In two recent cases, the Supreme Court has held that citizenship must be denied an applicant who is unwilling to promise unreservedly to bear arms in defense of the United States. One applicant, Douglas Clyde Macintosh, a Professor of Divinity in Yale University, who served for four years in France during the World War, stated that due to religious convictions he was unable to promise beforehand to fight unless, in his own opinion, the war was morally justifiable and in the best interests of humanity. The other, Marie Averil Bland, a minister\u27s daughter who served as a nurse in the war, stated that her religious beliefs forbade her personally bearing arms, and refused to take the oath of allegiance as interpreted without the qualifying words,  as far as my conscience as a Christian will allow.  Both applications were denied in the district courts, and both these decisions were reversed by the circuit court of appeals for the second circuit. A majority of the Supreme Court, speaking through Justice Sutherland, restored the holdings of the district courts. Justices Holmes, Brandeis, and Stone concurred in a dissenting opinion read by Chief Justice Hughes

Tennant, John S.

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University of Michigan School of Law

Michigan Law Review Volume 30 Issue 1 1931 ALIENS-NATURALIZATION-THE PROMISE TO BEAR ARMS John S. Tennant University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr  Part of the Immigration Law Commons, and the Religion Law Commons Recommended Citation John S. Tennant, ALIENS-NATURALIZATION-THE PROMISE TO BEAR ARMS, 30 MICH. L. REV. 133 (1931). Available at: https://repository.law.umich.edu/mlr/vol30/iss1/18  This Comment is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. No. I COMMENTS 133 COMMENTS ALIENS-NATURALIZATION-THE PROMISE TO BEAR ARMs-In two recent cases, the Supreme Court has held that citizenship must be denied an applicant who is unwilling to promise unreservedly to bear arms in defense of the United States.1 One applicant, Douglas Clyde Macintosh, a Professor of Divinity in Yale University, who served for four years in France during the World War, stated that due to religious convictions he was unable to promise beforehand to :fight unless, in his own opinion, the war was morally justifiable and in the best interests of humanity. The other, Marie Averil Bland, a minister's daughter who served as a nurse in the war, stated that her religious beliefs forbade her personally bearing arms, and refused to take the oath of allegiance as interpreted without the qualifying words, "as far as my conscience as a Christian will allow." Both 1 United States v. Macintosh, 283 U.S. 605, 75 L. ed. 769 (1931); United States v. Bland, 283 U.S. 636, 75 L. ed. 781 (1931). See Charles E. Carpenter, "The Promise to Bear Arms as a Prerequisite to Naturalized Citizenship," IO OR. L. REv. 375 (1931). 134 MICHIGAN LAW REVIEW Vol. 30 applications were denied in the district courts, and both these deci-sions were reversed by the circuit court of appeals for the second cir-cuit. 2 A majority of the Supreme Court, speaking through Justice Sutherland, restored the holdings of the district courts. Justices Holmes, Brandeis, and Stone concurred in a dissenting opinion read by Chief Justice Hughes. The oath of allegiance, as prescribed by Congress, requires merely that the applicant promise "that he will support and defend the Con-stitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same."3 The department of naturalization, however, has compiled a questionnaire to be answered by an applicant before he is permitted to take the oath. Question 22 reads: "If necessary, are you willing to take up arms in defense of this country?" Whether this additional express requirement is authorized by the statute is the basis of the controversy in these cases. The Supreme Court was first called upon to consider the · matter two years ago in United States 'V. Schwimmer.4 Madame Schwimmer, an internationally known linguist, lecturer, and writer, and a professed pacifist, had refused to give an affirmative answer to question 22 on the ground that conscientious scruples, arising from a "cosmic con-sciousness of belonging to the human family'' prevented her personally bearing arms. Stressing the applicant's pacifist beliefs and the dan-ger that, through her writings and lectures, she might influence others to disobedience to a call to arms, the majority of the court denied her application on the ground that she had failed to sustain the bur-den of proving that her beliefs did not prevent her attachment to the Constitution. The circuit court in the instant cases held that this decision was not in point, since the objections of Rev. Macintosh and Miss Bland were based on religious beliefs, which Congress had always recognized as a basis for exemption from military service. In rejecting this dis-tinction, the Supreme Court has given full effect to the departmental interpretation of the statutory requirements. While the majority opinion is couched in terms of statutory inter-pretation, it would seem that their decision must be based on a judi-2 Macintosh v. United States, 42 F.(2d) 845 (1930); Bland v. United States, 42 F.(2d) 842 (1930). The writer's comment on these c:i~es appears in 29 M1cH. L. REV. 241 (1930). 8 34 Stat. 598, sec. 4, c. 3592; 8 U. S. C. A. sec. 381. 4 279 U. S. 644, 73 L. ed. 889 (1929). See comment by Prof. Ernst Freund in 7 N. Y. U. L. Q. 157 (1929); also 28 MxcH. L. REv. 445 (1.930). The attitude of the Bureau of Naturalization is well expressed by Henry B. Hazard, "'Attachment to the Principles of the Constitution' as Judicially Construed in Cer-tain Naturalization Cases in the United States," 23 AM. J. INT. L. 783 (1929). No. 1 COMMENTS 135 cial conception of what the policy of Congress should be rather than any which has been expressed. In the absence of any evidence as to the intended meaning of the oath, the language, "to support and defend the Constitution," might possibly bear the construction placed upon it by the court, that the applicant must be 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 man-ner that he may choose, but to such extent and in such manner as he lawfully may be required to do," in other words, to bear arms. Even in such case it might seem to many a somewhat far cry from a promise to support the fundamental law of the land to an agreement to fight in whatever wars, imperialistic or otherwise, the government may see fit to engage in. Probably no one would argue that the Constitution was endangered in the war with Spain, or in any of our conflicts over the rights of American capital in the countries south of our border. Indeed, even the World War, viewed from the present day, seems to have presented a menace more to our commerce than to our Consti-tution, despite the slogans of the day. But, as the minority points out, there was evidence bearing on the probable meaning of the oath. It was not designed to fit the peculiar needs of naturalization proceedings, but is in substance the same oath as that prescribed for all civil officers with the exception of the Presi-dent. Surely, as Chief Justice Hughes states, "When we consider the history of the struggle for religious liberty, the large number of citi-zens of our country, from the very beginning, who have been unwill-ing 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 require-ment of the oath which must be taken before they enter upon their duties." And since the words are the same, "according to familiar rules of interpretation, they should be deemed to carry the same sig-nificance." Furthermore, the Chief Justice points out that "the long-established practice of excusing from military service those whose re-ligious convictions oppose it confirms the view that Congress in the terms of the oath did not intend to require a promise to give such service."5 A further argument of the majority is that the applicants are lack-ing in "attachment to the principles of the Constitution," since, "That it is the duty of citizens by force of arms to defend our government 5 United States v. Macintosh, 283 U. S. 605, at 631, 632, 75 L. ed. 769, at 779, 780 (1931). MICHIGAN LAW REVIEW Vol. 30 against all enemies whenever necessity arises is a fundamental prin-ciple of the Constitution." This stated principle is deduced from con-stitutional provisions giving Congress power to declare war and to raise armies, as exe!'cised and interpreted by the selective draft laws, and the Supreme Court decisions upholding their validity. While it may be a principle of the Constitution in the sense that it extends certain powers to Congress, it hardly seems to be that type of prin-ciple which Congress may be said to have had in mind in the naturali-zation statutes, any more than do the principles, similarly established, that Congress, under the commerce clause, may impose upon the rail-roads the existing mass of detailed regulations and restrictions, or that the Supreme Court may review and invalidate state legislation to the extent that the Fourteenth Amendment has been interpreted to permit. Referring again to the reasoning by which the principle was dis-cerned, it is surely not more devious nor less logical to see in the constitutional guarantee of religious freedom, recognized in relation to the matter at hand by Congressional exemptions of conscientious objectors from the operation of these same draft laws, a principle of the Constitution that a citizen should not be forced to bear arms in con-travention of his religious views. The majority of the court, how-ever, rejects this argument with scorn. "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."6 Although it would not be necessary to the applicants' posi-tion to establish such a principle, it is submitted that it is at least as reasonable as the one set forth and relied upon in rejecting their appli-cations. The most obvious fallacy in the reasoning of the majority lies in the apparent assumption that unless an applicant does promise to bear arms, the government will be forced to except him from any future draft laws and that he will thus occupy a position more favored than that of the native-born citizen. The court said, after referring to the power to compel service, "The applicant for naturalization here is unwilling to become a citizen with this understanding. He is un-willing to leave the question of his future military service to the wis-dom 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 6 United States v. Macintosh, 283 U. S. 605, at 623, 75 L. ed. 769, at 77S (1931). . No. I COMMENTS 137 the war is necessary or morally justified must, so far as his support is concerned, be conclusively determined by reference to his opinion."7 Clearly there was on the part of applicant Macintosh, to whom the above passage referred, no attempt to secure exemption in ad-vance nor in any other way to achieve a footing superior to that of one born in this country. His testimony showed that he recognized the power of the government to compel obedience to its lawful com-mands, and to punish for failure to obey such commands. What both he and Miss Bland were unwilling to do was that which is not re-quired of a native-born citizen, namely, to promise in advance to disregard conscience if called upon to do so. Obviously, this position does not involve an attempt to "make bargains" with the govern-ment, since in no case would the government be precluded by the pro-ceedings upon naturalization. Through misdirected departmental zeal, aggravated by uncalled-for judicial legislation, the United States has lost three applicants who, in the minds of any except the most biased militarists, would have made most desirable citizens. Apparently the only remedy lies with Congress. It is to be hoped that a future naturalization law will leave less play for the personal opinions and prejudices of Supreme Court justices. justices. JOHN S. TENNANT 7 United States v. Macintosh, 283 U. S. 605, at 624, 75 L. ed. 769, at 776 (1931). 

ALIENS-NATURALIZATION-THE PROMISE TO BEAR ARMS

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ALIENS-NATURALIZATION-THE PROMISE TO BEAR ARMS

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