Chapter V: The Deportations (3)

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.