Since the nation’s founding, generations of Americans have proudly characterized the United States as a “land of immigrants.” Yet the country’s treatment of its foreign-born population discloses a sustained ambivalence toward that prominent feature of its human landscape. Noncitizens’ access to the major rights and privileges that have traditionally served as key indicators of individuals’ incorporation into the political community, such as the right to vote, own property, or to hold public office or certain occupations, has fluctuated in response to internal and external political, social, and economic pressures. In contrast to this pattern of instability, the badge of civic membership distinguished as the country’s most honorable and demanding—the obligation to fight for the defense of the nation during wartime—has remained firmly affixed to the resident male alien.

Scholars have been attentive to the history of gender and race-based exclusions from some forms of military service, their employment as justifications for the unequal distribution of political privileges and rights, and their contributions to hierarchical understandings of American citizenship. For citizen women and African American men, state-imposed restrictions on their access to military training and service served as another impediment to their claims to the full range of rights enjoyed by white male citizens.Footnote ¹ Yet what has been less visible in this valuable scholarship on the political linkages between U.S. citizenship and military service are those circumstances in which policy broke with that basic formula—that is, when the state imposed military obligations on individuals who could make no claim to U.S. citizenship.

The following examination of aliens’ compulsory military service explores the political objectives and strategies that guided this seemingly contradictory development in the history of U.S. citizenship and military obligation. The major portion of this article will focus on the most critical years of policy development, those stretching from the introduction of the first federal laws governing the conscription of aliens during the Civil War through an active era of policymaking in the early decades of the twentieth century. Substantial expansions in the federal government’s administrative power over naturalization and the terms of military service would furnish both the authority and resources to enforce these enhancements in aliens’ political duties to the state. By the end of this period, the combined influence of law, policy, and community norms had dictated a sharper articulation of the civic responsibilities of noncitizen residents; and immigrants, especially those who aspired to become U.S. citizens, confronted rigorous new national and peacetime standards of political obligation.

It was during these decades that aliens’ access to certain political and civil rights, as well as citizenship itself, shifted dramatically and then assumed distinctively exclusionary features. Consequently, at a time when the political rights of aliens had entered a period of decline on the state level and access to U.S. citizenship had become more challenging, federal policies were continuing to elevate or reinforce the importance of noncitizens’ political obligations to the nation-state. The complementarity of these contrasting yet politically compatible developments becomes most visible when examined from within the entwined historical narratives of alienage, citizenship, and civic nationalism in the United States. Yet, when viewed in this context, these policy trends also expose some unresolved tensions lurking within Americans’ understanding of the formation of political obligation and its ability to define the distinctive attributes of national citizenship.

THE BLURRED BOUNDARIES OF POLITICAL OBLIGATION: ALIENS, CITIZENS, AND THE CONDITIONS OF MILITARY SERVICE PRIOR TO THE CIVIL WAR

With the notable exception of the country’s Vietnam conflict, military service during wartime has maintained an unparalleled brightness in the national firmament of civic obligations. Since the American Revolution, the country’s soldiers have served as representations of an otherwise fading republican ideal of a sacrificial citizenry. The durably appealing image of the citizen-soldier, civilian first and soldier second, has helped sustain the deeply civic character of military service. But this popular representation of patriotic dutifulness has deflected attention from the fact that in times of war the United States has never made the acquisition of citizenship a prerequisite for voluntary or involuntary service in its military forces.

No clear linkage between formal citizenship and the responsibilities of armed defense had defined or directed the organization of the country’s earliest form of compulsory military service, participation in the colonial militias. Colonial militia laws generally identified eligibility simply in terms of sex, age, and, in some cases, status as a free man.Footnote ² Alienage did not necessarily offer disqualification or exemption. In 1792, the new constitutional government declared that “each and every free able-bodied white male citizen of the respective states” between the ages of eighteen and forty-four was liable for service in the common militia.Footnote ³ With the establishment of nationhood, state-based citizenship defined the boundaries of militia membership, thus allowing individual states the discretion to engage the service of foreign-born men who were not naturalized U.S. citizens.Footnote ⁴

Where the federal government could exercise more exclusive authority over the nationality of members of its standing forces, it initially appeared inclined to do so. Language in the Military Peace Establishment Act of 1802, for example, suggested that enlistment in the army was only open to those holding national citizenship. However, in the intervening years leading up to the War of 1812, this restriction was apparently routinely ignored.Footnote ⁵ As one adjutant general explained the common tendency to disregard the rule, there seemed to be no prohibition against recruiting noncitizens who could furnish “sufficient evidence of character to entitle them to confidence.”Footnote ⁶ By 1814, legislation had realigned with practice and enlistment was open to “any free, effective able-bodied males” between the ages of eighteen and fifty.Footnote ⁷ Although Congress repealed this law shortly thereafter and reinstated the 1802 policy, the army continued to admit noncitizens into its ranks.

In the early 1840s, the legitimacy of aliens’ enlistment encountered an interesting legal challenge from an immigrant serving in the regular army. George Cottingham had followed a path of many poor foreign-born male residents when he joined the United States army less than a year after arriving in the country. During his years in the military, he did not demonstrate interest in seeking U.S. citizenship. When he sought to be released from the army before the end of his term of service, he claimed that, as an alien, he was never legally bound by his enlistment contract and could thus decamp at will. A court in Virginia ordered Cottingham’s release after concluding that Congress had intended to exclude aliens from the army. The government disagreed, appealed the decision to discharge, and ultimately prevailed. The federal attorney’s arguments and the appellate judge’s response in Cottingham’s case furnished intriguing insight into the advancement by midcentury of the political understanding that aliens could establish a mutually beneficial relationship with not just their local communities or state, but with the nation. United States v. Cottingham also offered a rare pre–Civil War display of some the basic elements of the government’s defense of its sovereign prerogative to define noncitizens’ duties to the American state.Footnote ⁸

The U.S. attorney began to build that argument by proposing that aliens might assume some of the obligational attributes of U.S. citizenship by their acceptance of some of its privileges. Therefore, he argued, the 1802 enlistment act’s reference to “citizens” could be interpreted more broadly to include aliens whose actions placed them in some respects within the national community of residents. An immigrant in Cottingham’s situation should be treated “for some purposes and to a certain extent . . . as owing a temporary allegiance to [the United States].” Utilizing Vattel’s distinction between “natural” and “local” allegiance, the government maintained that while Cottingham’s natural allegiance to Great Britain was perpetual, his local allegiance shifted when he placed himself voluntarily within the shelter of another nation-state. By reaping some of the benefits of residency in the United States, he had become invested in, and thus obligated to promote, its defense.Footnote ⁹

When delivering his opinion, Judge Briscoe G. Baldwin of the Virginia Supreme Court of Appeals chose to skirt some of the federal attorney’s broad statutory interpretations, but he concluded that the law did not categorically prohibit noncitizens from serving in the U.S. military. Then, focusing primarily on the nature of the contract between the government and Cottingham, Judge Baldwin emphasized the different expectations and conditions under which the two parties entered into that agreement. The relationship was similar to that created between master and servant, he explained, and in this case the soldier assumed a status akin to an apprentice or indentured servant. The government alone could determine whether the agreement and thus the obligation could be terminated. Then, taking this argument to its most far-reaching conclusion, Baldwin observed that as “administrative sovereign of the country,” the federal government had an “unquestionable right” in times of emergency to call any man into military service, selecting those inhabitants “best adapted to the purpose, and thus without regard to their consent.”Footnote ¹⁰ As obiter dictum, this state judge’s comments on the power of the federal government to compel its residents to arms during wartime had no direct impact on the disposition of this or subsequent similar cases, but his words were still notable in their assertions about federal power to compel military service. Exposed to considerable popular and legal inquiry during the Civil War conscription controversy, this argument managed to weather those challenges and be redeployed in 1917 to support the introduction of the Selective Service System.

Cottinghamhad suggested the basic outlines of a policy framework that, once officially and firmly jointed together by federal legislation and administrative developments, would serve the government well in supporting its power not only to demand the military service of citizens and resident aliens but to claim an exclusive role in defining the pre- and postnaturalization obligations of the adopted citizen. In 1843, Private Cottingham’s challenge to aliens’ voluntary or forced presence in the U.S. army invited the federal government to articulate, however incipiently, a rationale for compelling aliens as well as citizens to serve with or without their explicit consent.Footnote ¹¹ A century later, after drafting resident aliens during three major wars, the U.S. government appeared to have secured this political argument.

As a member of the country’s small peacetime army, Cottingham and the aliens and Americans who served with him attracted few displays of gratitude from the general public. As one historian of this antebellum army described the uneasy relationship between the civilian and the soldier, “The best a soldier could hope for was that his fellow Americans would ignore him, and most did.”Footnote ¹² The unpopularity of the regulars had deep roots, fed by a distrust of standing armies and a general assumption that men who joined the army during peacetime lacked ambition and strong character.Footnote ¹³ Observers would also often note, disdainfully, that the army’s ranks were well populated by foreigners—men stereotypically presumed to be more suited to a life of military subordination than independent-minded, freedom-loving Americans. Even one British visitor contemptuously described the United States’ peacetime military force as the “scum of the population of the older states, . . . worthless German, English, or Irish emigrants.”Footnote ¹⁴

In contrast, the public embraced the image of its “citizen-soldier,” who seemed a more fitting embodiment of the country’s patriotic and republican ideals.Footnote ¹⁵ Yet, despite generous praise from the American public for its sacrificial service, militiamen’s unpredictable and sometimes dismal performances during the American Revolution and War of 1812 prompted calls for reforming this civilian reserve system. In the years leading up to the Civil War, Congress would consider several proposals to strengthen the federal government’s control over the nation’s military reserves, which remained under the jealous guardianship of the states. While reformers could readily cite evidence of the inadequate size of the country’s army and the poor preparation of the states’ militias, significant attempts at military reorganization remained frustrated by resistance to any further centralization of military control in the hands of the federal government. Even George Washington’s early appeals to Congress for a strengthened peacetime military establishment, which included a plan for extending federal control over the militia, were effectively ignored.Footnote ¹⁶ Subsequent schemes to enlarge federal oversight of the training and arming of the militia to ensure that it was indeed “well regulated” met similar fates or were amended to fall short of the desired goal.Footnote ¹⁷

Americans’ representation of the citizen-soldier as the backbone of the country’s defense had its origins in Whig republican thought, which celebrated an armed citizenry (as opposed to a standing army) as the protectors of the republic and the people’s liberties. But this idea rested on the assumption that the average male citizen would display a ready willingness—and the skills—to ably defend his country. The political understanding that bearing arms was both a right and a responsibility of citizenship also helped sustain the American public’s confidence in the country’s capacity to quickly assemble an effective volunteer citizen army. From this perspective, the citizen’s availability to defend his country served as an affirmation of the substantive value of his relationship with the state. As George Washington explained, “It may be laid down as a primary position, and the basis of our system, that every Citizen who enjoys the protection of a free Government, owes not only a proportion of his property, but even of his personal services to the defence of it.”Footnote ¹⁸

While this understanding of a universal military obligation retained some rhetorical currency in the years leading up to the Civil War, practice never modeled that standard. David C. Williams, in describing this disparity, observed that “actual Anglo-American militias were never truly universal, but the militias of republican rhetoric, theory, and aspiration nearly always were.”Footnote ¹⁹ One could also add that the militias were never exclusively composed of Americans, despite their romanticized depiction as patriotic bands of “citizen-soldiers.” In the antebellum decades, the male citizenry had become increasingly disengaged from serious commitment to state-mandated militia training. At the same time, the country’s regular army was operating on policies that effectively reconfigured the obligation to defend the state as a responsibility allied more closely to the circumstances of residence or race than to citizenship. The government’s arguments in Cottingham’s case had confirmed the federal government’s conceptual decoupling of armed obligation from formal citizenship; and state policies on militia training and service furnished additional evidence of this political reality by continuing to require the participation of white resident aliens while limiting the participation of free African Americans.Footnote ²⁰

THE CIVIL WAR DRAFT AND THE CONSCRIPTION OF DECLARANTS

With the exception of the Civil War years, the nineteenth century saw a decline in males’ expectations of compulsory active service in their state’s common militia, whether citizen or alien.Footnote ²¹ In the antebellum period, many states appeared indifferent to the task of training a militia armed and drilled to fighting readiness. Yet, while the demand for active civilian service decreased in this important arena, some of the political privileges of residence expanded for a growing number of noncitizen men. Several states and territories displayed an openness to extending the rights to own property, vote, or even hold public office to certain resident noncitizens, thus eliminating some of the traditional demarcations of political disability long evident along the boundaries between alienage and citizenship. As the number of state-based privileges shared by aliens and citizens increased in the second half of the nineteenth century, a growing number of states and territories could offer a relatively liberal accounting of the political privileges and obligations exercised by white alien male residents.Footnote ²² For many male immigrants in this period, the transition to state citizen, defined primarily by the meeting of residency requirements, remained relatively brief and easy. Acquisition of the rights and privileges of U.S. citizenship, however, was a more difficult, deliberate, and lengthy project. Nevertheless, as the introduction of the Civil War draft reaffirmed, the obligation to bear arms in defense of the United States could be more passively, almost effortlessly, acquired.

During that conflict, the U.S. government’s ability to stake claim to the military services of all able-bodied males regardless of nationality became a linchpin of its mobilization plan. With the introduction of a national draft, conscription began to play a more visible role in mediating the relationship between the citizen, the alien, and the nation-state.Footnote ²³ Faced with the need to expand the federal forces quickly, but challenged by Americans’ inclination to recoil from efforts to compel their military service, the federal government first relied on appeals to patriotism, manhood, and civic conscience to populate the Union Army. But by 1863, it was apparent that volunteering alone, without the prod of conscription, would not replenish thinning ranks.

The government defended its resort to a draft as a legitimate exercise of Congress and the Commander-in-Chief’s joint constitutional authority to raise an army. By the early twentieth century, a more expansive interpretation of the scope of these powers would sponsor a bolder succession of legislative maneuvers to consolidate federal control over both the physical organization and training of the country’s military forces and to advance a more elaborate understanding of the individual obligation to defend the state in both wartime and peace. The Enrollment Act of March 3, 1863, represented the first major milestone in that historical timeline. This legislation, which called men to serve in the “national forces of the United States,” identified draft registrants as all male citizens between the ages of twenty and thirty-five, as well as unmarried men under the age of forty-five. Declarant men of the same ages—that is, those who had submitted declarations of intention to become U.S. citizens—also had to register.Footnote ²⁴ Significantly, the law made no mention of the militia, that part of the military organization remaining partially under the control of the states. Provost Marshal General Enoch Crowder, a principal administrator of the first Selective Service Act during World War I, would later reflect that this law marked “the first wide departure from the old theory of citizenship” because it assumed “a direct and personal obligation to the nation.”Footnote ²⁵ A historian of the Civil War, echoing that observation, suggested that the national draft signaled the federal government’s readiness to assert that military service was now “an incident of national, and not State, citizenship.”Footnote ²⁶

The Civil War draft laws did begin to shift principal authority for defining the terms of this duty from the individual states to the national government, marking an important transitional moment in the country’s history of military obligation. However, the provisions of the law belied the principle that national citizenship was the source of this personal responsibility. During the war, the federal government treated citizens and certain groups of unnaturalized immigrants as equally draftable, and aliens could serve as substitutes for conscripted citizens. The initial national draft law provided several categories of exemption, but alienage was not among them.

The demands of wartime mobilization also highlighted a policy nexus between military recruitment and naturalization that remains very visible today. In the summer of 1862, the War Department explicitly communicated its interest in drawing on the manpower of the country’s considerable immigrant population by offering to reward military service with expedited admission to U.S. citizenship. Men who were twenty-one years or older and served honorably in the regular or volunteer army could apply for citizenship without filing a declaration of intention and after residing in the country for just one year.Footnote ²⁷ While an invitation to save their adopted country from disunion might not have inspired some immigrant men to join the Union cause, the enticement of a fast road to citizenship could have the same practical effect. Whether their motives were noble, self-serving, or both, the military contributions of immigrants were critical.Footnote ²⁸ Over 20 percent of the men in the Union Army were foreign-born.Footnote ²⁹

Despite the inclusion of declarants in the mix of draft registrants, some state governors still struggled to meet their draft quotas, in part because they could not tap that significant portion of their foreign-born residents who had not filed declarations of intention.Footnote ³⁰ Secretary of State William Seward’s responses to these concerns presaged a change in draft policy affecting noncitizens, but one that would have questionable standing in international law. While conceding that there was “no principle more distinctly and clearly settled in the law of nations than the rule that resident aliens not naturalized are not liable to perform military service,” Seward also claimed an important domestic exception to that rule: “In every case where an alien has exercised suffrage in the United States he is regarded as having forfeited his allegiance to his native sovereign, and he is in consequence of that act, like any citizen, liable to perform military service.”Footnote ³¹ However, it was not entirely clear from this pronouncement who was declaring such a resident immigrant an expatriate: his country of origin and nationality or his country of residence. Many nations did not recognize an individual’s right to unilaterally alter his or her citizenship; and, even if voting in an American state election did work an immigrant’s forfeiture of his original citizenship, it did nothing to advance his prospects for naturalization in the United States or necessarily confirm his legal status as a state citizen. His actions might even render him stateless; but according to the secretary of state, he was nevertheless fully obligated to his host country’s defense.Footnote ³²

The federal government’s rationale for the conscription of aliens raised an intriguing question about the political formulation of obligation outside the conventional citizen/state paradigm. The law of nations treated the power to confer or withdraw citizenship, as well as define its rights and obligations, as an exercise of national sovereignty and thus strictly a domestic matter. Conscription of another country’s citizens, however, fell within the domain of international law. The U.S. government’s decision to unilaterally define the circumstances under which a resident alien lost his citizenship and consented to military service in a foreign country blurred those traditional legal boundaries.

Inevitably, the drafting of declarants and other aliens elicited protests from countries that interpreted the United States’ action as a violation of their sovereign rights. How far could the United States legitimately extend its power to define national obligations when operating in the political terrain stretching between the conditions of citizenship and alienage? President Abraham Lincoln’s actions to address this question indicated the federal government’s reluctance during the national crisis to concede any critical ground already claimed in this intensifying political battle. Nevertheless, in 1863, Lincoln sought some resolution of the delicate diplomatic situation by issuing a proclamation acknowledging that under international law declarants who had not voted or exercised “any other political franchise” under U.S. or state law could renounce their intention to become citizens and thus avoid being drafted. To confirm their decisions, these men would have to leave the country within sixty-five days of the issuance of the proclamation. Any eligible declarant remaining after the expiration of that period of election was subject to the draft.Footnote ³³

When the United States organized its next military draft during World War I, federal law would simply bar those who had withdrawn their declarations of intention from subsequently seeking U.S. citizenship.Footnote ³⁴ But in 1863, state citizenship represented the much richer source of rights and privileges for immigrants. Requiring alien draft exemptees to leave the country thus delivered a double penalty by effectively severing their most valuable political relationship as well as future access to U.S. citizenship.Footnote ³⁵ However, by providing these men with an opportunity to escape conscription in a foreign army, the new rules nominally satisfied international law’s prohibition against forcing citizens of neutral nations into military service. The declarant who chose to remain in the United States could be presumed to have consented to his conscription. Yet there was no legal detour around the draft for the “first paper man,” who, in addition to taking that first step toward U.S. citizenship, had exercised some of the political privileges of state citizenship. The federal government held fast to the argument that these declarants had implicitly renounced their native citizenship and thus removed any legal barrier to their conscription.Footnote ³⁶

An 1864 conscription act extended the reach of the draft to some nondeclarants, specifically resident men who had exercised some of the privileges of state citizenship by holding public office or voting in an election held under the authority of a state or territory. Although neither voting nor holding public office contributed directly to nondeclarants’ transition from aliens to naturalized U.S. citizens, this draft law designated such actions “conclusive evidence” that these men were “not entitled to exemption from military service on account of alienage.”Footnote ³⁷ These new terms for aliens’ military liability reconfirmed the federal government’s intent to secure male immigrants’ civic indebtedness by advancing them along an imagined continuum of political membership to that span where the boundary between alienage and citizenship became less distinct and, in terms of obligations, most flexible. By progressively maneuvering these men into a more politically exploitable position, the government could maximize their value to the state.

A MORE “DEMOCRATIC” DRAFT? THE CONSCRIPTION OF ALIENS DURING WORLD WAR I

Placing the resident alien and citizen on nearly equal footing in terms of military service liability left less rhetorical space to distinguish the wartime contributions of the citizen-soldier from those of the conscript of indefinite allegiance. But the practical need to implement a draft of male citizens and aliens forced this complication in the representation of the soldier’s contributions to national defense as an unforced demonstration of devotion to the United States. During World War I, the drafting of citizens and noncitizens again threatened to reduce the civic capital of military service by compromising its consensual qualities and exposing its connection to citizenship as more imaginary than real. One factor that partially eased the difficulty of reconciling the Selective Service System’s compulsory elements with the virtues of volunteerism and its physical embodiment in the form of the citizen-soldier was the American public’s support for drafting aliens—a sentiment partially fueled by resentment toward immigrants who had declined to volunteer for military duty. When the United States entered the war in 1917, much of the national community seemed to welcome the government’s expectation that young men, regardless of citizenship status, should be prepared to claim an equal share of sacrificial responsibilities.

After drafting and naturalizing another generation of aliens to fight in World War I, and withholding citizenship from other immigrants who declined to fight in the American forces, the national government would secure its role as administrative sovereign in matters of conscription and naturalization.Footnote ³⁸ For most of the remainder of the twentieth century, the reinforcement of federal control over naturalization policy and military mobilization remained buffered against serious political challenge by the assertion that the promotion of national defense and unity—primary responsibilities of the nation-state—were the motivating purposes behind these power-engrossing operations.

Yet when the United States entered World War I, the federal government immediately faced the critical challenge of selling military conscription to an American public still politically disposed to viewing a compulsory system as a serious invasion of individual liberties, a constitutionally questionable exercise of authority by the president, a dangerous step toward the establishment of a militarized state, or an affront to the honorable tradition of volunteerism.Footnote ³⁹ Federal officials could not afford to be less than acutely sensitive to the history and depth of any of these sentiments, but they also believed they had developed a war mobilization plan unencumbered by the structural weaknesses that had fueled much of the public’s hostility toward the last draft system. Nevertheless, the early introduction of conscription in 1917 and the subsequent prohibition against volunteer recruiting represented a controversial circumvention of a revered American wartime tradition. From the Wilson administration’s perspective, however, that tradition had become an inconvenient impediment to government control over the strategic distribution of the country’s manpower.Footnote ⁴⁰ World War I required swift and efficient mobilization of the nation’s human and industrial resources, and a military plan exposed to the vagaries of voluntarism could undermine that goal. The Selective Service Draft Act of 1917 gave the president an unprecedented amount of control over the regular army, the National Draft Army, the National Guard, and the appointment of its officers. Consequently, volunteers did not dominate the ranks of this wartime army; over 70 percent of doughboys were conscripted men.Footnote ⁴¹

Supporters of Selective Service heralded the new conscription plan as civically and administratively superior to any previous system the country had employed to raise an army—a fair claim in many respects.Footnote ⁴² Perhaps their boldest attacks came against the historical preference for volunteer recruiting. They dismissed this popular practice as fundamentally flawed—“undemocratic, unreliable, extravagant, inefficient, and . . . unsafe.” Major General Leonard Wood, a spirited promoter of universal military training before the war, denounced the volunteer system as destructive of “that individual sense of obligation for military service which should be found in every citizen.”Footnote ⁴³ According to Wood, the best system for recruiting the citizen-soldier could not be based on volunteerism, which, as the Civil War experience had demonstrated, allowed too many men to evade their duty to their country.

Among volunteerism’s other alleged vices: it perpetuated the stigma of being drafted. According to its enthusiastic proponents, the new “selective” draft system eradicated this defect by establishing compulsory service’s proper civic representation as “a special badge of honor.” The new registration plan, once implemented with its virtues fully displayed, would confirm “the duty of each to give his life for his country in times of stress and war.”Footnote ⁴⁴ Henry Stimson, who would serve as secretary of war in two presidential administrations, likewise trumpeted conscription’s democratic features; it was an institution “in which every man, rich or poor, shall bear his part in this obligation of citizenship.”Footnote ⁴⁵ President Wilson, though a recent convert to the conscriptionist camp, echoed this patriotic message: “The principle of the selective draft, in short, has at its heart this idea, that there is a universal obligation to serve.”Footnote ⁴⁶ Selective conscription, as envisioned by its most ardent promoters, could evoke all the civic and patriotic appeal of volunteerism without succumbing to its inherent inefficiencies.Footnote ⁴⁷ The civilian army raised through Selective Service would best reflect a fundamental principle of democratic citizenship articulated by the country’s first president and commander-in-chief—that every citizen who enjoyed the benefits of a free government was obligated to render service in its defense. This federal draft policy would thus honor a founder’s faith that military service was a personal and nontransferable obligation to the nation-state.

Although conscriptionists reflexively invoked the traditional representation of military service as a fundamental duty of citizens, the Selective Service System retained the Civil War policy of registering and drafting “first paper” men. Upon completion of the war’s three draft registrations, more than one million of these male declarants as well as more than two and half million nondeclarants had been enrolled for potential military service.Footnote ⁴⁸ The conscription of noncitizens, particularly persons from neutral nations, again provoked diplomatic controversy as well as dissension within the federal government.Footnote ⁴⁹ The Department of State’s solicitor bluntly informed members of the House Committee on Immigration and Naturalization that it was the opinion of his department that the Selective Service provisions governing the drafting of aliens were “contrary to the best of modern thought on international law.”Footnote ⁵⁰ Despite such open criticism of the policy within the Wilson administration and repeated accusations by neutral nations that its actions violated treaty obligations, the War Department continued registering and drafting neutral declarants.Footnote ⁵¹ Finally, unwilling to hazard more serious consequences for antagonizing friendly and neutral governments, the president moved to settle the dispute in April 1918 by ordering that declarants and nondeclarants of treaty countries be “promptly discharged” upon presentation of a diplomatic request from their home countries.Footnote ⁵²

This late executive action quickly generated its own set of aggravated officials. Provost Marshal General Enoch Crowder broadcast his discontent with the change in a report on the general operation of the Selective Service System, declaring that “it is not too much to say that the spectacle of American boys, the finest in the community, going forth to fight for the liberty of the world, while sturdy aliens, many of them born in the very countries invaded by the enemy, stay at home and make money, has been the one notable cause of dissatisfaction with the scheme of military service embodied in the selective-service act.”Footnote ⁵³ The actions of local draft boards also reflected strong support for compelling resident aliens to serve.Footnote ⁵⁴ Congress’s reaction to the Wilson administration’s shift in policy on the release of noncitizens from military service was the most dramatic and forceful. While confirming that men from neutral nations could withdraw their declarations of intention to avoid the draft, the country’s legislators proposed new naturalization laws to ensure that these former declarants would be permanently ineligible for U.S. citizenship.Footnote ⁵⁵ A decision to avoid military service, even when sanctioned by Selective Service exemption policies, might serve as dispositive evidence of an immigrant’s lack of fitness for citizenship. Consequently, withdrawing a declaration of intention, which did not involve any violation of federal law, could impose the same kind of political excommunication incurred by a citizen’s desertion from the military. Congress thus conveyed the country’s rising expectations about immigrants’ political responsiveness to the needs of the national community, as well as the power of the government to compel such deference.

JUDGING “TRUE FAITH AND ALLEGIANCE”: EARLY POSTWAR NATURALIZATION POLICY AND THE TREATMENT OF MILITARY VETERANS AND EXEMPTEES

If “alien slackers” fell among the worst candidates for citizenship, foreign-born men who served honorably in the country’s military during wartime were model civic material. Congress again approved the expedited naturalization of alien servicemen, a policy that did much to help repair the badly frayed political relationship between citizenship and military service. In 1918, lawmakers introduced several adjustments in the naturalization process to accommodate these men, including waiving the declaration of intention, application fees, and proof of five years’ residence. Additional arrangements facilitated the naturalization of soldiers already stationed overseas. That year, the Labor Department recorded close to 64,000 military naturalizations. By December 1920, its Bureau of Naturalization had processed an impressive 244,300 military naturalizations.Footnote ⁵⁶ And, for a short number of years during and after the war, soldiers and veterans who would otherwise have been considered racially excluded from U.S. citizenship were naturalized.Footnote ⁵⁷ These developments prompted one contemporary analyst to declare that the war had “destroyed the underpinning of the great structure of hand-picked citizenry,” which the Bureau of Naturalization had assiduously cultivated in the previous decade.Footnote ⁵⁸ Subsequent developments in the postwar period would force some amendment to this conclusion, however. While the bureau’s selective policies and practices were effectively suspended during the duration of the war for the benefit of individuals in military service, the political undercurrents that had originally produced them were still actively flowing. After the war, the trend toward restriction quickly reestablished its course.

The popular notion that military training and service could be valuable crucibles of cultural assimilation predated this war, but the argument picked up considerable propaganda value during the conflict.Footnote ⁵⁹ The public’s ire toward immigrant men who had remained home, comfortably employed, while Americans died on foreign battlefields was tempered somewhat by the federal government’s enthusiastic promotion of its wartime Americanization programs for the foreign-born doughboy. Celebrating the naturalization of immigrant soldiers served both immediate wartime and long-term nationalistic and assimilationist goals. If the draftee did not begin the war as a citizen-soldier, it was the government’s intention that he should leave the army as one. Naturalizing these men could also help confirm that the patriotic dedication of the country’s forces was not compromised by it ethnic heterogeneity.Footnote ⁶⁰ As the provost marshal general assured the American public, military (and citizenship) training had “turned the ‘Foreign Legion’ of the Army of the United States into a host of loyal American citizen-soldiers.”Footnote ⁶¹ Naturalization officials joined in heralding these new recruits as fundamentally and civically transformed, both in their own eyes and those of the larger national community. As the commissioner of naturalization enthusiastically announced after the close of the war, “Certainly there is no room to doubt that the inspiration imparted by the bestowal of American citizenship upon our alien-born soldiers before their departure overseas strengthened their spirit and thus became a factor in the final overthrow of the Central Empires.”Footnote ⁶²

Historian Christopher Capozzola has observed that Americans’ heightened occupation with the performance of their political obligations “energized, mobilized, and divided” them during the war. Meanwhile, their government, enforcing a sweeping definition of what constituted seditious activities on the home front, employed its own system for “evaluat[ing] the contents of American citizens’ minds and souls.”Footnote ⁶³ Industrial and military mobilization, as well as the government’s efforts to win the war with unified cooperation from the civilian public, forced changes in Americans’ relationship to one another and the state. Some, like conscription, were temporary readjustments in both rights and responsibilities tolerable only in the context of the emergency; others, still able to draw energy from the intense nationalism generated by the war, affected postwar discourse and policies seeking to explicate the essential obligations of American citizenship. David M. Kennedy, surveying the postwar climate, concluded that the country’s entry into the world war and the postarmistice debates over the nation’s global leadership responsibilities “obligated Americans as never before to reflect on their nation’s essential characteristics.”Footnote ⁶⁴

The U.S. involvement in the “European War” also left many Americans apprehensive about their country’s ability to avoid becoming embroiled in future armed conflicts fought on foreign battlefields. While isolationism remained an influential force in curbing U.S. foreign military entanglements and pressure to construct a larger standing army after World War I, more Americans were willing to concede that their country and its young men had to be better prepared to fight in a future defensive war. That concession opened the door to a round of legislative proposals on military preparedness designed to maneuver the federal government into a better position to plan and execute the mobilization of its armed forces. Subsequent congressional hearings over reforming the military, a vigorous campaign for universal military training, nationwide protests at university campuses against compulsory ROTC, an active peace movement, and a spate of controversial Supreme Court decisions denying naturalization to pacifists all kept the question of military obligation before a peacetime public.

The months of intense debate over membership in the League of Nations and the scope of the country’s responsibility to ensure a more peaceful future also extended the life of Americans’ war-induced examination of their personal obligations as citizens. But what was perhaps more striking about this early postwar period was the public’s attentiveness to the beliefs and actions of prospective citizens. While Americans’ zealous engagement in self-policing during the war had led to widespread and sometimes violent attacks on one another for alleged violations of patriotic duty, with the restoration of peace much of this vigilantist energy shifted toward critical examination of the civic value of the “American in waiting.”Footnote ⁶⁵ The political response to this postwar mentality included adjustments in immigration and naturalization policy to ensure that future citizenship candidates did not fall short of new standards of “one-hundred percent Americanism.”

Postwar global and domestic concerns fostered new, and invigorated old, political insecurities. As one contemporary observer reported, “Not within the memory of living Americans, nor scarcely with the entire history of the nation, has such a wave of fear swept over the public mind as occurred during the twelve or fifteen months following the armistice.”Footnote ⁶⁶ The stresses of this postwar atmosphere only intensified many native-born Americans’ anxieties about the social and political impact of hosting a large foreign-born population. While the Palmer Raids and subsequent political deportations were perhaps the most infamous product of that early postwar mentality, broader contemporary trends in immigration and naturalization policy would have a more lasting effect on national life.

The restrictionist regime that dominated immigration policy in this period prompted one scholar of immigration policy to observe that it appeared that “the United States [had] loudly proclaimed to the world its determination to cease being a nation of immigrants.”Footnote ⁶⁷ Gaining legal entry into the United States was the first step toward naturalization, and for most aliens seeking admission to the country in the decade after the war, achieving that goal did become more challenging. Immigration restrictionists had already scored a significant legislative victory in the months leading up to the entry of the United States into World War I with the introduction of a literacy test for permanent entry and the implementation of the Asian ‘barred zone.”Footnote ⁶⁸ The postwar quota acts of 1921 and 1924, as intended, orchestrated additional targeted reductions in immigration in an effort to restore the domination of admissions from northern and western European countries. The 1924 law also provided for the exclusion of any person ineligible for citizenship.Footnote ⁶⁹ A new generation of bills proposing further statutory restrictions on naturalization complemented these efforts. The racial restrictions on naturalization, which limited eligibility to “white” persons and those of African descent, remained untouched, while the chances of being rejected for reasons related to moral character or insufficient demonstrations of loyalty to the United States increased.

The hostility toward “alien slackers” generated during World War I did not immediately recede with the restoration of peace but remained visible enough to provide some inspiration for the development of new administrative strategies raising the bar on naturalization. The attention lingering on immigrants who had declined to fight fed into a postwar nativist narrative catalyzed by suspicions that aliens of weak civic character and hostile allegiances were eroding the strength and cohesiveness of the national community. Yielding to the political pressures created by the mounting volume of these accusations, the federal government responded with an enhanced naturalization process that permitted an unprecedented level of scrutiny of applicants’ personal actions and political beliefs to ascertain whether they were “attached to the principles of the Constitution” as well as persons of “good moral character.” These developments, coupled with the introduction of the popular quota-based restrictions on immigration and continued harassment of political radicals, confirmed that the country’s leadership was disposed to heed Theodore Roosevelt’s summons that “there must be no sagging back in the fight for Americanism merely because the war is over.”Footnote ⁷⁰

A few years before the outbreak of World War I, the president of the American Society of International Law had observed that the question of military obligation represented the “most difficult and least settled phase” of aliens’ relationship to the state.Footnote ⁷¹ Yet by the early postwar years, the United States had developed and defended naturalization and military conscription policies that maximized the federal government’s opportunities to benefit from that relationship. When members of Lincoln’s administration had confronted the issue more than half a century earlier, they had linked aliens’ responsibility to defend the nation reciprocally to tangible benefits extended by the several states (i.e., state citizenship, rights to own property, vote, and hold office). But by World War I, the access of aliens to political rights, especially the elective franchise, was a rapidly fading justification for compulsory military service. Although twenty-two states and territories had extended the vote to some noncitizens by the end of the nineteenth century, by World War I this privilege had receded dramatically.Footnote ⁷² By 1926, it would disappear in all states, a casualty of anti-immigrant sentiment.Footnote ⁷³ Consequently, World War I conscriptionists’ primary remaining target within the foreign population had been the male declarant, the immigrant who had taken at least a preliminary step toward U.S. citizenship.

Within a year of the war’s end, the larger political implications of declarants’ conscription demonstrated their influence on the disposition of tens of thousands of naturalization petitions involving resident men who had taken advantage of the alienage exemption from military service. Resentment toward these immigrants’ actions, carried into the early postwar period, took the form of calls for permanently excluding military exemptees from naturalization. There was sufficient popular support for this idea in 1919 to encourage members of Congress to introduce several “alien slacker” bills, which generally targeted immigrant men who had withdrawn their declarations of intention to avoid the draft.Footnote ⁷⁴ Most of the proposals provided for the deportation of these former declarants in addition to their permanent or temporary debarment from seeking U.S. citizenship.Footnote ⁷⁵ The bills also reinforced the operative relationship between military service and citizenship—that U.S. citizenship was not a requirement for military service but could serve as its reward.

Sponsors of this postwar legislation generally reported that they were responding to their constituents’ bitterness toward a particular group of foreign-born men. According to one Massachusetts representative, returning American soldiers resented finding their jobs held by former declarants and felt that “some sort of punishment should be meted out to these aliens, that some sort of brand should be placed on them.”Footnote ⁷⁶ The newly formed American Legion also weighed in on the issue, passing a resolution at its first convention calling for the deportation of the increasingly maligned “alien slacker.”Footnote ⁷⁷ Despite strong expressions of popular sentiment for the deportation proposals, they did not survive. While denouncing these draft exemptees remain a lively pastime for some members of Congress, the State Department’s cautionary remarks about the ill will that such deportations would create among treaty countries seemed to have a sobering effect on the House Committee on Immigration and Naturalization. As Secretary of State Robert Lansing diplomatically yet candidly framed the issue, “It may be difficult . . . to convince foreign governments that their subjects are properly to be placed in that category [of disturbers of the public peace] merely because they have availed themselves of a privilege given them by law and in accordance with the provision of such a law.”Footnote ⁷⁸

After the war, the greater part of discussion and decision making regarding the obligational contributions of aliens to national security and unity shifted from inside the War Department and Congress to the Bureau of Naturalization and state and federal naturalization courts. The high volume of postwar naturalization cases involving military veterans and exemptees provided the Bureau of Naturalization examiners assigned to these courts with an excellent environment for showcasing their agency’s more rigorous approach to gauging the civic fitness of citizenship candidates. Even before the United States had entered World War I, the bureau’s chief official, Richard K. Campbell, had expressed his concern that current naturalization examination procedures did not yield sufficient evidence of prospective citizens’ commitments to certain civic ideals and practices. In his view, continuing the long-standing custom of simply asking petitioners to swear that they understood and embraced constitutional doctrines was insufficient proof that those words represented anything more than “an empty formality.” Yet the government had allowed such affirmations to serve as “the supreme—almost the only—assurance that [the naturalization candidate] is competent and worthy to become a citizen of this country.”Footnote ⁷⁹

In the following year’s annual report, Commissioner Campbell restated this warning, noting that for over a century an alien’s fitness for citizenship had rested on proof of residence and good behavior. Unless the presiding judge was presented with contrary evidence, the petitioner was presumed to possess the critical “attachment” to the nation’s core political institutions and systems. But now, the commissioner observed, the American public and naturalization courts were beginning to comprehend that this superficial evidence was a “slender foundation” to support such a vital presumption.Footnote ⁸⁰ By 1917, Campbell’s expressions of doubt about the inadequacy of the naturalization examination seemed partially relieved by his praise of the work of the naturalization courts, which he believed were taking “painstaking care” to ensure that only those candidates who were genuinely attached to the country’s foundational beliefs were admitted to citizenship. Certainly some of the commissioner’s general satisfaction with the work of the courts was directed toward the efforts of his bureau examiners, who assisted an increasing number of overburdened naturalization judges by conducting preliminary examinations of naturalization petitioners’ personal associations, beliefs, and activities. He also credited the American public with inspiring this new vigilance, “the sudden awakening of our people to a sense of the value of American citizenship, not merely to the person who acquires it but to those who always have had it and who know that at all cost it must be preserved in its purity.”Footnote ⁸¹

Procedural adjustments to the naturalization process after the war reflected this renewed attentiveness to the demands of citizenship. Given the country’s most recent experiences with the draft, the Bureau of Naturalization sought to highlight the significance of armed defense of the nation-state by requiring citizenship candidates to offer an unequivocal pledge to engage in combatant military service if called to that duty. Naturalization officials touted their rigid postwar testing of petitioners’ commitment to defending the Constitution and laws of the United States as a timely move to protect the integrity of U.S. citizenship. Once deployed, this measure of fit citizenship would transform an alien’s routine military service exemption into a mark of infidelity to the state.

The antiradicalism and pro-Americanism of the 1920s left their imprint on the harshening features of naturalization policy. While thousands of veterans were receiving their naturalization certificates for honorable military service, thousands of other immigrants who had opted to take the military exemption offered to aliens during the recent war encountered the unforeseen but costly consequences of their actions.Footnote ⁸² According to the Bureau of Naturalization, in 1919 alone, almost eight thousand men who would likely have been naturalized before the war were denied U.S. citizenship because they had been unwilling to risk their lives in wartime service to the country.Footnote ⁸³

In many of these exemptee cases, naturalization examiners recommended dismissing a petition because the immigrant had failed to demonstrate “attachment to the principles of the Constitution.” This particular requirement had been part of the country’s naturalization law since 1795, but it had exercised relatively modest influence over the disposition of naturalization petitions and attracted little attention from legal scholars, Congress, or the American public.Footnote ⁸⁴ As the commissioner of naturalization had reported, petitioners would generally meet this standard by simply taking the naturalization oath. However, in an era marked by heightened criticism of the integrity of the naturalization process, this mechanical exercise had become too superficial to survive scrutiny. In the new administrative environment, satisfaction of the attachment standard required the petitioner to submit responses to a series of pointed questions posed by the naturalization examiner. Supplemented by the results of a background check, these inquiries were designed to expose any inconsistencies, real or potential, between the immigrant’s pledge to defend the Constitution and his past actions.Footnote ⁸⁵

In general, a postwar public who nervously viewed the ethnically and political diverse immigrant population as a potential threat to national unity and security seemed comfortable with this expansion of the administrative presence in naturalization proceedings and the near-routine dismissal of draft exemptees’ petitions.Footnote ⁸⁶ In the courts, however, the logic of denying citizenship for actions allowable under domestic law encountered a more mixed reaction. In most of these postwar naturalization courts, demonstrating a willingness to physically defend the country was critical to the success of a petition for citizenship. But rulings in these naturalization exemptee cases were not uniform in approach or outcome. Some judges found little reason to distinguish one Selective Service exemptee case from another, while others carefully weighed the unique facts of each case.Footnote ⁸⁷ In the near absence of appeals that could have imposed greater consistency and fairness on their naturalization rulings in these cases, federal district courts continued to produce conflicting decisions.

A brief examination of the treatment of declarants and nondeclarants in these exemptee cases illustrates the problem. The Selective Service Act had only identified male citizens and nonenemy (“friendly”) declarants as draftable.Footnote ⁸⁸ Yet some courts maintained no clear distinction between the actions of declarant and nondeclarant exemptees when determining whether their exemptions from the U.S. armed forces served as sufficient grounds for denying their applications for naturalization. As noted earlier, a new postwar law prohibited the naturalization of men who had withdrawn their declarations of intention to avoid military service. Some courts’ rulings effectively extended that disability to men who had never taken this action and never been draft-eligible during the war—including enemy aliens. In a leading case in this area, In re Shanin, a court denied the naturalization petition of a law student who had not filed naturalization papers until after the war. Shanin’s acceptance of a military exemption for alienage and the timing of his post-Armistice declaration of intention served as sufficient grounds for dismissing his naturalization petition. As the judge explained, the petitioner had not demonstrated “a depth of conviction which would lead to active support of the principles in question, to doing one’s share to maintain them.”Footnote ⁸⁹ This general argument—that an exemption for alienage exposed a shallow regard for certain constitutional principles—quickly emerged as the primary device for dismissing military exemptees’ naturalization petitions.Footnote ⁹⁰ Between 1920 and 1926, the courts denied citizenship to approximately thirty thousand naturalization candidates for actions related to wartime military service.Footnote ⁹¹

Some judges, however, questioned the legitimacy of this naturalization practice and directed blunt criticism toward its architects. One judge, after granting citizenship to an exemptee classified as an enemy alien during the war, felt compelled to remonstrate that it would be “a sad and ominous day for the republic when observance of any law . . . is denounced by public officials or visited with the consequences of disloyalty.”Footnote ⁹² Another district court judge accused federal officials of violating both existing law and morals when they forced an unwilling alien to compromise his allegiance by serving in a foreign (U.S.) army. Berating this alleged trespass on individual freedom, the judge scoffingly added that “to contend that mild insistence upon the right of exemption demonstrates unfitness for citizenship savors much of the tyrant’s bitter complaint that his victims refused to die quietly and disturbed his sleep by their indecent wails of agony.”Footnote ⁹³ Other objecting members of the bench cited Congress’s apparent reluctance to give this naturalization policy statutory authority. As one court sternly cautioned, “Congress having laid down the rules governing the admission of aliens to citizenship, it is not within the power of the court, in the exercise of an arbitrary discretion, to add to them.”Footnote ⁹⁴

ESTABLISHING A WILLINGNESS TO “SUPPORT AND DEFEND”: THE PACIFIST NATURALIZATION CASES

The judicial disagreements provoked by the military exemptee cases provided a forum for debating the substantive meaning of long-standing statutory provisions that had condensed the obligations of citizenship into brief descriptive phrases whose meanings could generate disputes even among patriotic Americans. What did it mean to be “attached to the principles of the Constitution,” to be willing to “support and defend” those principles, or to bear “true faith and allegiance” to the United States? Congress allowed the Bureau of Naturalization and naturalization courts to take the initial steps toward articulating the performative guidelines for meeting these gold standards of civic obedience. Near the end of the decade, another set of naturalization cases would call upon the U.S. Supreme Court to speak to the question of citizens’ obligations to support and defend the Constitution. This series of decisions in 1929 and 1930 received considerable public attention because they raised another timely and controversial political question, one that could impugn the patriotic credentials of citizens as well as aliens: Were pacifist views incompatible with a basic obligation of U.S. citizenship?

The federal government’s treatment of conscientious objectors during World War I had left a mixed record that ranged from the implementation of policies of accommodation to acts of cruel intolerance. The 1917 draft law had offered exemptions from combatant service to established members of several religious sects whose principles forbid participation in war, a provision that made no distinction between citizen and noncitizen registrants.Footnote ⁹⁵ However, during and after the war, aliens who had declared that they could not bear arms because of conscientious scruples discovered that they had compromised their chances for obtaining U.S. citizenship.Footnote ⁹⁶ The fate of their petitions for citizenship became even clearer when the U.S. Supreme Court determined that immigrants who declined to swear that they would participate in the armed defense of the United States were unfit candidates for naturalization.Footnote ⁹⁷

While American conscientious objectors had always faced overt public criticism during wartime, their beliefs alone had not functioned as sufficient evidence for expatriation. The federal government had presumed pacifist citizens recognized its power to raise an army and conduct war, only requiring a direct affirmation of the sovereignty of the state to compel the armed support of any citizen when the debt of military service was called in during wartime. It was a kind of “don’t ask, don’t tell” policy that the government only abandoned in times of great national duress. Yet prospective citizens were now required to acknowledge by general oath that their allegiance to civil power was paramount to any other, including God and moral conscience. Given the broader implications of the pacifist decisions, their outcome provoked a level of public protest that never materialized in the military exemptee cases, largely because the latter group of naturalization candidates had few advocates for their citizenship willing to argue openly on their behalf. In the absence of public sympathy to prod congressional action or changes in Bureau of Naturalization policy, only the courts could offer those men any opportunities for relief. In contrast, the three highly publicized U.S. Supreme Court decisions declaring pacifist candidates ineligible for citizenship generated more than a decade of competing legislative bills.

At first glance, the rejection of these naturalization candidates might be dismissed as a gratuitous snubbing of the country’s long tradition of permitting pacifist exemptions from military service. The unsuccessful naturalization candidates were people highly unlikely to be called to arms by the U.S. government, so there was no obvious future benefit in demanding the promise of their services. In the last war, each petitioner could have cited factors of age, gender, or both in order to be exempted from combatant service. It was widely speculated that pacifist and feminist Rosika Schwimmer was rejected in part for her high-profile activism. She was a controversial figure in the conservative 1920s, and military patriotic societies across the United States vehemently denounced her political ideas and activities as dangerously radical and un-American. But Douglas Macintosh, a member of the faculty at Yale Divinity School and an ambulance driver during World War I, and Marie Bland, a nurse who had worked with critically injured war veterans, seemed less likely to run into similar difficulties navigating the naturalization process. Yet all three petitioners’ hopes for citizenship foundered when they encountered the unforgiving Question 22, which had been added to the naturalization questionnaire in 1923. It required examinees to respond affirmatively and without qualification that they would be willing to take up arms in defense of the country.

An elevated standard of political obedience, represented by the new norms of “attachment” and powered by a restrictive civic nationalism, found a strong peacetime propagandist in the federal government’s naturalization machinery.Footnote ⁹⁸ By the time Rosika Schwimmer’s case reached the Supreme Court in 1929, the critical administrative and judicial groundwork for securing the operation of this postwar standard was well advanced. Yet the Bureau of Naturalization still faced the challenge of successfully establishing the arguments that had so effectively frustrated the naturalizations of military exemptees as governing principles in all citizenship proceedings. For the bureau, the pacifists’ cases represented such an opportunity.

The bureau had already received some important collateral support in this ambitious endeavor from the Selective Draft Law Cases (1918). Here the Supreme Court had announced that “the very conception of a just government” included “the duty of the citizen to render military service in case of need, and the right of the government to compel it.”Footnote ⁹⁹ In the prevailing political climate, it was not difficult to assert further that naturalization candidates who tried to avoid fully acknowledging the existence of such a compulsory duty were dubious defenders of the Constitution. As the Supreme Court obligingly confirmed in United States v. Schwimmer, the individual’s duty to defend the state “by force of arms” was “a fundamental principle of the Constitution.”Footnote ¹⁰⁰ From the bureau’s perspective, the value of this argument was its ability to render irrelevant the question of whether or not the declarant—or citizen—was actually liable for military service. Indeed, what became starkly apparent in the pacifist decisions was that the real act of allegiance under scrutiny in these naturalization cases was not the taking up of weapons, but unqualified recognition of the sovereign powers of the state to raise an army, grant or withhold access to adoptive citizenship, and, ultimately, dictate the basic obligations of citizenship.Footnote ¹⁰¹

BEYOND U.S. V. MACINTOSH: CITIZENSHIP, NATURALIZATION, AND MILITARY OBLIGATION

The law of citizenship has been a vital contributor to the promotion of larger political projects of nationalism and state-building. In the leading decades of the last century, major changes in expatriation and naturalization law and administrative policy constructed an efficient system for culling the ranks of citizen and prospective citizen of those individuals who had failed to uphold the prevailing standards of allegiance and obligation deemed critical to the survival of the modern nation-state. Here the concepts of obligation and national sovereignty played complementary roles in the design of these policies. While the principles of the former provided the justification for withdrawing citizenship or access to it, the latter furnished the authority for enforcing those restrictive measures. As Hannah Arendt reminded us, “sovereignty is nowhere more absolute than in matters of emigration, naturalization, nationality, and expulsion.”Footnote ¹⁰² In the United States, the early twentieth century witnessed some of the most commanding demonstrations of that political reality.

The interwar pacifist cases would mark the furthest and boldest advancement of naturalization policy’s role in promoting the military obligations of citizenship and alienage. Over the next decade, each new Congress produced at least one bill designed to upset the decisions in the three pacifist naturalization cases. All of these efforts failed; but legislators also declined to demonstrate explicit support for the Court’s decisions by adding a pacifist exclusion to the naturalization laws. In the 1940s, the country’s entry into World War II and the citizenship cases of a new generation of immigrant soldiers provoked further discussion of the pacifist naturalization rulings. In 1944, over the objections of the Immigration and Naturalization Service, a federal district court naturalized two conscientious objectors who had been inducted into the army and were serving in noncombatant roles as medics.Footnote ¹⁰³ But a similar case the following year resulted in the dismissal of a military veteran’s petition for naturalization because, as a conscientious objector, he was unable to take the oath of allegiance without qualification.Footnote ¹⁰⁴

The significance of Congress’s inaction on the bills to prohibit the naturalization of pacifists became a central point of debate in Girouard v. United States, the 1946 Supreme Court decision that would overrule the trio of earlier interwar cases.Footnote ¹⁰⁵ In this case, the majority of justices concluded that the oath of allegiance did not require a promise to bear arms, nor had Congress ever declared that such a promise was a prerequisite for citizenship. Then, four years after Girouard, Congress finally addressed the issue of pacifists’ naturalization in the provisions of the McCarran Internal Security Act, which permitted the naturalization of persons who could demonstrate “by clear and convincing evidence” that they were opposed to bearing arms or performing noncombatant service because of religious beliefs and training.Footnote ¹⁰⁶ Yet neither Girouard nor the Internal Security Act presented a challenge to the federal government’s claim that the Constitution ultimately empowered it to determine how and when resident aliens’ political and civic obligations to the United States were formed. The McCarran Act’s exemption standards were understood as gestures of administrative grace that could be revoked at any time.

The Selective Training and Service Act of 1940 had earlier confirmed the comprehensiveness of the federal government’s claims on the military obligations of its residents. For the first time in the country’s history, conscription operated during peacetime. Yet in his public announcement of the law’s passage, President Franklin Roosevelt sought to legitimate this unprecedented act by providing it with an impeccable political heritage—the core values of the citizen-soldier tradition. Reestablishing Selective Service during peacetime, he assured the American public, “has broadened and enriched our basic concept of citizenship. . . . [W]e have not carved a new and uncharted trail in the history of our democratic institutions. On the contrary, we have merely reasserted an old and accepted principle of democratic government.”Footnote ¹⁰⁷

But, once again, a draft justified as a confirmation of the value and duties of being an American ignored the implicit boundaries set by a citizenship-centered configuration of political obligation. The 1940 act required all male residents between the ages of twenty-one and thirty-six to register with Selective Service, declared male declarants liable for military training and service, and prohibited the naturalization of those immigrants who revoked their declarations of intention.Footnote ¹⁰⁸ The government’s promised bestowal of U.S. citizenship for honorable military service continued without interruption and remains in active operation today.Footnote ¹⁰⁹ In the last decade, this policy has enabled the naturalization of tens of thousands of men and women who served in the country’s armed forces during the conflicts in Afghanistan and Iraq.Footnote ¹¹⁰ However, leaving the U.S. military under a claim of alien exemption carries a hefty penalty: permanent exclusion from U.S. citizenship. Since 1980, the federal government has maintained a peacetime hold on the military obligations of young adult male residents by requiring them to register with Selective Service, although one could argue that current law on military registration has compromised its historical linkage with residency. Selective Service requires the registration of men whose undocumented status defines them as illegal aliens and thus nonresidents.

In the United States, naturalization law has reflected the hopes, fears, prejudices, and idealism of a country seeking to define a meaningful and cohesive national identity. As Stuart McConnell suggested, that nationalistic exercise has generated both “an ideology of sameness” and “an ideology of obligation.”Footnote ¹¹¹ Yet what this study of the evolution of aliens’ and naturalization candidates’ military obligations should also recall is that confirming the broad civilian embodiment of those carefully nurtured ideologies was an elusive if not illusory task. In reality, the standards of political conformity and performative allegiance that naturalization law exalted as essentials of Americanism were imperfectly realized and enforced in the country’s native-born population. It is ironic that in an era when the natural-born citizen served as the titular model of “100% Americanism,” the federal government’s most successful efforts in eliciting those promises of political deference came from strengthening its relationship with its prospective foreign-born rather than home-grown citizens.