April 8, 2008 11:49 AM
This is the second part of a two part article on Immigration and Free Speech.
During the half-century after the Harrisiades case established Congress' power to deport immigrants for exercising their right to free speech, a number of embarrassing cases restricting freedom of speech came up.
For example, an anti-communist socialist economist from Belgium, who had come to the U.S. on several occassions in the past, was denied entry by the Nixon administration, most likely because he was a critic of the war in Vietnam.
George Woodcock, the Canadian writer and friend of George Orwell, was kept out of the United States because he was a anarchist. The fact that he was a pacifist and an internationally recognized humanitarian apparently did not lessen the threat he posed.
Fellow Canadian Farley Mowat, the well-known nature writer and environmentalist, was denied entry to the U.S. by the Reagan administration, most likely because of his opposition to cruise missle testing by the U.S. in Canada.
Most famously, Nobel Prize winner Gabriel Garcia Marquez was barred from entering the U.S. for years due to his unpopular (with the State Department) views on the United States' role in Latin America. Imagine, an Oprah's Choice so dangerous he could not set foot here!
Lest you think that political litmus tests for admission to the United States are a thing of the past, consider the case of Professor Tariq Ramadan, a Swiss-born Muslim. Several years ago he was denied admission to the U.S. to accept a position at that American madrassa, the University of Notre Dame.
One of the things you can generally be sure of, the Supreme Court Judges who decide immigration cases will be native born. Many will trace their lineage in America back generations. In 1940, FDR appointed a different kind of justice to the Supreme Court.
Frank Murphy was the son of an Irish immigrant who may have been involved in revolutionary activities in the old country. When Murphy's dad came to the U.S. he got involved in the labor movement, so Murphy's pedigree was a bit different from those of most of his predecessors. He would become famously controversial when he attacked the internment of Japanese Americans during World War II and he was the first Supreme Court Justice to use the word racism in a decision.
In my class, I teach Murphy's opinion in the Schneiderman v. U.S. case. That case involved the taking away of citizenship (denaturalization) of someone who had immigrated to the U.S. and become a communist.
Murphy begins his majority decision by stating flatly that losing United states citizenship and being deported would be worse for an immigrant than losing property or even being being fined or imprisoned. He reminds the dissenting judges that many immigrants regard the attainment of U.S. citizenship as the "highest hope of civilized men". Accordingly, he believes that the immigration laws should be interpreted according to the ideals of the American Republic. He writes:
We should let our judgment be guided so far as the law permits by the spirit of freedom and tolerance in which our nation was founded, and by a desire to secure the blessings of liberty in thought and action to all those upon whom the right of American citizenship has been conferred by statute, as well as to the native born. ...
We are directly concerned only with the rights of this petitioner and the circumstances surrounding his naturalizati n, but we should not overlook the fact that we are a heterogeneous people. In some of our larger cities a majority of the school children are the offspring of parents only one generation, if that far, removed from the steerage of the immigrant ship, children of those who sought refuge in the new world from the cruelty and oppression of the old, where men have been burned at the stake, imprisoned, and driven into exile in countless numbers for their political and religious beliefs. Here they ahve hoped to achieve a political status as citizens in a free world in which men are privileged to think and act and speak according to their convictions, without fear of punishment or further exile so long as they keep the peace and obey the law.
Justice Murphy acknowledges that Mr. Schnieiderman holds extremely provocative political opinions. He says:
Those principles and views are not generally accepted-in fact they are distasteful to most of us-and they call for considerable change in our present form of government and society.... [But] The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. 15 Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V contains procedural provisions for constitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases (State of Rhode I land v. Palmer), 253 U.S. 350 , 40 S.Ct. 486, 588. This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is necessarily not attached to the Constitution. As Justice Holmes said, 'Surely it cannot show lack of attachment to the principles of the Constitution that (one) thinks that it can be improved.' United States v. Schwimmer, supra ( 279 U.S. 644 , 49 S.Ct. 451) (dissent). Criticism of, and the sincerity of desires to improve the Constitution should not be judged by conformity to prevailing thought because, 'if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate.' Id. See, also, [320 U.S. 118, 139] Chief Justice Hughes dissenting in United States v. Macintosh, supra, 283 U.S. at page 635, 51 S.Ct. at page 579. Whatever attitude we may individually hold toward persons and organizations that believe in or advocate extensive changes in our existing order, it should be our desire and concern at all times to uphold the right of free discussion and free thinking to which we as a people claim primary attachment. To neglect this duty in a proceeding in which we are called upon to judge whether a particular individual has failed to manifest attachment to the Constitution would be ironical indeed.
Murphy viewed America as resilient. He saw it weather the challenges of the Depression, as well as the rise of Fascism and Communism. Although the decision was handed down in the middle of the costliest war in American history, it reveals little of the hysteria reflected in the other decisions I've discussed in this two part article. While Murphy's words today are read primarily in academia, he points the way towards an enlightened approach to immigration and free speech, one which proclaims our values to the world.
Here are some other installments in the Immigration 101 series
Immigration 101 Overview of the Immigration System
Immigration 101 Employment Based
Immigration 101 Family Based Immigration
Immigration 101 So what makes up a family
Immigration 101 History We need a new Ellis Island
Immigration 101 Coming to the U.S.