nearly 45 percent of the vote in the 1940 election, to represent the communist Schneiderman in front of the Supreme Court (and had Willkie himself not summoned the courage to take on the case), the fate of many leftist activists targeted for denaturalization in the 1950s might have been quite different.
Still, perhaps the most forgotten, yet important, historical player in reducing the scope of denaturalization was George Wickersham, U.S. Attorney General under President Taft. Wickersham was skeptical of denaturalization, and immediately upon his arrival at the Justice Department in 1909, he issued an instruction called Circular 107 ordering the Department not to initiate denaturalization proceedings against new Americans who had by accident or circumstance failed to follow the letter of the law when they were naturalized. Instead, Justice Department lawyers were only to pursue denaturalization proceedings in instances where a substantial result could be achieved “in the way of the betterment of the citizenship of the country.” In this manner, Circular 107 played a major role in reducing the impact of denaturalization prior to World War II. Similarly, Wickersham fought against the State Department to prevent it from adopting a policy that would deprive naturalized citizens living abroad of their citizenship. Instead, he prevailed on the State Department to impose the much less severe consequence of loss of U.S. consulate protection. His interpretation again preserved the citizenship of thousands of naturalized Americans. Wickersham was also an early defender of a liberal approach to free speech. In 1912, outraged that a socialist union leader had been denaturalized through proceedings initiated by an assistant U.S. attorney, he ordered the attorney to work to reestablish the man’s American citizenship.30
Finally, there is a serendipitous dimension to the Supreme Court’s revolutionary jurisprudence. If certain provisions permitting the forced expatriation of many categories of Americans had not been inserted in the 1940 Nationality Act at the request of the State Department and the Department of War, perhaps the Supreme Court would not have been forced to enter the fray, redefining American citizenship in the process. President Franklin D. Roosevelt, for one, opposed many if not all of these provisions.31 Had he prevailed, American law would have permitted only the expatriation of Americans who acquired a foreign nationality—a type of expatriation that did not divide the Court as strongly.
But this is not how events unfolded. Instead, the United States greatly expanded the grounds for which Americans could be stripped of their citizenship and relied on denaturalization more often than any other democracy. This frequency was due, in part, to America’s federal system of government. In addition, owing to the United States’ heavy reliance on immigration in comparison to much older European nations, America became the home of large numbers of the foreign-born, whose differences in appearance, ethnicity, and ideas allowed denaturalization to become an instrument of racism, bigotry, and fear.
Yet today, severely limited by Supreme Court jurisprudence,32 denaturalization remains on the books less as a reflection of America’s past prejudices than as a symbol of its commitment to human rights. Nowadays, denaturalization is used primarily as a tool for targeting individuals who commit crimes against humanity, including former Nazis and others responsible for acts of genocide. This is the story of how, during the twentieth century, denaturalization evolved in tandem with fundamental assumptions about 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
