McGrath v. Kristensen/Concurrence Black

Mr. Justice BLACK concurs in the judgment of the Court.

Mr. Justice DOUGLAS dissents from the holding of the Court that respondent was not 'residing' in the United States within the meaning of § 3(a) of the Act. See the opinion of Judge Frank in Benzian v. Godwin, 2 Cir., 168 F.2d 952.

Mr. Justice CLARK took no part in the consideration or decision of this case.

I concur in the judgment and opinion of the Court. But since it is contrary to an opinion which, as Attorney General, I rendered in 1940, I owe some word of explanation. 39 Op.Atty.Gen. 504. I am entitled to say of that opinion what any discriminating reader must think of it-that it was as foggy as the statute the Attorney General was asked to interpret. It left the difficult borderline questions posed by the Secretary of War unanswered, covering its lack of precision with generalities which, however, gave off overtones of assurance that the Act applied to nearly every alien from a neutral country caught in the United States under almost any circumstances which required him to stay overnight.

The opinion did not at all consider aspects of our diplomatic history, which I now think, and should think I would then have thought, ought to be considered in applying any conscription Act to aliens.

In times gone by, many United States citizens by naturalization have returned to visit their native lands. There they frequently were held for military duty by governments which refused to recognize a general right of expatriation. The United States consistently has asserted the right of its citizens to be free from seizure for military duty by reason of temporary and lawful presence in foreign lands. Immunities we have asserted for our own citizens we should not deny to those of other friendly nations. Nor should we construe our legislation to penalize or prejudice such aliens for asserting a right we have consistently asserted as a matter of national policy in dealing with other nations. Of course, if an alien is not a mere sojourner but acquires residence here in any permanent sense, he submits himself to our law and assumes the obligations of a resident toward this country.

The language of the Selective Service Act can be interpreted consistently with this history of our international contentions. I think the decision of the Court today does so. Failure of the Attorney General's opinion to consider the matter in this light is difficult to explain in view of the fact that he personally had urged this history upon this Court in arguing Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. Its details may be found in the briefs and their cited sources. It would be charitable to assume that neither the nominal addressee or the nominal author of the opinion read it. That I do not doubt, that explains Mr. Stimson's acceptance of an answer so inadequate to his questions. But no such confession and avoidance can excuse the then Attorney General.

Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court * *  * .' United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary-' Ignorance, sir, ignorance.' But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.