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From Labor Action, Vol. 14 No. 5, 30 January 1950, p. 4.
Transcribed & marked up by Einde O’Callaghan for ETOL.
The hope that the Supreme Court would be the final but decisive defender of civil liberties became slimmer as a result of two decisions handed down by that body last week.
While the circumstances of the particular cases involved were especially narrow and exceptional, the principles and processes sustained by the court majority are eminently adaptable for wholesale application by an energetic attorney general. Given a Department of Justice and an attorney general already “patriotic” enough to break the law in order to defend the country by wiretapping, it gives one pause to think of the dimensions of their patriotism when the law is fashioned to fit their methods.
In the two decisions, the court sustained the government’s power to deport two men who were naturalized citizens when convicted of ci’imes under the Espionage Act, and upheld the government’s right to exclude the bride of an American World War II, veteran without a hearing and solely on the finding of the attorney general.
In the first case, the legal question centered around the government’s power to deport two men who had been CITIZENS at the time they were convicted of the crime. Justice Frankfurter in his dissent, which was shared by Justices Black and Jackson, held that the law which permits Congress to deport aliens if convicted of crime under the Espionage Act applies “only to one who was alien when convicted.” Burton for the majority said that Congress had power to pass a law to deport aliens “because of past misconduct.”
The implications of this ruling are far more monstrous than the seeming suitability of this particular application to foreign agents – and certainly labor and progressives are not interested in what happens to such agents and spies themselves. The majority ruling in effect creates a special class out of naturalized citizens. A native-born citizen, convicted under the Espionage Act, may not be deported. A naturalized citizen, so convicted, may be deported after his papers are taken from him. And there is legal precedent for the right to take away his papers.
It may be thought that this presents no serious threat to liberty since, in the first place, how many aliens, naturalized or not, are really foreign agents, and, in the second place, if they are, what is wrong with their deportation? This argument rests on a serious misconception of the nature of the Espionage Act.
To be sure, foreign agents are deportable under this act. But being a foreign spy is not the only crime covered by it. The act can be applied to a multitude of other “crimes” and not only can it be so used but it has been applied in that fashion. It was the very same act which, during the First World War and for some years after, permitted the arrest of socialists, anarchists, IWWers, dissidents of all kinds. A compliant judiciary railroaded oppositionists of all kinds to heavy prison sentences and fines under this same act.
With this fact in mind, what becomes the meaning of the current court ruling on these aliens? If a naturalized citizen is convicted under the Espionage Act, and if the Espionage,Act can apply to all “subversives” as it did in the past, then ANY naturalized citizen who has ideas which the attorney general finds “undesirable” or “subversive” (and this today includes almost any form of dissidence) is subject to deportation. If it is argued that the ruling applied only to naturalized citizens who have lost their papers, it should be pointed out again that there is legal precedent for taking away the papers of such a citizen.
Up to now, even an unnaturalized alien has been considered a “person” within the meaning of the Bill of Rights. Apparently an alien would get short shrift these days if he was “undesirable” to the attorney general. But now even a naturalized alien can be punished for a crime he committed while yet a citizen just as if he had already been deprived of his citizenship.
It is not to be expected that the ruling will be exploited for all its ramified implications immediately or automatically. That this can take place when necessary and desirable is reasonably sure. The majority decision in this case is a strong enough indication that whatever legal obstacles may stand in the way of the extensions of the ruling will be hurdled nimbly by an eager court. More imposing judges have leaped as high and as readily in the past with less reason. This court will do no less.
The second case, that of the frustrated war bride, is even more ominous in its direct bearing on civil liberties. Judge Minton, arguing here for the same majority of four against three, said that admission to the country was a “privilege granted by the sovereign U.S. government” and if the attorney general felt it unwise to admit this person, his opinion should be sustained.
It is important to appreciate the legal principle involved here and not be misled by the thought that, after all, the person discriminated against in this case is an alien who is not even a resident of the U.S.
The bride was refused admission to the country on the ground that the government has the general power to admit or not to admit people. But liberal judicial theory on such questions stresses the fact that the existence of a general power by the government does not justify, in and of itself, the discriminatory exercise of that power. For example, Congress has the power of taxation. But that general power obviously does not allow a Republican Congress to tax members of the Democratic Party more than other people.
Justice Schirick of the New York State Supreme Court made an analogous ruling in invalidating the Feinberg Law when he replied to the argument that there was no constitutional right to work for the government, which therefore had the right to hire whom it pleased. Shirick pointed out that the government may have the right to hire whom it wants but it may not designate as a condition for working for it that a person belong to a specific church or party.
Thus liberal judicial opinion would insist that the use of a general power, such as the right of admission to the U.S., to discriminate against any one person must be supported by evidence against the desirability of that one person. The general power does not suffice.
But in the case of the war bride no such evidence or proof was brought out. She was called “undesirable” by the attorney general and that was enough for the court. The evidence against this girl was of the type now famous for being “confidential,” having a content that cannot be disclosed and a source that must remain hidden.
In a scathing dissent, Justice Jackson said that “not even a court can find out why this girl is excluded.” Not even the Supreme Court could find out why this girl was si bad security risk, but still the majority ruled to deprive an American citizen of his wife on the say-so of the attorney general.
This may have been a gesture of courtesy by the majority to one of their colleagues. After all, was it not their fellow justice, that eminent and learned jurist, famous for his wisdom and objectivity alike. Justice Tom Clark, who was the attorney general in the case? It is true that Tom Clark did not sit on this case as a justice, but that did not prove to be necessary: the court ruled on it like Tom Clark himself.
What stands out in this case is the fact that the court sustained a ruling where no evidence was given against the person, where no evidence was obtainable and where the accused was not even permitted a hearing. It does not matter that the girl herself was not a citizen. Her citizen-husband was deprived of his right by this star-chamber procedure and it is this procedure which is of the essence.
That a Clark should think in this fashion will surprise only those who think he found a new mind in the pocket of his robes. As attorney general he was most assiduous in following precisely these methods of convictions without hearings or evidence. Is this to be the philosophy of the present court?
Nothing in the present ruling would indicate that it is not. Quite the contrary – for though Minton argued from the general power of the government to admit, he explicitly accepted the attorney general’s word on the guilt of the applicant. Justice Jackson was quick to point out in dissenting that “the menace to the security of this country, be it as great as it may, from this girls admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern.”
It is good to know that the liberal tradition on civil liberties still lives on the bench in the dissents of Black, Frankfurter and Jackson. It is also of interest and possibly of significance – though such matters are rarely so simple and direct – that the majority of four were all Truman appointees. The lineup of 4–3 in these cases may become 5–4 in future cases when Douglas returns and Clark participates.
There is some cold scholastic comfort in the size of the minority but a minority it remains. The more brilliant minorities of Holmes and Brandeis in past civil-liberties cases did not prevent violent abuses of liberty by the highest court. If these two decisions are any portent it is to be feared that, under the increasing pressures of the cold war, the main function of the highest court will be to place the seal of law on the atrocities of the Department of Justice.
Let those who dismiss this as a possibility pause and remember. It has happened before.
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