MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
These cases present for decision the constitutionality of § 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947.
In No. 10, the constitutional issue was raised by a suit to restrain the Board from holding a representation election in a bargaining unit in which appellant union was the employee representative, without permitting its name to appear on the ballot, and, should the election be held, to restrain the Board from announcing the results or certifying the victor, until a hearing was granted to appellant. A hearing had been denied because of the noncompliance with § 9 (h). The complaint alleged that this requirement was unconstitutional. Appellee's motion to dismiss the complaint was granted by the statutory three-judge court, 79 F.Supp. 563 (1948), with one judge dissenting. Since the constitutional issues were properly raised and substantial, we noted probable jurisdiction.
No. 13 is the outcome of an unfair labor practice complaint filed with the Board by petitioner unions. The Board found that Inland Steel Company had violated the Labor Relations Act in refusing to bargain on the subject of pensions. 77 N. L. R. B. 1 (1948). But the Board postponed the effective date of its order compelling the company to bargain, pending the unions' compliance with § 9 (h). Both sides appealed: the company urged that the Act had been misinterpreted; the unions contended that § 9 (h) was unconstitutional and therefore an invalid condition of a Board order. When the court below upheld the Board on both counts, 170 F.2d 247 (1948), with one judge dissenting as to § 9 (h), both sides filed petitions for certiorari. We denied the petition pertaining
The constitutional justification for the National Labor Relations Act was the power of Congress to protect interstate commerce by removing obstructions to the free flow of commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). That Act was designed to remove obstructions caused by strikes and other forms of industrial unrest, which Congress found were attributable to the inequality of bargaining power between unorganized employees and their employers. It did so by strengthening employee groups, by restraining certain employer practices, and by encouraging the processes of collective bargaining.
When the Labor Management Relations Act was passed twelve years later, it was the view of Congress that additional impediments to the free flow of commerce made amendment of the original Act desirable. It was stated in the findings and declaration of policy that:
No useful purpose would be served by setting out at length the evidence before Congress relating to the problem
The unions contend that the necessary effect of § 9 (h) is to make it impossible for persons who cannot sign the oath to be officers of labor unions. They urge that such a statute violates fundamental rights guaranteed by the First Amendment: the right of union officers to hold what political views they choose and to associate with what political groups they will, and the right of unions to choose their officers without interference from government.
Neither contention states the problem with complete accuracy. It cannot be denied that the practical effect of denial of access to the Board and the denial of a place on the ballot in representation proceedings is not merely to withhold benefits granted by the Government but to impose upon noncomplying unions a number of restrictions which would not exist if the Board had not been
There can be no doubt that Congress may, under its constitutional power to regulate commerce among the several States, attempt to prevent political strikes and other kinds of direct action designed to burden and interrupt the free flow of commerce. We think it is clear, in addition, that the remedy provided by § 9 (h) bears reasonable
The fact that the statute identifies persons by their political affiliations and beliefs, which are circumstances ordinarily irrelevant to permissible subjects of government action, does not lead to the conclusion that such circumstances are never relevant. In re Summers, 325 U.S. 561 (1945); Hamilton v. Regents, 293 U.S. 245 (1934). We have held that aliens may be barred from certain occupations because of a reasonable relation between that classification and the apprehended evil, Clarke v. Deckebach, 274 U.S. 392 (1927); Pearl Assurance Co. v. Harrington, 313 U.S. 549 (1941), even though the Constitution forbids arbitrary banning of aliens from the pursuit of lawful occupations. Truax v. Raich, 239 U.S. 33 (1915); Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948). Even distinctions based solely on ancestry, which we declared "are by their very nature odious to a free people," have been upheld under the unusual circumstances of wartime. Hirabayashi v. United States, 320 U.S. 81 (1943).
If no more were involved than possible loss of position, the foregoing would dispose of the case. But the more
The unions contend that once it is determined that this is a free speech case, the "clear and present danger" test must apply. See Schenck v. United States, 249 U.S. 47 (1919). But they disagree as to how it should be applied. Appellant in No. 10 would require that joining the Communist Party or the expression of belief in overthrow of the Government by force be shown to be a clear and present danger of some substantive evil, since those are the doctrines affected by the statute. Petitioner
This confusion suggests that the attempt to apply the term, "clear and present danger," as a mechanical test in every case touching First Amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea. The provisions of the Constitution, said Mr. Justice Holmes, "are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United States, 233 U.S. 604, 610 (1914). Still less should this Court's interpretations of the Constitution be reduced to the status of mathematical formulas. It is the considerations that gave birth to the phrase, "clear and present danger," not the phrase itself, that are vital in our decision of questions involving liberties protected by the First Amendment.
Although the First Amendment provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of constitutional government to survive. If it is to survive it must have power to protect itself against unlawful conduct and, under some circumstances, against incitements to commit unlawful acts. Freedom of speech thus does not comprehend the right to speak on any subject at any time. The important question that came to this Court immediately after the First World War was not whether, but how far, the First Amendment permits the suppression of speech which advocates conduct inimical
So far as the Schenck case itself is concerned, imminent danger of any substantive evil that Congress may prevent justifies the restriction of speech. Since that time this Court has decided that however great the likelihood that a substantive evil will result, restrictions on speech and press cannot be sustained unless the evil itself is "substantial" and "relatively serious," Brandeis, J., concurring in Whitney v. California, supra at 374, 377, or sometimes "extremely serious," Bridges v. California, 314 U.S. 252, 263 (1941). And it follows therefrom that even harmful conduct cannot justify restrictions upon speech unless substantial interests of society are at stake. But in suggesting that the substantive evil must be serious and substantial, it was never the intention of this Court to lay down an absolutist test measured in terms of danger to the Nation. When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity. We recently dismissed for want of substantiality
On the contrary, however, the right of the public to be protected from evils of conduct, even though First Amendment rights of persons or groups are thereby in some manner infringed, has received frequent and consistent recognition by this Court. We have noted that the blaring sound truck invades the privacy of the home and may drown out others who wish to be heard. Kovacs v. Cooper, 336 U.S. 77 (1949). The unauthorized parade through city streets by a religious or political group disrupts traffic and may prevent the discharge of the most essential obligations of local government. Cox v. New Hampshire, 312 U.S. 569, 574 (1941). The exercise of particular First Amendment rights may fly in the face of the public interest in the health of children, Prince v. Massachusetts, 321 U.S. 158 (1944), or of the whole community, Jacobson v. Massachusetts, 197 U.S. 11 (1905), and it may be offensive to the moral standards of the community, Reynolds v. United States, 98 U.S. 145 (1878); Davis v. Beason, 133 U.S. 333 (1890). And Government's obligation to provide an efficient public service, United Public Workers v. Mitchell, 330 U.S. 75 (1947), and its interest in the character of members of the bar, In re Summers, 325 U.S. 561 (1945), sometimes admit of limitations upon rights set out in the First Amendment. And see Giboney v. Empire Storage Co.,
When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented. The high place in which the right to speak, think, and assemble as you will was held by the Framers of the Bill of Rights and is held today by those who value liberty both as a means and an end indicates the solicitude with which we must view any assertion of personal freedoms. We must recognize, moreover, that regulation of "conduct" has all too frequently been employed by public authority as a cloak to hide censorship of unpopular ideas. We have been reminded that "It is not often in this country that we now meet with direct and candid efforts to stop speaking or publication as such. Modern inroads on these rights come from associating the speaking with some other factor which the state may regulate so as to bring the whole within official control."
On the other hand, legitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct, are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights. Reynolds v. United States, supra; Prince v. Massachusetts, supra; Cox v.
The "reasons advanced in support of the regulation" are of considerable weight, as even the opponents of § 9 (h) agreed. They are far from being "[m]ere legislative preferences or beliefs respecting matters of public convenience [which] may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions."
When compared with ordinances and regulations dealing with littering of the streets or disturbance of house-holders by itinerant preachers, the relative significance and complexity of the problem of political strikes and how to deal with their leaders becomes at once apparent. It must be remembered that § 9 (h) is not an isolated statute dealing with a subject divorced from the problems of labor peace generally. It is a part of some very complex machinery set up by the Federal Government for the purpose of encouraging the peaceful settlement of labor disputes. Under the statutory scheme, unions which become collective bargaining representatives for groups of employees often represent not only members of the union but nonunion workers or members of other unions as well. Because of the necessity to have strong unions to bargain on equal terms with strong employers, individual employees are required by law to sacrifice rights which, in some cases, are valuable to them. See J. I. Case Co. v. Labor Board, 321 U.S. 332 (1944). The loss of individual rights for the greater benefit of the group results in a tremendous increase in the power of the representative of the group—the union. But power is never without responsibility. And when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself.
We do not suggest that labor unions which utilize the facilities of the National Labor Relations Board become Government agencies or may be regulated as such. But it is plain that when Congress clothes the bargaining representative "with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents,"
What of the effects of § 9 (h) upon the rights of speech and assembly of those proscribed by its terms? The statute does not prevent or punish by criminal sanctions the making of a speech, the affiliation with any organization, or the holding of any belief. But as we have noted, the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect "discouragements" undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.
But we have here no statute which is either frankly aimed at the suppression of dangerous ideas
We have previously had occasion to consider other statutes and regulations in which the interests involved were, in large measure, like those now being considered. In United Public Workers v. Mitchell, supra, we upheld
Similarly, in In re Summers, supra, we upheld the refusal of a state supreme court to admit to membership of its bar an otherwise qualified person on the sole ground that he had conscientious scruples against war and would not use force to prevent wrong under any circumstances. Since he could not, so the justices of the state court found, swear in good faith to uphold the state constitution, which requires service in the militia in time of war, we held that refusal to permit him to practice law did not violate the First Amendment, as its commands are incorporated in the Due Process Clause of the Fourteenth Amendment. Again, the relation between the obligations of membership in the bar and service required by the state in time of war, the limited effect of the state's holding upon speech and assembly, and the strong interest which every state court has in the persons who become officers of the court were thought sufficient to justify the state action. See also Hamilton v. Regents, supra.
Previous discussion has considered the constitutional questions raised by § 9 (h) as they apply alike to members of the Communist Party and affiliated organizations and to persons who believe in overthrow of the Government by force. The breadth of the provision concerning belief in overthrow of the Government by force would raise additional questions, however, if it were read
But we see no reason to construe the statute so broadly. It is within the power and is the duty of this Court to construe a statute so as to avoid the danger of unconstitutionality if it may be done in consonance with the legislative purpose. United States v. Congress of Industrial Organizations, 335 U.S. 106, 120-121 (1948); United States v. Delaware & Hudson Co., 213 U.S. 366, 407-408 (1909). In enacting § 9 (h), Congress had as its objective the protection of interstate commerce from direct interference, not any intent to disturb or proscribe beliefs as such. Its manifest purpose was to bring within the terms of the statute only those persons whose beliefs strongly indicate a will to engage in political strikes and other forms of direct action when, as officers, they direct union activities. The congressional purpose is therefore served if we construe the clause, "that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods," to apply to persons and organizations who believe in violent overthrow of the Government as it presently exists under the Constitution as an objective, not merely a prophecy. Congress might well find that such persons—those who believe that the present form of the Government of the United States should be changed by force or other illegal methods—would carry that objective into their conduct of union affairs by calling political strikes designed to weaken and divide the American people, whether they consider actual overthrow of the Government to be near or distant. It is to those persons that § 9 (h) is intended to apply, and only to them. We hold, therefore, that the belief identified in § 9 (h) is a belief in the objective of overthrow by force or by any illegal or unconstitutional
As thus construed, we think that the "belief" provision of the oath presents no different problem from that present in that part of the section having to do with membership in the Communist Party. Of course we agree that one may not be imprisoned or executed because he holds particular beliefs. But to attack the straw man of "thought control" is to ignore the fact that the sole effect of the statute upon one who believes in overthrow of the Government by force and violence—and does not deny his belief— is that he may be forced to relinquish his position as a union leader. That fact was crucial in our discussion of the statute as it relates to membership in the Communist Party. To quote, with pertinent substitutions, an apt statement of that principle, post, p. 434: "The Act does not suppress or outlaw the [belief in overthrow of the Government], nor prohibit it or [those who hold that belief] from engaging in any aboveboard activity . . . . No individual is forbidden to be or to become a philosophical [believer in overthrow of Government] or a full-fledged member of [a group which holds that belief]. No one is penalized for writing or speaking in favor of [such a belief] or its philosophy. Also, the Act does not require or forbid anything whatever to any person merely because he is [a believer in overthrow of the Government by force]. It applies only to one who becomes an officer of a labor union."
If the principle that one may under no circumstances be required to state his beliefs on any subject nor suffer the loss of any right or privilege because of his beliefs be a valid one, its application in other possible situations becomes relevant. Suppose, for example, that a federal statute provides that no person may become a member of the Secret Service force assigned to protect the President unless he swears that he does not believe in assassination
To hold that such an oath is permissible, on the other hand, is to admit that the circumstances under which one is asked to state his belief and the consequences which flow from his refusal to do so or his disclosure of a particular belief make a difference. The reason for the difference has been pointed out at some length above. First, the loss of a particular position is not the loss of life or liberty. We have noted that the distinction is one of degree, and it is for this reason that the effect of the statute in proscribing beliefs—like its effect in restraining speech or freedom of association—must be carefully weighed by the courts in determining whether the balance struck by Congress comports with the dictates of the Constitution. But it is inaccurate to speak of § 9 (h) as "punishing" or "forbidding" the holding of beliefs, any more than it punishes or forbids membership in the Communist Party.
Second, the public interest at stake in ascertaining one's beliefs cannot automatically be assigned at zero without consideration of the circumstances of the inquiry. If it is admitted that beliefs are springs to action, it becomes highly relevant whether the person who is asked whether he believes in overthrow of the Government by force is a general with five hundred thousand men at his command or a village constable. To argue that because the latter
Insofar as a distinction between beliefs and political affiliations is based upon absence of any "overt act" in the former case, it is relevant, if at all, in connection with problems of proof. In proving that one swore falsely
To state the difference, however, is but to recognize that while objective facts may be proved directly, the state of a man's mind must be inferred from the things he says or does. Of course we agree that the courts cannot "ascertain the thought that has had no outward manifestation." But courts and juries every day pass upon knowledge, belief and intent—the state of men's minds—having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. See 2 Wigmore, Evidence (3d ed.) §§ 244, 256 et seq. False swearing in signing the affidavit must, as in other cases where mental state is in issue, be proved by the outward manifestations of state of mind. In the absence of such manifestations, which are as much "overt acts" as the act of joining the Communist Party, there can be no successful prosecution for false swearing.
Considering the circumstances surrounding the problem —the deference due the congressional judgment concerning the need for regulation of conduct affecting interstate commerce and the effect of the statute upon rights of speech, assembly and belief—we conclude that § 9 (h)
There remain two contentions which merit discussion. One is that § 9 (h) is unconstitutionally vague. The other is that it violates the mandate of Art. I, § 9 of the Constitution that "No Bill of Attainder or ex post facto Law shall be passed."
The argument as to vagueness stresses the breadth of such terms as "affiliated," "supports" and "illegal or unconstitutional methods." There is little doubt that imagination can conjure up hypothetical cases in which the meaning of these terms will be in nice question. The applicable standard, however, is not one of wholly consistent academic definition of abstract terms. It is, rather, the practical criterion of fair notice to those to whom the statute is directed. The particular context is all important.
The only criminal punishment specified is the application of § 35 (A) of the Criminal Code, 18 U. S. C. § 1001, which covers only those false statements made
The unions' argument as to bill of attainder cites the familiar cases, United States v. Lovett, 328 U.S. 303 (1946); Ex parte Garland, 4 Wall. 333 (1867); Cummings v. Missouri, 4 Wall. 277 (1867). Those cases and this also, according to the argument, involve the proscription of certain occupations to a group classified according to belief and loyalty. But there is a decisive distinction: in the previous decisions the individuals involved were in fact being punished for past actions; whereas in this case they are subject to possible loss of position only because there is substantial ground for the congressional judgment that their beliefs and loyalties will be transformed into future conduct. Of course, the history of the past conduct is the foundation for the judgment as to what
This distinction is emphasized by the fact that members of those groups identified in § 9 (h) are free to serve as union officers if at any time they renounce the allegiances which constituted a bar to signing the affidavit in the past. Past conduct, actual or threatened by their previous adherence to affiliations and beliefs mentioned in § 9 (h), is not a bar to resumption of the position. In the cases relied upon by the unions on the other hand, this Court has emphasized that, since the basis of disqualification was past action or loyalty, nothing that those persons proscribed by its terms could ever do would change the result. See United States v. Lovett, supra, at p. 314; Cummings v. Missouri, supra, at p. 327. Here the intention is to forestall future dangerous acts; there is no one who may not, by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit. We cannot conclude that this section is a bill of attainder.
In their argument on this point, the unions seek some advantage from references to English history pertinent to a religious test oath. That experience is written into our Constitution in the following provision of Article VI: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." It is obvious that not all oaths were abolished; the mere fact that § 9 (h) is in oath form hardly rises to the stature of a constitutional objection. All that was forbidden was a "religious Test." We do not think that the oath
Clearly the Constitution permits the requirement of oaths by officeholders to uphold the Constitution itself. The obvious implication is that those unwilling to take such an oath are to be barred from public office. For the President, a specific oath was set forth in the Constitution itself. Art. II, § 1. And Congress has detailed an oath for other federal officers.
We conclude that § 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, as herein construed, is compatible with the Federal Constitution and may stand. The judgments of the courts below are therefore.
MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK and MR. JUSTICE MINTON took no part in the consideration or decision of these cases.
MR. JUSTICE FRANKFURTER, concurring in the Court's opinion except as to Part VII.
"Scarcely any political question arises in the United States," observed the perceptive de Tocqueville as early as 1835, "that is not resolved, sooner or later, into a judicial question." 1 Democracy in America 280 (Bradley ed. 1948). And so it was to be expected that the conflict of political ideas now dividing the world more pervasively than any since this nation was founded would give rise to controversies for adjudication by this Court.
The central problem presented by the enactment now challenged is the power of Congress, as part of its comprehensive scheme for industrial peace, to keep Communists out of controlling positions in labor unions as a condition to utilizing the opportunities afforded by the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947.
Thus stated, it would make undue inroads upon the policy-making power of Congress to deny it the right to protect the industrial peace of the country by excluding from leadership in trade unions which seek to avail themselves of the machinery of the Labor Management Relations Act those who are united for action against our democratic process. This is so not because Congress in affording a facility can subject it to any condition it pleases. It cannot. Congress may withhold all sorts of facilities for a better life but if it affords them it cannot make them available in an obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of the facilities. Congress surely can provide for certain clearly relevant qualifications of responsibility on the part of leaders of trade unions invoking the machinery of the Labor Management Relations Act. The essential question now is whether Congress may determine that membership of union officers in the Communist Party creates such an obvious hazard to the peace-promoting purposes of the Act that access to the machinery
When we are dealing with conflicting freedoms, as we are on the issues before us, we are dealing with large concepts that too readily lend themselves to explosive rhetoric. We are also dealing with matters as to which different nuances in phrasing the same conclusion lead to different emphasis and thereby eventually may lead to different conclusions in slightly different situations. From my point of view these are issues as to which it would be desirable for the members of the Court to write full-length individual opinions. The Court's business in our time being what it is precludes this. It must suffice for me to say that the judgment of Congress that trade unions which are guided by officers who are committed by ties of membership to the Communist Party must forego the advantages of the Labor Management Relations Act is reasonably related to the accomplishment of the purposes which Congress constitutionally had a right to pursue. To deny that that is a judgment which Congress may, as a matter of experience, enforce even though it involves the indicated restrictions upon freedom would be to make naivete a requirement in judges. Since the Court's opinion, in the main, expresses the point of view which I have very inadequately sketched, I join it except as qualified in what follows.
Congress was concerned with what it justifiably deemed to be the disorganizing purposes of Communists who hold positions of official power in labor unions, or, at the least, what it might well deem their lack of disinterested devotion to the basic tenets of the American trade union movement because of a higher loyalty to a potentially conflicting cause. But Congress did not choose merely to limit the freedom of labor unions which seek the advantages of the Labor Management Relations Act to
Legislation, in order to effectuate its purposes, may deal with radiations beyond the immediate incidence of a mischief. If a particular mischief is within the scope of congressional power, wide discretion must be allowed to Congress for dealing with it effectively. It is not the business of this Court to restrict Congress too narrowly in defining the extent or the nature of remedies. How to curb an evil, what remedies will be effective; the reach of a particular evil and therefore the appropriate scope of a remedy against it—all these are in the main matters of legislative policy not open to judicial condemnation. There are, of course, some specific restrictions in devising remedies. No matter what its notions of policy may be, the Eighth Amendment, for example, bars Congress from inflicting "cruel and unusual punishments." I do not suppose it is even arguable that Congress could ask for a disclosure of how union officers cast their ballots at the last presidential election even though the secret ballot is a relatively recent institution. See Wigmore, The Australian Ballot System 3, 15, 22 (1889). So also Congress must keep within the contours of the "due process" requirement of the Fifth Amendment, vague as they are. In order to curb a mischief Congress cannot be so indefinite in its requirements that effort to meet them raises hazards unfair to those who seek obedience or involves surrender of freedoms which exceeds what may fairly be exacted. These restrictions on the broad scope of legislative discretion are merely the law's application of the homely saws that one should not throw out the baby with the bath or burn the house in order to roast the pig.
In my view Congress has cast its net too indiscriminately in some of the provisions of § 9 (h). To ask
It is not merely the hazard of prosecution for perjury that is dependent on a correct determination as to the implications of a man's belief or the belief of others with whom he may be associated in an organization concerned with political and social issues. It should not be assumed that oaths will be lightly taken; fastidiously scrupulous regard for them should be encouraged. Therefore, it becomes most relevant whether an oath which Congress asks men to take may or may not be thought to touch
No one could believe more strongly than I do that every rational indulgence should be made in favor of the constitutionality of an enactment by Congress. I deem it my duty to go to the farthest possible limits in so construing legislation as to avoid a finding that Congress has exceeded the limits of its powers. See, e. g., United States v. Lovett, 328 U.S. 303, 318, 329; Shapiro v. United States, 335 U.S. 1, 36; United States v. C. I. O., 335 U.S. 106, 124, 129.
If I possibly could, to avoid questions of unconstitutionality I would construe the requirements of § 9 (h) to be restricted to disavowal of actual membership in the Communist Party, or in an organization that is in fact a controlled cover for that Party or of active belief,
The offensive provisions of § 9 (h) leave unaffected, however, the valid portions of the section. In § 16, Congress has made express provision for such severance. Since the judgments below were based in part on what I deem unconstitutional requirements, I cannot affirm but would remand to give opportunity to obey merely the valid portions of § 9 (h).
MR. JUSTICE JACKSON, concurring and dissenting, each in part.
If the statute before us required labor union officers to forswear membership in the Republican Party, the Democratic Party or the Socialist Party, I suppose all agree that it would be unconstitutional. But why, if it is valid as to the Communist Party?
The answer, for me, is in the decisive differences between the Communist Party and every other party of any importance in the long experience of the United States with party government. In order that today's decision may not be useful as a precedent for suppression of any
To state controlling criteria definitively is both important and difficult, because those Communist Party activities visible to the public closely resemble those of any other party. Parties, whether in office or out, are often irresponsible in their use and abuse of freedoms of speech and press. They all make scapegoats of unpopular persons or classes and make promises of dubious sincerity or feasibility in order to win votes. All parties, when in opposition, strive to discredit and embarrass the Government of the day by spreading exaggerations and untruths and by inciting prejudiced or unreasoning discontent, not even hesitating to injure the Nation's prestige among the family of nations. The Communist Party, at least outwardly, only exaggerates these well-worn political techniques and many persons are thus led to think of it as just another more radical political party. If it were nothing but that, I think this legislation would be unconstitutional. There are, however, contradictions between what meets the eye and what is covertly done, which, in my view of the issues, provide a rational basis upon which Congress reasonably could have concluded
From information before its several Committees and from facts of general knowledge, Congress could rationally conclude that, behind its political party facade, the Communist Party is a conspiratorial and revolutionary junta, organized to reach ends and to use methods which are incompatible with our constitutional system. A rough and compressed grouping of this data
The Communist program only begins with seizure of government, which then becomes a means to impose upon society an organization on principles fundamentally opposed to those presupposed by our Constitution. It purposes forcibly to recast our whole social and political structure after the Muscovite model of police-state dictatorship. It rejects the entire religious and cultural heritage of Western civilization, as well as the American economic and political systems. This Communist movement is a belated counter-revolution to the American Revolution, designed to undo the Declaration of Independence, the Constitution, and our Bill of Rights, and overturn our system of free, representative self-government.
Goals so extreme and offensive to American tradition and aspiration obviously could not be attained or approached through order or with tranquility. If, by their better organization and discipline, they were successful, more candid Communists admit that it would be to an
Such goals set up a cleavage among us too fundamental to be composed by democratic processes. Our constitutional scheme of elections will not settle issues between large groups when the price of losing is to suffer extinction. When dissensions cut too deeply, men will fight, even hopelessly, before they will submit.
The chain of command from the Kremlin to the American party is stoutly denied and usually invisible, but it was unmistakably disclosed by the American Communist Party somersaulting in synchronism with shifts in the Kremlin's foreign policy. Before Munich, Soviet policy was anti-German—"anti-fascist"—and the Communists in this country were likewise. However, when Stalin concluded a nonaggression pact with Hitler and Nazi Germany and the Soviet Union became partners in the war, the Communists here did everything within their power to retard and embarrass the United States' policy of rendering aid short of war to victims of aggression by that evil partnership. When those partners again fell out and Russian policy once more became anti-German, the Communists in this country made an abrupt and fierce reversal and were unconscionable in their demands that American soldiers, whose equipment they had delayed and sabotaged, be sacrificed in a premature second front to spare Russia. American Communists, like Communists elsewhere in the world, placed Moscow's demand above every patriotic interest.
By lineage and composition the Communist Party will remain peculiarly susceptible to this alien control. The entire apparatus of Communism—its grievances, program, propaganda and vocabulary—were evolved for Eastern and Central Europe, whose social and political conditions bear no semblance to our own. However gifted may have been the Communist Party's founders and leaders—Marx, Engels, Lenin and Stalin—not one of them ever lived in America, experienced our conditions, or imbibed the spirit of our institutions. The Communist
The Old World may be rich in lessons which our statesmen could consult with advantage. But it is one thing to learn from or support a foreign power because that policy serves American interests, and another thing to support American policies because they will serve foreign interests.
The American Communists have imported the totalitarian organization's disciplines and techniques, notwithstanding the fact that this country offers them and other discontented elements a way to peaceful revolution by ballot.
This cabalism and terrorism is understandable in the light of what they want to accomplish and what they have to overcome. The Communist program does not presently, nor in foreseeable future elections, commend itself to enough American voters to be a substantial political force. Unless the Communist Party can obtain some powerful leverage on the population, it is doomed to remain a negligible factor in the United States. Hence, conspiracy, violence, intimidation and the coup d'etat are all that keep hope alive in the Communist breast.
4. The Communist Party has sought to gain this leverage and hold on the American population by acquiring control of the labor movement. All political parties have wooed labor and its leaders. But what other parties seek is principally the vote of labor. The Communist Party, on the other hand, is not primarily interested in labor's vote, for it does not expect to win by votes. It strives for control of labor's coercive power— the strike, the sit-down, the slow-down, sabotage, or other means of producing industrial paralysis. Congress has legalized the strike as labor's weapon for improving its own lot. But where Communists have labor control, the strike can be and sometimes is perverted to a party weapon. In 1940 and 1941, undisclosed Communists used their labor offices to sabotage this Nation's effort to rebuild its own defenses. Disguised as leaders of free American labor, they were in truth secret partisans of Stalin, who, in partnership with Hitler, was overrunning Europe, sending honest labor leaders to concentration camps, and reducing labor to slavery in every land either of them was able to occupy. No other important political party in our history has attempted to use the strike to nullify a foreign or a domestic policy adopted by those chosen under our representative system.
5. Every member of the Communist Party is an agent to execute the Communist program. What constitutes a party? Major political parties in the United States have never been closely knit or secret organizations. Anyone who usually votes the party ticket is reckoned a member, although he has not applied for or been admitted to membership, pays no dues, has taken no pledge, and is free to vote, speak and act as he wills. Followers are held together by rather casual acceptance of general principles, the influence of leaders, and sometimes by the cohesive power of patronage. Membership in the party carries with it little assurance that the member understands or believes in its principles and none at all that he will take orders from its leaders. One may quarrel with the party and bolt its candidates and return
Membership in the Communist Party is totally different. The Party is a secret conclave. Members are admitted only upon acceptance as reliable and after indoctrination in its policies, to which the member is fully committed. They are provided with cards or credentials, usually issued under false names so that the identification can only be made by officers of the Party who hold the code. Moreover, each pledges unconditional obedience to party authority. Adherents are known by secret or code names. They constitute "cells" in the factory, the office, the political society, or the labor union. For any deviation from the party line they are purged and excluded.
Inferences from membership in such an organization are justifiably different from those to be drawn from membership in the usual type of political party. Individuals who assume such obligations are chargeable, on ordinary conspiracy principles, with responsibility for and participation in all that makes up the Party's program. The conspiracy principle has traditionally been employed to protect society against all "ganging up" or concerted action in violation of its laws. No term passes that this Court does not sustain convictions based on that doctrine for violations of the antitrust laws or other statutes.
Such then is the background which Congress could reasonably find as a basis for exerting its constitutional powers, and which the judiciary cannot disregard in testing them. On this hypothesis we may revert to consideration of the contention of unconstitutionality of this oath insofar as it requires disclosure of Communist Party membership or affiliation.
I cannot believe that Congress has less power to protect a labor union from Communist Party domination than it has from employer domination. This Court has uncompromisingly upheld power of Congress to disestablish labor unions where they are company-dominated and to eradicate employer influence, even when exerted only through spoken or written words which any person not the employer would be free to utter.
Congress has conferred upon labor unions important rights and powers in matters that affect industry, transport,
Counsel stress that this is a civil-rights or a free-speech or a free-press case. But it is important to note what this Act does not do. The Act does not suppress or outlaw the Communist Party, nor prohibit it or its members from engaging in any aboveboard activity normal in party struggles under our political system. It may continue to nominate candidates, hold meetings, conduct campaigns and issue propaganda, just as other parties may. No individual is forbidden to be or to become a philosophical Communist or a full-fledged member of the Party. No one is penalized for writing or speaking in favor of the Party or its philosophy. Also, the Act does not require or forbid anything whatever to any person merely because he is a member of, or is affiliated with, the Communist Party. It applies only to one who becomes an officer of a labor union.
I am aware that the oath is resented by many labor leaders of unquestioned loyalty and above suspicion of Communist connections, indeed by some who have themselves taken bold and difficult steps to rid the labor movement of Communists. I suppose no one likes to be compelled to exonerate himself from connections he has never
In weighing claims that any particular activity is above the reach of law, we have a high responsibility to do so in the light of present-day actualities, not nostalgic idealizations valid for a simpler age. Our own world, organized for liberty, has been forced into deadly competition with another world, organized for power. We are faced with a lawless and ruthless effort to infiltrate and disintegrate our society. In cases involving efforts of Congress to deal with this struggle we are clearly called upon to apply the long-standing rule that an appointive Judiciary should strike down no act produced by the democratic processes of our representative system unless unconstitutionality is clear and certain.
I conclude that we cannot deny Congress power to take these measures under the Commerce Clause to require labor union officers to disclose their membership in or affiliation with the Communist Party.
Congress has, however, required an additional disclaimer, which in my view does encounter serious constitutional objections. A union officer must also swear that "he does not believe in . . . the overthrow of the United States Government by force or by any illegal or unconstitutional methods."
That this difference is decisive on the question of power becomes unmistakable when we consider measures of enforcement. The only sanction prescribed, and probably the only one possible in dealing with a false affidavit, is punishment for perjury. If one is accused of falsely stating that he was not a member of, or affiliated with, the Communist Party, his conviction would depend upon proof of visible and knowable overt acts or courses of conduct sufficient to establish that relationship. But if one is accused of falsely swearing that he did not believe
The law sometimes does inquire as to mental state, but only so far as I recall when it is incidental to, and determines the quality of, some overt act in question. From its circumstances, courts sometimes must decide whether an act was committed intentionally or whether its results were intended, or whether the action taken was in malice, or after deliberation, or with knowledge of certain facts. But in such cases the law pries into the mind only to determine the nature and culpability of an act, as a mitigating or aggravating circumstance, and I know of no situation in which a citizen may incur civil or criminal liability or disability because a court infers an evil mental state where no act at all has occurred.
Our Constitution explicitly precludes punishment of the malignant mental state alone as treason, most serious of all political crimes, of which the mental state of adherence to the enemy is an essential part. It requires a duly witnessed overt act of aid and comfort to the enemy. Cramer v. United States, 325 U.S. 1. It is true that in England of olden times men were tried for treason for mental indiscretions such as imagining the death of the king. But our Constitution was intended to end such prosecutions. Only in the darkest periods of human history
How far we must revert toward these discredited systems if we are to sustain this oath is made vivid by the Court's reasoning that the Act applies only to those "whose beliefs strongly indicate a will to engage in political strikes . . . ." Since Congress has never outlawed the political strike itself, the Court must be holding that Congress may root out mere ideas which, even if acted upon, would not result in crime. It is a strange paradox if one may be forbidden to have an idea in mind that he is free to put into execution. But apart from this, efforts to weed erroneous beliefs from the minds of men have always been supported by the argument which the Court invokes today, that beliefs are springs to action, that evil thoughts tend to become forbidden deeds. Probably so. But if power to forbid acts includes power to forbid contemplating them, then the power of government over beliefs is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner of social, economic, moral and political issues.
These suggestions may be discounted as fanciful and farfetched. But we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds—that which is their own and that which is false and dangerous. Communists are not the only faction which would put us all in mental strait jackets. Indeed all ideological struggles, religious or political, are primarily battles for dominance over the minds of people. It is not to be supposed that the age-old readiness to
It happens that the belief in overthrow of representative government by force and violence which Congress conditionally proscribes is one that I agree is erroneous. But "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate." Holmes, J., dissenting in United States v. Schwimmer, 279 U.S. 644, 654-55. Moreover, in judging the power to deny a privilege to think otherwise, we cannot ignore the fact that our own Government originated in revolution and is legitimate only if overthrow by force may sometimes be justified. That circumstances sometimes justify it is not Communist doctrine but an old American belief.
The men who led the struggle forcibly to overthrow lawfully constituted British authority found moral support by asserting a natural law under which their revolution was justified, and they broadly proclaimed these beliefs in the document basic to our freedom. Such sentiments have also been given ardent and rather extravagant
While the Governments, State and Federal, have expansive powers to curtail action, and some small powers to curtail speech or writing, I think neither has any power, on any pretext, directly or indirectly to attempt foreclosure of any line of thought. Our forefathers found the evils of free thinking more to be endured than the evils of inquest or suppression. They gave the status of almost absolute individual rights to the outward means of expressing belief. I cannot believe that they left open a way for legislation to embarrass or impede the mere intellectual processes by which those expressions of belief are examined and formulated. This is not only because individual thinking presents no danger to society, but because thoughtful, bold and independent minds are essential to wise and considered self-government.
Progress generally begins in skepticism about accepted truths. Intellectual freedom means the right to re-examine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all. Our Constitution relies on our electorate's complete ideological freedom to nourish independent and responsible intelligence and preserve our democracy from that submissiveness, timidity and herd-mindedness of the masses which would foster a tyranny of mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the
The idea that a Constitution should protect individual nonconformity is essentially American and is the last thing in the world that Communists will tolerate. Nothing exceeds the bitterness of their demands for freedom for themselves in this country except the bitterness of their intolerance of freedom for others where they are in power.
I adhere to views I have heretofore expressed, whether the Court agreed, West Virginia Board of Education v. Barnette, 319 U.S. 624, or disagreed, see dissenting opinion in United States v. Ballard, 322 U.S. 78, 92, that our Constitution excludes both general and local governments from the realm of opinions and ideas, beliefs and doubts, heresy and orthodoxy, political, religious or scientific. The right to speak out, or to publish, also
I think that under our system, it is time enough for the law to lay hold of the citizen when he acts illegally, or in some rare circumstances when his thoughts are given illegal utterance. I think we must let his mind alone.
The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The seesaw between freedom and power makes up most of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The Court's day-to-day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression. These are the competing considerations involved in judging any measures which government may take to suppress or disadvantage its opponents and critics.
I conclude that today's task can only be discharged by holding that all parts of this oath which require disclosure of overt acts of affiliation or membership in the Communist Party are within the competence of Congress to enact and that any parts of it that call for a disclosure of belief unconnected with any overt act are beyond its power.
MR. JUSTICE BLACK, dissenting.
We have said that "Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind."
Today's decision rejects that fundamental principle. The Court admits, as it must, that the "proscriptions" of § 9 (h) of the National Labor Relations Act as amended by the Taft-Hartley Act rest on "beliefs and political affiliations," and that "Congress has undeniably discouraged the lawful exercise of political freedoms" which are "protected by the First Amendment." These inescapable facts should compel a holding that § 9 (h) conflicts with the First Amendment.
Crucial to the Court's contrary holding is the premise that congressional power to regulate trade and traffic includes power to proscribe "beliefs and political affiliations." No case cited by the Court provides the least vestige of support for thus holding that the Commerce Clause restricts the right to think. On the contrary, the First Amendment was added after adoption of the Constitution for the express purpose of barring Congress from using previously granted powers to abridge belief or its expression. Freedom to think is inevitably abridged when beliefs are penalized by imposition of civil disabilities.
Since § 9 (h) was passed to exclude certain beliefs from one arena of the national economy, it was quite natural
The Court assures us that today's encroachment on liberty is just a small one, that this particular statutory provision "touches only a relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint." But not the least of the virtues of the First Amendment is its protection of each member of the smallest and most unorthodox minority. Centuries of experience testify that laws aimed at one political or religious group, however rational these laws may be in their beginnings, generate hatreds and prejudices which rapidly spread beyond control. Too often it is fear which inspires such passions, and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same brush
Under such circumstances, restrictions imposed on proscribed groups are seldom static,
The Court finds comfort in its assurance that we need not fear too much legislative restriction of political belief or association "while this Court sits." That expression, while felicitous, has no validity in this particular constitutional field. For it springs from the assumption that individual mental freedom can be constitutionally abridged whenever any majority of this Court finds a satisfactory legislative reason. Never before has this Court held that the Government could for any reason attaint persons for their political beliefs or affiliations. It does so today.
Today the "political affiliation" happens to be the Communist Party: testimony of an ex-Communist that some Communist union officers had called "political
It is indicated, although the opinion is not thus limited and is based on threats to commerce rather than to national security, that members of the Communist Party or its "affiliates" can be individually attainted without danger to others because there is some evidence that as a group they act in obedience to the commands of a foreign power. This was the precise reason given in Sixteenth-Century England for attainting all Catholics unless they subscribed to test oaths wholly incompatible with their
Fears of alien ideologies have frequently agitated the nation and inspired legislation aimed at suppressing advocacy of those ideologies.
"It seems to me that the State Court was right. I should say plainly right, but for the effect of certain dicta of Chief Justice Marshall which culminated in or rather were founded upon his often quoted proposition that the power to tax is the power to destroy. In those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree. If the States had any power it was assumed that they had all power, and that the necessary alternative was to deny it altogether. But this Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits. The power to fix rates is the power to destroy if unlimited, but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates. A tax is not an unconstitutional regulation in every case where an absolute prohibition of sales would be one. Hatch v. Reardon, 204 U.S. 152, 162."
An introduction to the literature on the subject may be found in: Cohen and Fuchs, Communism's Challenge and the Constitution, 34 Cornell L. Q. 182; Moore, The Communist Party of the U. S. A., 39 Am. Pol. Sci. Rev. 31; Timasheff, The Schneiderman Case—Its Political Aspects, 12 Ford. L. Rev. 209; Note, 32 Georgetown L. J. 405, 411-418; Emerson & Helfeld, Loyalty Among Government Employees, 58 Yale L. J. 1, 61-64; Donovan & Jones, Program For a Democratic Counter Attack to Communist Penetration of Government Service, 58 Yale L. J. 1211, 1215-1222; and see Notes, 48 Col. L. Rev. 253; 96 U. of Pa. L. Rev. 381; 1 Stanford L. Rev. 85; 23 Notre Dame Lawyer 577; 34 Va. L. Rev. 439, 450.
See also Mills, The New Men of Power (1948) 186-200; Levenstein, Labor Today and Tomorrow (1945) 159-177; Teller, Management Functions under Collective Bargaining (1947) 401-410; Smith, Spotlight on Labor Unions (1946) 40-43, 63-67, 79-82; Taft, Economics and Problems of Labor (1948) 499-501, 722; Saposs, Left Wing Unionism (1926) 48-65; Foster, From Bryan to Stalin (1937) 275-277; Gitlow, I Confess (1940) 334-395; The Communist in Labor Relations Today (Research Institute of America, New York, March 28, 1946); Baldwin, Union Administration and Civil Liberties, 248 Annals 54, 59; Labor Abroad, Dec. 1947, No. 5 (U. S. Dept. of Labor, Bureau of Labor Statistics) 3; Labor Abroad, Feb. 1948, No. 6 (U. S. Dept. of Labor, Bureau of Labor Statistics) 1-3; Postwar Labor Movement in Italy, 68 Monthly Labor Review (U. S. Dept. of Labor, Bureau of Labor Statistics) 49. For the story of American political parties see Binkley, American Political Parties (2d ed., 1945); 2 Bryce, The American Commonwealth (2d ed. rev. 1891); and on the Communist Party, in addition to materials above cited, Odegard and Helms, American Politics (1938) 795-797.
"Our alternating Cabinets, though belonging to different parties, have never differed about the foundation of society, and it is evident that our whole political machinery presupposes a people so fundamentally at one that they can afford to bicker; and so sure of their own moderation that they are not dangerously disturbed by the neverending din of political conflict. May it always be so." Preface to the World's Classics edition of Bagehot's English Constitution, p. xxiii.
"In an interesting passage [citing the above] Lord Balfour has drawn attention to the fact that the success of the British Constitution in the Nineteenth Century—it is worth adding the general success of representative government—was built upon an agreement between parties in the state upon fundamental principles. There was, that is, a kindred outlook upon large issues; and since fighting was confined to matters of comparative detail, men were prepared to let reason have its sway in the realm of conflict. For it is significant that in the one realm where depth of feeling was passionate— Irish home rule—events moved rapidly to the test of the sword; and the settlement made was effected by violence and not by reason." Laski, Liberty in the Modern State, 238.
If we substitute the Civil War for Irish home rule, these statements become as applicable to the United States as they are to England.
Quotations of similar statements could be multiplied indefinitely. Of course, these quotations are out of their context and out of their times. And despite their abstract theories about revolt, it should also be noted that Adams, Jefferson, Lincoln and Grant were uncompromising in putting down any show of rebellion toward the Government they headed.
The revolutionary origin of our own Government has inclined Americans to value revolution as a means to liberty and loosely to think that all revolutionists are liberals. The fact is, however, that violent revolutions are rare which do more in the long run than to overthrow one tyranny to make way for another. The cycle from revolt to reaction has taken less than a score of bloody years in the great revolutions. The Puritan Commonwealth under Cromwell led but to the Restoration; the French by revolution escaped from the reign of Louis XVI to the dictatorship of Napoleon; the Russians overthrew the Czar and won the dictatorship of Lenin and Stalin; the Germans deposed the Kaiser and fell victims of a dictatorship by Hitler. I am convinced that force and violence do not serve the cause of liberty as well as nonviolence. See Fischer, Gandhi and Stalin, passim.
But the sentiments I have quoted have strong appeal to the impetuous and are deeply imbedded in American tradition.
As for the political motivations and objectives of these statutes, see, e. g., the declaration of purpose in 35 Eliz. c. 2, quoted in note 7 infra.
"The political atmosphere was electric. . . . Thus it is not strange that when Titus Oates, an Anglican clergyman who had been reconciled the year before to Rome, came forward in August, 1678, to denounce a vast Jesuit conspiracy against the King's life and the Protestant religion, his tale of wild lies met with a degree of credence that later ages would perhaps have refused to it. . . . The Pope, he declared, had commanded, and the Jesuits undertaken, a conquest of the kingdom; . . . . In all the arrangements he had been, he said, a trusted emissary . . . . Over a hundred conspirators, mostly Jesuits, were mentioned by name . . . . Oates was examined at the Council Board. The King caught him lying, but the extent and gravity of his charges demanded investigation; . . . . In one important point Oates' story was confirmed. . . . There was no `plot' in Oates' sense; but there was quite enough of plotting to cost men their heads under the English law of treason . . . ." 5 Cambridge Modern History 220-221.