U.S. Supreme Court Girouard v. United States, 328 U.S.
61 (1946) Girouard v. United
States No. 572 Argued March 4, 1946 Decided April 22,
1946 328 U.S.
61 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE FIRST
CIRCUIT Syllabus An alien who is willing to take the oath of allegiance and to
serve in the army as a noncombatant but who, because of religious
scruples, is unwilling to bear arms in defense of this country may
be admitted to citizenship under the Nationality Act of 1940, as
amended by the Act of March 27, 1942. United States v.
Schwimmer, 279 U. S. 644 ; United States v Macintosh, 283 U.
S. 605 , and United States v. Bland, 283 U. S. 636 ,
overruled. Pp. 328 U. S.
64 -70.

															149 F.2d 760 reversed.

															A District Court admitted petitioner to citizenship. The Circuit
Court of Appeals reversed. 149 F.2d 760. This Court granted
certiorari. 326 U.S. 714. Reversed, p. 328 U. S.
70 .

															MR. JUSTICE DOUGLAS delivered the opinion of the Court.

															In 1943 petitioner, a native of Canada, filed his petition for
naturalization in the District Court of Massachusetts. He stated in
his application that he understood the principles Page 328 U. S. 62 of the government of the United States, believed in its form of
government, and was willing to take the oath of allegiance (54
Stat. 1157, 8 U.S.C. § 735(b)), which reads as follows:

															"I hereby declare, on oath, that I absolutely and entirely
renounce and abjure all allegiance and fidelity to any foreign
prince, potentate, state, or sovereignty of whom or which I have
heretofore been a subject or citizen; that I will support and
defend the Constitution and laws of the United States of America
against all enemies, foreign and domestic; that I will bear true
faith and allegiance to the same, and that I take this obligation
freely without any mental reservation or purpose of evasion. So
help me God."

															To the question in the application "If necessary, are you
willing to take up arms in defense of this country?" he replied,
"No (Non-combatant) Seventh Day Adventist." He explained that
answer before the examiner by saying "it is a purely religious
matter with me; I have no political or personal reasons other than
that." He did not claim before his Selective Service board
exemption from all military service, but only from combatant
military duty. At the hearing in the District Court, petitioner
testified that he was a member of the Seventh Day Adventist
denomination, of whom approximately 10,000 were then serving in the
armed forces of the United States as noncombatants, especially in
the medical corps, and that he was willing to serve in the army,
but would not bear arms. The District Court admitted him to
citizenship. The Circuit Court of Appeals reversed, one judge
dissenting. 149 F.2d 760. It took that action on the authority of United States v. Schwimmer, 279 U.
S. 644 ; United States v. Macintosh, 283 U. S. 605 , and United States v. Bland, 283 U. S. 636 ,
saying that the facts of the present case brought it squarely
within the principles of those cases. The case is here on Page 328 U. S. 63 a petition for a writ of certiorari which we granted so that
those authorities might be reexamined.

															The Schwimmer, Macintosh, and Bland cases
involved, as does the present one, a question of statutory
construction. At the time of those cases, Congress required an
alien, before admission to citizenship, to declare on oath in open
court that "he will support and defend the Constitution and laws of
the United States against all enemies, foreign and domestic, and
bear true faith and allegiance to the same." [ Footnote 1 ] It also required the court to be
satisfied that the alien had, during the five year period
immediately proceeding the date of his application,

															"behaved as a man of good moral character, attached to the
principles of the Constitution of the United States, and well
disposed to the good order and happiness of the same. [ Footnote 2 ]"

															Those provisions were reenacted into the present law in
substantially the same form. [ Footnote 3 ]

															While there are some factual distinctions between this case and
the Schwimmer and Macintosh cases, the Bland case, on its facts, is indistinguishable. But the
principle emerging from the three cases obliterates any factual
distinction among them. As we recognized in In Re Summers, 325 U. S. 561 , 325 U. S. 572 , 325 U. S. 577 ,
they stand for the same general rule -- that an alien who refuses
to bear arms will not be admitted to citizenship. As an original
proposition, we could not agree with that rule. The fallacies
underlying Page 328 U. S. 64 it were, we think demonstrated in the dissents of Mr. Justice
Holmes in the Schwimmer case and of Mr. Chief Justice
Hughes in the Macintosh case.

															The oath required of aliens does not in terms require that they
promise to bear arms. Nor has Congress expressly made any such
finding a prerequisite to citizenship. To hold that it is required
is to read it into the Act by implication. But we could not assume
that Congress intended to make such an abrupt and radical departure
from our traditions unless it spoke in unequivocal terms.

															The bearing of arms, important as it is, is not the only way in
which our institutions may be supported and defended, even in times
of great peril. Total war in its modern form dramatizes as never
before the great cooperative effort necessary for victory. The
nuclear physicists who developed the atomic bomb, the worker at his
lathe, the seaman on cargo vessels, construction battalions,
nurses, engineers, litter bearers, doctors, chaplains -- these,
too, made essential contributions. And many of them made the
supreme sacrifice. Mr. Justice Holmes stated in the Schwimmer case (279 U.S. p. 279 U. S. 655 )
that "the Quakers have done their share to make the country what it
is." And the annals of the recent war show that many whose
religious scruples prevented them from bearing arms nevertheless
were unselfish participants in the war effort. Refusal to bear arms
is not necessarily a sign of disloyalty or a lack of attachment to
our institutions. One may serve his country faithfully and
devotedly though his religious scruples make it impossible for him
to shoulder a rifle. Devotion to one's country can be as real and
as enduring among noncombatants as among combatants. One may adhere
to what he deems to be his obligation to God and yet assume all
military risks to secure victory. The effort of war is indivisible,
and those whose religious scruples prevent them from killing are no
less patriots than those whose special traits or handicaps result
in their Page 328 U. S. 65 assignment to duties far behind the fighting front. Each is
making the utmost contribution according to his capacity. The fact
that his role may be limited by religious convictions, rather than
by physical characteristics, has no necessary bearing on his
attachment to his country or on his willingness to support and
defend it to his utmost.

															Petitioner's religious scruples would not disqualify him from
becoming a member of Congress or holding other public offices.
While Article VI, Clause 3 of the Constitution provides that such
officials, both of the United States and the several States, "shall
be bound by Oath or Affirmation, to support this Constitution," it
significantly adds that "no religious Test shall ever be required
as a Qualification to any Office or public Trust under the United
States." The oath required is in no material respect different from
that prescribed for aliens under the Naturalization Act. It has
long contained the provision

															"that I will support and defend the Constitution of the United
States against all enemies, foreign and domestic; that I will bear
true faith and allegiance to the same; that I take this obligation
freely, without any mental reservation or purpose of evasion."

															R.S. § 1757, 5 U.S.C. § 16. As Mr. Chief Justice Hughes stated
in his dissent in the Macintosh case (283 U.S. p. 283 U. S.
631 ),

															"the history of the struggle for religious liberty, the large
number of citizens of our country from the very beginning who have
been unwilling to sacrifice their religious convictions, and, in
particular, those who have been conscientiously opposed to war and
who would not yield what they sincerely believed to be their
allegiance to the will of God"

															-- these considerations make it impossible to conclude

															"that such persons are to be deemed disqualified for public
office in this country because of the requirement of the oath which
must be taken before they enter upon their duties."

															There is not the slightest suggestion that Congress set a
stricter standard for aliens seeking admission to citizenship Page 328 U. S. 66 than it did for officials who make and enforce the laws of the
nation and administer its affairs. It is hard to believe that one
need forsake his religious scruples to become a citizen but not to
sit in the high councils of state.

															As Mr. Chief Justice Hughes pointed out ( United States v.
Macintosh, supra, p. 283 U. S.
633 ), religious scruples against bearing arms have been
recognized by Congress in the various draft laws. This is true of
the selective Training and Service Act of 1940, 54 Stat. 889, 50
U.S.C. App. § 305(g), [ Footnote
4 ] as it was of earlier acts. He who is inducted into the armed
services takes an oath which includes the provision

															"that I will bear true faith and allegiance to the United States
of America; that I will serve them honestly and faithfully against
all their enemies whomsoever. [ Footnote 5 ]"

															41 Stat. 809, 10 U.S.C. § 1581. Congress has thus recognized
that one may adequately discharge his obligations as a citizen by
rendering noncombatant as well as combatant services. This respect
by Congress over the years for the conscience of those having Page 328 U. S. 67 religious scruples against bearing arms is cogent evidence of
the meaning of the oath. It is recognition by Congress that, even
in time of war, one may truly support and defend our institutions
though he stops short of using weapons of war.

															That construction of the naturalization oath received new
support in 1942. In the Second War Powers Act, 56 Stat. 176, 182, 8
U.S.C.Supp. IV, § 1001, Congress relaxed certain of the
requirements for aliens who served honorably in the armed forces of
the United States during World War II and provided machinery to
expedite their naturalization. [ Footnote 6 ] Residence requirements were relaxed,
educational tests were eliminated, and no fees were required. But
no change in the oath was made, nor was any change made in the
requirement that the alien be attached to the principles of the
Constitution. Yet it is clear that these new provisions cover
noncombatants, as well as combatants. [ Footnote 7 ] If petitioner had served as a noncombatant Page 328 U. S. 68 (as he was willing to do), he could have been admitted to
citizenship by taking the identical oath which he is willing to
take. Can it be that the oath means one thing to one who has served
to the extent permitted by his religious scruples and another thing
to one equally willing to serve, but who has not had the
opportunity? It is not enough to say that petitioner is not
entitled to the benefits of the new Act, since he did not serve in
the armed forces. He is not seeking the benefits of the expedited
procedure and the relaxed requirements. The oath which he must take
is identical with the oath which both noncombatants and combatants
must take. It would, indeed, be a strange construction to say that
"support and defend the Constitution and laws of the United States
of America against all enemies, foreign and domestic" demands
something more from some than it does from others. That oath can
hardly be adequate for one who is unwilling to bear arms because of
religious scruples, and yet exact from another a promise to bear
arms despite religious scruples.

															Mr. Justice Holmes stated in the Schwimmer case, 279
U.S. at 279 U. S.
654 -655:

															"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. I think that we
should adhere to that principle with regard to admission into, as
well as to life within, this country."

															The struggle for religious liberty has, through the centuries,
been an effort to accommodate the demands of the State to the
conscience of the individual. The victory for freedom of thought
recorded in our Bill of Rights recognizes that, in the domain of
conscience, there is a moral power higher than the State.
Throughout the ages, men have suffered death rather than
subordinate their allegiance to God to the authority of the State.
Freedom of religion guaranteed by the First Amendment is the
product of that struggle. As we Page 328 U. S. 69 recently stated in United States v. Ballard, 322 U. S. 78 , 322 U. S. 86 ,
"Freedom of thought, which includes freedom of religious belief, is
basic in a society of free men. Board of Education v.
Barnette, 319 U. S. 624 ."
The test oath is abhorrent to our tradition. Over the years,
Congress has meticulously respected that tradition and, even in
time of war, has sought to accommodate the military requirements to
the religious scruples of the individual. We do not believe that
Congress intended to reverse that policy when it came to draft the
naturalization oath. Such an abrupt and radical departure from our
traditions should not be implied. See Schneiderman v. United
States, 320 U. S. 118 , 320 U. S. 132 .
Cogent evidence would be necessary to convince us that Congress
took that course.

															We conclude that the Schwimmer, Macintosh, and Bland cases do not state the correct rule of law.

															We are met, however, with the argument that, even though those
cases were wrongly decided, Congress has adopted the rule which
they announced. The argument runs as follows: many efforts were
made to amend the law so as to change the rule announced by those
cases; but, in every instance, the bill died in committee.
Moreover, in 1940, when the new Naturalization Act was passed,
Congress reenacted the oath in its preexisting form, though, at the
same time, it made extensive changes in the requirements and
procedure for naturalization. From this it is argued that Congress
adopted and reenacted the rule of the Schwimmer,
Macintosh, and Bland cases. Cf. Apex Hosiery Co.
v. Leader, 310 U. S. 469 , 310 U. S.
488 -489.

															We stated in Helvering v. Hallock, 309 U.
S. 106 , 309 U. S. 119 ,
that "[i]t would require very persuasive circumstances enveloping
Congressional silence to debar this Court from reexamining its own
doctrines." It is, at best, treacherous to find in Congressional
silence alone the adoption of a controlling rule of law. We do not
think, under the circumstances of this legislative history, that we
can properly Page 328 U. S. 70 place on the shoulders of Congress the burden of the Court's own
error. The history of the 1940 Act is, at most, equivocal. It
contains no affirmative recognition of the rule of the Schwimmer, Macintosh, and Bland cases. The
silence of Congress and its inaction are as consistent with a
desire to leave the problem fluid as they are with an adoption by
silence of the rule of those cases. But for us it is enough to say
that, since the date of those cases, Congress never acted
affirmatively on this question but once, and that was in 1942. At
that time, as we have noted, Congress specifically granted
naturalization privileges to noncombatants who, like petitioner,
were prevented from bearing arms by their religious scruples. That
was affirmative recognition that one could be attached to the
principles of our government and could support and defend it even
though his religious convictions prevented him from bearing arms.
And, as we have said, we cannot believe that the oath was designed
to exact something more from one person than from another. Thus,
the affirmative action taken by Congress in 1942 negatives any
inference that otherwise might be drawn from its silence when it
reenacted the oath in 1940. Reversed. MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.

															[ Footnote 1 ]

															Naturalization Act of 1906, § 4, 34 Stat 596.

															[ Footnote 2 ] Id. [ Footnote 3 ]

															We have already set forth in the opinion the present form of the
oath which is required. It is to be found in the Nationality Act of
1940, 54 Stat. 1137, 1157, 8 U.S.C. § 735(b). Sec. 307(a) of that
Act, 8 U.S.C. § 707(a), provides that no person shall be
naturalized unless he has been for stated periods and still is

															"a person of good moral character, attached to the principles of
the Constitution of the United States, and well disposed to the
good order and happiness of the United States."

															[ Footnote 4 ]

															Sec. 305(g) provides in part:

															"Nothing contained in this Act shall be construed to require any
person to be subject to combatant training and service in the land
or naval forces of the United States who, by reason of religious
training and belief, is conscientiously opposed to participation in
war in any form. Any such person claiming such exemption from
combatant training and service because of such conscientious
objections whose claim is sustained by the local board shall, if he
is inducted into the land or naval forces under this Act, be
assigned to noncombatant service as defined by the President, or
shall, if he is found to be conscientiously opposed to
participation in such noncombatant service, in lieu of such
induction, be assigned to work of national importance under
civilian direction."

															For earlier Acts, see Act of February 21, 1864, 13
Stat. 6, 9; Act of January 21, 1903, 32 Stat. 775; Act of June 3,
1916, 39 Stat. 166, 197; Act of May 18, 1917, 40 Stat. 76, 78.

															[ Footnote 5 ] And see Billings v. Truesdell, 321 U.
S. 542 , 321 U. S.
549 -550; Army Regulations No. 615-500, August 10, 1944,
sec. II, 15(f)(2).

															[ Footnote 6 ]

															Comparable provision was made in the Act of December 7, 1942, 56
Stat. 1041, 8 U.S.C.Supp. IV, § 723a, for those who served
honorably in World War I, in the Spanish American War, or on the
Mexican Border.

															[ Footnote 7 ] In re Kinloch, 53 F. Supp.
521 , involved naturalization proceedings of aliens, one of
whom, like petitioner in the present case, was a Seventh Day
Adventist. He had been inducted into the army as a noncombatant.
His naturalization was opposed by the Immigration Service on the
ground that he could not promise to bear arms. The court overruled
the objection, stating, p. 523:

															"If conscientious objectors, who are aliens, performing military
duty, and wearing the uniform, are not granted the privileges of
citizenship under this act, then the act would be meaningless. It
would be so made if an applicant, being a conscientious objector,
who has attained the status of a soldier, performs military duty,
and honorably wears the uniform (as is admitted in the instant
cases), is denied citizenship. If the oath of allegiance is to be
construed as requiring such applicant to agree, without mental
reservation, to bear arms, then the result would be a denial of
citizenship even though Congress has conferred such privilege upon
him." And see In re Sawyer, 59 F. Supp. 428.

															MR. CHIEF JUSTICE STONE dissenting.

															I think the judgment should be affirmed for the reason that the
court below, in applying the controlling provisions of the
naturalization statutes, correctly applied them as earlier
construed by this Court, whose construction Congress has adopted
and confirmed.

															In three cases, decided more than fifteen years ago, this Court
denied citizenship to applicants for naturalization who had
announced that they proposed to take the prescribed Page 328 U. S. 71 oath of allegiance with the reservation or qualification that
they would not, as naturalized citizens, assist in the defense of
this country by force of arms or give their moral support to the
government in any war which they did not believe to be morally
justified or in the best interests of the country. See United
States v. Schwimmer, 279 U. S. 644 ; United States v. Macintosh, 283 U.
S. 605 ; United States v. Bland, 283 U.
S. 636 .

															In each of these cases, this Court held that the applicant had
failed to meet the conditions which Congress had made prerequisite
to naturalization by § 4 of the Naturalization Act of June 29,
1906, c. 3592, 34 Stat. 596, the provisions of which, here
relevant, were enacted in the Nationality Act of October 14, 1940. See c. 876, 54 Stat. 1137, as amended by the Act of March
27, 1942, c.199, 56 Stat. 176, 182, 183, and by the Act of December
7, 1942, c. 690, 56 Stat. 1041, 8 U.S.C. §§ 707, 723a, 735. Section
4 of the Naturalization Act of 1906, paragraph "Third," provided
that, before the admission to citizenship, the applicant should
declare on oath in open court that

															"he will support and defend the Constitution and laws of the
United States against all enemies, foreign and domestic, and bear
true faith and allegiance to the same."

															And paragraph "Fourth" required that, before admission it be
made to appear "to the satisfaction of the court admitting any
alien to citizenship" that, at least for a period of five years
immediately preceding his application, the applicant

															"has behaved as a man of good moral character, attached to the
principles of the Constitution of the United States, and well
disposed to the good order and happiness of the same."

															In applying these provisions in the cases mentioned, this Court
held only that an applicant who is unable to take the oath of
allegiance without the reservations or qualifications insisted upon
by the applicants in those cases manifests his want of attachment
to the principles of the Constitution and his unwillingness to
meet Page 328 U. S. 72 the requirements of the oath, that he will support and defend
the Constitution of the United States and bear true faith and
allegiance to the same, and so does not comply with the statutory
conditions of his naturalization. No question of the constitutional
power of Congress to withhold citizenship on these grounds was
involved. That power was not doubted. See Selective Draft Law
Cases, 245 U. S. 366 ; Hamilton v. Regents, 293 U. S. 245 . The
only question was of construction of the statute, which Congress at
all times has been free to amend if dissatisfied with the
construction adopted by the Court.

															With three other Justices of the Court, I dissented in the Macintosh and Bland cases for reasons which the
Court now adopts as ground for overruling them. [ Footnote 2/1 ] Since this Court, in three considered
earlier opinions, has rejected the construction of the statute for
which the dissenting Justices contended, the question, which for me
is decisive of the present case, is whether Congress has likewise
rejected that construction by its subsequent legislative action,
and has adopted and confirmed the Court's earlier construction of
the statutes in question. A study of Congressional action taken
with respect to proposals for amendment of the naturalization laws
since the decision in the Schwimmer case leads me to
conclude that Congress has adopted and confirmed this Court's
earlier construction Page 328 U. S. 73 of the naturalization laws. For that reason alone, I think that
the judgment should be affirmed.

															The construction of the naturalization statutes, adopted by this
Court in the three cases mentioned, immediately became the target
of an active, publicized legislative attack in Congress which
persisted for a period of eleven years, until the adoption of the
Nationality Act in 1940. Two days after the Schwimmer case
was decided, a bill was introduced in the House, H.R. 3547, 71st
Cong., 1st Sess., to give the Naturalization Act a construction
contrary to that which had been given to it by this Court and
which, if adopted, would have made the applicants rejected by this
Court in the Schwimmer, Macintosh, and Bland cases eligible for citizenship. This effort to establish by
Congressional action that the construction which this Court had
placed on the Naturalization Act was not one which Congress had
adopted or intended was renewed without success after the decision
in the Macintosh and Bland cases, and was
continued for a period of about ten years. [ Footnote 2/2 ] All of these measures were of
substantially the same pattern as H.R. 297, 72d Cong., 1st Sess.,
introduced December 8, 1931, at the first session of Congress after
the decision in the Macintosh case. It provided that no
person otherwise qualified

															"shall be debarred from citizenship by reason of his or her
religious views or philosophical opinions with respect to the
lawfulness of war as a means of settling international disputes,
but every alien admitted to citizenship shall be subject to the
same obligation as the native-born citizen."

															H.R. 3547, 71st Cong., 1st Sess., Page 328 U. S. 74 introduced immediately after the decision in the Schwimmer case, had contained a like provision, but with
the omission of the last clause, beginning "but every alien."
Hearings were had before the House Committee on Immigration and
Naturalization on both bills at which their proponents had stated
clearly their purpose to set aside the interpretation placed on the
oath of allegiance by the Schwimmer and Macintosh cases. [ Footnote 2/3 ] There was
opposition on each occasion. [ Footnote
2/4 ] Bills identical with H.R. 297 were introduced in three
later Congresses. [ Footnote 2/5 ]
None of these bills was reported out of Committee. The other
proposals, all of which failed of passage ( see 328 U.S.
61 fn2/2|>footnote 2, ante ), had the same purpose
and differed only in phraseology.

															Thus, for six successive Congresses, over a period of more than
a decade, there were continuously pending before Congress, in one
form or another, proposals to overturn the rulings in the three
Supreme Court decisions in question. Congress declined to adopt
these proposals after full hearings and after speeches on the floor
advocating the change. 72 Cong.Rec. 6966-7; 75th Cong.Rec. 15354-7.
In the meantime, the decisions of this Court had been followed in Clarke's Case, 301 Pa. 321, 152 A. 92; Beale v. United
States, 71 F.2d 737; In re Warkentin, 93 F.2d 42. In Beale v. United States, supra, the court pointed out that
the proposed amendments affecting the provisions of the statutes
relating to admission to citizenship had failed, saying:

															"We must conclude therefore that these statutory requirements as
construed Page 328 U. S. 75 by the Supreme Court have Congressional sanction and
approval."

															Any doubts that such were the purpose and will of Congress would
seem to have been dissipated by the reenactment by Congress in 1940
of Paragraphs "Third" and "Fourth" of § 4 of the Naturalization Act
of 1906, and by the incorporation in the Act of 1940 of the very
form of oath which had been administratively prescribed for the
applicants in the Schwimmer, Macintosh, and Bland cases. See Rule 8(c), Naturalization Regulations of July
1, 1929. [ Footnote 2/6 ]

															The Nationality Act of 1940 was a comprehensive, slowly matured,
and carefully considered revision of the naturalization laws. The
preparation of this measure was not only delegated to a
Congressional Committee, but was considered by a committee of
Cabinet members, one of whom was the Attorney General. Both were
aware of our decisions in the Schwimmer and related cases,
and that no other question pertinent to the naturalization laws had
been as persistently and continuously before Congress in the ten
years following the decision in the Schwimmer case. The
modifications in the provisions of Paragraphs "Third" and "Fourth"
of § 4 of the 1906 Act show conclusive the careful attention which
was given to them. Page 328 U. S. 76 In the face of this legislative history, the

															"failure of Congress to alter the Act after it had been
judicially construed, and the enactment by Congress of legislation
which implicitly recognizes the judicial construction as effective,
is persuasive of legislative recognition that the judicial
construction is the correct one. This is the more so where, as
here, the application of the statute . . . has brought forth
sharply conflicting views both on the Court and in Congress, and
where, after the matter has been fully brought to the attention of
the public and the Congress, the latter has not seen fit to change
the statute." Apex Hosiery Co. v. Leader, 310 U.
S. 469 , 310 U. S.
488 -489. And see, to like effect, United
States v. Ryan, 284 U.S. 284 U. S. 167 -175; United States v. Elgin, J. & E. R. Co., 298 U.
S. 492 , 298 U. S. 500 ; Missouri v. Ross, 299 U. S. 72 , 299 U. S. 75 ; cf. Helvering v. Winmill, 305 U. S.
79 , 305 U. S. 82 -83.
It is the responsibility of Congress, in reenacting a statute, to
make known its purpose in a controversial matter of interpretation
of its former language, at least when the matter has, for over a
decade, been persistently brought to its attention. In the light of
this legislative history, it is abundantly clear that Congress has
performed that duty. In any case, it is not lightly to be implied
that Congress has failed to perform it and has delegated to this
Court the responsibility of giving new content to language
deliberately readopted after this Court has construed it. For us to
make such an assumption is to discourage, if not to deny,
legislative responsibility. By thus adopting and confirming this
Court's construction of what Congress had enacted in the
Naturalization Act of 1906, Congress gave that construction the
same legal significance as though it had written the very words
into the Act of 1940.

															The only remaining question is whether Congress repealed this
construction by enactment of the 1942 amendments Page 328 U. S. 77 of the Nationality Act. That Act extended special privileges to
applicants for naturalization who were aliens and who have served
in the armed forces of the United States in time of war by
dispensing with or modifying existing requirements, relating to
declarations of intention, period of residence, education, and
fees. It left unchanged the requirements that the applicant's
behavior show his attachment to the principles of the Constitution
and that he take the oath of allegiance. In adopting the 1942
amendments, Congress did not have before it any question of the
oath of allegiance with which it had been concerned when it adopted
the 1940 Act. In 1942, it was concerned with the grant of special
favors to those seeking naturalization who had worn the uniform and
rendered military service in time of war and who could satisfy such
naturalization requirements as had not been dispensed with by the
amendments. In the case of those entitled to avail themselves of
these privileges, Congress left it to the naturalization
authorities, as in other cases, to determine whether, by their
applications and their conduct in the military service, they
satisfy the requirements for naturalization which had not been
waived.

															It is pointed out that one of the 1942 amendments, 8 U.S.C.Supp.
IV, § 1004, provided that the provisions of the amendment should
not apply to "any conscientious objector who performed no military
duty whatever or refused to wear the uniform." It is said that the
implication of this provision is that conscientious objectors who
rendered noncombatant service and wore the uniform were, under the
1942 amendments, to be admitted to citizenship. From this it is
argued that, since the 1942 amendments apply to those who have been
in noncombatant, as well as combatant, military service, the
amendment must be taken to include some who have rendered Page 328 U. S. 78 noncombatant service who are also conscientious objectors and
who would be admitted to citizenship under the 1942 amendments,
even though they made the same reservations as to the oath of
allegiance as did the applicants in the Schwimmer,
Macintosh, and Bland cases. And it is said that,
although the 1942 amendments are not applicable to petitioner, who
has not been in military service, the oath cannot mean one thing as
to him and another as to those who have been in the noncombatant
service.

															To these suggestions there are two answers. One is that, if the
1942 amendment be construed as including noncombatants who are also
conscientious objectors, who are unwilling to take the oath without
the reservations made by the applicants in the Schwimmer,
Macintosh, and Bland cases, the only effect would be
to exempt noncombatant conscientious objectors from the
requirements of the oath, which had clearly been made applicable to
all objectors, including petitioner, by the Nationality Act of
1940, and from which petitioner was not exempted by the 1942
amendments. If such is the construction of the 1942 Act, there is
no constitutional or statutory obstacle to Congress' taking such
action. Congress, if it saw fit, could have admitted to citizenship
those who had rendered noncombatant service, with a modified oath
or without any oath at all. Petitioner has not been so
exempted.

															Since petitioner was never in the military or naval forces of
the United States, we need not decide whether the 1942 amendments
authorized any different oath for those who had been in
noncombatant service than for others. The amendments have been
construed as requiring the same oath, without reservations, from
conscientious objectors as from others. In re
Nielsen, 60 F. Supp.
240 . Not all of those who rendered noncombatant service were
conscientious objectors. Few were. There were others in the
noncombatant service who had announced their conscientious Page 328 U. S. 79 objections to combatant service, who may have waived or
abandoned their objections. Such was the experience in the First
World War. See "Statement Concerning the Treatment of
Conscientious Objectors in the Army," prepared and published by
direction of the Secretary of War, June 18, 1919. All such could
have taken the oath without the reservations made by the applicants
in the Schwimmer, Macintosh, and Bland cases, and
would have been entitled to the benefits of the 1942 amendments
provided they had performed military duty and had not refused to
wear the uniform. The fact that Congress recognized by indirection,
in 8 U.S.C.Supp. IV, § 1004, that those who had appeared in the
role of conscientious objectors might become citizens by taking the
oath of allegiance and establishing their attachment to the
principles of the Constitution does not show that Congress
dispensed with the requirements of the oath as construed by this
Court and plainly confirmed by Congress in the Nationality Act of
1940. There is no necessary inconsistency in this respect between
the 1940 Act and the 1942 amendments. Without it, repeal by
implication is not favored. United States v. Borden Co., 308 U. S. 188 , 308 U. S.
198 -199, 308 U. S.
203 -206; Georgia v. Pennsylvania R. Co., 324 U. S. 439 , 324 U. S. 457 ; United States Alkali Export Assn. v. United States, 325 U. S. 196 , 325 U. S. 209 .
The amendments and their legislative history give no hint of any
purpose of Congress to relax, at least for persons who had rendered
no military service, the requirements of the oath of allegiance and
proof of attachment to the Constitution as this Court had
interpreted them and as the Nationality Act of 1940 plainly
required them to be interpreted. It is not the function of this
Court to disregard the will of Congress in the exercise of its
constitutional power.

															MR. JUSTICE REED and MR. JUSTICE FRANKFURTER join in this
opinion.

															[ Footnote 2/1 ]

															In the opinion of the writer, there was evidence in United
States v. Schwimmer, 279 U. S. 644 ,
from which the district court could and presumably did infer that
applicant's behavior evidenced a disposition, present and future,
actively to resist all laws of the United States and lawful
commands of its officers for the furthering of any military
enterprise of the United States, and actively to aid and encourage
such resistance in others, and this the district court presumably
concluded evidenced a want of attachment of the applicant to the
principles of the Constitution which the naturalization law
requires to be exhibited by the behavior of the applicant preceding
the application for citizenship.

															[ Footnote 2/2 ]

															H.R.3547, 71st Cong., 1st Sess., 71 Cong.Rec.2184; H.R.297, 72d
Cong., 1st Sess., 75 Cong.Rec.95; H.R.298, 72d Cong., 1st Sess., 75
Cong.Rec. 95; S. 3275, 72d Cong., 1st Sess., 75 Cong.Rec. 2600;
H.R.1528, 73d Cong., 1st Sess., 77 Cong.Rec. 90; H.R.5170, 74th
Cong., 1st Sess., 79 Cong.Rec.1356; H.R.8259, 75th Cong., 1st
Sess., 81 Cong.Rec.9193; S.165, 76th Cong., 1st Sess., 84 Cong.Rec.
67.

															[ Footnote 2/3 ]

															Hearings on H.R.3547, pp. 12, 22, 29-57, 73-109, 169, 180;
Hearings on H.R.297, pp. 4-7, 10, 12, 15-19, 41-48, 53-56, 66-81,
147, 148.

															[ Footnote 2/4 ]

															Hearings on H.R.3547, pp. 57-65, 73, 146-169, 181-212; Hearings
on H.R.297, pp. 85-140.

															[ Footnote 2/5 ]

															H.R.1528, 73d Cong., 1st Sess.; H.R.5170, 74th Cong., 1st Sess.;
H.R.8259, 75th Cong., 1st Sess.

															[ Footnote 2/6 ]

															Section 307(a) of the Nationality Act, 8 U.S.C. § 707(a),
provides that no person shall be naturalized unless, for a period
of five years preceding the filing of his petition for
naturalization, he

															"has been and still is a person . . . attached to the principles
of the Constitution of the United States, and well disposed to the
good order and happiness of the United States."

															Section 335(a) of the Nationality Act, 8 U.S.C. § 735(a),
provides that, before an applicant for naturalization shall be
admitted to citizenship, he shall take an oath in open court that, inter alia, he will

															"support and defend the Constitution and laws of the United
States against all enemies, foreign and domestic, and . . . bear
true faith and allegiance to the same."

Summary: The Supreme Court ruled that an alien who is willing to take the oath of allegiance and serve in the US army as a non-combatant but refuses to bear arms due to religious scruples can be granted US citizenship under the Nationality Act of 1940, amended in 1942. This overruled previous cases (United States v. Schwimmer, United States v. Macintosh, and United States v. Bland) that required aliens to be willing to bear arms to demonstrate attachment to the Constitution. The Court respected Congress's intention to relax the oath of allegiance and proof of attachment to the Constitution for those who haven't served in the military.