# Girouard v. United States/Dissent Stone

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Mr. Chief Justice STONE dissenting.
I think the judgment should be affirmed, for the reason that the court below, in applying the controlling provisions of the naturalization statutes, correctly applied them as earlier construed by this Court, whose construction Congress has adopted and confirmed.
In three cases decided more than fifteen years ago, this Court denied citizenship to applicants for naturalization who had announced that they proposed to take the prescribed oath of allegiance with the reservation or qualification that they would not, as naturalized citizens, assist in the defense of this country by force of arms or give their moral support to the government in any war which they did not believe to be morally justified or in the best interests of the country. See United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302; United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319.
In each of these cases this Court held that the applicant had failed to meet the conditions which Congress had made prerequisite to naturalization by § 4 of the Naturalization Act of June 29, 1906, c. 3592, 34 Stat. 596, the provisions of which, here relevant, were enacted in the Nationality Act of October 14, 1940. See c. 876, 54 Stat. 1137, as amended by the Act of March 27, 1942, c. 199, 56 Stat. 176, 182, 183, and by the Act of December 7, 1942, c. 690, 56 Stat. 1041, 8 U.S.C. §§ 707, 723a, 735, 1001 et seq., 8 U.S.C.A. §§ 707, 723a, 735, 1001 et seq., Section 4 of the Naturalization Act of 1906, paragraph 'Third,' provided that before the admission to citizenship the applicant should declare on oath in open court 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.' And paragraph 'Fourth' required that before admission it be made to appear 'to the satisfaction of the court admitting any alien to citizenship' that at least for a period of five years immediately preceding his application the applicant '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 applying these provisions in the cases mentioned, this Court held only that an applicant who is unable to take the oath of allegiance without the reservations or qualifications insisted upon by the applicants in those cases manifests his want of attachment to the principles of the Constitution and his unwillingness to meet the requirements of the oath, that he will support and defend the Constitution of the United States and bear true faith and allegiance to the same, and so does not comply with the statutory conditions of his naturalization. No question of the constitutional power of Congress to withhold citizen hip on these grounds was involved. That power was not doubted. See Selective Draft Law Cases, (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856; Hamilton v. Regents, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343. The only question was of construction of the statute which Congress at all times has been free to amend if dissatisfied with the construction adopted by the Court.
With three other Justices of the Court I dissented in the Macintosh and Bland cases, for reasons which the Court now adopts as ground for overruling them. Since this Court in three considered earlier opinions has rejected the construction of the statute for which the dissenting Justices contended, the question, which for me is decisive of the present case, is whether Congress has likewise rejected that construction by its subsequent legislative action, and has adopted and confirmed the Court's earlier construction of the statutes in question. A study of Congressional action taken with respect to proposals for amendment of the naturalization laws since the decision in the Schwimmer case, leads me to conclude that Congress has adopted and confirmed this Court's earlier construction of the naturalization laws. For that reason alone I think that the judgment should be affirmed.
The construction of the naturalization statutes, adopted by this Court in the three cases mentioned, immediately became the target of an active, publicized legislative attack in Congress which persisted for a period of eleven years, until the adoption of the Nationality Act in 1940. Two days after the Schwimmer case was decided, a bill was introduced in the House, H.R. 3547, 71st Cong., 1st Sess., to give the Naturalization Act a construction contrary to that which had been given to it by this Court and which, if adopted, would have made the applicants rejected by this Court in the Schwimmer, Macintosh and Bland cases eligible for citizenship. This effort to establish by Congressional action that the construction which this Court had placed on the Naturalization Act was not one which Congress had adopted or intended, was renewed without success after the decision in the Macintosh and Bland cases, and was continued for a period of about ten years. All of these measures were of substantially the same pattern as H.R. 297, 72d Cong., 1st Sess., introduced December 8, 1931, at the first session of Congress, after the decision in the Macintosh case. It provided that no person otherwise qualified 'shall be debarred from citizenship by reason of his or her religious views or philosophical opinions with respect to the lawfulness of war as a means of settling international disputes, but every alien admitted to citizenship shall be subject to the same obligation as the native-born citizen.' H.R. 3547, 71st Cong., 1st Sess., introduced immediately after the decision in the Schwimmer case, had contained a like provision, but with the omission of the last clause beginning 'but every alien.' Hearings were had before the House Committee on Immigration and Naturalization on both bills at which their proponents had stated clearly their purpose to set aside the interpretation placed on the oath of allegiance by the Schwimmer and Macintosh case . There was opposition on each occasion. Bills identical with H.R. 297 were introduced in three later Congresses. None of these bills were reported out of Committee. The other proposals, all of which failed of passage (see footnote 2, ante), had the same purpose and differed only in phraseology.
Thus, for six successive Congresses, over a period of more than a decade, there were continuously pending before Congress in one form or another proposals to overturn the rulings in the three Supreme Court decisions in question. Congress declined to adopt these proposals after full hearings and after speeches on the floor advocating the change. 72 Cong.Rec. 6966-7; 75th Cong.Rec. 15354-7. In the meantime the decisions of this Court had been followed in Clarke's Case, 301 Pa. 321, 152 A. 92; Beale v. United States, 8 Cir., 71 F.2d 737; In re Warkentin, 7 Cir., 93 F.2d 42. In Beale v. United States, supra, (71 F.2d 739) the court pointed out that the proposed amendments affecting the provisions of the statutes relating to admission to citizenship had failed saying: 'We must conclude, therefore, that these statutory requirements as construed by the Supreme Court have Congressional sanction and approval.'
Any doubts that such were the purpose and will of Congress would seem to have been dissipated by the reenactment by Congress in 1940 of Paragraphs 'Third' and 'Fourth' of § 4 of the Naturalization Act of 1906, and by the incorporation in the Act of 1940 of the very form of oath which had been administratively prescribed for the applicants in the Schwimmer, Macintosh and Bland cases. See Rule 8(c), Naturalization Regulations of July 1, 1929.
The Nationality Act of 1940 was a comprehensive, slowly matured and carefully considered revision of the naturalization laws. The preparation of this measure was not only delegated to a Congressional Committee, but was considered by a committee of Cabinet members, one of whom was the Attorney General. Both were aware of our decisions in the Schwimmer and related cases and that no other question pertinent to the naturalization laws had been as persistently and continuously before Congress in the ten years following the decision in the Schwimmer case. The modifications in the provisions of Paragraphs 'Third' and 'Fourth' of § 4 of the 1906 Act show conclusive the careful attention which was given to them.
In the fact of this legislative history the 'failure of Congress to alter the Act after it had bee judicially construed, and the enactment by Congress of legislation which implicitly recognizes the judicial construction as effective, is persuasive of legislative recognition that the judicial construction is the correct one. This is the more so where, as here, the application of the statute * * * has brought forth sharply conflicting views both on the Court and in Congress, and where after the matter has been fully brought to the attention of the public and the Congress, the latter has not seen fit to change the statute.' Apex Hosiery Co. v. Leader, 310 U.S. 469, 488, 489, 60 S.Ct. 982, 989, 84 L.Ed. 1311, 128 A.L.R. 1044. And see to like effect United States v. Ryan, 284 U.S. 167-175, 52 S.Ct. 65-68, 76 L.Ed. 224; United States v. Elgin, J. & E.R. Co., 298 U.S. 492, 500, 56 S.Ct. 841, 843, 80 L.Ed. 1300; State of Missouri v. Ross, 299 U.S. 72, 75, 57 S.Ct. 60, 62, 81 L.Ed. 46; cf. Helvering v. Winmill, 305 U.S. 79, 82, 83, 59 S.Ct. 45, 46, 47, 83 L.Ed. 52. It is the responsibility of Congress, in reenacting a statute, to make known its purpose in a controversial matter of interpretation of its former language, at least when the matter has, for over a decade, been persistently brought to its attention. In the light of this legislative history, it is abundantly clear that Congress has performed that duty. In any case it is not lightly to be implied that Congress has failed to perform it and has delegated to this Court the responsibility of giving new content to language deliberately readopted after this Court has construed it. For us to make such an assumption is to discourage, if not to deny, legislative responsibility. By thus adopting and confirming this Court's construction of what Congress had enacted in the Naturalization Act of 1906 Congress gave that construction the same legal significance as though it had written the very words into the Act of 1940.
The only remaining question is whether Congress repealed this construction by enactment of the 1942 amendments of the Nationality Act. That Act extended special privileges to applicants for naturalization who were aliens and who have served in the armed forces of the United States in time of war, by dispensing with or modifying existing requirements, relating to declarations of intention, period of residence, education, and fees. It left unchanged the requirements that the applicant's behavior show his attachment to the principles of the Constitution and that he take the oath of allegiance. In adopting the 1942 amendments Congress did not have before it any question of the oath of allegiance with which it had been concerned when it adopted the 1940 Act. In 1942 it was concerned with the grant of special favors to those seeking naturalization who had worn the uniform and rendered military service in time of war and who could satisfy such naturalization requirements as had not been dispensed with by the amendments. In the case of those entitled to avail themselves of these privileges, Congress left it to the naturalization authorities, as in other cases, to determine whether, by their applications and their conduct in the military service they satisfy the requirements for naturalization which had not been waived.
It is pointed out that one of the 1942 amendments, 8 U.S.C.Supp. IV, § 1004, 8 U.S.C.A. § 1004, provided that the provisions of the amendment should not apply to 'any conscientious objector who performed no military duty whatever or refused to wear the uniform.' It is said that the implication of this provision is that conscientious objectors who rendered noncombatant service and wore the uniform were, under the 1942 amendments, to be admitted to citizenship. From this it is argued that since the 1942 amendments apply to those who have been in noncombatant, as well as combatant, military service, the amendment must be taken to include some who have rendered noncombatant service who are also conscientious objectors and who would be admitted to citizenship under the 1942 amendments, even though they made the same reservations as to the oath of allegiance as did the applicants in the Schwimmer, Macintosh and Bland cases. And it is said that although the 1942 amendments are not applicable to petitioner, who has not been in military service, the oath cannot mean one thing as to him and another as to those who have been in the noncombatant service.
To these suggestions there are two answers. One is that if the 1942 amendment be construed as including noncombatants who are also conscientious objectors, who are unwilling to take the oath without the reservations made by the applicants in the Schwimmer, Macintosh and Bland cases, the only effect would be to exempt noncombatant conscientious objectors from the requirements of the oath, which had clearly been made applicable to all objectors, including petitioner, by the Nationality Act of 1940, and from which petitioner was not exempted by the 1942 amendments. If such is the construction of the 1942 Act, there is no constitutional or statutory obstacle to Congress' taking such action. Congress if it saw fit could have admitted to citizenship those who had rendered noncombatant service, with a modified oath or without any oath at all. Petitioner has not been so exempted.
Since petitioner was never in the military or naval forces of the United States, we need not decide whether the 1942 amendments authorized any different oath for those who had been in noncombatant service than for others. The amendments have been construed as requiring the same oath, without reservations, from conscientious objectors, as from others. In re Nielsen, D.C., 60 F.Supp. 240. Not all of those who rendered noncombatant service wereconscientious objectors. Few were. There were others in the noncombatant service who had announced their conscientious objections to combatant service, who may have waived or abandoned their objections. Such was the experience in the First World War. See 'Statement Concerning the Treatment of Conscientious Objectors in the Army', prepared and published by direction of the Secretary of War, June 18, 1919. All such could have taken the oath without the reservations made by the applicants in the Schwimmer, Macintosh and Bland cases and would have been entitled to the benefits of the 1942 amendments provided they had performed military duty and had not refused to wear the uniform. The fact that Congress recognized indirection, in 8 U.S.C.Supp. IV, § 1004, 8 U.S.C.A. § 1004, that those who had appeared in the role of conscientious objectors, might become citizens by taking the oath of allegiance and establishing their attachment to the principles of the Constitution, does not show that Congress dispensed with the requirements of the oath as construed by this Court and plainly confirmed by Congress in the Nationality Act of 1940. There is no necessary inconsistency in this respect between the 1940 Act and the 1942 amendments. Without it repeal by implication is not favored. United States v. Borden Co., 308 U.S. 188, 198, 199, 203-206, 60 S.Ct. 182, 188, 189, 190 192, 84 L.Ed. 181; State of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 457, 65 S.Ct. 716, 726; United States Alkali Export Ass'n v. United States, 325 U.S. 196, 209, 65 S.Ct. 1120, 1128. The amendments and their legislative history give no hint of any purpose of Congress to relax, at least for persons who had rendered no military service, the requirements of the oath of allegiance and proof of attachment to the Constitution as this Court had interpreted them and as the Nationality Act of 1940 plainly required them to be interpreted. It is not the function of this Court to disregard the will of Congress in the exercise of its constitutional power.
Mr. Justice REED and Mr. Justice FRANKFURTER join in this opinion.

## Notes

* ↑ In the opinion of the writer there was evidence in United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889, from which the district court could and presumably did infer that applicant's behavior evidenced a disposition, present and future, actively to resist all laws of the United States and lawful commands of its officers for the furthering of any military enterprise of the United States, and actively to aid and encourage such resistance in others, and this the district court presumably concluded evidenced a want of attachment of the applicant to the principles of the Constitution which the naturalization law requires to be exhibited by the behavior of the applicant, preceding the application for citizenship.
* ↑ H.R.3547, 71st Cong., 1st Sess., 71 Cong.Rec.2184; H.R.297, 72d Cong., 1st Sess., 75 Cong.Rec.95; H.R.298, 72d Cong., 1st Sess., 75 Cong.Rec. 95; S. 3275, 72d Cong., 1st Sess., 75 Cong.Rec. 2600; H.R.1528, 73d Cong., 1st Sess., 77 Cong.Rec. 90; H.R.5170, 74th Cong., 1st Sess., 79 Cong.Rec.1356; H.R.8259, 75th Cong., 1st Sess., 81 Cong.Rec.9193; S.165, 76th Cong., 1st Sess., 84 Cong.Rec. 67.
* ↑ Hearings on H.R.3547, pp. 12, 22, 29-57, 73-109, 169, 180; Hearings on H.R.297, pp. 4-7, 10, 12, 15-19, 41-48, 53-56, 66-81, 147, 148.
* ↑ Hearings on H.R.3547, pp. 57-65, 73, 146-169, 181-212; Hearings on H.R.297, pp. 85-140.
* ↑ H.R.1528, 73d Cong., 1st Sess.; H.R.5170, 74th Cong., 1st Sess.; H.R.8259, 75th Cong., 1st Sess.
* ↑ Section 307(a) of the Nationality Act, 8 U.S.C. § 707(a), 8 U.S.C.A. § 707(a), provides that no person shall be naturalized unless for a period of five years preceding the filing of his petition for naturalization he 'has been and still is a person * * * attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.' Section 335(a) of the Nationality Act, 8 U.S.C. § 735(a), 8 U.S.C.A. § 735(a), provides that before an applicant for naturalization shall be admitted to citizenship, he shall take an oath in open court that inter alia 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.'
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