Citizenship, Gender,

and Conscience:
United States v. Schwimmer

MEGAN THRELKELD

In the spring of 1929, fty-one-year-old principles of the Constitution, as required

Rosika Schwimmer had every reason to feel by naturalization law. Their evidence?
condent that she would soon be a United When asked if she would be willing to bear
States citizen. She had led a petition for arms in defense of the nation, Schwimmer
naturalization four-and-a-half years earlier in said no.
Chicago, Illinois. A District Court judge Born in Hungary in 1877, Schwimmer
denied that petition in late 1927, but the had spent considerable time in the United
following spring his decision was reversed by States, giving lectures and attending confer-
the Seventh Circuit Court of Appeals. When ences on pacism and womens rights. She
the United States appealed to the Supreme settled permanently in Chicago in 1921 after
Court, Schwimmers supportersamong being exiled from Hungary for her political
whom she counted Jane Addams, Roger beliefs. Her pacism was evident on her
Baldwin, Carrie Chapman Catt, and other original petition:
prominent Americansmobilized on her
22. If necessary, are you willing to
behalf, raising money, writing letters, and
take up arms in defense of this
making public statements. By April 1929,
country?
when the Court heard arguments in the case,
Schwimmer and her lawyers believed she
A. I would not take up arms
would win. Even the U.S. Solicitor General
personally.1
thought his own chances of victory slim.
But on May 27, in a 6-3 decision, the Court No women were allowed to serve in
denied Schwimmers petition on the grounds the U.S. military in the 1920s, let alone those
that she was not sufciently attached to the over fty. Schwimmer argued her pacism
 UNITED STATES V. SCHWIMMER 155

did not preclude her ability to take the oath of persuaded Henry Ford to send an envoy of
allegiance because no woman was asked to pacists and social reformers to Europe to
bear arms in defense of the nation. Why then convene a conference on mediation. The
was this woman rejected for her unwilling- Peace Ship was ridiculed in the press and
ness to perform an action she would not have failed to have any measurable impact on
been allowed to perform even if she were European leaders, and it was at that point that
willing? The explanation lies in the shifting Schwimmer began to develop a reputation in
terrain of citizenship, gender, and nationalism the United States as a troublesome meddler, a
in the 1920s. swindler, and even a German spy. Her
continued efforts on behalf of peace over
the next few years only furthered suspicions
of her, especially after the United States
The Petition
joined the war in 1917 and the country
The 1920s was a profoundly contentious entered a frightening period of hyper-patriot-
decade. Religious and political conservatives ism, condemning dissent in any form and
felt threatened by the emergence of modern, rallying behind 100% Americanism. In the
secular, commercial culture. Women voted, early 1920s, Schwimmer was also accused of
attended college, worked outside the home, being a Bolshevik agent, even though her
and occasionally pushed the boundaries of nal exit from Hungary came about when she
socially acceptable behavior, but gender refused to serve in the government of
norms and expectations were still fully Communist Bela Kun. She settled perma-
entrenched. After decades of watching mil- nently in the United States in 1921, but her
lions of immigrants land on its shores, the efforts to establish some kind of journalistic
United States closed the door on immigration career were thwarted by continued attacks
between 1921 and 1924, following a ground- from political conservatives. One of the
swell of nativism and calls for 100% reasons Schwimmer wanted U.S. citizenship
Americanism. Even as new ideas and was that she thought ofcializing her status
new forms of cultural expression circulated would help clear her name against charges of
widely in magazines, movie theaters, and disloyalty. Getting citizenship is the only
advertisements, the government frequently means to disprove all the accusations and
clamped down on radicalism and dissent. The rumors against me, she wrote to her lawyer
decade of the Jazz Age, the New Woman, and in December 1926. I must get citizenship
the Harlem Renaissance was also the decade besides all other reasonsto clear my
of the rst Red Scare, the Scopes trial, and the name.2
execution of Sacco and Vanzetti. Schwimmer did not think her pacism
Schwimmer was already a rather notori- precluded her loyalty to the United States.
ous gure by the mid-1920s. After several When she led her preliminary petition for
decades of activism in her own country, she citizenship in December 1924 she did not
came to the United States for the rst time in answer question twenty-two, believing it
August 1914, where alongside U.S. col- applied only to men. Her application was
leagues she attempted to persuade Woodrow returned to her with the demand that she
Wilson to intervene and mediate the Europe- answer the question.3 Schwimmer had al-
an conict. That attempt was unsuccessful, ready established a cordial relationship with
but over the next several months she toured Fred Schlotfeldt, the District Director of
the country, speaking to large crowds about Naturalization in Chicagohimself a natu-
the horrors of war and helping to organize ralized German immigrant. She described
peace associations. In late 1915, she Schlotfeldt as very helpful and encouraging;
156 JOURNAL OF SUPREME COURT HISTORY

he agreed to expedite her preliminary petition Schwimmer to answer yes to question

so that it would not get stuck in the long line twenty-two, declaring he could not approve
of others ling at the same time. But when the her application if she remained unwilling to
Department ofce in Washington returned defend the United States. Schwimmer assured
Schwimmers preliminary petition, she felt him she could very well defend the country
Schlotfeldt underwent a metamorphosis. without doing so by force of arms.5 But this
He urged her to answer question twenty-two was not enough for Schlotfeldt, who denied
afrmatively, and declared she had not the her petition, ruling that Schwimmer qualied
ghost of a chance of gaining citizenship if for citizenship except in so far as . . . [she] is
she declared her refusal to bear arms. not attached to the principles of the Constitu-
Schwimmer persevered: Having, as I now tion of the United States and well disposed to
know, obsolete ideas about Americanism, I the good order and happiness of the same.6
insisted on going through the whole process Schlotfeldt took that language from the
of examination, unable to believe the U.S.A. Naturalization Act of 1906, which established
would be the rst civilized country to compel the federal government as the arbiter of
women to take up arms.4 As a woman, she naturalization policy (rather than individual
considered the issue of her pacism moot. states), set a uniform standard for evaluating
The rst formal step in her examination naturalization petitions, and detailed the
was an ofcial interview with Schlotfeldt on manner in which those petitions would be
September 22, 1926. He again pressured submitted and evaluated. The act required

A Budapest-born womens rights advocate and pacist, Rosika Schwimmer worked for female suffrage and
peace both in her native Hungary and internationally. She moved to Chicago in 1921 as a political exile and
applied for naturalization. When asked on the form whether she would bear arms for the United States, as a
conscientious objector she answered no.
 UNITED STATES V. SCHWIMMER 157

candidates to renounce any allegiance to any me a haven of refuge from a country where
foreign authority, and to declare that they social prejudices and feudal institutions have
would support and defend the Constitution grown intolerable to self-respecting men and
and laws of the United States against all women. I am therefore whole-heartedly
enemies, foreign and domestic, and bear true prepared . . . to support and defend the
faith and allegiance to the same. The act also Constitution and the laws against all enemies,
mandated that applicants for citizenship had foreign and domestic.9
to live in the United States for at least ve But the statements that resonated most
years; during that time any applicant had to strongly for Schlotfeldtand later for both the
demonstrate to the presiding courts satisfac- District Court judge and the Supreme Court
tion that in those ve years he or she had came from words Schwimmer had written to
evinced good moral character, attached to another person in another context. In 1925, the
the principles of the Constitution of the Military Intelligence Association of Chicago,
United States, and well disposed to the good a non-governmental organization dedicated to
order and happiness of the same.7 These two publicizing information about subversive or
passages of the 1906 act became the focal dangerous people and activities, accused
point not only of Schlotfeldts decision on Schwimmer of jeopardizing national security
Schwimmers petition, but also of the because of her pacism, and of having been a
Supreme Courts deliberations on her case. German agent during the war.10 In a letter to
Colonel Lee Alexander Stone, the head of the
Association, Schwimmer explained that,
while she was indeed a radical pacist, she
The District Court
was loyal to the United States, and she
After Schlotfeldts preliminary ruling, demanded that Stone retract his accusations.
Schwimmer waited over a year for a hearing Professing her desire to be as honest and
before a District Court judge. During that transparent as possible, Schwimmer articu-
time, Schlotfeldt asked her to elaborate on her lated her core beliefs to Stone as proof that she
so-called pacist theory or inability to was not a foreign spy. I am an uncompromis-
defend the country.8 Schwimmer did so at ing pacist, she told him, for whom even
length. The core of her argument was Jane Addams is not enough of a pacist. I am
gendered: as a woman, her refusal to bear an absolute atheist. I have no sense of
arms for the United States did not preclude nationalism, only a cosmic consciousness of
her loyalty or her ability to defend it. I can belonging to the human family.11 Those
not see that a womans refusal to take up arms words would follow her all the way to the
is a contradiction of the oath of allegiance, Supreme Court.
she explained. Promising to support and Sometime in early 1927, Stone sent
defend the Constitution and the laws of the the letter to Schlotfeldt. When pressed,
United States of America I havefor the Schwimmer conrmed her statements. She
fulllment of this dutyother ways and pointed to her refusal to expedite her applica-
means in mind. These included participation tion by answering yes to question twenty-
in civic life through reading, attending meet- two as evidence of her uncompromising
ings, and giving lectures. Schwimmer made pacism, but she saw no reason why that
clear her desire to renounce her loyalty to should disqualify her for U.S. citizenship.
Hungary and pledge her allegiance to the She considered it her duty to uphold most
United States. I have chosen to apply for emphatically the American Constitution
American citizenship, she declared, be- and the American form of government in
cause the United States of America seemed to which I believe, and to oppose such forms of
158 JOURNAL OF SUPREME COURT HISTORY

Labor lawyer Olive Rabe was the fourteenth woman to argue before the Supreme Court. She had met
Schwimmer in Chicago while teaching citizenship classes as a sideline to her labor law practice. Several years
after losing the case in the Supreme Court, Rabe moved to Arizona for health reasons and went on to co-author
childrens plays, childrens books, and biographies of Louisa May Alcott and Emily Dickinson.

government which are not based on democracy the concept does not embrace as it does with
and self-government. She had already and us the idea of good will toward other nations
would continue to argue against any attacks on and an unwillingness to aggrandize at the
the United States when she came across them expense of the rights of other nations?12 And
in publications and in meetings, she asserted. Schwimmers cosmic consciousness of be-
As far as her atheism, Schwimmer argued it longing to the human family, as she argued
was a private matter, but she stated her herself, was shared not only by all those who
admiration for the separation of church and believe that all human beings are the children
state as a fundamental principle of the United of God, but also by the American Legion,
States. Her lack of nationalistic feeling, which had adopted a resolution in 1925
nally, was proved by her desire to give up encouraging the education of children in the
the nationality of her birth. Olive Rabe, basic principles of internationalism.13
Schwimmers lawyer, argued further that Rabe, who came on as Schwimmers
nationalism had negative connotations in lawyer sometime in early 1927, prepared a
Central Europe that it did not have in the brief that she believed would effectively
United States. Is it strange, she asked, that a refute Schlotfeldt. From a purely legal point
subject of Hungary should disavow a sense of of view, Rabe wrote to Schwimmer, we can
nationalism when we remember that in Europe make [him] look ridiculous.14 Rabes
 UNITED STATES V. SCHWIMMER 159

argument rested on four points, all of which the start. In a preliminary meeting with
would continue to make up the basis for Schlotfeldt and Rabe on September 19,
Schwimmers defense over the next two Carpenter told the latter in a very decided
years. First, Rabe pointed out the lack of manner that, unless Schwimmer was will-
legal ground for requiring applicants for U.S. ing to give the last drop of [her] blood in
citizenship to declare their willingness to defense of this country, she would never get
bear arms in defense of the country. Congress citizenship in his court. When Rabe pointed
had power over naturalization, and the out that every piece of legislation passed
Naturalization Act of 1906 made no mention by Congress concerning the armed forces
of taking up arms. Second, Rabe argued that provided that only able bodied male citizens
Schwimmer could take the oath of allegiance should serve . . . Judge Carpenter said this
and swear her willingness to defend the made no difference. . . [He] maintained
United States without being obliged to bear insistently that it was not possible to take
arms. The tongue is mightier than the the oath of allegiance unless the applicant was
sword, she contended, and the tongue of willing to bear arms in defense of the
a woman applicant would surely be a more country.16
effective weapon than a rie in her hands. Carpenter displayed this same attitude
Third, Rabe pointed out that conscientious at the hearing. He pointed out repeatedly
objectors had already been recognized by that women were not in fact called on to
Congress and exempted from military ser- ghtWe have not as yet a regiment
vice; therefore COs could not be barred from of Amazons, he notedbut relentlessly
citizenship on that ground alone. Finally, pressed Schwimmer on her unwillingness to
Rabe called attention to the fact that authority do so. He asked whether she would be willing
to raise an army and a navy rested solely with to serve as a nurse or as auxiliary support.
Congress, and Congress had limited mem- Schwimmer answered, I am willing to obey
bership in the armed forces to men. A every law that the American Government
womans willingness to bear arms was compels citizens to do. He asked about her
therefore irrelevant. A woman is debarred uncompromising pacism, he pressed her
by law from entering the armed forces of the on whether she would try to inuence others,
United States and the militia of all the States and he admonished her about the proper
comprising this Naturalization District, duties of citizenship. Schwimmer remained
Rabe wrote, and still a federal judge is steadfast. She repeated several times that she
asked to deny a woman citizenship because would not ght in defense of the United
she says she would not take up arms States, but said she would not actively prevent
personally in defense of her country. So far others from doing so. In the end she declared
as we know, nobody but the District Director again: I am willing to do everything that, to
of Naturalization wants her to.15 my knowledge to this day, American women
Unfortunately for Schwimmer and Rabe, are asked to do.17
District Court Judge George Carpenter, who Carpenter pushed her further, putting to
heard the case in October 1927, dismissed not her a hypothetical situation. If she were
only their arguments about gender, but the serving as a nurse in a war, and saw an
rest of Rabes legal contentions as well. enemy solider enter a building with a pistol
Carpenter was a Chicago native who had been in his hand to shoot the back of an ofcer
appointed to the court in 1910 by William of our country, and you had a pistol handy
Howard Taft, who in 1927 was serving as the by, would you kill him? Schwimmer
Chief Justice of the United States. He made responded she would not. With his next
his views on Schwimmers case clear from breath Carpenter denied her petition. It was
160 JOURNAL OF SUPREME COURT HISTORY

only at the urging both of Rabe and of

Schlotfeldts representative that he allowed
the hearing to continue. When asked further
questions by William Gemmill, Olive Rabes
co-counsel, Schwimmer claried that she
would not stand idly by as a U.S. ofcer was
gunned down. She would warn him, and she
would try to throw herself at the enemy soldier,
even if it meant she ran the risk of being shot
herself. But Carpenter again denied the
petition. I am really refusing this, he stated,
because . . . it is an attitudethe attitude of
the applicantthat I think is not common with
the women of this country.18 On Novem-
ber 14, 1927 Carpenter issued his ofcial
ruling. He agreed with Schlotfeldt that
Schwimmer was not attached to the princi-
ples of the Constitution and therefore unable
to take the oath without reservation. As a fty-one-year-old woman, there was no chance
Carpenter had already made up his mind that Schwimmer would actually be asked by her
country to bear arms. To the Supreme Court, however,
about Schwimmer based on her pacism. the chance that Schwimmer could inuence others
Even before the hearing, he decided that she including men eligible for serviceto conscientious-
would not get citizenship in his court as long ly object far outweighed the chance she would be
asked as a citizen to carry a gun.
as she remained unwilling to bear arms in
defense of the United States. Even as he
repeated that American women were not the Seventh Circuit in the spring of 1928. In
asked to ght, and even though he clearly her brief for the appellate court, Rabe relied
believed they should not be asked, he on and expanded the arguments she had made
demanded that Schwimmer be willing to do at the district level. The core of her argument
so. His reference to Amazons and his was that Congress alone had the power to
repeated assurances that women would never regulate both naturalization and to raise
be called on to ght laid bare his defense of armies and navies, and therefore in attempt-
traditional gender roles. He did not want ing to set the rules for naturalization beyond
Schwimmer to ght, but he demanded that what Congress had stated and in demanding
she be willing to do so. To his mind, this was that Schwimmer be willing to bear arms when
the proper attitude for women of this Congress did not allow women to do so, the
country. They should express their willing- judicial system was usurping its authority.19
ness to ght, with the understanding that they The United States, for its part, relied on the
would never be askedor allowedto do so. notion that Schwimmers refusal to bear arms
Schwimmers refusal to agree to this implicit, proved she was not attached to the principles
hypocritical bargain proved her downfall. of the Constitution, as required by the
Naturalization Act of 1906. U.S. Attorney
George E.Q. Johnson began by attacking the
notion of conscientious objection in general.
The Appeal
He argued that privileging individual reli-
Schwimmers case came before the gious beliefs over state concerns was not in
United States Circuit Court of Appeals for fact conscientious, and he labeled pacism
 UNITED STATES V. SCHWIMMER 161

a vice equivalent to thievery and anarchy. because they thought Schwimmer deserved
Johnson dismissed any idea that Schwimmer citizenship, but because they thought the case
should be exempt from declaring her willing- against her weak. Mitchell agreed with Judge
ness to bear arms just because she was a Carpenter that the real threat came not from
woman. Schwimmer herself was not saying Schwimmers refusal to bear arms, but from
she would not bear arms because she was a her ability to inuence others. Carpenter,
woman, but because she was a pacist. however, had not pressed her sufciently on
Therefore, in Johnsons opinion, the will- this point; he had gotten her to admit that she
ingness of the petitioner to assume all the did not care whether other women bore arms,
duties of citizenship, including that of but he had not asked her whether she would
military service, if deemed necessary by the try to inuence those who were actually
Government, is no more irrelevant than in the eligible for military servicemen. Gardner
case of a man who was above the draft age.20 P. Lloyd, who served as Acting Solicitor
The Seventh Circuit Court of Appeals General while Mitchell was away from the
sided with Schwimmer. The three-judge ofce for most of August 1928, contended
panel pointed explicitly to Schwimmers there is nothing in the record to show that the
gender in reversing the district courts woman is not attached to the principles of the
opinion and granting her application for Constitution. And Henry Ridgely, a Justice
citizenship: Department lawyer and one of the attorneys
who had signed the government brief to the
Women are considered incapable of
Circuit Court of Appeals, found himself
bearing arms . . . Appellant, if
unable to argue with that courts opinion:
admitted, cannot by any present
The whole recordand that is all we have to
law of the United States be com-
considerdoes not, it seems to me, make a
pelled to bear arms. Judging by all
case which would cause the Supreme Court of
the conscription acts of which we
the United States to search for a reason to
have knowledge, she never will be
uphold her ineligibility to citizenship. In late
required to do so; yet she is denied
August, Mitchells ofce spread word that
admission to citizenship because she
they would not seek to appeal the case to the
says she will not ght with her sts
Supreme Court.22
or carry a gun.21
Within a month, however, Mitchell was
The appellate court relied on a gendered bullied into reversing his decision by Robe
interpretation of citizenship in its ruling, Carl White, Acting Secretary of Labor. Why
deciding that since Schwimmer, as a woman, White should have taken such a strong position
would never be asked to bear arms in defense against Schwimmeragainst the legal judg-
of the United States, her refusal to do so was ment of his colleaguesis unclear, but the
not grounds to deny her admission. The Labor Department in the 1920s was a hotbed
judges argued that male and female citizens of 100% Americanism.23 White presented
did not have identical obligations to the state, his case against Schwimmer on several
and ruled that therefore they should not be different occasions throughout the late sum-
held to identical standards for naturalization. mer and fall of 1928. In July he wrote a
The Court of Appeals thus disagreed with the detailed letter to Mitchell outlining several
United States that Schwimmers gender was points in which he thought the appellate court
irrelevant. had erred in its interpretation of the Naturali-
Solicitor General William D. Mitchell zation Law of 1906. When he could not sway
and his staff initially had no interest in Mitchell, White took up his case with the
appealing the case to the Supreme Courtnot Attorney General, arguing that granting
162 JOURNAL OF SUPREME COURT HISTORY

Schwimmer citizenship would irretrievably Government of the United States

weaken the naturalization law. Although destroyed by an enemy rather than
Acting Attorney General Alfred A. Wheat have one citizen lift a nger in their
agreed the U.S. case was weak, he pressured defense. If every citizen believed as
Mitchell to le a petition for certiorari. she does, and acted as she will, we
Sometime in late September, Mitchell would have no Constitution and no
changed his mind. I am not at all sanguine Government.25
that we will gain anything by ling the
petition, he told White, but because of the Believing as he did that the legal case
unanimity in your department and the em- against Schwimmer was weak, Mitchell
phatic statements in your letter . . . I have emphasized what he saw as the danger of
concluded to yield my own judgment in the Schwimmers pacism and offered her con-
matter and proceed as you have requested.24 scientious objection as proof of her lack of
Despite his own misgivings about the attachment to the Constitution. He may not
caseor perhaps because of themMitchell have known it, but this was exactly the right
pulled no punches in his petition. Schwimmer approach for him to take with this particular
was a dangerous person and a menace to the Court.
safety of the nation, he argued: The record The Court heard oral arguments in the
justies the statement that her opposition to the case on April 12, 1929. A. A. Wheat appeared
forcible defense of the Constitution and laws for the government; he reiterated that
of the United States, or of any other organized Schwimmers exceptionally brilliant mind
government, has been and will be actively and extraordinary intellect necessitated
reected in her speeches and writings, and that keeping her out. If she were a simple
she can be depended upon to agitate against the housewife and held these opinions, Wheat
discharge by others of this duty of citizenship. explained to the Court, it would not matter,
Her age and sex were irrelevant, Mitchell but given her mind and her intellect, she
contended, because of her power to inuence would have an immense inuence. Olive
others and because she was opposed in Rabe conned herself to legal arguments,
principle to the bearing of arms in defense claiming that denying Schwimmer citizen-
of the Government even by qualied men. ship would be an infringement on Congres-
Quoting Schwimmers statement to Colonel sional prerogatives. The Justices asked very
Stone that she was an uncompromising pacist few questions, and the proceedings took no
with no sense of nationalism, Mitchell argued more than half an hour. Rabe, Schwimmer,
that her tone . . . shows that she is an ex- and their supporters thought they had carried
tremist. He went on to portray her as not only the day. The analysis of those who pretend to
an extreme pacist, but as an anarchist: read faces, Schwimmer wrote to a friend,
was that six of the judges will be in favor,
She does not believe in organized one opposed, and one doubtful. Well see.26
government as we understand it, For the moment there was nothing to do but
because organized government can wait.
not exist without military defense.
She is not attached to the principles
of the Constitution and Government
when she rejects the fundamental
The Supreme Court
principle that they must be defended
by military force if necessary. She The Taft Court was neither well prepared
would see the Constitution and nor well equipped to navigate the social and
 UNITED STATES V. SCHWIMMER 163

cultural tensions of the 1920s. Though Court had to weigh the right of an individual
stocked with conservatives, the Court tried to conscientiously object against the right of
to temper its protection of the rights of the government to expect certain obligations
businesses and corporations with limited from its citizens. Despite having made some
attempts to protect the rights of individuals. allowances for property rights and limited
But, in general, the Court responded to the civil liberties, the Court was not yet willing to
upheavals of the decade much as the nation weaken the government to the point of what it
didwith some resolution and a great deal of saw as defenselessness. The Justices reso-
confusion.27 In Schwimmers case, the lutely decided against Schwimmer. Pierce

Pierce Butler, who wrote the majority opinion in Schwimmer, had long argued that individuals were not entitled
to the protection of the government unless they were willing to defend it in return. The inuence of
conscientious objectors is apt to be more detrimental than their mere refusal to bear arms. The fact that, by
reason of sex, age, or other cause, they may be unt to serve does not lessen their purpose or power to inuence
others, wrote Butler (pictured here with his wife, Annie).
164 JOURNAL OF SUPREME COURT HISTORY

Butler authored the majority opinion; he liable to be incapable of the attachment for
was joined by Chief Justice William Howard and devotion to the principles of our Con-
Taft, George Sutherland, Willis Van Devanter, stitution that are required of aliens seeking
James C. McReynolds, and Harlan Fiske naturalization.30
Stone. Oliver Wendell Holmes, Jr., and Holmes disagreed, arguing that
Edward Sanford wrote dissenting opinions; Schwimmers beliefs did not pose any kind
Holmes was joined by Louis Brandeis. of viable threat to the United States. Some of
Schwimmers pacism, and especially her answers might excite popular prejudice,
the statements taken from her letter to Colonel he conceded, but, if there is any principle of
Stone, lay at the heart of the majority opinion. the Constitution that more imperatively calls
The Court cited Schwimmers refusal to bear for attachment than any other, it is the
arms as evidence of her lack of attachment to principle of free thoughtnot free thought
the principles of the Constitution, and thus as for those who agree with us, but freedom for
grounds for denying her petition. That it is the the thought that we hate.31 That line became
duty of citizens by force of arms to defend our one of Holmes most famous, often invoked
government against all enemies whenever by supporters of free speech. He also pointed
necessity arises, wrote Butler, is a funda- out the absurdity of denying Schwimmer
mental principle of the Constitution. The citizenship, much as Schwimmer herself and
Constitution had been ordained in part to the Seventh Circuit had done before him: So
provide for the common defense, and far as the adequacy of her oath is concerned, I
several provisions established the authority hardly can see how that is affected by the
of Congress and the President to raise and statement, inasmuch as she is a woman over
command military bodies. Citizens service in fty years of age, and would not be allowed to
those bodies was the price they paid for the bear arms if she wanted to.32
protection of the state. Therefore, according to The decision shocked Schwimmer, her
the majority, whatever tends to lessen the supporters, and much of the country. Those
willingness of citizens to discharge their idealists who fought in the last war believing
duty to bear arms in the countrys defense it was a war to end all wars cannot be more
detracts from the strength and safety of the shocked by the decision than I am, she
government.28 wrote to a friend.33 In a letter of condolence to
But it was not just Schwimmers refusal Olive Rabe, Roger Baldwin of the American
to bear arms that was the problem. Here the Civil Liberties Union described it as a most
Court leaned heavily on the United States reactionary decision. Given the strengths of
brief. The inuence of conscientious objec- Schwimmers case and the weaknesses of the
tors . . . Butler wrote, is apt to be more governments arguments, he felt it incredible
detrimental than their mere refusal to bear that these old gentlemen should have fallen
arms. The fact that, by reason of sex, age, or for the prejudices of unthinking men in the
other cause, they may be unt to serve does street. Not even the most pessimistic of our
not lessen their purpose or power to inuence friends predicted any such result, despite
others.29 Schwimmer, the Court argued, the Supreme Courts bad record since the war
had demonstrated her desire and capability on all such issues.34 The New York Times
to exercise just such an inuence. Butler protested the decision, lauding Holmes
likewise took her professed lack of national- dissent and pointing out that the United
ism as evidence of her untness: One who is States had signed the Kellogg-Briand Pact
without any sense of nationalism is not well only the year before. It is a little anomalous,
bound or held by the ties of affection to the Times noted, that a country which has
any nation or government. Such persons are renounced war should exclude from its
 UNITED STATES V. SCHWIMMER 165

citizenship a person whose chief offense is those cases, some competing value was
her opposition to war.35 Fiorello LaGuardia present that was more important to him than
in The New York Evening Graphic, Walter freedom. [In Schwimmer], the competing
Lippmann in The New York World, and value was apparently patriotism.36 Butler
dozens of editorialists across the country believed that pacists lacked any sense of
concurred. Given these reactions, and the patriotism or nationalism. For evidence, he
sentiments of all parties going in to the pointed to World War I, noting that several
case, the Courts decision requires some thousand conscientious objectors had been
explanation. imprisoned in the United States in 1917 and
That Butler, perhaps the Courts most 1918 on charges of desertion, sedition, and
steadfast conservative, decided against other crimes. Butler tied Schwimmers paci-
Schwimmer would not have raised many sm directly to his concerns about COs
eyebrows. His biographer David J. Danelski during the war: It is obvious that the acts of
points out that in the fourteen nonunanimous such offenders evidence a want of that
cases that presented substantive issues of attachment to the principles of the Constitu-
freedom, such as freedom of speech or tion of which the applicant is required to give
conscience, he voted for the individual only afrmative evidence by the Naturalization
29 percent of the time, compared with Act.37
majoritys score of 50 percent. Danelski Butler had long argued that individuals
speculates that in seventy-one-percent of were not entitled to the protection of the

Solicitor General William D. Mitchell and his staff initially had no interest in appealing the Schwimmer case to
the Supreme Court, but Robe Carl White, Acting Secretary of Labor, bullied Mitchell. Whites stance reected
the anti-immigrant mood at the Department of Labor in the 1920s.
166 JOURNAL OF SUPREME COURT HISTORY

government unless they were willing to political society, and implies the reciprocal
defend it in return. Fidelity and duty were obligations as compensation for each other of a
the price of safety. In a 1916 speech to the duty of allegiance on the part of the member
Minnesota Bar Association, he argued Alle- and a duty of protection on the part of the
giance to government and protection by it are society.41 Butler drew on Luria when he
reciprocal obligations, and stripped of all argued that allegiance was the price U.S.
sentiment, the one is the consideration for the citizens paid for protection. McReynolds,
other; that is, allegiance for protection and meanwhile, had established a precedent for
protection for allegiance.38 Thirteen years weighing the interests of the United States
later, he expressed almost the identical point more heavily than the interests of the petitioner
in Schwimmer: All [citizens] owe allegiance when ruling on naturalization. In United States
to the Government, and the Government owes v. Manzi just a year earlier he wrote a line that
to them the duty of protection. These are Butler quoted directly in Schwimmer: Citi-
reciprocal obligations and each is a consider- zenship is a high privilege, and when doubts
ation for the other.39 For Butler, patriotism exist concerning a grant of it, generally, at
and nationalism took precedence over least, they should be resolved in favor of the
Schwimmers individual right to freedom of United States and against the claimant.42
conscience. Taft was in bad health by 1929, and
Sutherland agreed. In a speech at the likely would not have been able to participate
University of Michigan in 1920, he railed actively in any deliberations. He did not
against what he called the current theory of attend oral arguments in the case on April 12.
internationalism, proclaiming that the nation But his lifelong attitudes in favor of Social
is something more than so many millions of Darwinism and preservation of the status quo,
people occupying a geographical subdivision and his antipathy to social reform and social
of the earths surface, speaking the same democracy, help explain his decision to join
language and subject to the same laws. These Butler. Taft had also sided with the majority
are its visible and tangible constituents, but in Manzi the year before, as he had in the
what gives it organic life and meaning is the two mid-decade decisions curtailing civil
spirit of unity which dwells within . . . The libertiesGitlow v. New York in 1925 and
institutions under which we live are of such Whitney v. California in 1927.
transcendent worth that their protection is the Stone sided with the majority, but he was
imperious and paramount duty of all whose not entirely satised with Butlers opinion. In
rights are made safe by the marvelous fact, he later told a friend, he agreed in
counterpoise of liberty and law which they principle with Holmes dissent, but thought
afford.40 Sutherland would not have re- it not quite applicable to the situation created
sponded well to Schwimmers claim that she on the record. For Stone, the case hinged on
had no sense of nationalism, and likely his belief that Schwimmer would not only
disdained her claim to belong to the whole refuse to bear arms herself if asked, but
human family. would also encourage others to do the same.
The two other conservative Justices That being the case, it seemed to me that the
whose crusade against the New Deal would applicant did not show attachment to the
later earn them, along with Butler and Suther- principles of the Constitution . . . The question
land, the label The Four Horsemen of the was not merely, as Justice Holmes seemed to
Apocalypse, also sided against Schwimmer. think, that the applicant was a person who
Butler cited key opinions written by both. In believed that the Constitution could be
Luria v. United Statesem (1913) Van Devanter improved. Such persons, if they are willing
argued, Citizenship is membership in a to obey it until such time as it is changed by
 UNITED STATES V. SCHWIMMER 167

the prescribed procedures, may become good argued that a pamphlet denouncing the sending
citizens and be attached to the principles of U.S. troops to Russia did not present a clear
of the Constitution. When their objections and present danger to the nation, and was thus
carry them further than that, I think Congress, protected by the First Amendment. In Gitlow,
rightly or wrongly, has prescribed that they Holmes argued for overturning the conviction
should not be admitted. Thus the key for of Benjamin Gitlow for publishing a socialist
Stone was Schwimmers behavior rather than manifesto. The State of New York claimed the
her ideas. He pressed Butler to stress that manifesto was an incitement to violence, but
point in the opinion, fearful that Butlers as Holmes famously pointed out, every idea
emphasis on feelings of dislike and distrust is an incitement.45 In 1927 Holmes joined
would suggest the Court was actuated by Brandeis concurrence with the majority in
feelings of prejudice.43 Butler took Stones Whitney, which upheld Anita Whitneys
advice and incorporated the concerns about conviction for communist organizing, but
Schwimmers actions, though he left in his disagreed with the majoritys argument that
original concerns about her ideas themselves. any speech that had a bad tendency to incite
Stone also had well-documented atti- violence was unlawful.46 But none of these
tudes on conscientious objection. In 1918 he was a majority opinion. Holmes arguments
had been appointed by Woodrow Wilson to were laying the foundations for the Courts
the Board of Inquiry, a government tribunal protections of civil liberties beginning in the
charged with interviewing men who claimed 1930s, but the only Justice on whom Holmes
to be conscientious objectors. In 1936 he could rely for support in 1929 was Brandeis.
exchanged letters with one of the men he had It is possible that Brandeis felt some
interviewed who wanted to know whether personal sympathy for Schwimmer. Like her,
Stone had changed his mind about compel- his radical Jewish parents had ed political
ling conscientious objectors to ght. He had and ethnic persecution in Central Europe.
not, and his reply to the man suggests what his But emotion aside, Brandeis was rmly in
attitude may have been toward Schwimmer: Holmes camp on free speech. His concur-
I believe that inasmuch as I must live in and rence in Whitney emphasized its critical
be a part of organized society, the majority importance: To justify suppression of free
must rule, and that consequently I must obey speech, there must be reasonable ground to
some laws of which I do not approve, and fear that serious evil will result if free speech
even participate in a war which I may think ill is practiced. There must be reasonable ground
advised. I respect the views and opinions of to believe that the danger apprehended is
those whose objections to all war, or to a imminent. There must be reasonable ground
particular war, are so great as to forbid their to believe that the evil to be prevented is a
participation, but it has always seemed to me serious one.47 Brandeis did not agree with
that those who take that extreme position the majoritys contention that Schwimmer
should accept the consequences without should be denied citizenship because she
complaint.44 In Schwimmers case, that might incite others to conscientious objection
consequence was the denial of her application and thus endanger the nations defense.
for citizenship. Lastlyand, in this instance, least
So much for the majority. Holmes dissent Sanfords one-sentence dissent merely said
would have been easier for Schwimmer to he agreed with the Seventh Circuits decision
understand. Since 1919 he had written opin- and thought it should be afrmed. Despite
ions on some of the most high-prole civil the fact that Sanford had written the majority
liberties cases heard before the Court. In opinions in Gitlow and Whitney curtailing
Abrams v. United States (1919), Holmes free speech, he likely sided with Schwimmer
168 JOURNAL OF SUPREME COURT HISTORY

because she posed no threat of violence. Her looking to marshal an argument that they
refusal to bear arms was not sufcient should therefore be subject to the same
grounds for denying her citizenship, Sanford treatment as men in other arenas. Among
argued, just as the Court would never deny those in the majority on Schwimmer, only
citizenship to anyone for disobeying the Sutherland was on the record as a defender of
Eighteenth Amendment.48 womens suffrage, but the very fact of the
amendment offered symbolic cover for equal
treatment.
Less prominent but more signicant was
Gender Considerations
the Courts ruling in Adkins v. Childrens
After considering the backgrounds and Hospital (1923). In 1918, Congress passed a
previous rulings of Butler, Sutherland, Van federal minimum wage law for female
Devanter, McReynolds, Taft, and Stone, it is employees in Washington, D.C. Well aware
perhaps more surprising that Schwimmer and that since the 1890s the Court had looked with
Rabe were so condent of their victory than disfavor upon any governmental attempt to
that the Court ruled against her. These were regulate working conditionsto interfere
men who valued patriotic loyalty above with workers liberty of contractCon-
individual conscience. They were very gress framed the law as an attempt to protect
much products of their time in their fears of the health and morals of women. In Muller v.
radicalism and pacism, and they believed a Oregon (1908), the Court had upheld an
citizens duty to the nation superseded Oregon state law that restricted the number of
adherence to any political doctrine. hours women could work each day, arguing
What is surprising about the caseand that, because women were mothers or poten-
not a little ironicis that in order to defend tial mothers, their health was a public interest
their demand for proof of Schwimmers and therefore their bodies could be regulated
loyalty the Justices implicitly accepted the by the state. Even though protective labor
premise of gender equality. This particular legislation was not permissible for all work-
standard for naturalization had to apply to ers, it might therefore be permissible for
women as well as men, they contended. women. But the Court struck down the D.C.
Taken at face value, the majority opinion minimum wage law on the grounds that
reads like an argument for equal citizenship. liberty of contract was the general rule, and
Butler relied on gender-neutral language, restraint the exception.50
referring to citizens and conscientious Writing for the majority, Sutherland not
objectors. He even went so far as to argue only relied on previous rulings regarding
that women pacists had just as much power liberty of contract, he also cited recent
to inuence others as did men.49 Regardless changes in the status of women:
of their ability to serve, women were required
to declare their willingness to bear arms in In view of the greatnot to say
defense of the nation just as men did. revolutionarychanges which have
Once again, the historical context is taken place . . . in the contractual,
suggestive. The 1920s offered just enough political and civil status of women,
trappings of gender equality to provide a culminating in the Nineteenth
justication for the Courts position on Amendment, it is not unreasonable
Schwimmer. The Nineteenth Amendment to say that these differences have
was one example. The fact that women now come almost, if not quite, to the
were allowed to vote was a highly visible vanishing point. In this aspect of the
and tangible piece of evidence for anyone matter . . . we cannot accept the
 UNITED STATES V. SCHWIMMER 169

doctrine that women of mature age, did not erase their physical differences, he
sui juris, require or may be subjected argued: The Amendment did give women
to restrictions upon their liberty of political power, and makes more certain that
contract which could not lawfully legislative provisions for their protection will
be imposed in the case of men under be in accord with their interests as they see
similar circumstances. To do so them. But I dont think we are warranted in
would be to ignore all the implica- varying constitutional construction based on
tions to be drawn from the present physical differences between men and wom-
day trend of legislation, as well as en, because of the Amendment.52 Taft was a
that of common thought and traditionalist when it came to gender, and
usage, by which woman is accorded would not have condoned allowing women to
emancipation from the old doctrine serve in the military. But he was also a
that she must be given special traditionalist when it came to opposing
protection or be subjected to special radical pacism, and that seemed the more
restraint in her contractual and civil immediate threat in Schwimmers case.
relationships.51 All the Justices in the majority made a
similar call. In the end, nationalism trumped
Sutherland was not arguing for compre- gender as the measure of Schwimmers tness
hensive equality between men and women; his for citizenship. The Court never entertained the
opinion still pointed to physical distinctions idea that women should serve in the military;
between the sexes. But the Court promoted therefore they could demand that Schwimmer
womens equality to the extent that it suited express her willingness to do so without
them in order to make a larger argument seriously threatening the traditional gender
against the minimum wage. Following the order. But her pacism represented a much
logic of Adkins, it is reasonable to assume that greater danger. To the Court, the chances that
Sutherland would have argued against re- Schwimmer could inuence othersinclud-
stricting womens obligation to bear arms in ing men eligible for serviceto conscientious-
the same way that he argued against restricting ly object far outweighed the chances she would
their liberty of contracteven if he would be asked as a citizen to carry a gun. In the 1920s,
never have gone so far as to argue that women fundamental challenges to the gender order
should actually participate in combat. Adkins were actually quite minimal. New women
thus provided additional cover for a Justice may have worn shorter hair and shorter skirts,
like Sutherland in the form of supercial and pushed limits on behavior and sexuality,
support for womens equality. Women could but ultimately they still married, had children,
not be excused from stating their willingness and followed traditional domestic paths. The
to bear arms. perceived social threats of radicalism, anarchy,
Not all the Justices were willing to go communism, and other dangerous ideolo-
even so far as a token acknowledgment of gies ran much deeper. The Red Scare and the
gender equality. Butler, Van Devanter, and trial of Sacco and Vanzetti only heightened
McReynolds all sided with the majority in those fears. In order for an immigrant
Adkins, but Taft was not prepared to accept especially a Jewish woman from Eastern
any suggestion of equality. He dissented in Europeto be considered t for citizenship,
Adkins on the grounds that employers and there could be no question about her loyalty to
employees were not upon a full level of the United States. She had to prove she was
equality of choice, and that women in 100% American.
particular needed protection from harsh labor Thus, within the hyper-patriotic context of
conditions. Granting women the right to vote the 1920s, the Courts decision in Schwimmer
170 JOURNAL OF SUPREME COURT HISTORY

4
is less surprising than many observers felt at the Ibid., 5.
5
time. While the Court would not have been Ibid., 6.
6
Transcript of Record, 13-14.
prepared to support real gender equality, the 7
An Act to Establish a Bureau of Immigration and
Nineteenth Amendment and Adkins had gone Naturalization, and to provide for a uniform rule for the
far enough to give them rhetorical cover for naturalization of aliens throughout the United States.
arguments that men and women should be Approved June 29, 1906 The American Journal of
treated equally when it came to this particular International Law 1, no. 1, Supplement: Ofcial Docu-
duty of citizenship. In the matter of national ments (January 1907), 34.
8
Transcript of Record, 6-7.
defense, Schwimmers gender was no excuse. 9
Transcript of Record, 8-9.
The perceived threat of her uncompromising 10
Ronald B. Flowers, To Defend the Constitution:
pacism and her career as an activist out- Religion, Conscientious Objection, Naturalization,
weighed any considerations the Court might and the Supreme Court (Scarecrow Press, 2003), 91-92.
11
have been willing to give to her as a woman. Rosika Schwimmer to Lee Alexander Stone, 19
September 1925, Box G5, Folder 3, Olive Rabe Papers,
This does not mean the Court would in fact
NYPL.
have supported real gender egalitarianism; the 12
Brief for Respondent, United States v. Schwimmer, 15.
Nineteenth Amendment and the Adkins deci- 13
Transcript of Record, 12.
sion were not true measures of equality. But the 14
Quoted in Flowers, 95.
majority could point to them in order to hold 15
In re: Petition of Rosika Schwimmer for Naturaliza-
Schwimmer to the highest possible standard tion to be argued before Judge Carpenter of the District
Court of the United States for the Northern District of
for naturalization.
Illinois, October 13, 1927, Box 494, Folder 9,
It was not until 1946, in Girouard v. United Schwimmer Papers.
States, that the Court overturned Schwimmer 16
Rabe to Schwimmer, 19 September 1927, Box 116,
and ruled that applicants for citizenship could Folder 15, Wynner Papers. Emphases in original.
17
not be barred for being conscientious objectors. Ibid., 507.
After Girouard was handed down, a group of
18
In the District Court of the United States for the
Northern District of Illinois, Eastern Division; In re
Schwimmers friends, led by Carrie Chapman Petition of Rosika Schwimmer for Naturalization, 13
Catt, discussed the possibility of trying to October 1927, 5-7, Box 494, Folder 8, Schwimmer
secure Schwimmers citizenship at long last. Papers.
19
Desperately ill with diabetes, Schwimmer was Brief for Appellant, Schwimmer v. United States, 27
unwilling to go through the entire application F.2d 742 (1928), 6, 12.
20
Brief for Appellee, Schwimmer v. United States, 36-37,
process again, but she agreed to a course of
40. Emphasis in original.
action suggested by Roger Baldwin, which was 21
Schwimmer v. United States, 27 F.2d 742 at 744.
to secure an act of Congress granting her 22
William D. Mitchell, memorandum for Mr. Luhring,
citizenship. But Catt and the ACLU ultimately 30 July 1928, Box 76, Folder 3, Wynner Papers;
determined such a course was not possible.53 Gardner P. Lloyd, memorandum, 27 August 1928, Box
76, Folder 3, Wynner Papers (emphasis added); Henry
Rosika Schwimmer remained stateless until her
S. Ridgely, Memorandum for the Solicitor General,
death in 1948. 25 August 1928, Box 76, Folder 3, Wynner Papers;
Luhring to the Secretary of Labor, 31 August 1928, Box
76, Folder 3, Wynner Papers; Luhring to J. Edgar
ENDNOTES
Hoover, 4 September 1928, Box 76, Folder 3, Wynner
1
Transcript of Record, United States v. Schwimmer 279 Papers.
23
U.S. 644 (1929), 6. Immigration was under the purview of the Labor
2
Rosika Schwimmer to Olive Rabe, 20 December 1926, Department in the 1920s, thus the restrictive quotas
Box 116, Folder 14, Edith Wynner Papers, Manuscripts originated there.
24
and Archives Division, New York Public Library Flowers, 103-105; A.A. Wheat to Robe Carl White, 13
(NYPL). Emphasis in original. September 1928, Box 76, Folder 3, Wynner Papers;
3
Rosika Schwimmer, Adventure in Citizenship, 1-2, Mitchell to White, 28 September 1928, Box 76, Folder 3,
Box 473, Folder 2, Rosika Schwimmer Papers, NYPL. Wynner Papers.
 UNITED STATES V. SCHWIMMER 171

25 43
Petition for Certiorari, United States v. Schwimmer, Quoted in Alpheus Thomas Mason, Harlan Fiske
5, 17. Stone: A Pillar of the Law (Viking, 1956), 519-
26
Schwimmer to Lola Maverick Lloyd, 1-2 May 1929, 520.
44
Box 10, Folder 3, Lola Maverick Lloyd Papers, NYPL. Quoted in Mason, 105.
27
Melvin I. Urofsky, The Taft Court, 1921-1930, in 45
Gitlow v. New York, 268 U.S. 652 (1925) at 673.
46
The United States Supreme Court: The Pursuit of Whitney v. California, 274 U.S. 357 (1927).
47
Justice, ed. Christopher L. Tomlins (Houghton Mifin, 274 U.S. 357 at 376.
2005), 199. 48
David Burner, Edward Terry Sanford, in The
28
United States v. Schwimmer, 279 U.S. 644 (1929) at Justices of the United States Supreme Court 1789-
650. 1969: Their Lives and Major Opinions (R.R. Bowker,
29
Ibid., at 651. 1969), 2207.
30 49
Ibid., at 652. 279 U.S. 644 at 651.
31 50
Ibid., at 654-655. Adkins v. Childrens Hospital, 261 U.S. 525 (1923)
32
Ibid., at 653-654. at 546.
33 51
Schwimmer to Margery Corbett Ashby, 27 May 1929, Ibid., at 553.
52
Box 192, Folder 1, Schwimmer Papers. Ibid., at 562, 567.
34 53
Roger Baldwin to Rabe, 28 May 1929, Box G6, Folder Carrie Chapman Catt to Schwimmer, 15 October
5, Rabe Papers. 1946, Box 495, Folder 4, Schwimmer Papers;
35
A Dissenting Opinion, The New York Times, 29 May Schwimmer to Catt, 17 December 1946, Box 495,
1929, 28. Folder 4, Schwimmer Papers; Baldwin to Schwimmer,
36
David J. Danelski, A Supreme Court Justice Is 22 January 1947, Box 495, Folder 4, Schwimmer
Appointed (Random House, 1964), 183. Papers; Frances Levenson to Schwimmer, 5 May 1947,
37
279 U.S. 644 at 652-653. Box 495, Folder 4, Schwimmer Papers. It is worth
38
Quoted in Danelski, 183-184. noting that, because Girouard only covered those who
39
279 U.S. 644 at 649. conscientiously objected due to religious scruples,
40
Quoted in Joel Francis Paschal, Mr. Justice Suther- there was no guarantee the United States would have
land: A Man against the State (Princeton, 1951), admitted the atheistic Schwimmer. The Court did not
218-219. allow conscientious objection on non-religious grounds
41
Luria v. United States, 231 U.S. 9 (1913) at 9. until 1965. Girouard v. United States, 328 U.S. 61 at
42
United States v. Manzi, 276 U.S. 463 (1928) at 467; 64 (1946); United States v. Seeger, 380 U.S. 163
279 U.S. 644 at 649-650. (1965).
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