Reply Brief of Petitioner — Knauer v. United States

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SUPREME COURT. OF THE UNITED STATES

OCTOBER TERM, 1945

No. 510

PAUL KNAUER, | |

; ‘ ‘ Petition ,-

US.

THE UNITED STATES OF AMERICA

REPLY BRIEF OF PAUL KNAUER, PETITIONER

<

~ Ope ke Rangin,

Counsel for Petifionwer,

p

‘ Summary. of Argument

ee SR re IO ee pages erie erator Te 3

I. A judgment of naturalization entered in a

state court is res. adjudicata of matters |

submitted to it for its adjudication and

only a soleinn admission of record is com-’

ent to overturn it............ ak

te ‘IT. There can be no fraud i in an gath of allegi-

ance for the reason that its character is”

such that it operates to change the status’

. from alien to citizen. | It is an oral act

that operates regardless of mental reser-

vations which are, negatiy ed jn the pre- |.

’ ‘séribed oath......:..... 2. 6,

IIT. , That portion of the application for citizen- ,

ship in the prescribed form which states

_ that plaintiff is attached to.the principles |

of the Constitution, is’ an allegation

+.’ proven and disposed of in the State Court .

trial and is res adjudicata between the

ets yee eee ere eee 13

IV. Congress has attached no conditions to the

full enjoyment of naturalized citizenship 18,

V. Freedom of thought and expression is the

~ / balance wheel of the Constitution ...; © 19.

Conclusion at hae aM ee eae Le eer 21

Crrariqus

Cases: , 7

Baumgartner v, U. S., 322 U.S . fee 4

Hazel-Atlas Co. v. Hartford Co. 322 U.S. 328. 10, 11

Lauria v. U. $.,231U. 8.9.0 ..00..00.00.... 8,18

Pandit:v. U. S., 273 U.S. 759 ....... .& 214.

Toledo S. Co. v. Comp. S. Co., 261 U. Ss. 399 10

U.S. v. Ness,.245 U.S. 319........... vitae, eee

_ U.S. v. Pandit, 15 F. (2d ee Coe 14

U.S. v. Thind, 261 U. 8. eens eee 14

| -U.S.v. Throckmorton, 98 U. S. 61. ». 10,11

—3718 Ae At eee C2

Oo

* SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1945”

No. 510°

PAUL KNAUER,

Petitioner,

v8. >),

° THE UNITED STATES OF AMERICA

c .

_. REPLY BRIEF OF PAUL “*KNAUER, PETITIONER

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“T

Reply will be made tothe Arguments of the Solicitor —

General in ,the order in which they are made in his brief-

' But first a few general observations. |

Summary of Arguments

The Arguments of petitioner in reply to those of the

» Solicitor General érystalize into these formulas.

© ‘ : aie ‘

I

Only a solemn admission of- record is competent to over-

throw a judgment of naturalization: where the charge per-

tains only to subjective matters of intention and mental

reservations; for, the possibility,that the judgment may be

right, cannot be reduced to a certainty that it is wrong by

.any less evidence than an admissjon, —*

ee 7, Nek rt

2

. ae II

An oath of allegiance is an oral’act that operates regard-

less of any mental ‘Teservations, because the oath itself

negatives mental reservations, nd is an act that the

applicant canxot ‘recall. The oath itself can never be chal-

lenged by. either party. If the. court has jurisdiction to

administer’ the oath the applicant becomes a citizen in-

stafter, and all future acts are those of a citizen; and

the- government cannot be heard to challenge the judgment

awarding citizenship, because of acts done after admission

to citizenship.

Naturalization cases are tried judicially and can be over-

turned only upon proof of extrinsic fraud; where the Gov- -

_ ernment has consented to the application, or made no ob-

© jection to its grant, the government must show. that its

consent, or its negative action, was induced or obtained by

some active fraudulent conduct on the part of the applicant ;

otherwise res adjudicata isthe complete answer.

oe 2) i.

The question of attachment to the principles of the Con-

stitution is one of fact and its decision is submitted by.

Congress to the State and District Courts for judicial deci-

' sion; anda judgment. of naturalization have the attributes ° -

of stability of. all. judgments and cannot be overthrown ex-

cept upon ‘evidence rising to the dignity of a solemn ad-

_ mission of. revord. PS ter" ii? -

IV ct hae id

There are no conditions attached to the enjoyment of

naturalized citizenship and what is done after: admission

is granted, is done pursuant to the charter of his rights—

the certificate of the naturalization eourt; and no change of

war allies, of administration, nor the. advent of a war

°

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sone ewe can disturb him; for his oath of allegiance

is to the Constitution.

V

Cainions has not declared that ‘ a bund member may not -~

be naturalized and such membership is not inconsistent

with an attachment to our Constitution and our form of

gov ernment in our country ; and granting f reedom of speech

to such a naturalized person creates no danger to our imsti- -

tutions. Freed6m of speech is the balance wheel that pre-

serves equilibrium in government.

I

A judgment of naturalization entered in a State Court

-is res adjudicata of matters submitted to it for its ad-

judication and only a ‘solemn admission of record is com-

petent to overturn it...”

The Solicitor General contends in his Point I that peti- .

tioner in swearing in his petition for naturalization that he

intended to renounce fealty to the German Reich and that

in 1937, when he took his oath-of unquafified allegiance to

this country, he committed conscious and deliberate fraud.

The reply is that it is fundamental kaw that courts will

- nét give a repeat performance and try the sam? issue twice.

Every lawyer knows that if ke seeks to overthrow an

adjudicated issue he must allege some new matter that is

sufficient, if established, to make a different basis for ad-

judication than that which underlies the issue attacked.

Ittmust be shown that the new. facts alleged: were nat

known, and could -not reagonabl¢ have been anticipated,

from,the existence of the known facts. And where fraud is

asserted it must be alleged that such fraud precluded an

opportunity to learn the facts and thus have @& fair trial

of theissues. — Ta, ae:

a.

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Nothing is shown here in the complaint except the’ con-

clusion of the pleader that there was.a false oath. Whether

that oath was false depended on the facts that were proven

before the Judge that tried the question of fact in the State

Court. The finding and judgment of the trial court upon

those facts are therefore canclusive as between the parties.

The answer shows that the Naturalization Service made a

fall investigation of the fagts before the fqoplication was

heard. The government made no effort to show that it

did not have every fact in 1987 that it presented here in

1945. Nor did it show any concealment of any fact. * ‘Phe

presumption is, of course, that all facts existing. at the

time of the hearing in 1937 were presented to the court and

adjudicated upon. oan “ |

, Under those conditions the judgment admitting petitioner

to citizenship must stand as entered, and standing as en

tered petitioner became ja citizen and asa citizen he was,

privileged to do all thinws said to have been done after he

became a citizen. mee did not a hit te be a

citizen. ¢. ‘" a oe

The Baumgartuer case was stronger on the facts than the

case at bar. ° Baumgartner talked to his diary and put down

his otherwise seeret thoughts. Tnethis case it-shows Koaner

Was trying to protect, German citizens from unwarraticed

attack. - He was protesting unfavorable actions, Ime. was

sending charity; not for the Nazis, but for people.

The motive that, impelled Knauer actions was protec

tion and nid te Gernian-American citizens who. suffered

much in that area.

Only a Solemn Admission Will Overturn a Judgment

Which is Res Adjudicata |

[t is obvious that a judgment which has become final and

res adjudicata on the issues between the parties cannot be

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overt brown except by a solemn adimission by the party who

may be charged lo hh: ave obtained it by fratid.- Atel even

then a court would Want some corroboration. of such oan

adinission ina citizenship case. TP there be sone theory on

Whieh the judagment may be sustained it should be adoptec.

Any aan 2 thiat it may be right should proteet it,

AJ — Artin Citizenship Either Creates a Citizen

: or It Does Not

‘\ pa ene Sither creates a citizen or it does wail. "dks

at eleetrieal current it-is either off or on. Phe qilenent

Chere is fair ipon its face anid every clement of jurisdiction

is present. Pt ecompletels bond petitioner to call slutios canel

obligations of citizenship; only the government could avail

itself of any “Hp posed fraud petitioner could met Tt is

optioned with thes vevernment to attack it judenment in sueh

eases: Whichsimeans that, at most, the Jiylement was ons

Voidalile, ie. valid. until set aside. Being veidable ants

wider sneha condition all acts done thereafter were those

of accitizen and privileged exeept as against any possible

Violation of law, tune all prior aets are me reed in thee jude

Trent,

The question. of res adpidicata in steh ace Tt i tleeiche il

ina State Court, isvdetinite I passed oni in l. ‘, cape,

hel. SL ST, Be. 2,

The question Bf ren ad judicata as ayy his r in this case.

is illustrated! in Sections TE sanel TUE bustent’,

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II

¢

There can be no fraud in an oath of allegiance for the

reascn that its character is such that it operates to change

the status from alien to citizen. It is an oral act that

operates regardless of mental reservations which are hega-

‘tived i in the prescribed oath -

The validity of an oath of allegiance depends upon jurine

diction to administer it. It has the Gharacter of an act and.

ix in fact an oral act. It has the effect of stepping across

the border line from one sovereignty into the adopted

. country. | } en }

A renunciation of allegiance to a foreign sovereignty is

not mere words, but an act that transfers sovereignty. Even:

if there were mental reservations, although there can be

none, itis the act itself that transfers allegiance and the next

‘moment the naturalized citizen is subject to every obliga:

tion of the native born. A thousand oaths could give it ne

creater legal effect, However, the cath was taken as re-

quired and mental eiaiealedie are vocgatived in the oath.

There are, and can be; no meutal reservations in an wath, of

allegiance. The meeene ee form provides against it.

The nature of ai oath is such that one taking it can have

uo mental reservation. The government wrote it that Way

and the courts take, it as-is.

The Oath of Allegiance is, to Support the Constitution

and Laws of, the United States

The oath of allegiance is: a renounceinent of present

allewi lance, to another sovereignty and a declaration of an

unrdserved support .and defense of our constitution and

laws as against all enemies. The oath is the evidence of

the transfer’ of allegiance from the old to the new, This

7

oral act, this thing—the oath—the Congress has required as

an objective and enduring proof of the, new allegiance,

Without it there can be no naturalization; with it citizenship

besins.. It cannot be fraudulent for it is a tle that binds

one to the other. Tt ys an act, an-oralaet, eG

The oath isthe final and conclusive proof of the transfer

“OY allewianee, and the person making it will never be heard

to \saly that he entertained ALY mental reservations, for, %

emboilied in the oath is the statement that it is made withau:

mie ‘metial reservations, or purpose of evasion,

It ‘is the government that exacts the oath. [ts exeeniion

ands the proceeding, Citizenship flows therefrom, both: ¥

de facto and de jure. ¢ i : . .

It is the facts of the case, na: salbedicnded’ hy the MMi ite

court, that entitled the applicant to admission to vitize "

ship.» The oath is the demonstrable fact, that finally, when

all antecedent conditions exist, transfers allegiances and jt

then becomes a miimiment of tithe to citizenship, F

The oath eneages ‘the new citizen to defend-tte Corn °

“stitution in the huture neninst all enemies foreign snl -

domestic. ‘There is not a word of evide nce in this record

that tends to show that Knauer in any wise failed in that

‘respect. The evidence shows that. he relied qn thie —

enarantees of the Cons titution, and conte mnded for thers,

What he i ix shown to have done, he had the freesdom to dle,

‘Germany: Was not then our eneiny, Knauer was doing

nothing against our country, itsccoustitation or its claws.

Naturalization Cases Are Tried Judicially -

When Congress submitted the procedure of naturalizine

aliens to the judicial department it made those matters:

subject fo judicial practices, methods and procedure, and

_ the judgments of the courts. in such eases have the stability

ie

‘did so take part.

° * 8

and: sanctity of all judicial pronouncements. Things de

cided and issues adjudic: ited are to remain decided. — -

if there is lacking a jurisdictional element ina naturaliza

tion proceeding ‘a certificate of naturalization obtained

therein ix “illegally procured’ and ts subject to de set aside

asa void proceeding, on motion, hy appeal, or complaint in

equity. ’

If there is fraucof the dine ‘ter that prevents the govern.

ment from having an opportunity to properly conduct fts

portion of the proceedings, or make a proper, slowing, or

defense, then there is jurisdiction in equity to void the

judgment by which the’ certificate. of naturalization is

eranted.

But the m: itter is judicial with the usual characteristics

right of appeal for the cor rection of all-errors-relating

to trial and procedure, and the right te void the judgment

onjdirect attack for lack of jurisdiction of the existence off

Such frand as vitiates. jurisdiction.

But the Congress. gave no jurisdiction to treat a canmiptidin

in equity asa writ of error or to undo things which have

passed into the realm of res adjudicata. -This néinc pie ix

recognized by thts Court. ae

We have referred the court to the ease of U.S. ve Ness,

245 U.S. 319, in which it is stated that the Pie of the

‘State Court upon the testimony of witnesses, compete ney,

weight of evidence, and credibility of witnesses, is bindibe

and conclusive, though clearly erroneous, if the government

took part in the proceeding—and here it is admitted that it

But the Solicitor General relies upon the ease of Linria v.

UL S8., 231 U.S. 9, which he says forecloses petitioner's view-

paint. Not at all—it confitins it. The proce eding toseance!

2 certificate of naturalization beeause of abandonment. of

residence is based upon the original validity of the naturali-

z, ?

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ee ‘ < ius ae P ‘ ) ?

zation proceeding —the certificate is cancelled upon a condi

ow)

tion stbscaque nt—the abandonment of the Enited States a

a permanent residence. The option is with the government

to so contend; it may hold the party to his oath of allegiance

and exercise dominion over him wherever it ean, but the

party cannot voluntarily throw off his citizenship. The

Dy sali ies nit may allese and show: that a naturalized citizen

J: eas abandoned his residence here and eet a decree caneed tine

the certificate and thereby excuse itself@fraim further-obliga:

tion to-him: but the citizen dias no such option, for the law.

does not so state. : ’

And the faet that c oneress ple ed out that one condi

tion, to litigate a question of intention, is an exclus sion of

others. But, as said, the judgment: proceeds pon "the

theory of a change of mind aid an abandonment of what

was ence, or could honestly have been, an intention te

remain permanently here. \ - .

Of course the absent. party: may show his ahnen nee fo de

only temporary, which shows the original validity of the

tawieten ling. The prone’ facie rule j is\a iegal fiction or basis

of an issue of fact as te ai abandoduent of the United

States as a permanent residence, and is intended to <hitt

the burden to the defendant who best knows the facets.

As to Res Adjudicata

The Solicitor General has stated that petitioners position

ois.that fraud is res ad judicata When it is put in issue afi

litigated. “That of course would he trug; but petitioner

is not saving that he is defending fraul: nor is he adinitting

there was any fraud in the original issuess The vovetn

ment isthe one alleging fraud and we say there is none: bid,

if there were anything of that nature bound up if, the

evidence, it was decided against the Govermment in the trial

court: i.e. the judgment speaks that there was none.

eae

Intrinsie or Extrinsic Fraud

The Solicitor General: says thére is no distinction to be

noted between intrinsic and extrinsic fraud so as to have

any relevancé here and that all types of fraud may be

reached ina proceeding to cancel a certifieate of naturali-

zation. Ii thaf he is mistaken—only one type of fraud is

relreved from in equity, as stated in Tole do 8S. Conve oMp

Seale Co., 261 UL S. 399, and that is What is called tex.

trinsic Braud."

He cites as authority for his claim‘the ease of Maz l.

Atlas Co. v. Hartford Co., 322 US. 328, But when that

case is examined it is Seen to bea per feet type of extrinsic

fraud. There the Hartford Company so built up its case

through the medium of propaganda. that the patent office

was misled and the Cireuit Court of Appeals was so over-

impressed by the manufactured sidelight that it based its

Judgment upon it., Try as it could the Hazel-Athis Co.

never could ferret out ‘the fraud.” Years later, 15 years

later, the practiced deception came. to light in another case

and the fraud was admitted by the Hartford Co. Though

years had passed this Court overthrew the wrong, and

truth long crushed proclaimed itself anew. Hazel-Atlas Co.

v. Hartford, Co. is. the ‘perfeet example of ‘an extrinsic

fraud.. And so is Toledo S. €0.y. Comp. Scale Co., 261 U.S.

399, cited in petitioner's original brief.

Whether Called Intrinsic or Extrinsic Fraud, to Be Relieved -

_ from It, It Must Have Prevented a Full and Fair De-

- fense.

eragh Justice Taft in Toledo S. Co. v. Comp. Seale Co...

“61 TU. 399, 421, said this about intrinsic and extrinsic

ner

*There has been much. discussion as to whether

extrinsic fraud is here alleged, and the case of United

i

. 11 ‘ a

‘ ~

States vs. Throckmorton, (8 UL 8S. 61 is cited and

numerous: other authorities since that ease. We de not

find ourselves ‘obliged: to enter wWpon a conspderation

of the sometimes nice distinetions made between in

trinsic and extrinsie frauds in the application of the

rule, beeause in any case to justify setting astde a

decree for fraud whether extrinsic or intrinsic, Trine!

appear that the fraud charged really prece Hitec thre

party complaining from making a full ahd fair defense

If it does not soappear, then proof of tte ulti raite Tee

to wit, that the decree was obtiined by fraud, ¥: vids.

And in Hazel-Atlas Co. ve Hartford ®o., a2 US. 2o8,-

244; Mr. Justice pie aus the rule as.to stability af jude:

ments as follows : >

“This equity rule, which was firmly ostablig Hel in

English practice long before the foundation of air re

public, the courts have developed and tas shied te tule

fil a universally recognized need for correcting injue

‘tices which, in certain instances, are, deemed as lenths

eross to demand a departure from rigid adherence ta

the term rule. Out of “deference to the ee reated

policy in favor of the repose of jucmentts entefedt

during past terms, courts;of equity have: heen enutions

in exercising their power over such judsinents, US.)

Throckmorton 98 Uy S61."

“Intrinsic Fraud’ Is Not Fraud From Which Equity Will

Relieve ,

hpiicins here ihe rule as stated by Chief Justice Tart

Toledo S>Co.xne € sg Scale Cow ine {feet dee ides y tbat that

which is spoken of as ‘‘intrinsie frand’ or perpiredk state

ments made | in the trial of the case, is not fraud ia the fecal

sense, b it is the incident or hazard of- all lawsnits sandy

therefore, the only fraud is extrinsic fraud. aud thirst theat

type of fraud is something done whieh has ttreatly pre

vented the party complaining from making a fulleand: t: Th

- defense” (P. 421).

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‘ Applying here the ‘rule as stated by Chief Justice Taft

_ it preeluges the action of the government in this ease for the

reason that the government™ ie, not claiming that it) was

deprived of an opportunity of “making a full and fair

defense to the proceeding for naturalization. No clainn. is

made that. it; was in-any wise hindered in its preparation,

or deceived . as to the t facts, whereas the recared, spreatkes.

cooperation by -petitioner rand a complete and indepouitest

.tnvestigation by .the government. made in pre paration for

the heating. . The real claim. made by the Solic itor General

is that a lot of things have happened since the naturaliza

tion trial. which, he now coeives, point to a possibility

‘that Knauet took his oath of allegiance in 1937 with mental

reservations. What has happened i Is, a War with Germany

‘ame On, and viewpoints changed, and war psy chology bes’

came intolerant of other’s views. Racketeering j In fovern

ment condensed the whole horror of wag into the words

“Nazi? and ‘fascist’ and to-sinear one with Diie words

“was to create an at moxp re of war guilt about him. ‘It is

not the form of ecovernment that any country uses. fhat

condemns, it is the abuse of it, and: the racketeering in if,

that is thegfault. And in this case the assumption of the

lower courts was, and of the Solicitor General here is, Amit

war euilt is upor, petitioner, when, in fact, the war canie

twovand i a half years after petitioner was naturalized. This”

ease was tried once in 1937 when there w as no war ail

petitioner was admitted to citizer iship. T he government

found no fault then, but a trial of the same: issue im gan

era of actual war hes “pit a diiferent ‘complexion on the

evidence, caused by the advent of war. |

Looking into the briefs and argume nts of the MANY cases

heard by this Court where prior adjudications With ‘the

fraud clement present were involved in the issues, it is

seen that, while this c ourt has examined each ease upon its |

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merits, it has applied the-rmile contended for-by pe tittoner

theugh sometimes wtihout definitely stating it-- preferring

obviously, not to classify fraud: fanless nessnitry to the

decision. But: the rule ‘does have “it place in judielal

procedure ard often xuides the way, toa correct ceeision, .

°

‘

That fortion of the «pplication for citizenship in the pre-

scribed form which states that plaintiff. is attached to the

principles of the Constitution, is.an allegation proven and

disposed of in the State court trial, and is res adjudicata

between the parties

&

If the doe trie of stability of judgiments is to be adhered

toi the administration of justice then the preiponition of the

Solicitor General that. he can’ single out an ‘issue ina

naturalization proceeding and aelitiga@ it can have ne force

»here.. He argues that the allegation in the application for

citizenship that sttés that petitioner was attached te the

principles of the Constitution was conseiously false. That

allegation is part of the pleading in. the application for

vitizenship and is ‘an issue which the trial judee of the

State Court had to dee ide upon the evidence offered by peti-

tioner and his Witnesses ane upon the investigation and

recommendation of. the Naturalization Servieel and evi

dence of the government, if any. z

~The point was ap eg byes in di sposing of an’

argument in (Sov. Ness, 24) US. SL [2 826, where Ming

Justice Br: andes ‘is spe

“Opposition tothe granting of a petition for natural

zation may prey Vath because of ohjectioas to the com

peteney or weight“of the evidence, or credibility. of

Withesses Or mere = TT in procedure,

decision on SS ‘it lenst of a state

court of naturalization, is, thongh ‘clear erroneous,

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conclusive even against the United States if it entered

an appearance under Section 11.7")

°What Justice Brandeis was disposing of there was acon \

tention thgt a judgment without, jugisdiction Wer the sub.

ject matter (certificate of entry ‘absent) Was res ad judicata,

and he was saving that wliere a State Court has jurisdiction

its action upon the evidenve is binding as a thing decided

between the parties, but where there was absence of juris

diction there eauld Ve no res ad judicata, :

The pr ine iple was also recognized by the court in another 2

naturalization Case, This court denied a certiorari writ

to the voverhme nt whieh sought a review of the case of

Yevited States ve Sakharam G. Pandit, Bed, 2d 285.

There a trial court had admitted to citize mh a high-class

Hindu of the Brahma Caste and of full. Indian blood, born

in India, who applied for citizenship, Claiming he was a’.

“**free white person, © The application was gontested and

‘the trial court heard extended’ argument® and finally ul

mitted Pandit to citizenship on May 17, 1914. NO appesl

yas taken, On Juné 23, 1928 the government filed a petition

‘to cancel the certificate as illegally proeured. Res adjudi-

cita was pleaded; the District Court sustained: the plea.

The Cirenit (ourt of Appeals affirmed ou the ground thirt in

the triakof the issue of fact as to whether-Pandit wis a free .

white person the trial court had made an error within

jurisdiction and that the doctrine of res ad judicata applied.

This court denied certiorari (273 U.S. 759). And that

was at a date subsequent to the action of this court: in.

denying a right of citizenship to a high-easte Hindu iu the

case of United States». Thind, 261.08. 204.

And so it is to be observed that this court has spoken

when necessary to a decision upon the question of res

ad judic ata in naturalization cases, showing they are not in

a class by themselves but that the principle of stabi lity of

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judgments applies to them as in other cases, ‘Tf there were

to be aly differentiation it would seem that the rube wouhl

abe tightened instead of loosened, as citizenship: in this ma-

. tion issestegtiod one of the highest privileges.”

But, aside from the fact that the judgment acimitting

petitioner to citizenship is the highest and most conclusive

proof and expression of petitioner's attachment te. the

‘principles of our constitution, the government presented

no direc, evidence to show that Nimuer was not attached

fu the constitution: ‘Tie only evidence produce al Wis sone

1400 pages of condemnation yt the bund and then, havine

condemned it: omly to the extent That the trial jodee found

that, while its teae ings ‘were céptrary to the principles

of the constitution of the United States,’ yet, “the fact

that a person is a meniber Of a localcunit of the bund is rot,

in itself” sufficient to prove fraud which would warrant

judgment of cancellation vt it decree of naturalization’

(Tr. ety. But Rnauer never Was a member of the Bund.

_The Question of Attachmént to the Constitution Was One .

= _ of Fact for the State Court to Decide

It is admitted by the Solicitor General, as indeed he mist

admit, that the questionof whether petitioner was attached

to the principles of the constitution wala frictional question:

in the naturalization proceeding in the, State Court. Tie

‘Naturalization Service oinvestigated petitioner's back.

eround, his character, hiis beliefs in, and his knowledge of,

‘the coustitution, and petitioner and his required witnesses ’

-ravecevidence thereof; and upon that record and evidenes

the State Court passed its judgment that petitioner was

qualified and thereupon admitted him-to citizenship.

Of what purpose is all that proceeding if it may be over

¢ turned as matter ofvourse? Las it come to pass that a

solemn judgment of court has deteriorated to.the point

oc? : ; ~“ 7 .

16 a: : Py : e si

“. ,

= Where it is Gnly proma facie correct land subject tothe Cone

_ tradieted by oral eviderice?

“,

The historical background “of tlie naturalization law re »

cited ly the Solicitor General’ cannot change the fact. tat

( CHEPESS delegated to the judicial department the matter of

judic sinlly determiming the question of attachment to. the

principles of the constitution, and that means according to

the usages and procedure of the Courts; and the doctrine of

res adjudivata and stability of judgments is va foundation

stotie of that judicial structure. :

4

The principles of the constitution in wich uur applicant,

ix to believe, age not specified by C ongress and are left to

‘the judiciary to seeks determine, Everyone knows

generally what those priutiples are, but they are variously

expressed according to the viewpoint of. the individual. ©

Generally speaking they are sovereignty in the people, ane

ge legation of. powers, by the people to their government, *

and limitation of those powers ; three -independent depart 7

ments, legislative, executive and judicial, the reservation

of inviolable rights and fregloms, and the right to te pre

sentation.

Whether petitioner was att: ached to the piiiieipites of the.

constitution during the period ot “his probation was essen:

tially a question of fact for the State Court te decide Upon.

the testimony of the petitioner and his supporting Withessus,

It ix not claimes! that‘anything was hidden from the Natu-

falization Serviee-or the trial judgeg: hence it must be

assumed that therp Was a ‘full.and fair hearing upon the

issues. Here the court’ was satisfied with the record and,

judicially so determined, All the elements of res ad judicata

Are present; the trial was as of. April 48, 1937, and subse-

quent events could not alter-the j dgment entéred on that

date. The march of time dees no thange ‘legal principles

but it does change viewpoints. ; ae | :

a ' ' ; . ae

Opposing counsel in the zeal of his cloquénee says that

petitioner ‘* bitterly opposed the eire ‘lation. of wuy Matter

critical of Nazi Germany’ —referring to finding 33 Tr |

The reference there is to the acts of a person at a conve nition

passing out pamphlets of another organization from another

city, acting out of turn. There was nothing bitter about it.

It was proper uder the etre uumstances, (Witness Se eMit ys,

Knaner etrial, page 497.) - : *

Tt is also said that petitioner sought to introduce the

swastika flag into thé affairs-of the Federation of Germarr

American Societies. It is to be remembered that sone

Gerifan sotieties Wanted to keep the emblem of thie old

republic and some wanted to change to the new. There was

much agitation over the-matter, It was large Iw political

and Wits deb: ited among members and societies. Tt had ne

other significance than organization politics at that time,

> Out of the condliet the German American Citizens Miianee

‘grew with whieh petitioner was I: iter ddentifiéd and in Which

he became an officer, Tt was all ami itter of pul lie kriow Teale:

a ee

wud the government?s agents, nnd examiners'no doubt hi il

full knoWledge of the facts. They did, at — dirk their |

duty, ane that may be assumed. }

Iti Is sitid by the Solicitor \General, that ee roll l

his daughter in the “bund youth movement.* "The state

ment distorts thé facts. “One of the defendants proved that

the ‘youth movement in question Was organized hye one

~ Prause who had been a boy seout in Gerniany and hitd ne

connection with the bund; that he saw children mt the

summer camp with f organize “bentertaimmient and tliat he

proceedgd to organize the hoys and girls sand built up the

youth movement, independe nt of any organization,, hone

scout lines, The boys had their organization and the girls

theirs. . It developed mto quite an organization, and from

all that-is said of it, it was a credit to the community. There

18:

; ed

Was hothing irged as wrong about it, except that it was Ger’

man ane Was said to be subject to the influence-of propa:

wanda, It was a clean, healthy, wholesome” organization

developed along scout lines (Witness Prouse Record 1271).

All this was known at the time. But that was not wartime.

The thought of different eras changes. :

But, after it is all said, the State Court was delegated

by Congress to settle the question of mental qualifications,

intentions, attachments and conduct, and that. court tried

Those questions out and settled them to its satisfaction > tun

that of the Naturalization Service at the time, and by all

rules they should remain settled as adjudicated,

IV

Congress Has Attached No Conditions to the Full Enjoy.

ment of Naturalized Citizenship

Onee a certifieate of citizenship has been granted to one

having. all the qualifications precedent therefor he ‘need not

ae looking over his shoulder wor worry over his past. Eis +

adopted country will protect him from his prior sovereiga. -

He may lack some basic qualifications for offiee but) the

common heritage of freedom | \- his, Die may go about his

-, affairs fora littetime without being uestioncd hy any oifigial

as to his right te go and come. Te may lose his citizenship

by a condition subsequent as in Lauria ve US. 231 US. 9,

bat not by any attack upon the validity of the proceeding

hy Whichwhe was admitted to citizenship.

s essential to the enjoyment of an acquired citizenship:

thatthe new-born citizen may be assured that the judgment

adimitting bin will not be overthrown for whink or caprice.

Change of war allies, or of Administration, or the adveat

oof war psychology, Should not disturb hing for his oath of

allegiance is not to those vested with Heeting authorityeand -

; os

19 " ,

-

temporary power, nor the gavernment itself, but only te the

constitution, 2 rs) '

The interesting: collection of historical facts concerning

the limitations Upon agquired citizenship prepared by the”

Sdélicitor General in bis point IV, howey & pve Pers iesive

that there are any conditions attached to one’s admission

to eitizenship -o faras the judament admitting hin ix eon

cerned, The limitations mentioned pertain te the enjes

ment of citizenship onee it has been granted. Tis citizen!

ship AS aN cristina platus is secure, He nats hot be presi

dent, but after all, few of us ever are and on that he ts

net far from equality with one hundred forty riillion others.

‘There exists ne power to denaturalize. Votd jucderyent.

and judgments procured: by framd miay be wacated,: bat

those are yoid ah omitio, .

Av alidly naturalized citizen may not hae listurbed as te

his status after he has passed into the common fald,

yY

Freedom of Thought and Rasecedon is the Balance Wheel

of the Constitution

The accomplished Solicitor General suceest- that: Pres

dom of thought does not require that the COnSTEIT ion a:

antee its own self-destruction, whieh, of course as stated,

ix bevond dispute. But that philosophy finds no here here

It is a wishful thought, the reflection of a regret that Con

eress has not disqualified a bund member or a Nazi trou

citizenship, for even copelusive proot at sucha Hieniberscip.

does not now require that. citize niship be ce nied. The Die.

trict Court so held. ; ;

Freedom of speech need nat be feared; it holds me thresit

except to tyranny. [tis a balance wheel in government «

that is forever. striving for equilibrium. Stifle it ane

democracy will dgift into a dictatorship, as history shows,

naw

20

It was one thing to look upon Nazi socialism as a theory

of government as of 1987 and quite another to look upon

Nazi war Horrors as of 1943. It was one thing for a German

‘to look with pride upon the social gains of the German

government up to 1937, and applaud, and quite different,

to appraise that government in 1948, after a few years of

racketeering in social philosophy, = destruction, : vid

starvation. ‘ . .

The essence of the Prgument in point V of the So! itor

(ieneral's brief ts het hiner of the passing gene .

should be admitted to citizenship here: else they will Te

racketeering in freedom y and, while shouting praise ot

‘the Constitution, will be strangling its principles and pre-

cepts in every crossroad hamlet in tlie country.

It ix to treat the Nazi philosophy as if it were as deeply

rooted as a religion, as indelible as a complexion, as if it

blood, coursed the veins, fanatically, intending to consuriie

all democracy and rule the world; ‘and that- every German

ix inoculated with the. vieus. Of course, Alexander: con-

sqnered the world, but his followers, where are they?) Or

Caesars, Cromwell's, Napoleon's, or the followers of any

historic personality?) They blend in the-haze of history and

_disappear. And so the followers of Hitler soon will be a

memory. We had it in our own country. There were the

‘ ° >

**vankees*” and the ‘trebs,*’ the ‘‘earpet bageers,’? and

**vopperheads,"* to use the war words of that day, but today;

‘they live under, protect, and defend the same consti-

tution. Time cures ills. Hatred dies out with the current

veneration. — - Bon

But Congress has not said that a bund member ora Nazi

shall not be a citizen. Congress prescribes the qualifications.

As long as we can talk back at the ideas we hate we will

be safe. Who is to decide, after all, whose ‘ideas are the

~

>.

“were in fact a type of politieal enthusiasm that dyed the

21

most hateful, if there is no freedom to talk hate? To hate

seems to be one of our characteristies. ;

The answer to the question raised by the Solicitor Gen-

eral seems to be that it is a legislative one and that until:

Congress has spoken as it has in other instances, the remedy

‘is greater care jn the Nationglity Service rather than seek- -

ing to undo what was genérally accepted as correct prae-

tice prior tothe war, It was correct then, it is only thought

to be incorrect now. ; eee a ee

As long as our attachment is to constitutions and laws,

rather than meteoric personalities that rise in each century

to be worshiped, and hated as well, we are safe as a nation.

Tardily, and happily se, the cases of one era tryine

another reach this court for correction and a restraining

hand—for one generation will assume to punish the usages

‘of the other. In vain did the judges of Charles 1, when

arraigned under Charles IL, plead) their Parliamentary

Commission as authority for their judgment that) their

king be beheaded. They were smeared as ‘tregicides’? and

ordered executed for adjudging death without jurisdiction,

, The blessing js that this court sits far removed from local,

strife and can form a disinterested judement upon the

human passion of the day. |

7 : giao ‘ oe

| Conclusion - '

A judement of naturalization, in tle absence of extrinsic

fraud, is res adjudicata of all matters submitted to a State

Court for adjudication and only a solemn adutission is

-competent to overturn it. There being no such proof in

‘this ease the judgement of the Cireuit Court of Appeals and

the decree of the District Court should be reversed,

Ove L. Kankiy,.

Attorney for Petitioner,

(3718) ‘

n

<4

Respectfully submitted,

¢