The experience of these fifteen years has demonstrated that the law, as it stands, is on the whole just and effective for its purposes. Its defects can be remedied; its sound features strengthened and clarified. It is time to modify it in some respects; to standardize the tests and conditions enforced under its provisions, to the end of removing, or anyway diminishing, the opportunity for the erratic operation of “personal equation” and the theories, whims, negligences, together with the illegal and extra-legal practices, in both the executive departments and the courts, of which the aspirant for citizenship is the hapless victim.
[VI]
PERSONAL EQUATION IN NATURALIZATION
When we speak of the “personal equation” as an important factor in the adoption or rejection of an alien applicant for citizenship, we are likely to be thinking chiefly of the personality of the petitioner; of his character, intelligence, education, social training and experience; of his general fitness and capacity for assimilation of our language, customs, traditions, institutional relations—what we are pleased to call our “fundamental principles.” But this is only a part, and not always or necessarily the most significant and controlling part, of the situation. There are other “personal equations” to be considered. For while it is true in one sense that the applicant does pass into the maw of a machine, constructed “of law rather than of men,” and governed by more or less precise and automatically operating regulations from whose technic the individuals on either side of the process may not materially depart, the fact is that there is hardly any other legal process in our governmental system in which personality—individual ideas, prejudices, idiosyncrasies—plays so large a part. In no other activity of the courts is the individual petitioner so entirely at the mercy of the court, so completely without recourse in the event of a decision against him.
Strictly speaking, the proceeding is judicial; an ex-parte case in an important court, in which a petition is filed with the clerk, comes in due course before the judge in person; evidence is received for and against the granting of the privilege requested, and the judge decides in a formal order and decree, pro or contra; the petition is granted or denied, as the case may be. For every petition is decided and disposed of in some final way, even though it may be continued or postponed once or more. It is doubtful, however, whether anywhere in our judicial procedure—even in the minor courts where so often farcically unjust “law” is inflicted upon defenseless persons—may be found a class of cases departing so far in practice from the apparent simplicity of the theory; where the petitioner is subject to so heavy handicaps of technicality; to so great an extent at the mercy of personal whims and mental limitations, of blunders and negligences—and “red tape”—of persons over whose activities he has not the slightest control, with very little right or opportunity to have beside him anyone to protect him from encroachment upon his rights.
The Constitution of the United States gave to Congress exclusive authority “to establish a uniform rule of naturalization.”[83] It might have been inferred that the intention was to make the process strictly an affair of Federal administration; but Congress did not so construe or utilize the authority. It established, by the original statute and subsequent legislation, uniform standards of requirement as to racial restriction, preliminary period of residence, literacy, and moral qualifications; but in effect it gave the jurisdiction and administration of the law back to the states—not in so many words, to be sure, but by committing the naturalization function to local as well as to Federal judges in every state and territory. Nothing could have been devised more surely to subject the operation of the law to the peculiarities of local conditions and feeling, and to the warps and twists of personal notion.
From the beginning, in the first general naturalization law enacted after the new republic got under way, the function of admitting new members of the nation has been vested in the courts—a judicial power and activity. So it remains to-day. And with the sole exception of Canada, the United States is unique in respect of this method of naturalization. England, France, and virtually all of the other nations vest the power in some ministerial agency.[84]
A FUNCTION OF LOCAL COURTS
At first glance it might seem fitting and wise to confine the function (if to the courts at all) to the Federal tribunals, in the interest of freedom from local political influence, uniformity of interpretation and practice, and recognition of the fact that citizenship is chiefly a relationship to the nation as a whole. Always, indeed, there has been a considerable body of sentiment in favor of such a change in the practice. Many of the state judges would favor it; some for reasons of principle, but most because they would gladly get rid of a body of duty which to many is irksome and a distasteful interference with their ordinary matters of litigation by duties which they regard as properly more administrative than judicial. No Federal judge will hear of any such addition to their already great burden of work.