of a leader may represent only his personal view and be rejected by
his associates. Even platforms have never been taken very seriously
in any party. The law has got itself into a bad mess by starting
investigations into the opinions of associations, the vaguest kind of
inquiry imaginable. And certainly the evidence adduced by Secretary
Wilson, even if it can be construed as an encouragement of violence,
is much more capable of a peaceful interpretation. Until he is sure
that the violent construction is actually put upon the words by the
members of the party, he is not justified in adopting an interpretation
which makes possible the expulsion from their homes of thousands of
workingmen in the United States.
The Communist Labor Party is also outside the scope of the Deportation
Act. Its Program has the same talk about “the conquest of political
power by the workers,” “the class struggle,” “action of the masses.” It
favors “the establishment of the Dictatorship of the Proletariat” by
making “the great industrial battle its major campaigns, to show the
value of the strike as a political weapon.”[386] It is a revolutionary
working-class party but there is nothing in its Platform or Program
which advocates force or violence. As for the ruling of Assistant
Attorney General Garvan that the two Communist parties violate the
Espionage Act because they are “pledged to fight any suggestion of
military action by America against the Soviet Russians,”[387] the
widest construction of that convenient statute has never before
extended it to prohibit opposition to war before war is declared.
[386] _Ibid._, pp. 414–416. See Secretary Wilson’s opinion in favor
of Communist Labor Party, Post Deportations Testimony, 152. Contrast
convictions of members under anti-anarchy acts of states.
[387] _New York Times_, January 4, 1920.
(_b_) Even if Secretary Wilson is right in his ruling that some of the
tenets of the Communist Party advocate force and violence, it does not
necessarily follow that all its members are supporters of violence.
It is true that persons joining the Communist Party sign a statement
of allegiance to its platform, but this ought not to be taken as
conclusive that they favor violence, especially as there is no express
mention of violence in that document and the party had not then been
declared illegal. The facts show that many persons are affiliated with
this party for various innocent reasons. Some believe in peaceful
industrial action as the only cure for social ills, some join because
their friends do, others without being members of the party frequent
its headquarters (and so may be held to be affiliated) to take lessons
in physical geography or because the Communist restaurant has better
meals at cheap prices than any other place. In Massachusetts, many
persons are members of the Communist Party because they belonged to
the local state Socialist organization when it seceded last September
and turned Communist, and their year’s Socialist membership had not
yet expired. Many such men fall within Secretary Wilson’s ruling just
as much as the real revolutionists, very few of whom seem to have been
caught. When hundreds were lined up together after the recent raids,
the _Times_ reported, “They were a tame, unterroristic looking crowd,
and their appearance bore out the statements of operatives that not a
man had tried to put up a fight.”[388]
[388] Quoted in 21 _New Republic_ 232 (January 21, 1920).
The idea that guilt is not necessarily personal, but can result from
mere association is absolutely abhorrent to every American tradition
or conception of criminal justice.[389] Therein it differs from
the law of Germany. In 1878, after two attempts had been made upon
the Emperor’s life, Bismarck secured a law “against the generally
dangerous efforts of Social Democracy,” a party which then advocated
the doctrine that the existing capitalistic society must be overthrown
by forcible revolution. This law made men offenders, not for anything
they individually did or said, but simply by reason of their membership
in an association which aimed at the overthrow of the existing order
of government or society. The party thrived and prospered under
this law as never before. When it was repealed, the party became
conservative.[390] Similar legislative measures were adopted in England
during the hysteria of the French Revolution against associations which
advocated universal manhood suffrage, although as May says, the few
men who were really guilty of sedition and treason would have met with
no sympathy among a loyal people. A statute was passed suppressing by
name the “Societies of United Englishmen, United Scotchmen, United
Britons, United Irishmen, and The London Corresponding Society” and
enacting that any person who thereafter became or continued a member
of any such society should be deemed guilty of an unlawful combination
and confederacy and upon conviction might be transported for seven
years.[391] Other societies were broken up by a general statute
punishing any one concerned in taking oaths to engage in any “seditious
purpose.” This statute was used nearly forty years later to punish men
for membership in a labor union.[392]
[389] Alfred Bettman in Hearings before the Committee on Rules, 66th
Cong., 2d Sess., on H. Res. 438, Wash., 1920, pp. 125–128.
[390] Ernst Freund, _The Police Power_, 513 note; 2 Stephen’s _History
of the Criminal Law_ 395. Alfred Bettman, _supra_.
[391] 39 Geo. III, c. 79 (1799).
[392] 37 Geo. III, c. 123 (1797); 20 _Columbia L. Rev._ 234 note
(February, 1920).
May’s description of England in 1792 applies to this country in 1920,
and should stand as a warning.[393]
In ordinary times the insignificance of these societies would
have caused contempt, rather than alarm; but as clubs and
demagogues originally not very formidable had obtained a
terrible ascendancy in France, they aroused apprehensions out
of proportion to their real danger.... The Government gave too
ready a credence to the reports of their agents; and invested the
doings of a small knot of democrats, chiefly workingmen, with the
dignity of a widespread conspiracy to overturn the constitution.
Ruling over a free State, they learned to treat the people in the
spirit of tyrants. Instead of relying upon the sober judgment
of the country, they appealed to its fears, and in repressing
seditious practices they were prepared to sacrifice liberty of
opinion. Their policy, dictated by the circumstances of a time
of strange and untried danger, was approved by the prevailing
sentiment of their contemporaries, but has not been justified in
an age of greater freedom by the maturer judgment of posterity.
[393] 2 May’s _Constitutional History of England_, 32, 33. Aliens are
specifically discussed on 156 ff.
Ireland is another country where the policy of guilt by association has
been a favorite with the government. In 1825 the Catholic Association,
which advocated the admission of Roman Catholics to full civil and
political rights, was suppressed by an Act of Parliament declaring
unlawful every society acting for more than fourteen days for the
purpose of procuring the redress of grievances in church or state,
and making membership thereafter a misdemeanor punishable by fine and
imprisonment in the discretion of the court. The Catholic Association
was dissolved, and its former members started a new society every
fourteen days to do exactly the same things. When the statute expired
after three years, the Catholic Association immediately revived. In
1829 it was suppressed again by name, but it had accomplished its
object of securing Catholic Emancipation.[394] In 1881 the English
Cabinet repeated this policy with what Morley, who ought to know, calls
“about the most egregious failure in the whole history of exceptional
law.” Parnell’s Land League was suppressed by proclamation under
authority of a Coercion Act, and hundreds of suspects, including
Parnell himself, were arrested and imprisoned, “but the only effect
of these measures was largely to increase agrarian crime in Ireland
and to strengthen the malign influence of the instigators to violence
who had to some real extent been held in check by the imprisoned
leaders.”[395]
[394] 6 Geo. IV, c. 4 (1825); 10 Geo. IV, c. 1 (1829); 2 May, _ibid._,
88–93.
[395] 44 Vic., c. 4 (1881); 3 May, _ibid._, 160; Morley’s
_Recollections_, II, 818.
It is this policy of guilt by association which our government now
proposes to imitate. The American policy has always been different.
A man has not been visited with legal penalties because he had bad
companions. He has not been imprisoned except for acts which he himself
did or injurious words which he himself uttered, and he has not been
expelled unless after investigation of his individual qualities
he was found undesirable. The deportation clauses against radical
organizations were practically a dead letter until these raids. Even
with treason, the most dangerous crime of all, he is not guilty just
because he associates with treasonable persons. Chief Justice Marshall
held in the case of Aaron Burr that he must himself commit overt acts
of treason.[396] Unless a man is a member of a conspiracy he is not
responsible for the acts of others unless they are authorized by him.
And no one contends that the two Communist parties are conspiracies.
The Supreme Court has just handed down a decision squarely in
point.[397] It held unanimously that the president and treasurer of
the Philadelphia _Tageblatt_ could not lawfully be convicted for items
in its columns violating the Espionage Act, which were put in by their
associates on the newspaper, since they were in no way responsible for
the publications complained of. The same principle applies to the rank
and file of the Communist parties.
[396] Beveridge’s _Marshall_, III, c. 9.
[397] Schaefer _v._ U. S., 251 U. S. 468; see p. 94, _supra_.
The deportation statutes introduce the European principle that a man
is known by the company he keeps and that guilt is not personal. This
is an unprecedented and obnoxious feature of the various syndicalist
statutes mentioned in the last chapter, and it is equally obnoxious
as a ground for expulsion, which, as I have shown, is in all its
practical effects equivalent to punishment of the severest kind.
These membership clauses in the deportation statutes have never been
construed by the Supreme Court, but even if it be held that the power
of Congress over aliens is so extensive that expulsion for mere
membership in an association without themselves expressing or even
holding prohibited opinions is “due process of law” and a permissible
abridgment of freedom of speech, nevertheless the clauses are drastic
and dangerous.
It would be like some of the obnoxious statutes just mentioned for the
Secretary of Labor to rule that the Communist Party is an outlawed
organization, and that all aliens who _thereafter_ join it or neglect
to withdraw are liable to deportation. It is even harsher to expel
them because they were members before the ruling. How many can fairly
be supposed to have known until then that that party was within the
statute? Its violent character was not so obvious that they can fairly
be considered to have assumed the risk of such a severe penalty. To
impose banishment on them without warning recalls Bentham’s complaint
that the criminal judges of his time gave laws to the poor just as a
man makes laws for his dog. “When your dog does anything you want to
break him of, you wait until he does it and then you beat him for it.
That is the way you make laws for your dog,” and that is the way we are
making laws for our radical aliens.
The proposition that men who are personally dangerous must be
vigorously dealt with is in no way affected by what I have said about
these membership clauses of the deportation statute. Those clauses
give administrative officials the right to expel men who are in
themselves harmless, and if the free speech and due process clauses
do not invalidate them, they are none the less unjust. Burke said in
his Speech on the Conciliation of a certain rebellious people, when
his opponents wanted a bill “with teeth in it,” that you cannot draw
an indictment against a whole nation. You cannot draw it against a
whole party either. Those Republicans and Democrats who shout for
the deportation or imprisonment of the entire Communist Party because
of certain clauses in its platform might recover their sense of humor
long enough to ask themselves if they ever endorsed every plank in
their respective party platforms. Even Congressmen, party leaders, and
Presidents have been known to disregard some such principles. Let us
deport men for the injuries they do or, if we must, for what they say,
but stop condemning them for the grandiose phrases of a party creed.
People seem to think high-handed acts a matter of indifference, so
long as the men who suffer are Communists, like the Spanish woman who
did not object to watching autos-da-fé because only heretics were
burned.[398] But if the Secretary of Labor has final power to decide
whether any organization advocates force or violence, if this is an
administrative question of fact like an alien’s having tuberculosis,
then there is no logical reason for him to stop with the Communist
parties. As we shall see in the next chapter, a very energetic attempt
has been made to put the Socialist Party in the same category. The
Non-Partisan League, the American Labor Party, the Committee of 48,
have all been called forcible revolutionists. The Western Federation of
Miners has been accused of violence. Nor is the American Federation of
Labor exempt from such charges. The recent steel strike was frequently
denounced as revolutionary, and there is no doubt that the Bridge and
Structural Iron Workers have blown up many bridges and buildings.[399]
Suppose not only that the law punishes individual members of these
organizations who commit or even talk violence, but that a future
Secretary of Labor shares the opinions of those who believe that the
organizations themselves advocate force and violence. Deportations will
follow for the purpose of driving these organizations out of existence.
[398] Ernst Freund in 21 _New Republic_ 266 (January 28, 1920).
[399] Hoxie, _Trade-unionism in the United States_, passim.
And even if the wording of the present constitutions of these various
bodies makes such a possibility very remote, some future change of
language may easily bring any of them within the scope of the statute.
Here a very sinister opportunity is afforded to the enemies of any
radical organization, whether they be the Federal Government or a state
government, unscrupulous employers or a detective agency proceeding
on its own initiative, a conservative union or a rival political
party. Spies can be sent into the councils of the organization in
question, for the purpose of inducing the insertion of violent planks
in its constitution. Once this is accomplished, all alien members of
the organization are presented with the alternatives of immediate
resignation or deportation; to say nothing of the fact that citizen
members may face prosecution under a state syndicalism statute or
perhaps under a future federal sedition statute like section 10 of the
Graham Bill. These clauses in deportation and syndicalist statutes
making mere membership a basis for severe penalties render it so
easy to destroy any organization in the way I have suggested that
the temptation may not be resisted in times of excitement. Indeed,
it is believed by Judge Anderson that some of the extreme planks in
the Communist Party Platform, to which Secretary Wilson points, may
possibly have been inserted in this very manner.
The very existence of spies, whether or not they would thus influence
statements of radical principles, is one of the worst evils of
sedition legislation, whether directed toward prosecution or
deportation. Espionage goes with an Espionage Act. Informers have
been the inseparable accompaniment of government action against the
expression of opinion since the delators of Tiberius.[400] The state
cannot reach such crimes without them. It needs no great force of
eavesdroppers to report murders and robberies. The overt act marks
the offense, and if a detective is required at all it is either to
chase the criminal, to ward off bomb-plots and assassinations, or
to discover who is committing especially ingenious thefts. But if
political utterances are made criminal, secret police are indispensable
to discover that the crime has been committed at all. That was why
the original loose Anti-Anarchy Bill introduced in the Massachusetts
legislature in 1919 was accompanied by a bill to establish a secret
police.[401] The Attorney General was empowered to “make inquiry into
any matters concerning the public safety,” and for that purpose to
employ “officers, agents, or deputies,” whose names were known only to
him and the governor, and to have at his disposal a fund from which
disbursements could be made without audit. When the Anti-Anarchy Bill
was made less sweeping, the Secret Police Bill became unnecessary and
was dropped.
[400] Merivale, _The Romans under the Empire_, c. 44.
[401] Mass. Senate Bill No. 184 (January, 1919). This did not become
law.
We do not need to go out of Anglo-Saxon countries to Russia for
examples of this system in actual operation. The accounts of the
historic English sedition trials are full of the employment of spies
at the meetings of political societies. And the spy often passes over
an almost imperceptible boundary into the _agent provocateur_, who
instigates the utterances he reports, and then into the fabricator, who
invents them. There was plenty of this in England, and the same kind of
liar, Captain Zaneth of the North West Mounted Police, has just been
exposed in Canada after convicting one of the Winnipeg strike leaders
on a charge of seditious conspiracy.[402] This dirty business is the
price a government must pay for the suppression of political crime. Are
we willing to pay that price?
[402] J. A. Stevenson, “A Set-back for Reaction in Canada,” 110
_Nation_ 292 (March 6, 1920).
“The freedom of a country,” writes the historian already quoted, “may
be measured by its immunity from this baleful agency.”[403] We have
never had it before in the United States, but there is disquieting
evidence that this inevitable machinery of sedition-hunters is already
at work. At the end of the instructions which W. J. Flynn, Director of
the Bureau of Investigation in the Department of Justice, issued, on
August 12, 1919, “to all special agents and employees,” ordering an
investigation of the promotion of sedition and revolution, which should
be particularly directed to aliens with a view of obtaining deportation
cases, we find this enigmatic passage:[404]
Special agents will constantly keep in mind the necessity of
preserving the cover of our confidential informants, and in no
case shall they rely upon the testimony of such cover informants
during deportation proceedings.
[403] 2 May, _ibid._, 150.
[404] Investigation Activities of the Department of Justice, 34.
Who these “cover informants” were is disclosed by the _New York
Times_[405] in its account of the raids on the Communists four months
later:
For months Department of Justice men, dropping all other work,
had concentrated on the Reds. Agents quietly infiltrated into
the radical ranks, slipped casually into centers of agitation,
and went to work, sometimes as cooks in remote mining colonies,
sometimes as miners, again as steel workers, and, where the
opportunity presented itself, as “agitators” of the wildest type.
Although careful not to inspire, suggest, or aid the advancement
of overt acts or propaganda, several of the agents, “under cover”
men, managed to rise in the radical movement, and become, in at
least one instance, the recognized leader of a district.
[405] January 3, 1920. For additional evidence as to the activities
of these informants, see the testimony of Captain Swinburne Hale in
Hearings before the Committee on Rules, _supra_, note 389; Colyer
opinion; Palmer Deportations Testimony, 48, 87 ff., 199; Report upon
Illegal Practices.
The Attorney General and his subordinates testify that the Department
of Justice employs men who are or have recently been spies in outlawed
organizations. One special agent, though never an under-cover informant
in the Department, was a spy for the Lusk Committee a short time before
as recording secretary of the Buffalo Communist local. The letter
of instructions about the raids from Chief Burke of the Bureau of
Investigation to his Boston agent, December 27, 1919, whatever its
precise meaning, shows that United States employees were active and
influential members of both Communist parties:
If possible, you should arrange with your under-cover informants
to have meetings of the Communist Party and the Communist Labor
Party held on the night set.... This, of course, would facilitate
the making of the arrests.
It is to be hoped that these men have been as “careful” as the _Times_
reporter says, and that Mr. Palmer is right in denying his employment
of _agents provocateurs_, but we would do well to recall one more
warning from May:[406]
The relations between the Government and its informers are of
extreme delicacy. Not to profit by timely information were a
crime; but to retain in Government pay, and to reward spies
and informers, who consort with conspirators as their sworn
accomplices, and encourage while they betray them in their
crimes, is a practice for which no plea can be offered. No
Government, indeed, can be supposed to have expressly instructed
its spies to instigate the perpetration of crime; but to be
unsuspected, every spy must be zealous in the cause which he
pretends to have espoused; and his zeal in a criminal enterprise
is a direct encouragement of crime. So odious is the character
of a spy, that his ignominy is shared by his employers, against
whom public feeling has never failed to pronounce itself, in
proportion to the infamy of the agent, and the complicity of
those whom he served.
[406] 2 May, _ibid._, 151–2. See Graham Wallas, _Francis Place_, N. Y.,
1919, 121.
When the litigation growing out of the Communist raids is over, and we
can count how many men out of the many thousands arrested are actually
deported, and determine how many of those deported are really bad, then
only will it be possible to say whether it was worth while instead
of deporting the conspicuously dangerous men to go through all this
enormous expense, all this spying, arresting, and herding, to save the
country from men who in ordinary peace-time conditions were advocating
a revolution at some distant and indefinite day through legislative
and other propaganda and occasional future unspecified and improbable
general strikes.
(2) Industrial Workers of the World
The Industrial Workers of the World have been classified differently
from the two Communist parties. Both the Department of Justice and
the Secretary of Labor have taken the position, contrary to some
state decisions,[407] that the organization does not advocate the
unlawful destruction of property. “Its constitution and by-laws have
been adroitly drawn so as to avoid the possibility of construing
it as teaching either anarchy or sabotage.” Consequently, mere
membership is not a ground for deportation.[408] It is evident
that local immigration inspectors do not all agree with this view
of the organization, for Secretary Wilson has released some aliens
who after being carried from Oregon to Ellis Island, declared they
joined the I.W.W. without realizing its principles.[409] The leaders,
organizers, and distributers of literature, at any rate, are getting
deported, and this action has been sustained by United States courts
in Washington and Oregon on the ground that there is some evidence
to justify the administrative order of expulsion.[410] One judge has
cancelled the naturalization of an I.W.W. organizer, who at the time
he became a citizen approved of sabotage and indorsed the preamble and
constitution of the organization.[411] The judge said that since the
I.W.W. is “opposed to all forms of government, advocates lawlessness,
and constructs its own morals, which are not in accord with those of
well-ordered society,” but are “adapted by design to the demoralization
and degradation thereof,” its adherents must _ipso facto_ be guilty
of fraud in declaring that they are attached to the principles of the
United States constitution. Therefore, they cannot become citizens, and
if they do, the right can be taken away and deportation follows. The
Districts Courts go further than Secretary Wilson, since they denounce
the organization itself and regard all members of the I.W.W. who
understand and approve its tenets as barred from citizenship and within
the Deportation Act, whether or not they have personally advocated
violence. There is, of course, no question that many alien officers and
members have preached sabotage, and are deportable.
[407] State _v._ Moilen, 140 Minn. 122 (1918); and the injunction
mentioned on p. 193, _supra_; also State _v._ Lowery, 104 Wash.
520 (1918), which refused to admit in evidence the Report of the
President’s Mediation Commission.
[408] Investigation Activities, etc., 33; letter of W. B. Wilson to
John E. Milholland, 110 _Nation_ 327 (March 13, 1920).
[409] _New York Times_, March 18, 1919. See adverse editorial, March
19. Officials of the Department of Justice are reported, _ibid._,
February 11, as asserting that mere membership is enough, so that “it
will be impossible for that organization to continue in existence.” The
Ellis Island I.W.W.’s would have been discharged by a judge if they had
not been released.—Post Deportations Testimony, 207.
[410] _Ex parte_ Bernat and Dixon, 255 Fed. 429 (1918); Guiney _v._
Bonham, 261 Fed. 582 (C. C. A., 1919); and see administrative decisions
in “The Anarchist Deportations,” 21 _New Republic_ 96 (December 21,
1919); and Charles Recht, _American Deportation and Exclusion Laws_.
_Cf._ U. S. _ex rel._ Grau _v._ Uhl, 262 Fed. 532 (1919).
[411] U. S. _v._ Swelgin, 254 Fed. 884 (1918).
It is unnecessary to repeat here what was said in the preceding chapter
about the wisdom of coercion against the propagandist activities of the
I.W.W., as distinct from the commission of sabotage and other violence,
which of course must be vigorously punished. I will only add that the
Department of Labor should be sure that the organization against which
it employs this great power is fundamentally revolutionary and not at
bottom a labor union. The use of deportation to break up unions, little
as I sympathize with them, seems to me to be wholly wrong. It is said,
for instance, that when the Chinese workers in New York chop suey
restaurants organized a union and struck on New Year’s Eve, 1918, the
leaders were arrested for deportation.[412] The facts of another case
are given in the decision of a United States judge, who discharged the
alien held for deportation:
From August, 1918, to February, 1919, the Butte Union of the
Industrial Workers of the World was dissatisfied with working
places, conditions, and wages in the mining industry, and to
remedy them was discussing ways and means, including strike if
necessary. In consequence, its hall and orderly meetings were
several times raided and mobbed by employers’ agents, and federal
agents and soldiers duly officered, acting by federal authority
and without warrant or process. The union members, men and women,
many of them citizens, limited themselves to oral protests,
though in the circumstances the inalienable right and law of
self-defense justified resistance to the last dread extremity.
There was no disorder save that of the raiders. These, mainly
uniformed and armed, overawed, intimidated, and forcibly entered,
broke, and destroyed property, searched persons, effects, and
papers, arrested persons, seized papers and documents, cursed,
insulted, beat, dispersed, and bayoneted union members by order
of the commanding officer. They likewise entered petitioner’s
adjacent living apartment, insulted his wife, searched his person
and effects, and seized his papers and documents, and in general,
in a populous and orderly city, perpetrated a reign of terror,
violence, and crime against citizen and alien alike, and whose
only offense seems to have been peaceable insistence upon and
exercise of a clear legal right.
[412] _American Labor Year-Book_, 1919–20, p. 113. _Ex parte_ Jackson,
263 Fed. 110 (1920), Bourquin, J. The whole decision should be read.
The attitude of the government toward labor unions outside the A. F. of
L. is shown by the Attorney General’s statement about the Amalgamated
Clothing Workers, Palmer Deportations Testimony, 196, 197.
This opens up dangerous possibilities of influence not only by
employers but also by rival conservative unions to secure the
annihilation of radical labor organizations through wholesale arrests
and expulsions. I believe that the eventual disappearance of the I.W.W.
is highly desirable, but Congress ought to consider carefully in the
light of the English experience with the Irish Land League whether the
deportation of all intelligent alien members is the best method to
obtain that result.
The government ought not to be satisfied to base such drastic action
merely on an examination of the literature of the organization by
men who are unfamiliar with its economic background. An alternative
plan for dealing with the very difficult problem of this organization
would be a vigorous suppression and punishment by state law of
acts of sabotage, while the Federal Government before arresting or
deporting any more members should ascertain the possibility of curing
the causes of the revolutionary character of the I.W.W., such as the
permanent presence of a large body of migratory labor, homeless,
wifeless, jobless. The Department of Labor has at hand for purposes
of consultation men who have studied the I.W.W. carefully and men who
aroused the enthusiastic efforts of its members in war industries.[413]
Such a conference might evolve a new and more satisfactory policy.
[413] See Bibliography, on I.W.W.
For example, deportation does not seem quite the right way to handle
the case of John Meehan,[414] who was arrested in Everett, Washington,
in May, 1917, for violation of a local anti-billboard law, and
then ordered deported as an I.W.W. to England, from which he came
twenty-four years ago. After eighteen months of incarceration he was
landed, hatless, penniless, and with insufficient clothing, in England,
where he has neither kith nor kin.
[414] Charles Recht (counsel for Meehan), _American Deportation and
Exclusion Laws_, p. 9.
(3) Anarchists
Anarchists have long been subject to exclusion and expulsion. If the
term be taken in the popular sense of supporters of bomb-throwing and
assassination generally, the statute is undoubtedly constitutional,
and has been so held by the Supreme Court[415] in sustaining the
exclusion of an Englishman named Turner. The case possesses some
literary interest, for one of his counsel was Edgar Lee Masters,
whose acid-bitten portraits of life at Spoon River have indicated
possibilities of improvement in American life.
[415] Turner _v._ Williams, 194 U. S. 279 (1904).
It is well known, however, that anarchism has no necessary connection
with violence. It really means the belief which opposes every kind of
forcible government and favors the abolition of all coercion over
the individual by the community.[416] Philosophical anarchists argue
that most governmental action is required because of inequalities in
property, and point to many activities of life where these inequalities
do not operate and coercion has been found unnecessary. For example, if
a number of friends are cruising on a sloop, they require no policeman
to keep order or compel each person to do his allotted task. Mutual
agreement and the desire to achieve praise and avoid blame from one’s
companions furnish sufficient incentive to right action. The anarchist
looks forward to the time when life will be such a perpetual holiday,
and hopes to convert all men to the same faith in human nature. While
waiting and working for the millennium, he will, with rare exceptions,
think it consistent with his theories to render obedience to existing
laws, until they shall disappear forever. Kropotkin and Tolstoi in
Russia, Herbert Spencer and Bertrand Russell in England, have at least
been strongly influenced by this view that all government is evil.
It is obvious that such men and many others have no desire to employ
force to end force, but seek to attain their ideal system gradually and
peacefully through discussion and education.
[416] Bertrand Russell, _Proposed Roads to Freedom_, 32.
These philosophical anarchists caused much perplexity in the early
days in this country, even to such a strong champion of soul-liberty
as Roger Williams, who argued for their suppression in his celebrated
letter of 1655 to the people of Providence:[417]
There goes many a ship to sea, with many hundred souls in one
ship, whose weal and woe is common, and is a true picture of a
commonwealth or a human combination or society. It hath fallen
out sometimes that both Papists and Protestants, Jews and Turks,
may be embarked in one ship; upon which supposal I affirm, that
all the liberty of conscience that ever I pleaded for, turns upon
these two hinges—that none of the Papists, Protestants, Jews,
or Turks, be forced to come to the ship’s prayers or worship,
nor compelled from their own particular prayers or worship,
if they practise any. I further add, that I never denied that,
notwithstanding this liberty, the commander of this ship ought to
command the ship’s course, yea, and also command that justice,
peace, and sobriety, be kept and practised, both among the
seamen and all the passengers. If any of the seamen refuse to
perform their services or passengers to pay their freight; if any
refuse to help, in person or purse, toward the common charges or
defense; if any refuse to obey the common laws and orders of the
ship, concerning their common peace or preservation; if any shall
mutiny and rise up against their commanders and officers; if
any should preach or write that there ought to be no commanders
or officers, because all are equal in Christ, therefore no
masters nor officers, no laws nor orders, nor corrections, nor
punishments;—I say, I never denied, but in such cases, whatever
is pretended, the commander or commanders may judge, resist,
compel, and punish such transgressors, according to their deserts
and merits. This, if seriously and honestly minded, may, if it
so please the Father of Lights, let in some light to such as
willingly shut not their eyes.
[417] Moses Coit Tyler, _History of American Literature_, II, 261.
However, when government became stronger in this country and stood
ready to punish any of these men who actually disobeyed the law, it was
realized that they presented no danger merely because of their thought
and teachings. Many Quakers in the Colonies refused to participate in
government because of the New Testament teachings of non-resistance.
A similar philosophy was held by many great Americans in the 1840’s
when as Emerson said, with a twinkle in his eye, every reading man went
round with a draft of a new community in his waistcoat pocket. The
famous settlements at Brook Farm and Fruitlands were peopled by just
such persons.
The Deportation Act of 1918 undoubtedly applies to these peaceful
disbelievers in organized government as well as to the bombers, and so
did all the statutes since 1903, but the power of Congress to bar them
out has never been upheld by the Supreme Court. In the decision just
mentioned, which involved only the exclusion of a violent anarchist,
Chief Justice Fuller said nothing at all about expulsion, but suggested
in passing that Congress could exclude even innocent anarchists if it
was of the opinion “that the _tendency_ of the general exploitation
of such views is so dangerous to the public weal that aliens who hold
and advocate them would be undesirable additions to our population.”
On the other hand, Justice Brewer, in concurring, expressly refused to
determine the right of an alien, if only a philosophical anarchist,
“one who simply entertains and expresses the opinion that all
government is a mistake, and that society would be better off without
any.”[418]
[418] 194 U. S. 294, 296; italics mine.
The public does not realize that it is men of this type as well as
violent anarchists whom the government is now sending out of the
country after long residence, during which they have necessarily
remained aliens since the law forbids their naturalization. Take, for
instance, the case of Frank R. Lopez, a Spaniard of the Ferrer school.
This man has been in the United States seventeen years, belongs to the
A. F. of L., is married, has a son born in this country, owns his own
home, and has always been a law-abiding member of society. Yet he has
been ordered deported to Spain because he held and expounded, in speech
and writing, views which Judge Rogers of the Circuit Court of Appeals
in New York expressly stated to be only philosophical anarchism and in
no sense advocacy of a resort to force and revolution. Judge Rogers
upheld the order of deportation because of the following testimony of
Lopez[419] before the immigration inspector:
Q. Do you believe in or advocate the overthrow by violence or
force of the government of the United States? A. No, sir.
Q. Any other government, Spanish, or Italian, or Mexican? A. No,
sir; our ideals are founded on education.
Q. What are your ideals? A. Free thinking.
Q. Don’t you believe in the power of authority? A. What do you
mean?
Q. Organized government. Don’t you think, if the President gives
an order when Congress empowers him, that it should be obeyed? A.
Yes; the orders should be obeyed.
Q. Do you believe in the propriety of assassination of public
officials of the United States or any other government? A. No,
sir; not only of officials, but of nobody. Everybody has a right
to live.
Q. Do you believe in anarchy? A. What do you mean by anarchy?
Q. Well, it would be anarchy to fight against the laws of the
United States, tear down buildings, blow them up. A. Anything
else? I believe in anarchy, but it is not the way you explain it,
or the way newspapers say anarchy is. Anarchy, the way newspapers
explain it, assassinating women and children, dropping bombs,
or anything like that, I don’t believe in that. But I believe
in teaching, educating, and telling the people to better their
conditions. If you mean that, I am proud of being an anarchist. I
am against killing and against destruction. We are to construct.
Q. How are you going to proceed to do this? A. We are not going
to force our ideals on anybody’s mind. We have conferences, we
have lectures. The doors are open, and everybody is welcome.
Q. You try to get people through advertising means? A. Yes, for
educational purposes.
Q. For the educational purposes of teaching them anarchy? A. To
teach them anarchy the way we understand it, but not the way you
understand it; the way many writers understand it.
Q. What writers? A. Tolstoi, Marx, Ferrer, Zola, Kropotkin, and
many others.
Q. If you are ordered deported, do you want to be separated from
your wife and boy, or would you desire to have them go with
you to Spain? A. It’s up to the government; I think it is an
injustice; I have done nothing wrong; I call it an injustice; if
a man is going to be punished for his thoughts and ideas, it is
an injustice.
[419] The testimony and opinion are from Lopez _v._ Howe, 259 Fed.
401 (C. C. A., 1919). See the opinion of Knox, J., below, quoted in
260 Fed. 485. The facts about the life of Lopez are stated by his
counsel, Charles Recht, with additional extracts from his testimony,
in _American Deportation and Exclusion Laws_, Boston, 1919, p. 9. The
testimony is also reprinted in 21 _New Republic_ 98 (December 24,
1919). See the letter in 21 _New Republic_ 356 (February 18, 1920),
which finds the case so “incredible” that it wrongfully accuses the
magazine of withholding utterances by Lopez of an inflammatory nature.
The decision in the Federal Reporter expressly rests on philosophical
anarchism and denies any advocacy of violence.
Unless the Supreme Court declares this construction of the statute
unconstitutional, Lopez will be deported to Spain. The expulsion of
other men with just the same views has been sustained.[420] Judge
Rogers emphasizes the point that Lopez had never become naturalized,
overlooking the fact that if he had become a citizen our courts would
take his naturalization papers away from him on the ground that they
were obtained by fraud,[421] although it seems just as consistent for a
man who believes that all government should eventually be abolished to
swear allegiance honestly to the government of the United States as it
is for a man to render obedience to a statute which he thinks ought to
be repealed. Certainly the conduct and testimony of Lopez show that he
would have made as good a citizen as most native-born Americans. Judge
Rogers also says that Lopez is deported, not because he entertained
these thoughts and ideas, but because he sought to instil them into the
minds of others. However this may be in his case, the statute expressly
authorizes men to be thrown out of this country after long residence
for ideas which they have never expressed to a single person until they
were subjected to an inquisition by the immigration inspector. Such a
law suppresses not only freedom of speech but freedom of thought. The
following entry added by the Inspector to the testimony of Louis Gyori,
who has been ordered deported because he expects a revolution which
will compel every one to work but will only come at some uncertain time
when the majority want it, is very significant:[422]
Very careful and steady questioning was necessary to bring out
the alien’s beliefs, political and industrial.
[420] _Ex parte_ Pettine, 259 Fed. 733 (1919); see also 21 _New
Republic_ 98.
[421] U. S. _v._ Stuppiello, 260 Fed. 483 (1919).
[422] “The Anarchist Deportations,” 21 _New Republic_ 98 (December 24,
1919).
VI. _The Deportations and the Bill of Rights_
Having thus shown that the deportation statute has been put into force
against men who are in no way advocates of violence, I will now return
to the general question of the power of Congress to make laws excluding
or expelling men from this country because of mere membership in
societies which it considers objectionable or because of the holding or
expression of peaceful ideas which it regards as having a bad political
tendency. The constitutionality of such statutes is defended on two
grounds.
First, it is said that the power of Congress to decide what aliens
shall be admitted or shall remain in this country is unrestricted by
the Constitution. One judge calls this power “well-nigh plenary in its
absolutism.”[423] Chief Justice Fuller suggests that if Congress can
shut out all aliens, it can therefore shut out any group of aliens
it pleases. Such a contention seems to me unsound. One might as well
argue that because a Republican Congress can refuse to naturalize all
aliens, therefore it can refuse to naturalize only those who express
the intention of casting a Democratic vote at the next election. The
First and Fifth Amendments in the Bill of Rights limit all the powers
of Congress, including the power over the exclusion and expulsion of
aliens.
[423] _Ex parte_ Pettine, _supra_.
Aliens are “persons” within the Fifth Amendment, whom Congress
cannot deprive of liberty and property except “by due process of
law,” that is, by methods which are appropriate to the emergency.
It cannot turn the aliens whom it wishes to deport loose in an open
boat on the Atlantic, or carry them across the border into Mexico
and leave them wandering the desert. No one would consider this a
reasonable way of returning them to their own country. Moreover, the
method of classifying aliens for deportation is as important as the
manner of expulsion. If Congress has unlimited power to remove alien
members of any group it chooses, all Roman Catholics, all Jews, all
Russians, any class that happens to be unpopular at the moment, can
be ousted no matter how long they have been in the United States.
It has been repeatedly decided by the Supreme Court that the mere
existence of a legislative power such as taxation, does not (under
the “due process” clause) involve the right to exercise that power
in a discriminatory manner against a group such as all red-headed
men, who are selected arbitrarily without reasonable relation to the
facts and the needs of society.[424] The discretion of Congress to
determine the basis of classification must be very wide, but it is
not unbounded. In particular, classification of the objects of any
recognized Congressional power must not be used solely for the purpose
of accomplishing a result prohibited by the First Amendment. Congress
can tax all incomes, but an income tax of 50 per cent on Socialist
college professors alone would be a convenient but unconstitutional
way to suppress freedom of speech. Furthermore, it seems probable
that the “due process” clause renders the power of Congress over
the expulsion of aliens much narrower than the power to refuse them
admission, because the deprivation of liberty and property is so much
greater after an alien has once been admitted and become settled in
this country. Many more individual interests claim protection. Congress
could undoubtedly refuse admission to aliens with diseased eyes and
could probably expel such aliens after several years’ residence;
possibly it could exclude aliens with blue eyes; but a law ordering all
aliens with blue eyes to leave the country no matter how long they had
been here would be clearly a violation of the Fifth Amendment.
[424] Gulf, etc., Ry. _v._ Ellis, 165 U. S. 150, 165 (1897); Connolly
_v._ Union Sewer Pipe Co., 184 U. S. 540, 560 (1902).
The power over aliens must also be subject to the First Amendment, for
that declares that “Congress shall make no law abridging the freedom
of speech or of the press,” and a deportation statute is a “law.”
Nevertheless, that Amendment does not mean to deny the government the
power of self-preservation. Some opinions may be so dangerous to the
nation that men holding them may be kept out or even expelled. In other
words, we must determine the limits of freedom of speech in relation to
deportation according to the principles laid down in the first chapter.
In this connection, I must consider the second argument in favor of
the validity of these clauses against radicals in the Deportation Act.
It is urged by Chief Justice Fuller in the Turner case[425] that the
statute has nothing to do with freedom of speech.
It is, of course, true that if an alien is not permitted to enter
this country, or, having entered contrary to law, is expelled,
he is in fact cut off from worshiping or speaking or publishing
or petitioning in the country, but that is merely because of his
exclusion therefrom. He does not become one of the people to whom
these things are secured by our Constitution by an attempt to
enter forbidden by law.
[425] See note 415.
This argument seems to me very questionable because it regards freedom
of speech as purely the individual interest of the alien. We have seen
in the first chapter that it is also a social interest of the community
as a whole. Although the alien who is barred out may not be entitled
to any claim under our Bill of Rights, persons already here are
seriously affected if they are denied the privilege of listening to,
and associating with a foreign thinker. Furthermore, the progress of
the country as a whole may be gravely retarded. Truth is truth, whether
it comes from a citizen or an alien, and the refusal to admit a wise
foreigner, especially if there is a postal censorship on books, may
simply result in our remaining ignorant. Massachusetts in the middle
of the eighteenth century would have been unwilling to allow Bishop
Berkeley to settle in her midst, but if Rhode Island had also refused
to admit him, it would have impoverished American thought. Refusal to
admit Bernard Shaw or Bertrand Russell in 1920 would operate in the
same way. Roman Catholic citizens of the United States would surely
be aggrieved by a law barring all future immigrants of that faith.
Therefore, freedom of speech is necessarily affected by the exclusion
of aliens for their opinions, and such exclusion is unconstitutional
unless the social interest in the attainment of truth is outweighed
in the balance by the other interests involved. The First Amendment
does not read, “No citizen shall be deprived of freedom of speech.” It
prohibits all laws “abridging the freedom of speech or of the press.”
What has been said applies still more forcibly to the expulsion of
long-established aliens for their views and utterances. This has always
been a favorite method of dealing with the heterodox. Almost all the
wholesale deportations of history, just like Mr. Palmer’s January raid,
have been an effort to overcome “evil thinking.” Spain expelled the
Moors; England in the reign of Edward III banished fifteen thousand
Jews; and Louis XIV in 1685 drove out the Huguenots from France. In
1891 President Harrison called the attention of Congress to the action
of Russia, a friendly nation, in banishing thousands of Jews.[426]
Although there are many precedents in history for the wholesale
expulsion of Communists, they are not precedents which we should be
proud to follow.
[426] Moore’s _Digest of International Law_, VI, 358; this has
reference to Russian subjects. On American Jews expelled from Russia,
see _ibid._, IV, 111 ff.
Therefore, the deportations may infringe the national policy expressed
by the First Amendment, even if they do not transcend the extreme
limits of constitutional power. It seems to me more profitable to leave
the question of constitutionality to future judicial discussion, and
simply outline the conflicting factors which determine the wisdom of
the deportation of radical aliens to-day.
In favor of deportation are, first, the desire of society for order,
which was considered in the last chapter, and besides this, the
interest of the nation in keeping its population free from elements
which are considered undesirable additions to our present and future
stock. The same social need found expression in the Chinese Exclusion
Acts. It is this second factor which makes the power of Congress over
aliens so wide. The war power should, I have endeavored to show, be
used against utterances only to ward off dangerous acts, but this power
over immigration is primarily directed to dangerous persons. It is
concerned less with what men do than with what they are—whether they
are diseased, crippled, of psychopathic inferiority, liable to become
a public charge. The danger-test of the Schenck case still holds good,
but in a new form. Congress may wisely act now, although there is “no
clear and present danger” of violence, for “the substantive evil which
Congress has the right to prevent” is in this problem the presence of
persons who are so undesirable that they ought to be denied or deprived
of an American domicile.
Undoubtedly, men may be undesirable and dangerous persons because of
their ideas as well as physical and mental derangements. On the other
hand, the need of society for truth and progress must come into play,
and in determining who are undesirable we must be ever on our guard
against applying the test of conjectural and remote tendencies. It
is not at all the same provable question of fact as heart trouble or
insanity.[427] For instance, much of the reasoning in the philosophical
anarchist cases, which stigmatize the doctrine as “inimical to
civilization,” is purely speculative, and smacks of the eighteenth
century sedition trials. And the organization clauses, in expelling men
who are not undesirable themselves just because they have undesirable
associates, carries the logic of national integrity one step beyond the
standard of individual suitability for residence in America.
[427] See American School of Magnetic Healing _v._ McAnnulty, 187 U. S.
94 (1902), and the quotation from Justice Brandeis in the Pierce case,
p. 105, _supra_.
The record of philosophical anarchists shows that they are no more
prone to disorder than any religious sect, and whatever we may think
of their ultimate faith, they may be of great benefit in society, both
for their constructive schemes of voluntary organization and for their
pointed criticisms of the evils of existing governments. Let me offset
the reasoning of Roger Williams with another ship-parable (ships being
rather appropriate in this chapter):[428]
“A sailor related to me,” writes Benjamin Constant, “that he was once
on board a vessel with a passenger who had frequently made the same
voyage. This passenger pointed out to the captain a rock hidden beneath
the waves, but the captain would not listen to him. On his insisting
upon it, the captain had him thrown into the sea. This energetic
measure put an end to all remonstrances, and nothing could be more
touching than the unanimity that reigned on board, until, suddenly, the
vessel touched the reef, and was wrecked. They had drowned the giver of
the warning, but the reef remained.”
[428] _Letters on England_, Louis Blanc, London, 1866, I, 438.
Another reason against wholesale deportation for ideas is that we
have a national reputation to live up to, which we should hesitate to
sacrifice. We have drawn millions of workers to our soil, not merely
by the material magnet of high wages, but by the great hope of freedom
from all the tyranny of European empires. After priding ourselves for a
century on being an asylum for the oppressed of all nations, we ought
not suddenly to jump to the position that we are only an asylum for men
who are no more radical than ourselves. Suppose monarchical England had
taken such a position toward the Republican Mazzini or the anarchist
Kropotkin. Sweden, next door to Bolshevik Russia, allows and even
encourages by law extensive freedom of speech. Switzerland, with her
small population, has harbored even bomb-throwers and Nicolai Lenine
with perfect safety. But the United States with one hundred million
inhabitants, four thousand miles away from the scenes of revolution, is
urged to be afraid of a few thousand men like Lopez and the advocates
of “mass action.” We shall soon be in the shameful position of seeing
political offenders from this country demanding asylum in the very
lands from which men once fled to be free to think and talk on our
shores.
The international consequences of the deportations are very serious.
Not only are we erecting a Chinese wall to keep out ideas, but we are
helping to increase the very unrest in Europe that we fear. Every
one of sense, no matter what his opinion of the present government
of Russia, believes that the restoration of order in that country is
essential to the provisioning and the peace of Europe. We began this
pacification of Russia by sending in Admiral Kolchak. We end by sending
in Emma Goldman. The harm that she did during her thirty-four years
in the United States was nothing beside the unrest and international
irritation she is creating in Russia, where she has already organized
the “Friends of American Freedom.” A nuisance here, she is a heroine
over there and one more element of instability in the Russian
situation. Look at Larkin, whom the British deported from Ireland,
where they could keep an eye on him. No single man has done more to
stir up bad feeling against Great Britain in this country. What sort of
an international house-cleaning are we going to have if each country
grabs up turbulent persons and dumps them across the border upon its
neighbor’s land? I have no sympathy whatever with these extremists, but
as a matter of expediency they may be doing far less harm when they
talk to foreigners who are in this country under American inspiration
than when they are sent with bitterness in their hearts to spread
hatred against us in the very countries to which we must look for
future immigrants.
Other international difficulties are bound to arise. If we make peace
with the Soviet Government, how can we declare any one who endorses
its political and economic theories an outlaw? Already the Secretary
of Labor is proposing to decide whether that government advocates
revolution so that he can deport Mr. Martens,[429] a job which seems
more within the duties of the Secretary of State. Soon some one will
suggest that the attempted assassination of Viscount French and the
death of numerous English officials in Ireland is some evidence that
Sinn Fein is an organization which “advocates the duty, necessity,
or propriety of the unlawful killing of officers of an organized
government because of their official character,” and Secretary Wilson
will have to pass on the deportation of President De Valera.
[429] “Martens and Our Foreign Policy,” Lincoln Colcord, 110 _Nation_
324 (March 13, 1920). Palmer Deportations Testimony, 180, gives the
case for deportation.
Think of the example which these recent raids have set to less orderly
nations, this resorting to methods which we have repeatedly declared
to be a violation of international law, when used against Americans
abroad.[430] We can no longer take that position. If Mexico should
conclude that certain Americans there had advocated a revolution in
that country by force and violence, or a “clean-up” by the United
States (by force), then it could seize our fellow-citizens from
their beds at midnight, throw them into Black Holes like the Detroit
bull-pen, separate them from their families, let their business go to
pieces, turn their wives and children over to the local charities, and
ship them in an army transport to New Orleans, knowing that every act
would be supported by precedents of what has been done in this country
last winter to the citizens of a government that was too weak to hit
back.
[430] _Cf._ with the January, 1920, raids, the following facts from
Moore’s _Digest of International Law_, IV, 108: “In May, 1898, F.
Scandella, a citizen of the United States, engaged in the cattle and
transportation business at Ciudad Bolivar, Venezuela, was suddenly
arrested while walking in the streets of that city, and was thrown into
prison, where he was denied communication with his family and friends.
Next day he was taken under guard to a steamer, and was sent to the
British island of Trinidad. His wife and five young children were left
without funds; his cattle and mules were stolen; and his house, which
was about three miles from town, was sacked. The authorities of the
State of Bolivar alleged as the cause of his seizure and expulsion
‘frequent denunciations’ and ‘well-founded suspicions’ that he was
‘plotting secretly against public order.’ The United States minister
interposed in the case, presenting testimonials as to Mr. Scandella’s
character and standing; and the President of the Republic intimated a
desire to settle the case outside of diplomatic channels. Scandella was
permitted to return to Venezuela; and early in July, 1898, the case
was understood to have been adjusted on the basis of $1,600 in cash,
American gold, and a promise of reimbursement for property taken or
destroyed.” Other examples of arbitrary expulsion are the Hollander
case in Guatemala, _ibid._, 102; and the Bluefields cases in Nicaragua,
_ibid._, 99. Several arbitrations on expulsion are contained in Moore’s
_Digest of International Arbitrations_, IV, c. LX.
Finally, in deciding whether radical deportations should be carried
out further, we ought to consider two classes of people in this
country—first, ourselves; secondly, all the aliens.
That deportations are very popular with American citizens is
undeniable, far more so than the proposed federal sedition bills. How
can we account for this astonishing desire to reverse our national
policy? Besides the nervous effect of the war, the shock of the Russian
Revolution, the unpreparedness for wide intellectual divergencies,
of which I shall speak more fully in the next chapter, there is, I
suspect, another element. Genuinely grateful as we all are in our
thinking moments to our immigrant population, most of us have a hidden
emotion which comes to the surface in a time of excitement, the wish
that we did not have in our midst these foreigners who are so different
from ourselves. The basis of dislike is normally unlikeness.[431] It is
just the same feeling that led Dr. Johnson to say after the experience
of a lifetime that most foreigners were fools. We are going through the
old Know Nothing affair over again.
[431] “The Nervousness of the Jew,” Dr. A. Myerson, 4 _Mental Hygiene_
65 (January, 1920); Bagehot elaborates the point in his essay on “The
Metaphysical Basis of Toleration.”
This instinct is normally controlled by a recognition of what
immigration has done for the United States. It is not true that the
aliens owe us everything and we owe them nothing. They have no vote,
but they have hands and muscles. They have come here at our request,
often at our earnest solicitation, to dig our sewers, cart our garbage,
weave our cloth, build our roads and railways. And they have minds like
ourselves. Absence of citizenship means the loss of the vote, but does
it give us the moral right after a man is admitted to prescribe what he
shall think, under penalty of banishment from his new home, and perhaps
forcible return to the secret police from whom he fled? Doubtless, a
policy of hands-off will result in the presence of a few dangerous
agitators springing up in the great army of workers, but we should be
willing to take the foam with the beer. This is not the first time that
restless spirits, many of whom had been actually engaged in the labor
wars of Europe, have carried the instinct of industrial strife and
violence with them to their new country.[432] We have lived through it
until this year in confident serenity. We have believed that the unrest
brought from the other side of the ocean would eventually be dissipated
by contact with American life. The radical shows the same change
under a fostering environment as the Jew, who is rapidly becoming
assimilated to his neighbors. “What persecution could not do through
the centuries, toleration does in a generation.”[433] The Bolshevist
peasant in Russia, having acquired a bit of land, is already angering
his rulers by his conservatism. In the same way a savings bank account,
a steady job, and plenty of good-humored toleration and friendly help
and encouragement, will bring into harmony with our ideals all but a
few heated theorists who have been in our midst all through the war and
ought not in peace to be such a menace to our national safety that we
cannot counteract them by sound reasoning. Secretary Wilson would, if
he had his own way, adopt this very method:[434]
I look upon any alien who comes to this country and advocates
the use of force for the overthrow of our Government as being in
exactly the same position as an invading enemy, and that it is no
undue hardship to send him back to the country whence he came.
Nevertheless, I would not deal with the subject matter in that
way. In dealing with it during the period of the war the policy
of the Department of Labor was to send high-class, intelligent
working men, who had lived the lives and spoke the language
of the workers themselves, into the places where working men
congregate, carrying a counter-propaganda puncturing the fallacy
of the philosophy of force as applied to democratic institutions.
We believed we had successfully met the situation until Congress
in its wisdom curtailed the appropriation that made it possible
for us to carry on the work we had been doing.
[432] See account of the Molly Maguires in Rhodes, _History of the
United States_, VIII.
[433] Myerson, _op. cit._
[434] Letter to John E. Milholland, reprinted in 110 _Nation_ 326
(March 13, 1920).
VII. _Suggested Changes in Our Deportation Policy_
As an alternative to our present policy of deportations I would suggest
a continuance of Secretary Wilson’s plan for the first step. The last
few years have taught us that the melting-pot will not entirely take
care of itself. Just as the merits of free trade in goods are lessened
if the normal processes of competition are checked by monopolies and
dumping, so free trade in ideas requires that the barriers to the
interchange of argument presented by illiteracy and foreign languages
shall somehow be broken down.
Secondly, Congress should put into force the following recommendation
from the Secretary of Labor:[435]
If lawfully admitted aliens are to be deported from the United
States for any cause, in my judgment the deportation should be
the result of judicial proceedings in the courts rather than
through administrative action.
[435] _Ibid._
The Assistant Secretary made the same recommendation four years
ago:[436]
In most cases administrative decisions must in the very nature
of administration be made by subordinates; in all instances
they must be made along hard and fast lines according to
unelastic legislation designed to promote a governmental policy.
Determinations regarding private rights by such decisions are
mere incidents of administration.... Nothing in my official
experience in the Department of Labor has impressed me more
deeply than the conviction that fundamental personal rights
should be more scrupulously guarded in immigration cases than is
possible through administrative decisions made in the course of
executive routine.
[436] “Administrative Decisions in Connection with Immigration,” Louis
F. Post, 10 _Am. Pol. Sci. Rev._ 260, 261 (1916). See Post Deportations
Testimony, 239, 246 ff. An alternative method would be an independent
administrative tribunal of three experts to sit in a purely judicial
capacity upon all deportation cases, like the Commissioner of Patents
in his field.
Thirdly, a conference might be held to include immigration officials,
members of Congress, men who have come into contact with radical aliens
on the President’s Mediation Commission and in the conduct of war
industries, and scholars like Brissenden who have studied revolutionary
organizations. This conference should outline for the guidance of
Congress a program for our future deportation policy. It would seem
desirable to limit deportable aliens to men who are themselves
personally objectionable on account of the advocacy of force.
Finally, the Secretary of Labor or the President should be given
discretion whether or not to expel an alien who is within a deportable
class. At the present time Assistant Secretary Post[437] shows that
deportation must be automatic, no matter how cruel or unwise it may be.
An imprisoned criminal may be pardoned by the President, but not even
he can prevent an alien who comes under the statutes from being sent
overseas.
[437] _Ibid._
I make these suggestions as an American, believing that we must depend
on a large immigrant population for many years to come and that we
all desire them to be loyal members of the community, devoted to our
institutions whether or not they decide to abandon their allegiance
to their old land. Men cannot be forced to love this country. They
will love it rather because it does not employ force except against
obviously wrongful overt acts. They will love it as the home of wise
tolerance, of confidence in its own strength and freedom. Undoubtedly
there is much discontent in certain groups of aliens at the present
time. It has been accentuated by the excitement of the Russian
Revolution, which must eventually subside. We are not likely to
decrease this discontent by dragging men away from their families and
either shipping them abroad or releasing them after many bitter days
in prison. The relatives and friends of those deported will not have
any increased love for our government. The raids have become a text
for more agitators, who speak to men and women who now have a real
reason for wanting to get rid of the existing form of government. It is
not the soap-box orators, but Mr. Palmer with his horde of spies and
midnight housebreakers, that have brought our government into hatred
and contempt. Yet it is not too late to abandon this great error,
recompensing the injured and adopting a fresh policy for the future.
Let us limit punishment to overt acts. Let us trust an Anglo-Saxon jury
trial to safeguard us even from aliens. Let us rely on tried American
methods, and not upon the secret and summary processes of the last few
months.