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CHAPTER 4

The First Political Denaturalization: Emma Goldman

In the evolution of its purpose and interpretation, the 1906 denaturalization clause took American citizenship in a new direction. Immigration from Europe was at its peak in 1907 with 1,285,349 entries.¹ The dramatic reaction to this surge—restrictionist and racist—was reinforced later in the context of World War I and the rise of revolutionary ideologies. One of the primary objectives of the immigration and naturalization policies was to detect and prevent “un-American” immigration and to exclude and deport those who had succeeded in settling in the country. “Un-Americanism” was defined politically and encompassed opinions, acts, practices, or simply ethnicity.

In the context of the creation of the Dillingham Commission by the Immigration Act of February 20, 1907,² whose report led to the adoption of the literacy test in 1917, and to the quota laws of 1921 and 1924,³ loyalty became an important concern of the government.

This trend resulted in the creation of a conditional citizenship for some categories of citizens. The Expatriation Act of March 2, 1907, promoted the goal of “reducing the number of Americans who, in the eyes of the federal government, have compromised their status as citizens by maintaining or establishing foreign liaisons of a certain type.”⁴ The quasi-simultaneity of the 1906 Naturalization Act, designed to create a standard on naturalization and to combat fraud and illegality, and the 1907 Expatriation Act, which created this conditional citizenship, is deceptive: one concerns mainly procedural fraud, the other xenophobia and fear of foreign and radical ideologies. While the 1906 act was the culmination of a legislative debate on fraud that had started in the 1840s, the 1907 act began a period of fear and paranoia that would greatly expand by 1940.

This conditional citizenship applied in 1907 to different categories of native-born Americans: women marrying foreigners and Americans acquiring another nationality. Even though the provision concerning American women was by then obsolete,⁵ in 1940 the scope of conditionality would expand to include American-born citizens evading the draft, joining a foreign army, or participating in foreign elections. But naturalized citizens remained the main target of crusaders against un-Americanism. If they were residing abroad, they were the object of both the 1906 and 1907 laws. The latter expanded the scope of the former to include naturalized citizens living two years in their country of origin or five years in any foreign country at any time after their naturalization.

New Americans living in the United States could also lose their citizenship if they violated certain standards. Let’s put aside the “criminals.” Today all democracies provide for the possibility of voiding a citizenship recently granted if a naturalized person is found to have lied about a criminal record prior to accession to citizenship. That provision was more expansive in the interwar period than it is today. It included in the scope of bad moral character, for example, cases involving extramarital relations, defense or advocacy of free love, the practice of plural marriage or polygamy,⁶ the possession and sale of intoxicating liquor in violation of the National Prohibition Act of 1922,⁷ or working as a pimp.⁸ These restrictions reflected the values and social norms of the time. Yet additional restrictions—based on race and politics—rose after 1906. A naturalized person who was Asian, spoke out against the war, or was a socialist, a communist, or a fascist risked the loss of his American citizenship.

Citizenship could be lost by acts or speech now considered basic rights. But this conditionality of the status of naturalized citizen would provoke conflicts within the executive branch—between the Justice and the State departments—and with and between the courts. Conditionality of citizenship was rooted in both the explicit language of the statute (for the naturalized citizen moving and living abroad) as well as in more expansive interpretations of the law’s intent. For instance words pronounced or acts committed after naturalization could serve as a post facto indication of a mental reservation, a lack of attachment to the U.S. Constitution at the moment of or before the naturalization. Sometimes an illegality committed before naturalization—like an error or a lie on the date of arrival in the United States—could serve as a pretext for a denaturalization for political reasons. This is how it started for Emma Goldman, the subject of the first political denaturalization in the United States in 1909.

* * *

Goldman was born in 1869 in Lithuania, where she was introduced to anarchist principles at the factory where she worked. She emigrated to the United States at the age of seventeen and married fellow Russian-born factory worker Jacob Kersner, through whom she acquired American citizenship. The two separated not long thereafter, and subsequently divorced.

Goldman eventually became the “most prominent anarchist of the era” and was known by most Americans of the time as “Red Emma” and the “High Priestess of Anarchism.”⁹ Her involvement as a revolutionary grew in the aftermath of the Haymarket Riot in 1886, where a bomb had been thrown at police during a protest in favor of a shorter workday. The subsequent execution of several anarchists in connection with the attack galvanized many American anarchists, including Goldman. Six years later, Goldman is believed to have participated in the attempted assassination of factory owner and future philanthropist Henry Clay Frick. Goldman’s long-time companion and fellow anarchist Alexander Berkman was the would-be assassin. Though not personally involved, Goldman served as an inspiration to, and briefly met, Leon Csolgosz, the insurrectionary Polish anarchist and the assassin of President William McKinley.

Based on these revolutionary activities, the U.S. government wanted to deport Goldman.¹⁰ The government’s original strategy was simply to bar her reentry to the United States when she left the country in the fall of 1907 for speaking engagements at the International Anarchist Congress in Europe.¹¹ On September 24, 1907, Frank Sargent, the commissioner general of immigration, sent a “strictly confidential” telegram to the New York, Philadelphia, and Baltimore immigration offices declaring that “Emma Goldman, the notorious anarchist, is now out of the United States, but intends to return very shortly to resume her propaganda in this country. . . . It is desired that either or both of these persons [the other was Max Baginski] who may arrive at your port should be detained and rigidly examined; any claims of American citizenship to be fully verified before being accepted as correct.”¹²

Goldman was returning with fellow anarchist Max Baginski,¹³ and immigration officials initially attempted to treat and quickly deport her as an alien. But Goldman traveled from Liverpool to Montreal and “experienced no trouble whatever getting into Canada.”¹⁴ On the train from Montreal to New York, the porter took her ticket, “together with a generous tip, and he didn’t show up again” for the rest of the journey. Two weeks later, at her first public appearance, the newspapers, the public, and the government were informed of her arrival back in the States.¹⁵ Oscar S. Straus, secretary of commerce and labor, pronounced Goldman to be in violation of a 1907 act of Congress, known as the Anarchist Law, and issued an order “to take into custody the said alien, and convey her before a Board of Special Inquiry, at Ellis Island, to enable her to show cause why she should not be deported in conformity with the law.”¹⁶

On November 17, a memo of the Bureau of Immigration sent to Straus listed Goldman’s criminal record as well as the many anarchist speeches she had delivered in recent years, including the most recent one, on November 11 in New York City. But it also warned Straus of the possibility of deporting her, especially since it was still unclear whether or not Goldman was a citizen: “The general opinion of the officers who have been following her up is that she will welcome arrest; that it will not only advertise her and add to her prestige, but will be the means of bringing her in considerable sums in the way of contributions.”¹⁷ On November 19, 1907, Straus withdrew the warrant for Goldman’s arrest, pending an investigation on her citizenship status.¹⁸

On March 10, 1908, Sargent requested that Richard K. Campbell, the chief of the Division of Naturalization, open an inquiry into Goldman’s assertion that she was truly an American citizen via her naturalized father, as she had originally declared.¹⁹ On March 13, Assistant U.S. Attorney Palmer S. Chambers telegraphed Campbell: “Investigation progressing satisfactorily, very probably E.G. is not a citizen. Will write you when sure.”²⁰ On March 18, 1908, Chambers submitted an eight-page report to Campbell,²¹ based on the investigation he had performed that day in Rochester, New York, with naturalization examiner Abraham L. Zamosh: “Goldman was born in Popolan, County of Shavel State of Kovno, Russia, on June 16th, 1870, Russian date (American date June 29, 1870). . . . In December 1885 she left there with her half sister Helena Zodokoff for the United States.” Goldman arrived in Rochester, New York, on January 1, 1886. The report notes that Emma Goldman’s father Abraham Goldman was naturalized on October 13, 1894, when Emma Goldman was over twenty-four years of age, and she could not, therefore, claim naturalization through him. “Emma Goldman was married to Jacob Kersner in the spring of 1887. . . . In the latter part of 1888 or early in 1889, Emma Goldman and her purported husband were divorced according to the Jewish law by Rabbi Abe Chajin Levinson. [A few months after this], Goldman fell in love with Abraham [sic] Berkman, the man who shot Henry Clay Frick during the Homestead riot.”

The report then moves to Jacob Kersner.

The son of Abraham Kersner, born in Niemiroff, State of Kaminits Podolsk, Russia in approximately April, 1868, he arrived in June 1883 or 1884. From there, he went to Rochester, back to New York City, and finally back to Rochester to live with his parents. The following entry appears on the naturalization records of Monroe County: Jacob A. Kersner, born at Belgrade Serbia, Germany, April 1st, 1868, landed in the United States June 18, 1879, date of naturalization October 18, 1884. Witnesses Simon Goldstein and Samuel Cohen. Charge to the Democratic County Committee.” The father believes that the above record is that of the naturalization of his son Jacob.

This report’s findings demonstrate that Kersner was naturalized before the age of eighteen and the investigation is therefore pursued in two directions: proof of the identity of Kersner and of his marriage with Emma Goldman.

On May 27, 1908, inspector John Gruenberg, from the Bureau of Immigration of New York City, reported to Sargent that he now had enough evidence to denaturalize Kersner: “I have obtained their [Kersner’s parents and brother] affidavits, whereby it is shown beyond a doubt that Jacob A. Kersner, under whom Emma Goldman claims citizenship, is the identical person who migrated to the United States from Russia, in the year 1882, at the age of about 16 years, and that he was not of age, nor had he been 5 years continuously in the United States on the 18th day of October, 1884, and therefore his naturalization was obtained fraudulently.”²² Inspector Gruenberg concluded his memo with a call for action: “I most respectfully suggest that, should proceedings be instituted eventually resulting in the annulment of the order of Naturalization, that it would have a very salutary moral effect, in so far as it would deprive Emma Goldman of that feeling of security which she now manifests, believing herself to be a citizen of the United States.”²³

Two days later, on May 29, Straus updated the status of the case. He was ready to act but remained prudent: “For many reasons it is not desirable to institute such a suit unless there are reasonable grounds for concluding that such a suit would be successful. The failure of the suit would tend to martyrise Emma Goldman in the estimation of her ill guided followers. You will observe that the whereabouts of Jacob Kersner or Jacob A. Kersner is not known. He seems to be a fugitive from justice.”²⁴

On June 11, 1908, Campbell officially responded to Straus that enough evidence had been gathered to initiate an action for the cancellation of Kersner’s naturalization certificate. Straus approved the order by his personal signature and a handwritten notation: “Approved. Have action taken accordingly. Signed: OSS.”²⁵ On September 24, 1908, the Department of Justice filed a bill of complaint against Kersner.²⁶

The hearing, postponed two or three times on account of other business was finally set for some time in the week of January 25, 1909 at the U.S. district court at Buffalo.²⁷ Then, suddenly, Chambers had second thoughts and sent a letter to Charles J. Bonaparte, the attorney general. Chambers agreed, with all the assistant U.S. attorneys involved in the case, that “the denaturalization of the husband ipso facto denaturalizes the wife.” But as “in this particular case the wife’s interests are the only ones in which the government is particularly interested,” he wondered if Goldman should not be “made a party to the suit.” “Should we obtain judgment against Kersner and discover later that Emma Goldman . . . is not affected thereby, the whole object to be obtained by the suit would be lost.”²⁸

But on February 2, 1909, William R. Harr, an assistant attorney general, recommended that the government not join her in a suit to cancel her husband’s certificate: “the wife acquired, not by any act of her own, but simply by grant from the Government. This grant was based however, upon a condition that she married a citizen. In the eye of the law, it may be said, that if her husband’s certificate of naturalization was obtained by fraud, he was never a citizen and therefore his wife acquired no rights of citizenship.”²⁹ Bonaparte thought it advisable to request the opinion of the secretary of commerce and labor on the matter³⁰ and on February 11, Straus answered that he seriously doubted the wisdom of making Emma Goldman a party in the case. Straus explained, “It would too obviously indicate that the ultimate design of the proceedings is not to vindicate the naturalization law, but to reach an individual, and deprive her of an asylum she now enjoys as a wife of an American citizen.”³¹

On February 16, Chambers was ordered by the attorney general to proceed without involving Goldman in the case.³² And on April 8, 1909, the U.S. District Court of the Western District of New York invalidated Kersner’s citizenship.³³ The defendant did not appear at the hearing. However, Kersner’s father testified to his date of birth as 1865 or 1866 and to their date of arrival in the United States as 1882. Simon Goldstein, his former employer and his witness at the time of his naturalization, confirmed that Kersner and Goldman were husband and wife and were living together as a real couple.³⁴

Goldman’s eventual deportation would not occur until a decade later. In a memorandum dated March 21, 1908, to Straus, Charles Earl, solicitor of the Department of Commerce and Labor, wrote that he had examined the legal prospects of deporting Goldman, and had concluded that if the government took away Kersner’s citizenship, Goldman’s long residence in the United States would protect her.³⁵

“Before a person can be legally deported under the immigration act,” he explained, “it must first appear that such a person is ‘an alien’ within the meaning of that act. . . . It yet remains exceedingly doubtful whether she is ‘an alien’ within the meaning of the immigration act and as such liable to deportation. Goldman has permanently domiciled in the U.S. for over 32 years since she was 15.” In the most recent federal court decision on the issue, Rodgers v. United States ex rel. Buchsbaum, the court held that “we are clearly of the opinion that an alien who has acquired a domicile in the United States cannot thereafter while still retaining such domicile legally be treated as an immigrant on his return to this country after a temporary absence for a specific purpose not involving a change of domicile.”³⁶ But in 1914, the Supreme Court would reverse this holding in Lapina v. Williams.³⁷

After deciding not to pursue Goldman, the Department of Justice nevertheless hoped she would leave the country unaware that, in its view, she had lost her citizenship. Then the government could bar her from reentering the United States.³⁸ Goldman in fact had heard about the denaturalization of her former husband. The secret service of the Anarchist Bureau of the Chicago Police Department had, at the beginning of 1909, intercepted a letter from Goldman to a fellow anarchist. In it Goldman wrote: “At first I took this case of the U.S. Authorities of taking my papers away as a joke but now it turns out serious; altogether too serious. The U.S. Authorities are planning to take us by surprise. We, a few of us, had a meeting and decided to be prepared. Now what I ask of you is very important and you should attend to it at once. Go to his brother and find out how long since Jac. K. left Rochester, how long since he last heard from him and if he is alive. If he is dead that alters my case. I am worried to death over it and hope that you will do your share [to] relieve me from it.”³⁹

Later, after both she and her former husband were denaturalized, Goldman published a first version of “A Woman Without a Country” (see Appendix 1). In this short pamphlet written in a sarcastic tone, she narrates the government’s obsessive chase and concludes: “You have Emma Goldman’s citizenship. But she has the world, and her heritage is the kinship of brave spirits—not a bad bargain.”⁴⁰

In subsequent years Goldman became involved in the opposition to World War I: “She could not understand how professed liberals could in one breath denounce Prussian militarism and in the next propose conscription.”⁴¹ In protest against the Selective Service Act of 1917, which required all males aged twenty-one to thirty to register for the draft, she and Berkman organized the No Conscription League of New York, which proclaimed: “We oppose conscription because we are internationalists, antimilitarists, and opposed to all wars waged by capitalistic governments.”

On June 15, 1917, Goldman and Berkman were arrested and charged with conspiracy to “induce persons not to register” under the newly enacted Espionage Act, and were held on $25,000 bail each.⁴² Defending herself and Berkman during their trial, Goldman invoked the First Amendment, asking how the government could claim to fight for democracy abroad while suppressing free speech at home.

The jury found them guilty and the judge imposed the maximum sentence of two years’ imprisonment, a $10,000 fine each, and the possibility of deportation after their release from prison. Goldman served two years in the Missouri State Penitentiary.⁴³ Just before the expiration of her sentence, on September 5, 1919, the Department of Labor ordered Goldman’s arrest in order to deport her on the basis of the 1918 Anarchist Exclusion Act.⁴⁴ Harry Weinberger, her lawyer, tried to argue before the commissioner general of immigration that the denaturalization of her former husband did not affect the citizenship of Emma Goldman. “The citizenship of her husband made her a citizen,” he declared, “the same as if she had applied on her own account.”⁴⁵ The final decision was submitted to Louis F. Post, assistant secretary of labor.⁴⁶ He concluded that “the revocation of her husband’s citizenship, upon which hers depended, operated automatically to subject her to the disabilities of an alien.” “If I erred,” he wrote later in his memoirs, “my decision was jurisdictional and would have been reviewed by the courts in habeas corpus proceedings. But Miss Goldman didn’t take her case to the courts.”⁴⁷

On December 8, 1919, Goldman and Berkman appeared in federal court before Judge Julius M. Mayer, who declared that as aliens, they had no constitutional rights. In court, Goldman argued: “The apparent cancellation of my citizenship by starting an action against Jacob A. Kersner without giving me an opportunity to defend or show the falsity of the government’s position, shows how any woman married to a naturalized citizen and feeling secure in her citizenship, may suddenly find herself an alien, and because of some opinion she may hold which may be unpopular, find herself an arrested alien and deported from the country she may come from more than 30 years ago, as is my case today.”⁴⁸

Goldman and Berkman remained in detention at Ellis Island. On December 10, 1919, U.S. Supreme Court Justice Louis Brandeis declined to overrule the lower court’s decision in their case. On December 13, her lawyer obtained the guarantee that Goldman and Berkman would be deported to the country of their choice, Soviet Russia, instead of to Germany, the first option of the Bureau of Immigration. And at dawn on December 21, 1919, Goldman, Berkman, and 247 aliens set sail on the SS Buford, bound for Russia. Fifty-one were considered anarchists and 184 were members of the Union of Russian Workers who had been arrested during the first Palmer Raids, conducted in eighteen U.S. cities in November 1919.⁴⁹ Already working for the Justice Department, a young J. Edgar Hoover had supervised the deportation proceedings and was present when the boat deporting Goldman set sail.⁵⁰

Later, on December 9, 1921, Goldman would write from Riga to Harry Weinberger. She was just out of Russia and in despair over her experience in the Soviet Union:

My dear, dear Councelor:

It is a long time between letters. Is it not? I will make no idle apologies. Living in Dante’s Inferno is not conducive to communication with the outside world. It is not only the censorship which prevented my writing. It was much more my own disturbed and harassed spirit which could find no peace or comfort long enough to write serenely.

. . .The only difference between Russia and other countries is that in Russia the very elements who have helped to unfurl the Revolution have also helped to carry the Revolution to her grave—and that pain eats more into one’s vitals than the existence of reaction in other lands. One can survive the betrayal of an enemy but one you believe in and loved—one can never survive.⁵¹

She implored Weinberger:

I want you to write me with perfect frankness about my chance of returning to America. It is no use deceiving myself and others by saying I will feel at home and be able to take root anywhere out of America. If I had unlimited means and could reconcile myself to a life of leisure, Europe would be preferable. Even though the world is one black dungeon, one could travel comfortably and without annoyance, if one had means and would change one’s name. It might even be profitable to cruise the world and write one’s impression. But I have no means and I cannot continue being dependent much longer. Nor can I continue inactive much longer. I must really know how I stand in regard to the States, so it’s up to you to tell me.

First, any sense in pressing the “Kersner” claim? Secondly, any good in going through with the marriage farce. I mean any good for a deported woman to attach herself to an American Gentleman? I mean will the fact of marriage to an American annul my deportation? I don’t say I have already found the unfortunate one who will sacrifice himself for a “good cause.” Still I meant to be prepared—meant to get my nadan⁵² ready. Please write me at your earliest opportunity.

It was a case of unfortunate timing that just months later American feminists, who had campaigned for the elimination of the clause in the 1907 law that prescribed deprivation of nationality for an American woman marrying a foreigner, saw their efforts rewarded with the passage of the Cable Act of September 22, 1922.⁵³

The Cable Act thereafter disconnected marriage and nationality. American women were allowed to retain their nationality after marrying foreigners.⁵⁴ But, likewise, foreign women would no longer automatically become American by marrying an American man.⁵⁵ Henceforth, if Emma Goldman remarried to an American man, she would be required to go through naturalization proceedings, which allowed for greater federal government control.