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A Duty to Defend? The Evolution of Aliens’ Military Obligations to the United States, 1792 to 1946

Published online by Cambridge University Press:  21 March 2012

Candice Bredbenner
Candice Bredbenner*
Affiliation:
University of North Carolina, Wilmington
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Journal of Policy History , Volume 24 , Issue 2 , April 2012 , pp. 224 - 262
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Copyright © Donald Critchlow and Cambridge University Press 2012

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References

NOTES

1. See, for example, Kerber, Linda, No Constitutional Rights to Be Ladies: Women and the Obligations of Citizenship (New York, 1998), esp. 23–48Google Scholar; Claire Snyder, R., Citizen-Soldiers and Manly Warriors: Military Service and Gender in the Civic Republican Tradition (Lanham, Md., 1999)Google Scholar; Jensen, Kimberly, Mobilizing Minerva: American Women in the First World War (Urbana, 2008)Google Scholar; Samito, Christian G., Becoming American Under Fire: Irish Americans, African Americans, and the Politics of Citizenship During the Civil War Era (Ithaca, 2009)Google Scholar; Lentz-Smith, Adriane, Freedom Struggles: African Americans and World War I (Cambridge, Mass., 2009)CrossRefGoogle Scholar; and Salyer, Lucy, “Baptism by Fire: Race, Military Service, and United States Citizenship Policy, 1918–1935,” Journal of American History 91 (December 2004): 847–76CrossRefGoogle Scholar. On the political implications of the linkages between masculinity, war, and citizenship, see Stewart-Winter, Timothy, “Not a Soldier, Not a Slacker: Conscientious Objectors and Male Citizenship in the United States During the Second World War,” Gender & History 19 (November 2007): 519–42CrossRefGoogle Scholar; Hoganson, Kristin L., Fighting for American Manhood: How Gender Politics Provoked the Spanish-American and Philippine-American Wars (New Haven, 1998)Google Scholar; Westbrook, Robert B., “‘I Want a Girl, Just Like the Girl that Married Harry James’: American Women and the Problem of Political Obligation in World War II,” American Quarterly 42 (December 1990): 587–614CrossRefGoogle Scholar; and Nye, Robert A.’s comparative survey, “Western Masculinities in War and Peace,” American Historical Review 112 (April 2007): 417–38.CrossRefGoogle Scholar

2. A list of colonial militia laws appears in Duggan, Joseph C., The Legislative and Statutory Development of the Federal Concept of Conscription for Military Service (Washington, D.C, 1946), xvii n. 14.Google Scholar

3. Act of 8 May 1792, 1 Stat. 271. A subsequent act granted the president the authority to call forth the militia to execute the laws of the Union; also the Act of 28 February 1795, 1 Stat. 424. This law’s constitutionality was confirmed in Martin v. Mott, 25 U.S. 19 (1827).

4. While some military reformers hoped that the federal Uniform Militia Act of 1792 would provide stronger national oversight of the militia, they failed to secure any tangible concessions from the large bloc in Congress that was highly suspicious, if not hostile, to any extension of the federal government’s control over the state-based system.

5. Sec. 11, 12, Act of 16 March 1802, 2 Stat. 132 refer to the recruitment only of “effective able-bodied citizens.” An estimated 19 percent of the nation’s soldiers in this period were foreign-born. Stagg, J. C. A., “Soldiers in Peace and War: Comparative Perspectives on the Recruitment of the United States Army, 1802–1815,” William and Mary Quarterly 57 (January 2000): 86–89.CrossRefGoogle Scholar

6. Letter of Adjutant General Thomas Cushing to Lieut. Col. Constant Freeman, 23 July 1803, quoted in Stagg, 90.

7. Sec. 1, Act of 10 December 1814, 3 Stat. 146, subsequently repealed by the Act of 3 March 1815, 3 Stat. 224.

8. United States v. Cottingham, 40 Va. 615 (1843). United States v. Wyngall, 5 Hill 16 (N.Y., 1843), a very similar case decided earlier that year, had also ended in a ruling for the federal government. Both courts would acknowledge the individual’s right to initiate his expatriation. In these cases, however, that recognition weakened the soldiers’ claims that they had not compromised their status as aliens by enlisting and taking the oath of service.

9. 40 Va. 615.

10. 40 Va. at 630, 631. U.S. attorneys general had also rendered opinions on the legislative status of the enlistment of aliens in the decades surrounding these two judicial decisions, but their judgments reflected some inconsistencies in interpretation. In 1841, Attorney General Hugh Legare had concluded that the 1815 act clearly limited enlistment to citizens, but subsequent opinions saw no legislative impediment to noncitizen service. Compare 3 Op. Att’y. Gen. 670, 22 October 1841; 4 Op. Att’y. Gen. 350, 20 November 1844; and 6 Op. Att’y. Gen. 474, 30 May 1854.

11. In 1854, the prospects of recruiting young immigrants brightened further when Attorney General Caleb Cushing assured Secretary of War Jefferson Davis that the United States could set aside the standard requirement to secure consent for minors’ enlistment if their parents or guardians were not domiciled in the United States. 6 Op. Att’y. Gen. 607, 19 July 1854.

12. Coffman, Edward M., The Old Army: A Portrait of the American Army in Peacetime, 1784–1898 (New York, 1986), 137.Google Scholar

13. Typical was the comment of Dr. Thomas Welsh in a 1783 address on the dangers of a standing army to a free people. “To command and be commanded,” he warned, “excites an idea of servitude and dependance [sic], which degrade the mind, and in a social view destroys the character of a free agent.” The safest defense of the people and their liberties was the militia, composed of “proprietors of the soil” who were “ever ready for the field” and naturally possessed the “great essentials of a soldier.” “Oration, Delivered at Boston, March 5, 1783,” reprinted in Hezekiah Niles, ed., Principles and Acts of the Revolution in America (Baltimore, 1822), 76. Cress, Lawrence Delbert, Citizens in Arms: The Army and the Militia in American Society to the War of 1812 (Chapel Hill, 1982), 15–50Google Scholar, provides a very useful analysis of the pre-Revolutionary political origins of the sharply drawn distinctions between the citizen militia and the professional army and the relevance of these ideas during the American Revolution.

14. Charles Latrobe, quoted in Coffman, The Old Army, 137.

15. As Caroline Cox observed, “The militia was to be at the center of the military stage in the national myth of the Revolution.” A Proper Sense of Honor: Service and Sacrifice in George Washington’s Army (Chapel Hill, 2004). Even George Washington, whose frustrations with the militia are well documented, declared it “the palladium of our security.” “Circular Letter to the Governors of Each of the States,” 18 June 1783, reprinted in Niles, ed., Principles and Acts of the Revolution in America, 471. In reality, by the time of Cottingham, the state militias had become poorly equipped and trained, their periodic musters the subject of unflattering caricature.

16. “George Washington, May 1, 1783, Peace Establishment,” vol. 26 of The Writings of George Washington from the Original Manuscript Sources, 1745–1799, ed. John C. Fitzpatrick (Washington, D.C., 1931–44), 374–98. George Washington Papers at the Library of Congress, 1741–99, http://memory.loc.gov/ammem/gwhtml/gwhome.html.

17. Ekirch, Arthur A. Jr. provided a good summary of the debates over military defenses to the War of 1812 in The Civilian and the Military (New York, 1956), 32–59.Google Scholar For a more detailed examination of this period, see Cress, Citzens in Arms.

18. Washington, 389. Washington’s plans for reforming the militia, however, suggested that he did not think every (male) citizen was capable of defending the country competently.

19. Williams, David C., “Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,” Yale Law Journal 101 (1991): 578 n. 150.CrossRefGoogle Scholar

20. While white male residents’ obligation to serve in the militia was often used to justify their access to political privileges, their opportunities to claim exemption from militia service were plentiful. Even during the American Revolution, the final years of the war saw far fewer freeholding farmers or tradesmen in the Continental Army—those classes of men upon whose civic virtue the new republic was presumed to rely. The newest recruits were generally from the poorer classes and included individuals whose citizenship status was ambiguous: former members of the British army (both British and Hessian) and slaves. Martin, James Kirby and Lender, Mark Edward, A Respectable Army: The Military Origins of the Republic, 1763–1789, 2nd ed. (Wheeling, Ill., 2006), 88–93Google Scholar. Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775–1865 (New York, 1968), 206–7Google Scholar. Cunliffe describes the general deterioration of state-mandated militia duty as an effective means of promoting national defense or civic responsibility in his chapter “The Amateurs: Apathy and the Militia,” 177–212.

21. During this peacetime period, the country’s military spirit was more likely to find expression among civilians in the independent volunteer units that sprang up in the United States. For a description of the military and social functions of these organizations, see Cunliffe, Soldiers and Civilians, 215–54.

22. For example, between 1867 and 1889, more than a dozen more states permitted noncitizen suffrage. Keyssar, Alexander, The Right to Vote: The Contested History of Democracy in the United States (New York, 2000), 33Google Scholar and appendix table A.12, “States with Special Provisions Affecting Aliens and Immigrants, 1870–1926.”

23. The Civil War draft was not Americans’ first experience with compulsory service beyond the traditional requirements of militia duty. The first-draft laws supported the Continental Army during the American Revolution. See Duggan, The Legislative and Statutory Development of the Federal Concept of Conscription for Military Service, xviii–xix.

24. “All other persons subject to do military duty” could be called upon if the needs of the country outstripped the number of troops provided by the first group of draftees. Sec. 2, Act of 3 March 1863, 12 Stat. 731. On the pre–Civil War history of the ambiguous status of a military obligation to the nation, see Chambers, John Whiteclay, To Raise an Army: The Draft Comes to Modern America (New York, 1987), 13–39.Google Scholar

25. Crowder, E. H., The Spirit of Selective Service (New York, 1920), 81.Google Scholar

26. Duggan, The Legislative and Statutory Development of the Federal Concept of Conscription for Military Service, 49. For an overview of the treatment of aliens in the Northern draft, see Murdock, Eugene C., One Million Men: The Civil War Draft in the North (Madison, 1971; Westport, Conn., 1980), 190, 305–32Google Scholar; and Lonn, Ella, Foreigners in the Union Army and Navy (Baton Rouge, 1951; New York, 1969), 436–78.Google Scholar

27. Sec. 21, Act of 17 July 1862, 12 Stat. 594. This offer did not extend to the navy. Rewarding military service with a guarantee of citizenship can be traced back to the American Revolution. The Continental Congress, competing with the British for manpower, circulated broadsides offering Hessian soldiers who deserted and joined the Continental forces “all the rights, privileges, and immunities American citizenship offered.” Neimeyer, Charles Patrick, America Goes to War: A Social History of the Continental Army (New York, 1996), 52.Google Scholar

28. The sacrifices of these foreign-born soldiers contributed to an easing of nativist sentiment after the war. As John Higham explained, “Now the foreigner had a new prestige; he was a comrade at arms.” Strangers in the Land: Patterns of American Nativism, 1860–1925, rev. ed. (New Brunswick, 2002), 13.

29. Millett, Allan R. and Maslowski, Peter, For the Common Defense: A Military History of the United States of America (New York, 1994), 163Google Scholar. On the same day that Congress agreed to reward alien soldiers with a generous offer of citizenship, it passed the 1862 Militia Act, which provided for a militia draft of “able-bodied male citizens.” While there was some initial confusion over whether that law referred to state citizens or U.S. citizens, the relevance of citizenship to military service liability became even murkier with the passage of the aforementioned Enrollment Act of 1863. This law drew the general lines of draft eligibility broadly to incorporate U.S. citizens, declarant immigrants, and men whose status as state or national citizens was ambiguous.

30. On the situation in Wisconsin, see Randall, J. G., Constitutional Problems Under Lincoln, rev. ed. (Gloucester, Mass., 1963), 264–66.Google Scholar

31. Seward to Indiana governor Oliver Perry Morton, 5 September 1862, quoted in John Bassett Moore, A Digest of International Law, vol. 4 (Washington, D.C., 1906), 53. James Madison, while secretary of state, had noted the same international rule—that the citizen of one country, resident in another, could not be forced into military service by the state of his residence. Madison to James Monroe, minister to Great Britain, 5 January 1804, American State Papers: Foreign Relations, 3:87. For an interpretation more in alignment with Seward’s argument for a domestic exception to this rule, see In re Wehlitz, 16 Wisc. 443 (1863), which involved a declarant who challenged his conscription as an alien. In this case, the Wisconsin Supreme Court declared that Wehlitz was a state citizen, that the draft act of 17 July 1862, referred to state, not U. S., citizens, and thus Wehlitz was draft-eligible.

32. For a more recent case addressing whether an immigrant who has filed an application for naturalization consequently owes allegiance to the United States, see Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (2003).

33. Proclamation by the President of the United States of America, 8 May 1863, 13 Stat. 732.

34. The current articulation of this policy is found in 8 USC 1426, “Citizenship denied alien relieved of service in Armed forces because of alienage.”

35. Some unnaturalized immigrants were released by treaties between the United States and their homeland, which provided mutual exemption from liability to military service. Argentina, Costa Rica, Honduras, Paraguay, Persia, and Switzerland had such treaties with the United States. That number had increased by World War I, with the addition of agreements negotiated with Great Britain, Belgium, Serbia, Italy, Spain, and Japan. But a treaty with his country did not automatically shield a declarant from the draft. Ex parte Larrucea, 249 F. 981 (1917). Deserters from the military naval service of the United States “voluntarily relinquished” their rights of citizenship, as well as their ability to seek citizenship. Act of 3 March 1865, 13 Stat. 490.

36. This assertion is interesting, given that the United States did not officially recognize expatriation as an individual right until 1868. Act of 27 July 1868, 15 Stat. 223.

37. Sec. 18, Act of 24 February 1864, 13 Stat. 6. Congress may have been reacting in part to the ruling in In re Conway, 17 Wis. 526 (1863). In this case, two men who were the sons of declarants, but who had not filed declarations of intention themselves, had refused to report for duty after being drafted. They argued that as neither citizens nor declarants, they were not liable for the draft. The Wisconsin Supreme Court agreed, noting that despite the fact that the men had voted, they were neither state nor U.S. citizens. On the questions surrounding the relationship between state and national citizenship before the war, see Kettner, James H., The Development of American Citizenship, 1608–1870 (Chapel Hill, 1978), 248–86Google Scholar. Kettner’s observation that in this period state and national citizenship were generally viewed as “inseparable dimensions of the same status” would seem more true in the case of native-born than naturalized citizens (328).

38. In the early decades of the twentieth century, the federal government managed to incrementally expand its control over military manpower, beginning with the Dick Militia Act of 1903 (32 Stat. 775), which provided for greater federal control over the organization and training of the National Guard. The Militia Act of 1908 (35 Stat. 399), which amended the Dick Act, eliminated the traditional restriction on the Guard’s overseas service (a provision later challenged as unconstitutional). The most comprehensive in this series of reform acts preceding World War I was the National Defense Act of 1916, which required members of the National Guard to take an oath to serve the national government. It also provided for the expansion of the regular army and National Guard, the president’s authority to call out the Guard to serve through the duration in case of national emergency, and the establishment of the Reserve Officers Training Corps (ROTC). Act of 3 June 1916, 39 Stat. 166.

39. As Michael McGerr has noted, “Next to the death penalty, the military draft represents the state’s most powerful denial of the autonomy of the individual.” McGerr, Michael, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (New York, 2003), 286.Google Scholar

40. The new citizen-soldier would be part of the “National Army” summoned by the draft and under the full control of the federal government. The embargo on volunteering did not extend to the regular army and navy and National Guard.

41. These innovations were common objects of critics’ denunciations of the law. For one lengthy and passionate address on its perils, see speech of Senator Robert M. LaFollette, Congressional Record, 65th Cong., 1st sess., 1917, 55, pt. 2: 1354–61.

42. Act of 18 May 1917, 40 Stat. 76. The U.S. Supreme Court confirmed the constitutionality of the Selective Service Act in Selective Draft Law Cases, 245 U.S. 366 (1918).

43. “The Policy of the United States in Raising and Maintaining Armies,” in Wood, Leonard, The Military Obligation of Citizenship (Princeton, 1915), 33–34.Google Scholar

44. Senator Wesley L. Jones of Washington, 27 April 1917, Congressional Record, 65th Cong, 1st sess., 1296. Secretary of War Newton Baker appeared at the House hearings on the Selective Service Act and reiterated these reasons for its adoption. U.S. Congress, House Committee on Military Affairs, Hearings Before the Committee on Military Affairs of the House of Representatives on the Selective Service Act, 65th Cong., 1st sess., 17 April 1917. Crowder’s The Spirit of Selective Service provides a retrospective, though biased, assessment of the performance of the selective draft in World War I. On the significance of the rhetorical use of “service” during the war, see Kennedy, Over Here, 152–54.

45. Quoted in Chambers, To Raise an Army, 97. As further evidence of the system’s affirmation of a universal obligation to defend one’s country, advocates pointed to Selective Service’s rejection of the traditional options of furnishing a substitute or paying a commutation fee to avoid military service.

46. Quoted in Dickinson, John, The Building of an Army: A Detailed Account of Legislation, Administration, and Opinion in the United States, 1915–1920 (New York, 1922), 62Google Scholar; see also Chambers, To Raise an Army, 73–101.

47. As John Whiteclay Chambers explained, “What most impressed . . . contemporaries and subsequent policymakers and scholars was the compatibility of the wartime Selective Service System with American ideals—localism, individualism, and civilian control of the military—and with the economic and military needs of the nation in modern mass warfare. The popularity of the politico-military formula came from the fact that, while it rested on a ‘universal’ national obligation, it was implemented on a selective basis.” Chambers, To Raise an Army, 253–54.

48. Dickinson, The Building of an Army, 131–32. Second Report of the Provost Marshal General to the Secretary of War on the Operations of the Selective System to December 20, 1918 (Washington, D.C., 1919), table 22, 89. Number of declarants, 1,270,182; nondeclarants, 2,606,901. Included in that total (3,877,083) : 1,011,502 enemy and allied enemy aliens. Although technically ineligible, some of these men were permitted to serve. Under international law, an enemy alien cannot be forced to fight against his country. Borchard, Edwin M., The Diplomatic Protection of Citizens Abroad; or, The Law of International Claims (New York, 1916), 64–69Google Scholar. From 1 April 1917 until the cessation of voluntary enlistments, an estimated 6,525 aliens joined as volunteers. Letter from the Adjutant General, P. C. Harris, to Albert Johnson, chair, dated 7 June 1919, printed in U.S. Congress, House Committee on Immigration and Naturalization, Proposed Deportation of Aliens Who Surrendered Their First Papers in Order to Escape Military Service, pt. 1, 66th Cong., 1st sess., 10 October 1919, 7. Deferments and exemptions for alienage represented 14.82 percent of those granted between June 1917 and September 1918. Table 51, Second Report of the Provost Marshal General, 168.

49. Diplomatic representatives presented about 40,000 protests and requests for exemption or discharge from military service to the State Department. Sterling E. Edmonds, “Aliens and the Draft,” St. Louis Law Review 5 (March 1920): 23. The War Department, however, identified 5, 852 formal diplomatic requests for aliens’ discharge from the U.S. military. Table 30-A, Second Report of the Provost Marshal General, 400.

50. Comments of L. H. Woolsey, Hearings, Proposed Deportation of Aliens Who Surrendered Their First Papers in Order to Escape Military Service, pt. 4, 7 November 1919, 54. Wishing to end these challenges to the law’s legitimacy, the Committee on Foreign Affairs requested that the secretary of state open negotiations with co-belligerent nations to obtain their permission to include their citizens in the U.S. armed forces during the war. The State Department did secure new treaties with Greece, Italy, France, and Great Britain, but these documents, signed between 30 July and 12 November 1918, were ratified too late to have any real impact. They provided that alien residents in the United States should first be allowed to enlist in their government’s military forces. But if they failed to do so after a specified period of time, they could be drafted by the United States. The United States already had treaties with reciprocal clauses specifically exempting its citizens from compulsory military service with Argentina, Costa Rica, Honduras, Japan, Paraguay, Serbia, Spain, and Switzerland. Compendium of treaties in Flournoy, Richard W. and Hudson, Manley O., eds., A Collection of Nationality Laws of Various Countries, as Contained in Constitutions, Statutes and Treaties (New York, 1929).Google Scholar

51. The House Committee on Foreign Affairs conceded that, even in the case of “first paper men,” the country’s drafting of aliens was “not free from difficulty.” House Committee on Foreign Affairs, Drafting Subjects of Allied Countries, 65th Cong., 1st sess., 1917, H. Rept. 115, 3.

52. Referring to this presidential order of 11 April 1918, Secretary of War Baker confided to Secretary of State Lansing that “I do not know how practicable the execution of the order will be, but I have directed that all practical steps be taken to retain such persons in this country pending the necessary investigation preliminary to a final decision on the application.” Baker to Lansing, 9 May 1918, box 33, U.S. Department of War, Adjutant General’s Office, Central Decimal Files, 1917–25, Record Group 407, National Archives, College Park, Md.

53. Provost Marshal General’s report of 29 December 1918, quoted in Proposed Deportation of Aliens Who Surrendered Their First Papers in Order to Escape Military Service, pt. 3, 21 October 1919, 41.

54. Ford, Nancy Gentile, Americans All! Foreign-born Soldiers in World War I (College Station, Tex., 2001), 53.Google Scholar

55. Act of 9 July 1918, 40 Stat. 955; and the similar provision in amended draft act of 31 August 1918, 40 Stat. 955.

56. Twenty-seventh Annual Report of the Secretary of Labor for the fiscal year ended June 30, 1939 (Washington, D.C., 1939), table 7, 103. Congress extended the time limit on applying for veterans’ naturalization several times. What is equally notable about the naturalization activity in this period is that reported data suggested that no military personnel’s petition for naturalization was rejected. In comparison, the rate of rejection of civilian petitions ranged between 11 percent and 13 percent and was rising.

57. This window of opportunity closed temporarily (for a decade) with the Supreme Court decision in Toyota v. United States, 268 U.S. 402 (1925), declaring that persons racially ineligible for citizenship under the general nationality laws could not seek the benefits of the military naturalization law. For a closer examination of the experience of the World War I Asian veteran and some of the larger questions raised by the civic incongruities created by the exclusion from citizenship of persons who had been willing to die in defense of the country, see Salyer, Lucy, “Baptism by Fire: Race, Military Service, and United States Citizenship Policy, 1918–1935,” Journal of American History 91 (December 2004): 847–76.CrossRefGoogle Scholar

58. Gavit, John Palmer, Americans by Choice (New York, 1922), 255.Google Scholar

59. On the memorialization of the foreign-born Civil War soldier and his Americanization, see Blight, David W., Race and Reunion: The Civil War in American Memory (Cambridge, Mass., 2001), 74–76.Google Scholar

60. Salyer, “Baptism by Fire,” 850–52; Ford, Americans All !, 28–44, 67–87, 132–39, 144–45; White, Bruce, “The American Military and the Melting Pot in World War I,” in War and Society in North America, ed. Granatstein, J. L. and Cuff, R. D., 37–51 (Toronto, 1971)Google Scholar. White notes, however, that there was some disagreement within the War Department (and with the Wilson administration) over whether or not to form ethnic units within the American army.

61. Second Report of the Provost Marshal General, 101.

62. [Richard K. Campbell] to Walter Evans, U.S. District Judge, 18 December 1919, Box 1413, file 3912, Administrative Files Relating to Naturalization, 1906–40, Records of the Immigration and Naturalization Service, RG 85, National Archives, College Park, Md. This postwar enthusiasm for the contributions of immigrant soldiers contrasts with the experiences of African American soldiers, whose performance was generally undervalued. On the history of African Americans in the U.S. military from the American Revolution through World War II, see the comprehensive studies of Astor, Gerald, The Right to Fight: A History of African Americans in the Military (Cambridge, Mass., 1998)Google Scholar; and Lanning, Michael Lee, The African-American Soldier: From Crispus Attucks to Colin Powell (New York, 2004).Google Scholar

63. Christopher Capozzola explored the emergence during the war of what he described as a “culture of obligation” in Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York, 2008).

64. Kennedy, David M., Over Here: The First World War and American Society, 25th anniversary ed. (New York, 2004), 375.Google Scholar

65. For the conceptualization of immigrants as “Americans in waiting,” see, generally, Motomura, Hiroshi, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (New York, 2006).Google Scholar

66. Quoted in McGerr, A Fierce Discontent, 305.

67. Zolberg, Aristide R., A Nation by Design: Immigration Policy in the Fashioning on America (Cambridge, Mass., 2006), 243Google Scholar. Zolberg covers the major decades of restrictionist policy development on 199–292. Also Higham, Strangers in the Land, 264–330.

68. Congress secured the law without the president’s signature. Act of 5 February 1917, 39 Stat. 874.

69. Act of 19 May 1921, 42 Stat. 5; Act of 26 May 1924, 43 Stat. 153.

70. Quoted in Hagedorn, Hermann, Roosevelt: Prophet of Unity (New York, 1924), 63.Google Scholar

71. Kingsbury, Howard Thayer, “The Right of a Government to Impose Burdens and Limitations Upon the Alien for Governmental Purposes, that is, for the Benefit of the Community as a Whole,” American Society of International Law Proceedings 5 (27–29 April 1911), 219, 319–320CrossRefGoogle Scholar. For another view on the origins of aliens’ military obligations, see Hyde, Charles Cheney, International Law Chiefly as Interpreted and Applied by the United States, 2nd rev. ed. (Boston, 1945), 1744–45Google Scholar; Fitzhugh, William W. Jr. and Hyde, Charles Cheney, “The Drafting of Neutral Aliens by the United States,” American Journal of International Law 36 (July 1942): 369–82CrossRefGoogle Scholar; also Section 35 of Edwin Borchard, Diplomatic Protection Abroad. For other contemporary examinations of some key aspects of this debate, see Willoughby, W. W., “Citizenship and Allegiance in Constitutional and International Law,” American Journal of International Law 1 (October 1907): 914–29CrossRefGoogle Scholar; and Salmond, John W., “Citizenship and Allegiance,” Law Quarterly Review 17 (1901): 270–82.Google Scholar

72. Historians have attributed this expansion of the electorate to an interest in enfranchising white male aliens who were Civil War veterans and to encouraging more rapid settlement in the western states and territories. (The benefits of the Homestead Act of 1862, 12 Stat. 392, also extended to declarants if they had not fought against the United States.) Jamin Raskin has provided a very useful historical analysis of the waxing and waning of alien suffrage and an argument for its renewal in “Legal Aliens, Local Citizens: The Historical, Constitutional, and Theoretical Meanings of Alien Suffrage,” University of Pennsylvania Law Review 141 (April 1993): 1391–1470.

73. Aylsworth, Leon E., “The Passing of Alien Suffrage,” American Political Science Review 25 (February 1931): 114–16CrossRefGoogle Scholar. Even in 1860, only six states allowed alien voting—states that declined to give African American men the right to vote. It should also be noted that most states explicitly barred U.S. soldiers and sailors stationed within their borders from voting (along with criminals, paupers, and the insane). Porter, Kirk H., A History of Suffrage in the United States (Chicago, 1918), 148Google Scholar. Useful surveys of suffrage in the antebellum period include Williamson, Chilton, American Suffrage from Property to Democracy, 1760–1860 (Princeton, 1968)Google Scholar; and Keyssar, The Right to Vote, 1–76.

74. Secretary of War Newton Baker reported that men from neutral nations had submitted approximate 1,925 affidavits for the withdrawal of their declarations of intention, as provided under the Selective Service Act. By law, these men would be permanently barred from acquiring U.S. citizenship. Evasion of Military Service, War Department. Letter from the Secretary of War, Transmitting In Response to a Senate Resolution of December 6, 1919, a Report Showing the Number of Citizens and Subjects of Countries Neutral During the War With Germany Who Had Declared Their Intention to Become Citizens of the United States, But Chose to Withdraw Their Declarations of Such Intention in Order to Evade Military Service, 65th Cong., 3rd sess., 1919, S. Doc. 322.

75. Examples of “alien slacker” bills included HR 9416, 9779, 9623, 9594, and 10010, 66th Cong., 1st sess. (1919).

76. Comments of Willfred W. Lufkin, Hearing, Proposed Deportation of Aliens, pt. 1, 6. The congressman’s state legislature had also indicated its endorsement of the deportation of exemptees who were former declarants. 20 May 1919, Congressional Record, 66th Cong., 1st sess., 49.

77. Resolution is reprinted in Proposed Deportation of Aliens, pt. 1, 14.

78. Letter dated 18 June 1919, from Lansing to Albert Johnson, chair, inserted into Hearing, Proposed Deportation of Aliens, pt. 2, 17 and 24 October 1919, 25. The State Department’s Solicitor took a bit different approach than his superior by describing these declarants as individuals directed by a proper sense of loyalty, not selfish interest. “Are you going to say that you are going to exclude a man on the inference that he is an undesirable citizen because he is faithful to the country of his allegiance . . . ?” L. H. Woolsey, Hearing, Proposed Deportation of Aliens, pt. 4, 71–72.

79. Report of the Commissioner of Naturalization (Washington, D.C., 1915), 10.

80. Ibid. (1916), 29, 30.

81. Ibid. (1917), 3. At this time, the U.S. Constitution was also experiencing a similar popular and patriotic revival. See Michael Kammen’s chapter on that phenomenon in A Machine That Would Go of Itself: The Constitution in American Culture (New York, 1994), 219–54.

82. In 1922, the number of men denied naturalization for legally escaping the draft (more than 10,000) actually exceeded the number of immigrants granted citizenship based on their military service (9,468). Tenth Annual Report of the Secretary of Labor, for the fiscal year ended June 30, 1922 (Washington, D.C., 1922), 48. This was a record year for these denials.

83. Report of the Commission of Naturalization (Washington, D.C., 1919), 20.

84. Act of 29 January 1795, 1 Stat. 414.

85. For an overview of the workings of the Bureau of Naturalization during the period, see Hevenor Smith, Darrell, The Bureau of Naturalization: Its History, Activities, and Organization, Institute for Government Research Service Monograph No. 43 (Baltimore, 1926).Google Scholar

86. As noted earlier, by the mid-1910s, the Commissioner of Naturalization began to express some doubts about the reliance on simple naturalization exams that measured the examinee’s ability to memorize rather than his or her level of civic understanding and attachment. By the 1930s, the head of the new Immigration and Naturalization Service could announce that “knowledge, understanding, and acceptance of the principles of government” were now key elements in the demonstration of fitness for citizenship. “Good moral character and petitioner’s attitude toward his home, family, neighbors, community, and agencies of government are now being given much greater weight than technical knowledge.” Twenty-second Annual Report of the Secretary of Labor, for the fiscal year, ended June 30, 1934 (Washington, D.C., 1934), 55–56.

87. For lack of distinction between a friendly alien and alien enemy, compare In re Tomarchio, 269 F. 400, 410 (1920), and In re Silberschutz, 269 F. 398 (1920). Other judges ignored the law’s distinctions between declarants and nondeclarants, friendly aliens and alien enemies, but with different results. In re Naturalization of Aliens Who Claimed Exemption from the Draft or from Military Service, 1 F.2d 594 (1924).

88. Nondeclarants had to register and provide evidence of alienage if they wished to be classified as ineligible for compulsory service. In the absence of convincing evidence, some nondeclarants were drafted.

89. 278 F. 739, 740 (1922).

90. Petition of Escher, 279 F. 792 (1922); In re Linder, 292 F. 1001(1923); In re Bevelacqua, In re Gitelman, In re Tsaler, 295 F. 862 (1924).

91. The statistics for 1920–28 are conveniently gathered in Hazard, Henry B.’s “Attachment to the Principles of the Constitution,” American Journal of International Law 23 (October 1929): 785.Google Scholar

92. In re Miegel, 272 F. 688, 694, 695 (1921). In this alien enemy exemption case, the petitioner’s declaration of intention was not voided. But the outcome of these cases remained unpredictable. See In re Kirby, 293 F. 200 (1923).

93. In re Siem, 284 F. 868, 872 (1922).

94. Tutun v. United States, 12 F.2d 763, 764 (1926). For another case in which a court was accused of overreaching the requirements of the statute, see State ex. rel. Weisz v. District Court et al., 202 P. 387 (1921).

95. Thirteen religious denominations officially received this designation. Local draft boards would recognize 56,830 claims for noncombatant classification (ages 21–30 only) between 5 June 1917 and 11 September 1918. Close to 21,000 of these men would be inducted into the army. Table 13, Second Report of the Provost Marshal General, 57; Chambers, To Raise an Army, 216. Later, Secretary of War Newton Baker would officially recognize the nonreligious objector opposed to all wars.

96. In re Roeper, 274 F. 490 (1921).

97. U.S. v. Schwimmer, 279 U.S. 644 (1929); U.S. v. Macintosh, 283 U.S. 605 (1931); U.S. v. Bland, 283 U.S. 636 (1931).

98. As described by Peter Schuck, “Restrictive nationalism drew upon the ideological conception of consent-based obligation, but reshaped it to respond to the dictates of an exclusionary sentiment. The new order would be based upon the national government’s consent to allow the alien to enter and remain, which consent could be denied or withdrawn on the basis of arbitrary criteria and summary procedures that often transgressed liberal principles.” Schuck, Peter H., Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship (Boulder, 1998), 21Google Scholar. This description of immigration policy as it began to develop in the late nineteenth century is also a fair assessment of naturalization standards by the interwar period.

99. 245 U.S. 366 at 378.

100. 279 U.S. 644 at 650.

101. Justice George Sutherland acknowledged the illiberal tendencies of these powers while affirming their constitutionality, quoting John Quincy Adams, who, though an advocate of the expansion of national government, soberly observed that “this [war] power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life.” 283 U.S. 605 at 622. Charles E. Carpenter, dean of the Oregon School of Law, addressed the critical difference between passive and active acceptance of these assertions of sovereignty, in “The Promise to Bear Arms as a Prerequisite to Naturalized Citizenship,” Oregon Law Review (April 1931): 375, 379. “The citizen may recognize a power in the state either to force obedience against his will to compel him to do that which he considers unjust and in the doing of which he withholds his moral approval or if he refuses to obey to punish him for the refusal. This distinction which every educated, intelligent, and deeply religious person recognizes, the majority opinion refuses to admit.” For additional commentary on Macintosh, “United States vs. Macintosh: A Symposium,” Illinois Law Review 26 (December 1931): 379; “The Macintosh Case,” Yale Law Journal 40 (February 1931): 653–57; Tennant, John S., “Aliens—Naturalization—The Promise to Bear Arms,” Michigan Law Review (November 1931): 133–37CrossRefGoogle Scholar; S. S., “The Macintosh Case,” University of Pennsylvania Law Review (December 1931): 275–81; “Aliens—Naturalization—Unwillingness to Bear Arms in Defense of Country Because of Religious Convictions as Bar to Citizenship,” Minnesota Law Review (January 1931): 229–31. Among pacifists, the response by Edwin D. Mead was representative. “Is Fighting the Test of Loyalty?” New Republic, 17 July 1929, 236.

102. Hannah Arendt, quoted in Zolberg, A Nation by Design, 13.

103. In re Kinloch, In re McKillop, 54 F. Supp. 521 (1944).

104. In re Nielsen, 60 F. Supp. 240 (1945). In this case, the Department of Justice supported Nielsen’s petition for citizenship.

105. Girouard v. United States, 328 U.S. 61(1946).

106. Title 1, Sec. 29, Act of 23 September 1950, 64 Stat. 987. The oath provided for religious conscientious objectors was basically the same as the oath administered to Schwimmer and the others. The alternative pledge, required of most naturalization candidates, was more explicit in its description of the commitment to defend the United States. It should also be noted that this law abandoned the requirement that naturalization candidates must file a declaration of intention. For a more recent treatment of this question, see Spencer E. Davis Jr., “Comment: Constitutional Right or Legislative Grace? The Status of Conscientious Objection Exemptions,” Florida State University Law Review 19 (Summer 1991): 191–210.

107. Franklin Roosevelt, quoted in “President Depicts Richer Citizenship,” New York Times, 17 September 1940. On the history of the peacetime draft, see Garry Clifford, J. and Spencer, Samuel R. Jr., The First Peacetime Draft (Lawrence, Kans., 1986)Google Scholar; Flynn, George Q., The Draft, 1940–1973 (Lawrence, Kans., 1993), 9–52.Google Scholar

108. Sec. 2, 3, Act of 16 September 1940, 54 Stat. 885, amended by Sec. 2, Act of 20 December 1941, 55 Stat. 844, extending registration to all resident men between 18 and 65. In United States v. Lamothe, 152 F. 2d 340 (1945), a nondeclarant unsuccessfully disputed Congress’s power under the U.S. Constitution and international law to compel his military service as an alien. As in previous wars, some co-belligerent nations with whom the United States had not negotiated treaties on this question did object to the drafting of their citizens. Cornell, Julien, “Exemption from the Draft: A Study in Civil Liberties,” Yale Law Journal 56 (1946–47): 258–63CrossRefGoogle Scholar. Cornell served as legal counsel for Lamothe in the above-mentioned case. Many of the legal challenges to the 1940 Selective Service and Training Act focused on draft boards’ interpretation of the applicability of exemptions for ministers of religion, persons preparing for the ministry, and conscientious objectors.

109. Sec. 324(a), Act of 14 October 1940, 54 Stat. 1149.

110. The number of military naturalizations conducted between September 2001 and the end of FY 2010 was 64, 643. “Fact Sheet: Naturalization Through Military Service,” U.S. Citizenship and Immigration Services, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=26d805a25c4c4210VgnVCM100000082ca60aRCRD&vgnextchannel=ce613e4d77d73210VgnVCM100000082ca60aRCRD.

111. McConnell, Stuart, “Reading the Flag: A Reconsideration of the Patriotic Cults of the 1890s,” in Bonds of Affection: Americans Define Their Patriotism, ed. Bodnar, John (Princeton, 1996), 105.Google Scholar