It is common enough to find war resisters in the courtroom; many of the writers in this anthology have ended up there, sometimes pleading their case with memorable eloquence. But few have had the opportunity to be heard in the Supreme Court, largely because the government’s power to wage war is broadly understood as unquestionable. What brought Rosika Schwimmer before the Court in 1929 was not the war power itself but a question of citizenship; Schwimmer had applied to become an American, but stated on her application that “she would not bear arms to defend the Constitution.” A majority of the Supreme Court Justices affirmed a lower court decision that such a reservation was sufficient grounds to disqualify her. The younger Oliver Wendell Holmes (1841–1935), however, wrote a lively, unpretentious, and funny dissent in her favor, concluding with the reflection, “I had not supposed hitherto that we regretted our inability to expel [our citizens] because they believed more than some of us do in teachings of the Sermon on the Mount.”
Holmes was eighty-eight when he wrote this dissent, with a distinguished career behind him: as soldier, scholar, lawyer, teacher of law, judge in Massachusetts (he wrote more than 1,400 opinions for the Massachusetts court), and from 1902 till 1932 as Justice of the Supreme Court. He supported the imprisonment of Eugene Debs for urging men to refuse the draft, but perhaps his experiences as a soldier in the Civil War gave him a sense of why a rational person might oppose warmaking generally, and be nonetheless a valued citizen of her community and nation.
(A longtime advocate of pacifist and feminist causes, Schwimmer lived to see the decision against her overturned, in Girouard v. United States in 1946. She nevertheless died a stateless person two years later, in New York City.)
THE applicant seems to be a woman of superior character and intelligence, obviously more than ordinarily desirable as a citizen of the United States. It is agreed that she is qualified for citizenship except so far as the views set forth in a statement of facts “may show that the applicant is not attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same, and except in so far as the same may show that she cannot take the oath of allegiance without a mental reservation.” The views referred to are an extreme opinion in favor of pacifism and a statement that she would not bear arms to defend the Constitution. So far as the adequacy of her oath is concerned I hardly can see how that is affected by the statement, inasmuch as she is a woman over fifty years of age, and would not be allowed to bear arms if she wanted to. And as to the opinion, the whole examination of the applicant shows that she holds none of the now-dreaded creeds but thoroughly believes in organized government and prefers that of the United States to any other in the world. Surely it cannot show lack of attachment to the principles of the Constitution that she thinks that it can be improved. I suppose that most intelligent people think that it might be. Her particular improvement looking to the abolition of war seems to me not materially different in its bearing on this case from a wish to establish cabinet government as in England, or a single house, or one term of seven years for the President. To touch a more burning question, only a judge mad with partisanship would exclude because the applicant thought that the Eighteenth Amendment should be repealed.
Of course the fear is that if a war came the applicant would exert activities such as were dealt with in Schenck v. United States, 249 U. S. 47. But that seems to me unfounded. Her position and motives are wholly different from those of Schenck. She is an optimist and states in strong and, I do not doubt, sincere words her belief that war will disappear and that the impending destiny of mankind is to unite in peaceful leagues. I do not share that optimism nor do I think that a philosophic view of the world would regard war as absurd. But most people who have known it regard it with horror, as a last resort, and even if not yet ready for cosmopolitan efforts, would welcome any practicable combinations that would increase the power on the side of peace. The notion that the applicant’s optimistic anticipations would make her a worse citizen is sufficiently answered by her examination, which seems to me a better argument for her admission than any that I can offer. Some of her answers might excite popular prejudice, but 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. And recurring to the opinion that bars this applicant’s way, I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant’s belief and that I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount.