Becoming a Citizen – Part 6 – A Confident View of Who We Are


Immigration 101 is a series based on my class at Hofstra Law School.

In Schneiderman v. United States the Supreme Court took up the issue of just what beliefs could be considered “American”. Tough cases often make bad law and this would seem to be the toughest. It concerned a naturalized U.S. citizen named Schneiderman who had been a Communist at the time he swore the Oath of Allegiance and became an American. The government was trying to revoke his citizenship, saying that no person of his views could possibly be a real American. Complicating the case; America had just been attacked at Pearl Harbor.

Now one thing you can pretty much be assured of when an immigration case comes before the Supreme Court: None of the judges will be immigrants. It’s just a given. And very few will be from immigrant families. Things were a bit different in this case. The author of the majority opinion was Justice Frank Murphy, the son of Irish immigrants.

Murphy saw the immigrant as someone as entitled to his own opinion as the native born citizen. He saw this case as one challenging the true values of America. He wrote:

We brought this case here… because of its importance and its possible relation to freedom of thought.

We should let our judgment be guided so far as the law permits by the spirit of freedom and tolerance in which our nation was founded, and by a desire to secure the blessings of liberty in thought and action to all those upon whom the right of American citizenship has been conferred by statute, as well as to the native born. And we certainly should presume that Congress was motivated by these lofty principles.

We are directly concerned only with the rights of this petitioner and the circumstances surrounding his naturalization, but we should not overlook the fact that we are a heterogeneous people. In some of our larger cities a majority of the school children are the offspring of parents only one generation, if that far, removed from the steerage of the immigrant ship, children of those who sought refuge in the new world from the cruelty and oppression of the old, where men have been burned at the stake, imprisoned, and driven into exile in countless numbers for their political and religious beliefs. Here they have hoped to achieve a political status as citizens in a free world in which men are privileged to think and act and speak according to their convictions, without fear of punishment or further exile so long as they keep the peace and obey the law.

Justice Murphy noted that Schneiderman was an admitted Communist who believed in the philosophy of Karl Marx. He wrote for the majority:

Those principles and views are not generally accepted-in fact they are distasteful to most of us-and they call for considerable change in our present form of government and society. …  The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. 15 Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V contains procedural provisions for constitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent.  This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is necessarily not attached to the Constitution. As Justice Holmes said, ‘Surely it cannot show lack of attachment to the principles of the Constitution that (one) thinks that it can be improved.’ Criticism of, and the sincerity of desires to improve the Constitution should not be judged by conformity to prevailing thought because, ‘if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate. Whatever attitude we may individually hold toward persons and organizations that believe in or advocate extensive changes in our existing order, it should be our desire and concern at all times to uphold the right of free discussion and free thinking to which we as a people claim primary attachment. To neglect this duty in a proceeding in which we are called upon to judge whether a particular individual has failed to manifest attachment to the Constitution would be ironical indeed.

Our concern is with what Congress meant to be the extent of the area of allowable thought under the statute. By the very generality of the terms employed it is evident that Congress intended an elastic test, one which should not be circumscribed by attempts at precise definition. In view of our tradition of freedom of thought, it is not to be presumed that Congress in the Act of 1906, or its predecessors of 1795 and 1802,17 intended to offer naturalization only to those whose political views coincide with those considered best by the founders in 1787 or by the majority in this country today. Especially is this so since the language used, posing the general test of ‘attachment’ is not necessarily susceptible of so repressive a construction. 18 The Government agrees that an alien ‘may think that the laws and the Constitution should be amended in some or many respects’ and still be attached to the principles of the Constitution within the meaning of the statute. 

Justice Murphy says that the changes the Communist desires are indeed radical:

With regard to the constitutional changes he desired petitioner testified that he believed in the nationalization of the means of production and exchange with compensation, and the preservation and utilization of our ‘democratic structure … as far as possible for the advantage of the working classes.’ He stated that the ‘dictatorship of the proletariat’ to him meant ‘not a government, but a state of things’ in which ‘the majority of the people shall really direct their own destinies and use the instrument of the state for these truly democratic ends.’ None of this is necessarily incompatible with the ‘general political philosophy’ of the Constitution as outlined above by the Government. It is true that the Fifth Amendment protects private property, even against taking for public use without compensation. But throughout our history many sincere people whose attachment to the general constitutional scheme cannot be doubted have, for various and even divergent reasons, urged differing degrees of governmental ownership and control of natural resources, basic means of production, and banks and the media of exchange, either with or without compensation. And something once regarded as a species of private property was abolished without compensating the owners when the institution of slavery was forbidden. 21 Can it be said that the author of the Emancipation Proclamation and the supporters of the Thirteenth Amendment were not attached to the Constitution? We conclude that lack of attachment to the Constitution is not shown on the basis of [320 U.S. 118, 142]  the changes which petitioner testified he desired in the Constitution.

… Our concern is with the extent of the allowable area of thought under the statute. We decide only that it is possible to advocate such changes and still be attached to the Constitution within the meaning of the Government’s minimum test.

If any provisions of the Constitution can be singled out as requiring unqualified attachment, they are the guaranties of the Bill of Rights and especially that of freedom of thought contained in the First Amendment.

Schneiderman had come to the United States as a boy of three, had never engaged in criminal activity or spying and had never tried to overthrow the U.S. during his two decades as a Communist. However obnoxious his politics were, they did not bar him from being an American. The U.S. was stronger, Murphy decided, for tolerating the incorrect.

Murphy also hints at the dangers of defining a particular set of political views as those necessary for someone to be an American. Do we exclude anyone who disagrees with the currently dominant political majority? Do we exclude those who seem too conservative, for example, someone who wants to make abortion illegal, or who is more to the left than most people? Should advocacy of gay marriage or repeal of the Second Amendment place someone outside the American community? What about a person who believes that America has turned away from God and needs to recapture the Puritan’s more theocratic ways?

Justice Murphy stood for the proposition that the Federal government should exclude those people who do bad things, not those who believe in bad ideas.

Read other parts of this series:

Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.