The Sovereign Citizen

Denaturalization and the Origins of the American Republic

Patrick Weil

• Publisher: University of Pennsylvania Press
• Year: 2012
• Print ISBN: 9780812222128
• eBook ISBN: 9780812206210
• Topic: Politica e relazioni internazionali
• Subtopic: Diritti civili in ambito legislativo

Present-day Americans feel secure in their citizenship: they are free to speak up for any cause, oppose their government, marry a person of any background, and live where they choose—at home or abroad. Denaturalization and denationalization are more often associated with twentieth-century authoritarian regimes. But there was a time when American-born and naturalized foreign-born individuals in the United States could be deprived of their citizenship and its associated rights. Patrick Weil examines the twentieth-century legal procedures, causes, and enforcement of denaturalization to illuminate an important but neglected dimension of Americans' understanding of sovereignty and federal authority: a citizen is defined, in part, by the parameters that could be used to revoke that same citizenship. The Sovereign Citizen begins with the Naturalization Act of 1906, which was intended to prevent realization of citizenship through fraudulent or illegal means. Denaturalization—a process provided for by one clause of the act—became the main instrument for the transfer of naturalization authority from states and local courts to the federal government. Alongside the federalization of naturalization, a conditionality of citizenship emerged: for the first half of the twentieth century, naturalized individuals could be stripped of their citizenship not only for fraud but also for affiliations with activities or organizations that were perceived as un-American. (Emma Goldman's case was the first and perhaps best-known denaturalization on political grounds, in 1909.) By midcentury the Supreme Court was fiercely debating cases and challenged the constitutionality of denaturalization and denationalization. This internal battle lasted almost thirty years. The Warren Court's eventual decision to uphold the sovereignty of the citizen —not the state—secures our national order to this day. Weil's account of this transformation, and the political battles fought by its advocates and critics, reshapes our understanding of American citizenship.

PART I

The Federalization of Naturalization

The only means given to the Government, therefore, to avoid the application of the law in different ways and thus destroying that uniformity of operation required by law—the Federal Constitution—is by cancellation proceedings. . . . It stops other courts of original jurisdiction from applying a contrary view of law and authoritatively advises the public, the administrative officers and the courts as to what the law is, for the information and guidance, thus making the rule of naturalization uniform in operation, as intended.

—Annual Report of the Commissioner
of Naturalization (1921)

CHAPTER 1

Denaturalization, the Main Instrument of Federal Power

Naturalization fraud was not a new phenomenon in nineteenth-century America, but it reached its peak in New York City in the November 3, 1868, election that placed Ulysses S. Grant in the presidency. In October 1868 alone, fifty-four thousand foreigners were naturalized in New York City by only two judges.¹ Grant ultimately lost the state by ten thousand votes to his opponent Democrat Horatio Seymour, a New York governor. A senatorial inquiry later showed that, in addition to New York, the Democrats won three other states—New Jersey, Georgia, and Louisiana—through fraud.²

In response, the Republican leadership in Congress proposed to cede exclusive jurisdiction for naturalization to the federal courts. But just as had happened after the contested 1844 election,³ a congressional inquiry did not lead to any major change in the law. Instead, western Republicans joined Democrats in opposing the granting of exclusive authority over naturalization proceedings to the federal courts.⁴ At the time, naturalization was a tool for political machines to increase the number of loyal voters on the eve of local, state, and federal elections. For the naturalized themselves, naturalization provided access to jobs restricted to those possessing American citizenship. Furthermore, naturalization was a means for the clerks of local courts to generate revenue.⁵ Finally, naturalization fraud was not a priority for reformers, who wanted to cure and purify citizenship in all its dimensions and who had placed the elimination of patronage jobs in civil service and reform of the ballot higher on their agenda.⁶

On April 1, 1890, the House of Representatives ordered a subcommittee of the Committee on the Judiciary to investigate the naturalization practices of American courts. In a March 1893 report, its chairman, Congressman William Oates of Alabama, described them as completely dysfunctional: “What a ridiculous farce! The making of citizens out of aliens, which should be a grave judicial proceeding in the exercise of a constitutional function, is left by the courts to its mere ministerial officers who can exercise no judicial power, but run the machine merely for the fees they can make out of it.”⁷

A 1902 scandal in St. Louis, in which several politicians were indicted for violating naturalization laws, finally turned the wheels of naturalization reform.⁸ But it was not until March 1903, in reaction to the assassination of President William McKinley,⁹ that Congress passed a bill prohibiting the naturalization of those opposed to organized government and who advocated the killing of government officials. The bill also included a provision that required courts to record the affidavits of applicants for citizenship and their witnesses and to check “the truth of every material fact requisite for naturalization.”¹⁰ At that time, many judges eventually discovered the requirements of the law; they undertook efforts to implement them, but they did so with uneven results: “some of the certificates [contained] less than 200 words and others 4000, some [created] new forms, others [used] the old ones.”¹¹

At around the same time that Congress launched legislative reform efforts, in April 1903, Joel Marx, special assistant to the U.S. attorney for the Southern District of New York, began an investigation into immigration fraud which had become endemic to New York, the epicenter of naturalization.¹² In a single two-year period, from April 1903 to May 1905, “through the efforts” of the U.S. attorney’s office, there were 791 arrests for naturalization fraud in New York, with 685 convictions. Of these, 418 arrests were based on either false testimony or an ineligible age of arrival in the United States while 89 others were for lacking the five years of residence required prior to naturalization.¹³

Based on the first results of Marx’s efforts—as presented to a federal grand jury in New York¹⁴—President Theodore Roosevelt called on December 7, 1903, “for the immediate attention of the Congress.” Railing against current naturalization practices, he exclaimed: “Forgeries and perjuries of shameless and flagrant character have been perpetrated, not only in the dense centers of population, but throughout the country; and it established beyond doubt that very many so-called citizens of the United States have no title whatever to that right, and are asserting and enjoying the benefits of the same through the grossest frauds.”¹⁵

One year later, President Roosevelt called for “a comprehensive revision of the naturalization laws” and for an inquiry into the subjects of citizenship, expatriation, and protection of Americans abroad, with a view towards mending the problems with appropriate legislation. Toward that end, Roosevelt suggested that naturalization authority be vested exclusively in certain courts that would require written naturalization applications and deliver regular reports to the Secretary of State. Under this plan, Congress would clarify the evidentiary standards that courts should apply. On March 1, 1905, Roosevelt appointed a commission to further investigate this proposal.¹⁶

By the time Roosevelt began lobbying for naturalization legislation, many of the previous obstacles to reform had dissipated. Perhaps most important, the interest of party machines in minting new voters before elections had declined. The inauguration of the secret ballot in the majority of the states by 1892 had made the control of voters at the ballot box difficult and even inefficient.¹⁷ The political parties thus no longer resisted naturalization reform.

Roosevelt’s new Presidential Commission on naturalization reform comprised three members: the chairman, Milton D. Purdy, from the Department of Justice; Gaillard Hunt, from the Department of State; and Richard K. Campbell, from the Department of Commerce and Labor. They were the foremost experts on naturalization in their respective departments. The Purdy Commission delivered its report on November 8, 1905. It would become the basis for the 1906 Naturalization Act, which, for the first time, created a mechanism for statutory denaturalization.¹⁸

Before the 1906 Act, in order to be naturalized, an alien was required to have resided in the United States for five years and within the state where the naturalizing court was located for one year.¹⁹ He had to have “behaved as a man of good character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”²⁰ Furthermore, the applicant was required to make a declaration of intention to become a citizen, before a court with naturalization power, at least two years prior to his actual application.²¹ Yet if the alien had come to the United States under eighteen years of age, he was exempted from the preliminary declaration of intention.²² In the Commission’s opinion, the exemption of the two-year waiting period, normally imposed after the declaration was registered, was the primary source of fraud. It encouraged youthful-looking immigrants who had attained the age of majority to commit perjury by swearing that they had arrived prior to their eighteenth birthday.

The Commission also identified several other deficiencies and inequities. For one, the court procedure was discreet and ex parte, taking place between the applicant and the court, with no “interested party on the other side to oppose the applicant’s claim, pose tough questions or dig up counter-evidence.”²³ Additionally, naturalization fees were entirely regulated by state law and varied widely. In California, for instance, there was no charge of any kind. But in Alabama, Florida, Georgia, Mississippi, Pennsylvania, South Carolina, and Texas, the fee was five dollars, and in Nevada, it was ten dollars.

Finally, the Commission cited competition among the courts as another source of fraudulent and improper naturalizations. Under the United States’ original federal naturalization law, passed on March 26, 1790, naturalization could be conferred by any common law court of record.²⁴ In 1802, additional requirements were added: in order to naturalize new citizens, courts should have a clerk and a seal.²⁵ This meant that more than five thousand courts were legally authorized to compete for the approximately hundred thousand original naturalization applications processed each year across the United States.²⁶ For the courts, naturalization was a business, and court clerks reaped the dividends: “One court bids for business against another, and the court which is strict in enforcing the law loses the fees which a more lax court gets.”²⁷ When state courts in New Jersey, New York, and Rhode Island began to require that “public notice . . .be given in advance of a hearing for naturalization, all the naturalization business went to the Federal Court, where the procedure was not strict so far.”²⁸

According to the Commission the bottom line was clear: uniformity in both fees and procedure were a necessity. In its view, the Constitution left no doubt as to the Congress’s right to provide for effective federal control of the naturalization machinery and to create a “uniform rule of Naturalization.”²⁹

The Commission recommended that only federal courts in cities of over a hundred thousand inhabitants be given the power to naturalize alien residents.³⁰ In addition, it proposed a uniform naturalization fee of at least seven dollars throughout the United States and a cap on the revenue that administration of the naturalization process could generate for clerks. Half of the collected fees, up to $3,000, would be subject to the court’s disposition; everything collected beyond that amount would go to the federal government.³¹ The Purdy Commission also suggested mandating permanent residence in the United States and requiring knowledge of English as preconditions for naturalization. And, in order to discourage fraud, naturalization would be forbidden in the thirty days preceding a presidential or congressional election.³²

Additionally, the commission proposed that the preliminary declaration of intention which meant “little or nothing,” be eliminated. As a substitute, all aliens would be required to file a petition at least ninety days before a hearing by the court. Meanwhile their petitions would be transmitted immediately to a new Bureau of Naturalization, which would be created within the Department of Commerce and Labor³³ to supervise the execution of the naturalization laws.³⁴

Ultimately, many of the Purdy Commission’s recommendations became part of the Naturalization Act of June 29, 1906. For example, the Act mandated that aspiring citizens be able to speak English. It also required applicants to have lived continuously in the United States during the five years directly prior to naturalization and to continue to reside in the United States afterward.

However, the Naturalization Act did not include the Commission’s proposal to eliminate the declaration of intention, nor did it provide that federal courts in large cities possess exclusive jurisdiction over naturalization. Indeed, many cities of more than a hundred thousand inhabitants did not possess a federal court. New Jersey, for example, had a federal court in Trenton but lacked one in Newark or Hudson City.³⁵ As a result, Congress preserved the authority of state courts to naturalize new citizens—with the condition that, in addition to having a seal and a clerk, the courts should exert universal competence.

Nevertheless, the new law did reinforce a certain degree of federal control over naturalization. Now, proceedings were required to be held in open court, and a representative of the United States would have the right to appear. Under the new procedures, the federal government could cross-examine the petitioner and his or her witnesses, as well as subpoena its own witnesses, produce relevant evidence, and “be heard in opposition to the granting of any petition in naturalization proceedings.”³⁶A new Bureau of Immigration and Naturalization within the Department of Commerce and Labor was given the task of enforcing naturalization laws.

In addition, Section 15 of the Act conferred upon U.S. attorneys the authority to institute denaturalization proceedings “in any court having jurisdiction to naturalize aliens . . .for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• Part I. The Federalization Of Naturalization
• Part II. A Conditional Citizenship
• Part III. War in the Supreme Court
• Conclusion
• Appendix 1. Emma Goldman, “A Woman Without a Country”
• Appendix 2. Chiefs of the Naturalization Bureau and Evolution of Departmental Responsibilities
• Appendix 3. Naturalization Cancellations in the United States, 1907–1973
• Appendix 4. Americans Expatriated, by Grounds and Year, 1945–1977
• Appendix 5. Supreme Court and Other Important Court Decisions Related to Denaturalization and Nonvoluntary Expatriation from Schneiderman and Participating Supreme Court Justices
• Notes
• Archival Sources and Interviews
• Index
• Acknowledgments