The past might as well not have existed if the record of history does not recount it.
By that measure, Olive Henrietta Rabe is almost nonexistent. Her memory in American law is largely limited to a single line on a single page in United States Reports. There in volume 269 on page 644 one will find the following entry:
“Mrs. Olive H. Rabe, of Chicago, Ill., for respondent.”
Though much has been written about that statutory free-speech case — United States v. Schwimmer (1929) — and the men in it (especially Justice Oliver Wendell Holmes Jr.), few if any have ever paid attention to the lawyer who represented the respondent, Rosika Schwimmer, a woman.
The name Olive Rabe cannot be found alongside that of many other distinguished colleagues on the distaff side, such as Margaret Bent (the first female lawyer in America) or Belva Ann Lockwood (the first woman admitted to and the first woman to argue before the U.S. Supreme Court bar, in 1880) or many other notable women lawyers. While several fine works detail the accomplishments of what Karen Berger Morello calls “The Invisible Bar,” even after the publication of that book and others, the name of an important female lawyer remains largely “invisible.”
Olive H. Rabe. Photo is taken from an old news clipping.
So who was Olive Rabe? And who was Rosika Schwimmer, the woman on whose behalf she argued in the United States Supreme Court? What follows is a sketch of those two women and their respective roles in our free-speech history.
A progressive pacifist
Born in Budapest, Hungary, on Sept. 11, 1877, Rosika (or Rozsa or Rozsika) Schwimmer became a well-known organizer, author and lecturer for women’s rights and other progressive causes, including pacifism. She founded the Hungarian Feminist Association in 1897 and became a leader in the Women’s International League for Peace and Freedom during World War I. She fled Hungary in 1920 when the Miklós Horthy government began to prosecute and purge Jews. Schwimmer went to Vienna, then to the United States. In 1921 she took up residence in Chicago. After living continuously in the United States for five years, Schwimmer applied for citizenship before a circuit court in Cook County, Ill.
The 49-year-old woman filled out a 26-item questionnaire called a “preliminary form.” Question 22 asked: “If necessary, are you willing to take up arms in defense of this country?” Schwimmer — a devout and resolute pacifist — answered “No.” On Sept. 22, 1926, Schwimmer appeared before Fred J. Schlotfeldt, district director of naturalization, in Chicago with her two sponsors, junior high school principal Florence Holbrook and Frances Bird. She was accompanied by her “friend,” Mrs. Olive H. Rabe.
Schlotfeldt had qualms about her answer to Question 22. He thought there was a contradiction between that answer and her answer to Question 20, in which she replied in the affirmative as to whether she would “support and defend the Constitution and laws of the United States of America against all.”
In December 1926 Schlotfeldt wrote Schwimmer a letter asking her to “furnish me with a statement as to your so-called pacifist theory or inability to defend the country as per our conversation last September.” Schwimmer responded with a letter in which she said she saw no contradiction between her willingness to defend the principles of the United States and her unwillingness to bear arms.
Schwimmer said she found the “Constitution and laws of the United States of America nearest to my ideals of a democratic republic,” noting that she had lived “under feudal, under soviet and under white terror regimes in the country of my birth.” She said: “I cannot see that a woman’s refusal to take up arms is a contradiction to the oath of allegiance.” Defending the United States consists of more than the “physical act” of carrying weapons, she argued; it also consists of “spiritual influences” and “mental energies.”
Schlotfeldt sent her another letter on Jan. 11, 1927, in which he specifically asked her about a statement she had made to Col. Lee Alexander Stone in September 1925, in which she wrote: “I am an uncompromising pacifist for whom even Jane Addams is not enough of a pacifist. I am an absolute atheist. I have no sense of nationalism, only a cosmic consciousness of belonging to the human family.” (Both Schwimmer and Rabe knew Addams, the noted co-founder of Chicago’s famed Hull House and the first woman to receive a Nobel Peace Prize.)
Schwimmer responded to “my dear Mr. Schlotfeldt” in a Jan. 21, 1927, letter that she was “quoted correctly” in her response to Stone. She also noted that for years “Colonel Stone … conducted in word and in print a terribly unjust campaign against me.” Not surprisingly, Schlotfeldt denied her petition for citizenship.
“The plump, turbulent little propagandist for peace,” as the Chicago Daily Tribune snidely tagged Schwimmer, then went to federal court to reverse Schlottfeld’s denial. She was represented by William B. Gemmill, an ACLU attorney whose father was a Chicago judge. Schwimmer’s petition came before U.S. District Judge George Albert Carpenter, who had presided over numerous labor cases and the Mann Act prosecution of one John Arthur Johnson (better known to the world as Jack Johnson, the first African-American to win the world heavyweight championship).
Pacifists from around the world rallied around Schwimmer’s cause. In September 1927, on her 50th birthday, she received a testimonial letter signed by many other pacifists, including French author Romain Rolland, Austrian feminist Olga Misar and Swedish writer Selma Lagerlof.
In a hearing on Oct. 13, 1927, Judge Carpenter asked the petitioner: “Are you willing to be sent on some such mission as nursing in time of war?” Schwimmer replied: “I will obey every law of the United States but I will not fight physically.” Later in the hearing, Carpenter asked: “If you were called to service as a nurse in time of war and an enemy entered with a pistol in hand to kill an American soldier in your care, would you kill him if you had a pistol in her hand?” Schwimmer replied: “No, but I would warn the wounded soldier. I would not kill a man, even if he tried to kill me.”
According to an account in The New York Times, Carpenter then rose from the bench and pointed to the American flag and bellowed: “You cannot be a half-way citizen under that flag. You must do what our Constitution requires of all American citizens — promise to serve that flag and defend it with your life, if necessary.”
Carpenter then said: “That is all. Your petition is denied.”
The judge followed up with a Nov. 14 decree, declaring: “And now again up on consideration of the petition of Rosika Schwimmer … it appearing that the said petitioner 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 further that she is unable to take the oath of allegiance prescribed by the Naturalization Law without a mental reservation, it is therefore ordered that the said petition be and is hereby denied.”
The case was now headed for the 7th U.S. Circuit Court of Appeals, where Rosika Schwimmer would be represented by her friend, Olive Rabe.
The talented Olive Rabe
Olive Rabe was born in Chicago on April 6, 1887. Her parents were Henry Byer Hanson and Sarah Haen Hanson. Olive went to public grade school in Chicago and to the North-West Division of the High School of Chicago. Afterwards she was admitted to the University of Chicago, where she majored in economics and was elected to Phi Beta Kappa. Rabe began her legal education at age 27 at John Marshall Law School (1914-1915). While there she maintained a nearly straight-A average. She transferred to Northwestern University Law School, again earning impressive grades — including an A in her five-credit constitutional law course. Rabe received her LL.B. in 1916, and was selected by the faculty for consideration as commencement speaker. (Though her law school records from this time identify her as “Mrs. Olive Henrietta Rabe,” there is no known record of her marrying or changing her last name from Hanson to Rabe — yet a change was made.)
Olive Rabe in a group photo.
In August 1919, Rabe applied “for admission to advanced standing” at the University of Chicago, perhaps at the Law School, even though she was already practicing law. Soon she began practicing with O. David Zimring, the firm’s name being Zimring and Rabe. The two specialized in labor law, particularly arbitration. By 1921 Rabe was representing packers in wage disputes with Armour & Co., a slaughterhouse and meat-packing company. The Chicago Daily Tribune reported that she challenged a proposed wage cut, contending that it would “go to swell the packers’ profits.”
Olive Rabe devoted herself to progressive causes. She presented a proposal to the Illinois Women’s Legislative congress advocating for legitimacy for children born out of wedlock. In 1926, she ran unsuccessfully for municipal judge on the Progressive ticket. She continued her labor law practice. Within a year, she would find herself working with William Gemmill in representing Rosika Schwimmer in the next stage of the pacifist’s legal battle.
In summer 1927, the prospect of Rosika Schwimmer's being deported to Hungary was real — very real. If so, she would have to live under the authoritarian rule of Miklós Horthy (later an ally of Hitler’s). Despite her uncompromising pacifism, Schwimmer had no desire to return to her homeland. Besides, she found the United States “nearest to my ideals of a democratic republic.”
Having lost before the Chicago Naturalization Board and thereafter in federal district court for the Northern District of Illinois, Schwimmer urged her lawyers to seek review in the 7th Circuit. This time Olive Rabe would take over as lead counsel (for no fee) with Gemmill as co-counsel (for a nominal fee). It was Rabe's first appellate argument. However comforting it may have been for Schwimmer, a social activist and feminist, to be represented by a woman of like mind, the fact was that her lead lawyer had never before been tested in an appellate tribunal. Could she prevail, especially given the previous rulings and the complexity of the issues?
Three jurists were assigned to hear the matter: Circuit Judges Albert Barnes Anderson and Samuel Alschuler (whom Rabe had appeared before in a 1921 labor dispute), and District Judge Robert C. Baltzell. How would Rabe’s feminist-flavored arguments sit with them? And would these three male, establishment jurists give any benefit of a doubt to her client, a social activist who was a self-proclaimed pacifist and an atheist?
Not authorized by law: Rabe’s appellate arguments
Long before the spate of loyalty cases that flowed from President Harry Truman’s Executive Order 9835 (1947), and before the Supreme Court struck down a loyalty law on constitutional grounds in Speiser v. Randall (1958), lawyers litigated cases like Schwimmer's by first inquiring whether the government was authorized by law to deprive someone of a claimed right. If that point was decided in favor of a rights claimant, then there was no need to reach any larger constitutional (i.e., First Amendment or due-process) question since the claimant would have received the relief prayed for.
That mindset informed the brief Olive Rabe submitted to the 7th Circuit in her challenge to Judge George A. Carpenter’s November 1927 ruling against her client. Such a strategy was not only in keeping with the lawyering of the day, but it was also done in light of the fact that as of that time the Supreme Court had yet to strike down any law on First Amendment grounds.
Echoing the claims she had first made at the trial level, Rabe made the following arguments, first in the 7th Circuit, and later in her reply brief in U.S. Supreme Court:
The Constitution required that all naturalization laws be “uniform.” Such laws could not be uniform if either Naturalization Boards or courts were allowed unchecked discretion to create various new requirements for numerous applicants for citizenship.
Congress had never authorized the Naturalization Board to deny citizenship owing to pacifist beliefs. Hence, for the board to do so was to act beyond the lawful scope of its power.
In the one area where Congress had authorized an inquiry into beliefs, it had strictly confined that inquiry to applicants who disbelieve in, or are opposed to, or advocate the overthrow of organized government by violent and unlawful means. Because Rosika Schwimmer did not hold such views or advocate such action, she could not be denied citizenship under such a provision.
The government, by stark contrast, read the naturalization laws much more broadly and in a way that gave naturalization boards and the courts far greater latitude to deny citizenship to alien applicants like Schwimmer. Core to its arguments in the 7th Circuit and later in the Supreme Court was the claim that Schwimmer “does not believe in organized government as we understand it ... because organized government can not exist without military defense.” Ergo, she is “not attached to the principles of our Constitution and Government when she rejects the fundamental principle that they must be defended by military force if necessary.”
It took six months after the case, No. 3997, was filed in the 7th Circuit for the judges to render their ruling. Just how effective, if at all, were Olive Rabe’s arguments?
'Mere views' — the 7th Circuit weighs in
On June 29, 1928, the 7th Circuit reversed the district court and remanded the matter “with direction to grant appellant’s petition” (Schwimmer v. United States, 27 F.2d 742). Judge Albert Barnes Anderson wrote for a unanimous court. The same jurist who in 1919 was unsympathetic to the claims of striking coal miners was now agreeing with the arguments tendered by Olive Rabe, a progressive labor lawyer.
In his opinion, Judge Anderson noted that Art. I, sect. 8, cl. 4 of the Constitution authorized Congress to establish statutory requirements for naturalization. Once Congress had done so, as it had with the Naturalization Act of 1906, an alien petitioner was entitled to citizenship if “all the statutory requirements are complied with.” In determining such compliance, the petitioner “had a right to have the evidence and effect of it weighed and considered in accordance with the settled rules of law; to have the court consider only evidence relative and material to the issue; and to have that evidence given its probative force.”
With such concerns as a legal yardstick, Anderson first observed that “mere views are not, by the statute, made a ground for denying a petition.” The terms of statute, the judge noted, were confined to acts — an alien seeking citizenship must have “behaved” as a person “of good moral character.” Hence, behavior, not words or ideas, was the focus of the statutory criterion. On that score, the record lacked any evidence to indicate that Schwimmer had acted immorally or illegally.
But did her pacifist views concerning her personal refusal to bear arms nonetheless violate another statutory provision, one mandating that all applicants demonstrate “attachment to the principles of the Constitution”? Judge Anderson and his colleagues felt not. Tracking the logic of Rabe’s arguments, Anderson declared:
"Women are considered incapable of bearing arms. ... Appellant ... cannot by any present law of the United States be compelled to bear arms. Judging by all of the conscription acts of which we have knowledge, she will never be required to do so; yet she is denied citizenship because she says she will not fight with her fists or carry a gun."
And then, again tracking Rabe’s points, Anderson added: “In other words, there is put to her an hypothetical question — what she would do under circumstances that never have occurred and probably never will occur — and upon her answers to this supposed question her petition is denied.”
This, he emphasized, the government cannot do: “A petitioner’s rights are not to be determined by putting conundrums to her.” Since nothing in the law authorized the naturalization board to deny her citizenship on such grounds, and since she had otherwise satisfied all of the legal requirements for citizenship, Rosika Schwimmer was entitled to become a citizen of the United States.
Olive Rabe had prevailed. Her legal arguments, grounded in feminist principles, had convinced three male jurists that the law could not deny women full citizenship and then penalize them for refusing to do that which law forbade them as women to do. Rabe was so elated by Anderson’s opinion that she purchased 1,000 copies and distributed them to more than 800 people who had contributed to Schwimmer’s defense fund. She sent the other 200 copies off to the ACLU.
Beyond her elation, the victory was an important one for the emerging right of freedom of conscience. And beyond the statutory arguments she made, Olive Rabe had laid the groundwork for a constitutional principle that would one day find expression in First Amendment law, namely, that the government cannot punish someone because of mere beliefs, at least not without the most compelling of circumstances.
While Rabe, Schwimmer and their supporters were hailing the 7th Circuit ruling, Fred Schlotfeldt, the naturalization director in Chicago, decided to postpone issuing a certificate of citizenship to Schwimmer. This action, it was said, was in response to Schwimmer’s exploitation of her case for “purposes of pacifist propaganda.” Upon his motion, the 7th Circuit granted a stay of mandate, delaying the issuance of the citizenship certificate pending an appeal to the Supreme Court. Attorney General John. G. Sargent thereafter sought review in the high Court, and obtained it.
It was a bad omen for Rosika Schwimmer. Still, she had her supporters. Two national pacifist groups — the Quakers’ American Friends and the National Council for the Prevention of War — offered to come to her aid and lend whatever financial and other assistance they could. The rest was up to her lawyers ... and that’s where Olive Rabe came into the picture in bold relief.
This article continues in Part II.