws of the land; whether he is
willing to support the government in time of war, as well as in
time of peace, and to assist in the defense of the country, not to
the extent or in the manner that he may choose, but to such extent
and in such manner as he lawfully may be required to do. These, at
least, are matters which are of the essence of the statutory
requirements, and in respect of which the mind and conscience of
the applicant may be probed by pertinent inquiries, as fully as the
court, in the exercise of a sound discretion, may conclude is
necessary. P.
283 U. S.
616.
6. The applicant in the case at bar is unwilling to take the
oath of allegiance, except with these important qualifications:
that he will do what he judges to be in the best interests of the
country only insofar as he believes it will not be against the best
interests of humanity in the long run; that he will not assist in
the defense of the country by force of arms or give any war his
moral support unless he believes it to be morally justified,
however necessary the war might seem to the government of the day;
that he will hold himself free to judge of the morality and
necessity of the war, and, while he does not anticipate engaging in
propaganda against the prosecution of a war declared and considered
justified by the government, he prefers to make no promise even as
to that, and that he is convinced that the individual citizen
should have the right to withhold his military services when his
best moral judgment
Page 283 U. S. 607
impel him to do so.
Held that he cannot be admitted to
citizenship under the statute.
United States v. Schwimmer,
279 U. S. 644,
279 U. S. 649.
P.
283 U. S.
619.
7. Whether any citizen shall be exempt from services in the
armed forces of the nation in time of war is dependent upon the
will of Congress, and not upon the scruples of the individual,
except as Congress provides. P.
283 U. S.
623.
8. The privilege of the native-born conscientious objector to
avoid bearing arms comes not from the Constitution, but from the
Acts of Congress; a naturalized citizen can have no greater
privilege.
Id.
9. It is not within the province of the courts to make bargains
with those who seek naturalization. They must accept the grant and
take the oath in accordance with the terms fixed by the law, or
forego the privilege of citizenship. If one qualification of the
oath be allowed, the door is opened for others, with utter
confusion as the probable result. P.
283 U. S.
626.
10. The Naturalization Act is to be construed with definite
purpose to favor and support the government, and the United States
is entitled to the benefit of any doubt which remains in the mind
of the court as to any essential matter of fact.
Id.
11. The burden is upon the applicant to show that his views are
not opposed to the principle that it is a duty of citizenship, by
force of arms when necessary, to defend the country against all
enemies, and that his opinions and beliefs would not prevent or
impair the true faith and allegiance required by the Act.
Id.
42 F.2d 845 reversed; D.C. affirmed.
Certiorari, 282 U.S. 832, to review a judgment which reversed a
judgment denying a petition for naturalization and directed that
the applicant be admitted to citizenship.
Page 283 U. S. 613
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The respondent was born in the Dominion of Canada. He came to
the United States in 1916, and in 1925 declared his intention to
become a citizen. His petition for naturalization was presented to
the federal district court for Connecticut, and that court, after
hearing and consideration, denied the application upon the ground
that, since petitioner would not promise in advance to bear arms in
defense of the United States unless he believed the war to be
morally justified, he was not attached to the principles of the
Constitution. The circuit court of appeals reversed the decree and
directed the district court to admit respondent to citizenship. 42
F.2d 845.
The Naturalization Act, § 4, c. 3592, 34 Stat. 596 (U.S.C. Title
8, § 372
et seq.), provides that an alien may be admitted
to citizenship in the manner therein provided, and not otherwise.
By § 3 of the same act, jurisdiction to naturalize aliens is
conferred upon the district courts of the United States and other
enumerated courts of record. U.S.C. Title 8, § 357. The applicant
is required to make
Page 283 U. S. 614
and file a preliminary declaration in writing setting forth,
among other things, his intention to become a citizen of the United
States and to renounce all allegiance to any foreign prince, etc.
Section 4 of the act (U.S.C. Title 8, §§ 381, 382) provides:
"Third. He shall, before he is admitted to citizenship, declare
on oath in open court that he will support the Constitution of the
United States, and that he absolutely and entirely renounces and
adjures all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty, and particularly by name to the
prince, potentate, state or sovereignty of which he was before a
citizen or subject; that he will support and defend the
Constitution and laws of the United States against all enemies,
foreign and domestic, and bear true faith and allegiance to the
same."
"Fourth. It shall be made to appear to the satisfaction of the
court admitting any alien to citizenship that, immediately
preceding the date of his application, he has resided continuously
within the United States five years at least, and within the state
or Territory where such court is at the time held one year at
least, and that, during that time, he has 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. In addition to the oath of the applicant,
the testimony of at least two witnesses, citizens of the United
States, as to the facts of residence, moral character, and
attachment to the principles of the Constitution shall be required.
. . ."
Section 9 of the act, 34 Stat. 599 (U.S.C. Title 8, § 398),
requires that every final hearing upon a petition for
naturalization shall be had in open court; that every final order
upon the petition shall be under the hand of the court, and
that,
"upon such final hearing of such petition, the applicant and
witnesses shall be examined under
Page 283 U. S. 615
oath before the court and in the presence of the court."
By § 11, 34 Stat. 599 (U.S.C. Title 8, § 399), it is provided
that the United States shall have the right to appear in the
proceeding for the purpose of cross-examining the petitioner and
witnesses produced in support of the petition
"concerning any matter touching or in any way affecting his
right to admission to citizenship, and shall have the right to call
witnesses, produce evidence, and be heard in opposition to the
granting of any petition in naturalization proceedings."
By the petition for naturalization, a case is presented for the
exercise of the judicial power under the Constitution, to which the
United States is a proper, and always a possible, adverse party.
Tutum v. United States, 270 U. S. 568,
270 U. S.
576-577.
Naturalization is a privilege, to be given, qualified, or
withheld as Congress may determine, and which the alien may claim
as of right only upon compliance with the terms which Congress
imposes. That Congress regarded the admission to citizenship as a
serious matter is apparent from the conditions and precautions with
which it carefully surrounded the subject. Thus, among other
provisions, it is required that the applicant not only shall reside
continuously within the United States for a period of at least five
years immediately preceding his application, but shall make a
preliminary declaration of his intention to become a citizen at
least two years prior to his admission. He must produce the
testimony of witnesses as to the facts of residence, moral
character, and attachment to the principles of the Constitution,
and in open court take an oath renouncing his former allegiance and
pleading future allegiance to the United States. At the final
hearing in open court, he and his witnesses must be examined under
oath, and the government may appear for the purpose of
cross-examining in respect of "any matter touching or in any way
affecting his right to
Page 283 U. S. 616
admission," introduce countervailing evidence, and be heard in
opposition.
In specifically requiring that the court shall be satisfied that
the applicant, during his residence in the United States, has
behaved as a man of good moral character, attached to the
principles of the Constitution of the United States, etc., it is
obvious that Congress regarded the fact of good character and the
fact of attachment to the principles of the Constitution as matters
of the first importance. The applicant's behavior is significant to
the extent that it tends to establish or negative these facts.
But proof of good behavior does not close the inquiry. Why does
the statute require examination of the applicant and witnesses in
open court and under oath, and for what purpose is the government
authorized to cross-examine concerning any matter touching or in
any way affecting the right of naturalization? Clearly, it would
seem, in order that the court and the government, whose power and
duty in that respect these provisions take for granted, may
discover whether the applicant is fitted for citizenship, and, to
that end, by actual inquiry, ascertain, among other things, whether
he has intelligence and good character; whether his oath to support
and defend the Constitution and laws of the United States, and to
bear true faith and allegiance to the same, will be taken without
mental reservation or purpose inconsistent therewith; whether his
views are compatible with the obligations and duties of American
citizenship; whether he will upon his own part observe the laws of
the land; whether he is willing to support the government in time
of war, as well as in time of peace, and to assist in the defense
of the country, not to the extent or in the manner that he may
choose, but to such extent and in such manner as he lawfully may be
required to do. These, at least, are matters which are of the
essence of the statutory requirements, and in respect of which the
mind and conscience of the applicant
Page 283 U. S. 617
may be probed by pertinent inquiries as fully as the court, in
the exercise of a sound discretion, may conclude is necessary.
The settled practice of the courts having jurisdiction in
naturalization proceedings has, from the beginning, been in
accordance with this view.
In re Bodek, 63 F. 813;
In
re Meakins, 164 F. 334;
In re Mudarri, 176 F. 465,
466;
In re Ross, 188 F. 685;
United States v.
Bressi, 208 F. 369, 372;
Schurmann v. United States,
264 F. 917, 920;
In re Sigelman, 268 F. 217. And it finds
support in the decisions of this Court. As early as 1830, in
Spratt v.
Spratt, 4 Pet. 393,
29 U. S. 407,
Chief Justice Marshall, speaking for the Court, said:
"The various acts upon the subject submit the decision on the
right of aliens to admission as citizens to courts of record. They
are to receive testimony, to compare it with the law, and to judge
on both law and fact."
United States v. Schwimmer, 279 U.
S. 644,
279 U. S.
649.
With the foregoing statutory provisions and the scope of the
powers and duties of the courts of first instance in respect
thereof in mind, we come to a consideration of the case now before
us. The applicant had complied with all the formal requirements of
the law, and his personal character and conduct were shown to be
good in all respects. His right to naturalization turns altogether
upon the effect to be given to certain answers and qualifying
statements made in response to interrogatories propounded to
him.
Upon the preliminary form for petition for naturalization, the
following questions, among others, appear:
"20. Have you read the following oath of allegiance? [which is
then quoted]. Are you willing to take this oath in becoming a
citizen?"
"22. If necessary, are you willing to take up arms in defense of
this country?"
In response to the questions designated 20, he answered "Yes."
In response to the question designated 22, he answered, "Yes; but I
should want to be free to judge of the necessity."
Page 283 U. S. 618
By a written memorandum subsequently filed, he amplified these
answers as follows:
"20 and 22. I am willing to do what I judge to be in the best
interests of my country, but only insofar as I can believe that
this is not going to be against the best interests of humanity in
the long run. I do not undertake to support 'my country, right or
wrong' in any dispute which may arise, and I am not willing to
promise beforehand, and without knowing the cause for which my
country may go to war, either that I will or that I will not 'take
up arms in defense of this country,' however 'necessary' the war
may seem to be to the government of the day."
"It is only in a sense consistent with these statements that I
am willing to promise to 'support and defend' the government of the
United States 'against all enemies, foreign and domestic.' But,
just because I am not certain that the language of questions 20 and
22 will bear the construction I should have to put upon it, in
order to be able to answer them in the affirmative, I have to say
that I do not know that I can say 'Yes' in answer to these two
questions."
Upon the hearing before the district court on the petition, he
explained his position more in detail. He said that he was not a
pacifist; that, if allowed to interpret the oath for himself, he
would interpret it as not inconsistent with his position, and would
take it. He then proceeded to say that he would answer question 22
in the affirmative only on the understanding that he would have to
believe that the war was morally justified before he would take up
arms in it or give it his moral support. He was ready to give to
the United States all the allegiance he ever had given or ever
could give to any country, but he could not put allegiance to the
government of any country before allegiance to the will of God. He
did not anticipate engaging in any propaganda against the
prosecution of a war which the
Page 283 U. S. 619
government had already declared and which it considered to be
justified; but he preferred not to make any absolute promise at the
time of the hearing, because of his ignorance of all the
circumstances which might affect his judgment with reference to
such a war. He did not question that the government, under certain
conditions, could regulate and restrain the conduct of the
individual citizen, even to the extent of imprisonment. He
recognized the principle of the submission of the individual
citizen to the opinion of the majority in a democratic country; but
he did not believe in having his own moral problems solved for him
by the majority. The position thus taken was the only one he could
take consistently with his moral principles and with what he
understood to be the moral principles of Christianity. He
recognized, in short, the right of the government to restrain the
freedom of the individual for the good of the social whole, but was
convinced, on the other hand, that the individual citizen should
have the right respectfully to withhold from the government
military services (involving, as they probably would, the taking of
human life) when his best moral judgment would compel him to do so.
He was willing to support his country, even to the extent of
bearing arms, if asked to do so by the government in any war which
he could regard as morally justified.
There is more to the same effect, but the foregoing is
sufficient to make plain his position.
These statements of the applicant fairly disclose that he is
unwilling to take the oath of allegiance, except with these
important qualifications: that he will do what he judges to be in
the best interests of the country only insofar as he believes it
will not be against the best interests of humanity in the long run;
that he will not assist in the defense of the country by force of
arms or give any war his moral support unless he believes it to be
morally justified, however necessary the war might
Page 283 U. S. 620
seem to the government of the day; that he will hold himself
free to judge of the morality and necessity of the war, and, while
he does not anticipate engaging in propaganda against the
prosecution of a war declared and considered justified by the
government, he prefers to make no promise even as to that, and that
he is convinced that the individual citizen should have the right
to withhold his military services when his best moral judgment
impels him to do so.
Thus stated, the case is ruled in principle by
United States
v. Schwimmer, supra. In that case, the applicant, a woman,
testified that she would not take up arms in defense of the
country. She was willing to be treated on the basis of a
conscientious objector who refused to take up arms in the recent
war, and seemed to regard herself as belonging in that class. She
was an uncompromising pacifist, with no sense of nationalism, and
only a cosmic sense of belonging to the human family. Her objection
to military service, we concluded, rested upon reasons other than
her inability to bear arms because of sex or age, and we held that
her application for naturalization should be denied upon the
ground, primarily, that she failed to sustain the burden of showing
that she did not oppose the principle making it a duty of citizens,
by force of arms when necessary, to defend their country against
its enemies. At page
279 U. S. 650,
we said:
"That it is the duty of citizens by force of arms to defend our
government against all enemies whenever necessity arises is a
fundamental principle of the Constitution."
"The common defense was one of the purposes for which the people
ordained and established the Constitution. . . . We need not refer
to the numerous statutes that contemplate defense of the United
States, its Constitution and laws, by armed citizens. This Court,
in the
Selective Draft Law Cases, 245 U. S.
366, speaking through Chief Justice White, said (p.
245 U. S. 378) that"
"the very conception
Page 283 U. S. 621
of a just government and its duty to the citizen includes the
reciprocal obligation of the citizen to render military service in
case of need. . . ."
"Whatever tends to lessen the willingness of citizens to
discharge their duty to bear arms in the country's defense detracts
from the strength and safety of the government. And their opinions
and beliefs as well as their behavior indicating a disposition to
hinder in the performance of that duty are subjects of inquiry
under the statutory provisions governing naturalization and are of
vital importance, for if all or a large number of citizens oppose
such defense, the 'good order and happiness' of the United States
cannot long endure. And it is evident that the views of applicants
for naturalization in respect of such matters may not be
disregarded. The influence of conscientious objectors against the
use of military force in defense of the principles of our
government is apt to be more detrimental than their mere refusal to
bear arms. The fact that, by reason of sex, age, or other cause,
they may be unfit to serve does not lessen their purpose or power
to influence others. It is clear from her own statements that the
declared opinions of respondent as to armed defense by citizens
against enemies of the country were directly pertinent to the
investigation of her application."
And see In re Roeper, 274 F. 490;
Clarke's
Case, 301 Pa. 321, 152 A. 92.
There are few finer or more exalted sentiments than that which
finds expression in opposition to war. Peace is a sweet and holy
thing, and war is a hateful and an abominable thing, to be avoided
by any sacrifice or concession that a free people can make. But,
thus far, mankind has been unable to devise any method of
indefinitely prolonging the one or of entirely abolishing the
other, and, unfortunately, there is nothing which seems to
afford
Page 283 U. S. 622
positive ground for thinking that the near future will witness
the beginning of the reign of perpetual peace for which good men
and women everywhere never cease to pray. The Constitution
therefore wisely contemplating the ever-present possibility of war,
declares that one of its purposes is to "provide for the common
defense." In express terms, Congress is empowered "to declare war,"
which necessarily connotes the plenary power to wage war with all
the force necessary to make it effective, and "to raise . . .
armies," which necessarily connotes the like power to say who shall
serve in them and in what way.
From its very nature, the war power, when necessity calls for
its exercise, tolerates no qualifications or limitations unless
found in the Constitution or in applicable principles of
international law. In the words of John Quincy Adams,
"This power is tremendous; it is strictly constitutional; but it
breaks down every barrier so anxiously erected for the protection
of liberty, property, and of life."
To the end that war may not result in defeat, freedom of speech
may, by act of Congress, be curtailed or denied so that the morale
of the people and the spirit of the army may not be broken by
seditious utterances; freedom of the press curtailed to preserve
our military plans and movements from the knowledge of the enemy;
deserters and spies put to death without indictment or trial by
jury; ships and supplies requisitioned; property of alien enemies,
theretofore under the protection of the Constitution, seized
without process and converted to the public use without
compensation and without due process of law in the ordinary sense
of that term; prices of food and other necessities of life fixed or
regulated; railways taken over and operated by the government, and
other drastic powers, wholly inadmissible in time of peace,
exercised to meet the emergencies of war.
Page 283 U. S. 623
These are but illustrations of the breadth of the power, and it
necessarily results from their consideration that whether any
citizen shall be exempt from serving in the armed forces of the
nation in time of war is dependent upon the will of Congress, and
not upon the scruples of the individual, except as Congress
provides. That body, thus far, has seen fit, by express enactment,
to relieve from the obligation of armed service those persons who
belong to the class known as conscientious objectors, and this
policy is of such long standing that it is thought by some to be
beyond the possibility of alteration. Indeed, it seems to be
assumed in this case that the privilege is one that Congress itself
is powerless to take away. Thus, it is said in the carefully
prepared brief of respondent:
"To demand from an alien who desires to be naturalized an
unqualified promise to bear arms in every war that may be declared,
despite the fact that he may have conscientious religious scruples
against doing so in some hypothetical future war, would mean that
such an alien would come into our citizenry on an unequal footing
with the native born, and that he would be forced, as the price of
citizenship, to forego a privilege enjoyed by others. That is the
manifest result of the fixed principle of our Constitution,
zealously guarded by our laws, that a citizen cannot be forced and
need not bear arms in a war if he has conscientious religious
scruples against doing so."
This, if it means what it seems to say, is an astonishing
statement. Of course, there is no such principle of the
Constitution, fixed or otherwise. The conscientious objector is
relieved from the obligation to bear arms in obedience to no
constitutional provision, express or implied, but because, and only
because, it has accorded with the policy of Congress thus to
relieve him. The
Page 283 U. S. 624
alien, when he becomes a naturalized citizen, acquires, with one
exception, every right possessed under the Constitution by those
citizens who are native-born (
Luria v. United States,
231 U. S. 9,
231 U. S. 22),
but he acquires no more. The privilege of the native-born
conscientious objector to avoid bearing arms comes not from the
Constitution, but from the acts of Congress. That body may grant or
withhold the exemption as in its wisdom it sees fit; and, if it be
withheld, the native-born conscientious objector cannot
successfully assert the privilege. No other conclusion is
compatible with the well nigh limitless extent of the war powers as
above illustrated, which include, by necessary implication, the
power, in the last extremity, to compel the armed service of any
citizen in the land, without regard to his objections or his views
in respect of the justice or morality of the particular war or of
war in general. In
Jacobson v. Massachusetts, 197 U. S.
11,
197 U. S. 29,
this Court, speaking of the liberties guaranteed to the individual
by the Fourteenth Amendment, said:
". . . and yet he may be compelled, by force if need be, against
his will and without regard to his personal wishes or his pecuniary
interests, or even his religious or political convictions, to take
his place in the ranks of the army of his country, and risk the
chance of being shot down in its defense."
The applicant for naturalization here is unwilling to become a
citizen with this understanding. He is unwilling to leave the
question of his future military service to the wisdom of Congress,
where it belongs and where every native-born or admitted citizen is
obliged to leave it. In effect, he offers to take the oath of
allegiance only with the qualification that the question whether
the war is necessary or morally justified must, so far as his
support is concerned, be conclusively determined by reference to
his opinion.
Page 283 U. S. 625
When he speaks of putting his allegiance to the will of God
above his allegiance to the government, it is evident, in the light
of his entire statement, that he means to make his own
interpretation of the will of God the decisive test which shall
conclude the government and stay its hand. We are a Christian
people (
Holy Trinity Church v. United States, 143 U.
S. 457,
143 U. S.
470-471), according to one another the equal right of
religious freedom and acknowledging with reverence the duty of
obedience to the will of God. But, also, we are a nation with the
duty to survive; a nation whose Constitution contemplates war as
well as peace; whose government must go forward upon the
assumption, and safely can proceed upon no other, that unqualified
allegiance to the nation and submission and obedience to the laws
of the land, as well those made for war as those made for peace,
are not inconsistent with the will of God.
The applicant here rejects that view. He is unwilling to rely,
as every native-born citizen is obliged to do, upon the probable
continuance by Congress of the long established and approved
practice of exempting the honest conscientious objector, while at
the same time asserting his willingness to conform to whatever the
future law constitutionally shall require of him, but discloses a
present and fixed purpose to refuse to give his moral or armed
support to any future war in which the country may be actually
engaged if, in his opinion, the war is not morally justified, the
opinion of the nation as expressed by Congress to the contrary
notwithstanding.
If the attitude of this claimant, as shown by his statements and
the inferences properly to be deduced from them, be held immaterial
to the question of his fitness for admission to citizenship, where
shall the line be drawn? Upon what ground of distinction may be
hereafter reject another applicant who shall express his
willingness to respect
Page 283 U. S. 626
any particular principle of the Constitution or obey any future
statute only upon the condition that he shall entertain the opinion
that it is morally justified? The applicant's attitude, in effect,
is a refusal to take the oath of allegiance except in an altered
form. The qualifications upon which he insists, it is true, are
made by parol, and not by way of written amendment to the oath, but
the substance is the same.
It is not within the province of the courts to make bargains
with those who seek naturalization. They must accept the grant and
take the oath in accordance with the terms fixed by the law, or
forego the privilege of citizenship. There is no middle choice. If
one qualification of the oath be allowed, the door is opened for
others, with utter confusion as the probable final result. As this
Court said in
United States v. Manzi, 276 U.
S. 463,
276 U. S. 467:
"Citizenship is a high privilege, and when doubts exist
concerning a grant of it, generally at least, they should be
resolved in favor of the United States and against the
claimant."
The Naturalization Act is to be construed "with definite purpose
to favor and support the government," and the United States is
entitled to the benefit of any doubt which remains in the mind of
the court as to any essential matter of fact. The burden was upon
the applicant to show that his views were not opposed to
"the principle that it is a duty of citizenship by force of arms
when necessary to defend the country against all enemies, and that
[his] opinions and beliefs would not prevent or impair the true
faith and allegiance required by the act."
United States v. Schwimmer, supra, 279 U. S.
649-650,
279 U. S. 653.
We are of opinion that he did not meet this requirement. The
examiner and the court of first instance who heard and weighed the
evidence and saw the applicant and witnesses so concluded. That
conclusion, if we were in
Page 283 U. S. 627
doubt, would not be rejected except for good and persuasive
reasons, which we are unable to find.
The decree of the court of appeals is reversed, and that of
the district court is affirmed.
MR. CHIEF JUSTICE HUGHES, dissenting.
I am unable to agree with the judgment in this case. It is
important to note the precise question to be determined. It is
solely one of law, as there is no controversy as to the facts. The
question is not whether naturalization is a privilege to be granted
or withheld. That it is such a privilege is undisputed. Nor whether
the Congress has the power to fix the conditions upon which the
privilege is granted. That power is assumed. Nor whether the
Congress may, in its discretion, compel service in the army in time
of war or punish the refusal to serve. That power is not here in
dispute. Nor is the question one of the authority of Congress to
exact a promise to bear arms as a condition of its grant of
naturalization. That authority, for the present purpose, may also
be assumed.
The question before the Court is the narrower one whether the
Congress has exacted such a promise. That the Congress has not made
such an express requirement is apparent. The question is whether
that exaction is to be implied from certain general words which do
not, as it seems to me, either literally or historically demand the
implication. I think that the requirement should not be implied,
because such a construction is directly opposed to the spirit of
our institutions and to the historic practice of the Congress. It
must be conceded that departmental zeal may not be permitted to
outrun the authority conferred by statute. If such a promise is to
be demanded, contrary to principles which have been respected as
fundamental, the Congress should exact it in unequivocal
Page 283 U. S. 628
terms, and we should not, by judicial decision, attempt to
perform what, as I see it, is a legislative function.
In examining the requirements for naturalization, we find that
the Congress has expressly laid down certain rules which concern
the opinions and conduct of the applicant. Thus, it is provided
that no person shall be naturalized
"who disbelieves in or who is opposed to organized government,
or who is a member of or affiliated with any organization
entertaining and teaching such disbelief in or opposition to
organized government, or who advocates or teaches the duty,
necessity, or propriety of the unlawful assaulting or killing of
any officer or officers, either of specific individuals or of
officers generally, of the government of the United States, or of
any other organized government, because of his or their official
character, or who is a polygamist."
Act of June 29, 1906, c. 3592, § 7, 34 Stat. 596, 598, U.S.C.
Tit. 8, § 364. The respondent, Douglas Clyde Macintosh, entertained
none of these disqualifying opinions, and had none of the
associations or relations disapproved. Among the specific
requirements as to beliefs, we find none to the effect that one
shall not be naturalized if, by reason of his religious
convictions, he is opposed to war or is unwilling to promise to
bear arms. In view of the questions which have repeatedly been
brought to the attention of the Congress in relation to such
beliefs, and having regard to the action of the Congress when its
decision was of immediate importance in the raising of armies, the
omission of such an express requirement from the naturalization
statute is highly significant.
Putting aside these specific requirements as fully satisfied, we
come to the general conditions imposed by the statute. We find one
as to good behavior during the specified period of residence
preceding application. No applicant could appear to be more
exemplary than Macintosh. A Canadian by birth, he first came to the
United
Page 283 U. S. 629
states as a graduate student at the University of Chicago, and,
in 1907, he was ordained as a Baptist minister. In 1909, he began
to teach in Yale University, and is now a member of the faculty of
the Divinity School, Chaplain of the Yale Graduate School, and
Dwight Professor of Theology. After the outbreak of the Great War,
he voluntarily sought appointment as a chaplain with the Canadian
Army, and as such saw service at the front. Returning to this
country, he made public addresses in 1917 in support of the Allies.
In 1918, he went again to France, where he had charge of an
American Y.M.C.A. hut at the front until the armistice, when he
resumed his duties at Yale University. It seems to me that the
applicant has shown himself in his behavior and character to be
highly desirable as a citizen, and, if such a man is to be excluded
from naturalization, I think the disqualification should be found
in unambiguous terms, and not in an implication which shuts him out
and gives admission to a host far less worthy.
The principal ground for exclusion appears to relate to the
terms of the oath which the applicant must take. It should be
observed that the respondent was willing to take the oath, and he
so stated in his petition. But, in response to further inquiries,
he explained that he was not willing "to promise beforehand" to
take up arms, "without knowing the cause for which my country may
go to war," and that "he would have to believe that the war was
morally justified." He declared that "his first allegiance was to
the will of God;" that he was ready to give to the United
States
"all the allegiance he ever had given or ever could give to any
country, but that he could not put allegiance to the government of
any country before allegiance to the will of God."
The question then is whether the terms of the oath are to be
taken as necessarily implying an assurance of willingness to bear
arms, so that one whose conscientious convictions or belief of
supreme
Page 283 U. S. 630
allegiance to the will of God will not permit him to make such
an absolute promise cannot take the oath, and hence is disqualified
for admission to citizenship.
The statutory provision as to the oath which is said to require
this promise is this:
"That he will support and defend the Constitution and laws of
the United States against all enemies, foreign and domestic, and
bear true faith and allegiance to the same."
Act of June 29, 1906, c. 3592, § 4, 34 Stat. 596, 598; U.S.C.
Tit. 8, § 381. That these general words have not been regarded as
implying a promise to bear arms notwithstanding religious or
conscientious scruples, or as requiring one to promise to put
allegiance to temporal power above what is sincerely believed to be
one's duty of obedience to God, is apparent, I think, from a
consideration of their history. This oath does not stand alone. It
is the same oath, in substance, that is required by act of Congress
of Civil officers generally (except the President, whose oath is
prescribed by the Constitution). The Congress, in prescribing such
an oath for civil officers, acts under Article VI, § 3, of the
Constitution, which provides:
"The Senators and Representatives before mentioned, and the
Members of the several state legislatures, and all executive and
judicial Officers, both of the United States and of the several
states, shall be bound by Oath or Affirmation, to support this
Constitution; but no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United
States."
The general oath of office, in the form which has been
prescribed by the Congress for over sixty years, contains the
provision
"that I will support and defend the Constitution of the United
States against all enemies, foreign and domestic; that I will bear
true faith and allegiance to the same; that I take this obligation
freely, without any mental reservation or purpose of evasion."
(R.S. § 1757, U.S.C. Tit. 5, § 16). It goes without
Page 283 U. S. 631
saying that it was not the intention of the Congress, in framing
the oath, to impose any religious test. When we consider the
history of the struggle for religious liberty, the large number of
citizens of our country from the very beginning who have been
unwilling to sacrifice their religious convictions, and, in
particular, those who have been conscientiously opposed to war and
who would not yield what they sincerely believed to be their
allegiance to the will of God, I find it impossible to conclude
that such persons are to be deemed disqualified for public office
in this country because of the requirement of the oath which must
be taken before they enter upon their duties. The terms of the
promise "to support and defend the Constitution of the United
States against all enemies, foreign and domestic" are not, I think,
to be read as demanding any such result. There are other and most
important methods of defense, even in time of war, apart from the
personal bearing of arms. We have but to consider the defense given
to our country in the late war, both in industry and in the field,
by workers of all sorts, by engineers, nurses, doctors and
chaplains, to realize that there is opportunity even at such a time
for essential service in the activities of defense which do not
require the overriding of such religious scruples. I think that the
requirement of the oath of office should be read in the light of
our regard from the beginning for freedom of conscience. While it
has always been recognized that the supreme power of government may
be exerted and disobedience to its commands may be punished, we
know that, with many of our worthy citizens, it would be a most
heart-searching question if they were asked whether they would
promise to obey a law believed to be in conflict with religious
duty. Many of their most honored exemplars in the past have been
willing to suffer imprisonment or even death rather than to make
such a promise. And we also know, in particular, that a promise to
engage
Page 283 U. S. 632
in war by bearing arms, or thus to engage in a war believed to
be unjust, would be contrary to the tenets of religious groups
among our citizens who are of patriotic purpose and exemplary
conduct. To conclude that the general oath of office is to be
interpreted as disregarding the religious scruples of these
citizens and as disqualifying them for office because they could
not take the oath with such an interpretation would, I believe, be
generally regarded as contrary not only to the specific intent of
the Congress, but as repugnant to the fundamental principle of
representative government.
But the naturalization oath is in substantially the same terms
as the oath of office to which I have referred. I find no ground
for saying that these words are to be interpreted differently in
the two cases. On the contrary, when the Congress reproduced the
historic words of the oath of office in the naturalization oath, I
should suppose that, according to familiar rules of interpretation,
they should be deemed to carry the same significance.
The question of the proper interpretation of the oath is, as I
have said, distinct from that of legislative policy in exacting
military service. The latter is not dependent upon the former. But
the long established practice of excusing from military service
those whose religious convictions oppose it confirms the view that
the Congress, in the terms of the oath, did not intend to require a
promise to give such service. The policy of granting exemptions in
such cases has been followed from colonial times, and is abundantly
shown by the provisions of colonial and state statutes, of state
constitutions, and of acts of Congress.
See citations in
the opinion of the circuit court of appeals in the present case. 42
F.2d 845, 847, 848. The first Constitution of New York, adopted in
1777, in providing for the state militia, while strongly
emphasizing the duty of defense, added:
"That all such of the inhabitants of this state being of the
people called Quakers
Page 283 U. S. 633
as, from scruples of conscience, may be averse to the bearing of
arms be therefrom excused by the legislature, and to pay to the
state such sums of money, in lieu of their personal service, as the
same may, in the judgment of the legislature, be worth."
Article XL. A large number of similar provisions are found in
other states. The importance of giving immunity to those having
conscientious scruples against bearing arms has been emphasized in
debates in Congress repeatedly from the very beginning of our
government, and religious scruples have been recognized in draft
acts. Annals of Congress (Gales), 1st Congress, vol. I, pp. 434,
436, 729, 731; vol. II, pp. 1818-1827; Acts of February 24, 1864,
13 Stat. 6, 9; January 21, 1903, 32 Stat. 775; June 3, 1916, 39
Stat. 166, 197; May 18, 1917, 40 Stat. 76, 78. I agree with the
statement in the opinion of the circuit court of appeals in the
present case that:
"This federal legislation is indicative of the actual operation
of the principles of the Constitution that a person with
conscientious or religious scruples need not bear arms, although,
as a member of society, he may be obliged to render services of a
noncombatant nature."
Much has been said of the paramount duty to the state, a duty to
be recognized, it is urged, even though it conflicts with
convictions of duty to God. Undoubtedly that duty to the state
exists within the domain of power, for government may enforce
obedience to laws regardless of scruples. When one's belief
collides with the power of the state, the latter is supreme within
its sphere, and submission or punishment follows. But, in the forum
of conscience, duty to a moral power higher than the state has
always been maintained. The reservation of that supreme obligation,
as a matter of principle, would unquestionably be made by many of
our conscientious and law-abiding citizens. The essence of religion
is belief in a relation to God involving duties superior to
those
Page 283 U. S. 634
arising from any human relation. As was stated by Mr. Justice
Field in
Davis v. Beason, 133 U.
S. 333,
133 U. S.
342:
"The term 'religion' has reference to one's views of his
relations to his Creator, and to the obligations they impose of
reverence for his being and character, and of obedience to his
will."
One cannot speak of religious liberty, with proper appreciation
of its essential and historic significance, without assuming the
existence of a belief in supreme allegiance to the will of God.
Professor Macintosh, when pressed by the inquiries put to him,
stated what is axiomatic in religious doctrine. And, putting aside
dogmas with their particular conceptions of deity, freedom of
conscience itself implies respect for an innate conviction of
paramount duty. The battle for religious liberty has been fought
and won with respect to religious beliefs and practices, which are
not in conflict with good order, upon the very ground of the
supremacy of conscience within its proper field. What that field
is, under our system of government, presents in part a question of
constitutional law, and also, in part, one of legislative policy in
avoiding unnecessary clashes with the dictates of conscience. There
is abundant room for enforcing the requisite authority of law as it
is enacted and requires obedience, and for maintaining the
conception of the supremacy of law as essential to orderly
government, without demanding that either citizens or applicants
for citizenship shall assume by oath an obligation to regard
allegiance to God as subordinate to allegiance to civil power. The
attempt to exact such a promise, and thus to bind one's conscience
by the taking of oaths or the submission to tests, has been the
cause of many deplorable conflicts. The Congress has sought to
avoid such conflicts in this country by respecting our happy
tradition. In no sphere of legislation has the intention to prevent
such clashes been more conspicuous than in relation to the bearing
of arms. It would require strong evidence
Page 283 U. S. 635
that the Congress intended a reversal of its policy in
prescribing the general terms of the naturalization oath. I find no
such evidence.
Nor is there ground, in my opinion, for the exclusion of
Professor Macintosh because his conscientious scruples have
particular reference to wars believed to be unjust. There is
nothing new in such an attitude. Among the most eminent statesmen
here and abroad have been those who condemned the action of their
country in entering into wars they thought to be unjustified.
Agreements for the renunciation of war presuppose a preponderant
public sentiment against wars of aggression. If, while recognizing
the power of Congress, the mere holding of religious or
conscientious scruples against all wars should not disqualify a
citizen from holding office in this country, or an applicant
otherwise qualified from being admitted to citizenship, there would
seem to be no reason why a reservation of religious or
conscientious objection to participation in wars believed to be
unjust should constitute such a disqualification.
Apart from the terms of the oath, it is said that the respondent
has failed to meet the requirement of "attachment to the principles
of the Constitution." Here again, is a general phrase which should
be construed not in opposition to, but in accord with, the theory
and practice of our government in relation to freedom of
conscience. What I have said as to the provisions of the oath I
think applies equally to this phase of the case.
The judgment in
United States v. Schwimmer,
279 U. S. 644,
stands upon the special facts of that case, but I do not regard it
as requiring a reversal of the judgment here. I think that the
judgment below should be affirmed.
MR. JUSTICE HOLMES, MR. JUSTICE BRANDEIS, and MR. JUSTICE STONE
concur in this opinion.