U.S. Supreme Court

SCHNEIDERMAN v. UNITED STATES, 320
U.S. 118 (1943)

Rehearing Denied Oct. 11, 1943

See 320 U.S. --, 64 S.Ct. 24, 88 L.Ed. --.

Mr. Wendell L. Willkie, of New York City, for petitioner.

Mr. Chas. Fahy, Sol. Gen., of Washington, D.C., for respondent.

Mr. Justice MURPHY delivered the opinion of the Court.

We brought this case here on certiorari, 314 U.S. 597, 62 S.Ct. 98, because of its importance and its possible relation to freedom of thought. The question is whether the naturalization of petitioner, an admitted member of the Communist Party of the United States, was properly set aside by the courts below some twelve years after it was granted. We agree with our brethren of the minority that our relations with Russia, as well as our views regarding its government and the merits of Communism are immaterial to a decision of this case. Our concern is with what Congress

meant by certain statutes and whether the Government has proved its case under them.

While it is our high duty to carry out the will of Congress in the performance of this duty we should have a jealous regard for the rights of petitioner. 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 naturalizati n, 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 ahve 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.

This proceeding was begun on June 30, 1939, under the provisions of 15 of the Act of June 29, 1906, 34 Stat. 596, 601, to cancel petitioner's certificate of citizenship granted in 1927. This section gives the United States the right and the duty to set aside and cancel certificates of citizenship on the ground of 'fraud' or on the ground that

they were 'illegally procured.' [^{Footnote 1} ] The complaint charged that the certificate had been illegally procured in that petitioner was not, at the time of his naturalization, and during the five years proceding his naturalization 'had not behaved as, 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,2 but in truth and in fact during all of said times, respondent (petitioner) was a member of and affiliated with and believed in and supported the principles of certain or-

ganizations then known as the Workers (Communist) Party of America and the Young Workers (Communist) League of America, whose principles were opposed to the principles of the Constitution of the United States and advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence.' The complaint also charged frandulent procurement in that petitioner concealed his Communist affiliation from the naturalization court. The Government proceeds here not upon the charge of fraud but upon the charge of illegal procurement.

This is not a naturalization proceeding in which the Government is being asked to confer the privilege of citizenship upon an applicant. Instead the Government seeks to turn the clock back twelve years after full citizenship was conferred upon petitioner by a judicial decree, and to deprive him of the priceless benefits that derive from that status. In its consequences it is more serious than a taking of one's property, or the imposition of a fine or other penalty. For it is safe to assert that nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance. By many it is regarded as the highest hope of civilized men. This does not mean that once granted to an alien, citizenship cannot be revoked or cancelled on legal grounds under appropriate proof. But such a right once conferred should not be taken away without the clearest sort of justification and proof. So, whatever may be the rule in a naturalization proceeding (see United States v. Manzi,  276 U.S. 463, 467 , 48 S.Ct. 328, 329), in an action instituted under 15 for the purpose of depriving one of the precious right of citizenship previously conferred we believe the facts and the law should be construed as far as is reasonably possible in favor of the citizen. Especially is this so when the attack is made long after the time when the certificate of

citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness. It is not denied that the burden of proof is on the Government in this case. For reasons presently to be stated this burden must be met with evidence of a clear and convincing character that when citizenship was conferred upon petitioner in 1927 it was not done in accordance with strict legal requirements.

We are dealing here with a court decree entered after an opportunity to be heard. At the time petitioner secured his certificate of citizenship from the federal district court for the Southern District of California notice of the filing of the naturalization petition was required to be given ninety days before the petition was acted on ( 6 of the Act of 1906 ), the hearing on the petition was to take place in open court ( 9), and the United States had the right to appear, to cross-examine petitioner and his witnesses, to introduce evidence, and to oppose the petition ( 11). In acting upon the petition the district court exercised the judicial power conferred by Article III of the Constitution, and the Government had the right to appeal from the decision granting naturalization. Tutun v. United States,  270 U.S. 568 , 46 S.Ct. 425. The record before us does not reveal the circumstances under which petitioner was naturalized except that it took place in open court. We do not know whether or not the Government exercised its right to appear and to appeal. Whether it did or not, the hard fact remains that we are here re-examining a judgment, and the rights solemnly conferred under it.

This is the first case to come before us in which the Government has sought to set aside a decree of naturalization years after it was granted on a charge that the finding of attachment was erroneous. Accordingly for the first time we have had to consider the nature and scope of the Government's right in a denaturalization proceeding to re-examine a finding and judgment of attachment

upon a charge of illegal procurement. Because of the view we take of this case we do not reach, and therefore do not consider, two questions which have been raised concerning the scope of that right.

The first question is whether, aside from grounds such as lack of jurisdiction or the kind of fraud which traditionally vitiates judgments, cf. United States v. Throckmorton,  98 U.S. 61 ; Kibbe v. Benson, 17 Wall. 624, Congress can constitutionally attach to the exercise of the judicial power under rticle III of the Constitution, authority to re-examine a judgment granting a certificate of citizenship after that judgment has become final by exhaustion of the appellate process or by a failure to invoke it. [^{Footnote 3} ]

The second question is whether under the Act of 1906 as it was in 1927 the Government, in the absence of a claim of fraud and relying wholly upon a charge of illegal procurement, can secure a de novo re-examination of a naturalization court's finding and judgment that an applicant for citizenship was attacked to the principles of the Constitution.

We do not consider these questions. For though we assume, without deciding, that in the absence of fraud a certificate of naturalization can be set aside under 15 as 'illegally procured' because the finding as to attachment would later seem to be erroneous, we are of the

opinion that this judgment should be reversed. If a finding of attachment can be so reconsidered in a denaturalization suit, our decisions make it plain that the Government needs more than a bare preponderance of the evidence to prevail. The remedy afforded the Government by the denaturalization statute has been said to be a narrower one than that of direct appeal from the granting of a petition. Tutun v. United States,  270 U.S. 568, 579 , 46 S.Ct. 425, 427; cf. United States v. Ness,  245 U.S. 319, 325 , 38 S.Ct. 118, 121. Johannessen v. United States states that a certificate of citizenship is 'an instrument granting political privileges, and open like other public grants to be revoked if and when it shall be found to have been unlawfully or fraudulently procured. It is in this respect closely analogous to a public grant of land ....'  225 U.S. 227, 238 , 32 S.Ct. 613, 615. See, also, Tutun v. United States, supra. To set aside such a grant the evidence must be 'clear, unequivocal, and convincing'-'it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt'. Maxwell Land-Grant Case (United States v. Maxwell Land-Grant Co.),  121 U.S. 325, 381 , 7 S.Ct. 1015, 1029; United States v. San Jacinto Tin Co.,  125 U.S. 273, 300 , 8 S.Ct. 850, 864; cf. United States v. Rovin, D.C., 12 F.2d 942, 944. See Wigmore, Evidence, (3d Ed.) 2498. This is so because rights once conferred should not be lightly revoked. And more especially is this true when the rights are precious and when they are conferred by solemn adjudication, as is the situation when citizenship is granted. The Government's evidence in this case does not measure up to this exacting standard.

Certain facts are undisputed. Petitioner came to this country from Russia in 1907 or 1908 when he was approximately three. In 1922, at the age of sixteen, he became a charter member of the Young Workers (now Communist) League in Los Angeles and remained a member until 1929 or 1930. In 1924, at the age of eighteen, he filed his declaration of intention to become a citizen. Later in the same year or early in 1925 he became a member of the

Workers Party, the predecessor of the Communist Party of the United States. That membership has continued to the present. His petition for naturalization was filed on January 18, 1927, and his certificate of citizenship was issued on June 10, 1927, by the United States District Court for the Southern District of California. He had not been arrested or subjected to censure prior to 19274 and there is nothing in the record indicating that he was ever connected with any overt illegal or violent action or with any disturbance of any sort.

For its case the United States called petitioner, one Humphreys, a former member of the Communist Party, and one Hynes, a Los Angeles police officer formerly in charge of the radical squad, as witnesses, and introduced in evidence a number of documents. Petitioner testified on his own behalf, introduced some documentary evidence, and read into the record transcripts of the testimony of two university professors given in another proceeding.

Petitioner testified to the following: As a boy he lived in Los Angeles in poverty stricken circumstances and joined the Young Workers League to study what the principles of Communism had to say about the conditions of society. He considered his membership and activities in the League and the Party during the five-year period between the ages of sixteen and twenty-one before he was naturalized, as an attempt to investigate and study the causes and reasons behind social and economic conditions. Meanwhile he was working his way through night high school and college. From 1922 to about 1925 he was 'educational director' of the League. The duties of this non-salaried position were to organize classes, open to the public, for the study of Marxist theory, to register students and to send out notices for meetings; petitioner did no

teaching. During 1925 and 1926 he was corresponding secretary of the Party in Los Angeles; this was a clerical, not an executive position. In 1928 he became an organizer or official spokesman for the League. His first executive position with the Party came in 1930 when he was made an organizational secretary first in California, then in Connecticut and later in Minnesota where he was the Communist Party candidate for governor in 1932. Since 1934 he has been a member of the Party's National Committee. At present he is secretary of the Party in California.

Petitioner testified further that during all the time he has belonged to the League and the Party he has subscribed to the principles of those organizations. He stated that he 'believed in the essential correctness of the Marx theory as applied by the Communist Party of the United States', that he subscribed 'to the philosophy and principles of Socialism as manifested in the writings of Lenin', and that his understanding and interpretation of the program, principles and practice of the Party since he joined 'were and are essentially the same as those enunciated' in the Party's 1938 Constitution. He denied the charges of the complaint and specifically denied that he or the Party advocated the overthrow of the Government of the United States by force and violence, and that he was not attached to the principles of the Constitution. He considered membership in the Party compatible with the obligations of American citizenship. He stated that he believed in retention of personal property for personal use but advocated social ownership of the means of production and exchange, with compensation to the owners. He believed and hoped that socialization could be achieved here by democratic processes but history showed that the ruling minority has always used force against the majority before surrendering power. By dictatorship of the proletariat petitioner meant that the 'majority of the people

shall really direct their own destinies and use the instrument of the state for these truly democratic ends.' He stated that he would bear arms against his native Russia if necessary.

Humphreys testified that he had been a member of the Communist Party and understood he was expelled because he refused to take orders from petitioner. e had been taught that present forms of government would have to be abolished 'through the dictatorship of the proletariat' which would be established by 'a revolutionary process'. He asserted that the program of the Party was the socialization of all property without compensation. With regard to advocacy of force and violence he said: 'the Communist Party took the defensive, and put the first users of force upon the capitalistic government; they claimed that the capitalistic government would resist the establishment of the Soviet system, through force and violence, and that the working class would be justified in using force and violence to establish the Soviet system of society'.

Hynes testified that he had been a member of the Party for eight months in 1922. He stated that the Communist method of bringing about a change in the form of government is one of force and violence; he based this statement upon: 'knowledge I have gained as a member in 1922 and from what further knowledge I have gained from reading various official publications, published and circulated by the Communist Party and from observation and actual contact with the activities of the Communist Party ....'5 On cross examination Hynes admitted that he never attempted a philosophic analysis of the literature he read, but only read it to secure evidence, reading and underscoring those portions which, in his opinion,

'had to do with force or violence or overthrowing of this system of government other than by lawful means provided in the Constitution.' He testified that he never saw any behavior on petitioner's part that brought him into conflict with any law.

The testimony of the two professors discussed Marxian theory as evidenced by the writings of Marx, Engels and Lenin, and concluded that it did not advocate the use of force and violence as a method of attaining its objective.

In its written opinion the district court held that petitioner's certificate of naturalization was illegally procured because the organizations to which petitioner belonged were opposed to the principles of the Constitution and advised, taught and advocated the overthrow of the Government by force and violence, and therefore petitioner, 'by reason of his membership in such organizations and participation in their activities, was not 'attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same." 33 F.Supp. 510, 513.

The district court also made purported findings of facts to the effect that petitioner was not attached to the principles of the Constitution and well disposed to the good order and happiness of the same, and was a disbeliever in organized government, that he fraudulently concealed his membership in the League and the Party from the naturalization court, and that his oath of allegiance was false. The conclusion of law was that the certificate was illegally and fraudulently procured. The pertinent findings of fact on these points, set forth in the margin,6 are but the most

general conclusions of ultimate fact. It is impossible to tell from them upon what underlying facts the court relied, and whether proper statutory standards were observed. If it were not rendered unnecessary by the broad view we take of this case, we would be inclined to reverse

and remand to the district court for the purpose of making adequate findings.

The Circuit Court of Appeals affirmed on the ground that the certificate was illegally procured, holding that the finding that petitioner's oath was false was not 'clearly erroneous'. 9 Cir., 119 F.2d 500.7 We granted certiorari, 314 U.S. 597, 62 S.Ct. 98, and after having heard argument and reargument, now reverse the judgments below.

I.

The Constitution authorizes Congress 'to establish an uniform Rule of Naturalization' (Art. I, 8, cl. 4), and we may assume that naturalization is a privilege, to be given or withheld on such conditions as Congress sees fit. Cf.

United States v. Macintosh,  283 U.S. 605, 615 , 51 S.Ct. 570, 572, and the dissenting opinion of Chief Justice Hughes, 283 U.S. at page 627, 51 S.Ct. at page 576. See also Tutun v. United States,  270 U.S. 568, 578 , 46 S.Ct. 425, 427; Turner v. Williams,  194 U.S. 279 , 24 S.Ct. 719. But because of our firmly rooted tradition of freedom of belief, we certainly will not presume in construing the naturalization and denaturalization acts that Congress meant to circumscribe liberty of political thought by general phrases in those statutes. As Chief Justice Hughes said in dissent in the Macintosh case, such general phrases 'should be construed, not in opposition to, but in accord with, the theory and practice of our Government in relation to freedom of conscience.' 283 U.S. at page 635, 51 S.Ct. at page 579. See also Holmes, J., dissenting in United States v. Schwimmer,  279 U.S. 644 , 653-655, 49 S.Ct. 448, 451.

When petitioner was naturalized in 1927, the applicable statutes did not proscribe Communist beliefs or affiliation as such. [^{Footnote 8} ] They did forbid the naturalization of disbelievers in organized government or members of organizations teaching such disbelief. Polygamists and advocates of political assassination were also barred. [^{Footnote 9} ] Applicants for citizenship were required to take an oath to support the Constitution, to bear true faith and allegiance to the same and the laws of the United States, and to renounce all allegiance to any foreign prince, potentate, state or sovereignty. [^{Footnote 10} ] And, it was to 'be made to appear to the

satisfaction of the court' of naturalization that immediately preceding the application, the applicant 'has resided continuously within the United States five years 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.' [^{Footnote 11} ] Whether petitioner satisfied this last requirement is the crucial issue in this case.

To apply the statutory requirement of attachment correctly to the proof adduced, it is necessary to ascertain its meaning. On its face the statutory criterion is not attachment to the Constitution, but behavior for a period of five years as a man attached to its principles and well disposed to the good order and happiness of the United States. Since the normal connotation of behavior is conduct, there is something to be said for the proposition that the 1906 Act created a purely objective qualification, limiting inquiry to an applicant's previous conduct. [^{Footnote 12} ] If this

objective standard is the requirement, petitioner satisfied the statute. His conduct has been law abiding in al respects. According to the record he has never been arrested, or connected with any disorder, and not a single written or spoken statement of his, during the relevant period from 1922 to 1927 or thereafter, advocating violent overthrow of the Government, or indeed even a statement, apart from his testimony in this proceeding, that he desired any change in the Constitution has been produced. The sole possible criticism is petitioner's membership and activity in the League and the Party, but those memberships qua memberships, were immaterial under the 1906 Act.

In United States v. Schwimmer,  279 U.S. 644 , 49 S.Ct. 448, and United States v. Macintosh, 283
U.S. 605 , 51 S.Ct. 570, however, it was held that the statute created a test of belief-that an applicant under the 1906 Act must not only behave as a man attached to the principles of the Constitution, but must be so attached in fact at the time of naturalization. We do not stop to reexamine this construction for even if it is accepted the result is not changed. As mentioned before, we agree with the statement of Chief Justice Hughes in dissent in Macintosh's case that the behavior requirement 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.' 283 U.S. at page 635, 51 S.Ct. at page 579. See also, the dissenting opinion of Justice Holmes in the Schwimmer case, supra, 279 U.S. 653-655, 49 S.Ct. 451. As pointed out before, this is a denaturalization proceeding, and it is a judgment, not merely a claim or a grant, which is being attacked. Assuming as we have that the United States is entitled to attack a finding of attachment upon a charge of illegality, it must sustain the heavy burden which then rests upon it to prove lack of attachment by 'clear, unequivocal, and convincing' evidence which does not leave the issue in doubt. When the attachment requirement is construed as indicated above, we do not think the Government has carried its burden of proof.

The claim that petitioner was not in fact attached to the Constitution and well disposed to the good order and happiness of the United States at the time of his naturalization and for the previous five year period is twofold: First, that he believed in such sweeping changes in the Constitution that he simply could not be attached to it; Second, that he believed in and advocated the overthrow by force and violence of the Government, Constitution and laws of the United States.

In support of its position that petitioner was not in fact attached to the principles of the Constitution because of

his membership in the League and the Party, the Government has directed our attention first to petitioner's testimony that he subscribed to the principles of those organizations, and then to certain alleged Party principles and statements by Party Leaders which are said to be fundamentally at variance with the principles of the Constitution. At this point it is appropriate to mention what will be more fully developed later- that under our traditions beliefs are personal and not a matter of mere association, and that men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles. Said to be among those Communist principles in 1927 are: the abolition of private property without compensation; the erection of a new proletarian state upon the ruins of the old bourgeois state; the creation of a dictatorship of the proletariat; denial of political rights to others than members of the Party or of the proletariat; and the creation of a world union of soviet republics. Statements that American democracy 'is a fraud'13 and that the purposes of the Party are 'utterly antagonistic to the purposes for which the American democracy, so called, was formed,14 are stressed.

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. But we do not think the government has carried its burden of proving by evidence which does not leave the issue in doubt that petitioner was not in fact attached to the principles of the Constitution and well disposed to the good order and happiness of the United States when he was naturalized in 1927.

The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. [^{Footnote 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. Cf. National Prohibition Cases (State of Rhode I land v. Palmer),  253 U.S. 350 , 40 S.Ct. 486, 588. 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.

United States v. Rovin, D.C., 12 F.2d 942, 944, 945.16 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.' United States v. Schwimmer, supra (  279 U.S. 644 , 49 S.Ct. 451) (dissent). 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.' Id. See, also,

Chief Justice Hughes dissenting in United States v. Macintosh, supra, 283 U.S. at page 635, 51 S.Ct. at page 579. 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.

Without discussing the nature and extent of those permissible changes, the Government insists that an alien must believe in and sincerely adhere to the 'general political philosophy' of the Constitution. [^{Footnote 19} ] Petitioner is said to be opposed to that 'political philosophy', the minimum requirements of which are set forth in the margin. [^{Footnote 20} ] It was argued at the bar that since Article V contains no limitations, a person can be attached to the Constitution no matter how extensive the changes are that he desires, so long as he seeks to achieve his ends within the framework of Article V. But we need not consider the validity of this extreme position for if the Government's construction is accepted, it has not carried its burden of proof even under its own test.

The district court did not state in its findings what principles held by petitioner or by the Communist Party were opposed to the Constitution and indicated lack of attachment. See Note 6, ante. In its opinion that court merely relied upon In re Saralieff, D.C., 59 F.2d 436, and United States v. Tapolcsanyi, 3 Cir., 40 F.2d 255, without fresh examination of the question in the light of the present record.

33 F.Supp. 510. The Circuit Court of Appeals deduced as Party principles roughly the same ones which the Government here presses and stated 'these views are not those of our Constitution.' 119 F.2d at pages 503, 504.

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. [^{Footnote 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

the changes which petitioner testified he desired in the Constitution.

Turning now to a seriatim consideration of what the Government asserts are principles of the Communist Party, which petitioner believed and which are opposed to our Constitution, our conclusion remains the same- the Government has not proved by 'clear, unequivocal and convincing' evidence that the naturalization court could not have been satisfied that petitioner was attached to the principles of the Constitution when he was naturalized.

We have already disposed of the principle of nationalization of the agents of production and exchange with or without compensation. The erection of a new proletariat state upon the ruins of the old bourgeois state, and the creation of a dictatorship of the proletariat may be considered together. The concept of the dictatorship of the proletariat is one loosely used, upon which more words than light have been shed. Much argument has been directed as to how it is to be achieved, but we have been offered no precise definition here. In the general sense the term may be taken to describe a state in which the workers or the masses, rather than the bourgeoisie or capitalists are the dominant class. Theoretically it is control by a class, not a dictatorship in the sense of absolute and total rule by one individual. So far as the record before us indicates, the concept is a fluid one, capable of adjustment to different conditions in different countries. There are only meager indications of t e form the 'dictatorship' would take in this country. It does not appear that it would necessarily mean the end of representative government or the federal system. The Program and Constitution of the Workers Party (1921-24) criticized the constitutional system of checks and balances, the Senate's power to pass on legislation, and the involved procedure

for amending the Constitution, characterizing them as devices designed to frustrate the will of the majority. 22 The 1928 platform of the Communist Party of the United States, adopted after petitioner's naturalization and hence not strictly relevant, advocated the abolition of the Senate, of the Supreme Court, and of the veto power of the President, and replacement of congressional districts with 'councils of workers' in which legislative and executive power would be united. These would indeed be significant changes in our present government structure-changes which it is safe to say are not desired by the majority of the people in this country-but whatever our personal views, as judges we cannot say that a person who advocates their adoption through peaceful and constitutional means is not in fact attached to the Constitution-those institutions are not enumerated as necessary in the Government's test of 'general political philosophy', and it is conceivable that 'ordered liberty' could be maintained without them. The Senate has not gone free of criticism and one object of the Seventeenth Amendment was to make it more responsive to the public will. [^{Footnote 23} ] The unicameral legislature is not unknown in the country. [^{Footnote 24} ] It is true that this Court has played a large part in the unfolding of the constitutional plan (sometimes too much so in the opinion of some observers), but we would be arrogant indeed if we presumed that a government of laws, with protection for minority groups, would be impossible without it. Like other agencies of government, this Court at various times in its existence has not escaped

the shafts of critics whose sincerity and attachment to the Constitution is beyond question-critics who have accused it of assuming functions of judicial review not intended to be conferred upon it, or of abusing those functions to thwart the popular will, and who have advocated various remedies taking a wide range. 24a And it is hardly conceivable that the consequence of freeing the legislative branch from the restraint of the executive veto would be the end of constitutional government.24b By this discussion we certainly do not mean to indicate that we would favor such changes. Our preference and aversions have no bearing here. 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. Cf. Justice Holmes' dissent in United States v. Schwimmer, supra. We do not reach, however the question whether petitioner was attached to the principles of the Co stitution if he believed in denying political and civil rights to persons not members of the Party or of the so-called proletariat, for on the basis of the record before us it has not been clearly shown that such denial was a principle of the organizations to which petitioner belonged.

Since it is doubtful that this was a principle of those organizations, it is certainly much more speculative whether this was part of petitioner's philosophy. Some of the documents in the record indicate that 'class enemies' of the proletariat should be deprived of their political rights. 25 Lenin, however, wrote that this was not necessary to realize the dictatorship of the proletariat. [^{Footnote 26} ] The party's 1928 platform demanded the unrestricted right to organize, to strike and to picket and the unrestricted right of free speech, free press and free assemblage for the working class. The 1928 Program of the Communist International states that the proletarian State will grant religious freedom, while at the same time it will carry on anti-religious propaganda.

We should not hold that petitioner is not attached to the Constitution by reason of his possible belief in the creation of some form of world union of soviet republics unless we are willing so to hold with regard to those who believe in Pan-Americanism, the League of Nations, Union Now, or some other form of international collaboration

or collective security which may grow out of the present holocaust. A distinction here would be an invidious one based on the fact that we might agree with or tolerate the latter but dislike or disagree with the former.

If room is allowed, as we think Congress intended, for the free play of ideas, none of the foregoing principles which might be held to stand forth with sufficient clarity to be imputed to petitioner on the basis of his membership and activity in the League and the Party and his testimony that he subscribed to the principles of those organizations, is enough, whatever our opinion as to their merits, to prove that he was necessarily not attached to the Constitution when he was naturalized. The cumulative effect is no greater.

Apart from the question whether the alleged principles of the Party which petitioner assertedly believed were so fundamentally opposed to the Constitution that he was not attached to its principles in 1927, the Government contends that petitioner was not attached because he believed in the use of force and violence instead of peaceful democratic methods to achieve his desires. In support of this phase of its argument the Government asserts that the organizations with which petitioner was actively affiliated advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence, and that petitioner therefore believed in that method of governmental change.

Apart from his membership in the League and the Party, the recor is barren of any conduct or statement on petitioner's part which indicates in the slightest that he believed in and advocated the employment of force and violence, instead of peaceful persuasion, as a means of attaining political ends. To find that he so believed and advocated it is necessary, therefore, to find that such was a principle of the organizations to which he belonged and then impute that principle to him on the basis of his

activity in those organizations and his statement that he subscribed to their principles. The Government frankly concedes that 'it is normally true ... that it is unsound to impute to an organization the views expressed in the writings of all its members, or to impute such writings to each member ....'27 But the Government contends, however, that it is proper to impute to petitioner certain excerpts from the documents in evidence upon which it particularly relies to show that advocacy of force and violence was a principle of the Communist Party of the United States in 1927, because those documents were official publications carefully supervised by the Party, because of the Party's notorious discipline over its members, and because petitioner was not a mere 'rank and file or accidental member of the Party', but 'an intelligent and educated individual' who 'became a leader of these organizations as an intellectual revolutionary.' [^{Footnote 28} ] Since the immediate problem is the determination with certainty of petitioner's beliefs from 1922 to 1927, events and writings since that time have little relevance, and both parties have attempted to confine themselves within the limits of that critical period.

For some time the question whether advocacy of governmental overthrow by force and violence is a principle of the Communist Party of the United States has perplexed courts, administrators, legislators, and students. On varying records in deportation proceedings some courts have held that administrative findings that the Party did so advocate was not so wanting in evidential support as to amount to a denial of due process,29 others have held

to the contrary on different records,30 and some seem to have taken the position that they will judicially notice that force and violence is a Party Principle. 31 This Court has never passed upon the question whether the Party does so advocate, and it is unnecessary for us to do so now.

With commendable candor the Government admits the presence of sharply conflicting views on the issue of force and violence as a Party principle, 32 and it also concedes that 'some communist literature in respect of force and violence is susceptible of an interpretation more rhetorical than literal'. 33 It insists, however, that excerpts from the documents on which it particularly relies, are enough o show that the trial court's finding that the Communist Party advocated violent overthrow of the Government was not 'clearly erroneous', and hence can not be set aside. [^{Footnote 34} ] As previously pointed out, the trial court's findings do not indicate the bases for its conclusions, but the documents published prior to 1927 stressed by the Government, with the pertinent excerpts noted in the margin,

are: The Communist Manifesto of Marx and Engels;35 The State and Revolution of Lenin;36 The Statutes,

Theses and Conditions of Admission to the Communist International;37 and The Theory and Practice of Lenin-

ism, written by Stalin. [^{Footnote 38} ] The Government also sets forth excerpts from other documents which are entitled to little

weight because they were published after the critical period. [^{Footnote 39} ]

The bombastic excerpts set forth in Notes 35 to 38 inclusive, upon which the Government particularly relies, lend considerable support to the charge. We do not say that a reasonable man could not possibly have found, as the district court did, that the Communist Party in 1927 actively urged the overthrow of the Government by force and violence. [^{Footnote 40} ] But that is not the issue here. We are not concerned with the question whether a reasonable man might so conclude, nor with the narrow issue whether ad-

ministrative findings to that effect are so lacking in evidentiary support as to amount to a denial of due process. As pointed out before, this is a denaturalization proceeding in which, if the Government is entitled to attack a finding of attachment as we have assumed, the burden rests upon it to prove the alleged lack of attachment by 'clear, unequivocal and convincing' evidence. That burden has not been carried. The Government has not proved that petitioner's beliefs on the subject of force and violence were such that he was not attached to the Constitution in 1927.

In the first place this phase of the Government's case is subject to the admitted infirmities of proof by imputation. [^{Footnote 41} ] The difficulties of this method of proof are here increased by the fact that there is, unfortunately, no absolutely accurate test of what a political party's principles are. [^{Footnote 42} ] Political writings are often over-exaggerated polemics bearing the imprint of the period and the place in which written. [^{Footnote 43} ] Philosophies cannot generally be studied in vacuo. Meaning may be wholly distorted by lifting sentences out of context, instead of construing them as part of an organic whole. Every utterance of party leaders is not taken as party gospel. And we would deny our experience as men if we did not recognize that official party programs are unfortunately often opportunistic de-

vices as much honored in the breach as in the observance. [^{Footnote 44} ] On the basis of the present record we cannot say that the Communist Party is so different in this respect that its principles stand forth with perfect clarity, and especially is this so with relation to the crucial issue of advocacy of force and violence, upon which the Government admits the evidence is sharply conflicting. The presence of this conflict is the second weakness in the Government's chain of proof. It is not eliminated by assiduously adding further excerpts from the documents in evidence to those culled out by the Government.

The reality of the conflict in the record before us can be pointed out quickly. Of the relevant prior to 1927 documents relied upon by the Government three are writings of outstanding Marxist philosophers, and leaders, the fourth is a world program. [^{Footnote 45} ] The Manifesto of 1848 was proclaimed in an autocratic Europe engaged in suppressing the abortive liberal revolutions of that year. With this background, its tone is not surprising. [^{Footnote 46} ] Its authors later stated, however, that there were certain countries, 'such as the United States and England in which the workers may hope to secure their ends by peaceful means.' [^{Footnote 47} ] Lenin doubted this in his militant work, The State and Revolution, but this was written on the eve of the Bolshevist revolution in Russia and may be interpreted as intended in part to justify the Bolshevist

course and refute the anarchists and social democrats. [^{Footnote 48} ] Stalin declared that Marx's exemption for the United States and England was no longer valid. 49 He wrote, however, that 'the proposition that the prestige of the Party can be built upon violence ... is absurd and absolutely incompatible with Leninism. 50 And Lenin wrote 'In order to obtain the power of the state the class conscious workers must win the majority to their side. As long as no violence is used against the masses, there is no other road to power. We are not Blanquists, we are not in favor of the seizure of power by a minority.' 51 The 1938 Constitution of the Communist Party of the United States, which petitioner claimed to be the first and only written constitution ever officially adopted by the Party and which he asserted enunciated the principles of the Party as he understood them from the beginning

of his membership, ostensibly eschews resort to force and violence as an element of Party tactics.^Footnote

A tenable conclusion from the foregoing is that the Party in 1927 desired to achieve its purpose by peaceful and democratic means, and as a theoretical matter justified the use of force and violence only as a method of preventing an attempted forcible counter-overthrow once the Party had obtained control in a peaceful manner, or as a method of last resort to enforce the majority will if at some indefinite future time because of peculiar circumstances constitutional or peaceful channels were no longer open.

There is a material difference between agitation and exhortation calling for present violent action which creates a clear and present danger of public disorder or other substantive evil, and mere doctrineal justification or prediction of the use of force under hypothetical conditions at some indefinite future time-prediction that is not calculated or intended to be presently acted upon, thus

leaving opportunity for general discussion and the calm processes of thought and reason. Cf. Bridges v. California,  314 U.S. 252 , 62 S.Ct. 190, and Justice Brandeis' concurring opinion in Whitney v. California,  274 U.S. 357 , 372-380, 47 S.Ct. 641, 647-650. See also Taylor v. Mississippi,  319 U.S. 583 , 63 S.Ct. 1200, 87 L.Ed. --, this term. Because of this difference we may assume that Congress intended, by the general test of 'attachment' in the 1906 Act, to deny naturalization to persons falling into the first category but not to those in the second. Such a construction of the statute is to be favored because it preserves for novitiates as well as citizens the full benefit of that freedom of thought which is a fundamental feature of our political institutions. Under the conflicting evidence in this case we cannot say that the Government has proved by such a preponderance of the evidence that the issue is not in doubt, that the attitude of the Communist Party of the United States in 1927 towards force and violence was not susceptible of classification in the second category. Petitioner testified that he subscribed to this interpretation of Party principles when he was naturalized, and nothing in his conduct is inconsistent with that testimony. We conclude that the Government has not carried its burden of proving by 'clear, unequivocal, and convincing' evidence which does not leave 'the issue in doubt', that petitioner obtained his citizenship illegally. In so holding we do not decide what interpretation of the Party's attitude toward force and violence is the most probable on the basis of the present record, or that petitioner's testimony is acceptable at face value. We hold only that where two interpretations of an organization's program are possible, the one reprehensible and a bar to naturalization and the other permissible, a court in a denaturalization proceeding, assuming that it can re-examine a finding of attachment upon a charge of illegal procurement, is not justified in canceling a certificate of citizenship by imputing the reprehensible interpretation to a

member of the organization in the absence of overt acts indicating that such was his interpretation. So uncertain a chain of proof does not add up to the requisite 'clear, unequivocal, and convincing' evidence for setting aside a naturalization decree. Were the law otherwise, valuable rights would rest upon a slender reed, and the security of the status of our naturalized citizens might depend in considerable degree upon the political temper of majority thought and the stresses of the times. Those are consequences foreign to the best traditions of this nation, and the characteristics of our institutions.

II.

This disposes of the issues framed by the Government's complaint which are here pressed. As additional reasons for its conclusion that petitioner's naturalization was fraudulently and illegally procured the district court found, however, that petitioner was a disbeliever in, and a member of an organization teaching disbelief in organized government,53 and that his oath of allegiance, required by 8 U.S.C. 381, 8 U.S.C.A. 381, was false. These issues are outside the scope of the complaint,54 as is another ground urged

in support of the judgment below as to which the district court made no findings. [^{Footnote 55} ] Because they are outside the scope of the complaint, we do not consider them. As we said in De Jonge v. Oregon, 'Conviction upon a charge not made would be sheer denial of due process.'  299 U.S. 353, 362 , 57 S.Ct. 255, 259. A denaturalization suit is not a criminal proceeding. But neither is it an ordinary civil action since it involves an important adjudication of status. Consequently we think the Government should be limited, as in a criminal proceeding, to the matters charged in its complaint.

One other ground advanced in support of the judgment below was not considered by the lower courts and does not merit detailed treatment. It is that petitioner was not entitled to naturalization because he was deportable in 1927 under the Immigration Act of 1918 (40 Stat. 1012, as amended by 41 Stat. 1008, 8 U.S.C. 137, 8 U.S.C.A. 137) as an alien member of an organization advocating overthrow of the Government of the United States by force and violence. This issue is answered by our prior discussion of the evidence in this record relating to force and violence. Assuming that deportability at the time of naturalization satisfies the requirement of illegality under 15 which governs this proceeding, the same failure to establish adequately the attitude toward force and violence of the

organizations to which petitioner belonged forbids his denaturalization on the ground of membership.

The judgment is reversed and the cause remanded to the Circuit Court of Appeals for further proceedings in conformity with this opinion.

It is so ordered.

Reversed and remanded with directions.

Mr. Justice DOUGLAS, concurring.

I join in the Court's opinion and agree that petitioner's want of attachment in 1927 to the principles of the Constitution has not been shown by 'clear, unequivocal and convincing' evidence. The United States, when it seeks to deprive a person of his American citizenship, carries a heavy burden of showing that he procured it unlawfully. That burden has not been sustained on the present record, as the opinion of the Court makes plain, unless the most extreme views within petitioner's party are to be imputed or attributed to him and unless all doubts which may exist concerning his beliefs in 1927 are to be resolved against him rather than in his favor. But there is another view of the problem raised by this type of case which is so basic to merit separate statement.

Sec. 15 of the Naturalization Act gives the United States the power and duty to institute actions to set aside and cancel certificates of citizenship on the ground of 'fraud' or on the ground that they were 'illegally procured'. Sec. 15 'makes nothing fraudulent or unlawful that was honest and lawful when it was done. It imposes no new penalty upon the wrongdoer. But if, after fair hearing, it is judicially determined that by wrongful conduct he has obtained a title to citizenship, the act provides that he shall be deprived of a privilege that was never rightfully his.' Johannessen v. United States,  225 U.S. 227, 242 , 243 S., 32 S.Ct. 613, 617. And see Luria v. United States,  231 U.S. 9, 24 , 34 S.Ct. 10, 13. 'Wrongful conduct'-like the statutory words 'fraud' or 'illegally procured'-are strong words. Fraud con-

notes perjury, concealment, falsification, misrepresentation or the like. But a certificate is illegally, as distinguished from fraudulently, procured when it is obtained without compliance with a 'condition precedent to the authority of the Court to grant a petition for naturalization.' Maney v. United States,  278 U.S. 17, 22 , 49 S.Ct. 15.

Under the Act in question, as under earlier and later Acts,1 Congress prescribed numerous conditions precedent to the issuance of a certificate. They included the requirement that the applicant not be an anarchist or polygamist ( 7), the presentation of a certificate of arrival (United States v. Ness,  245 U.S. 319 , 38 S.Ct. 118), the requirement that the final hearing be had in open court (United States v. Ginsberg, 243 U.S.
472 , 37 S.Ct. 422), the residence requirement (R.S . 2170), the general requirement that the applicant be able to speak the English language ( 8), etc. The foregoing are illustrative of one type of condition which Congress specified. Another type is illustrated by the required finding of attachment. Sec. 4, as it then read, stated that it 'shall be made to appear to the satisfaction of the court' that 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.' [^{Footnote 2} ] It is my view that Congress by that provision made the finding the condition preced-

ent, not the weight of the evidence underlying the finding. Such a finding can of course be set aside under 15 on grounds of fraud. But so far as certificates 'illegally procured' are concerned, this Court has heretofore permitted 15 to be used merely to enforce the express conditions specified in the Act. It is of course true that an applicant for citizenship was required to come forward and make the showing necessary for the required findings. 4. But under this earlier Act, it was not that showing but the finding of the court which Congress expressed in the form of a condition. If 15 should be broadened by judicial construction to permit the findings of attachment to be set aside for reasons other than fraud, then the issue of illegality would be made to turn not on the judge being satisfied as to applicant's attachment but on the evidence underlying that finding. Such a condition should not be readily implied.

If an anarchist is naturalized, the United States may bring an action under 15 to set aside the certificate on the grounds of illegality. Since Congress by 7 of the Act forbids the naturalization of anarchists, the alien anarchist who obtains the certificate has procured it illegally whatever the naturalization court might find. The same would be true of communists if Congress declared they should be ineligible for citizenship. Then proof that one was not a communist and did not adhere to that party or its belief would become like the other express conditions in the Act a so-called 'jurisdictional' fact 'upon which the grant is predicated.' Johannessen v. United States, supra, 225 U.S. at page 240, 32 S.Ct. at page 616. But under this Act Congress did not treat communists like anarchists. Neither the statute nor the official forms used by applicants called for an expression by petitioner of his attitude on, or his relationship to, communism, or any other foreign political creed except anarchy and the like.

The findings of attachment are entrusted to the naturalization court with only the most general standard to guide it. That court has before it, however, not only the applicant but at least two witnesses. It makes its appraisal of the applicant and it weighs the evidence. Its conclusion must often rest on imponderable factors. In the present case we do not know how far the naturalization court probed into petitioner's political beliefs and affiliations. We do not know what inquiry it made. All we do know is that it was satisfied that petitioner was 'attached to the principles of the Constitution of the United States.' But we must assume that that finding which underlies the judgment granting citizenship (Cf. Tutun v. United States,  270 U.S. 568 , 46 S.Ct. 425) was supported by evidence. We must assume that the evidence embraced all relevant facts since no charge of concealment or misrepresentation is now made by respondent. And we must assume that the applicant and the judge both acted in utmost good faith.

If the applicant answers all questions required of him, if there is no concealment or misrepresentation, the findings of attachment cannot be set aside on the grounds of illegality in proceedings under 15. It does not comport with any accepted notion of illegality to say that in spite of the utmost good faith on the part of applicant and judge and in spite of full compliance with the express statutory conditions a certificate was illegally procured because another judge would appraise the evidence differently. That would mean that the United States at any time could obtain a trial de novo on the political faith of the applicant.

It is hardly conceivable that Congress intended that result under this earlier Act except for the narrow group of political creeds such as anarchy for which it specially provided. Chief Justice Hughes stated in his dissent in United States v. Macintosh,  283 U.S. 605, 635 , 51 S.Ct. 570, 579, that the

phrase 'attachment to the principles of the Constitution' is a general one '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.' We should be mindful of that criterion in our construction of 15. If findings of attachment which underly certificates may be set aside years later on the evidence, then the citizenship of those whose political faiths become unpopular with the passage of time becomes vulnerable. It is one thing to agree that Congress could take that step if it chose. See Turner v. Williams, 194 U.S.
279 , 24 S.Ct. 719. But where it has not done so in plain words, we should be loathe to imply that Congress sanctioned a procedure which in absence of fraud permitted a man's citizenship to be attacked years after the grant because of his political beliefs, social philosophy, or economic theories. We should not tread o close to the domain of freedom of conscience without an explicit mandate from those who specify the conditions on which citizenship is granted to or withheld from aliens. At least when two interpretations of the Naturalization Act are possible we should choose the one which is the more hospitable to that ideal for which American citizenship itself stands.

Citizenship can be granted only on the basis of the statutory right which Congress has created. Tutun v. United States, supra. But where it is granted and where all the express statutory conditions precedent are satisfied we should adhere to the view that the judgment of naturalization is final and conclusive except for fraud. Since the United States does not now contend that fraud vitiates this certificate the judgment below must be reversed.

Mr. Justice RUTLEDGE, concurring.

I join in the Court's opinion. I add what follows only to emphasize what I think is at the bottom of this case.

Immediately we are concerned with only one man, William Schneiderman. Actually, though indirectly, the

decision affects millions. If, seventeen years after a federal court adjudged him entitled to be a citizen, that judgment can be nullified and he can be stripped of this most precious right, by nothing more than reexamination upon the merits of the very facts the judgment established, no naturalized person's citizenship is or can be secure. If this can be done after that length of time, it can be done after thirty or fifty years. If it can be done for Schneiderman, it can be done for thousands or tens of thousands of others.

For all that would be needed would be to produce some evidence from which any one of the federal district judges could draw a conclusion, concerning one of the ultimate facts in issue, opposite from that drawn by the judge decreeing admission. The statute does not in terms prescribe 'jurisdictional' facts. 1 But all of the important ones are 'jurisdictional,' or have that effect, if by merely drawing contrary conclusion from the same, though conflicting, evidence at any later time a court can overturn the judgment. An applicant might be admitted today upon evidence satisfying the court he had complied with all requirements. That judgment might be affirmed on appeal and again on certiorari here. Yet the day after, or ten years later any district judge could overthrow it, on the same evidence, if it was conflicting or gave room for contrary inferences, or on different evidence all of which might have been presented to the first court.^{Footnote 2}

If this is the law and the right the naturalized citizen acquires, his admission creates nothing more than citizenship in attenuated, if not suspended, animation. He acquires but prima facie status, if that. Until the Gov-

ernment moves to cancel his certificate and he knows the outcome, he cannot know whether he is in or out. And when that is done, nothing forbids repeating the harrowing process again and again, unless the weariness of the courts should lead them finally to speak res judicata.

No citizen with such a threat hanging over his head could be free. If he belonged to 'off-color' organizations or held too radical or, perhaps, too reactionary views, for some segment of the judicial palate, when his admission took place, he could n