Group 2 Teleological School of Jurisprudence Full Text of Related Cases With this preliminary statement, let us now proceed

ent, let us now proceed to determine the only issue involved in

this appeal, to wit, whether defendant, who has been proclaimed, took the oath of office,
Republic of the Philippines and discharged the duties of Senator, can be ordered to reimburse the salaries and
SUPREME COURT emoluments he has received during his incumbency to the plaintiff who has been legally
Manila declared elected by the Senate Electoral Tribunal. .
EN BANC Plaintiff claims that, as defendant was found and by final judgment not to have been
entitled to the office of Senator, and, as such, he was during the time he discharged that
G.R. No. L-3913 August 7, 1952 office a mere de facto officer, he should reimbursed to the plaintiff the salaries and
EULOGIO RODRIGUEZ, SR., plaintiff-appellant, emoluments he has received on the following grounds; (1) because the salaries and
vs. emoluments follow and are inseparable from legal title to the office and do not depend on
whether the duties of the office are discharged or not; and (2) because such a rule tends to
CARLOS TAN, defendant-appellee.
curb election frauds and lessens the danger and frequency of usurpation or instrusion into
Ramon Diokno and Jose W. Diokno for appellant.
the office. Plaintiffs invites the attention of the Court to the annotation appearing in 93
Agustin Alvarez Salazar for appellee.
A.L.R. 258,273 et seq., supplemented in 151 A.L.R. 952, 960, et seq., wherein more than
BAUTISTA ANGELO, J.:
100 cases are cited in support of the rule.
Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and
Plaintiff seeks to collect from the defendant the aggregate sum of P18,400 as salaries and
plausible cannot be invoked in the present case, since it runs counter to the principle and
allowances and the sum of P35,524.55 as damages, upon the plea that the latter usurped
rule long observed in this jurisdiction to the effect that one who has been elected to an
the office of Senator of the Philippines which rightfully belongs to the former from
office, and has been proclaimed by the corresponding authority, has a right to assume the
December 30, 1947, to December 27, 1949.
office and discharge its functions notwithstanding the protest filed against his election, and
Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the
as a necessary consequence he has likewise the right to collect and received the salaries
Philippines, and from that date until December 1949, he continously collected the salaries,
and emoluments thereunto appertaining as a compensation for the salaries he has
emoluments and privileges attendant to that office amounting to P18,400; that protest
rendered. Defendants avers that plaintiff already attempted to seek the reimbursement of
having been filed by plaintiff against defendant, the Senate Electoral Tribunal on
the salaries and emoluments he had received in the protest he has filed against him
December 16, 1949, rendered judgment declaring plaintiff to have been duly elected to the
Senate Electoral Tribunal constitutes a bar to his right to collect the same salaries and
office; and that by reason of such usurpation, plaintiff suffered damages in the amount of
emoluments in the present case.
P35,524.55 for expenses he incurred in prosecuting the protest.
After a careful consideration of the issue in the light of the law and precedents obtaining in
On February 2, 1950, defendant filed a motion to dismiss alleging, on one hand, that the
this jurisdiction, we are inclined to uphold the point of view of the defendant. There is no
judgment rendered by the Senate Electoral Tribunal in the protest case is a bar to this
question that the defendant acted as a de facto officer during the time he held the office of
action under the principle of res judicata, and, on the other, that said Tribunal denied
Senator. He was one of the candidates of the Liberal Party in the elections of November
without any reservation the claim of the plaintiff for expenses incurred in prosecuting the
11, 1947, and was proclaimed as one of those who had been elected by the Commission
protest.
on Elections, and thereafter he took the oath of office and immediately entered into the
The issue having been thus joined upon the motion to dismiss, the Court entered on an
performance of the duties of the position. Having been thus duly proclaimed as Senator
order dismissing the complaint with costs. From this order plaintiff has appealed.
and having assumed office as required by law, it cannot be disputed that defendant is
The averment in the complaint that "defendant usurped the office of Senator of the
entitled to the compensation, emoluments and allowances which our Constitution provides
Philippines" is a conclusion of law, not a statement of fact, inasmuch as the particular
for the position (article VI, section 14). This is as it should be. This is in keeping with the
facts on which the alleged usurpation is predicated are not set forth therein. Hence such
ordinary course of events. This is simple justice. The emolument must go to the person
averment cannot be deemed admitted by the motion to dismiss (Fressel vs. Mariano Uy
who rendered service unless the contrary is provided. There is no averment in the
Chanco & Sons & Co., 34 Phil., 122). Moreover, such averment is negatived by the
complaint that he is linked with any irregularity vitiating his election. This is the policy and
decision of the Senate Electoral Tribunal in the protest case which says that defendant
the rule that has been followed consistently in this jurisdiction in connection with the
was one of those proclaimed elected as Senator in the general elections held on
provisions held by persons who had been elected thereto but were later ousted as a result
November 11, 1947. Defendant, cannot, therefore, be considered a usurper as claimed in
of an election protest. The right of the persons elected to compensation during their
the complaint.
incumbency has always been recognized. We cannot recall of any precedent wherein the
contrary rule has been upheld.

~Page 1 of 96~
A case which may be invoked in support of this point of view is Page vs. U.S. (127 U.S. 67;
32 Law ed. 65), decided by the Supreme Court of the United States. In that case, one
William A. Pirce was declared elected, received a certificate of election, was sworn in and
took his seat in the Congress of the United States. His election was contested by Charles
H. Page, and as a result the House of Representatives found that Pirce was not duly
elected his seat vacant. An election was thereafter held to fill the vacancy and Page was
duly elected. Thereupon Page was sworn in and took his seat. Page later sued to recover
the salary received by Price during his incumbency. The Supreme Court ruled that he was
not entitled to it holding that "one whose credentials showed that he was regularly elected
a member of Congress, and who was sworn in and took his seat, and served, and drew his
salary, was although his seat was contested, and subsequently he was declared by
Congress not to have been elected, and this seat was declared vacant the predecessor
of the person elected to fill the vacancy". This case, thought it arose under a special
statute, is significant in that it regarded Pirce as the lawful predecessor of Page in the
office to which he was later legally elected. Pirce was declared entitled to the salary and
emoluments of the office.
We are sympathetic to the rule earnestly advocated by the plaintiff which holds that the
salaries and emoluments should follow the legal title to the office and should not depend
and whether the duties of the office are discharged or not, knowing that it is predicated on
a policy designed to discourage the Commission of frauds and to lessen the danger and
frequency of usurpation or intrusion into the office which defeat the will of the people. We
are conscious that, if the rule is adopted, it would indeed have a wholesome effect in future
elections and would serve as a deterring factor in the commission of frauds, violence and
terrorism which at the times are committed in some sectors of our country to the detriment
of public interest. But an examination of the cases relied upon by him, discloses that in
some states, like Indiana, New York, Michigan, California, Lousiana, Idaho, Missouri and
Washington, the doctrine advocated is premised on express statutory by reason of
usurpation, (Mechem, A Treatise on the Law of Public Offices and Officers, pp. 223-224;
93 A.L.R. pp. 284-287), whereas in the rest in the ruling is based on common law (Kreitz
vs. Behrensmeyer, 24 A.L.R. 223-224). Under such predicament, it is indeed hard to see
how we can extend here the force and effect of such doctrine as we are urged, knowing
well that, as a rule, "neither the English nor the American common law as in force in these
Islands upon our courts" (U.S. vs. Cuna, 12 Phil., 241; Arnedo vs. Llorente and Liongson,
18 Phil., 257, 262) while, on the other hand, there is nothing in our status which would
authorize us to adopt the rule. For us to follow the suggestion of the plaintiff would be
legislate by judicial ruling which is beyond the province of the Court. Nor are we justified to
follow a common law principle which runs counter to a precedent long observed in this
jurisdiction.
Another reason that may be involved in opposition to the claim of the plaintiff is the
principle of res judicata. It appears that plaintiff had already set up this claim in the protest
he filed against the defendant before the Senate Electoral Tribunal, but when the case was
decided on the merits the Tribunal passed up this matter sub silentio. In our opinion, this
silence may be interpreted as a denial of the relief. This is a matter which can be
considered as an incident to the power and authority given to the Electoral Tribunal by our
Constitution, whose jurisdiction over election cases is ample and unlimited (Sanidad et al.
vs. Vera et al., Case No. 1, Senate Electoral Tribunal), and when the Tribunal chose to
pass sub silentio, or ignore altogether, this important claim, the clear implication is that it
deemed it unjustified. This matter, therefore, cannot now be passed upon in line with the
doctrine laid down in the case of Kare vs. Locsin, (61 Phil., 541), wherein the Court,
among other things, said;
Locsin drew his pay by resolution and authority of the Legislature. The propriety of those
payments cannot be questioned on this complaint. We recognize Locsin's rigth to receive
and to retain the compensation because the Legislature voted it to him in spite of Mr.
Kare's pending contest and claim to that compensation. The legislature's carries the
corollary of Mr. Kare's lack of right to the same compensation. The Legislature might
possibly have required reimbursement by Locsin had it been its intention to recognize Mr.
Kare's claim to the same compensation; but not having done so, Locsin's superior right to
this compensation is res judicata for the courts. (Kare vs. Locsin, 61 Phil., pp. 541, 546.)
The same consideration may be made with regard to the claim for damages contained in
the second cause of action of the complaint.
Wherefore, the order appealed from is affirmed, with costs against the appellant.
Bengzon, Montemayor, and Labrador, JJ., concur.
Paras, C.J., concurs in the result.
Separate Opinions
PADILLA, J., concurring:
I concur in the affirmance of the order appealed from which dismissed the complaint, on
the ground that the plea of usurpation by the defendant of the office to which the plaintiff
was adjudged by the Proper Electoral Tribunal to be entitled is not an allegation of fact.
Usurpation is per se unlawful. A de facto officers enters upon the performance of the
duties and functions of an office under a close of authority or title. A candidate proclaimed
elected to an office by the agency set up by law to make the proclamation cannot be
deemed a usurper. Cases cited by the dissenter which told that a person entitled to an
office as adjudged by the courts is also entitled to recover the fees collected and
emoluments of and appertaining to the office from the ousted holder thereof, are either
based on common law or upon express statutory provisions. In this jurisdiction the
common law has never been applied and there is no statute which allows recovery of the
salaries and emoluments received by or paid to an officer who later on is adjudged not to
be entitled to the office.
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious
acts which led and resulted in his proclamation as senator-elect, when in truth and in fact
he was not so elected, he would be answerable for damages. In that event the salary, fees
and emoluments received by or paid to him during his illegal incumbency would be a
proper item of recoverable damage.
In the present case it is not pleaded that the defendant has committed such acts.
~Page 2 of 96~

PABLO, M., disidente:
(Spanish Text)
Reference
http://www.lawphil.net/judjuris/juri1952/aug1952/gr_l-3913_1952.html
United States v. Holmes 18 U.S. 412 (1820)
ON CERTIFICATE OF DIVISION OF OPINION AMONG THE
JUDGES OF THE CIRCUIT COURT OF MASSACHUSETTS
Syllabus
The courts of the United States have jurisdiction under the Act of 30 April, 1790, c. 36, of
murder or robbery committed on the high seas, although not committed on board a vessel
belonging to citizens of the United States, as if she had no national character, but was held
by pirates or persons not lawfully sailing under the flag of any foreign nation.
In the same case and under the same act, if the offense be committed on board of a
foreign vessel by a citizen of the United States or on board a vessel of the United States
by a foreigner or by a citizen or foreigner on board of a piratical vessel, the offense is
equally cognizable by the courts of the United States.
It makes no difference in such a case and under the same act whether the offense was
committed on board of a vessel or in the sea, as by throwing the deceased overboard and
drowning him, or by shooting, him when in the sea though he was not thrown overboard.
The prisoners were indicted at the Circuit Court of Massachusetts at the October term of
said court, 1818, for that the prisoners being citizens of the United States, on the fourth
day of July then last past, with force and arms, upon the high seas, out of the jurisdiction of
any particular state, in and on board a certain schooner or vessel, the name whereof being
to the jurors unknown, in and upon a person known, and commonly called by the name of
Reed, a mariner, in and on board said vessel, in the peace of God and of the said United
States, then and there being piratically, &c., did make an assault, and that they, the said
William Holmes, Thomas Warrington, otherwise called Warren Fawcett and Edward
Rosewain, with a certain steel dagger, &c., which he, the said William Holmes, in his right
hand, then and there had and held, the said person commonly called Reed, in and upon
the arms and breast of him, the said Reed, upon the high seas, and on board the vessel
aforesaid, and out of the jurisdiction of any particular state, piratically, &c., did strike and
thrust, giving to the said person commonly called Reed, in and upon the arms and breast
of him, the said Reed, upon the high seas, in and on board the vessel aforesaid, and out of
the jurisdiction of any particular state, piratically, &c., in and upon the said arms and breast
of him, the said Reed, several grievous wounds, and did then and there in and on board
the vessel aforesaid, upon the high seas, and out of the jurisdiction of any particular state,
piratically, &c., him, the said person commonly called Reed, cast and threw from out of
said vessel into the sea, and plunge, sink, and drown him, in the sea aforesaid, of which
said grievous wounds, casting, throwing, plunging, sinking, and drowning, the said person
commonly called Reed, upon the high seas aforesaid, out of the jurisdiction of any
particular state, then and there instantly died.
And so the jurors aforesaid, upon their oath aforesaid, do say that the said William
Holmes, &c., him, the said person commonly called Reed, then and there, upon the high
seas as aforesaid, and out of the jurisdiction of any particular state, piratically, &c., did kill
and murder, against the peace and dignity of the said United States, and against the form
of the
statute of the said United States in such case made and provided, &c. Upon which
indictment the prisoners were found guilty of the offense charged therein. And thereupon
the counsel for the prisoners moved the court for a new trial for the misdirection of the
court upon the points of law which had been raised at the trial. And upon arguing the said
motion for a new trial, the several questions occurred before the circuit court which are
stated in the opinion of this Court, upon which the opinions of the judges of the circuit court
were opposed.
From the evidence it appeared that a vessel, apparently Spanish (whose national
character, however, was not distinctly proved by any documentary evidence or by the
testimony of any person conusant of its character), was captured by two privateers from
Buenos Ayres, a prize crew put on board, and the prisoners were of that prize crew. One of
the prisoners was a citizen of the United States, and the other prisoners were foreigners.
The crime was committed by the prisoners on the person whose death was charged in the
indictment, by drowning him on the high seas, he being, at the time, a prize master of the
captured vessel, and thrown or driven overboard by the prisoners. There was no proof who
were the owners of the privateers, nor where they resided, nor what were the ships' papers
or documents, nor where nor at what time they were armed or equipped for war. The
privateers had been at Buenos Ayres and openly kept a rendezvous there and shipped the
crews there. The crews consisted chiefly of Englishmen, Frenchmen, and Americans.
The commander of one of the privateers was by birth a citizen of the United States and
had a family domiciled at Baltimore. The commander of the other was by birth an
Englishman, but had long been domiciled at Baltimore. There was no proof that either of
them had ever lived at Buenos Ayres or been naturalized there. All the witnesses agreed
that both the privateers were built at Baltimore. They had been at Buenos Ayres before
their sailing on this cruise but a short time -- one about six weeks, the other a few days
only.
And the said judges being so opposed in opinion upon the questions aforesaid, the same
were then and there, at the request of the district attorney for the United States, stated,
under the direction of the judges, and ordered by the court to be certified under the seal of
the court to this Court, to be finally decided.
MR. JUSTICE WASHINGTON delivered the opinion of the Court.
~Page 3 of 96~
This case comes before the court upon a division of opinion of the judges of the Circuit
Court for the District of Massachusetts. The defendants are indicted for murder committed
on the
high seas, and the questions adjourned to this Court are
1. Whether the circuit court had jurisdiction of the offense charged in the indictment, unless
the vessel on board of which the offense was committed was at the time owned by a
citizen or citizens of the United States and was lawfully sailing under its flag.
2. Whether the court had jurisdiction of the offense charged in the indictment if the vessel
on board of which it was committed, at the time of the commission thereof, had no real
national character, but was possessed and held by pirates or by persons not lawfully
sailing under the flag or entitled to the protection of any government whatever.
3. Whether it made any difference as to the point of jurisdiction whether the prisoners or
any of them were citizens of the United States or that the offense was consummated not
on board of any vessel, but in the high seas.
4. Whether the burden of proof of the national character of the vessel on board of which
the offense was committed was on the United States or, under the circumstances stated in
the charge of the court, was on the prisoner.
The two first questions have been decided by this Court at its present session.
In Klintock's Case, 18 U. S. 144, it was laid down that to exclude the jurisdiction of the
courts of the United States in cases of murder or robbery committed on the high seas, the
vessel in which the offender is or to which he belongs must be, at the time, in fact as well
as in right, the property of a subject of a foreign state, and in virtue of such property,
subject at that time to his control. But if the offense be committed in a vessel not at the
time belonging to subjects of a foreign state, but in possession of persons acknowledging
obedience to no government or flag and acting in defiance of all law, it is embraced by the
Act of 30 April, 1790. It follows, therefore, that murder or robbery committed on the high
seas may be an offense cognizable by the courts of the United States although it was
committed on board of a vessel not belonging to citizens of the United States, as if she
had no national character, but was possessed and held by pirates or persons not lawfully
sailing under the flag of any foreign nation.
The third question contains two propositions, 1. as to the national character of the offender
and of the person against whom it is committed, and 2. as to the place where the offense
is committed.
In respect to the first, the Court is of opinion, and so it has been decided during the
present term, that it makes no difference whether the offender be a citizen of the United
States or not. If it be committed on board of a foreign vessel by a citizen of the United
States or on board of a vessel of the United States by a foreigner, the offender is to be
considered, pro hac vice and in respect to this subject, as belonging to the nation under
whose flag he sails. If it be committed either by a citizen or a foreigner on board of a
piratical vessel, the offense is equally cognizable by the courts of the United States under
the above mentioned law. 2. Upon this point, the Court is of opinion that it makes no
difference whether the offense was committed on board of a vessel or in the sea, as by
throwing the deceased overboard and drowning him or by shooting him when in the sea,
though he was not thrown overboard. The words of the above act of Congress are general,
and speak of certain offenses committed upon the high seas, without reference to any
vessel whatsoever on which they should be committed, and no reason is perceived why a
more restricted meaning should be given to the expressions of the law than they literally
import. In the case of Furlong, 18 U. S. 184, for the murder of Sunley, decided during the
present term of the Court, it was certified that murder committed from on board an
American vessel by a mariner sailing on board an American vessel by a foreigner on a
foreigner in a foreign vessel is within the Act of 30 April, 1790. It follows from this and the
principles laid down in Klintock's Case that the same offense committed by any person
from on board a vessel having no national character, as by throwing a person overboard
and drowning him, is within the same law.
It is stated, in the charge of the court below that it did not appear by any legal proof that
the privateers had commissions from Buenos Ayres, or any ship's papers or documents
from that government, or that they were ever recognized as ships of that nation, or of its
subjects; or who were the owners, where they resided, or when or where the privateers
were armed or equipped. But it did appear in proof that the captains and crew were chiefly
Englishmen, Frenchmen, and American citizens; that the captains were both domiciled at
Baltimore, where the family of one of them resided, and that he was by birth an American
citizen. It was also proved that the privateers were Baltimore built.
Under these circumstances, the Court is of opinion that the burden of proof of the national
character of the vessel on board of which the offense was committed was on the
prisoners.
CERTIFICATE. This cause came on to be heard on the transcript of the record of the
Circuit Court of the United States for the District of Massachusetts and on the questions on
which the judges of that court were divided in opinion, and was argued by counsel. On
consideration whereof, this Court is of opinion:
1. That the said circuit court had jurisdiction of the offense charged in the indictment,
although the vessel on board of which the offense was committed was not at the time
owned by a citizen or citizens of the United States and was not lawfully sailing under its
flag.
2. The said circuit court had jurisdiction of the offense charged in the indictment if the
vessel, on board of which it was committed had, at the time of the commission thereof, no
real national character but was possessed and held by pirates or by persons not lawfully
sailing under the flag or entitled to the protection of any government whatsoever.
3. That it made no difference, as to the point of jurisdiction, whether the prisoners or any of
them were citizens of the United States or whether the deceased was a citizen of the
United States, or that the offense was committed not on board any vessel, but on the high
seas.
4. That the burden of proof of the national character of the vessel on board of which the
offense was committed was, under the circumstances stated in the charge of the court, on
the prisoners.
Reference
https://supreme.justia.com/cases/federal/us/18/412/case.html
~Page 4 of 96~

Twining v. State 211 U.S. 78 (1908)
ERROR TO THE COURT OF ERRORS AND APPEALS OF
THE STATE OF NEW JERSEY
Syllabus
The judicial act of the highest court of a State, in authoritatively construing and enforcing
its laws, is the act of the State.
Exemption from compulsory self-incrimination in the state courts is not secured by any part
of the Federal Constitution.
There is a citizenship of the United States and a citizenship of the State which are distinct
from each other, Slaughter House Cases, 16 Wall. 36, and privileges and immunities,
although fundamental, which do not arise out of the nature and character of the National
Government, or are not specifically protected by the Federal Constitution, are attributes of
state, and not of National, citizenship.
The first eight Amendments are restrictive only of National action, and, while the
Fourteenth Amendment restrained and limited state action, it did not take up and protect
citizens of the States from action by the States as to all matters enumerated in the first
eight Amendments.
The words "due process of law," as used in the Fourteenth Amendment, are intended to
secure the individual from the arbitrary exercise of powers of government unrestrained by
the established principles of private right and distributive justice, Bank v. Okely, 4 Wheat.
235, but that does not require that he be exempted from compulsory self-incrimination in
the courts of a State that has not adopted the policy of such exemption.
Exemption from compulsory self-incrimination did not form part of the "law of the land"
prior to the separation of the colonies from the mother country, nor is it one of the
fundamental rights, immunities and privileges of citizens of the United States, or an
element of due process of law within the meaning of the Federal Constitution or the
Fourteenth Amendment thereto.
The fact that exemption from compulsory self-incrimination is specifically enumerated in
the guarantees of the Fifth Amendment tends to show that it was, and is to be, regarded as
a separate right, and not as an element of due process of law.
When a question is no longer open in this court, adverse arguments, although weighty, will
not be considered; and, under the doctrine of stare decisis, 83 U. S. 16 Wall. 36,
and Maxwell v. Dow, 176 U. S. 581, approved and followed.
Quare and not decided whether an instruction that the jury may draw an unfavorable
inference from the failure of the accused to testify in denial of evidence tending to
criminate him amounts to a violation of the privilege of immunity from self-incrimination.
74 N.J.L. 683, affirmed.
ALBERT C. TWINING and David C. Cornell, the plaintiffs in error, hereafter called the
defendants, were indicted by the grand jury of Monmouth County, in the State of New
Jersey. The indictment charged that the defendants, being directors of the Monmouth Trust
and Safe Deposit Company, knowingly exhibited a false paper to Larue Vreedenberg, an
examiner of the State Banking Department, with intent to deceive him as to the condition
of the company. Such an act is made a misdemeanor by a statute of the State (P.L. 1899,
p. 450, at 461), which is as follows:
"Every director, officer, agent or clerk of any trust company who willfully and knowingly
subscribes or makes any false statement of facts or false entries in the books of such trust
company, or knowingly subscribes or exhibits any false paper, with intent to deceive any
person authorized to examine as to the condition of such trust company, or willfully or
knowingly subscribes to or makes any false report, shall be guilty of a high misdemeanor
and punished accordingly."
The defendants were found guilty on March 1, 1904, by the verdict of a jury, and judgment
upon the verdict, that the defendants be imprisoned for six and four years respectively,
was affirmed successively by the Supreme Court and the Court of Errors and Appeals.
There needs to be stated here only such part of what occurred at the trial as will describe
the questions on which this court is authorized to pass. It appeared that, in February, 1903,
the company closed its doors. The bank examiner came at once to the place of business
for the purpose of examining the affairs of the company, and found there Twining and
Cornell, who were, respectively, president and treasurer, as well as directors. Having soon
discovered that, according to a book entry, there had been a recent payment of $44,875,
for 381 shares of stock, the examiner inquired of the defendants by what authority this had
been done, and was informed that it was done by authority of the board of directors, and
the following paper was produced to him as a record of the transaction:
"Monmouth Trust & Safe Deposit Co., Asbury Park, N.J."
"A special meeting of the board of directors of this company was held at the office of the
company on Monday, Feb. 9th, 1903."
~Page 5 of 96~
"There were present the following directors: George F. Kroehl, S. A. Patterson, G. B. M.
Harvey, A. C. Twining, D. C. Cornell."
"The minutes of the regular meeting held Jan. 15th, 1903, were read, and on motion duly
approved."
"All loans taken since the last meeting were gone over carefully, and, upon motion duly
seconded, were unanimously approved."
"A resolution that this company buy 381 shares of the stock of the First National Bank at
$44,875 was adopted."
"On motion, the meeting adjourned."
This was the paper referred to in the indictment, and it was incumbent on the prosecution
to prove that it was false and that it was "knowingly" exhibited by the defendants to the
examiner. There was evidence on the part of the prosecution tending to prove both these
propositions. The defendants called no witnesses, and did not testify themselves, although
the law of New Jersey gave them the right to do so if they chose. In his charge to the jury,
the presiding judge said:
"Now, gentlemen, was this paper false? In the first place, the paper charged in the
indictment certifies in effect that a special meeting of the board of directors of this
company was held at the office of the company on Monday, February 9, 1903. There were
present the following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C.
Twining, D. C. Cornell."
"Among other things appears a resolution of this company to buy 381 shares of the stock
of the First National Bank at $44,875, which was adopted."
"Now, was that meeting held, or not?"
"The papers says that at this meeting were present, among others, Patterson, Twining and
Cornell."
"Mr. Patterson has gone upon the stand and has testified that there was no such meeting
to his knowledge; that he was not present at any such meeting; that he had no notice of
any such meeting, and that he never acquiesced, as I understand, in any way in the
passage of a resolution for the purchase of this stock."
"Now Twining and Cornell, this paper says, were present. They are here in court, and have
seen this paper offered in evidence, and they know that this paper says that they were the
two men, or two of the men, who were present. Neither of them has gone upon the stand
to deny that they were present or to show that the meeting was held."
"Now it is not necessary for these men to prove their innocence. It is not necessary for
them to prove that this meeting was held. But the fact that they say off the stand, having
heard testimony which might be prejudicial to them, without availing themselves of the
right to go upon the stand and contradict it, is sometimes a matter of significance."
"Now, of course, in this action, I do not see how that can have much weight, because
these men deny that they exhibited the paper, and if one of these men exhibited the paper
and the other did not, I do not see how you could say that the person who claims he did
not exhibit the paper would be under any obligation at all to go upon the stand. Neither is
under any obligation. It is simply a right they have to go upon the stand, and,
consequently, the fact that they do not go upon the stand to contradict this statement in the
minutes, they both denying, through their counsel and through their plea, that they
exhibited the paper, I do not see that that can be taken as at all prejudicial to either of
them. They simply have the right to go upon the stand, and they have not availed
themselves of it, and it may be that there is no necessity for them to go there. I leave that
entirely to you."
Further, in that part of the charge relating to the exhibition of the paper to the examiner, the
judge said:
"Now gentlemen, if you believe that is so; if you believe this testimony that Cornell did
direct this man's attention to it -- Cornell has sat here and heard that testimony and has
not denied it -- nobody could misunderstand the import of that testimony, it was a direct
accusation made against him of his guilt -- if you believe that testimony beyond a
reasonable doubt, Cornell is guilty. He was not called upon to go upon the stand and deny
it, but he did not go upon the stand and deny it, and it is for you to take that into
consideration."
"Now Twining has also sat here and heard this testimony, but you will observe there is this
distinction as to the conduct of these two men in this respect: the accusation against
Cornell was specific by Vreedenberg. It is rather inferential, if at all, against Twining, and
he might say -- it is for you to say whether he might say,"
"Well, I don't think the accusation against me is made with such a degree of certainty as to
require me to deny it, and I shall not; nobody will think it strange if I do not go upon the
stand to deny it, because Vreedenberg is uncertain as to whether I was there; he won't
swear that I was there."
"So, consequently, the fact that Twining did not go upon the stand can have no
significance at all."
"You may say that the fact that Cornell did not go upon the stand has no significance. You
may say so because the circumstances may be such that there should be no inference
drawn of guilt or anything of that kind from the fact that he did not go upon the stand.
Because a man does not go upon the stand, you are not necessarily justified in drawing an
inference of guilt. But you have a right to consider the fat that he does not go upon the
stand where a direct accusation is made against him."
The question duly brought here by writ of error is whether the parts of the charge set forth,
affirmed as they were by the Court of last resort of the State, are in violation of the
Fourteenth Amendment of the Constitution of the United States.
MR. JUSTICE MOODY, after making the foregoing statement, delivered the opinion of the
court.
In the view we take of the case, we do not deem it necessary to consider whether, with
respect to the Federal question, there is any difference in the situation of the two
defendants. It is assumed, in respect of each, that the jury were instructed that they might
draw an unfavorable inference against him from his failure to testify, where it was within his
power, in denial af the evidence which tended to incriminate him. The law of the State, as
declared in the case at bar, which accords with other decisions (Parker v. State, 61 N.J.L.
308; State v. Wines, 65 N.J.L. 31; State v. Zdanowicz, 69 N.J.L. 619; State v. Banuski, 64
Atl. Rep. 994), permitted such an inference to be drawn. The judicial act of the highest
~Page 6 of 96~
court of the State, in authoritatively construing and enforcing its laws, is the act of the
State. Ex parte Virginia, 100 U. S. 339; Scott v. McNeal, 154 U. S. 34; Chicago, Burlington
& Quincy Railroad Company v. Chicago, 166 U. S. 226. The general question, therefore, is
whether such a law violates the Fourteenth Amendment either by abridging the privileges
or immunities of citizens of the United States or by depriving persons of their life, liberty or
property without due process of law. In order to bring themselves within the protection of
the Constitution, it is incumbent on the defendants to prove two propositions: first, that the
exemption from compulsory self-incrimination is guaranteed by the Federal Constitution
against impairment by the States; and, second, if it be so guaranteed, that the exemption
was, in fact, impaired in the case at bar. The first proposition naturally presents itself for
earlier consideration. If the right here asserted is not a Federal right, that is the end of the
case. We have no authority to go further and determine whether the state court has erred
in the interpretation and enforcement of its own laws.
The exemption from testimonial compulsion, that is, from disclosure as a witness of
evidence against oneself, forced by any form of legal process, is universal in American
law, though there may be differences as to its exact scope and limits. At the time of the
formation of the Union the principle that no person could be compelled to be a witness
against himself had become embodied in the common law, and distinguished it from all
other systems of jurisprudence. It was generally regarded then, as now, as a privilege of
great value, a protection to the innocent, though a shelter to the guilty, and a safeguard
against heedless, unfounded or tyrannical prosecutions. Five of the original thirteen States
(North Carolina, 1776; Pennsylvania, 1776; Virginia, 1776; Massachusetts, 1780; New
Hampshire, 1784) had then guarded the principle from legislative or judicial change by
including it in constitutions or bills of rights; Maryland had provided in her constitution
(1776) that
"no man ought to be compelled to give evidence against himself in a common court of law
or in any other court, but in such cases as have been usually practiced in this State or may
hereafter be directed by the legislature;" and in the remainder of those States, there seems
to be no doubt that it was recognized by the courts. The privilege was not included in the
Federal Constitution as originally adopted, but was placed in one of the ten Amendments
which were recommended to the States by the first Congress, and by them adopted. Since
then, all the States of the Union have, from time to time, with varying form but uniform
meaning, included the privilege in their constitutions, except the States of New Jersey and
Iowa, and in those States it is held to be part of the existing law. State v. Zdanowicz,
supra; State v. Height, 117 Iowa, 650. It is obvious from this short statement that it has
been supposed by the States that, so far as the state courts are concerned, the privilege
had its origin in the constitutions and laws of the States, and that persons appealing to it
must look to the State for their protection. Indeed, since, by the unvarying decisions of this
court, the first ten Amendments of the Federal Constitution are restrictive only of National
action, there was nowhere else to look up to the time of the adoption of the Fourteenth
Amendment, and the State, at least until then, might give modify or withhold the privilege
at its will. The Fourteenth Amendment withdrew from the States powers theretofore
enjoyed by them to an extent not yet fully ascertained, or rather, to speak more accurately,
limited those powers and restrained their exercise. There is no doubt of the duty of this
court to enforce the limitations and restraints whenever they exist, and there has been no
hesitation in the performance of the duty. But whenever a new limitation or restriction is
declared, it is a matter of grave import, since, to that extent, it diminishes the authority of
the State, so necessary to the perpetuity of our dual form of government, and changes its
relation to its people and to the Union. The question in the case at bar has been twice
before us, and been left undecided, as the cases were disposed of on other
grounds. Adams v. New York, 192 U. S. 585; Consolidated Rendering Co. v. Vermont, 207
U. S. 541. The defendants contend, in the first place, that the exemption from self-
incrimination is one of the privileges and immunities of citizens of the United States which
the Fourteenth Amendment forbids the States to abridge. It is not argued that the
defendants are protected by that part of the Fifth Amendment which provides that "no
person . . . shall be compelled in any criminal case to be a witness against himself," for it is
recognized by counsel that, by a long line of decisions, the first ten Amendments are not
operative on the States. Barron v. Baltimore, 7 Pet. 243; Spies v. Illinois, 123 U. S.
131; Brown v. New Jersey, 175 U. S. 172; Barrington v. Missouri, 205 U. S. 483. But it is
argued that this privilege is one of the fundamental rights of National citizenship, placed
under National protection by the Fourteenth Amendment, and it is specifically argued that
the "privileges and immunities of citizens of the United States," protected against state
action by that Amendment, include those fundamental personal rights which were
protected against National action by the first eight Amendments; that this was the intention
of the framers of the Fourteenth Amendment, and that this part of it would otherwise have
little or no meaning and effect. These arguments are not new to this court, and the answer
to them is found in its decisions. The meaning of the phrase "privileges and immunities of
citizens of the United States," as used in the Fourteenth Amendment, came under early
consideration in the Slaughter-House Cases, 16 Wall. 36. A statute of Louisiana created a
corporation and conferred upon it the exclusive privilege, for a term of years, of
establishing and maintaining within a fixed division of the city of New Orleans stock-yards
and slaughter-houses. The act provided that others might use these facilities for a
prescribed price, forbade the landing for slaughter or the slaughtering of animals
elsewhere or otherwise, and established a system of inspection. Those persons who were
driven out of independent business by this law denied its validity in suits which came to
this court by writs of error to the Supreme Court of the State which had sustained the act.
It was argued, inter alia, that the statute abridged the privileges and immunities of the
plaintiffs in error as citizens of the United States, and the particular privilege which was
alleged to be violated was that of pursuing freely their chosen trade, business or calling.
The majority of the court were not content with expressing the opinion that the act did not,
in fact, deprive the plaintiffs in error of their right to exercise their trade (a proposition
vigorously disputed by four dissenting justices), which would have disposed of the case,
but preferred to rest the decision upon the broad ground that the right asserted in the case
was not a privilege or immunity belonging to persons by virtue of their National citizenship,
but, if existing at all, belonging to them only by virtue of their state citizenship. The
Fourteenth Amendment, it is observed by Mr. Justice Miller, delivering the opinion of the
court, removed the doubt whether there could be a citizenship of the United States
~Page 7 of 96~
independent of citizenship of the State by recognizing or creating and defining the former.
"It is quite clear, then," he proceeds to say (p.83 U. S. 74), "that there is a citizenship of the
United States and a citizenship of a State, which are distinct from each other, and which
depend upon different characteristics or circumstances in the individual."
The description of the privileges and immunities of state citizenship, given by Mr. Justice
Washington in Corfield v. Coryell, 4 Wash. C.C. 371, is then quoted, approved and (p. 83
U. S. 76) said to include "those rights which are fundamental," to embrace "nearly every
civil right for the establishment and protection of which organized government is instituted,"
and "to be the class of rights which the state governments were created to establish and
secure." This part of the opinion then concludes with the holding that the rights relied upon
in the case are those which belong to the citizens of States as such, and are under the
sole care and protection of the state governments. The conclusion is preceded by the
important declaration that the civil rights theretofore appertaining to citizenship of the
States and under the protection of the States, were not given the security of National
protection by this clause of the Fourteenth Amendment. The exact scope and the
momentous consequence of this decision are brought into clear light by the dissenting
opinions. The view of Mr. Justice Field, concurred in by Chief Justice Chase and Justices
Swayne and Bradley, was that the fundamental rights of citizenship, which by the opinion
of the court were held to be rights of state citizenship, protected only by the state
government, became, as the result of the Fourteenth Amendment, rights of National
citizenship protected by the National Constitution. Said Mr. Justice Field (p. 83 U. S. 95):
"The fundamental rights, privileges and immunities which belong to him as a free man and
a free citizen, now belong to him as a citizen of the United States, and are not dependent
upon his citizenship of any State. . . . The Amendment does not attempt to confer any new
privileges or immunities upon citizens, or to enumerate or define those already existing. It
assumes that there are such privileges and immunities which belong of right to citizens as
such, and ordains that they shall not be abridged by state legislation. If this inhibition has
no reference to privileges and immunities of this character, but only refers, as held by the
majority of the court in their opinion, to such privileges and immunities as were before its
adoption specially designated in the Constitution or necessarily implied as belonging to
citizens of the United States, it was a vain and idle enactment, which accomplished
nothing, and most unnecessarily excited Congress and the people on its passage. With
privileges and immunities thus designated or implied, no State could ever have interfered
by its laws, and no new constitutional provision was required to inhibit such interference.
The supremacy of the Constitution and laws of the United States always controlled any
state legislation of that character. But if the Amendment refers to the natural and
inalienable rights which belong to all citizens, the inhibition has a profound significance
and consequence. "
In accordance with these principles, it is said by the learned justice that the privileges and
immunities of state citizenship described by Mr. Justice Washington, and held by the
majority of the court still to pertain exclusively to state citizenship and to be protected
solely by the state government, have been guaranteed by the Fourteenth Amendment as
privileges and immunities of citizens of the United States. And see the concurring opinions
of Mr. Justice Field and Mr. Justice Bradley in Bartemeyer v. Iowa, 18 Wall. 129, and
in Butchers' Union Company v. Crescent City Company, 111 U. S. 746. There can be no
doubt, so far as the decision in the Slaughter-House Cases has determined the question,
that the civil rights sometimes described as fundamental and inalienable, which before the
war Amendments were enjoyed by state citizenship and protected by state government,
were left untouched by this clause of the Fourteenth Amendment. Criticism of this case
has never entirely ceased, nor has it ever received universal assent by members of this
court. Undoubtedly it gave much less effect to the Fourteenth Amendment than some of
the public men active in framing it intended, and disappointed many others. On the other
hand, if the views of the minority had prevailed, it is easy to see how far the authority and
independence of the States would have been diminished by subjecting all their legislative
and judicial acts to correction by the legislative and review by the judicial branch of the
National Government. But we need not now inquire into the merits of the original dispute.
This part, at least, of the Slaughter-House Cases has been steadily adhered to by this
court, so that it was said of it, in a case where the same clause of the Amendment was
under consideration (Maxwell v. Dow, 176 U. S. 581,176 U. S. 591), "The opinion upon the
matters actually involved and maintained by the judgment in the case has never been
doubted or overruled by any judgment of this court."
The distinction between National and state citizenship and their respective privileges there
drawn has come to be firmly established. And so it was held that the right of peaceable
assembly for a lawful purpose (it not appearing that the purpose had any reference to the
National Government) was not a right secured by the Constitution of the United States,
although it was said that the right existed before the adoption of the Constitution of the
United States, and that "it is and always has been one of the attributes of citizenship under
a free government." United States v. Cruikshank, 92 U. S. 542, 92 U. S. 551. And see
Hodges v. United States, 203 U. S. 1. In each case, the Slaughter-House Cases were cited
by the court, and in the latter case, the rights described by Mr. Justice Washington were
again treated as rights of state citizenship under state protection. If then it be assumed,
without deciding the point, that an exemption from compulsory self-incrimination is what is
described as a fundamental right belonging to all who live under a free government, and
incapable of impairment by legislation or judicial decision, it is, so far as the States are
concerned, a fundamental right inherent in state citizenship, and is a privilege or immunity
of that citizenship only. Privileges and immunities of citizens of the United States, on the
other hand, are only such as arise out of the nature and essential character of the National
Government, or are specifically granted or secured to all citizens or persons by the
Constitution of the United States. Slaughter-House Cases, supra, p. 83 U. S. 79; In re
Kemmler, 136 U. S. 436,136 U. S. 448; Duncan v. Missouri, 152 U. S. 377, 152 U. S. 382.
Thus, among the rights and privileges of National citizenship recognized by this court are
the right to pass freely from State to State, Crandall v. Nevada, 6 Wall. 35; the right to
petition Congress for a redress of grievances, United States v. Cruikshank, supra; the right
to vote for National officers, Ex parte Yarbrough, 110 U. S. 651; Wiley v. Sinkler, 179 U. S.
58; the right to enter the public lands, United States v. Waddell, 112 U. S. 76; the right to
~Page 8 of 96~
be protected against violence while in the lawful custody of a United States
marshal, Logan v. United States, 144 U. S. 263, and the right to inform the United States
authorities of violation of its laws, In re Quarles, 158 U. S. 532.
Most of these cases were indictments against individuals for conspiracies to deprive
persons of rights secured by the Constitution of the United States, and met with a different
fate in this court from the indictments in United States v. Cruikshank and Hodges v. United
States, because the rights in the latter cases were rights of state, and not of National,
citizenship. But assuming it to be true that the exemption from self-incrimination is not, as
a fundamental right of National citizenship, included in the privileges and immunities of
citizens of the United States, counsel insist that, as a right specifically granted or secured
by the Federal Constitution, it is included in them. This view is based upon the contention
which must now be examined, that the safeguards of personal rights which are
enumerated in the first eight Articles of amendment to the Federal Constitution, sometimes
called the Federal Bill of Rights, though they were by those Amendments originally
secured only against National action, are among the privileges and immunities of citizens
of the United States, which this clause of the Fourteenth Amendment protects against
state action. This view has been, at different times, expressed by justices of this court (Mr.
Justice Field in O'Niel v. Vermont, 144 U. S. 323, 144 U. S. 361; Mr. Justice Harlan in the
same case, 144 U. S. 370, and in Maxwell v. Dow, 176 U. S. 606, 176 U. S. 617), and was
undoubtedly that entertained by some of those who framed the Amendment. It is, however,
not profitable to examine the weighty arguments in its favor, for the question is no longer
open in this court.
The right of trial by jury in civil cases, guaranteed by the Seventh Amendment (Walker v.
Sauvinet, 92 U. S. 90), and the right to bear arms guaranteed by the Second Amendment
(Presser v. Illinois, 116 U. S. 252), have been distinctly held not to be privileges and
immunities of citizens of the United States guaranteed by the Fourteenth Amendment
against abridgment by the State, and, in effect, the same decision was made in respect of
the guarantee against prosecution, except by indictment of a grand jury, contained in the
Fifth Amendment (Hurtado v. California, 110 U. S. 516), and in respect of the right to be
confronted with witnesses, contained in the Sixth Amendment. West v. Louisiana, 194 U.
S. 258. In Maxwell v. Dow, supra, where the plaintiff in error had been convicted in a state
court of a felony upon an information, and by a jury of eight persons, it was held that the
indictment, made indispensable by the Fifth Amendment, and the trial by jury guaranteed
by the Sixth Amendment, were not privileges and immunities of citizens of the United
States, as those words were used in the Fourteenth Amendment. The discussion in that
case ought not to be repeated. All the arguments for the other view were considered and
answered, the authorities were examined and analyzed, and the decision rested upon the
ground that this clause of the Fourteenth Amendment did not forbid the States to abridge
the personal rights enumerated in the first eight Amendments, because those rights were
not within the meaning of the clause "privileges and immunities of citizens of the United
States." If it be possible to render the principle which governed the decision more clear, it
is done so by the dissent of Mr. Justice Harlan. We conclude, therefore, that the exemption
from compulsory self-incrimination is not a privilege or immunity of National citizenship
guaranteed by this clause of the Fourteenth Amendment against abridgment by the States.
The defendants, however, do not stop here. They appeal to another clause of the
Fourteenth Amendment, and insist that the self-incrimination, which they allege the
instruction to the jury compelled, was a denial of due process of law. This contention
requires separate consideration, for it is possible that some of the personal rights
safeguarded by the first eight Amendments against National action may also be
safeguarded against state action, because a denial of them would be a denial of due
process of law. Chicago, Burlington & Quincy Railroad v. Chicago, 166 U. S. 226. If this is
so, it is not because those rights are enumerated in the first eight Amendments, but
because they are of such a nature that they are included in the conception of due process
of law. Few phrases of the law are so elusive of exact apprehension as this. Doubtless the
difficulties of ascertaining its connotation have been increased in American jurisprudence,
where it has been embodied in constitutions and put to new uses as a limit on legislative
power. This court has always declined to give a comprehensive definition of it, and has
preferred that its full meaning should be gradually ascertained by the process of inclusion
and exclusion in the course of the decisions of cases as they arise. There are certain
general principles well settled, however, which narrow the field of discussion and may
serve as helps to correct conclusions. These principles grow out of the proposition,
universally accepted by American courts on the authority of Coke, that the words "due
process of law" are equivalent in meaning to the words "law of the land," contained in that
chapter of Magna Carta, which provides that "no freeman shall be taken, or imprisoned, or
disseised, or outlawed, or exiled, or any wise destroyed; nor shall we go upon him, nor
send upon him, but by the lawful judgment of his peers or by the law of the land."
Murray v. Hoboken Land Co., 18 How. 272; Davidson v. New Orleans, 96 U. S. 97; Jones
v. Robbins, 8 Gray, 329; Cooley, Const.Lim. (7th ed.), 500; McGehee, Due Process of Law,
16. From the consideration of the meaning of the words in the light of their historical origin,
this court has drawn the following conclusions:
First. What is due process of law may be ascertained by an examination of those settled
usages and modes of proceedings existing in the common and statute law of England
before the emigration of our ancestors, and shown not to have been unsuited to their civil
and political condition by having been acted on by them after the settlement of this country.
This test was adopted by the court, speaking through Mr. Justice Curtis, in Murray v.
Hoboken Land Co., 18 How. 272, 59 U. S. 280 (approved in Hallinger v. Davis, 146 U. S.
314, 146 U. S. 320; Holden v. Hardy, 169 U. S. 366, 169 U. S. 390, but see Lowe v.
Kansas, 163 U. S. 81, 163 U. S. 85). Of course, the part of the Constitution then before the
court was the Fifth Amendment. If any different meaning of the same words, as they are
used in the Fourteenth Amendment, can be conceived, none has yet appeared in judicial
decision. "A process of law," said Mr. Justice Matthews, commenting on this statement of
Mr. Justice Curtis,
"which is not otherwise forbidden, must be taken to be due process of law, if it can show
the sanction of settled usage both in England and this country."
~Page 9 of 96~
Hurtado v. California, 110 U. S. 516, 110 U. S. 528.
Second. It does not follow, however, that a procedure settled in English law at the time of
the emigration, and brought to this country and practiced by our ancestors, is an essential
element of due process of law. If that were so, the procedure of the first half of the
seventeenth century would be fastened upon the American jurisprudence like a
straightjacket, only to be unloosed by constitutional amendment. That, said Mr. Justice
Matthews, in the same case, p. 110 U. S. 529, "would be to deny every quality of the law
but its age, and to render it incapable of progress or improvement." Holden v. Hardy,169 U.
S. 366, 169 U. S. 388; Brown v. New Jersey, 175 U. S. 172, 175 U. S. 175.
Third. But, consistently with the requirements of due process, no change in ancient
procedure can be made which disregards those fundamental principles, to be ascertained
from time to time by judicial action, which have relation to process of law and protect the
citizen in his private right, and guard him against the arbitrary action of government. This
idea has been many times expressed in differing words by this court, and it seems well to
cite some expressions of it. The words due process of law
"were intended to secure the individual from the arbitrary exercise of the powers of
government, unrestrained by the established principles of private rights and distributive
justice."
Bank of Columbia v. Okely, 4 Wh. 235, 17 U. S. 244 (approved in Hurtado v.
California, 110 U. S. 516, 110 U. S. 527; Leeper v. Texas, 139 U. S. 462, 139 U. S.
468; Scott v. McNeal, 154 U. S. 34, 154 U. S. 45).
"This court has never attempted to define with precision the words 'due process of law.' . . .
It is sufficient to say that there are certain immutable principles of justice which inhere in
the very idea of free government which no member of the Union may disregard."
Holden v. Hardy, 169 U. S. 366, 169 U. S. 389.
"The same words refer to that law of the land in each State, which derives its authority
from the inherent and reserved powers of the State, exerted within the limits of those
fundamental principles of liberty and justice which lie at the base of all our civil and political
institutions."
In re Kemmler, 136 U. S. 436, 136 U. S. 448.
"The limit of the full control which the State has in the proceedings of its courts, both in civil
and criminal cases, is subject only to the qualification that such procedure must not work a
denial of fundamental rights or conflict with specific and applicable provisions of the
Federal Constitution."
West v. Louisiana, 194 U. S. 258, 194 U. S. 263.
The question under consideration may first be tested by the application of these settled
doctrines of this court. If the statement of Mr. Justice Curtis, as elucidated in Hurtado v.
California, is to be taken literally, that alone might almost be decisive. For nothing is more
certain, in point of historical fact, than that the practice of compulsory self-incrimination in
the courts and elsewhere existed for four hundred years after the granting of Magna Carta,
continued throughout the reign of Charles I (though then beginning to be seriously
questioned), gained at least some foothold among the early colonists of this country, and
was not entirely omitted at trials in England until the eighteenth century. Wigmore on
Evidence, 2250 (see, for the Colonies, note 108); Hallam's Constitutional History of
England, ch. VIII, 2 Widdleton's American ed., 37 (describing the criminal jurisdiction of the
Court of Star Chamber); Bentham's Rationale of Judicial Evidence, book IX, ch. III, IV.
Sir James Fitzjames Stephen, in his studies of the reports of English trials for crime, has
thrown much light on the existence of the practice of questioning persons accused of crime
and its gradual decay. He considers, first, a group of trials which occurred between 1554
and 1637. Speaking of the trial before the jury, he says:
"The prisoner, in nearly every instance, asked, as a favor, that he might not be
overpowered by the eloquence of counsel denouncing him in a set speech, but, in
consideration of the weakness of his memory, might be allowed to answer separately to
the different matters which might be alleged against him. This was usually granted, and the
result was that the trial became a series of excited altercations between the prisoner and
the different counsel opposed to him. Every statement of counsel operated as a question
to the prisoner, and indeed they were constantly thrown into the form of questions, the
prisoner either admitting or denying or explaining what was alleged against him. The result
was that, during the period in question, the examination of the prisoner, which is at present
scrupulously and I think even pedantically avoided, was the very essence of the trial, and
his answers regulated the production of the evidence; the whole trial, in fact, was a long
argument between the prisoner and counsel for the Crown, in which they questioned each
other and grappled with each other's arguments with the utmost eagerness and closeness
of reasoning."
Stephen, 1 Hist. of the Crim.Law 325.
This description of the questioning of the accused and the meeting of contending
arguments finds curious confirmation in the report of the trial, in 1637, of Ann Hutchinson
(which resulted in banishment) for holding and encouraging certain theological views
which were not approved by the majority of the early Massachusetts rulers. 1 Hart's
American History Told by Contemporaries 382. The trial was presided over and the
examination very largely conducted by Governor Winthrop, who had been for some years
before his emigration an active lawyer and admitted to the Inner Temple. An examination
of the report of this trial will show that he was not aware of any privilege against self-
incrimination or conscious of any duty to respect it. Stephen says of the trials between
1640 and 1660 (Ib., 358):
"In some cases, the prisoner was questioned, but never to any greater extent than that
which it is practically impossible to avoid when a man has to defend himself without
counsel. When so questioned, the prisoners usually refused to answer."
He further says (Ib., 440): "Soon after the Revolution of 1688, the practice of questioning
the prisoner died out." But committing magistrates were authorized to take the examination
of persons suspected, which, if not under oath, was admissible against him on his trial,
until, by the 11 & 12 Vict., ch. 2, the prisoner was given the option whether he would
speak, and warned that what he said might be used against him. But even now, there
~Page 10 of 96~
seems to be a very well recognized and important exception in English law to the rule that
no person can be compelled to furnish evidence against himself. A practice in bankruptcy
has existed from ancient times, and still exists, which would not be constitutionally possible
under our national bankruptcy law or under the insolvency law of any State whose
constitution contains the customary prohibition of compulsory self-incrimination. The
Bankruptcy Act of 1 James I, ch. 15, 7 (1603), authorized the commissioners of
bankruptcy to compel, by commitment if necessary, the bankrupt to submit to an
examination touching his estate and dealings. The provision was continued in the
subsequent acts, and in 1820, in Ex parte Cossens, Buck, Bkey. Cases, 531, 540, Lord
Eldon, in the course of a discussion of the right to examine a bankrupt, held that he could
be compelled to disclose his violations of law in respect of his trade and estate, and, while
recognizing the general principle of English law that no one could be compelled to
incriminate himself, said: "I have always understood the proposition to admit of a
qualification with respect to the jurisdiction in bankruptcy." The act of 6 Geo. IV, ch. 16,
36 (1825), authorized the compulsory examination of the bankrupt "touching all matters
relating either to his trade, dealings, or estate, or which may tend to disclose any secret
grant, conveyance or concealment of his lands." The act of 12 & 13 Vict., ch. 106, 117
(1849), contained the same provision. Construing these acts, it was held that the bankrupt
must answer, though his answer might furnish evidence of his crime, and even if an
indictment were pending against him, and that the evidence thus compelled was
admissible on his trial for crime. Re Heath, 2 D. & Ch. 214; Re Smith, 2 D. & Ch. 230,
235; Reg. v. Scott, Dearsley & Bell, 47; Reg. v. Cross, 7 Cox C.C. 226; Reg. v.
Widdop, L.R. 2 C.C. R. 3. The act of 46 & 47 Vict., ch. 52, 17 (1883), which we
understand to be (with some amendment not material here) the present law, passed after
the decisions cited, expressly provided that the examination shall be taken in writing and
signed by the debtor, "and may thereafter be used in evidence against him." It has since
been held that other evidence of his testimony than that written and signed by him may be
used. Reg. v. Erdheim (1896), 2 Q.B.D. 260, and see Rex v. Pike (1902), 1 K.B. 552. * It is
to be observed that not until 1883 did Parliament, which has an unlimited legislative power,
expressly provide that the evidence compelled from the bankrupt could be used in proof of
an indictment against him. The rule had been previously firmly established by judicial
decisions upon statutes simply authorizing a compulsory examination. If the rule had been
thought to be in conflict with "the law of the land" of Magna Carta, "a sacred text, the
nearest approach to an irrepealable, fundamental statute' that England has ever had," 1
Pollock & Maitland, 152, it is inconceivable that such a consideration would not have
received some attention from counsel and judges. We think it is manifest, from this review
of the origin, growth, extent and limits of the exemption from compulsory self-incrimination
in the English law, that it is not regarded as a part of the law of the land of Magna Carta or
the due process of law, which
has been deemed an equivalent expression, but, on the contrary, is regarded as separate
from and independent of due process. It came into existence not as an essential part of
due process, but as a wise and beneficent rule of evidence developed in the course of
judicial decision. This is a potent argument when it is remembered that the phrase was
borrowed from English law, and that to that law we must look at least for its primary
meaning.
But without repudiating or questioning the test proposed by Mr. Justice Curtis for the court,
or rejecting the inference drawn from English law, we prefer to rest our decision on broader
grounds, and inquire whether the exemption from self-incrimination is of such a nature that
it must be included in the conception of due process. Is it a fundamental principle of liberty
and justice which inheres in the very idea of free government and is the inalienable right of
a citizen of such a government? If it is, and if it is of a nature that pertains to process of
law, this court has declared it to be essential to due process of law. In approaching such a
question, it must not be forgotten that, in a free representative government, nothing is
more fundamental than the right of the people through their appointed servants to govern
themselves in accordance with their own will, except so far as they have restrained
themselves by constitutional limits specifically established, and that, in our peculiar dual
form of government, nothing is more fundamental than the full power of the State to order
its own affairs and govern its own people, except so far as the Federal Constitution
expressly or by fair implication has withdrawn that power. The power of the people of the
States to make and alter their laws at pleasure is the greatest security for liberty and
justice, this court has said in Hurtado v. California, supra. We are not invested with the
jurisdiction to pass upon the expediency, wisdom or justice of the laws of the States as
declared by their courts, but only to determine their conformity with the Federal
Constitution and the paramount laws enacted pursuant to it. Under the guise of interpreting
the Constitution we must take care that we do not import into the discussion our own
personal views of what would be wise, just and fitting rules of government to be adopted
by a free people and confound them with constitutional limitations. The question before us
is the meaning of a constitutional provision which forbids the States to deny to any person
due process of law. In the decision of this question, we have the authority to take into
account only those fundamental rights which are expressed in that provision, not the rights
fundamental in citizenship, state or National, for they are secured otherwise, but the rights
fundamental in due process, and therefore an essential part of it. We have to consider
whether the right is so fundamental in due process that a refusal of the right is a denial of
due process. One aid to the solution of the question is to inquire how the right was rated
during the time when the meaning of due process was in a formative state and before it
was incorporated in American constitutional law. Did those who then were formulating and
insisting upon the rights of the people entertain the view that the right was so fundamental
that there could be no due process without it? It has already appeared that, prior to the
formation of the American Constitutions, in which the exemption from compulsory self-
incrimination was specifically secured, separately, independently, and side by side with the
requirement of due process, the doctrine was formed, as other doctrines of the law of
evidence have been formed, by the course of decision in the courts covering a long period
of time. Searching further, we find nothing to show that it was then thought to be other than
a just and useful principle of law. None of the great instruments in which we are
accustomed to look for the declaration of the fundamental rights made reference to it. The
privilege was not dreamed of for hundreds of years after Magna Carta (1215), and could
~Page 11 of 96~
not have been implied in the "law of the land" there secured. The Petition of Right (1629),
though it insists upon the right secured by Magna Carta to be condemned only by the law
of the land, and sets forth by way of grievance divers violations of it, is silent upon the
practice of compulsory self-incrimination, though it was then a matter of common
occurrence in all the courts of the realm. The Bill of Rights of the first year of the reign of
William and Mary (1689) is likewise silent, though the practice of questioning the prisoner
at his trial had not then ceased. The negative argument which arises out of the omission of
all reference to any exemption from compulsory self-incrimination in these three great
declarations of English liberty (though it is not supposed to amount to a demonstration) is
supported by the positive argument that the English Courts and Parliaments, as we have
seen, have dealt with the exemption as they would have dealt with any other rule of
evidence, apparently without a thought that the question was affected by the law of the
land of Magna Carta, or the due process of law which is its equivalent.
We pass by the meager records of the early colonial time, so far as they have come to our
attention, as affording light too uncertain for guidance. See Wigmore, 2250, note 108; 2
Hennings St. at Large, 422 (Va. 1677); 1 Winthrop's History of New England, 47, Provincial
Act, 4 W. & M. Ancient Charters, Massachusetts, 214. Though it is worthy of note that
neither the declaration of rights of the Stamp Act Congress (1765) nor the declaration of
rights of the Continental Congress (1774) nor the ordinance for the government of the
Northwestern Territory included the privilege in their enumeration of fundamental rights.
But the history of the incorporation of the privilege in an amendment to the National
Constitution is full of significance in this connection. Five States, Delaware, Pennsylvania,
New Jersey, Georgia and Connecticut, ratified the Constitution without proposing
amendments. Massachusetts then followed with a ratification, accompanied by a
recommendation of nine amendments, none of which referred to the privilege; Maryland
with a ratification without proposing amendments; South Carolina with a ratification
accompanied by a recommendation of four amendments, none of which referred to the
privilege, and New Hampshire with a ratification accompanied by a recommendation of
twelve amendments, none of which referred to the privilege. The nine States requisite to
put the Constitution in operation ratified it without a suggestion of incorporating this
privilege. Virginia was the tenth State to ratify, proposing, by separate resolution, an
elaborate Bill of Rights under twenty heads, and in addition twenty amendments to the
body of the Constitution. Among the rights enumerated as "essential and inalienable" is
that no man "can be compelled to give evidence against himself," and "no freeman ought
to be deprived of his life, liberty or property but by the law of the land." New York ratified
with a proposal of numerous amendments and a declaration of rights which the convention
declared could not be violated and were consistent with the Constitution. One of these
rights was that
"No person ought to be taken, imprisoned or deprived of his freehold, or be exiled or
deprived of his privileges, franchises, life, liberty or property but by due process of law;"
and another was that, "in all criminal prosecutions, the accused . . . should not be
compelled to give evidence against himself." North Carolina and Rhode Island were the
last to ratify, each proposing a large number of amendments, including the provision that
no man "can be compelled to give evidence against himself;" and North Carolina, that "no
freeman ought to be . . . deprived of his life, liberty or property but by the law of the land;"
and Rhode Island, that "no freeman ought to be . . . deprived of his life, liberty or property
but by the trial by jury, or by the law of the land."
Thus, it appears that four only of the thirteen original States insisted upon incorporating the
privilege in the Constitution, and they separately and simultaneously with the requirement
of due process of law, and that three States proposing amendments were silent upon this
subject. It is worthy of note that two of these four States did not incorporate the privilege in
their own constitutions, where it would have had a much wider field of usefulness, until
many years after. New York in 1821 and Rhode Island in 1842 (its first constitution). This
survey does not tend to show that it was then in this country the universal or even general
belief that the privilege ranked among the fundamental and inalienable rights of mankind,
and, what is more important here, it affirmatively shows that the privilege was not
conceived to be inherent in due process of law, but, on the other hand, a right separate,
independent and outside of due process. Congress, in submitting the amendments to the
several States, treated the two rights as exclusive of each other. Such also has been the
view of the States in framing their own constitutions, for in every case, except in New
Jersey and Iowa, where the due process clause or its equivalent is included, it has been
thought necessary to include separately the privilege clause. Nor have we been referred to
any decision of a state court save one (State v. Height, 117 Iowa, 650), where the
exemption has been held to be required by due process of law. The inference is irresistible
that it has been the opinion of constitution makers that the privilege, if fundamental in any
sense, is not fundamental in due process of law, nor an essential part of it. We believe that
this opinion is proved to have been correct by every historical test by which the meaning of
the phrase can be tried.
The decisions of this court, though they are silent on the precise question before us, ought
to be searched to discover if they present any analogies which are helpful in its decision.
The essential elements of due process of law, already established by them, are singularly
few, though of wide application and deep significance. We are not here concerned with the
effect of due process in restraining substantive laws, as, for example, that which forbids
the taking of private property for public use without compensation. We need notice now
only those cases which deal with the principles which must be observed in the trial of
criminal and civil causes. Due process requires that the court which assumes to determine
the rights of parties shall have jurisdiction, Pennoyer v. Neff, 95 U. S. 714, 95 U. S.
733; Scott v. McNeal, 154 U. S. 34; Old Wayne Life Association v. McDonough, 204 U. S.
8, and that there shall be notice and opportunity for hearing given the parties, Hovey v.
Elliott, 167 U. S. 409; Roller v. Holly, 176 U. S. 398, and see Londoner v. Denver, 210 U. S.
373. Subject to these two fundamental conditions, which seem to be universally prescribed
in all systems of law established by civilized countries, this court has up to this time
sustained all state laws, statutory or judicially declared, regulating procedure, evidence
and methods of trial, and held them to be consistent with due process of law. Walker v.
~Page 12 of 96~
Sauvinet, 92 U. S. 90; Re Converse, 137 U. S. 624; Caldwell v. Texas, 137 U. S.
692; Leeper v. Texas, 139 U. S. 462; Hallinger v. Davis, 146 U. S. 314; McNulty v.
California, 149 U. S. 645; McKane v. Durston, 153 U. S. 684; Iowa Central v. Iowa, 160 U.
S. 389; Lowe v. Kansas, 163 U. S. 81; Allen v. Georgia, 166 U. S. 138; Hodgson v.
Vermont, 168 U. S. 262; Brown v. New Jersey, 175 U. S. 172; Bollin v. Nebraska, 176 U.
S. 83; Maxwell v. Dow, 176 U. S. 581; Simon v. Craft, 182 U. S. 427; West v.
Louisiana, 194 U. S. 258; Marvin v. Trout, 199 U. S. 212; Rogers v. Peck, 199 U. S.
425; Howard v. Kentucky, 200 U. S. 164; Rawlins v. Georgia, 201 U. S. 638; Felts v.
Murphy, 201 U. S. 123.
Among the most notable of these decisions are those sustaining the denial of jury trial both
in civil and criminal cases, the substitution of informations for indictments by a grand jury,
the enactment that the possession of policy slips raises a presumption of illegality, and the
admission of the deposition of an absent witness in a criminal case. The cases proceed
upon the theory that, given a court of justice which has jurisdiction and acts not arbitrarily,
but in conformity with a general law, upon evidence, and after inquiry made with notice to
the parties affected and opportunity to be heard, then all the requirements of due process,
so far as it relates to procedure in court and methods of trial and character and effect of
evidence, are complied with. Thus, it was said in Iowa Central v. Iowa, 160 U. S. 393:
"But it is clear that the Fourteenth Amendment in no way undertakes to control the power
of the State to determine by what process legal rights may be asserted or legal obligations
be enforced, provided the method of procedure adopted gives reasonable notice and
affords fair opportunity to be heard before the issues are decided;"
and in Louisville & Nashville Railroad Company v. Schmidt, 177 U. S. 230, 177 U. S. 236:
"It is no longer open to contention that the due process clause of the Fourteenth
Amendment to the Constitution of the United States does not control mere forms of
procedure in state courts or regulate practice therein. All its requirements are complied
with, provided in the proceedings which are claimed not to have been due process of law
the person condemned has had sufficient notice and adequate opportunity has been
afforded him to defend;"
and in Hooker v. Los Angeles, 188 U. S. 314, 188 U. S. 318:
"The Fourteenth Amendment does not control the power of a State to determine the form
of procedure by which legal rights may be ascertained, if the method adopted gives
reasonable notice and affords a fair opportunity to be heard;"
and in Rogers v. Peck, 199 U. S. 435:
"Due process of law, guaranteed by the Fourteenth Amendment, does not require the
State to adopt a particular form of procedure, so long as it appears that the accused has
had sufficient notice of the accusation and an adequate opportunity to defend himself in
the prosecution."
It is impossible to reconcile the reasoning of these cases and the rule which governed their
decision with the theory that an exemption from compulsory self-incrimination is included
in the conception of due process of law. Indeed, the reasoning for including indictment by a
grand jury and trial by a petit jury in that conception, which has been rejected by this court
in Hurtado v. California and Maxwell v. Dow, was historically and in principle much
stronger. Clearly appreciating this, Mr. Justice Harlan, in his dissent in each of these
cases, pointed out that the inexorable logic of the reasoning of the court was to allow the
States, so far as the Federal Constitution was concerned, to compel any person to be a
witness against himself. In Missouri v. Lewis, 101 U. S. 22, Mr. Justice Bradley, speaking
for the whole court, said, in effect, that the Fourteenth Amendment would not prevent a
State from adopting or continuing the civil law instead of the common law. This dictum has
been approved and made an essential part of the reasoning of the decision in Holden v.
Hardy, 169 U. S. 387, 169 U. S. 389, and Maxwell v. Dow, 176 U. S. 598. The statement
excludes the possibility that the privilege is essential to due process, for it hardly need be
said that the interrogation of the accused at his trial is the practice in the civil law.
Even if the historical meaning of due process of law and the decisions of this court did not
exclude the privilege from it, it would be going far to rate it as an immutable principle of
justice which is the inalienable possession of every citizen of a free government. Salutary
as the principle may seem to the great majority, it cannot be ranked with the right to
hearing before condemnation, the immunity from arbitrary power not acting by general
laws, and the inviolability of private property. The wisdom of the exemption has never been
universally assented to since the days of Bentham; many doubt it today, and it is best
defended not as an unchangeable principle of universal justice, but as a law proved by
experience to be expedient. See Wigmore, 2251. It has no place in the jurisprudence of
civilized and free countries outside the domain of the common law, and it is nowhere
observed among our own people in the search for truth outside the administration of the
law. It should, must and will be rigidly observed where it is secured by specific
constitutional safeguards, but there is nothing in it which gives it a sanctity above and
before constitutions themselves. Much might be said in favor of the view that the privilege
was guaranteed against state impairment as a privilege and immunity of National
citizenship, but, as has been shown, the decisions of this court have foreclosed that view.
There seems to be no reason whatever, however, for straining the meaning of due process
of law to include this privilege within it, because, perhaps, we may think it of great value.
The States had guarded the privilege to the satisfaction of their own people up to the
adoption of the Fourteenth Amendment. No reason is perceived why they cannot continue
to do so. The power of their people ought not to be fettered, their sense of responsibility
lessened, and their capacity for sober and restrained self-government weakened by forced
construction of the Federal Constitution. If the people of New Jersey are not content with
the law as declared in repeated decisions of their courts, the remedy is in their own hands.
They may, if they choose, alter it by legislation, as the people of Maine did when the courts
of that State made the same ruling. State v. Bartlett, 55 Maine 200; State v.Lawrence, 57
Maine 574; State v. Cleaves, 59 Maine 298; State v. Banks, 78 Maine 490, 492; Rev.Stat.
ch. 135, 19.
We have assumed only for the purpose of discussion that what was done in the case at
bar was an infringement of the privilege against self-incrimination. We do not intend,
however, to lend any countenance to the truth of that assumption. The courts of New
Jersey, in adopting the rule of law which is complained of here, have deemed it consistent
with the privilege itself, and not a denial of it. The reasoning by which this view is
~Page 13 of 96~
supported will be found in the cases cited from New Jersey and Maine, and see Reg. v.
Rhodes (1899), 1 Q.B. 77; Ex parte Kops (1894), A.C. 650. The authorities upon the
question are in conflict. We do not pass upon the conflict, because, for the reasons given,
we think that the exemption from compulsory self-incrimination in the courts of the States
is not secured by any part of the Federal Constitution.
Judgment affirmed.
* I In certain offenses, which may be generally described as embezzlements, the evidence
compelled from a bankrupt cannot be used against him. 24 & 25 Vict., ch. 96, 85; 53 &
54 Vict., ch. 71, 27.
MR JUSTICE HARLAN dissenting.
I feel constrained by a sense of duty to express my nonconcurrence in the action of the
court in this present case.
Twining and Cornell were indicted for a criminal offense in a New Jersey court, and, having
been found guilty by a jury, were sentenced, respectively, to imprisonment for six and
Page 211 U. S. 115
four years. The judgment of conviction was affirmed, first in the Supreme Court of the
State, afterwards in the Court of Errors and Appeals. The case was brought here for
review, and the accused assigned for error that the mode of proceeding during the trial
was such as to deny them a right secured by the Constitution of the United States, namely,
the right of an accused not to be compelled to testify against himself.
Upon this point, the court, in the opinion just delivered, says:
"We have assumed, only for the purpose of discussion, that what was done in the case at
bar was an infringement of the privilege against self-incrimination."
But the court takes care to add immediately:
"We do not intend, however, to lend any countenance to the truth of that assumption. The
courts of New Jersey, in adopting the rule of law which is complained of here, have
deemed it consistent with the privilege itself."
It seems to me that the first inquiry on this writ of error should have been whether, upon
the record before us, that which was actually done in the trial court amounted, in law, to a
violation of that privilege. If the court was not prepared to hold, upon the record before it,
that the privilege of immunity from self-incrimination had been actually violated, then, I
submit, it ought not to have gone further and held it to be competent for a State, despite
the granting of immunity from self-incrimination by the Federal Constitution, to compel one
accused of crime to be a witness against himself. Whether a State is forbidden by the
Constitution of the United States to violate the principle of immunity from self-incrimination
is a question which it is clearly unnecessary to decide now, unless what was, in fact, done
at the trial was inconsistent with that immunity. But, although expressly declaring that it will
not lend any countenance to the truth of the assumption that the proceedings below were
in disregard of the maxim, Nemo tenetur seipsum accusare, and without saying whether
there was, in fact, any substantial violation of the privilege of immunity from self-
incrimination, the court, for the purpose only of discussion, has entered upon the academic
inquiry whether a State may, without violating the Constitution of the United States, compel
one accused of crime to be a witness against himself -- a question of vast moment, one of
such transcendent importance that a court ought not to decide it unless the record before it
requires that course to be adopted. It is entirely consistent with the opinion just delivered
that the court thinks that what is complained of as having been done at the trial of the
accused was not, in law, an infringement of the privilege of immunity from self-
incrimination. Yet, as stated, the court, in its wisdom, has forborne to say whether, in its
judgment, that privilege was, in fact, violated in the state court, but, simply for the purpose
of discussion, has proceeded on the assumption that the privilege was disregarded at the
trial.
As a reason why it takes up first the question of the power of a State, so far as the Federal
Constitution is concerned, to compel self-incrimination, the court says that, if the right here
asserted is not a Federal right, that is an end of the case, and it must not go further. It
would, I submit, have been more appropriate to say that, if no ground whatever existed,
under the facts disclosed by the record, to contend that a Federal right had been violated,
this court would be without authority to go further and express its opinion on an abstract
question relating to the powers of the State under the Constitution.
What I have suggested as to the proper course of procedure in this court is supported by
our action in Shoener v. Pennsylvania, 207 U. S. 188, 207 U. S. 195. That was a criminal
case, brought here from the Supreme Court of Pennsylvania -- the accused, who was
convicted, insisting that the proceeding against him in the state court was in violation of the
clause of the Federal Constitution declaring that no person shall be subject for the same
offense to be twice put in jeopardy of life or limb. Upon looking into the record of that case,
we found that the accused had not been, previously, put in legal jeopardy for the same
offense. We went no further, but dismissed the writ of error, declining to consider the grave
constitutional question pressed upon our attention, namely, whether the jeopardy clause of
the Federal Constitution operated as a restraint upon the States in the execution of their
criminal laws. But as a different course has been pursued in this case, I must of necessity
consider the sufficiency of the grounds upon which the court bases its present judgment of
affirmance.
The court, in its consideration of the relative rights of the United States and of the several
States, holds in this case that, without violating the Constitution of the United States, a
State can compel a person accused of crime to testify against himself. In my judgment,
immunity from self-incrimination is protected against hostile state action not only by that
clause in the Fourteenth Amendment declaring that "no State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States," but by
the clause, in the same Amendment, "nor shall any State deprive any person of life, liberty
or property, without due process of law." No argument is needed to support the proposition
that, whether manifested by statute or by the final judgment of a court, state action, if liable
to the objection that it abridges the privileges or immunities of National citizenship, must
~Page 14 of 96~
also be regarded as wanting in the due process of law enjoined by the Fourteenth
Amendment when such state action substantially affects life, liberty or property.
At the time of the adoption of the Fourteenth Amendment, immunity from self-incrimination
was one of the privileges or immunities belonging to citizens, for the reason that the Fifth
Amendment, speaking in the name of the People of the United States, had declared, in
terms, that no person "shall be compelled, in any criminal case, to be a witness against
himself; nor be deprived of life, liberty, or property, without due process of law." That
Amendment, it was long ago decided, operated as a restriction on the exercise of powers
br the United States or by Federal tribunals and agencies, but did not impose any restraint
upon a State or upon a state tribunal or agency. The original Amendments of the
Constitution had their origin, as all know, in the belief of many patriotic statesmen in the
States then composing the Union that, under the Constitution as originally submitted to the
People for adoption or rejection, the National Government might disregard the
fundamental principles of Anglo-American liberty for the maintenance of which our fathers
took up arms against the mother country.
What, let me inquire, must then have been regarded as principles that were fundamental in
the liberty of the citizen? Every student of English history will agree that, long before the
adoption of the Constitution of the United States, certain principles affecting the life and
liberty of the subject had become firmly established in the jurisprudence of England, and
were deemed vital to the safety of freemen, and that among those principles was the one
that no person accused of crime could be compelled to be a witness against himself. It is
true that, at one time in England, the practice of "questioning the prisoner" was enforced in
Star Chamber proceedings. But we have the authority of Sir James Fitzjames Stephen, in
his History of the Criminal Law of England, for saying that, soon after the Revolution of
1688, the practice of questioning the prisoner died out. Vol. 1, p. 440. The liberties of the
English people had then been placed on a firmer foundation. Personal liberty was
thenceforward jealously guarded. Certain it is that, when the present Government of the
United States was established, it was the belief of all liberty-loving men in America that
real, genuine freedom could not exist in any country that recognized the power of
government to compel persons accused of crime to be witnesses against themselves. And
it is not too much to say that the wise men who laid the foundations of our constitutional
government would have stood aghast at the suggestion that immunity from self-
incrimination was not among the essential, fundamental principles of English law. An able
writer on English and American constitutional
law has recently well said:
"When the first Continental Congress of 1774 claimed to be entitled to the benefit not only
of the common law of England, but of such of the English statutes as existed at the time of
the colonization, and which they had by experience found to be applicable to their several
local and other circumstances, they simply declared the basic principle of English law that
English subjects going to a new and uninhabited country carry with them, as their
birthright, the laws of England existing when the colonization takes place. . . . English law,
public and private, continued in force in all the States that became sovereign in 1776, each
State declaring for itself the date from which it would recognize it."
Taylor, The Science of Jurisprudence, 436, 437. It is indisputably established that, despite
differences in forms of government, the people in the colonies were a unit as to certain
leading principles, among which was the principle that the people were entitled to "enjoy
the rights and privileges of British-born subjects and the benefit of the common laws of
England," 1 Story, 163, and that (to use the words of the Continental Congress of 1774),
"by emigration to the colonies, the people by no means forfeited, surrendered or lost any
of those rights, but that they were then, and their descendants are now, entitled to the
exercise and enjoyment of them as their local and other circumstances enable them to
exercise and enjoy."
Can there be any doubt that, at the opening of the War of Independence, the people of the
colonies claimed as one of their birthrights the privilege of immunity from self-
incrimination? This question can be answered in but one way. If, at the beginning of the
Revolutionary War, any lawyer had claimed that one accused of crime could lawfully be
compelled to testify against himself, he would have been laughed at by his brethren of the
bar, both in England and America. In accordance with this universal view as to the rights of
freemen, Virginia, in its Convention of May, 1776 -- in advance, be it observed, of the
Declaration of Independence -- made a Declaration (drawn entirely by the celebrated
George Mason) which set forth certain rights as pertaining to the people of that State and
to their posterity "as the basis and foundation of government." Among those rights (that
famous Declaration distinctly announced) was the right of a person not to be compelled to
give evidence against himself. Precisely the same declaration was made in Pennsylvania
by its Convention assembled at Philadelphia on the fifteenth of July, 1776. Vermont, by its
Convention of 1777, said: "Nor can he [a man accused of crime] be compelled to give
evidence against himself." Maryland, in 1776, declared that "no man ought to be
compelled to give evidence against himself, in a court of criminal law." Massachusetts, in
its constitution of 1780, provided that "no subject shall be . . . compelled to accuse, or to
furnish evidence against himself." The same provision was made by New Hampshire in its
constitution of 1784. And North Carolina, as early as 1776, recognized the privilege of
immunity from self-incrimination by declaring, in its constitution that a man "shall not be
compelled to give evidence against himself." These explicit declarations in the
constitutions of leading colonies, before the submission of the National Constitution to the
People for adoption or rejection, caused patriotic men whose fidelity to American liberty no
one doubted to protest that that instrument was defective in that it furnished no express
guaranty against the violation by the National Government of the personal rights that
inhered in liberty. Nothing is made clearer by the history of our country than that the
Constitution would not have been accepted by the requisite number of States but for the
understanding, on all sides, that it should be promptly amended so as to meet this
objection. So, when the first Congress met, there was entire unanimity among statesmen
of that day as to the necessity and wisdom of having a National Bill of Rights which would,
beyond all question, secure against Federal encroachment all the rights, privileges and
~Page 15 of 96~
immunities which, everywhere and by everybody in America, were then recognized as
fundamental in Anglo-American liberty. Hence the prompt incorporation into the Supreme
Law of the Land of the original amendments. By the Fifth Amendment, as already stated, it
was expressly declared that no one should be compelled in a criminal case to be a witness
against himself. Those Amendments being adopted by the Nation, the People no longer
feared that the United States or any Federal agency could exert power that was
inconsistent with the fundamental rights recognized in those Amendments. It is to be
observed that the Amendments introduced no principle not already familiar to liberty-loving
people. They only put in the form of constitutional sanction, as barriers against oppression,
the principles which the people of the colonies, with entire unanimity, deemed vital to their
safety and freedom.
Still more. At the close of the late Civil War, which had seriously disturbed the foundations
of our governmental system, the question arose whether provision should not be made by
constitutional amendments to secure against attack by the States the rights, privileges and
immunities which, by the original Amendments, had been placed beyond the power of the
United States or any Federal agency to impair or destroy. Those rights, privileges and
immunities had not then, in terms, been guarded by the National Constitution against
impairment or destruction by the States, although, before the adoption of the Fourteenth
Amendment, every State, without, perhaps, an exception, had, in some form, recognized,
as part of its fundamental law, most, if not all, the rights and immunities mentioned in the
original Amendments, among them immunity from self-incrimination. This is made clear by
the opinion of the court in the present case. The court says:
"The exemption from testimonial compulsion, that is, from disclosure as a witness of
evidence against one's self, forced by any form of legal process, is universal in American
law, though there may be a difference as to its exact scope and limits. At the time of the
formation of the Union, the principle that no person could be compelled to be a witness
against himself had become embodied in the common law and distinguished it from all
other systems of jurisprudence. It was generally regarded then, as now, as a privilege of
great value, a protection to the innocent though a shelter to the guilty, and a safeguard
against heedless, unfounded or tyrannical prosecutions."
Such was the situation, the court concedes, at the time the Fourteenth Amendment was
prepared and adopted. That Amendment declared that all persons born or naturalized in
the United States and subject to its jurisdiction are citizens of the United States, "and of
the State wherein they reside." Momentous as this declaration was in its political
consequences, it was not deemed sufficient for the complete protection of the essential
rights of National citizenship and personal liberty. Although the Nation was restrained by
existing constitutional provisions from encroaching upon those rights, yet, so far as the
Federal Constitution was concerned, the States could at that time have dealt with those
rights upon the basis entirely of their own constitution and laws. It was therefore deemed
necessary that the Fourteenth Amendment should, in the name of the United States,
forbid, as it expressly does, any State from making or enforcing a law that will abridge the
privileges or immunities of citizens of the United States, or deprive any person of life,
liberty or property without due process of law. The privileges and immunities mentioned in
the original Amendments, and universally regarded as our heritage of liberty from the
common law, were thus secured to every citizen of the United States and placed beyond
assault by any government, Federal or state, and due process of law, in all public
proceedings affecting life, liberty or property, were enjoined equally upon the Nation and
the States.
What, then, were the privileges and immunities of citizens of the United States which the
Fourteenth Amendment guarded against encroachment by the States? Whatever they
were, that Amendment placed them beyond the power of any State to abridge. And what
were the rights of life and liberty which the Amendment protected? Whatever they were,
that Amendment guarded them against any hostile state action that was wanting in due
process of law.
I will not attempt to enumerate all the privileges and immunities which at that
time belonged to citizens of the United States. But I confidently assert that among such
privileges was the privilege of immunity from self-incrimination which the People of the
United States, by adopting the Fifth Amendment, had placed beyond Federal
encroachment. Can such a view be deemed unreasonable in the face of the fact, frankly
conceded in the opinion of the court, that, at common law, as well at the time of the
formation of the Union and when the Fourteenth Amendment was adopted, immunity from
self-incrimination was a privilege "universal in American law," was everywhere deemed "of
great value, a protection to the innocent though a shelter to the guilty and a safeguard
against heedless, unfounded or tyrannical prosecutions"? Is it conceivable that a privilege
or immunity of such a priceless character, one expressly recognized in the Supreme Law
of the Land, one thoroughly interwoven with the history of Anglo-American liberty, was not
in the mind of the country when it declared, in the Fourteenth Amendment, that no State
shall abridge the privileges or immunities of citizens of the United States? The Fourteenth
Amendment would have been disapproved by every State in the Union if it had saved or
recognized the right of a State to compel one accused of crime, in its courts, to be a
witness against himself. We state the matter in this way because it is common knowledge
that the compelling of a person to criminate himself shocks or ought to shock the sense of
right and justice of every one who loves liberty. Indeed, this court has not hesitated thus to
characterize the Star Chamber method of compelling an accused to be a witness against
himself. In Boyd v. United States,116 U. S. 616, 116 U. S. 631, 116 U. S. 633, will be found
some weighty observations by Mr. Justice Bradley, delivering the judgment of the court, as
to the scope and meaning of the Fourth and Fifth Amendments. The court, speaking by
that eminent jurist, said:
"Now it is elementary knowledge that one cardinal rule of the court of chancery is never to
decree a discovery which might tend to convict the party of a crime, or to forfeit his
property. And any compulsory discovery by extorting the party's oath, or compelling the
production of his private books and papers, to convict him of crime, or to forfeit his
property, is contrary to the principles of a free government. It is abhorrent to the instincts of
an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of
~Page 16 of 96~
despotic power, but it cannot abide the pure atmosphere of political liberty and personal
freedom."
Again:
"We have already noticed the intimate relation between the two Amendments. They throw
great light on each other. For the 'unreasonable searches and seizures' condemned in the
Fourth Amendment are almost always made for the purpose of compelling a man to give
evidence against himself, which in criminal cases is condemned in the Fifth Amendment,
and compelling a man 'in a criminal case to be a witness against himself,' which is
condemned in the Fifth Amendment, throws light on the question as to what is an
'unreasonable search and seizure' within the meaning of the Fourth Amendment. And we
have been unable to perceive that the seizure of a man's private books and papers to be
used in evidence against him is substantially different from compelling him to be a witness
against himself."
These observations were referred to approvingly in Counselman v. Hitchcock, 142 U. S.
547, 142 U. S. 580, 142 U. S. 581.
I am of opinion that as immunity from self-incrimination was recognized in the Fifth
Amendment of the Constitution and placed beyond violation by any Federal agency, it
should be deemed one of the immunities of citizens of the United States which the
Fourteenth Amendment, in express terms, forbids any State from abridging -- as much so,
for instance, as the right of free speech (Amdt. II), or the exemption from cruel or unusual
punishments (Amdt. VIII), or the exemption from being put twice in jeopardy of life or limb
for the same offense (Amdt. V), or the exemption from unreasonable searches and
seizures of one's person, house, papers or effects (Amdt. IV). Even if I were anxious or
willing to cripple the operation of the Fourteenth Amendment by strained or narrow
interpretations, I should feel obliged to hold that, when that Amendment was adopted, all
these last-mentioned exemptions were among the immunities belonging to citizens of the
United States which, after the adoption of the Fourteenth Amendment, no State could
impair or destroy. But, as I read the opinion of the court, it will follow from the general
principles underlying it, or from the reasoning pursued therein, that the Fourteenth
Amendment would be no obstacle whatever in the way of a state law or practice under
which, for instance, cruel or unusual punishments (such as the thumb screw, or the rack or
burning at the stake) might be inflicted. So of a state law which infringed the right of free
speech, or authorized unreasonable searches or seizures of persons, their houses, papers
or effects, or a state law under which one accused of crime could be put in jeopardy twice
or oftener, at the pleasure of the prosecution, for the same offense.
It is my opinion also that the right to immunity from self-incrimination cannot be taken away
by any State consistently with the clause of the Fourteenth Amendment that relates to the
deprivation by the State of life or liberty without due process of law. This view is supported
by what Mr. Justice Miller said for the court in Davidson v. New Orleans, 96 U. S. 97,
101, 96 U. S. 102. That great judge, delivering the opinion in that case, said:
"The prohibition against depriving the citizen or subject of his life, liberty, or property
without due process of law is not new in the constitutional history of the English race. It is
not new in the constitutional history of this country, and it was not new in the Constitution
of the United States when it became a part of the Fourteenth Amendment in the year
1866."
After observing that the equivalent of the phrase "due process of law," according to Lord
Coke, is found in the words "law of the land," in the Great Charter, in connection with the
guarantees of the rights of the subject against the oppression of the crown, the court said:
"In the series of amendments to the Constitution of the United States proposed and
adopted immediately after the organization of the government, which were dictated by the
jealousy of the States as further limitations upon the power of the Federal Government, it
is found in the Fifth, in connection with other guarantees of personal rights of the same
character."
Among these guarantees, this court distinctly said, was protection against being twice tried
for the same offense, and protection "against the accused's being compelled, in a criminal
case, to testify against himself." Again, said the court:
"It is easy to see that, when the great barons of England wrung from King John, at the
point of the sword, the concession that neither their lives nor their property should be
disposed of by the crown except as provided by the law of the land, they meant by 'law of
the land' the ancient and customary laws of the English people, or laws enacted by the
Parliament of which those barons were a controlling element. It was not in their minds,
therefore, to protect themselves against the enactment of laws by the Parliament of
England. But when, in the year of grace 1866, there is placed in the Constitution of the
United States a declaration that 'no State shall deprive any person of life, liberty, or
property without due process of law,' can a State make anything due process of law which,
by its own legislation, it chooses to declare such? To affirm this is to hold that the
prohibition to the States is of no avail, or has no application where the invasion of private
rights is affected under the forms of state legislation."
I cannot support any judgment declaring that immunity from self-incrimination is not one of
the privileges or immunities of National citizenship, nor a part of the liberty guaranteed by
the Fourteenth Amendment against hostile state action. The declaration of the court, in the
opinion just delivered, that immunity from self-incrimination is of great value, a protection
to the innocent, and a safeguard against unfounded and tyrannical prosecutions, meets
my cordial approval. And the court having heretofore, upon the fullest consideration,
declared that the compelling of a citizen of the United States, charged with crime, to be a
witness against himself was a rule abhorrent to the instincts of Americans, was in violation
of universal American law, was contrary to the principles of free government and a weapon
of despotic power which could not abide the pure atmosphere of political liberty and
personal freedom, I cannot agree that a State may make that rule a part of its law and
binding on citizens despite the Constitution of the United States. No former decision of this
court requires that we should now so interpret the Constitution.
Reference
https://supreme.justia.com/cases/federal/us/211/78/case.html
~Page 17 of 96~
Adamson v. California 332 U.S. 46 (1947)
Adamson v. California No. 102
Argued January 15-16, 1947
Decided June 23, 1947
APPEAL FROM THE SUPREME COURT OF CALIFORNIA
Syllabus
1. The guaranty of the Fifth Amendment that no person "shall be compelled in any criminal
case to be a witness against himself" is not made effective against state action by the
Fourteenth Amendment. Twining v. New Jersey, 211 U. S. 78, and Palko v.
Connecticut, 302 U. S. 319, reaffirmed. Pp. 332 U. S. 50-53.
2. The privilege against self-incrimination is not inherent in the right to a fair trial, and is
therefore not, on that basis, protected by the due process clause of the Fourteenth
Amendment. Pp. 332 U. S. 53-54.
3. The constitution and statutes of California provide that, in any criminal case, whether the
defendant testifies or not, his "failure to explain or to deny by his testimony any evidence
or facts in the case against him may be commented upon" by the court and by counsel,
and may be considered by the court or the jury. If the defendant pleads not guilty, but
admits a charge that he has suffered a previous conviction, the charge of the previous
conviction must not be read to the jury. However, if the defendant testifies, the previous
conviction may, on cross-examination, be revealed to the jury to impeach his testimony. In
a prosecution for murder, in which the defendant admitted previous convictions but did not
testify, the trial court instructed the jury, and the state's attorney argued the case, in
accordance with the state law.
Held: The provisions of the California law, as applied in the circumstances of this case, do
not violate the due process clause of the Fourteenth Amendment. Pp. 332 U. S. 53-58.
4. There is no basis in the California law for the defendant's objection on due process or
other grounds that the statutory authorization to comment on the failure to explain or deny
adverse testimony shifts the burden of proof or the duty to go forward with the evidence.
P. 332 U. S. 58.
5. This Court does not interfere with a conclusion of the State Supreme Court that it was
improbable that the jury was misled by the prosecutor's argument to believe that the jury
could infer guilt solely from the defendant's silence. P. 332 U. S. 58.
6. The defendant in this case was not denied due process of law by the admission in
evidence of tops of women's stockings that were found in his room, even though they did
not match a stocking part which was found under the victim's body. Pp. 332 U. S. 58-59.
27 Cal.2d 478, 165 P.2d 3, affirmed.
Appellant was convicted in a state court of murder in the first degree. The conviction was
affirmed by the state supreme court, 27 Cal.2d 478, 165 P.2d 3, which sustained the
validity of provisions of the state law challenged as violative of the Federal
Constitution. Affirmed, p. 332 U. S. 59.
MR. JUSTICE REED delivered the opinion of the Court.
The appellant, Adamson, a citizen of the United States, was convicted, without
recommendation for mercy, by a jury in a Superior Court of the State of California of
murder in the first degree. [Footnote 1] After considering the same objections to the
conviction that are pressed here, the sentence of death was affirmed by the Supreme
Court of the state. 27 Cal.2d 478, 165 P.2d 3. Review of that judgment by this Court was
sought and allowed under Judicial Code 237; 28 U.S.C. 344. [Footnote 2] The
provisions of California law which were challenged in the state proceedings as invalid
under the Fourteenth Amendment to the Federal Constitution are those of the state
constitution and penal code in the margin. They permit the failure of a defendant to explain
or to deny evidence against him to be commented upon by court and by counsel, and to
be considered by court and jury. [Footnote 3] The defendant did not testify. As the trial
court gave its instructions and the District Attorney argued the case in accordance with the
constitutional and statutory provisions just referred to, we have for decision the question of
their constitutionality in these circumstances under the limitations of 1 of the Fourteenth
Amendment. [Footnote 4]
The appellant was charged in the information with former convictions for burglary, larceny
and robbery and pursuant to 1025, California Penal Code, answered that he had
suffered the previous convictions. This answer barred allusion to these charges of
convictions on the trial. [Footnote 5] Under California's interpretation of 1025 of the
Penal Code and 2051 of the Code of Civil Procedure, however, if the defendant, after
answering affirmatively charges alleging prior convictions, takes the witness stand to deny
or explain away other evidence that has been introduced, "the commission of these crimes
could have been revealed to the jury on cross-examination to impeach his
testimony." People v. Adamson, 27 Cal.2d 478, 494, 165 P.2d 3, 11; People v. Braun, 14
Cal.2d 1, 6, 92 P.2d 402, 405. This forces an accused who is a repeated offender to
choose between the risk of having his prior offenses disclosed to the jury or of having it
draw harmful inferences from uncontradicted evidence that can only be denied or
explained by the defendant.
In the first place, appellant urges that the provision of the Fifth Amendment that no person
"shall be compelled in any criminal case to be a witness against himself" is a fundamental
national privilege or immunity protected against state abridgment by the Fourteenth
Amendment or a privilege or immunity secured, through the Fourteenth Amendment,
against deprivation by state action because it is a personal right, enumerated in the federal
Bill of Rights.
We shall assume, but without any intention thereby of ruling upon the issue, [Footnote 6]
that permission by law to the court, counsel and jury to comment upon and consider the
failure of defendant "to explain or to deny by his testimony any evidence or facts in the
case against him" would infringe defendant's privilege against self-incrimination under the
Fifth Amendment if this were a trial in a court of the United States under a similar law.
Such an assumption does not determine appellant's rights under the Fourteenth
Amendment. It is settled law that the clause of the Fifth Amendment, protecting a person
against being compelled to be a witness against himself, is not made effective by the
Fourteenth Amendment as a protection against state action on the ground that freedom
from testimonial compulsion is a right of national citizenship, or because it is a personal
~Page 18 of 96~
privilege or immunity secured by the Federal Constitution as one of the rights of man that
are listed in the Bill of Rights.
The reasoning that leads to those conclusions starts with the unquestioned premise that
the Bill of Rights, when adopted, was for the protection of the individual against the federal
government, and its provisions were inapplicable to similar actions done by the
states. Barron v. Baltimore, 7 Pet. 243; Feldman v. United States, 322 U. S. 487, 322 U. S.
490. With the adoption of the Fourteenth Amendment, it was suggested that the dual
citizenship recognized by its first sentence [Footnote 7] secured for citizens federal
protection for their elemental privileges and immunities of state citizenship. The Slaughter-
House Cases [Footnote 8] decided, contrary to the suggestion, that these rights, as
privileges and immunities of state citizenship, remained under the sole protection of the
state governments. This Court, without the expression of a contrary view upon that phase
of the issues before the Court, has approved this determination. Maxwell v. Bugbee, 250
U. S. 525, 250 U. S. 537; Hamilton v. Regents, 293 U. S. 245, 293 U. S. 261. The power to
free defendants in state trials from self-incrimination was specifically determined to be
beyond the scope of the privileges and immunities clause of the Fourteenth Amendment
in Twining v. New Jersey, 211 U. S. 78, 211 U. S. 91-98. "The privilege against self-
incrimination may be withdrawn, and the accused put upon the stand as a witness for the
state." [Footnote 9] The Twining case likewise disposed of the contention that freedom
from testimonial compulsion, being specifically granted by the Bill of Rights, is a federal
privilege or immunity that is protected by the Fourteenth Amendment against state
invasion. This Court held that the inclusion in the Bill of Rights of this protection against the
power of the national government did not make the privilege a federal privilege or immunity
secured to citizens by the Constitution against state action. Twining v. New Jersey,
supra, at 211 U. S. 98-99; Palko v. Connecticut, supra, at 302 U. S. 328. After declaring
that state and national citizenship coexist in the same person, the Fourteenth Amendment
forbids a state from abridging the privileges and immunities of citizens of the United
States. As a matter of words, this leaves a state free to abridge, within the limits of the due
process clause, the privileges and immunities flowing from state citizenship. This reading
of the Federal Constitution has heretofore found favor with the majority of this Court as a
natural and logical interpretation. It accords with the constitutional doctrine of federalism by
leaving to the states the responsibility of dealing with the privileges and immunities of their
citizens except those inherent in national citizenship. [Footnote 10] It is the construction
placed upon the amendment by justices whose own experience had given them
contemporaneous knowledge of the purposes that led to the adoption of the Fourteenth
Amendment. This construction has become embedded in our federal system as a
functioning element in preserving the balance between national and state power. We
reaffirm the conclusion of the Twining and Palko cases that protection against self-
incrimination is not a privilege or immunity of national citizenship.
Appellant secondly contends that, if the privilege against self-incrimination is not a right
protected by the privileges and immunities clause of the Fourteenth Amendment against
state action, this privilege, to its full scope under the Fifth Amendment, inheres in the right
to a fair trial. A right to a fair trial is a right admittedly protected by the due process clause
of the Fourteenth Amendment. [Footnote 11] Therefore, appellant argues, the due process
clause of the Fourteenth Amendment protects his privilege against self-incrimination.
The due process clause of the Fourteenth Amendment, however, does not draw all the
rights of the federal Bill of Rights under its protection. That contention was made and
rejected in Palko v. Connecticut, 302 U. S. 319, 302 U. S. 323. It was rejected with citation
of the cases excluding several of the rights, protected by the Bill of Rights, against
infringement by the National Government.
Nothing has been called to our attention that either the framers of the Fourteenth
Amendment or the states that adopted intended its due process clause to draw within its
scope the earlier amendments to the Constitution. Palko held that such provisions of the
Bill of Rights as were "implicit in the concept of ordered liberty," p. 302 U. S. 325, became
secure from state interference by the clause. But it held nothing more.
Specifically, the due process clause does not protect, by virtue of its mere existence, the
accused's freedom from giving testimony by compulsion in state trials that is secured to
him against federal interference by the Fifth Amendment.Twining v. New Jersey, 211 U. S.
78, 211 U. S. 99-114; Palko v. Connecticut, supra, p. 302 U. S. 323. For a state to require
testimony from an accused is not necessarily a breach of a state's obligation to give a fair
trial. Therefore, we must examine the effect of the California law applied in this trial to see
whether the comment on failure to testify violates the protection against state action that
the due process clause does grant to an accused. The due process clause forbids
compulsion to testify by fear of hurt, torture or exhaustion. [Footnote 12] It forbids any
other type of coercion that falls within the scope of due process. [Footnote 13] California
follows Anglo-American legal tradition in excusing defendants in criminal prosecutions from
compulsory testimony. Cf. VIII Wigmore on Evidence (3d ed.) 2252. That is a matter of
legal policy, and not because of the requirements of due process under the Fourteenth
Amendment. [Footnote 14] So our inquiry is directed not at the broad question of the
constitutionality of compulsory testimony from the accused under the due process clause,
but to the constitutionality of the provision of the California law that permits comment upon
his failure to testify. It is, of course, logically possible that, while an accused might be
required, under appropriate penalties, to submit himself as a witness without a violation of
due process, comment by judge or jury on inferences to be drawn from his failure to testify,
in jurisdictions where an accused's privilege against self-incrimination is protected, might
deny due process. For example, a statute might declare that a permitted refusal to testify
would compel an acceptance of the truth of the prosecution's evidence.
Generally, comment on the failure of an accused to testify is forbidden in American
jurisdictions. [Footnote 15] This arises from state constitutional or statutory provisions
similar in character to the federal provisions. Fifth Amendment and 28 U.S.C. 632.
California, however, is one of a few states that permit limited comment upon a defendant's
failure to testify. [Footnote 16] That permission is narrow. The California law is set out
in note 3 and authorizes comment by court and counsel upon the "failure of the defendant
to explain or to deny by his testimony any evidence or facts in the case against him." This
does not involve any presumption, rebuttable or irrebuttable, either of guilt or of the truth of
any fact, that is offered in evidence. Compare Tot v. United States, 319 U. S. 463, 319 U.
~Page 19 of 96~
S. 470. It allows inferences to be drawn from proven facts. Because of this clause, the
court can direct the jury's attention to whatever evidence there may be that a defendant
could deny and the prosecution can argue as to inferences that may be drawn from the
accused's failure to testify. Compare Caminetti v. United States, 242 U. S. 470, 242 U. S.
492-95; Raffel v. United States, 271 U. S. 494, 271 U. S. 497. There is here no lack of
power in the trial court to adjudge, and no denial of a hearing. California has prescribed a
method for advising the jury in the search for truth. However sound may be the legislative
conclusion that an accused should not be compelled in any criminal case to be a witness
against himself, we see no reason why comment should not be made upon his silence. It
seems quite natural that, when a defendant has opportunity to deny or explain facts and
determines not to do so, the prosecution should bring out the strength of the evidence by
commenting upon defendant's failure to explain or deny it. The prosecution evidence may
be of facts that may be beyond the knowledge of the accused. If so, his failure to testify
would have little, if any, weight. But the facts may be such as are necessarily in the
knowledge of the accused. In that case, a failure to explain would point to an inability to
explain.
Appellant sets out the circumstances of this case, however, to show coercion and
unfairness in permitting comment. The guilty person was not seen at the place and time of
the crime. There was evidence, however, that entrance to the place or room where the
crime was committed might have been obtained through a small door. It was freshly
broken. Evidence showed that six fingerprints on the door were petitioner's. Certain
diamond rings were missing from the deceased's possession. There was evidence that
appellant, sometime after the crime, asked an unidentified person whether the latter would
be interested in purchasing a diamond ring. As has been stated, the information charged
other crimes to appellant, and he admitted them. His argument here is that he could not
take the stand to deny the evidence against him because he would be subjected to a
cross-examination as to former crimes to impeach his veracity, and the evidence so
produced might well bring about his conviction. Such cross-examination is allowable in
California. People v. Adamson, 27 Cal.2d 478, 494, 165 P.2d 3, 11. Therefore, appellant
contends the California statute permitting comment denies him due process.
It is true that, if comment were forbidden, an accused in this situation could remain silent
and avoid evidence of former crimes and comment upon his failure to testify. We are of the
view, however, that a state may control such a situation in accordance with its own ideas of
the most efficient administration of criminal justice. The purpose of due process is not to
protect an accused against a proper conviction, but against an unfair conviction. When
evidence is before a jury that threatens conviction, it does not seem unfair to require him to
choose between leaving the adverse evidence unexplained and subjecting himself to
impeachment through disclosure of former crimes. Indeed, this is a dilemma with which
any defendant may be faced. If facts adverse to the defendant are proven by the
prosecution, there may be no way to explain them favorably to the accused except by a
witness who may be vulnerable to impeachment on cross-examination. The defendant
must then decide whether or not to use such a witness. The fact that the witness may also
be the defendant makes the choice more difficult, but a denial of due process does not
emerge from the circumstances. [Footnote 17]
There is no basis in the California law for appellant's objection on due process or other
grounds that the statutory authorization to comment on the failure to explain or deny
adverse testimony shifts the burden of proof or the duty to go forward with the evidence.
Failure of the accused to testify is not an admission of the truth of the adverse evidence.
Instructions told the jury that the burden of proof remained upon the state and the
presumption of innocence with the accused. Comment on failure to deny proven facts
does not, in California, tend to supply any missing element of proof of guilt. People v.
Adamson, 27 Cal.2d 478, 489-95, 165 P.2d 3, 9-12. It only directs attention to the strength
of the evidence for the prosecution or to the weakness of that for the defense. The
Supreme Court of California called attention to the fact that the prosecutor's argument
approached the borderline in a statement that might have been construed as asserting
"that the jury should infer guilt solely from defendant's silence." That court felt that it was
improbable the jury was misled into such an understanding of their power. We shall not
interfere with such a conclusion. People v. Adamson, 27 Cal.2d 478, 494 95, 165 P.2d 3,
12.
Finally, appellant contends that due process of law was denied him by the introduction as
evidence of tops of women's stockings that were found in his room. The claim is made that
such evidence inflamed the jury. The lower part of a woman's stocking was found under
the victim's body. The top was not found. The corpse was barelegged. The tops from
defendant's room did not match the lower part found under the dead body. The California
court held that the tops were admissible as evidence because this "interest in women's
stocking tops is a circumstance that tends to identify defendant" as the perpetrator of the
crime. We do not think the introduction of this evidence violated any federal constitutional
right.
We find no other error that gives ground for our intervention in California's
administration of criminal justice.
Affirmed.
[Footnote 1]
There was also a conviction for first degree burglary. This requires no discussion.
[Footnote 2]
This section authorizes appeal to this Court from the final judgment of a state when the
validity of a state statute is questioned on the ground of its being repugnant to the
Constitution of the United States. The section has been applied so as to cover a state
constitutional provision. Railway Express Agency, Inc. v. Virginia, 282 U. S. 440; King Mfg.
Co. v. Augusta,277 U. S. 100.
[Footnote 3]
Constitution of California, Art. I, 13:
". . . No person shall be twice put in jeopardy for the same offense; nor be compelled, in
any criminal case, to be a witness against himself; nor be deprived of life, liberty, or
~Page 20 of 96~
property without due process of law; but in any criminal case, whether the defendant
testifies or not, his failure to explain or to deny by his testimony any evidence or facts in
the case against him may be commented upon by the court and by counsel, and may be
considered by the court or the jury. . . ."
Penal Code of California, 1323:
"A defendant in a criminal action or proceeding cannot be compelled to be a witness
against himself; but if he offers himself as a witness, he may be cross-examined by the
counsel for the people as to all matters about which he was examined in chief. The failure
of the defendant to explain or to deny by his testimony any evidence or facts in the case
against him may be commented upon by counsel."
[Footnote 4]
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws."
[Footnote 5]
Penal Code of California, 1025:
". . . In case the defendant pleads not guilty, and answers that he has suffered the previous
conviction, the charge of the previous conviction must not be read to the jury, nor alluded
to on the trial."
[Footnote 6]
The California law protects a defendant against compulsion to testify, though allowing
comment upon his failure to meet evidence against him. The Fifth Amendment forbids
compulsion on a defendant to testify. Boyd v. United States, 116 U. S. 616, 116 U. S.
631, 116 U. S. 632; cf. Davis v. United States, 328 U. S. 582, 328 U. S. 587, 328 U. S.
593. A federal statute that grew out of the extension of permissible witnesses to include
those charged with offenses negatives a presumption against an accused for failure to
avail himself of the right to testify in his own defense. 28 U.S.C. 632; Bruno v. United
States, 308 U. S. 287. It was this statute which is interpreted to protect the defendant
against comment for his claim of privilege. Wilson v. United States, 149 U. S. 60, 149 U. S.
66; Johnson v. United States, 318 U. S. 189, 318 U. S. 199.
[Footnote 7]
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside."
[Footnote 8]
16 Wall. 85 U. S. 36. The brief of Mr. Fellows for the plaintiff in error set out the legislative
history in an effort to show that the purpose of the first section of the Fourteenth
Amendment was to put the "Rights of Citizens" under the protection of the United States. It
was pointed out, p. 12, that the Fourteenth Amendment was needed to accomplish that
result. After quoting from the debates, the brief summarized the argument, as follows, p.
21:
"As the result of this examination, the only conclusion to be arrived at, as to the intention of
Congress in proposing the amendments, and especially the first section of the Fourteenth
Amendment, and the interpretation universally put upon it by every member of Congress,
whether friend or foe, the interpretation in which all were agreed, was, in the words of Mr.
Hale, 'that it was intended to apply to every State which has failed to apply equal
protection to life, liberty and property;' or, in the words of Mr. Bingham, 'that the protection
given by the laws of the States shall be equal in respect to life, liberty and property to all
persons;' or, in the language of Mr. Sumner, that it abolished 'oligarchy, aristocracy, caste,
or monopoly with peculiar privileges and powers.'"
[Footnote 9]
Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105; Palko v. Connecticut, 302 U. S.
319, 302 U. S. 324; Twining v. New Jersey, supra, 211 U. S. 114.
[Footnote 10]
See Madden v. Kentucky, 309 U. S. 83, 309 U. S. 90, and cases cited, and see the
concurring opinions in Edwards v. California,314 U. S. 160, and the opinion of Stone, J.,
in Hague v. CIO, 307 U. S. 496, 307 U. S. 519.
[Footnote 11]
Moore v. Dempsey, 261 U. S. 86, 261 U. S. 91; Chambers v. Florida, 309 U. S. 227, 309 U.
S. 238; Buchalter v. New York, 319 U. S. 427.
[Footnote 12]
White v. Texas, 310 U. S. 530; Brown v. Mississippi, 297 U. S. 278; Ashcraft v.
Tennessee, 322 U. S. 143, 322 U. S. 154; Ashcraft v. Tennessee, 327 U. S. 274.
[Footnote 13]
See Malinski v. New York, 324 U. S. 401, concurring op. at 324 U. S. 414, dissent at 324
U. S. 438; Buchalter v. New York, supra, at 319 U. S. 429; Palko v. Connecticut,
supra, at 302 U. S. 325; Carter v. Illinois, 329 U. S. 173.
State action must
"be consistent with the fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions and not infrequently are designated as 'law of the
land.'"
Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 316.
[Footnote 14]
Twining v. New Jersey, supra, pp. 211 U. S. 110-112.
[Footnote 15]
VIII Wigmore, supra, p. 412.
[Footnote 16]
The cases and statutory references are collected in VIII Wigmore, supra, at pp. 413 et
seq. New Jersey, Ohio and Vermont permit comment. The question of permitting comment
upon the failure of an accused to testify has been a matter for consideration in recent
years. See Reports of American Bar Association (1931) 137; Proceedings, American Law
Institute, 1930-31, 202; Reeder, Comment Upon Failure of Accused to Testify, 31
Mich.L.Rev. 40; Bruce, The Right to Comment on the Failure of the Defendant to
Testify, Id., 226.
[Footnote 17]
~Page 21 of 96~
Comment here did not follow a grant of privilege that carried immunity from comment. The
choice between giving evidence and remaining silent was an open choice. There was no
such possible misleading of the defendant as we condemned in Johnson v. United
States, 318 U. S. 189, 318 U. S. 195-99.
MR. JUSTICE FRANKFURTER, concurring.
Less than ten years ago, Mr. Justice Cardozo announced as settled constitutional law that,
while the Fifth Amendment, "which is not directed to the states, but solely to the federal
government," provides that no person shall be compelled in any criminal case to be a
witness against himself, the process of law assured by the Fourteenth Amendment does
not require such immunity from self-crimination: "in prosecutions by a state, the exemption
will fail if the state elects to end it." Palko v. Connecticut, 302 U. S. 319, 302 U. S. 322, 302
U. S. 324. Mr. Justice Cardozo spoke for the Court, consisting of Mr. Chief Justice Hughes,
and McReynolds, Brandeis, Sutherland, Stone, Roberts, Black, JJ. (Mr. Justice Butler
dissented.) The matter no longer called for discussion; a reference to Twining v. New
Jersey, 211 U. S. 78, decided thirty years before the Palko case, sufficed.
Decisions of this Court do not have equal intrinsic authority. The Twining case shows the
judicial process at its best -- comprehensive briefs and powerful arguments on both sides,
followed by long deliberation, resulting in an opinion by Mr. Justice Moody which at once
gained and has ever since retained recognition as one of the outstanding opinions in the
history of the Court. After enjoying unquestioned prestige for forty years, the Twining case
should not now be diluted, even unwittingly, either in its judicial philosophy or in its
particulars. As the surest way of keeping the Twining case intact, I would affirm this case
on its authority.
The circumstances of this case present a minor variant from what was before the Court
in Twining v. New Jersey, supra. The attempt to inflate the difference into constitutional
significance was adequately dealt with by Mr. Justice Traynor in the court below. People v.
Adamson, 27 Cal.2d 478, 16 P.2d 3. The matter lies within a very narrow compass. The
point is made that a defendant who has a vulnerable record would, by taking the stand,
subject himself to having his credibility impeached thereby. See Raffel v. United
States, 271 U. S. 494, 271 U. S. 496-497. Accordingly, under California law, he is
confronted with the dilemma, whether to testify and perchance have his bad record
prejudice him in the minds of the jury, or to subject himself to the unfavorable inference
which the jury might draw from his silence. And so, it is argued, if he chooses the latter
alternative, the jury ought not to be allowed to attribute his silence to a consciousness of
guilt when it might be due merely to a desire to escape damaging cross-examination.
This does not create an issue different from that settled in the Twining case. Only a
technical rule of law would exclude from consideration that which is relevant, as a matter
of fair reasoning, to the solution of a problem. Sensible and just-minded men, in important
affairs of life, deem it significant that a man remains silent when confronted with serious
and responsible evidence against himself which it is within his power to contradict. The
notion that to allow jurors to do that which sensible and right-minded men do every day
violates the "immutable principles of justice" as conceived by a civilized society is to
trivialize the importance of "due process." Nor does it make any difference in drawing
significance from silence under such circumstances that an accused may deem it more
advantageous to remain silent than to speak, on the nice calculation that, by taking the
witness stand, he may expose himself to having his credibility impugned by reason of his
criminal record.
Silence under such circumstances is still significant. A person in that situation may express
to the jury, through appropriate requests to charge, why he prefers to keep silent. A man
who has done one wrong may prove his innocence on a totally different charge. To deny
that the jury can be trusted to make such discrimination is to show little confidence in the
jury system. The prosecution is frequently compelled to rely on the testimony of shady
characters whose credibility is bound to be the chief target of the defense. It is a common
practice in criminal trials to draw out of a vulnerable witness' mouth his vulnerability, and
then convince the jury that, nevertheless, he is telling the truth in this particular case. This
is also a common experience for defendants.
For historical reasons, a limited immunity from the common duty to testify was written into
the Federal Bill of Rights, and I am prepared to agree that, as part of that immunity,
comment on the failure of an accused to take the witness stand is forbidden in federal
prosecutions. It is so, of course, by explicit act of Congress. 20 Stat. 30; see Bruno v.
United States, 308 U. S. 287. But to suggest that such a limitation can be drawn out of
"due process" in its protection of ultimate decency in a civilized society is to suggest that
the Due Process Clause fastened fetters of unreason upon the States. (This opinion is
concerned solely with a discussion of the Due Process Clause of the Fourteenth
Amendment. I put to one side the Privileges or Immunities Clause of that Amendment. For
the mischievous uses to which that clause would lend itself if its scope were not confined
to that given it by all but one of the decisions beginning with the Slaughter-House
Cases, 16 Wall. 36, see the deviation in Colgate v. Harvey, 296 U. S. 404, overruled
by Madden v. Kentucky, 309 U. S. 83.)
Between the incorporation of the Fourteenth Amendment into the Constitution and the
beginning of the present membership of the Court -- a period of seventy years -- the scope
of that Amendment was passed upon by forty-three judges. Of all these judges, only one,
who may respectfully be called an eccentric exception, ever indicated the belief that the
Fourteenth Amendment was a shorthand summary of the first eight Amendments
theretofore limiting only the Federal Government, and that due process incorporated those
eight Amendments as restrictions upon the powers of the States. Among these judges
were not only those who would have to be included among the greatest in the history of
the Court, but -- it is especially relevant to note -- they included those whose services in
the cause of human rights and the spirit of freedom are the most conspicuous in our
history. It is not invidious to single out Miller, Davis, Bradley, Waite, Matthews, Gray, Fuller,
Holmes, Brandeis, Stone and Cardozo (to speak only of the dead) as judges who were
alert in safeguarding and promoting the interests of liberty and human dignity through law.
But they were also judges mindful of the relation of our federal system to a progressively
~Page 22 of 96~
democratic society, and therefore duly regardful of the scope of authority that was left to
the States even after the Civil War. And so they did not find that the Fourteenth
Amendment, concerned as it was with matters fundamental to the pursuit of justice,
fastened upon the States procedural arrangements which, in the language of Mr. Justice
Cardozo, only those who are "narrow or provincial" would deem essential to "a fair and
enlightened system of justice." Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325. To
suggest that it is inconsistent with a truly free society to begin prosecutions without an
indictment, to try petty civil cases without the paraphernalia of a common law jury, to take
into consideration that one who has full opportunity to make a defense remains silent is, in
de Tocqueville's phrase, to confound the familiar with the necessary.
The short answer to the suggestion that the provision of the Fourteenth Amendment, which
ordains "nor shall any State deprive any person of life, liberty, or property, without due
process of law," was a way of saying that every State must thereafter initiate prosecutions
through indictment by a grand jury, must have a trial by a jury of twelve in criminal cases,
and must have trial by such a jury in common law suits where the amount in controversy
exceeds twenty dollars, is that it is a strange way of saying it. It would be extraordinarily
strange for a Constitution to convey such specific commands in such a roundabout and
inexplicit way. After all, an amendment to the Constitution should be read in a "sense most
obvious to the common understanding at the time of its adoption.' . . . For it was for public
adoption that it was proposed." See Mr. Justice Holmes in Eisner v. Macomber, 252 U. S.
189, 252 U. S. 220. Those reading the English language with the meaning which it
ordinarily conveys, those conversant with the political and legal history of the concept of
due process, those sensitive to the relations of the States to the central government, as
well as the relation of some of the provisions of the Bill of Rights to the process of justice,
would hardly recognize the Fourteenth Amendment as a cover for the various explicit
provisions of the first eight Amendments. Some of these are enduring reflections of
experience with human nature, while some express the restricted views of Eighteenth-
Century England regarding the best methods for the ascertainment of facts. The notion
that the Fourteenth Amendment was a covert way of imposing upon the States all the
rules which it seemed important to Eighteenth Century statesmen to write into the Federal
Amendments was rejected by judges who were themselves witnesses of the process by
which the Fourteenth Amendment became part of the Constitution. Arguments that may
now be adduced to prove that the first eight Amendments were concealed within the
historic phrasing * of the Fourteenth Amendment were not unknown at the time of its
adoption. A surer estimate of their bearing was possible for judges at the time than
distorting distance is likely to vouchsafe. Any evidence of design or purpose not
contemporaneously known could hardly have influenced those who ratified the
Amendment. Remarks of a particular proponent of the Amendment, no matter how
influential, are not to be deemed part of the Amendment. What was submitted for
ratification was his proposal, not his speech. Thus, at the time of the ratification of the
Fourteenth Amendment, the constitutions of nearly half of the ratifying States did not have
the rigorous requirements of the Fifth Amendment for instituting criminal proceedings
through a grand jury. It could hardly have occurred to these States that, by ratifying the
Amendment, they uprooted their established methods for prosecuting crime and fastened
upon themselves a new prosecutorial system.
Indeed, the suggestion that the Fourteenth Amendment incorporates the first eight
Amendments as such is not unambiguously urged. Even the boldest innovator would
shrink from suggesting to more than half the States that they may no longer initiate
prosecutions without indictment by grand jury, or that, thereafter, all the States of the Union
must furnish a jury of twelve for every case involving a claim above twenty dollars.
There is suggested merely a selective incorporation of the first eight Amendments into the
Fourteenth Amendment. Some are in and some are out, but we are left in the dark as to
which are in and which are out. Nor are we given the calculus for determining which go in
and which stay out. If the basis of selection is merely that those provisions of the first eight
Amendments are incorporated which commend themselves to individual justices as
indispensable to the dignity and happiness of a free man, we are thrown back to a merely
subjective test. The protection against unreasonable search and seizure might have
primacy for one judge, while trial by a jury of twelve for every claim above twenty dollars
might appear to another as an ultimate need in a free society. In the history of thought,
"natural law" has a much longer and much better founded meaning and justification than
such subjective selection of the first eight Amendments for incorporation into the
Fourteenth. If all that is meant is that due process contains within itself certain minimal
standards which are "of the very essence of a scheme of ordered liberty," Palko v.
Connecticut, 302 U. S. 319, 302 U. S. 325, putting upon this Court the duty of applying
these standards from time to time, then we have merely arrived at the insight which our
predecessors long ago expressed. We are called upon to apply to the difficult issues of our
own day the wisdom afforded by the great opinions in this field, such as those in Davidson
v. New Orleans, 96 U. S. 97; Missouri v. Lewis, 101 U. S. 22; Hurtado v. California, 110 U.
S. 516; Holden v. Hardy, 169 U. S. 366; Twining v. New Jersey, 211 U. S. 78, and Palko v.
Connecticut, 302 U. S. 319. This guidance bids us to be duly mindful of the heritage of the
past, with its great lessons of how liberties are won and how they are lost. As judges
charged with the delicate task of subjecting the government of a continent to the Rule of
Law, we must be particularly mindful that it is "a constitution we are expounding," so that it
should not be imprisoned in what are merely legal forms, even though they have the
sanction of the Eighteenth Century.
It may not be amiss to restate the pervasive function of the Fourteenth Amendment in
exacting from the States observance of basic liberties. See Malinski v. New York, 324 U.
S. 401, 324 U. S. 412 et seq.; Louisiana v. Resweber, 329 U. S. 459, 329 U. S. 466 et
seq. The Amendment neither comprehends the specific provisions by which the founders
deemed it appropriate to restrict the federal government nor is it confined to them. The
Due Process Clause of the Fourteenth Amendment has an independent potency, precisely
as does the Due Process Clause of the Fifth Amendment in relation to the Federal
Government. It ought not to require argument to reject the notion that due process of law
meant one thing in the Fifth Amendment and another in the Fourteenth. The Fifth
Amendment specifically prohibits prosecution of an "infamous crime" except upon
~Page 23 of 96~
indictment; it forbids double jeopardy; it bars compelling a person to be a witness against
himself in any criminal case; it precludes deprivation of "life, liberty, or property, without
due process of law. . . ." Are Madison and his contemporaries in the framing of the Bill of
Rights to be charged with writing into it a meaningless clause? To consider "due process of
law" as merely a shorthand statement of other specific clauses in the same amendment is
to attribute to the authors and proponents of this Amendment ignorance of, or indifference
to, a historic conception which was one of the great instruments in the arsenal of
constitutional freedom which the Bill of Rights was to protect and strengthen.
A construction which gives to due process no independent function, but turns it into a
summary of the specific provisions of the Bill of Rights would, as has been noted, tear up
by the roots much of the fabric of law in the several States, and would deprive the States
of opportunity for reforms in legal process designed for extending the area of freedom. It
would assume that no other abuses would reveal themselves in the course of time than
those which had become manifest in 1791. Such a view not only disregards the historic
meaning of "due process." It leads inevitably to a warped construction of specific
provisions of the Bill of Rights to bring within their scope conduct clearly condemned by
due process but not easily fitting into the pigeonholes of the specific provisions. It seems
pretty late in the day to suggest that a phrase so laden with historic meaning should be
given an improvised content consisting of some, but not all, of the provisions of the first
eight Amendments, selected on an undefined basis, with improvisation of content for the
provisions so selected.
And so, when, as in a case like the present, a conviction in a State court is here for review
under a claim that a right protected by the Due Process Clause of the Fourteenth
Amendment has been denied, the issue is not whether an infraction of one of the specific
provisions of the first eight Amendments is disclosed by the record. The relevant question
is whether the criminal proceedings which resulted in conviction deprived the accused of
the due process of law to which the United States Constitution entitled him. Judicial review
of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an
exercise of judgment upon the whole course of the proceedings in order to ascertain
whether they offend those canons of decency and fairness which express the notions of
justice of English-speaking peoples even toward those charged with the most heinous
offenses. These standards of justice are not authoritatively formulated anywhere as though
they were prescriptions in a pharmacopoeia. But neither does the application of the Due
Process Clause imply that judges are wholly at large. The judicial judgment in applying the
Due Process Clause must move within the limits of accepted notions of justice, and is not
to be based upon the idiosyncrasies of a merely personal judgment. The fact that judges,
among themselves, may differ whether, in a particular case, a trial offends accepted
notions of justice is not disproof that general, rather than idiosyncratic, standards are
applied. An important safeguard against such merely individual judgment is an alert
deference to the judgment of the State court under review.
* I think that decision and the "natural law" theory of the Constitution upon which it relies
"The prohibition against depriving the citizen or subject of his life, liberty, or property
without due process of law is not new in the constitutional history of the English race. It is
not new in the constitutional history of this country, and it was not new in the Constitution
of the United States when it became a part of the fourteenth amendment, in the year
1866."
Davidson v. New Orleans, 96 U. S. 97, 96 U. S. 101.
MR. JUSTICE BLACK, dissenting.
The appellant was tried for murder in a California state court. He did not take the stand as
a witness in his own behalf. The prosecuting attorney, under purported authority of a
California statute, Cal.Penal Code, 1323 (Hillyer-Lake, 1945), argued to the jury that an
inference of guilt could be drawn because of appellant's failure to deny evidence offered
against him. The appellant's contention in the state court and here has been that the
statute denies him a right guaranteed by the Federal Constitution. The argument is that (1)
permitting comment upon his failure to testify has the effect of compelling him to testify, so
as to violate that provision of the Bill of Rights contained in the Fifth Amendment that "No
person . . . shall be compelled in any criminal case to be a witness against himself", and
(2) although this provision of the Fifth Amendment originally applied only as a restraint
upon federal courts, Barron v. Baltimore, 7 Pet. 243, the Fourteenth Amendment was
intended to, and did, make the prohibition against compelled testimony applicable to trials
in state courts.
The Court refuses to meet and decide the appellant's first contention. But while the Court's
opinion, as I read it, strongly implies that the Fifth Amendment does not, of itself, bar
comment upon failure to testify in federal courts, the Court nevertheless assumes that it
does in order to reach the second constitutional question involved in appellant's case. I
must consider the case on the same assumption that the Court does. For the discussion of
the second contention turns out to be a decision which reaches far beyond the relatively
narrow issues on which this case might have turned.
This decision reasserts a constitutional theory spelled out in Twining v. New Jersey, 211 U.
S. 78, that this Court is endowed by the Constitution with boundless power under "natural
law" periodically to expand and contract constitutional standards to conform to the Court's
conception of what, at a particular time, constitutes "civilized decency" and "fundamental
liberty and justice." [Footnote 2/1] Invoking this Twining rule, the Court concludes that,
although comment upon testimony in a federal court would violate the Fifth Amendment,
identical comment in a state court does not violate today's fashion in civilized decency and
fundamentals, and is therefore not prohibited by the Federal Constitution, as amended.
The Twining case was the first, as it is the only, decision of this Court which has squarely
held that states were free, notwithstanding the Fifth and Fourteenth Amendments, to extort
evidence from one accused of crime. [Footnote 2/2] I agree that, if Twining be reaffirmed,
the result reached might appropriately follow. But I would not reaffirm the Twining decision.
degrade the constitutional safeguards of the Bill of Rights, and simultaneously appropriate
for this Court a broad power which we are not authorized by the Constitution to exercise.
~Page 24 of 96~
Furthermore, the Twining decision rested on previous cases and broad hypotheses which
have been undercut by intervening decisions of this Court. See Corwin, The Supreme
Court's Construction of the Self-Incrimination Clause, 29 Mich.L.Rev. 1, 191, 202. My
reasons for believing that the Twining decision should not be revitalized can best be
understood by reference to the constitutional, judicial, and general history that preceded
and followed the case. That reference must be abbreviated far more than is justified but for
the necessary limitations of opinion-writing.
The first ten amendments were proposed and adopted largely because of fear that
Government might unduly interfere with prized individual liberties. The people wanted and
demanded a Bill of Rights written into their Constitution. The amendments embodying the
Bill of Rights were intended to curb all branches of the Federal Government in the fields
touched by the amendments -- Legislative, Executive, and Judicial. The Fifth, Sixth, and
Eighth Amendments were pointedly aimed at confining exercise of power by courts and
judges within precise boundaries, particularly in the procedure used for the trial of criminal
cases. [Footnote 2/3] Past history provided strong reasons for the apprehensions which
brought these procedural amendments into being and attest the wisdom of their adoption.
For the fears of arbitrary court action sprang largely from the past use of courts in the
imposition of criminal punishments to suppress speech, press, and religion. Hence, the
constitutional limitations of courts' powers were, in the view of the Founders, essential
supplements to the First Amendment, which was itself designed to protect the widest
scope for all people to believe and to express the most divergent political, religious, and
other views.
But these limitations were not expressly imposed upon state court action. In 1833, Barron
v. Baltimore, supra, was decided by this Court. It specifically held inapplicable to the states
that provision of the Fifth Amendment which declares: "nor shall private property be taken
for public use, without just compensation." In deciding the particular point raised, the Court
there said that it could not hold that the first eight amendments applied to the states. This
was the controlling constitutional rule when the Fourteenth Amendment was proposed in
1866. [Footnote 2/4]
My study of the historical events that culminated in the Fourteenth Amendment, and the
expressions of those who sponsored and favored, as well as those who opposed, its
submission and passage persuades me that one of the chief objects that the provisions of
the Amendment's first section, separately and as a whole, were intended to accomplish
was to make the Bill of Rights, applicable to the states. [Footnote 2/5] With full knowledge
of the import of the Barron decision, the framers and backers of the Fourteenth
Amendment proclaimed its purpose to be to overturn the constitutional rule that case had
announced. This historical purpose has never received full consideration or exposition in
any opinion of this Court interpreting the Amendment.
In construing other constitutional provisions, this Court has almost uniformly followed the
precept of Ex parte Bain, 121 U. S. 1, 121 U. S. 12, that
"It is never to be forgotten that, in the construction of the language of the Constitution . . . ,
as indeed in all other instances where construction becomes necessary, we are to place
ourselves as nearly as possible in the condition of the men who framed that instrument."
See also Everson v. Board of Education, 330 U. S. 1, 330 U. S. 8, 28, 33; Thornhill v.
Alabama, 310 U. S. 88, 310 U. S. 95, 310 U. S. 102; Knowlton v. Moore, 178 U. S. 41, 178
U. S. 89, 106; Reynolds v. United States, 98 U. S. 145, 98 U. S. 162; Barron v. Baltimore,
supra, at 32 U. S. 250-251; Cohens v. Virginia, 6 Wheat. 264, 19 U. S. 416-420.
Investigation of the cases relied upon in Twining v. New Jersey to support the conclusion
there reached that neither the Fifth Amendment's prohibition of compelled testimony, nor
any of the Bill of Rights, applies to the States reveals an unexplained departure from this
salutary practice. Neither the briefs nor opinions in any of these cases, except Maxwell v.
Dow, 176 U. S. 581, make reference to the legislative and contemporary history for the
purpose of demonstrating that those who conceived, shaped, and brought about the
adoption of the Fourteenth Amendment intended it to nullify this Court's decision in Barron
v. Baltimore, supra, and thereby to make the Bill of Rights applicable to the States.
In Maxwell v. Dow, supra, the issue turned on whether the Bill of Rights guarantee of a jury
trial was, by the Fourteenth Amendment, extended to trials in state courts. In that case,
counsel for appellant did cite from the speech of Senator Howard, Appendix, infra, p. 332
U. S. 104, which so emphatically stated the understanding of the framers of the
Amendment -- the Committee on Reconstruction for which he spoke -- that the Bill of
Rights was to be made applicable to the states by the Amendment's first section. The
Court's opinion in Maxwell v. Dow, supra, 176 U. S. 601, acknowledged that counsel had
"cited from the speech of one of the Senators," but indicated that it was not advised what
other speeches were made in the Senate or in the House. The Court considered,
moreover, that
"What individual Senators or Representatives may have urged in debate, in regard to the
meaning to be given to a proposed constitutional amendment, or bill or resolution, does
not furnish a firm ground for its proper construction, nor is it important as explanatory of
the grounds upon which the members voted in adopting it."
Id. at 176 U. S. 601-602.
In the Twining case itself, the Court was cited to a then recent book, Guthrie, Fourteenth
Amendment to the Constitution (1898). A few pages of that work recited some of the
legislative background of the Amendment, emphasizing the speech of Senator Howard.
But Guthrie did not emphasize the speeches of Congressman Bingham, nor the part he
played in the framing and adoption of the first section of the Fourteenth Amendment. Yet
Congressman Bingham may, without extravagance, be called the Madison of the first
section of the Fourteenth Amendment. In the Twining opinion, the Court explicitly declined
to give weight to the historical demonstration that the first section of the Amendment was
intended to apply to the states the several protections of the Bill of Rights. It held that that
question was "no longer open," because of previous decisions of this Court which,
however, had not appraised the historical evidence on that subject. Id. at 211 U. S. 98. The
Court admitted that its action had resulted in giving "much less effect to the Fourteenth
~Page 25 of 96~
Amendment than some of the public men active in framing it" had intended it to
have. Id. at 211 U. S. 96. With particular reference to the guarantee against compelled
testimony, the Court stated that
"Much might be said in favor of the view that the privilege was guaranteed against state
impairment as a privilege and immunity of National citizenship, but, as has been shown,
the decisions of this court have foreclosed that view."
Id. at 211 U. S. 113. Thus, the Court declined, and again today declines, to appraise the
relevant historical evidence of the intended scope of the first section of the Amendment.
Instead, it relied upon previous cases, none of which had analyzed the evidence showing
that one purpose of those who framed, advocated, and adopted the Amendment had been
to make the Bill of Rights applicable to the States. None of the cases relied upon by the
Court today made such an analysis.
For this reason, I am attaching to this dissent an 332 U. S. by no means complete, of the
Amendment's history. In my judgment, that history conclusively demonstrates that the
language of the first section of the Fourteenth Amendment, taken as a whole, was thought
by those responsible for its submission to the people, and by those who opposed its
submission, sufficiently explicit to guarantee that, thereafter, no state could deprive its
citizens of the privileges and protections of the Bill of Rights. Whether this Court ever will,
or whether it now should, in the light of past decisions, give full effect to what the
Amendment was intended to accomplish is not necessarily essential to a decision here.
However that may be, our prior decisions, including Twining, do not prevent our carrying
out that purpose, at least to the extent of making applicable to the states, not a mere part,
as the Court has, but the full protection of the Fifth Amendment's provision against
compelling evidence from an accused to convict him of crime. And I further contend that
the "natural law" formula which the Court uses to reach its conclusion in this case should
be abandoned as an incongruous excrescence on our Constitution. I believe that formula
to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense
of legislatures, ultimate power over public policies in fields where no specific provision of
the Constitution limits legislative power. And my belief seems to be in accord with the
views expressed by this Court, at least for the first two decades after the Fourteenth
Amendment was adopted.
In 1872, four years after the Amendment was adopted, the Slaughter-House cases came
to this Court. 83 U. S. 16 Wall 36. The Court was not presented in that case with the
evidence which showed that the special sponsors of the Amendment in the House and
Senate had expressly explained one of its principal purposes to be to change the
Constitution as construed in Barron v. Baltimore, supra, and make the Bill of Rights
applicable to the states. [Footnote 2/6] Nor was there reason to do so. For the state law
under consideration in the Slaughter-House cases was only challenged as one which
authorized a monopoly, and the brief for the challenger properly conceded that there was
"no direct constitutional provision against a monopoly." [Footnote 2/7]
The argument did not invoke any specific provision of the Bill of Rights, but urged that the
state monopoly statute violated "the natural right of a person" to do business and engage
in his trade or vocation. On this basis, it was contended that "bulwarks that have been
erected around the investments of capital are impregnable against State legislation."
These natural law arguments, so suggestive of the premises on which the present due
process formula rests, were flatly rejected by a majority of the Court in the Slaughter-
House cases. What the Court did hold was that the privileges and immunities clause of the
Fourteenth Amendment only protected from state invasion such rights as a person has
because he is a citizen of the United States. The Court enumerated some, but refused to
enumerate all, of these national rights. The majority of the Court emphatically declined the
invitation of counsel to hold that the Fourteenth Amendment subjected all state regulatory
legislation to continuous censorship by this Court in order for it to determine whether it
collided with this Court's opinion of "natural" right and justice. In effect, the Slaughter-
House cases rejected the very natural justice formula the Court today embraces.
The Court did not meet the question of whether the safeguards of the Bill of Rights were
protected against state invasion by the Fourteenth Amendment. And it specifically did not
say, as the Court now does, that particular provisions of the Bill of Rights could be
breached by states in part, but not breached in other respects, according to this Court's
notions of "civilized standards," "canons of decency," and "fundamental justice."
Later, but prior to the Twining case, this Court decided that the following were not
"privileges or immunities" of national citizenship so as to make them immune against state
invasion: the Eighth Amendment's prohibition against cruel and unusual punishment, In re
Kemmler, 136 U. S. 436; the Seventh Amendment's guarantee of a jury trial in civil
cases, Walker v. Sauvinet, 92 U. S. 90; the Second Amendment's "right of the people to
keep and bear Arms . . . ," Presser v. Illinois, 116 U. S. 252; the Fifth and Sixth
Amendments' requirements for indictment in capital or other infamous crimes, and for trial
by jury in criminal prosecutions, Maxwell v. Dow, 176 U. S. 581. While it can be argued
that these cases implied that no one of the provisions of the Bill of Rights was made
applicable to the states as attributes of national citizenship, no one of them expressly so
decided. In fact, the Court in Maxwell v. Dow, supra, at 176 U. S. 597-598, concluded no
more than that
"the privileges and immunities of citizens of the United States do not necessarily include all
the rights protected by the first eight amendments to the Federal Constitution against the
powers of the Federal Government."
Cf. Palko v. Connecticut, 302 U. S. 319, 302 U. S. 329.
After the Slaughter-House decision, the Court also said that states could, despite the "due
process" clause of the Fourteenth Amendment, take private property without just
compensation, Davidson v. New Orleans, 96 U.S.
Page 332 U. S. 79
97, 96 U. S. 105; Pumpelly v. Green Bay Co., 13 Wall. 166, 80 U. S. 176-177; abridge the
freedom of assembly guaranteed by the First Amendment, United States v. Cruikshank, 92
U. S. 542; see also Prudential Ins. Co. v. Cheek, 259 U. S. 530, 259 U. S. 543; Patterson
v. Colorado, 205 U. S. 454; cf. Gitlow v. New York, 268 U. S. 652, 268 U. S. 666 (freedom
of speech); prosecute for crime by information, rather than indictment, Hurtado v. People
of California, 110 U. S. 516; regulate the price for storage of grain in warehouses and
~Page 26 of 96~
elevators, Munn v. Illinois, 94 U. S. 113. But this Court also held in a number of cases that
colored people must, because of the Fourteenth Amendment, be accorded equal
protection of the laws. See, e.g., Strauder v. West Virginia, 100 U. S. 303; cf. Virginia v.
Rives, 100 U. S. 313; see also Yick Wo v. Hopkins, 118 U. S. 356.
Thus, up to and for some years after 1873, when Munn v. Illinois, supra, was decided, this
Court steadfastly declined to invalidate states' legislative regulation of property rights or
business practices under the Fourteenth Amendment unless there were racial
discrimination involved in the state law challenged. The first significant breach in this policy
came in 1889, in Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418. [Footnote 2/8] A
state's railroad rate regulatory statute was there stricken as violative of the due process
clause of the Fourteenth Amendment. This was accomplished by reference to a due
process formula which did not necessarily operate so as to protect the Bill of Rights'
personal liberty safeguards, but which gave a new and hitherto undiscovered scope for the
Court's use of the due process clause to protect property rights under natural law
concepts. And in 1896, in Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, this Court, in
effect, overruled Davidson v. New Orleans, supra, by holding, under the new due process-
natural law formula, that the Fourteenth Amendment forbade a state from taking private
property for public use without payment of just compensation. [Footnote 2/9]
Following the pattern of the new doctrine formalized in the foregoing decisions, the Court,
in 1896, applied the due process clause to strike down a state statute which had forbidden
certain types of contracts. Allgeyer v. Louisiana, 165 U. S. 578. Cf. Hoopeston Canning
Co. v. Cullen, 318 U. S. 313, 318 U. S. 316, 318 U. S. 318-319. In doing so, it substantially
adopted the rejected argument of counsel in the Slaughter-House cases that the
Fourteenth Amendment guarantees the liberty of all persons under "natural law" to engage
in their chosen business or vocation. In the Allgeyer opinion, id. at 165 U. S. 589, the Court
quoted with approval the concurring opinion of Mr. Justice Bradley in a second Slaughter-
House case, Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, 111 U. S. 762, 111
U. S. 764, 111 U. S. 765, which closely followed one phase of the argument of his dissent
in the original Slaughter-House cases -- not that phase which argued that the Bill of Rights
was applicable to the States. And in 1905, three years before the Twining case, Lochner v.
New York, 198 U. S. 45, followed the argument used in Allgeyer to hold that the due
process clause was violated by a state statute which limited the employment of bakery
workers to sixty hours per week and ten hours per day.
The foregoing constitutional doctrine, judicially created and adopted by expanding the
previously accepted meaning of "due process," marked a complete departure from
the Slaughter-House philosophy of judicial tolerance of state regulation of business
activities. Conversely, the new formula contracted the effectiveness of the Fourteenth
Amendment as a protection from state infringement of individual liberties enumerated in
the Bill of Rights. Thus, the Court's second-thought interpretation of the Amendment was
an about-face from the Slaughter-House interpretation and represented a failure to carry
out the avowed purpose of the Amendment's sponsors. [Footnote 2/10] This reversal is
dramatized by the fact that the Hurtado case, which had rejected the due process clause
as an instrument for preserving Bill of Rights liberties and privileges, was cited as authority
for expanding the scope of that clause so as to permit this Court to invalidate all state
regulatory legislation it believed to be contrary to "fundamental" principles.
The Twining decision, rejecting the compelled testimony clause of the Fifth Amendment,
and indeed rejecting all the Bill of Rights, is the end product of one phase of this
philosophy. At the same time, that decision consolidated the power of the Court assumed
in past cases by laying broader foundations for the Court to invalidate state and even
federal regulatory legislation. For the Twining decision, giving separate consideration to
"due process" and "privileges or immunities," went all the way to say that the "privileges or
immunities" clause of the Fourteenth Amendment "did not forbid the States to abridge the
personal rights enumerated in the first eight Amendments. . . ." Twining v. New Jersey,
supra, 211 U. S. 99. And in order to be certain, so far as possible, to leave this Court
wholly free to reject all the Bill of Rights as specific restraints upon state action, the
decision declared that, even if this Court should decide that the due process clause forbids
the states to infringe personal liberties guaranteed by the Bill of Rights, it would do so, not
"because those rights are enumerated in the first eight Amendments, but because they are
of such a nature that they are included in the conception of due process of law."
Ibid.
At the same time that the Twining decision held that the states need not conform to the
specific provisions of the Bill of Rights, it consolidated the power that the Court had
assumed under the due process clause by laying even broader foundations for the Court
to invalidate state and even federal regulatory legislation. For, under the Twining formula,
which includes nonregard for the first eight amendments, what are "fundamental rights"
and in accord with "canons of decency," as the Court said in Twining, and today reaffirms,
is to be independently "ascertained from time to time by judicial action. . . ." Id. at 211 U. S.
101; "what is due process of law depends on circumstances." Moyer v. Peabody, 212 U. S.
78, 212 U. S. 84. Thus, the power of legislatures became what this Court would declare it
to be at a particular time independently of the specific guarantees of the Bill of Rights such
as the right to freedom of speech, religion and assembly, the right to just compensation for
property taken for a public purpose, the right to jury trial or the right to be secure against
unreasonable searches and seizures. Neither the contraction of the Bill of Rights
safeguards [Footnote 2/11] nor the invalidation of regulatory laws [Footnote 2/12] by this
Court's appraisal of "circumstances" would readily be classified as the most satisfactory
contribution of this Court to the nation. In 1912, four years after the Twining case was
decided, a book written by Mr. Charles Wallace Collins gave the history of this Court's
interpretation and application of the Fourteenth Amendment up to that time. It is not
necessary for one fully to agree with all he said in order to appreciate the sentiment of the
following comment concerning the disappointments caused by this Court's interpretation of
the Amendment.
". . . It was aimed at restraining and checking the powers of wealth and privilege. It was to
be a charter of liberty for human rights against property rights. The transformation has
been rapid and complete. It operates today to protect the rights of property to the detriment
~Page 27 of 96~
of the rights of man. It has become the Magna Charta of accumulated and organized
capital."
Collins, The Fourteenth Amendment and the States, (1912) 137-138. That this feeling was
shared, at least in part, by members of this Court is revealed by the vigorous dissents that
have been written in almost every case where the Twining and Hurtado doctrines have
been applied to invalidate state regulatory laws. [Footnote 2/13]
Later decisions of this Court have completely undermined that phase of
the Twining doctrine which broadly precluded reliance on the Bill of Rights to determine
what is and what is not a "fundamental" right. Later cases have also made
the Hurtado case an inadequate support for this phase of the Twining formula. For,
despite Hurtado and Twining, this Court has now held that the Fourteenth Amendment
protects from state invasion the following "fundamental" rights safeguarded by the Bill of
Rights: right to counsel in criminal cases, Powell v. Alabama, 287 U. S. 45, 287 U. S. 67,
limiting the Hurtado case; see also Betts v. Brady, 316 U. S. 455, and De Meerleer v.
Michigan, 329 U. S. 663; freedom of assembly, De Jonge v. Oregon, 299 U. S. 353, 299 U.
S. 364; at the very least, certain types of cruel and unusual punishment and former
jeopardy, State of Louisiana ex rel. Francis v. Resweber, 329 U. S. 459; the right of an
accused in a criminal case to be informed of the charge against him, see Snyder v.
Massachusetts, 291 U. S. 97, 291 U. S. 105; the right to receive just compensation on
account of taking private property for public use, Chicago, B. & Q. R. Co. v. Chicago, 166
U. S. 226. And the Court has now through the Fourteenth Amendment literally and
emphatically applied the First Amendment to the States in its very terms. Everson v. Board
of Education, 330 U. S. 1; Board of Education v. Barnette, 319 U. S. 624, 319 U. S.
639; Bridges v. California, 314 U. S. 252, 314 U. S. 268.
In Palko v. Connecticut, supra, a case which involved former jeopardy only, this Court
reexamined the path it had traveled in interpreting the Fourteenth Amendment since
the Twining opinion was written. In Twining, the Court had declared that none of the rights
enumerated in the first eight amendments were protected against state invasion because
they were incorporated in the Bill of Rights. But the Court in Palko, supra, at 302 U. S. 323,
answered a contention that all eight applied with the more guarded statement, similar to
that the Court had used in Maxwell v. Dow, supra, at 176 U. S. 597, that "there is no such
general rule." Implicit in this statement, and in the cases decided in the interim
between Twining and Palko and since, is the understanding that some of the eight
amendments do apply by their very terms. Thus, the Court said in the Palko case that the
Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the
"freedom of speech which the First Amendment safeguards against encroachment by the
Congress . . . or the like freedom of the press . . . or the free exercise of religion . . . or the
right of peaceable assembly . . . or the right of one accused of crime to the benefit of
counsel. . . . In these and other situations, immunities that are valid as against the federal
government by force of the specific pledges of particular amendments have been found to
be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment,
become valid as against the states."
Id. at 302 U. S. 324-325. The Court went on to describe the Amendments made applicable
to the States as
"the privileges and immunities that have been taken over from the earlier articles of the
federal bill of rights and brought within the Fourteenth Amendment by a process of
absorption."
Id. at 302 U. S. 326. In the Twining case, fundamental liberties were things apart from the
Bill of Rights. Now it appears that at least some of the provisions of the Bill of Rights, in
their very terms, satisfy the Court as sound and meaningful expressions of fundamental
liberty. If the Fifth Amendment's protection against self-incrimination be such an expression
of fundamental liberty, I ask, and have not found a satisfactory answer, why the Court
today should consider that it should be "absorbed" in part, but not in full? Cf. Warren, The
New "Liberty" under the Fourteenth Amendment, 39 Harv.L.Rev. 431, 458-461 (1926).
Nothing in the Palko opinion requires that, when the Court decides that a Bill of Rights'
provision is to be applied to the States, it is to be applied piecemeal. Nothing in
the Palko opinion recommends that the Court apply part of an amendment's established
meaning, and discard that part which does not suit the current style of fundamentals.
The Court's opinion in Twining, and the dissent in that case, made it clear that the Court
intended to leave the states wholly free to compel confessions so far as the Federal
Constitution is concerned. Twining v. New Jersey, supra, see particularly pp. 211 U. S. 111-
114, 211 U. S. 125-126. Yet, in a series of cases since Twining, this Court has held that the
Fourteenth Amendment does bar all American courts, state or federal, from convicting
people of crime on coerced confessions. Chambers v. Florida, 309 U. S. 227; Ashcraft v.
Tennessee, 322 U. S. 143, 322 U. S. 154-155, and cases cited. Federal courts cannot do
so, because of the Fifth Amendment.
Bram v. United States, 168 U. S. 532, 168 U. S. 542, 168 U. S. 562-563. And state courts
cannot do so, because the principles of the Fifth Amendment are made applicable to the
States through the Fourteenth by one formula or another. And, taking note of these cases,
the Court is careful to point out in its decision today that coerced confessions violate the
Federal Constitution if secured "by fear of hurt, torture or exhaustion." Nor can a state,
according to today's decision, constitutionally compel an accused to testify against himself
by "any other type of coercion that falls within the scope of due process." Thus, the Court
itself destroys, or at least drastically curtails, the very Twining decision it purports to
reaffirm. It repudiates the foundation of that opinion, which presented much argument to
show that compelling a man to testify against himself does not "violate" a "fundamental"
right or privilege.
It seems rather plain to me why the Court today does not attempt to justify all of the
broad Twining discussion. That opinion carries its own refutation on what may be called
the factual issue the Court resolved. The opinion itself shows, without resort to the
powerful argument in the dissent of Mr. Justice Harlan, that, outside of Star Chamber
~Page 28 of 96~
practices and influences, the "English-speaking" peoples have for centuries abhorred and
feared the practice of compelling people to convict themselves of crime. I shall not attempt
to narrate the reasons. They are well known, and those interested can read them in both
the majority and dissenting opinions in the Twining case, in Boyd v. United States, 116 U.
S. 616, and in the cases cited in notes 8, 9, 10, and 11 of Ashcraft v. Tennessee,
supra. Nor does the history of the practice of compelling testimony in this country, relied on
in the Twining opinion, support the degraded rank which that opinion gave the Fifth
Amendment's privilege against compulsory self-incrimination. I think the history there
recited by the Court belies its conclusion.
The Court in Twining evidently was forced to resort for its degradation of the privilege to
the fact that Governor Winthrop, in trying Mrs. Anne Hutchinson in 1627, was evidently
"not aware of any privilege against self-incrimination or conscious of any duty to respect
it." Id. at 211 U. S. 103-104. Of course, not. [Footnote 2/14] Mrs. Hutchinson was tried, if
trial it can be called, for holding unorthodox religious views. [Footnote 2/15] People with a
consuming belief that their religious convictions must be forced on others rarely ever
believe that the unorthodox have any rights which should or can be rightfully respected. As
a result of her trial and compelled admissions, Mrs. Hutchinson was found guilty of
unorthodoxy and banished from Massachusetts. The lamentable experience of Mrs.
Hutchinson and others contributed to the overwhelming sentiment that demanded adoption
of a Constitutional Bill of Rights. The founders of this Government wanted no more such
"trials" and punishments as Mrs. Hutchinson had to undergo. They wanted to erect barriers
that would bar legislators from passing laws that encroached on the domain of belief, and
that would, among other things, strip courts and all public officers of a power to compel
people to testify against themselves. See Pittman, supra, at 789.
I cannot consider the Bill of Rights to be an outworn 18th Century "strait jacket," as
the Twining opinion did. Its provisions may be thought outdated abstractions by some. And
it is true that they were designed to meet ancient evils. But they are the same kind of
human evils that have emerged from century to century wherever excessive power is
sought by the few at the expense of the many. In my judgment, the people of no nation can
lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are
conscientiously interpreted, enforced and respected so as to afford continuous protection
against old, as well as new, devices and practices which might thwart those purposes. I
fear to see the consequences of the Court's practice of substituting its own concepts of
decency and fundamental justice for the language of the Bill of Rights as its point of
departure in interpreting and enforcing that Bill of Rights. If the choice must be between
the selective process of the Palko decision, applying some of the Bill of Rights to the
States, or the Twining rule, applying none of them, I would choose the Palko selective
process. But, rather than accept either of these choices, I would follow what I believe was
the original purpose of the Fourteenth Amendment -- to extend to all the people of the
nation the complete protection of the Bill of Rights. To hold that this Court can determine
what, if any, provisions of the Bill of Rights will be enforced, and, if so, to what degree, is to
frustrate the great design of a written Constitution. Conceding the possibility that this Court
is now wise enough to improve on the Bill of Rights by substituting natural law concepts for
the Bill of Rights, I think the possibility is entirely too speculative to agree to take that
course. I would therefore hold in this case that the full protection of the Fifth Amendment's
proscription against compelled testimony must be afforded by California. This I would do
because of reliance upon the original purpose of the Fourteenth Amendment.
It is an illusory apprehension that literal application of some or all of the provisions of the
Bill of Rights to the States would unwisely increase the sum total of the powers of this
Court to invalidate state legislation. The Federal Government has not been harmfully
burdened by the requirement that enforcement of federal laws affecting civil liberty
conform literally to the Bill of Rights. Who would advocate its repeal? It must be conceded,
of course, that the natural law-due process formula, which the Court today reaffirms, has
been interpreted to limit substantially this Court's power to prevent state violations of the
individual civil liberties guaranteed by the Bill of Rights. [Footnote 2/16] But this formula
also has been used in the past, and can be used in the future, to license this Court, in
considering regulatory legislation, to roam at large in the broad expanses of policy and
morals and to trespass, all too freely, on the legislative domain of the States as well as the
Federal Government.
Since Marbury v. Madison, 1 Cranch 137, was decided, the practice has been firmly
established, for better or worse, that courts can strike down legislative enactments which
violate the Constitution. This process, of course, involves interpretation, and since words
can have many meanings, interpretation obviously may result in contraction or extension
of the original purpose of a constitutional provision, thereby affecting policy. But to pass
upon the constitutionality of statutes by looking to the particular standards enumerated in
the Bill of Rights and other parts of the Constitution is one thing; [Footnote 2/17] to
invalidate statutes because of application of "natural law," deemed to be above and
undefined by the Constitution, is another. [Footnote 2/18]
"In the one instance, courts proceeding within clearly marked constitutional boundaries
seek to execute policies written into the Constitution; in the other, they roam at will in the
limitless area of their own beliefs as to reasonableness and actually select policies, a
responsibility which the Constitution entrusts to the legislative representatives of the
people."
Federal Power Commission v. Pipeline Co., 315 U. S. 575, 315 U. S. 599, 315 U. S. 601,
n. 4.
MR. JUSTICE DOUGLAS joins in this opinion.
[For dissenting opinion of MURPHY, J., see post, p. 332 U. S. 123.]
[Footnote 2/1]
The cases on which the Court relies seem to adopt these standards. Malinski v. New
York, 324 U. S. 401, concurring opinion, 324 U. S. 412-417; Buchalter v. New York, 319 U.
S. 427, 319 U. S. 429; Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 316.
[Footnote 2/2]
"The question in the case at bar has been twice before us, and been left undecided, as the
cases were disposed of on other grounds." Twining v. New Jersey, supra, 211 U. S. 92.
~Page 29 of 96~
In Palko v. Connecticut, 302 U. S. 319, relied on by the Court, the issue was double
jeopardy, and not enforced self-incrimination.
[Footnote 2/3]
The Fifth Amendment requires indictment by a Grand Jury in many criminal trials, prohibits
double jeopardy, self-incrimination, deprivation of life, liberty or property without due
process of law or the taking of property for public use without just compensation.
The Sixth Amendment guarantees to one accused of crime a speedy, public trial before an
impartial jury of the district where the crime was allegedly committed; it requires that the
accused be informed of the nature of the charge against him, confronted with the
witnesses against him, have compulsory process to obtain witnesses in his favor, and
assistance of counsel.
The Eighth Amendment prohibits excessive bail, fines and cruel and unusual punishments.
[Footnote 2/4]
See Appendix, infra, pp. 332 U. S. 97-98.
[Footnote 2/5]
Another prime purpose was to make colored people citizens entitled to full equal rights as
citizens, despite what this Court decided in the Dred Scott case. Scott v. Sandford, 19
How. 393.
A comprehensive analysis of the historical origins of the Fourteenth Amendment, Flack,
The Adoption of the Fourteenth Amendment (1908) 94, concludes that
"Congress, the House and the Senate, had the following objects and motives in view for
submitting the first section of the Fourteenth Amendment to the States for ratification: "
"1. To make the Bill of Rights (the first eight Amendments) binding upon, or applicable to,
the States."
"2. To give validity to the Civil Rights Bill."
"3. To declare who were citizens of the United States."
[Footnote 2/6]
It is noteworthy that, before the Twining decision, Justices Bradley, Field, Swayne, Harlan,
and apparently Brewer, although they had not been presented with and did not rely upon a
documented history of the Fourteenth Amendment such as is set out in the 332 U.
S. infra nevertheless dissented from the view that the Fourteenth Amendment did not
make provisions of the Bill of Rights applicable to the states. In the attached Appendix (at
pp. 332 U. S. 120-123), I have referred to some cases evidencing their views, and set out
some expressions of it.
A contemporary comment illustrates that the Slaughter-House interpretation of the
Fourteenth Amendment was made without full regard for the congressional purpose or
popular understanding.
"It must be admitted that the construction put upon the language of the first section of this
amendment by the majority of the court is not its primary and most obvious signification.
Ninety-nine out of every hundred educated men, upon reading this section over, would at
first say that it forbade a state to make or enforce a law which abridged any privilege or
immunity whatever of one who was a citizen of the United States, and it is only by an effort
of ingenuity that any other sense can be discovered that it can be forced to bear. It is a
little remarkable that, so far as the reports disclose, no one of the distinguished counsel
who argued this great case (the Slaughter-House Cases), nor any one of the judges who
sat in it, appears to have thought it worthwhile to consult the proceedings of the Congress
which proposed this amendment to ascertain what it was that they were seeking to
accomplish. Nothing is more common than this. There is hardly a question raised as to the
true meaning of a provision of the old, original Constitution that resort is not had to Elliott's
Debates to ascertain what the framers of the instrument declared at the time that they
intended to accomplish. . . ."
Royall, The Fourteenth Amendment: The Slaughter-House Cases, 4 So.L.Rev. (N.S.) 558,
563 (1879).
For a collection of other comments on the Slaughter-House cases, see 2 Warren, The
Supreme Court in United States History (1937) c. 32.
[Footnote 2/7]
The case was not decided until over two years after it was submitted. In a short brief filed
some two years after the first briefs, one of the counsel attacking the constitutionality of the
state statute referred to and cited part of the history of the Fourteenth Amendment. The
historical references made were directed only to an effort to show that a purpose of the
Fourteenth Amendment was to protect freedom of contract against monopoly, since
monopolies interfered with the freedom of contract and the right to engage in business.
Nonetheless some, of these references would have supported the theory, had it been in
question there, that a purpose of the Fourteenth Amendment was to make the Bill of
Rights applicable to the states. For counsel quoted a statement by Congressman Bingham
that
". . . it is . . . clear by every construction of the Constitution, its continued construction,
legislative, executive and judicial, that these great provisions of the Constitution, this
immortal bill of rights embodied in the Constitution, rested for its execution and
enforcement hitherto upon the fidelity of the States. The House knows, the country knows .
. . , that the legislative, executive and judicial officers of eleven States within this Union,
within the last five years, have utterly disregarded the behest."
But since there was no contention that the Bill of Rights Amendment prohibited monopoly,
this statement, in the context in which it was quoted, is hardly an indication that the Court
was presented with documented argument on the question of whether the Fourteenth
Amendment made the Bill of Rights applicable to the States.
[Footnote 2/8]
See San Mateo County v. Southern P. R. Co., 116 U. S. 138; Santa Clara County v.
Southern P. R. Co., 118 U. S. 394, 118 U. S. 396; Graham, The "Conspiracy Theory" of the
Fourteenth Amendment, 47 Yale L.J. 371, 48 Yale L.J. 171.
[Footnote 2/9]
This case was decided after Hurtado but before Twining. It apparently was the first
decision of this Court which brought in a Bill of Rights provision under the due process
clause. In Davidson v. New Orleans, 96 U. S. 97, 96 U. S. 105, the Court had refused to
make such a holding, saying that
"it must be remembered that, when the Fourteenth Amendment was adopted, the provision
on that subject [just compensation], in immediate juxtaposition in the fifth amendment with
~Page 30 of 96~
the one we are now construing [due process], was left out, and this [due process] was
taken."
Not only was the just compensation clause left out, but it was deliberately left out. A
Committee on Reconstruction framed the Fourteenth Amendment, and its Journal shows
that, on April 21, 1866, the Committee, by a 7 to 5 vote, rejected a proposal to incorporate
the just compensation clause in the Fourteenth Amendment. Journal of the Joint
Committee on Reconstruction, 39th Cong., 1st Sess. (1866), reprinted as Sen.Doc. No.
711, 63d Cong., 3d Sess. (1915) 29. As shown by the history of the Amendment's
passage, however, the Framers thought that in the language they had included this
protection along with all the other protections of the Bill of Rights. See 332 U. S. infra.
[Footnote 2/10]
One writer observed,
"That the Supreme Court has, on the one hand, refused to give this Amendment its evident
meaning and purpose -- thus completely defeating the intention of the Congress that
framed it and of the people that adopted it. But, on the other hand, the Court has put into it
a meaning which had never been intended either by its framers or adopters -- thus, in
effect, adopting a new Amendment and augmenting its own power by constituting itself
that 'perpetual censor upon all legislation of the state,' which Mr. Justice Miller was afraid
the Court would become if the Fourteenth Amendment were interpreted according to its
true meaning and given the full effect intended by the people when they adopted it."
2 Boudin, Government by Judiciary (1932) 117. See also Haines, The Revival of Natural
Law Concepts (1930) 143-165; Fairman, Mr. Justice Miller and the Supreme Court (1939)
c. VIII.
[Footnote 2/11]
See cases collected pp. 332 U. S. 78-79 supra. Other constitutional rights left unprotected
from state violation are, for example, right to counsel, Betts v. Brady, 316 U. S. 455;
privilege against self-incrimination, Feldman v. United States, 322 U. S. 487, 322 U. S.
490.
[Footnote 2/12]
Examples of regulatory legislation invalidated are: state ten-hour law for bakery
employees, Lochner v. New York, 198 U. S. 45; cf. Muller v. Oregon, 208 U. S. 412; District
of Columbia minimum wage for women, Adkins v. Children's Hospital, 261 U. S.
525; Morehead v. New York, 298 U. S. 587; but cf. West Coast Hotel Co. v. Parrish, 300 U.
S. 379; state law making it illegal to discharge employee for membership in a
union, Coppage v. Kansas, 236 U. S. 1; cf. Adair v. United States, 208 U. S. 161; state law
fixing price of gasoline, Williams v. Standard Oil Co., 278 U. S. 235; state taxation of
bonds, Baldwin v. Missouri, 281 U. S. 586; state law limiting amusement ticket
brokerage, Ribnik v. McBride, 277 U. S. 350; law fixing size of loaves of bread to prevent
fraud on public, Jay Burns Baking Co. v. Bryan, 264 U. S. 504; cf. Schmidinger v.
Chicago, 226 U. S. 578.
[Footnote 2/13]
See particularly dissents in cases cited notes 11 and 12, supra.
[Footnote 2/14]
Actually, it appears that the practice of the Court of Star Chamber of compelling an
accused to testify under oath in Lilburn's trial, 3 Howell's State Trials 1315; 4 id. 1269,
1280, 1292, 1342, had helped bring to a head the popular opposition which brought about
the demise of that engine of tyranny. 16 Car. I, cc. 10, 11. See 8 Wigmore, Evidence
(1940) pp. 292, 298; Pittman, The Colonial and Constitutional History of the Privilege
Against Self-incrimination, 21 Va.L.Rev. 763, 774 (1935). Moreover, it has been pointed
out that seven American state constitutions guaranteed a privilege against self-
incrimination prior to 1789. Pittman, supra, 765; Md.Const. (1776), 1 Poore Constitutions
(1878) 818; Mass.Const. (1780), id. at 958; N.C.Const. (1776), 2 id. at 1409; N.H.Const.
(1784), id. at 1282; Pa.Const. (1776), id. at 1542; Vt.Const. (1777), id. at 1860; Va. Bill of
Rights (1776), id. at 1909.
By contrast, it has been pointed out that freedom of speech was not protected by colonial
or state constitutions prior to 1789 except for the right to speak freely in sessions of the
legislatures. See Warren, The New "Liberty" under the Fourteenth Amendment, 39
Harv.L.Rev. 431, 461 (1926).
[Footnote 2/15]
For accounts of the proceedings against Mrs. Hutchinson, see 1 Hart, American History
Told by Contemporaries, 382 ff. (1897); Beard, The Rise of American Civilization (1930)
57; 1 Andrews, The Colonial Period of American History, 485 (1934).
[Footnote 2/16]
See, e.g., Betts v. Brady, 316 U. S. 455; Feldman v. United States, 322 U. S. 487.
[Footnote 2/17]
See Chambers v. Florida, 309 U. S. 227; Polk Co. v. Glover, 305 U. S. 5, 305 U. S. 12-
19; McCart v. Indianapolis Water Co., 302 U. S. 419, 302 U. S. 423, 428; Milk Wagon
Drivers v. Meadowmoor Dairies, 312 U. S. 287, 312 U. S. 299, 301; Betts v. Brady, 316 U.
S. 455, 316 U. S. 474; International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S.
322, 326 U. S. 324-326; Feldman v. United States, 322 U. S. 487, 322 U. S. 494, 322 U. S.
495; Federal Power Comm'n v. Hope Natural Gas Co., 320 U. S. 591, 320 U. S. 619, 320
U. S. 620; United Gas Co. v. Texas, 303 U. S. 123, 303 U. S. 146, 307 U. S. 153; Gibbs v.
Buck, 307 U. S. 66, 307 U. S. 79.
[Footnote 2/18]
An early and prescient expose of the inconsistency of the natural law formula with our
constitutional form of government appears in the concurring opinion of Mr. Justice Iredell
in Calder v. Bull, 3 Dall. 386, 3 U. S. 398, 3 U. S. 399:
"If any act of Congress, or of the Legislature of a state, violates . . . constitutional
provisions, it is unquestionably void, though I admit that, as the authority to declare it void
is of a delicate and awful nature, the Court will never resort to that authority but in a clear
and urgent case. If, on the other hand, the Legislature of the Union, or the Legislature of
any member of the Union, shall pass a law within the general scope of their constitutional
power, the Court cannot pronounce it to be void merely because it is, in their judgment,
contrary to the principles of natural justice. The ideas of natural justice are regulated by no
fixed standard; the ablest and the purest men have differed upon the subject, and all that
the Court could properly say in such an event would be that the Legislature (possessed of
~Page 31 of 96~
an equal right of opinion) had passed an act which, in the opinion of the judges, was
inconsistent with the abstract principles of natural justice."
See also Haines, The Law of Nature in State and Federal Decisions, 25 Yale L.J. 617
(1916); Judicial Review of Legislation in the United States and the Doctrines of Vested
Rights and of Implied Limitations on Legislatures, 2 Tex.L.Rev. 257 (1924), 3 Tex.L.Rev. 1
(1924); The Revival of Natural Law Concepts (1930); The American Doctrine of Judicial
Supremacy (1932); The Role of the Supreme Court in American Government and Politics
(1944).
|332 U.S. 46app|
APPENDIX
I When, on February 26, the proposed amendment came up for debate, Mr. Bingham stated
The legislative origin of the first section of the Fourteenth Amendment seems to have been
in the Joint Committee on Reconstruction. That Committee had been appointed by a
concurrent resolution of the House and Senate with authority to report "by bill or otherwise"
whether the former Confederate States "are entitled to be represented in either House of
Congress." Cong.Globe, 39th Cong., 1st Sess. (1865) 6, 30. The broad mission of that
Committee was revealed by its very first action of sending a delegation to President
Johnson requesting him to "defer all further executive action in regard to reconstruction
until this committee shall have taken action on that subject." Journal of the Joint
Committee on Reconstruction, 39th Cong., 1st Sess. (1866), reprinted as Sen.Doc. No.
711, 63d Cong., 3d Sess. (1915) 6. It immediately set about the business of drafting
constitutional amendments which would outline the plan of reconstruction which it would
recommend to Congress. Some of those proposed amendments related to suffrage and
representation in the South. Journal, 7. On January 12, 1866, a subcommittee, consisting
of Senators Fessenden (Chairman of the Reconstruction Committee)
Page 332 U. S. 93
and Howard, and Congressmen Stevens, Bingham and Conkling, was appointed to
consider those suffrage proposals. Journal, 9. There was at the same time referred to this
Committee a "proposed amendment to the Constitution" submitted by Mr. Bingham that:
"The Congress shall have power to make all laws necessary and proper to secure to all
persons in every State within this Union equal protection in their rights of life, liberty, and
property."
Journal, 9. Another proposed amendment that "All laws, State or national, shall operate
impartially and equally on all persons without regard to race or color," [Footnote 3/1] was
also referred to the Committee. Journal, 9. On January 24, 1866, the subcommittee
reported back a combination of these two proposals which was not accepted by the full
Committee. Journal, 13, 14. Thereupon, the proposals were referred to a "select
committee of three," Bingham, Boutwell and Rogers. Journal, 14. On January 27, 1866,
Mr. Bingham, on behalf of the select committee, presented this recommended amendment
to the full committee:
"Congress shall have power to make all laws which shall be necessary and proper to
secure all persons in every State full protection in the enjoyment of life, liberty, and
property, and to all citizens of the United States, in any State, the same immunities and
also equal political rights and privileges."
Journal, 14. This was not accepted. But on February 3, 1866, Mr. Bingham submitted an
amended version:
"The Congress shall have power to make all laws which shall be necessary and proper to
secure to the citizens of each State all privileges and immunities of citizens in the several
States (Art. 4, sec. 2), and to all persons in the several States equal protection
Page 332 U. S. 94
in the rights of life, liberty, and property (5th amendment)."
This won committee approval, Journal, 17, and was presented by Mr. Bingham to the
House on behalf of the Committee on February 13, 1866. Cong.Globe, supra, 813.
II
that, "by order . . . of the committee . . . , I propose the adoption of this amendment." In
support of it, he said:
". . . the amendment proposed stands in the very words of the Constitution of the United
States as it came to us from the hands of its illustrious framers. Every word of the
proposed amendment is today in the Constitution of our country, save the words conferring
the express grant of power upon the Congress of the United States. The residue of the
resolution, as the House will see by a reference to the Constitution, is the language of the
second section of the fourth article, and of a portion of the fifth amendment adopted by the
First Congress in 1789, and made part of the Constitution of the country. . . ."
"Sir, it has been the want of the Republic that there was not an express grant of power in
the Constitution to enable the whole people of every State, by congressional enactment, to
enforce obedience to these requirements of the Constitution. Nothing can be plainer to
thoughtful men than that, if the grant of power had been originally conferred upon the
Congress of the nation, and legislation had been upon your statute books to enforce these
requirements of the Constitution in every State, that rebellion which has scarred and
blasted the land would have been an impossibility. . . ."
"* * * *"
"And, sir, it is equally clear by every construction of the Constitution, its contemporaneous
construction, its continued
Page 332 U. S. 95
construction, legislative, executive, and judicial, that these great provisions of the
Constitution, this immortal bill of rights embodied in the Constitution, rested for its
execution and enforcement hitherto upon the fidelity of the States. . . ."
Cong.Globe, supra, 1033-1034.
Opposition speakers emphasized that the Amendment would destroy state's rights and
empower Congress to legislate on matters of purely local concern.
Cong.Globe, supra, 1054, 1057, 1063-1065, 1083, 1085-1087. See also id. at 1082. Some
took the position that the Amendment was unnecessary because the Bill of Rights were
already secured against state violation. Id. at 1059, 1066, 1088. Mr. Bingham joined issue
on this contention:
"The gentleman seemed to think that all persons could have remedies for all violations of
their rights of 'life, liberty, and property' in the Federal courts."
~Page 32 of 96~
"I ventured to ask him yesterday when any action of that sort was ever maintained in any
of the Federal courts of the United States to redress the great wrong which has been
practiced, and which is being practiced now in more States than one of the Union under
the authority of State laws, denying to citizens therein equal protection or any protection in
the rights of life, liberty, and property."
"* * * *"
". . . A gentleman on the other side interrupted me and wanted to know if I could cite a
decision showing that the power of the Federal Government to enforce in the United
States courts the bill of rights under the articles of amendment to the Constitution had
been denied. I answered that I was prepared to introduce such decisions, and that is
exactly what makes plain the necessity of adopting this amendment."
"Mr. Speaker, on this subject, I refer the House and the country to a decision of the
Supreme Court, to be found in 7 Peters 32 U. S. 247, in the case of Barron vs. The Mayor
and City
Page 332 U. S. 96
Council of Baltimore, involving the question whether the provisions of the fifth article of the
amendments to the Constitution are binding upon the State of Maryland and to be
enforced in the Federal courts. The Chief Justice says: "
"The people of the United States framed such a Government for the United States as they
supposed best adapted to their situation and best calculated to promote their interests.
The powers they conferred on this Government were to be exercised by itself, and the
limitations of power, if expressed in general terms, are naturally, and we think necessarily,
applicable to the Government created by the instrument. They are limitations of power
granted in the instrument itself, not of distinct governments, framed by different persons
and for different purposes."
"If these propositions be correct, the fifth amendment must be understood as restraining
the power of the General Government, not as applicable to the States."
"I read one further decision on this subject -- the case of the Lessee of Livingston vs.
Moore and others, 7 Peters, page 32 U. S. 551. The court, in delivering its opinion, says: "
" As to the amendments of the Constitution of the United States, they must be put out of
the case, since it is now settled that those amendments do not extend to the States, and
this observation disposes of the next exception, which relies on the seventh article of those
amendments."
"* * * *"
"The question is simply whether you will give by this amendment to the people of the
United States the power, by legislative enactment, to punish officials of States for violation
of the oaths enjoined upon them by their Constitution? . . . Is the bill of rights to stand in
Page 332 U. S. 97
our Constitution hereafter, as in the past five years within eleven States, a mere dead
letter? It is absolutely essential to the safety of the people that it should be enforced."
"Mr. Speaker, it appears to me that this very provision of the bill of rights brought in
question this day, upon this trial before the House, more than any other provision of the
Constitution, makes that unity of government which constitutes us one people, by which
and through which American nationality came to be, and only by the enforcement of which
can American nationality continue to be."
"* * * *"
"What more could have been added to that instrument to secure the enforcement of these
provisions of the bill of rights in every State, other than the additional grant of power which
we ask this day? . . ."
"As slaves were not protected by the Constitution, there might be some color of excuse for
the slave States in their disregard for the requirement of the bill of rights as to slaves, and
refusing them protection in life or property"
"But, sir, there never was even colorable excuse, much less apology, for any man, North or
South, claiming that any State Legislature, or State court, or State Executive has any right
to deny protection to any free citizen of the United States within their limits in the rights of
life, liberty, and property. Gentlemen who oppose this amendment oppose the grant of
power to enforce the hill of rights. Gentlemen who oppose this amendment simply declare
to these rebel States, go on with your confiscation statutes, your statutes of banishment,
your statutes of unjust imprisonment, your statutes of murder and death against men
because of their loyalty to the Constitution and Government of the United States."
Id. at 1089-1091.
". . . Where is the power in Congress, unless this or some similar amendment be adopted,
to prevent the reenactment
Page 332 U. S. 98
of those infernal statutes . . . ? Let some man answer. Why, sir, the gentleman from New
York [Mr. HALE] . . . yesterday gave up the argument on this point. He said that the
citizens must rely upon the State for their protection. I admit that such is the rule under the
Constitution as it now stands."
Id. at 1093.
As one important writer on the adoption of the Fourteenth Amendment has observed,
"Bingham's speech in defense and advocacy of his amendment comprehends practically
everything that was said in the press or on the floor of the House in favor of the
resolution. . . ."
Kendrick, Journal of the Joint Committee on Reconstruction (1914) 217. A reading of the
debates indicates that no member except Mr. Hale had contradicted Mr. Bingham's
argument that, without this Amendment, the states had power to deprive persons of the
rights guaranteed by the first eight amendments. Mr. Hale had conceded that he did not
"know of a case where it has ever been decided that the United States Constitution is
sufficient for the protection of the liberties of the citizen."
Cong.Globe, supra, at 1064. But he was apparently unaware of the decision of this Court
in Barron v. Baltimore, supra. For he thought that the protections of the Bill of Rights had
already been "thrown over us in some way, whether with or without the sanction of a
judicial decision. . . ." And, in any event, he insisted, ". . . the American people have not yet
found that their State governments are insufficient to protect the rights and liberties of the
citizen." He further objected, as had most of the other opponents to the proposal, that the
Amendment authorized the Congress to "arrogate" to itself vast powers over all kinds of
affairs which should properly be left to the States. Cong.Globe, supra, 1064-1065.
~Page 33 of 96~
When Mr. Hotchkiss suggested that the amendment should be couched in terms of a
prohibition against the States in addition to authorizing Congress to legislate
Page 332 U. S. 99
against state deprivations of privileges and immunities, debate on the amendment was
postponed until the second Tuesday of April, 1866. Cong.Globe, supra, 195.
III
Important events which apparently affected the evolution of the Fourteenth Amendment
transpired during the period during which discussion of it was postponed. The Freedman's
Bureau Bill, which made deprivation of certain civil rights of negroes an offense punishable
by military tribunals, had been passed. It applied not to the entire country, but only to the
South. On February 19, 1866, President Johnson had vetoed the bill, principally on the
ground that it was unconstitutional. Cong.Globe, supra, 915. Forthwith, a companion
proposal known as the Civil Rights Bill, empowering federal courts to punish those who
deprived any person anywhere in the country of certain defined civil rights, was pressed to
passage. Senator Trumbull, Chairman of the Senate Judiciary Committee, who offered the
bill in the Senate on behalf of that Committee, had stated that "the late slaveholding
States" had enacted laws
". . . depriving persons of African descent of privileges which are essential to freemen . . .
[S]tatutes of Mississippi . . . provide that . . . [i]f any person of African descent residing in
that State travels from one county to another without having a pass or a certificate of his
freedom, he is liable to be committed to jail and to be dealt with as a person who is in the
State without authority. Other provisions of the statute prohibit any negro or mulatto from
having firearms, and one provision of the statute declares that, for 'exercising the functions
of a minister of the Gospel, free negroes . . . , on conviction, may be punished by . . .
lashes. . . .' Other provisions . . . prohibit a free negro . . . from keeping a house of
entertainment, and subject him to trial before two justices of the peace and five
slaveholders for
Page 332 U. S. 100
violating . . . this law. The statutes of South Carolina make it a highly penal offense for any
person, white or colored, to teach slaves, and similar provisions are to be found running
through all the statutes of the late slaveholding States. . . . The purpose of the bill . . . is to
destroy all these discriminations. . . ."
Cong.Globe, supra, 474.
In the House, after Mr. Bingham's original proposal for a constitutional amendment had
been rejected, the suggestion was also advanced that the bill secured for all "the right of
speech, . . . transit, . . . domicil, . . . the right to sue, the writ of habeas corpus, and the
right of petition." Cong.Globe, supra, 1263. And an opponent of the measure, Mr.
Raymond, conceded that it would guarantee to the negro "the right of free passage . . . He
has a defined status . . . a right to defend himself . . . to bear arms . . . to testify in the
Federal courts. . . ." Cong.Globe, supra, 1266-1267. But opponents took the position that,
without a constitutional amendment such as that proposed by Mr. Bingham, the Civil
Rights Bill would be unconstitutional. Cong.Globe, supra, 1154-1155, 1263.
Mr. Bingham himself vigorously opposed and voted against the Bill. His objection was two-
fold: first, insofar as it extended the protections of the Bill of Rights as against state
invasion, he believed the measure to be unconstitutional because of the Supreme Court's
holding in Barron v. Baltimore, supra. While favoring the extension of the Bill of Rights
guarantees as against state invasion, he thought this could be done only by passage of his
amendment. His second objection to the Bill was that, in his view, it would go beyond his
objective of making the states observe the Bill of Rights, and would actually strip the states
of power to govern, centralizing all power in the Federal Government. To this, he was
opposed. His views are, in part, reflected by his own remarks and the answers to him by
Mr. Wilson. Mr. Bingham said, in part:
Page 332 U. S. 101
". . . I do not oppose any legislation which is authorized by the Constitution of my country
to enforce in its letter and its spirit the bill of rights as embodied in that Constitution. I know
that the enforcement of the bill of rights is the want of the Republic. I know, if it had been
enforced in good faith in every State of the Union, the calamities and conflicts and crimes
and sacrifices of the past five years would have been impossible."
"But I feel that I am justified in saying, in view of the text of the Constitution of my country,
in view of all its past interpretations, in view of the manifest and declared intent of the men
who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of
every citizen of the Republic within every organized State of the Union, is of the reserve
powers of the States, to be enforced by State tribunals. . . ."
". . . I am with him in an earnest desire to have the bill of rights in your Constitution
enforced everywhere. But I ask that it be enforced in accordance with the Constitution of
my country."
"* * * *"
". . . I submit that the term 'civil rights' includes every right that pertains to the citizen under
the Constitution, laws, and Government of this country. . . ."
"* * * *"
". . . The law in every State should be just; it should be no respecter of persons. It is
otherwise now, and it has been otherwise for many years in many of the States of the
Union. I should remedy that not by an arbitrary assumption of power, but by amending the
Constitution of the United States, expressly prohibiting the States from any such abuse of
power in the future. . . ."
"* * * *"
"If the bill of rights, as has been solemnly ruled by the Supreme Court of the United States,
does not limit the powers of States and prohibit such gross injustice by
Page 332 U. S. 102
States, it does limit the power of Congress and prohibit any such legislation by Congress."
"* * * *"
". . . [T]he care of the property, the liberty, and the life of the citizen, under the solemn
sanction of an oath imposed by your Federal Constitution, is in the States, and not in the
Federal Government. I have sought to effect no change in that respect in the Constitution
of the country. I have advocated here an amendment which would arm Congress with the
power to compel obedience to the oath and punish all violations by State officers of the bill
of rights, but leaving those officers to discharge the duties enjoined upon them as citizens
of the United States by that oath and by that Constitution. . . ."
~Page 34 of 96~
Cong.Globe, supra, 1291-1292.
Mr. Wilson, House sponsor of the Civil Rights Bill, answered Mr. Bingham's objections to it
with these remarks:
"The gentleman from Ohio tells the House that civil rights involve all the rights that citizens
have under the Government; that, in the term are embraced those rights which belong to
the citizen of the United States as such, and those which belong to a citizen of a State as
such, and that this bill is not intended merely to enforce equality of rights so far as they
relate to citizens of the United States, but invades the States to enforce equality of rights in
respect to those things which properly and rightfully depend on State regulations and laws.
. . ."
". . . I find in the bill of rights which the gentleman desires to have enforced by an
amendment to the Constitution that 'no person shall be deprived of life, liberty, or property
without due process of law.' I understand that these constitute the civil rights belonging to
the citizens in connection with those which are necessary for the protection and
maintenance and perfect enjoyment of the rights thus specifically named, and these are
the rights to
Page 332 U. S. 103
which this bill relates, having nothing to do with subjects submitted to the control of the
several States."
Cong.Globe, supra, at 1294.
In vetoing the Civil Rights Bill, President Johnson said, among other things, that the bill
was unconstitutional for many of the same reasons advanced by Mr. Bingham:
"Hitherto, every subject embraced in the enumeration of rights contained in this bill has
been considered as exclusively belonging to the States. . . . As respects the Territories,
they come within the power of Congress, for, as to them, the lawmaking power is the
Federal power; but, as to the States, no similar provisions exist vesting in Congress the
power 'to make rules and regulations' for them."
Cong.Globe, supra, 1679, 1680.
The bill, however, was passed over President Johnson's veto and in spite of the
constitutional objections of Bingham and others. Cong.Globe, supra, 1809, 1861.
IV
Thereafter, the scene changed back to the Committee on Reconstruction. There, Mr.
Stevens had proposed an amendment, 1 of which provided
"No discrimination shall be made by any State, nor by the United States, as to the civil
rights of persons because of race, color, or previous condition of servitude."
Journal, 28. Mr. Bingham proposed an additional section providing that
"No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty or
property without due process of law, nor deny to any person within its jurisdiction the equal
protection of the laws."
Journal, 30. After the committee had twice declined to recommend Mr. Bingham's
proposal, on April 28, it was accepted by the Committee, substantially in the form he had
proposed it, as 1 of the recommended Amendment. Journal, 44.
Page 332 U. S. 104
V
In introducing the proposed Amendment to the House on May 8, 1866, Mr. Stevens,
speaking for the Committee, said:
"The first section [of the proposed amendment] prohibits the States from abridging the
privileges and immunities of citizens of the United States, or unlawfully depriving them of
life, liberty, or property, or of denying to any person within their jurisdiction the 'equal'
protection of the laws."
"I can hardly believe that any person can be found who will not admit that every one of
these provisions is just. They are all asserted, in some form or other, in our
DECLARATION or organic law. But the Constitution limits only the action of Congress, and
is not a limitation on the States. This amendment supplies that defect, and allows
Congress to correct the unjust legislation of the States, so far that the law which operates
upon one man shall operate equally upon all."
Cong.Globe, 2459. [Footnote 3/2]
On May 23, 1866, Senator Howard introduced the proposed amendment to the Senate in
the absence of Senator Fessenden, who was sick. Senator Howard prefaced his remarks
by stating:
"I . . . present to the Senate . . . the views and the motives [of the Reconstruction
Committee]. . . . One result of their investigations has been the joint resolution for the
amendment of the Constitution of the United States now under consideration. . . ."
"The first section of the amendment . . . submitted for the consideration of the two Houses
relates to the privileges and immunities of citizens of the several States,
Page 332 U. S. 105
and to the rights and privileges of all persons, whether citizens or others, under the laws of
the United States."
"It will be observed that this is a general prohibition upon all the States, as such, from
abridging the privileges and immunities of the citizens of the United States. That is its first
clause, and I regard it as very important. It also prohibits each one of the States from
depriving any person of life, liberty, or property without due process of law, or denying to
any person within the jurisdiction of the State the equal protection of its laws."
"* * * *"
"It would be a curious question to solve what are the privileges and immunities of citizens
of each of the States in the several States. . . . I am not aware that the Supreme Court
have ever undertaken to define either the nature or extent of the privileges and immunities
thus guarantied. . . . But we may gather some intimation of what probably will be the
opinion of the judiciary by referring to . . . Corfield vs. Coryell . . . , 4 Washington's Circuit
Court Reports, page 380. [Here Senator Howard quoted at length from that opinion.]"
"Such is the character of the privileges and immunities spoken of in the second section of
the fourth article of the Constitution. To these privileges and immunities, whatever they
may be -- for they are not and cannot be fully defined in their entire extent and precise
nature -- to these should be added the personal rights guarantied and secured by the first
eight amendments of the Constitution, such as the freedom of speech and of the press;
the right of the people peaceably to assemble and petition the Government for a redress of
grievances, a right appertaining to each and all the people; the right to keep and to bear
~Page 35 of 96~
arms; the right to be exempted from the quartering of soldiers in a house without the
consent of the owner;
Page 332 U. S. 106
the right to be exempt from unreasonable searches and seizures, and from any search or
seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an
accused person to be informed of the nature of the accusation against him, and his right to
be tried by an impartial jury of the vicinage, and also the right to be secure against
excessive bail and against cruel and unusual punishments."
"Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by
the second section of the fourth article of the Constitution, which I have recited, some by
the first eight amendments of the Constitution, and it is a fact well worthy of attention that
the course of decision of our courts and the present settled doctrine is that all these
immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are
secured to the citizens solely as a citizen of the United States, and as a party in their
courts. They do not operate in the slightest degree as a restraint or prohibition upon State
legislation. States are not affected by them, and it has been repeatedly held that the
restriction contained in the Constitution against the taking of private property for public use
without just compensation is not a restriction upon State legislation, but applies only to the
legislation of Congress."
"Now, sir, there is no power given in the Constitution to enforce and to carry out any of
these guarantees. They are not powers granted by the Constitution to Congress, and, of
course, do not come within the sweeping clause of the Constitution authorizing Congress
to pass all laws necessary and proper for carrying out the foregoing or granted powers, but
they stand simply as a bill of rights in the Constitution, without power on the part of
Congress to give them full effect, while, at the same time, the States are not restrained
from violating the principles embraced in them except by their own local constitutions,
Page 332 U. S. 107
which may be altered from year to year. The great object of the first section of this
amendment is, therefore, to restrain the power of the States and compel them at all times
to respect these great fundamental guarantees."
Cong.Globe, supra, 2765.
Mr Bingham had closed the debate in the House on the proposal prior to its consideration
by the Senate. He said, in part:
". . . [M]any instances of State injustice and oppression have already occurred in the State
legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the
United States, for which the national Government furnished and could furnish by law no
remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual
punishments' have been inflicted under State laws within this Union upon citizens not only
for crimes committed, but for sacred duty done, for which and against which the
Government of the United States had provided no remedy, and could provide none."
"* * * *"
"It was an opprobrium to the Republic that, for fidelity to the United States, they could not,
by national law, be protected against the degrading punishment inflicted on slaves and
felons by State law. That great want of the citizen and stranger, protection by national law
from unconstitutional State enactments, is supplied by the first section of this amendment."
Cong.Globe, supra, 2542-2543.
Both proponents and opponents of 1 of the amendment spoke of its relation to the Civil
Rights Bill which had been previously passed over the President's veto. Some considered
that the amendment settled any doubts there might be as to the constitutionality of the Civil
Rights Bill. Cong.Globe, 2511, 2896. Others maintained that the Civil Rights Bill would be
unconstitutional
Page 332 U. S. 108
unless and until the amendment was adopted. Cong.Globe, 2461, 2502, 2506, 2513,
2961. Some thought that amendment was nothing but the Civil Rights "in another shape."
Cong.Globe, 2459, 2462, 2465, 2467, 2498, 2502. One attitude of the opponents was
epitomized by a statement by Mr. Shanklin that the amendment strikes
"down the reserved rights of the States, . . . declared by the framers of the Constitution to
belong to the States exclusively and necessary for the protection of the property and
liberty of the people. The first section of this proposed amendment . . . is to strike down
those State rights and invest all power in the General Government."
Cong.Globe, supra, 2500. See also Cong.Globe, supra, 2530, 2538.
Except for the addition of the first sentence of 1, which defined citizenship,
Cong.Globe, supra, 2869, the amendment weathered the Senate debate without
substantial change. It is significant that several references were made in the Senate
debate to Mr. Bingham's great responsibility for 1 of the amendment as passed by the
House. See, e.g., Cong.Globe, supra, 2896.
VI
Also just prior to the final votes in both Houses passing the resolution of adoption, the
Report of the Joint Committee on Reconstruction, H.R.Rep. No. 30, 39th Cong., 1st Sess.
(1866); Sen.Rep. No. 112, 39th Cong., 1st Sess. (1866), was submitted.
Cong.Globe, supra, 3038, 3051. This report was apparently not distributed in time to
influence the debates in Congress. But a student of the period reports that 150,000 copies
of the Report and the testimony which it contained were printed in order that senators and
representatives might distribute them among their constituents. Apparently the Report was
widely reprinted in the press and used as a campaign document
Page 332 U. S. 109
in the election of 1866. Kendrick, Journal of the Joint Committee on Reconstruction (1914)
265. According to Kendrick, the Report was "eagerly . . . perused" for information
concerning "conditions in the South." Kendrick, supra, 265.
The Report of the Committee had said with reference to the necessity of amending the
Constitution:
". . . [T]he so-called Confederate States are not, at present, entitled to representation in the
Congress of the United States; that, before allowing such representation, adequate
security for future peace and safety should be required; that this can only be found in such
changes of the organic law as shall determine the civil rights and privileges of all citizens in
all parts of the republic. . . ."
Report, supra, XXI.
~Page 36 of 96~
Among the examples recited by the testimony were discrimination against negro churches
and preachers by local officials and criminal punishment of those who attended
objectionable church services. Report, Part II, 52. Testimony also cited recently enacted
Louisiana laws which made it
"a highly penal offence for anyone to do anything that might be construed into encouraging
the blacks to leave the persons with whom they had made contracts for labor. . . ."
Report, Part III, p. 25. [Footnote 3/3]
Flack, supra, at 142, who canvassed newspaper coverage and speeches concerning the
popular discussion of the adoption of the Fourteenth Amendment, indicates that
Page 332 U. S. 110
Senator Howard's speech stating that one of the purposes of the first section was to give
Congress power to enforce the Bill of Rights, as well as extracts and Digests of other
speeches were published widely in the press. Flack summarizes his observation that
"The declarations and statements of newspapers, writers and speakers, . . . show very
clearly, . . . the general opinion held in the North. That opinion, briefly stated, was that the
Amendment embodied the Civil Rights Bill, and gave Congress the power to define and
secure the privileges of citizens of the United States. There does not seem to have been
any statement at all as to whether the first eight Amendments were to be made applicable
to the States or not, whether the privileges guaranteed by those Amendments were to be
considered as privileges secured by the Amendment, but it may be inferred that this was
recognized to be the logical result by those who thought that the freedom of speech and of
the press, as well as due process of law, including a jury trial, were secured by it."
Flack, supra, 153-154.
VII
Formal statements subsequent to adoption of the Amendment by the congressional
leaders who participated in the drafting and enactment of it are significant. In 1871, a bill
was before the House which contemplated enforcement of the Fourteenth Amendment. Mr.
Garfield, who had participated in the debates on the Fourteenth Amendment in 1866, said:
"I now come to consider . . . , for it is the basis of the pending bill, the fourteenth
amendment. I ask the attention of the House to the first section of that amendment, as to
its scope and meaning. I hope gentlemen will bear in mind that this debate, in which so
many have taken part, will become historical, as the earliest legislative construction
Page 332 U. S. 111
given to this clause of the amendment. Not only the words which we put into the law, but
what shall be said here in the way of defining and interpreting the meaning of the clause,
may go far to settle its interpretation and its value to the country hereafter."
Cong.Globe, 42d Cong., 1st Sess. (1871) App. 150.
"The next clause of the section under debate declares: 'Nor shall any State deprive any
person of life, liberty, or property, without due process of law.'"
"This is copied from the fifth article of amendments, with this difference: as it stood in the
fifth article, it operated only as a restraint upon Congress, while here it is a direct restraint
upon the governments of the States. The addition is very valuable. It realizes the full force
and effect of the clause in Magna Charta from which it was borrowed, and there is now no
power in either the State or the national Government to deprive any person of those great
fundamental rights on which all true freedom rests, the rights of life, liberty, and property,
except by due process of law; that is, by an impartial trial according to the laws of the land.
. . ."
Cong.Globe, supra, at 152-3.
A few days earlier, in a debate on this same bill to enforce the Fourteenth Amendment, Mr.
Bingham, still a member of Congress, had stated at length his understanding of the
purpose of the Fourteenth Amendment as he had originally conceived it:
"Mr. Speaker, the honorable gentleman from Illinois [Mr. FARNSWORTH] did me,
unwittingly, great service when he ventured to ask me why I changed the form of the first
section of the fourteenth article of amendment from the form in which I reported it to the
House in February, 1866, from the Committee on Reconstruction. I will answer the
gentleman, sir, and answer him truthfully. I had the honor to frame the amendment as
reported in February, 1866, and the first section, as it now
Page 332 U. S. 112
stands, letter for letter and syllable for syllable, in the fourteenth article of the amendments
to the Constitution of the United States, save the introductory clause defining citizens. The
clause defining citizens never came from the joint Committee on Reconstruction, but the
residue of the first section of the fourteenth amendment did come from the committee
precisely as I wrote it and offered it in the Committee on Reconstruction, and precisely as
it now stands in the Constitution. . . ."
"That is the grant of power. It is full and complete. The gentleman says that amendment
differs from the amendment reported by me in February; differs from the provision
introduced and written by me, now in the fourteenth article of amendments. It differs in this:
that it is, as it now stands in the Constitution, more comprehensive than as it was first
proposed and reported in February, 1866. It embraces all and more than did the February
proposition."
"* * * *"
"The gentleman ventured upon saying that this amendment does not embrace all of the
amendment prepared and reported by me with the consent of the committee in February,
1866. The amendment reported in February, and to which the gentleman refers, is as
follows:"
" The Congress shall have power to make all laws which shall be necessary and proper to
secure to the citizens of each State all the privileges and immunities of citizens in the
several States, and to all persons in the several States equal protection in the rights of life,
liberty, and property."
"That is the amendment, and the whole of it, as reported in February, 1866. That
amendment never was rejected by the House or Senate. A motion was made to lay it on
the table, which was a test vote on the merits of it, and the motion failed. . . . I consented
to and voted for the motion to postpone it. . . . Afterward, in the joint
Page 332 U. S. 113
Committee on Reconstruction, I introduced this amendment, in the precise form, as I have
stated, in which it was reported, and as it now stands in the Constitution of my country."
"* * * *"
~Page 37 of 96~
"I answer the gentleman, how I came to change the form of February to the words now in
the first section of the fourteenth article of amendment, as they stand, and I trust will
forever stand, in the Constitution of my country. I had read -- and that is what induced me
to attempt to impose by constitutional amendments new limitations upon the power of the
States -- the great decision of Marshall in Barron vs. the Mayor and City Council of
Baltimore, wherein the Chief Justice said, in obedience to his official oath and the
Constitution as it then was:"
"The amendments [to the Constitution] contain no expression indicating an intention to
apply them to the State governments. This court cannot so apply them."
"7 Peters p. 32 U. S. 250."
"In this case, the city had taken private property for public use, without compensation as
alleged, and there was no redress for the wrong in the Supreme Court of the United
States, and, only for this reason, the first eight amendments were not limitations on the
power of the States. "
"And so afterward, in the case of the Lessee of Livingstone vs. Moore . . . , the court ruled,
'it is now settled that the amendments [to the Constitution] do not extend to the States.'
They were but limitations upon Congress. Jefferson well said of the first eight articles of
amendments to the Constitution of the United States, they constitute the American Bill of
Rights. Those amendments secured the citizens against any deprivation of any essential
rights of person by any act of Congress, and, among other things, thereby they were
secured
Page 332 U. S. 114
in their persons, houses, papers, and effects against unreasonable searches and seizures,
in the inviolability of their homes in times of peace, by declaring that no soldier shall in time
of peace be quartered in any house without the consent of the owner. They secured trial
by jury; they secured the right to be informed of the nature and cause of accusations which
might in any case be made against them; they secured compulsory process for witnesses,
and to be heard in defense by counsel. They secured, in short, all the rights dear to the
American citizen. And yet it was decided, and rightfully, that these amendments, defining
and protecting the rights of men and citizens, were only limitations on the power of
Congress, not on the power of the States."
"In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in
February, 1866, to which the gentleman has alluded, I noted and apprehended as I never
did before, certain words in that opinion of Marshall. Referring to the first eight articles of
amendments to the Constitution of the United States, the Chief Justice said:"
"Had the framers of these amendments intended them to be limitations on the powers of
the State governments, they would have imitated the framers of the original Constitution,
and have expressed that intention."
"Barron vs. The Mayor, &c., 7 Peters 32 U. S. 250."
"Acting upon this suggestion, I did imitate the framers of the original Constitution. As they
had said 'no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or
law impairing the obligations of contracts;' imitating their example and imitating it to the
letter, I prepared the provision of the first section of the fourteenth amendment as it stands
in the Constitution, as follows:"
" No State shall make or enforce any law which shall abridge the privileges or immunities
of the citizens of the United States, nor shall any State deprive any person of life, liberty, or
property without due process of law,
Page 332 U. S. 115
nor deny to any person within its jurisdiction the equal protection of the laws."
"I hope the gentleman now knows why I changed.the form of the amendment of February,
1866."
"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section,
fourteenth amendment of the Constitution may be more fully understood, permit me to say
that the privileges and immunities of citizens of the United States, as contradistinguished
from citizens of a State, are chiefly defined in the first eight amendments to the
Constitution of the United States. Those eight amendments are as follows: [Here Mr.
Bingham recited verbatim the first eight articles.]"
"These eight articles I have shown never were limitations upon the power of the States,
until made so by the fourteenth amendment. The words of that amendment, 'no State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States,' are an express prohibition upon every State of the Union, which may be
enforced under existing laws of Congress, and such other laws for their better enforcement
as Congress may make."
"Mr. Speaker, that decision in the fourth of Washington's Circuit Court Reports to which my
learned colleague . . . has referred is only a construction of the second section, fourth
article of the original Constitution, to-wit, 'The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.' In that case, the court only held
that, in civil rights, the State could not refuse to extend to citizens of other States the same
general rights secured to its own."
"In the case of The United States vs. Primrose, Mr. Webster said that --"
"For the purposes of trade, it is evidently not in the power of any State to impose any
hinderance or embarrassment, &c., upon citizens of other States, or to place them, on
coming there, upon a different
Page 332 U. S. 116
footing from her own citizens."
"6 Webster's Works 112."
"The learned Justice Story declared that"
"The intention of the clause ('the citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States,') was to confer on the citizens of each State a
general citizenship, and communicated all the privileges and immunities which a citizen of
the same State would be entitled to under the same circumstances."
"Story on the Constitution, vol. 2, page 605."
"Is it not clear that other and different privileges and immunities than those to which a
citizen of a State was entitled are secured by the provision of the fourteenth article, that no
State shall abridge the privileges and immunities of citizens of the United States, which are
defined in the eight articles of amendment and which were not limitations on the power of
the States before the fourteenth amendment made them limitations?"
~Page 38 of 96~
"Sir, before the ratification of the fourteenth amendment, the State could deny to any
citizen the right of trial by jury, and it was done. Before that, the State could abridge the
freedom of the press, and it was so done in half of the States of the Union. Before that, a
State, as in the case of the State of Illinois, could make it a crime punishable by fine and
imprisonment for any citizen within her limits, in obedience to the injunction of our divine
Master, to help a slave who was ready to perish; to give him shelter, or break with him his
crust of bread. The validity of that State restriction upon the rights of conscience and the
duty of life was affirmed, to the shame and disgrace of America, in the Supreme Court of
the United States, but nevertheless affirmed in obedience to the requirements of the
Constitution. . . ."
"Under the Constitution as it is, not as it was, and by force of the fourteenth amendment,
no State hereafter
Page 332 U. S. 117
can imitate the bad example of Illinois, to which I have referred, nor can any State ever
repeat the example of Georgia and send men to the penitentiary, as did that State, for
teaching the Indian to read the lessons of the New Testament, to know that new evangel,
'The pure in heart shall see God.'"
"* * * *"
". . . You say it is centralized power to restrain by law unlawful combinations in States
against the Constitution and citizens of the United States, to enforce the Constitution and
the rights of United States citizen [sic.] by national law, and to disperse by force, if need
be, combinations too powerful to be overcome by judicial process, engaged in trampling
underfoot the life and liberty, or destroying the property of the citizen."
"* * * *"
"The States never had the right, though they had the power, to inflict wrongs upon free
citizens by a denial of the full protection of the laws, because all State officials are, by the
Constitution, required to be bound by oath or affirmation to support the Constitution. As I
have already said, the States did deny to citizens the equal protection of the laws, they did
deny the rights of citizens under the Constitution, and, except to the extent of the express
limitations upon the States, as I have shown, the citizen had no remedy. They denied trial
by jury, and he had no remedy. They took property without compensation, and he had no
remedy. They restricted the freedom of the press, and he had no remedy. They restricted
the freedom of speech, and he had no remedy. They restricted the rights of conscience,
and he had no remedy. They bought and sold men who had no remedy. Who dare say,
now that the Constitution has been amended, that the nation cannot by law provide
against all such abuses and denials
Page 332 U. S. 118
of right as these in States and by States, or combinations of persons?"
"* * * *"
"Mr. Speaker, I respectfully submit to the House and country that, by virtue of these
amendments, it is competent for Congress today to provide by law that no man shall be
held to answer in the tribunals of any State in this Union for any act made criminal by the
laws of that State without a fair and impartial trial by jury. Congress never before has had
the power to do it. It is also competent for Congress to provide that no citizen in any State
shall be deprived of his property by State law or the judgment of a State court without just
compensation therefor. Congress never before had the power so to declare. It is
competent for the Congress of the United States today to declare that no State shall make
or enforce any law which shall abridge the freedom of speech, the freedom of the press, or
the right of the people peaceably to assemble together and petition for redress of
grievances, for these are of the rights of citizens of the United States defined in the
Constitution and guarantied by the fourteenth amendment, and to enforce which Congress
is thereby expressly empowered. . . ."
Cong.Globe, 42d Cong., 1st Sess. (1871) App. 81, 83-85.
And, the day after Mr. Garfield's address, Mr. Dawes, also a member of the 39th Congress,
stated his understanding of the meaning of the Fourteenth Amendment:
"Sir, in the progress of constitutional liberty, when, in addition to those privileges and
immunities [secured by the original Constitution ] . . . , there were added from time to time,
by amendments, others, and these were augmented, amplified, and secured and fortified
in the buttresses of the Constitution itself, he hardly comprehended the full scope and
measure of the phrase which appears in this bill. Let me read, one by one, these
Page 332 U. S. 119
amendments, and ask the House to tell me when and where and by what chosen phrase
has man been able to bring before the Congress of the country a broader sweep of
legislation than my friend has in the bill here. In addition to the original rights secured to
him in the first article of amendments, he had secured the free exercise of his religious
belief, and freedom of speech and of the press. Then again, he had secured to him the
right to keep and bear arms in his defense. Then, after that, his home was secured in time
of peace from the presence of a soldier; and, still further, sir, his house, his papers, and his
effects were protected against unreasonable seizure. . . ."
"Then, again, as if that were not enough, by another amendment, he was secured against
trial for any alleged offense except it be on the presentation of a grand jury, and he was
protected against ever giving testimony against himself. [Italics supplied.] Then, sir, he was
guarantied a speedy trial, and the right to confront every witness against him. Then, in
every controversy which should arise, he had the right to have it decided by a jury of his
peers. Then, sir, by another amendment, he was never to be required to give excessive
bail, or be punished by cruel and unusual punishment. And still later, sir, after the bloody
sacrifice of our four years' war, we gave the most grand of all these rights, privileges, and
immunities, by one single amendment to the Constitution, to four millions of American
citizens who sprang into being, as it were, by the wave of a magic wand. Still further, every
person born on the soil was made a citizen, and clothed with them all."
"It is all these, Mr. Speaker, which are comprehended in the words 'American citizen,' and
it is to protect and to secure him in these rights, privileges, and immunities this bill is
before the House. And the question to be settled is whether, by the Constitution, in which
these provisions are
Page 332 U. S. 120
inserted, there is also power to guard, protect, and enforce these rights of the citizens;
whether they are more, indeed, than a mere declaration of rights, carrying with it no power
of enforcement. . . ."
~Page 39 of 96~
Cong.Globe, 42d Cong., 1st Sess. Part I (1871) 475, 476.
VIII
Hereafter appear statements in opinions of this Court rendered after adoption of the
Fourteenth Amendment and prior to the Twining case which indicate a belief that the
Fourteenth Amendment, and particularly its privileges and immunities clause, was a plain
application of the Bill of Rights to the states. See p. 332 U. S. 75, note 6, supra.
In the Slaughter-House cases, 16 Wall. 36, 83 U. S. 83, the dissenting opinion of Mr.
Justice Field emphasized that the Fourteenth Amendment made a "citizen of a State . . . a
citizen of the United States residing in that State." Id. at 83 U. S. 95. But he enunciated a
relatively limited number of privileges and immunities which he considered protected by
national power from state interference by the Fourteenth Amendment. Apparently
dissatisfied with the limited interpretation of Mr. Justice Field, Mr. Justice Bradley, although
agreeing with all that Mr. Justice Field had said, wrote an additional dissent.Id. at 83 U. S.
111. In it, he said:
"But we are not bound to resort to implication, or to the constitutional history of England, to
find an authoritative declaration of some of the most important privileges and immunities of
citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it
stood prior to the recent amendments, specifies, in terms, only a few of the personal
privileges and immunities of citizens, but they are very comprehensive in their character.
The States were merely prohibited from passing bills of
Page 332 U. S. 121
attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or
two more. But others of the greatest consequence were enumerated, although they were
only secured, in express terms, from invasion by the Federal government; such as the
right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the
right of free speech and a free press, the right peaceably to assemble for the discussion of
public measures, the right to be secure against unreasonable searches and seizures, and,
above all, and including almost all the rest, the right of not being deprived of life, liberty, or
property, without due process of law. These, and still others are specified in the original
Constitution, or in the early amendments of it, as among the privileges and immunities of
citizens of the United States, or, what is still stronger for the force of the argument, the
rights of all persons, whether citizens or not."
Id. at 83 U. S. 118-119; see also id. at 83 U. S. 120-122.
Mr. Justice Swayne joined in this opinion but added his own not inconsistent
views. Id. at 83 U. S. 124.
But in Walker v. Sauvinet, 92 U. S. 90, 92 U. S. 92, when a majority of the Court held that
"[a] trial by jury in suits at common law pending in the State courts is not . . . a privilege or
immunity of national citizenship which the States are forbidden by the Fourteenth
Amendment to abridge,"
Mr. Justice Field and Mr. Justice Clifford dissented from "the opinion and judgment of the
court." Id. at 92 U. S. 93.
In Spies v. Illinois, 123 U. S. 131, counsel for the petitioners, Mr. J. Randolph Tucker, after
enumerating the protections of the Bill of Rights, took this position:
". . . Though originally the first ten Amendments were adopted as limitations on Federal
power, yet in so far as they secure and recognize fundamental
Page 332 U. S. 122
rights -- common law rights -- of the man, they make them privileges and immunities of the
man as citizen of the United States, and cannot now be abridged by a State under the
Fourteenth Amendment. In other words, while the ten Amendments, as limitations on
power, only apply to the Federal government, and not to the States, yet, insofar as they
declare or recognize rights of persons, these rights are theirs, as citizens of the United
States, and the Fourteenth Amendment as to such rights limits state power, as the ten
Amendments had limited Federal power."
"* * * *"
". . . the rights declared in the first ten Amendments are to be regarded as privileges and
immunities of citizens of the United States, which, as I insist, are protected as such by the
Fourteenth Amendment."
Id. at 151-152 [argument of counsel -- omitted].
The constitutional issues raised by this argument were not reached by the Court, which
disposed of the case on jurisdictional grounds.
However, Mr. Justice Field, in his dissenting opinion in O'Neil v. Vermont, 144 U. S.
323, 144 U. S. 337, 144 U. S. 361, stated that, "after much reflection," he had become
persuaded that the definition of privileges and immunities given by Mr. Tucker in Spies v.
Illinois, supra, "is correct." And Mr. Justice Field went on to say that
"While, therefore, the ten Amendments, as limitations on power, and, so far as they
accomplish their purpose and find their fruition in such limitations, are applicable only to
the Federal government, and not to the States, yet, so far as they declare or recognize the
rights of persons, they are rights belonging to them as citizens of the United States under
the Constitution, and the Fourteenth Amendment, as
Page 332 U. S. 123
to all such rights, places a limit upon state power by ordaining that no State shall make or
enforce any law which shall abridge them. If I am right in this view, then every citizen of the
United States is protected from punishments which are cruel and unusual. It is an
immunity which belongs to him against both state and Federal action. The State cannot
apply to him, any more than the United States, the torture, the rack or thumbscrew, or any
cruel and unusual punishment, or any more than it can deny to him security in his house,
papers and effects against unreasonable searches and seizures, or compel him to be a
witness against himself in a criminal prosecution. These rights, as those of citizens of the
United States, find their recognition and guaranty against Federal action in the Constitution
of the United States, and against state action in the Fourteenth Amendment. The inhibition
by that Amendment is not the less valuable and effective because of the prior and existing
inhibition against such action in the constitutions of the several States. . . ."
O'Neil v. Vermont, supra, at 144 U. S. 363.
Mr. Justice Harlan, and apparently Mr. Justice Brewer, concurred in this phase of Mr.
Justice Field's dissent. Id. at 144 U. S. 366, 144 U. S. 370, 144 U. S. 371.
For further exposition of these views see also the vigorous dissenting opinions of Mr.
Justice Harlan in Hurtado v. California,110 U. S. 516, 110 U. S. 538, and Maxwell v.
~Page 40 of 96~
Dow, 176 U. S. 581, 176 U. S. 605, as well as his dissenting opinion in Twining v. New against himself. In that case, his testimony on cross-examination is the result of the
Jersey, 211 U. S. 78, 211 U. S. 114. coercive pressure of the provision, rather than his own volition.
[Footnote 3/1] Page 332 U. S. 125
Mr. Bingham and Mr. Stevens had introduced these same proposed amendments in the Much can be said pro and con as to the desirability of allowing comment on the failure of
House prior to the establishment of the Reconstruction Committee. Cong.Globe, 39th the accused to testify. But policy arguments are to no avail in the face of a clear
Cong., 1st Sess. (1865) 10, 14. constitutional command. This guarantee of freedom from self-incrimination is grounded on
[Footnote 3/2] a deep respect for those who might prefer to remain silent before their accusers. To borrow
It has been said of Stevens' statement: language from Wilson v. United States, 149 U. S. 60, 149 U. S. 66:
"He evidently had reference to the Bill of Rights, for it is in it that most of the privileges are "It is not everyone who can safely venture on the witness stand, though entirely innocent of
enumerated, and, besides, it was not applicable to the States." the charge against him. Excessive timidity, nervousness when facing others and
Flack, The Adoption of the Fourteenth Amendment (1908) 75. attempting to explain transactions of a suspicious character, and offences charged against
[Footnote 3/3] him will often confuse and embarrass him to such a degree as to increase, rather than
In a widely publicized report to the President which was also submitted to the Congress, remove, prejudices against him. It is not everyone, however honest, who would, therefore,
Carl Schurz had reviewed similar incidents and emphasized the fact that negroes had willingly be placed on the witness stand."
been denied the right to bear arms, own property, engage in business, to testify in Court, We are obliged to give effect to the principle of freedom from self-incrimination. That
and that local authorities had arrested them without cause and tried them without juries. principle is as applicable where the compelled testimony is in the form of silence as where
Sen.Exec.Doc. No. 2, 39th Cong., 1st Sess. (1865) 23, 24, 26, 36. See also Report of it is composed of oral statements. Accordingly, I would reverse the judgment below.
Commissioner of Freedman's Bureau, H.Exec.Doc. No. 70, 39th Cong., 1st Sess. (1866)
41, 47, 48, 233, 236, 265, 376.
MR. JUSTICE MURPHY, with whom MR. JUSTICE RUTLEDGE concurs, dissenting. Reference
While in substantial agreement with the views of MR. JUSTICE BLACK, I have one https://supreme.justia.com/cases/federal/us/332/46/case.html
reservation and one addition to make.
Page 332 U. S. 124
I agree that the specific guarantees of the Bill of Rights should be carried over intact into
the first section of the Fourteenth Amendment. But I am not prepared to say that the latter
is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a
proceeding falls so far short of conforming to fundamental standards of procedure as to
warrant constitutional condemnation in terms of a lack of due process despite the absence
of a specific provision in the Bill of Rights.
That point, however, need not be pursued here, inasmuch as the Fifth Amendment is
explicit in its provision that no person shall be compelled in any criminal case to be a
witness against himself. That provision, as MR. JUSTICE BLACK demonstrates, is a
constituent part of the Fourteenth Amendment.
Moreover, it is my belief that this guarantee against self-incrimination has been violated in
this case. Under California law, the judge or prosecutor may comment on the failure of the
defendant in a criminal trial to explain or deny any evidence or facts introduced against Schenck v. United States 249 U.S. 47 (1919)
him. As interpreted and applied in this case, such a provision compels a defendant to be a Schenck v. United States Nos. 437, 438
witness against himself in one of two ways: Argued January 9, 10, 1919
1. If he does not take the stand, his silence is used as the basis for drawing unfavorable Decided March 3, 1919
inferences against him as to matters which he might reasonably be expected to explain. ERROR TO THE DISTRICT COURT OF THE UNITED STATES
Thus, he is compelled, through his silence, to testify against himself. And silence can be as FOR THE EASTERN DISTRICT OF PENNSYLVANIA
effective in this situation as oral statements.
2. If he does take the stand, thereby opening himself to cross-examination, so as to Syllabus
overcome the effects of the provision in question, he is necessarily compelled to testify

~Page 41 of 96~
Evidence held sufficient to connect the defendants with the mailing of printed circulars in
pursuance of a conspiracy to obstruct the recruiting and enlistment service, contrary to the
Espionage Act of June 15, 1917. P 249 U. S. 49.
Incriminating document seized under a search warrant directed against a Socialist
headquarters, held admissible in evidence, consistently with the Fourth and Fifth
Amendment, in a criminal prosecution against the general secretary of a Socialist party,
who had charge of the office. P. 249 U. S. 50.
Words which, ordinarily and in many places, would be within the freedom of speech
protected by the First Amendment may become subject to prohibition when of such a
nature and used in such circumstances a to create a clear and present danger that they
will bring about the substantive evils which Congress has a right to prevent. The character
of every act depends upon the circumstances in which it is done. P. 249 U. S. 51.
A conspiracy to circulate among men called and accepted for military service under the
Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the
draft, with the intent to effect that result, and followed by the sending of such circulars, is
within the power of Congress to punish, and is punishable under the Espionage Act, 4,
although unsuccessful. P. 249 U. S. 52.
The word "recruiting," as used in the Espionage Act, 3, means the gaining of fresh
supplies of men for the military forces, as well by draft a otherwise. P. 249 U. S. 52
The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did
not affect the prosecution of offenses under the former. P. 249 U. S. 53.
Affirmed.
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment in three counts. The first charges a conspiracy to violate the
Espionage Act of June 15, 1917, c. 30, 3, 40 Stat. 217, 219, by causing and attempting
to cause insubordination, &c., in the military and naval forces of the United States, and to
obstruct the recruiting and enlistment service of the United States, when the United States
was at war with the German Empire, to-wit, that the defendants willfully conspired to have
printed and circulated to men who had been called and accepted for military service under
the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such
insubordination and obstruction.
The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of
the document set forth. The second count alleges a conspiracy to commit an offence
against the United States, to-wit, to use the mails for the transmission of matter declared to
be nonmailable by Title XII, 2 of the Act of June 15, 1917, to-wit, the above mentioned
document, with an averment of the same overt acts. The third count charges an unlawful
use of the mails for the transmission of the same matter and otherwise as above. The
defendants were found guilty on all the counts. They set up the First Amendment to the
Constitution forbidding Congress to make any law abridging the freedom of speech, or of
the press, and bringing the case here on that ground have argued some other points also
of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant
Schenck was concerned in sending the documents. According to the testimony, Schenck
said he was general secretary of the Socialist party, and had charge of the Socialist
headquarters from which the documents were sent. He identified a book found there as
the minutes of the Executive Committee of the party. The book showed a resolution of
August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in
use, to be mailed to men who had passed exemption boards, and for distribution. Schenck
personally attended to the printing. On August 20, the general secretary's report said
"Obtained new leaflets from printer and started work addressing envelopes" &c., and there
was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the
mail. He said that he had about fifteen or sixteen thousand printed. There were files of the
circular in question in the inner office which he said were printed on the other side of the
one sided circular, and were there for distribution. Other copies were proved to have been
sent through the mails to drafted men. Without going into confirmatory details that were
proved, no reasonable man could doubt that the defendant Schenck was largely
instrumental in sending the circulars about. As to the defendant Baer, there was evidence
that she was a member of the Executive Board, and that the minutes of its transactions
were hers. The argument as to the sufficiency of the evidence that the defendants
conspired to send the documents only impairs the seriousness of the real defence.
It is objected that the documentary evidence was not admissible because obtained upon a
search warrant, valid so far as appears. The contrary is established. Adams v. New
York, 192 U. S. 585; Weeks v. United States, 232 U. S. 383, 232 U. S. 395,232 U. S. 396.
The search warrant did not issue against the defendant, but against the Socialist
headquarters at 1326 Arch Street, and it would seem that the documents technically were
not even in the defendants' possession. See Johnson v. United States, 228 U. S. 457.
Notwithstanding some protest in argument, the notion that evidence even directly
proceeding from the defendant in a criminal proceeding is excluded in all cases by the
Fifth Amendment is plainly unsound. Holt v. United States, 218 U. S. 245, 218 U. S.
252, 218 U. S. 253.
The document in question, upon its first printed side, recited the first section of the
Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription
Act, and that a conscript is little better than a convict. In impassioned language, it intimated
that conscription was despotism in its worst form, and a monstrous wrong against
humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation,"
but in form, at least, confined itself to peaceful measures such as a petition for the repeal
of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It
stated reasons for alleging that anyone violated the Constitution when he refused to
recognize "your right to assert your opposition to the draft," and went on
~Page 42 of 96~
"If you do not assert and support your rights, you are helping to deny or disparage rights
which it is the solemn duty of all citizens and residents of the United States to retain."
It described the arguments on the other side as coming from cunning politicians and a
mercenary capitalist press, and even silent consent to the conscription law as helping to
support an infamous conspiracy. It denied the power to send our citizens away to foreign
shores to shoot up the people of other lands, and added that words could not express the
condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must
do your share to maintain, support and uphold the rights of the people of this country." Of
course, the document would not have been sent unless it had been intended to have some
effect, and we do not see what effect it could be expected to have upon persons subject to
the draft except to influence them to obstruct the carrying of it out. The defendants do not
deny that the jury might find against them on this point.
method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by
draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this
act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c.
75, 40 Stat. 553, of course, does not affect the present indictment, and would not even if
the former act had been repealed. Rev.Stats., 13.
Judgments affirmed.
Reference
https://supreme.justia.com/cases/federal/us/249/47/case.html

But it is said, suppose that that was the tendency of this circular, it is protected by the First
Amendment to the Constitution. Two of the strongest expressions are said to be quoted
respectively from well known public men. It well may be that the prohibition of laws
abridging the freedom of speech is not confined to previous restraints, although to prevent
them may have been the main purpose, as intimated in Patterson v. Colorado, 205 U. S.
454, 205 U. S. 462. We admit that, in many places and in ordinary times, the defendants,
in saying all that was said in the circular, would have been within their constitutional rights.
But the character of every act depends upon the circumstances in which it is done. Aikens
v. Wisconsin, 195 U. S. 194, 195 U. S. 205, 195 U. S. 206. The most stringent protection of
free speech would not protect a man in falsely shouting fire in a theatre and causing a
panic. It does not even protect a man from an injunction against uttering words that may
have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U.
S. 439. The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree. When a nation is at war, many things that might be said in time of
peace are such a hindrance to its effort that their utterance will not be endured so long as
men fight, and that no Court could regard them as protected by any constitutional right. It
seems to be admitted that, if an actual obstruction of the recruiting service were proved,
liability for words that produced that effect might be enforced. The statute of 1917, in 4,
punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or
circulating a paper), its tendency, and the intent with which it is done are the same, we
perceive no ground for saying that success alone warrants making the act a
crime. Goldman v. United States, 245 U. S. 474, 245 U. S. 477. Indeed, that case might be Dennis v. United States 341 U.S. 494 (1951)
said to dispose of the present contention if the precedent covers all media Dennis v. United States No. 336
concludendi. But, as the right to free speech was not referred to specially, we have thought Argued December 4, 1950
fit to add a few words. Decided June 4, 1951
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act CERTIORARI TO THE UNITED STATES COURT OF APPEALS
of 1917. The words are "obstruct the recruiting or enlistment service," and it might be FOR THE SECOND CIRCUIT
suggested that they refer only to making it hard to get volunteers. Recruiting heretofore
usually having been accomplished by getting volunteers, the word is apt to call up that

~Page 43 of 96~
Syllabus
1. As construed and applied in this case, 2(a)(1), 2(a)(3) and 3 of the Smith Act, 54
Stat. 671, making it a crime for any person knowingly or willfully to advocate the overthrow
or destruction of the Government of the United States by force or violence, to organize or
help to organize any group which does so, or to conspire to do so, do not violate the First
Amendment or other provisions of the Bill of Rights and do not violate the First or Fifth
Amendments because of indefiniteness. Pp. 341 U. S. 495-499, 341 U. S. 517.
2. Petitioners, leaders of the Communist Party in this country, were indicted in a federal
district court under 3 of the Smith Act for willfully and knowingly conspiring (1) to
organize as the Communist Party a group of persons to teach and advocate the overthrow
and destruction of the Government of the United States by force and violence, and (2)
knowingly and willfully to advocate and teach the duty and necessity of overthrowing and
destroying the Government of the United States by force and violence. The trial judge
instructed the jury that they could not convict unless they found that petitioners intended to
overthrow the Government "as speedily as circumstances would permit," but that, if they
so found, then, as a matter of law, there was sufficient danger of a substantive evil that
Congress has a right to prevent to justify application of the statute under the First
Amendment. Petitioners were convicted, and the convictions were sustained by the Court
of Appeals. This Court granted certiorari, limited to the questions: (1) Whether either 2 or
3 of the Smith Act, inherently or as construed and applied in the instant case, violates the
First Amendment and other provisions of the Bill of Rights, and (2) whether either 2 or
3, inherently or as construed and applied in the instant case, violates the First and Fifth
Amendments because of indefiniteness.
Held: The convictions are affirmed. Pp. 341 U. S. 495-499, 341 U. S. 511-512, 341 U. S.
517.
183 F.2d 201, affirmed.
For the opinions of the Justices constituting the majority of the Court, see:
Opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE REED, MR. JUSTICE BURTON
and MR. JUSTICE MINTON, p. 341 U. S. 495.
Opinion of MR. JUSTICE FRANKFURTER, p. 341 U. S. 517.
Opinion of MR. JUSTICE JACKSON, p. 341 U. S. 561.
For the dissenting opinion of MR. JUSTICE BLACK, see p. 341 U. S. 579.
For the dissenting opinion of MR. JUSTICE DOUGLAS, see p. 341 U. S. 581.
The case is stated in the opinion of THE CHIEF JUSTICE, pp. 341 U. S. 495-499.
Affirmed, p. 341 U. S. 517.
MR. CHIEF JUSTICE VINSON announced the judgment of the Court and an opinion in
which MR. JUSTICE REED, MR. JUSTICE BURTON and MR. JUSTICE MINTON join.
Petitioners were indicted in July, 1948, for violation of the conspiracy provisions of the
Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) 11, during the period of April, 1945, to July,
1948. The pretrial motion to quash the indictment on the grounds, inter alia, that the
statute was unconstitutional was denied, United States v. Foster, 80 F.Supp. 479, and the
case was set for trial on January 17, 1949. A verdict of guilty as to all the petitioners was
returned by the jury on October 14, 1949. The Court of Appeals affirmed the convictions.
183 F.2d 201. We granted certiorari, 340 U.S. 863, limited to the following two questions:
(1) Whether either 2 or 3 of the Smith Act, inherently or as construed and applied in the
instant case, violates the First Amendment and other provisions of the Bill of Rights; (2)
whether either 2 or 3 of the Act, inherently or as construed and applied in the instant
case, violates the First and Fifth Amendments because of indefiniteness.
Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) 10, 11
(see present 18 U.S.C. 2385), provide as follows:
"SEC. 2.(a) It shall be unlawful for any person --"
"(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying any government in the United States
by force or violence, or by the assassination of any officer of any such government;"
"(2) with intent to cause the overthrow or destruction of any government in the United
States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written
or printed matter advocating, advising, or teaching the duty, necessity, desirability, or
propriety of overthrowing or destroying any government in the United States by force or
violence;"
"(3) to organize or help to organize any society, group, or assembly of persons who teach,
advocate, or encourage the overthrow or destruction of any government in the United
States by force or violence; or to be or become a member of, or affiliate with, any such
society, group, or assembly of persons, knowing the purposes thereof."
"(b) For the purposes of this section, the term 'government in the United States' means the
Government of the United States, the government of any State, Territory, or possession of
the United States, the government of the District of Columbia, or the government of any
political subdivision of any of them."
"SEC. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit,
any of the acts prohibited by the provisions of this title."
The indictment charged the petitioners with willfully and knowingly conspiring (1) to
organize as the Communist Party of the United States of America a society, group and
assembly of persons who teach and advocate the overthrow and destruction of the
Government of the United States by force and violence, and (2) knowingly and willfully to
advocate and teach the duty and necessity of overthrowing and destroying the
Government of the United States by force and violence. The indictment further alleged that
2 of the Smith Act proscribes these acts and that any conspiracy to take such action is a
violation of 3 of the Act.
The trial of the case extended over nine months, six of which were devoted to the taking of
evidence, resulting in a record of 16,000 pages. Our limited grant of the writ of certiorari
has removed from our consideration any question as to the sufficiency of the evidence to
support the jury's determination that petitioners are guilty of the offense charged. Whether,
on this record, petitioners did, in fact, advocate the overthrow of the Government by force
and violence is not before us, and we must base any discussion of this point upon the
conclusions stated in the opinion of the Court of Appeals, which treated the issue in great
detail. That court held that the record in this case amply supports the necessary finding of
~Page 44 of 96~
the jury that petitioners, the leaders of the Communist Party in this country, were unwilling
to work within our framework of democracy, but intended to initiate a violent revolution
whenever the propitious occasion appeared. Petitioners dispute the meaning to be drawn
from the evidence, contending that the Marxist-Leninist doctrine they advocated taught
that force and violence to achieve a Communist form of government in an existing
democratic state would be necessary only because the ruling classes of that state would
never permit the transformation to be accomplished peacefully, but would use force and
violence to defeat any peaceful political and economic gain the Communists could
achieve. But the Court of Appeals held that the record supports the following broad
conclusions: by virtue of their control over the political apparatus of the Communist
Political Association, [Footnote 1] petitioners were able to transform that organization into
the Communist Party; that the policies of the Association were changed from peaceful
cooperation with the United States and its economic and political structure to a policy
which had existed before the United States and the Soviet Union were fighting a common
enemy, namely, a policy which worked for the overthrow of the Government by force and
violence; that the Communist Party is a highly disciplined organization, adept at infiltration
into strategic positions, use of aliases, and double meaning language; that the Party is
rigidly controlled; that Communists, unlike other political parties, tolerate no dissension
from the policy laid down by the guiding forces, but that the approved program is slavishly
followed by the members of the Party; that the literature of the Party and the statements
and activities of its leaders, petitioners here, advocate, and the general goal of the Party
was, during the period in question, to achieve a successful overthrow of the existing order
by force and violence.
I crime, surely an intent to overthrow the Government of the United States by advocacy
It will be helpful in clarifying the issues to treat next the contention that the trial judge
improperly interpreted the statute by charging that the statute required an unlawful intent
before the jury could convict. More specifically, he charged that the jury could not find the
petitioners guilty under the indictment unless they found that petitioners had the intent to
"overthrow . . . the Government of the United States by force and violence as speedily as
circumstances would permit."
Section 2(a)(1) makes it unlawful
"to knowingly or willfully advocate, . . . or teach the duty, necessity, desirability, or propriety
of overthrowing or destroying any government in the United States by force or
violence. . . . ;"
Section 2(a)(3), "to organize or help to organize any society, group, or assembly of
persons who teach, advocate, or encourage the overthrow. . . ." Because of the fact that
2(a)(2) expressly requires a specific intent to overthrow the Government, and because of
the absence of precise language in the foregoing subsections, it is claimed that Congress
deliberately omitted any such requirement. We do not agree. It would require a far greater
indication of congressional desire that intent not be made an element of the crime than the
use of the disjunctive "knowingly or willfully" in 2(a)(1), or the omission of exact language
in 2(a)(3). The structure and purpose of the statute demand the inclusion of intent as an
element of the crime. Congress was concerned with those who advocate and organize for
the overthrow of the Government. Certainly those who recruit and combine for the purpose
of advocating overthrow intend to bring about that overthrow. We hold that the statute
requires as an essential element of the crime proof of the intent of those who are charged
with its violation to overthrow the Government by force and violence. See Williams v.
United States, 341 U. S. 97, 341 U. S. 101-102 (1951); Screws v. United States, 325 U. S.
91, 325 U. S. 101-105 (1945); Cramer v. United States, 325 U. S. 1, 325 U. S. 31 (1945).
Nor does the fact that there must be an investigation of a state of mind under this
interpretation afford any basis for rejection of that meaning. A survey of Title 18 of the U.S.
Code indicates that the vast majority of the crimes designated by that Title require, by
express language, proof of the existence of a certain mental state, in words such as
"knowingly," "maliciously," "willfully," "with the purpose of," "with intent to," or combinations
or permutations of these and synonymous terms. The existence of a mens rea is the rule
of, rather than the exception to, the principles of Anglo-American criminal
jurisprudence. See American Communications Assn. v. Douds, 339 U. S. 382, 339 U. S.
411 (1950).
It has been suggested that the presence of intent makes a difference in the law when an
"act otherwise excusable or carrying minor penalties" is accompanied by such an evil
intent. Yet the existence of such an intent made the killing condemned in Screws,
supra, and the beating in Williams, supra, both clearly and severely punishable under state
law, offenses constitutionally punishable by the Federal Government. In those cases, the
Court required the Government to prove that the defendants intended to deprive the victim
of a constitutional right. If that precise mental state may be an essential element of a
thereof is equally susceptible of proof. [Footnote 2]
II
The obvious purpose of the statute is to protect existing Government not from change by
peaceable, lawful and constitutional means, but from change by violence, revolution and
terrorism. That it is within the power of the Congress to protect the Government of the
United States from armed rebellion is a proposition which requires little discussion.
Whatever theoretical merit there may be to the argument that there is a "right" to rebellion
against dictatorial governments is without force where the existing structure of the
government provides for peaceful and orderly change. We reject any principle of
governmental helplessness in the face of preparation for revolution, which principle,
carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not
within the power of Congress to prohibit acts intended to overthrow the Government by
force and violence. The question with which we are concerned here is not whether
Congress has such power, but whether the means which it has employed conflict with the
First and Fifth Amendments to the Constitution.
One of the bases for the contention that the means which Congress has employed are
invalid takes the form of an attack on the face of the statute on the grounds that, by its
terms, it prohibits academic discussion of the merits of Marxism-Leninism, that it stifles
ideas and is contrary to all concepts of a free speech and a free press. Although we do not
~Page 45 of 96~
agree that the language itself has that significance, we must bear in mind that it is the duty
of the federal courts to interpret federal legislation in a manner not inconsistent with the
demands of the Constitution. American Communications Assn. v. Douds, 339 U. S.
382, 339 U. S. 407 (1950). We are not here confronted with cases similar to Thornhill v.
Alabama, 310 U. S. 88 (1940); Herndon v. Lowry, 301 U. S. 242 (1937), and De Jonge v.
Oregon, 299 U. S. 353 (1937), where a state court had given a meaning to a state statute
which was inconsistent with the Federal Constitution. This is a federal statute which we
must interpret as well as judge. Herein lies the fallacy of reliance upon the manner in
which this Court has treated judgments of state courts. Where the statute as construed by
the state court transgressed the First Amendment, we could not but invalidate the
judgments of conviction.
The very language of the Smith Act negates the interpretation which petitioners would
have us impose on that Act. It is directed at advocacy, not discussion. Thus, the trial judge
properly charged the jury that they could not convict if they found that petitioners did "no
more than pursue peaceful studies and discussions or teaching and advocacy in the realm
of ideas." He further charged that it was not unlawful
"to conduct in an American college or university a course explaining the philosophical
theories set forth in the books which have been placed in evidence."
Such a charge is in strict accord with the statutory language, and illustrates the meaning to
be placed on those words. Congress did not intend to eradicate the free discussion of
political theories, to destroy the traditional rights of Americans to discuss and evaluate
ideas without fear of governmental sanction. Rather Congress was concerned with the
very kind of activity in which the evidence showed these petitioners engaged.
III
But although the statute is not directed at the hypothetical cases which petitioners have
conjured, its application in this case has resulted in convictions for the teaching and
advocacy of the overthrow of the Government by force and violence, which, even though
coupled with the intent to accomplish that overthrow, contains an element of speech. For
this reason, we must pay special heed to the demands of the First Amendment marking
out the boundaries of speech.
We pointed out in Douds, supra, that the basis of the First Amendment is the hypothesis
that speech can rebut speech, propaganda will answer propaganda, free debate of ideas
will result in the wisest governmental policies. It is for this reason that this Court has
recognized the inherent value of free discourse. An analysis of the leading cases in this
Court which have involved direct limitations on speech, however, will demonstrate that
both the majority of the Court and the dissenters in particular cases have recognized that
this is not an unlimited, unqualified right, but that the societal value of speech must, on
occasion, be subordinated to other values and considerations.
No important case involving free speech was decided by this Court prior to Schenck v.
United States, 249 U. S. 47 (1919). Indeed, the summary treatment accorded an argument
based upon an individual's claim that the First Amendment protected certain utterances
indicates that the Court at earlier dates placed no unique emphasis upon that right.
[Footnote 3] It was not until the classic dictum of Justice Holmes in the Schenck case that
speech per se received that emphasis in a majority opinion. That case involved a
conviction under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced
was whether the evidence was sufficient to sustain the conviction. Writing for a unanimous
Court, Justice Holmes stated that the
"question in every case is whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent."
249 U.S. at 249 U. S. 52. But the force of even this expression is considerably weakened
by the reference at the end of the opinion to Goldman v. United States, 245 U. S.
474 (1918), a prosecution under the same statute. Said Justice Holmes,
"Indeed, [Goldman] might be said to dispose of the present contention if the precedent
covers all media concludendi. But as the right to free speech was not referred to specially,
we have thought fit to add a few words."
249 U.S. at 249 U. S. 52. The fact is inescapable, too, that the phrase bore no connotation
that the danger was to be any threat to the safety of the Republic. The charge was causing
and attempting to cause insubordination in the military forces and obstruct recruiting. The
objectionable document denounced conscription and its most inciting sentence was, "You
must do your share to maintain, support and uphold the rights of the people of this
country." 249 U.S. at 249 U. S. 51. Fifteen thousand copies were printed, and some
circulated. This insubstantial gesture toward insubordination in 1917 during war was held
to be a clear and present danger of bringing about the evil of military insubordination.
In several later cases involving convictions under the Criminal Espionage Act, the nub of
the evidence the Court held sufficient to meet the "clear and present danger" test
enunciated in Schenck was as follows: Frohwerk v. United States, 249 U. S. 204 (1919) --
publication of twelve newspaper articles attacking the war; Debs v. United States, 249 U.
S. 211 (1919) -- one speech attacking United States' participation in the war; Abrams v.
United States, 250 U. S. 616 (1919) -- circulation of copies of two different socialist
circulars attacking the war; Schaefer v. United States, 251 U. S. 466 (1920) -- publication
of a German language newspaper with allegedly false articles, critical of capitalism and the
war; Pierce v. United States, 252 U. S. 239 (1920) -- circulation of copies of a four-page
pamphlet written by a clergyman, attacking the purposes of the war and United States'
participation therein. Justice Holmes wrote the opinions for a unanimous Court
in Schenck, Frohwerk and Debs. He and Justice Brandeis dissented in Abrams,
Schaefer and Pierce. The basis of these dissents was that, because of the protection
which the First Amendment gives to speech, the evidence in each case was insufficient to
show that the defendants had created the requisite danger under Schenck.
But these dissents did not mark a change of principle. The dissenters doubted only the
probable effectiveness of the puny efforts toward subversion. In Abrams, they wrote,
"I do not doubt for a moment that, by the same reasoning that would justify punishing
persuasion to murder, the United States constitutionally may punish speech that produces
~Page 46 of 96~
or is intended to produce a clear and imminent danger that it will bring about forthwith
certain substantive evils that the United States constitutionally may seek to prevent."
250 U.S. at 250 U. S. 627. And in Schaefer the test was said to be one of "degree," 251
U.S. at 251 U. S. 482, although it is not clear whether "degree" refers to clear and present
danger or evil. Perhaps both were meant.
The rule we deduce from these cases is that, where an offense is specified by a statute in
nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of
violation may be sustained only when the speech or publication created a "clear and
present danger" of attempting or accomplishing the prohibited crime, e.g., interference with
enlistment. The dissents, we repeat, in emphasizing the value of speech, were addressed
to the argument of the sufficiency of the evidence.
The next important case [Footnote 4] before the Court in which free speech was the crux
of the conflict was Gitlow v. New York, 268 U. S. 652 (1925). There, New York had made it
a crime to advocate "the necessity or propriety of overthrowing . . . organized government
by force. . . ." The evidence of violation of the statute was that the defendant had published
a Manifesto attacking the Government and capitalism. The convictions were sustained,
Justices Holmes and Brandeis dissenting. The majority refused to apply the "clear and
present danger" test to the specific utterance. Its reasoning was as follows: the "clear and
present danger" test was applied to the utterance itself in Schenck because the question
was merely one of sufficiency of evidence under an admittedly constitutional
statute. Gitlow however, presented a different question. There a legislature had found that
a certain kind of speech was, itself, harmful and unlawful. The constitutionality of such a
state statute had to be adjudged by this Court just as it determined the constitutionality of
any state statute, namely, whether the statute was "reasonable." Since it was entirely
reasonable for a state to attempt to protect itself from violent overthrow, the statute was
perforce reasonable. The only question remaining in the case became whether there was
evidence to support the conviction, a question which gave the majority no difficulty.
Justices Holmes and Brandeis refused to accept this approach, but insisted that, wherever
speech was the evidence of the violation, it was necessary to show that the speech
created the "clear and present danger" of the substantive evil which the legislature had the
right to prevent. Justices Holmes and Brandeis, then, made no distinction between a
federal statute which made certain acts unlawful, the evidence to support the conviction
being speech, and a statute which made speech itself the crime. This approach was
emphasized in Whitney v. California, 274 U. S. 357 (1927), where the Court was
confronted with a conviction under the California Criminal Syndicalist statute. The Court
sustained the conviction, Justices Brandeis and Holmes concurring in the result. In their
concurrence they repeated that, even though the legislature had designated certain
speech as criminal, this could not prevent the defendant from showing that there was no
danger that the substantive evil would be brought about.
Although no case subsequent to Whitney and Gitlow has expressly overruled the majority
opinions in those cases, there is little doubt that subsequent opinions have inclined toward
the Holmes-Brandeis rationale. [Footnote 5] And in American Communications Assn. v.
Douds, supra, we were called upon to decide the validity of 9(h) of the Labor
Management Relations Act of 1947. That section required officials of unions which desired
to avail themselves of the facilities of the National Labor Relations Board to take oaths that
they did not belong to the Communist Party and that they did not believe in the overthrow
of the Government by force and violence. We pointed out that Congress did not intend to
punish belief, but rather intended to regulate the conduct of union affairs. We therefore
held that any indirect sanction on speech which might arise from the oath requirement did
not present a proper case for the "clear and present danger" test, for the regulation was
aimed at conduct, rather than speech. In discussing the proper measure of evaluation of
this kind of legislation, we suggested that the Homes-Brandeis philosophy insisted that,
where there was a direct restriction upon speech, a "clear and present danger" that the
substantive evil would be caused was necessary before the statute in question could be
constitutionally applied. And we stated,
"[The First] Amendment requires that one be permitted to believe what he will. It requires
that one be permitted to advocate what he will unless there is a clear and present danger
that a substantial public evil will result therefrom."
339 U.S. at 339 U. S. 412. But we further suggested that neither Justice Holmes nor
Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a
rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech
is not an absolute, above and beyond control by the legislature when its judgment, subject
to review here, is that certain kinds of speech are so undesirable as to warrant criminal
sanction. Nothing is more certain in modern society than the principle that there are no
absolutes, that a name, a phrase, a standard has meaning only when associated with the
considerations which gave birth to the nomenclature. See American Communications
Assn. v. Douds, 339 U.S. at 339 U. S. 397. To those who would paralyze our Government
in the face of impending threat by encasing it in a semantic straitjacket we must reply that
all concepts are relative.
In this case, we are squarely presented with the application of the "clear and present
danger" test, and must decide what that phrase imports. We first note that many of the
cases in which this Court has reversed convictions by use of this or similar tests have
been based on the fact that the interest which the State was attempting to protect was
itself too insubstantial to warrant restriction of speech. In this category we may put such
cases as Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S.
296 (1940); Martin v. Struthers, 319 U. S. 141 (1943); West Virginia Board of Education v.
Barnette, 319 U. S. 624 (1943); Thomas v. Collins, 323 U. S. 516 (1945); Marsh v.
Alabama, 326 U. S. 501 (1946); but cf. Prince v. Massachusetts, 321 U. S.
158 (1944); Cox v. New Hampshire, 312 U. S. 569 (1941). Overthrow of the Government
by force and violence is certainly a substantial enough interest for the Government to limit
speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its
very structure from armed internal attack, it must follow that no subordinate value can be
~Page 47 of 96~
protected. If, then, this interest may be protected, the literal problem which is presented is
what has been meant by the use of the phrase "clear and present danger" of the
utterances bringing about the evil within the power of Congress to punish.
Obviously, the words cannot mean that, before the Government may act, it must wait until
the putsch is about to be executed, the plans have been laid and the signal is awaited. If
Government is aware that a group aiming at its overthrow is attempting to indoctrinate its
members and to commit them to a course whereby they will strike when the leaders feel
the circumstances permit, action by the Government is required. The argument that there
is no need for Government to concern itself, for Government is strong, it possesses ample
powers to put down a rebellion, it may defeat the revolution with ease needs no answer.
For that is not the question. Certainly an attempt to overthrow the Government by force,
even though doomed from the outset because of inadequate numbers or power of the
revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts
create both physically and politically to a nation makes it impossible to measure the validity
in terms of the probability of success, or the immediacy of a successful attempt. In the
instant case, the trial judge charged the jury that they could not convict unless they found
that petitioners intended to overthrow the Government "as speedily as circumstances
would permit." This does not mean, and could not properly mean, that they would not
strike until there was certainty of success. What was meant was that the revolutionists
would strike when they thought the time was ripe. We must therefore reject the contention
that success or probability of success is the criterion.
The situation with which Justices Holmes and Brandeis were concerned in Gitlow was a
comparatively isolated event, bearing little relation in their minds to any substantial threat
to the safety of the community. Such also is true of cases like Fiske v. Kansas, 274 U. S.
380 (1927), and De Jonge v. Oregon, 299 U. S. 353 (1937); but cf. Lazar v.
Pennsylvania, 286 U.S. 532 (1932). They were not confronted with any situation
comparable to the instant one -- the development of an apparatus designed and dedicated
to the overthrow of the Government, in the context of world crisis after crisis.
Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as
follows:
"In each case, [courts] must ask whether the gravity of the 'evil,' discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid the danger."
183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand,
it is as succinct and inclusive as any other we might devise at this time. It takes into
consideration those factors which we deem relevant, and relates their significances. More
we cannot expect from words.
Likewise, we are in accord with the court below, which affirmed the trial court's finding that
the requisite danger existed. The mere fact that, from the period 1945 to 1948, petitioners'
activities did not result in an attempt to overthrow the Government by force and violence is,
of course, no answer to the fact that there was a group that was ready to make the
attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly
disciplined members subject to call when the leaders, these petitioners, felt that the time
had come for action, coupled with the inflammable nature of world conditions, similar
uprisings in other countries, and the touch-and-go nature of our relations with countries
with whom petitioners were in the very least ideologically attuned, convince us that their
convictions were justified on this score. And this analysis disposes of the contention that a
conspiracy to advocate, as distinguished from the advocacy itself, cannot be
constitutionally restrained, because it comprises only the preparation. It is the existence of
the conspiracy which creates the danger. Cf. Pinkerton v. United States, 328 U. S.
640 (1946); Goldman v. United States, 245 U. S. 474 (1918); United States v.
Rabinowich, 238 U. S. 78 (1915). If the ingredients of the reaction are present, we cannot
bind the Government to wait until the catalyst is added.
IV
Although we have concluded that the finding that there was a sufficient danger to warrant
the application of the statute was justified on the merits, there remains the problem of
whether the trial judge's treatment of the issue was correct. He charged the jury, in
relevant part, as follows:
"In further construction and interpretation of the statute, I charge you that it is not the
abstract doctrine of overthrowing or destroying organized government by unlawful means
which is denounced by this law, but the teaching and advocacy of action for the
accomplishment of that purpose, by language reasonably and ordinarily calculated to incite
persons to such action. Accordingly, you cannot find the defendants or any of them guilty
of the crime charged unless you are satisfied beyond a reasonable doubt that they
conspired to organize a society, group and assembly of persons who teach and advocate
the overthrow or destruction of the Government of the United States by force and violence
and to advocate and teach the duty and necessity of overthrowing or destroying the
Government of the United States by force and violence, with the intent that such teaching
and advocacy be of a rule or principle of action and by language reasonably and ordinarily
calculated to incite persons to such action, all with the intent to cause the overthrow or
destruction of the Government of the United States by force and violence as speedily as
circumstances would permit."
"* * * *"
"If you are satisfied that the evidence establishes beyond a reasonable doubt that the
defendants, or any of them, are guilty of a violation of the statute, as I have interpreted it to
you, I find as matter of law that there is sufficient danger of a substantive evil that the
Congress has a right to prevent to justify the application of the statute under the First
Amendment of the Constitution."
"This is matter of law about which you have no concern. It is a finding on a matter of law
which I deem essential to support my ruling that the case should be submitted to you to
pass upon the guilt or innocence of the defendants. . . ."
It is thus clear that he reserved the question of the existence of the danger for his own
determination, and the question becomes whether the issue is of such a nature that it
should have been submitted to the jury.
~Page 48 of 96~
The first paragraph of the quoted instructions calls for the jury to find the facts essential to
establish the substantive crime, violation of 2(a)(1) and 2(a)(3) of the Smith Act,
involved in the conspiracy charge. There can be no doubt that, if the jury found those facts
against the petitioners, violation of the Act would be established. The argument that the
action of the trial court is erroneous in declaring as a matter of law that such violation
shows sufficient danger to justify the punishment despite the First Amendment rests on the
theory that a jury must decide a question of the application of the First Amendment. We do
not agree.
When facts are found that establish the violation of a statute, the protection against
conviction afforded by the First Amendment is a matter of law. The doctrine that there must
be a clear and present danger of a substantive evil that Congress has a right to prevent is
a judicial rule to be applied as a matter of law by the courts. The guilt is established by
proof of facts. Whether the First Amendment protects the activity which constitutes the
violation of the statute must depend upon a judicial determination of the scope of the First
Amendment applied to the circumstances of the case.
Petitioners' reliance upon Justice Brandeis' language in his concurrence in Whitney,
supra, is misplaced. In that case, Justice Brandeis pointed out that the defendant could
have made the existence of the requisite danger the important issue at her trial, but that
she had not done so. In discussing this failure, he stated that the defendant could have
had the issue determined by the court or the jury. [Footnote 6] No realistic construction of
this disjunctive language could arrive at the conclusion that he intended to state that the
question was only determinable by a jury. Nor is the incidental statement of the majority
in Pierce, supra, of any more persuasive effect. [Footnote 7] There, the issue of the
probable effect of the publication had been submitted to the jury, and the majority was
apparently addressing its remarks to the contention of the dissenters that the jury could not
reasonably have returned a verdict of guilty on the evidence. [Footnote 8] Indeed, in the
very case in which the phrase was born, Schenck, this Court itself examined the record to
find whether the requisite danger appeared, and the issue was not submitted to a jury. And
in every later case in which the Court has measured the validity of a statute by the "clear
and present danger" test, that determination has been by the court, the question of the
danger not being submitted to the jury.
The question in this case is whether the statute which the legislature has enacted may be
constitutionally applied. In other words, the Court must examine judicially the application of
the statute to the particular situation, to ascertain if the Constitution prohibits the
conviction. We hold that the statute may be applied where there is a "clear and present
danger" of the substantive evil which the legislature had the right to prevent. Bearing, as it
does, the marks of a "question of law," the issue is properly one for the judge to decide.
V to overthrow the Government of the United States as speedily as the circumstances would
There remains to be discussed the question of vagueness -- whether the statute as we
have interpreted it is too vague, not sufficiently advising those who would speak of the
limitations upon their activity. It is urged that such vagueness contravenes the First and
Fifth Amendments. This argument is particularly nonpersuasive when presented by
petitioners, who, the jury found, intended to overthrow the Government as speedily as
circumstances would permit. See Abrams v. United States, 250 U. S. 616, 250 U. S. 627-
629 (1919) (dissenting opinion); Whitney v. California, 274 U. S. 357, 274 U. S. 373 (1927)
(concurring opinion); Taylor v. Mississippi, 319 U. S. 583, 319 U. S. 589 (1943). A claim of
guilelessness ill becomes those with evil intent. Williams v. United States, 341 U. S.
97, 341 U. S. 101-102 (1951); Jordan v. De George, 341 U. S. 223, 341 U. S. 230-232
(1951); American Communications Assn. v. Douds, 339 U.S. at 339 U. S. 413; Screws v.
United States, 325 U. S. 91,325 U. S. 101 (1945).
We agree that the standard as defined is not a neat, mathematical formulary. Like all
verbalizations it is subject to criticism on the score of indefiniteness. But petitioners
themselves contend that the verbalization "clear and present danger" is the proper
standard. We see no difference, from the standpoint of vagueness, whether the standard
of "clear and present danger" is one contained in haec verba within the statute, or whether
it is the judicial measure of constitutional applicability. We have shown the indeterminate
standard the phrase necessarily connotes. We do not think we have rendered that
standard any more indefinite by our attempt to sum up the factors which are included
within its scope. We think it well serves to indicate to those who would advocate
constitutionally prohibited conduct that there is a line beyond which they may not go -- a
line which they, in full knowledge of what they intend and the circumstances in which their
activity takes place, will well appreciate and understand. Williams, supra, at 341 U. S. 101-
102; Jordan, supra, at 341 U. S. 230-232; United States v. Petrillo, 332 U. S. 1, 332 U. S.
7 (1948); United States v. Wurzbach, 280 U. S. 396, 280 U. S. 399 (1930); Nash v. United
States, 229 U. S. 373, 229 U. S. 376-377 (1913). Where there is doubt as to the intent of
the defendants, the nature of their activities, or their power to bring about the evil, this
Court will review the convictions with the scrupulous care demanded by our Constitution.
But we are not convinced that, because there may be borderline cases at some time in the
future, these convictions should be reversed because of the argument that these
petitioners could not know that their activities were constitutionally proscribed by the
statute.
We have not discussed many of the questions which could be extracted from the record,
although they were treated in detail by the court below. Our limited grant of the writ of
certiorari has withdrawn from our consideration at this date those questions, which
include, inter alia, sufficiency of the evidence, composition of jury, and conduct of the trial.
We hold that 2(a)(1), 2(a)(3) and 3 of the Smith Act do not inherently, or as construed or
applied in the instant case, violate the First Amendment and other provisions of the Bill of
Rights, or the First and Fifth Amendments because of indefiniteness. Petitioners intended
permit.
~Page 49 of 96~
Their conspiracy to organize the Communist Party and to teach and advocate the
overthrow of the Government of the United States by force and violence created a "clear
and present danger" of an attempt to overthrow the Government by force and violence.
They were properly and constitutionally convicted for violation of the Smith Act. The
judgments of conviction are
Affirmed.
MR. JUSTICE CLARK took no part in the consideration or decision of this case.
[Footnote 1]
Following the dissolution of the Communist International in 1943, the Communist Party of
the United States dissolved and was reconstituted as the Communist Political Association.
The program of this Association was one of cooperation between labor and management,
and, in general, one designed to achieve national unity and peace and prosperity in the
post-war period.
[Footnote 2]
We have treated this point because of the discussion accorded it by the Court of Appeals
and its importance to the administration of this statute, compare Johnson v. United
States, 318 U. S. 189 (1943), although petitioners themselves requested a charge similar
to the one given, and under Rule 30 of the Federal Rules of Criminal Procedure would
appear to be barred from raising this point on appeal. Cf. Boyd v. United States, 271 U. S.
104 (1926).
[Footnote 3]
Toledo Newspaper Co. v. United States, 247 U. S. 402 (1918); Fox v. Washington, 236 U.
S. 273 (1915); Davis v. Massachusetts,167 U. S. 43 (1897); see Gompers v. Bucks Stove
& Range Co., 221 U. S. 418, 221 U. S. 439 (1911); Robertson v. Baldwin, 165 U. S.
275, 165 U. S. 281 (1897).
[Footnote 4]
Cf. Gilbert v. Minnesota, 254 U. S. 325 (1920).
[Footnote 5]
Contempt of court: Craig v. Harney, 331 U. S. 367, 331 U. S. 373 (1947); Pennecamp v.
Florida, 328 U. S. 331, 328 U. S. 333-336 (1946); Bridges v. California, 314 U. S. 252, 314
U. S. 260-263 (1941).
Validity of state statute: Thomas v. Collins, 323 U. S. 516, 323 U. S. 530 (1945); Taylor v.
Mississippi, 319 U. S. 583, 319 U. S. 589-590 (1943); Thornhill v. Alabama, 310 U. S.
88, 310 U. S. 104-106 (1940).
Validity of local ordinance or regulation: West Virginia Board of Education v. Barnette, 319
U. S. 624, 319 U. S. 639 (1943); Carlson v. California, 310 U. S. 106, 310 U. S.
113 (1940).
Common law offense: Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 308, 310 U. S.
311 (1940).
[Footnote 6]
"Whether, in 1919, when Miss Whitney did the things complained of, there was in
California such clear and present danger of serious evil might have been made the
important issue in the case. She might have required that the issue be determined either
by the court or the jury. She claimed below that the statute, as applied to her, violated the
Federal Constitution, but she did not claim that it was void because there was no clear and
present danger of serious evil, nor did she request that the existence of these conditions of
a valid measure thus restricting the rights of free speech and assembly be passed upon
by the court or a jury. On the other hand, there was evidence on which the court or
jury might have found that such danger existed."
(Emphasis added.) 274 U.S. at 274 U. S. 379.
[Footnote 7]
"Whether the printed words would, in fact, produce as a proximate result a material
interference with the recruiting or enlistment service, or the operation or success of the
forces of the United States, was a question for the jury to decide in view of all the
circumstances of the time and considering the place and manner of distribution."
252 U.S. 239, 252 U. S. 250 (1920).
[Footnote 8]
A similarly worded expression is found in that part of the majority opinion sustaining the
overruling of the defendants' general demurrer to the indictment. 252 U.S. at 252 U. S.
244. Since the defendants had not raised the issue of "clear and present danger" at the
trial, it is clear that the Court was not faced with the question whether the trial judge erred
in not determining, as a conclusive matter, the existence or nonexistence of a "clear and
present danger." The only issue to which the remarks were addressed was whether the
indictment sufficiently alleged the violation.
MR. JUSTICE FRANKFURTER, concurring in affirmance of the judgment.
The defendants were convicted under 3 of the Smith Act for conspiring to violate 2 of
that Act, which makes it unlawful
"to organize or help to organize any society, group, or assembly of persons who teach,
advocate, or encourage the overthrow or destruction of any government in the United
States by force or violence."
Act of June 28, 1940, 2(a)(3), 54 Stat. 670, 671, 18 U.S.C. 10, now 18 U.S.C. 2385.
The substance of the indictment is that the defendants between April 1, 1945, and July 20,
1948, agreed to bring about the dissolution of a body known as the Communist Political
Association and to organize in its place the Communist Party of the United States; that the
aim of the new party was "the overthrow and destruction of the Government of the United
States by force and violence"; that the defendants were to assume leadership of the Party
and to recruit members for it and that the Party was to publish books and conduct classes,
teaching the duty and the necessity of forceful overthrow. The jury found all the defendants
guilty. With one exception, each was sentenced to imprisonment for five years and to a
fine of $10,000. The convictions were affirmed by the Court of Appeals for the Second
Circuit. 183 F.2d 201. We were asked to review this affirmance on all the grounds
considered by the Court of Appeals. These included not only the scope of the freedom of
speech guaranteed by the Constitution, but also serious questions regarding the legal
composition of the jury and the fair conduct of the trial. We granted certiorari, strictly
~Page 50 of 96~
limited, however, to the contention that 2 and 3 of the Smith Act, inherently and as
applied, violated the First and Fifth Amendments. 340 U.S. 863.
No attempt was made to seek an enlargement of the range of questions thus defined, and
these alone are now open for our consideration. All others are foreclosed by the decision
of the Court of Appeals.
As thus limited, the controversy in this Court turns essentially on the instructions given to
the jury for determining guilt or innocence. 9 F.R.D. 367. The first question is whether --
wholly apart from constitutional matters -- the judge's charge properly explained to the jury
what it is that the Smith Act condemns. The conclusion that he did so requires no labored
argument. On the basis of the instructions, the jury found, for the purpose of our review,
that the advocacy which the defendants conspired to promote was to be a rule of action,
by language reasonably calculated to incite persons to such action, and was intended to
cause the overthrow of the Government by force and violence as soon as circumstances
permit. This brings us to the ultimate issue. In enacting a statute which makes it a crime for
the defendants to conspire to do what they have been found to have conspired to do, did
Congress exceed its constitutional power?
Few questions of comparable import have come before this Court in recent years. The
appellants maintain that they have a right to advocate a political theory, so long, at least,
as their advocacy does not create an immediate danger of obvious magnitude to the very
existence of our present scheme of society. On the other hand, the Government asserts
the right to safeguard the security of the Nation by such a measure as the Smith Act. Our
judgment is thus solicited on a conflict of interests of the utmost concern to the wellbeing
of the country. This conflict of interests cannot be resolved by a dogmatic preference for
one or the other, nor by a sonorous formula which is, in fact, only a euphemistic disguise
for an unresolved conflict. If adjudication is to be a rational process, we cannot escape a
candid examination of the conflicting claims with full recognition that both are supported by
weighty title-deeds.
I free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
There come occasions in law, as elsewhere, when the familiar needs to be recalled. Our
whole history proves even more decisively than the course of decisions in this Court that
the United States has the powers inseparable from a sovereign nation.
"America has chosen to be, in many respects, and to many purposes, a nation, and for all
these purposes, her government is complete; to all these objects, it is competent."
Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 19 U. S. 414. The right of a
government to maintain its existence -- self-preservation -- is the most pervasive aspect of
sovereignty. "Security against foreign danger," wrote Madison, "is one of the primitive
objects of civil society." The Federalist, No. 41. The constitutional power to act upon this
basic principle has been recognized by this Court at different periods and under diverse
circumstances.
"To preserve its independence, and give security against foreign aggression and
encroachment, is the highest duty of every nation, and to attain these ends nearly all other
considerations are to be subordinated. It matters not in what form such aggression and
encroachment come. . . . The government, possessing the powers which are to be
exercised for protection and security, is clothed with authority to determine the occasion on
which the powers shall be called forth. . . ."
Chinese Exclusion Case, 130 U. S. 581, 130 U. S. 606. See also De Lima v. Bidwell, 182
U. S. 1; Mackenzie v. Hare, 239 U. S. 299; Missouri v. Holland, 252 U. S. 416; United
States v. Curtiss-Wright Corp., 299 U. S. 304. The most tragic experience in our history is
a poignant reminder that the Nation's continued existence may be threatened from within.
To protect itself from such threats, the Federal Government
"is invested with all those inherent and implied powers which, at the time of adopting the
Constitution, were generally considered to belong to every government as such, and as
being essential to the exercise of its functions."
Mr. Justice Bradley, concurring in Legal Tender Cases, 12 Wall. 457, 79 U. S. 554, 79 U.
S. 556, and see In re Debs, 158 U. S. 564, 158 U. S. 582.
But even the all-embracing power and duty of self-preservation are not absolute. Like the
war power, which is indeed an aspect of the power of self-preservation, it is subject to
applicable constitutional limitations. See Hamilton v. Kentucky Distilleries Co., 251 U. S.
146, 251 U. S. 156. Our Constitution has no provision lifting restrictions upon
governmental authority during periods of emergency, although the scope of a restriction
may depend on the circumstances in which it is invoked.
The First Amendment is such a restriction. It exacts obedience even during periods of war;
it is applicable when war clouds are not figments of the imagination no less than when they
are. The First Amendment categorically demands that
"Congress shall make no law respecting an establishment of religion, or prohibiting the
the people peaceably to assemble, and to petition the Government for a redress of
grievances."
The right of a man to think what he pleases, to write what he thinks, and to have his
thoughts made available for others to hear or read has an engaging ring of universality.
The Smith Act and this conviction under it no doubt restrict the exercise of free speech and
assembly. Does that, without more, dispose of the matter?
Just as there are those who regard as invulnerable every measure for which the claim of
national survival is invoked, there are those who find in the Constitution a wholly unfettered
right of expression. Such literalness treats the words of the Constitution as though they
were found on a piece of outworn parchment instead of being words that have called into
being a nation with a past to be preserved for the future. The soil in which the Bill of Rights
grew was not a soil of arid pedantry. The historic antecedents of the First Amendment
~Page 51 of 96~
preclude the notion that its purpose was to give unqualified immunity to every expression
that touched on matters within the range of political interest. The Massachusetts
Constitution of 1780 guaranteed free speech; yet there are records of at least three
convictions for political libels obtained between 1799 and 1803.
[Footnote 2/1] The Pennsylvania Constitution of 1790 and the Delaware Constitution of
1792 expressly imposed liability for abuse of the right of free speech. [Footnote 2/2]
Madison's own State put on its books in 1792 a statute confining the abusive exercise of
the right of utterance. [Footnote 2/3] And it deserves to be noted that, in writing to John
Adams' wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his
belief in unrestrained utterance as to political matter. The First Amendment, he argued,
reflected a limitation upon Federal power, leaving the right to enforce restrictions on
speech to the States. [Footnote 2/4]
The language of the First Amendment is to be read not as barren words found in a
dictionary but as symbols of historic experience illumined by the presuppositions of those
who employed them. Not what words did Madison and Hamilton use, but what was it in
their minds which they conveyed? Free speech is subject to prohibition of those abuses of
expression which a civilized society may forbid. As in the case of every other provision of
the Constitution that is not crystallized by the nature of its technical concepts, the fact that
the First Amendment is not self-defining and self-enforcing neither impairs its usefulness
nor compels its paralysis as a living instrument.
"The law is perfectly well settled," this Court said over fifty years ago,
"that the first ten amendments to the Constitution, commonly known as the Bill of Rights,
were not intended to lay down any novel principles of government, but simply to embody
certain guaranties and immunities which we had inherited from our English ancestors, and
which had from time immemorial been subject to certain well recognized exceptions
arising from the necessities of the case. In incorporating these principles into the
fundamental law, there was no intention of disregarding the exceptions, which continued to
be recognized as if they had been formally expressed."
Robertson v. Baldwin, 165 U. S. 275, 165 U. S. 281. That this represents the authentic
view of the Bill of Rights and the spirit in which it must be construed has been recognized
again and again in cases that have come here within the last fifty years. See, e.g.,
Gompers v. United States, 233 U. S. 604, 233 U. S. 610. Absolute rules would inevitably
lead to absolute exceptions, and such exceptions would eventually corrode the rules.
[Footnote 2/5] The demands of free speech in a democratic society, as well as the interest
in national security are better served by candid and informed weighing of the competing
interests, within the confines of the judicial process, than by announcing dogmas too
inflexible for the non-Euclidian problems to be solved.
But how are competing interests to be assessed? Since they are not subject to quantitative
ascertainment, the issue necessarily resolves itself into asking, who is to make the
adjustment? -- who is to balance the relevant factors and ascertain which interest is in the
circumstances to prevail? Full responsibility for the choice cannot be given to the courts.
Courts are not representative bodies. They are not designed to be a good reflex of a
democratic society. Their judgment is best informed, and therefore most dependable,
within narrow limits. Their essential quality is detachment, founded on independence.
History teaches that the independence of the judiciary is jeopardized when courts become
embroiled in the passions of the day and assume primary responsibility in choosing
between competing political, economic and social pressures.
Primary responsibility for adjusting the interests which compete in the situation before us
of necessity belongs to the Congress. The nature of the power to be exercised by this
Court has been delineated in decisions not charged with the emotional appeal of situations
such as that now before us. We are to set aside the judgment of those whose duty it is to
legislate only if there is no reasonable basis for it. Sinking-Fund Cases, 99 U. S. 700, 99
U. S. 718; Mugler v. Kansas, 123 U. S. 623, 123 U. S. 660-661; United States v. Carolene
Products Co., 304 U. S. 144. We are to determine whether a statute is sufficiently definite
to meet the constitutional requirements of due process, and whether it respects the
safeguards against undue concentration of authority secured by separation of
power. United States v. Cohen Grocery Co., 255 U. S. 81.
We must assure fairness of procedure, allowing full scope to governmental discretion but
mindful of its impact on individuals in the context of the problem involved. Joint Anti-
Fascist Refugee Comm. v. McGrath, 341 U. S. 123. And, of course, the proceedings in a
particular case before us must have the warrant of substantial proof. Beyond these powers
we must not go; we must scrupulously observe the narrow limits of judicial authority even
though self-restraint is alone set over us. Above all, we must remember that this Court's
power of judicial review is not "an exercise of the powers of a super-legislature." Mr.
Justice Brandeis and Mr. Justice Holmes, dissenting in Burns Baking Co. v. Bryan, 264 U.
S. 504, 264 U. S. 534.
A generation ago, this distribution of responsibility would not have been questioned. See
Fox v. Washington, 236 U. S. 273; Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 262
U. S. 404; cf. New York ex rel. Bryant v. Zimmerman, 278 U. S. 63. But, in recent
decisions, we have made explicit what has long been implicitly recognized. In reviewing
statutes which restrict freedoms protected by the First Amendment, we have emphasized
the close relation which those freedoms bear to maintenance of a free society. See
Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 89, 336 U. S. 95 (concurring). Some members
of the Court -- and at times a majority -- have done more. They have suggested that our
function in reviewing statutes restricting freedom of expression differs sharply from our
normal duty in sitting in judgment on legislation. It has been said that such statutes
"must be justified by clear public interest, threatened not doubtfully or remotely, but by
clear and present danger. The rational connection between the remedy provided and the
evil to be curbed, which in other contexts might support legislation against attack on due
process grounds, will not suffice."
Thomas v. Collins, 323 U. S. 516, 323 U. S. 530. It has been suggested, with the
casualness of a footnote, that such legislation is not presumptively valid, see United
~Page 52 of 96~
States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 152, n. 4, and it has been
weightily reiterated that freedom of speech has a "preferred position" among constitutional
safeguards. Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 88.
The precise meaning intended to be conveyed by these phrases need not now be
pursued. It is enough to note that they have recurred in the Court's opinions, and their
cumulative force has, not without justification, engendered belief that there is a
constitutional principle, expressed by those attractive but imprecise words, prohibiting
restriction upon utterance unless it creates a situation of "imminent" peril against which
legislation may guard. [Footnote 2/6] It is on this body of the Court's pronouncements that
the defendants' argument here is based.
In all fairness, the argument cannot be met by reinterpreting the Court's frequent use of
"clear" and "present" to mean an entertainable "probability." In giving this meaning to the
phrase "clear and present danger," the Court of Appeals was fastidiously confining the
rhetoric of opinions to the exact scope of what was decided by them. We have greater
responsibility for having given constitutional support, over repeated protests, to uncritical
libertarian generalities.
Nor is the argument of the defendants adequately met by citing isolated cases. Adjustment
of clash of interests which are at once subtle and fundamental is not likely to reveal entire
consistency in a series of instances presenting the clash. It is not too difficult to find what
one seeks in the language of decisions reporting the effort to reconcile free speech with
the interests with which it conflicts. The case for the defendants requires that their
conviction be tested against the entire body of our relevant decisions. Since the
significance of every expression of thought derives from the circumstances evoking it,
results reached, rather than language employed give the vital meaning. See Cohens v.
Virginia, 6 Wheat. 264, 19 U. S. 442; Wambaugh, The Study of Cases, 10.
There is an added reason why we must turn to the decisions. "Great cases," it is
appropriate to remember,
"like hard cases, make bad law. For great cases are called great not by reason of their real
importance in shaping the law of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts the judgment. These
immediate interests exercise a kind of hydraulic pressure which makes what previously
was clear seem doubtful, and before which even well settled principles of law will bend."
Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States, 193 U. S.
197, 193 U. S. 400-401.
This is such a case. Unless we are to compromise judicial impartiality and subject these
defendants to the risk of an ad hoc judgment influenced by the impregnating atmosphere
of the times, the constitutionality of their conviction must be determined by principles
established in cases decided in more tranquil periods. If those decisions are to be used as
a guide, and not as an argument, it is important to view them as a whole, and to distrust
the easy generalizations to which some of them lend themselves.
II
We have recognized and resolved conflicts between speech and competing interests in six
different types of cases. [Footnote 2/7]
1. The cases involving a conflict between the interest in allowing free expression of ideas
in public places and the interest in protection of the public peace and the primary uses of
streets and parks, were too recently considered to be rehearsed here. Niemotko v.
Maryland, 340 U. S. 268, 340 U. S. 273. It suffices to recall that the result in each case
was found to turn on the character of the interest with which the speech clashed, the
method used to impose the restriction, and the nature and circumstances of the utterance
prohibited. While the decisions recognized the importance of free speech and carefully
scrutinized the justification for its regulation, they rejected the notion that vindication of the
deep public interest in freedom of expression requires subordination of all conflicting
values.
2. A critique of the cases testing restrictions on picketing is made more difficult by the
inadequate recognition by the Court from the outset that the loyalties and responses
evoked and exacted by picket lines differentiate this form of expression from other modes
of communication. See Thornhill v. Alabama, 310 U. S. 88. But the crux of the decision in
the Thornhill case was that a State could not constitutionally punish peaceful picketing
when neither the aim of the picketing nor the manner in which it was carried out conflicted
with a substantial interest. In subsequent decisions, we sustained restrictions designed to
prevent recurrence of violence, Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.
S. 287, or reasonably to limit the area of industrial strife, Carpenters & Joiners Union v.
Ritter's Cafe, 315 U. S. 722; cf. Bakery & Pastry Drivers Local v. Wohl, 315 U. S. 769. We
held that a State's policy against restraints of trade justified it in prohibiting picketing which
violated that policy, Giboney v. Empire Storage Co., 336 U. S. 490; we sustained
restrictions designed to encourage self-employed persons, International Brotherhood of
Teamsters Union v. Hanke, 339 U. S. 470, and to prevent racial discrimination, Hughes v.
Superior Court, 339 U. S. 460. The Fourteenth Amendment bars a State from prohibiting
picketing when there is no fair justification for the breadth of the restriction
imposed. American Federation of Labor v. Swing, 312 U. S. 321; Cafeteria Employees
Union v. Angelos, 320 U. S. 293. But it does not prevent a State from denying the means
of communication that picketing affords in a fair balance between the interests of trade
unionism and other interests of the community.
3. In three cases, we have considered the scope and application of the power of the
Government to exclude, deport, or denaturalize aliens because of their advocacy or their
beliefs. In United States ex rel. Turner v. Williams, 194 U. S. 279, we held that the First
Amendment did not disable Congress from directing the exclusion of an alien found in an
administrative proceeding to be an anarchist. "[A]s long as human governments endure,"
we said, "they cannot be denied the power of self-preservation, as that question is
presented here."
~Page 53 of 96~

194 U.S. at 194 U. S. 294. In Schneiderman v. United States, 320 U. S. 118, and Bridges
v. Wixon, 326 U. S. 135, we did not consider the extent of the power of Congress. In each
case, by a closely divided Court, we interpreted a statute authorizing denaturalization or
deportation to impose on the Government the strictest standards of proof.
4. History regards "freedom of the press" as indispensable for a free society and for its
government. We have, therefore, invalidated discriminatory taxation against the press and
prior restraints on publication of defamatory matter. Grosjean v. American Press Co., 297
U. S. 233; Near v. Minnesota, 283 U. S. 697.
We have also given clear indication of the importance we attach to dissemination of ideas
in reviewing the attempts of States to reconcile freedom of the press with protection of the
integrity of the judicial process. In Pennekamp v. Florida,328 U. S. 331, the Court agreed
that the Fourteenth Amendment barred a State from adjudging in contempt of court the
publisher of critical and inaccurate comment about portions of a litigation that, for all
practical purposes, were no longer pending. We likewise agreed, in a minor phase of our
decision in Bridges v. California, 314 U. S. 252, that even when statements in the press
relate to matters still pending before a court, convictions for their publication cannot be
sustained if their utterance is too trivial to be deemed a substantial threat to the impartial
administration of justice.
The Court has, however, sharply divided on what constitutes a sufficient interference with
the course of justice. In the first decision, Patterson v. Colorado, 205 U. S. 454, the Court
affirmed a judgment for contempt imposed by a State supreme court for publication of
articles reflecting on the conduct of the court in cases still before it on motions for
rehearing. In the Bridges case, however, a majority held that a State court could not
protect itself from the implied threat of a powerful newspaper that failure of an elected
judge to impose a severe sentence would be a "serious mistake." The same case also
placed beyond a State's power to punish the publication of a telegram from the president
of an important union who threatened a damaging strike in the event of an adverse
decision. The majority in Craig v. Harney,331 U. S. 367, 331 U. S. 376, held that the
Fourteenth Amendment protected "strong," "intemperate," "unfair" criticism of the way an
elected lay judge was conducting a pending civil case. None of the cases establishes that
the public interest in a free press must in all instances prevail over the public interest in
dispassionate adjudication. But the Bridges and Craig decisions, if they survive, tend to
require a showing that interference be so imminent and so demonstrable that the power
theoretically possessed by the State is largely paralyzed.
5. Our decision in American Communications Assn. v. Douds, 339 U. S. 382, recognized
that the exercise of political rights protected by the First Amendment was necessarily
discouraged by the requirement of the Taft-Hartley Act that officers of unions employing the
services of the National Labor Relations Board sign affidavits that they are not
Communists. But we held that the statute was not for this reason presumptively invalid.
The problem, we said, was
"one of weighing the probable effects of the statute upon the free exercise of the right of
speech and assembly against the congressional determination that political strikes are
evils of conduct which cause substantial harm to interstate commerce and that
Communists and others identified by 9(h) pose continuing threats to that public interest
when in positions of union leadership. "
339 U.S. at 339 U. S. 400. On balance, we decided that the legislative judgment was a
permissible one. [Footnote 2/8]
6. Statutes prohibiting speech because of its tendency to lead to crime present a conflict of
interests which bears directly on the problem now before us. The first case in which we
considered this conflict was Fox v. Washington, supra. The statute there challenged had
been interpreted to prohibit publication of matter "encouraging an actual breach of law."
We held that the Fourteenth Amendment did not prohibit application of the statute to an
article which we concluded incited a breach of laws against indecent exposure. We said
that the statute
"lays hold of encouragements that, apart from statute, if directed to a particular person's
conduct, generally would make him who uttered them guilty of a misdemeanor, if not an
accomplice or a principal in the crime encouraged, and deals with the publication of them
to a wider and less selected audience."
236 U.S. at 236 U. S. 277-278. To be sure, the Fox case preceded the explicit absorption
of the substance of the First Amendment in the Fourteenth. But subsequent decisions
extended the Fox principle to free speech situations. They are so important to the problem
before us that we must consider them in detail.
(a) The first important application of the principle was made in six cases arising under the
Espionage Act of 1917. That Act prohibits conspiracies and attempts to "obstruct the
recruiting or enlistment service." In each of the first three cases, Mr. Justice Holmes wrote
for a unanimous Court, affirming the convictions. The evidence in Schenck v. United
States, 249 U. S. 47, showed that the defendant had conspired to circulate among men
called for the draft 15,000 copies of a circular which asserted a "right" to oppose the draft.
The defendant in Frohwerk v. United States, 249 U. S. 204, was shown to have conspired
to publish in a newspaper twelve articles describing the sufferings of American troops and
the futility of our war aims. The record was inadequate, and we said that it was therefore
"impossible to say that it might not have been found that the circulation of the paper was in
quarters where a little breath would be enough to kindle a flame and that the fact was
known and relied upon by those who sent the paper out."
249 U.S. at 249 U. S. 209. In Debs v. United States, 249 U. S. 211, the indictment charged
that the defendant had delivered a public speech expounding socialism and praising
Socialists who had been convicted of abetting violation of the draft laws.
The ground of decision in each case was the same. The First Amendment
"cannot have been, and obviously was not, intended to give immunity for every possible
use of language. Robertson v. Baldwin, 165 U. S. 275, 165 U. S. 281."
Frohwerk v. United States, supra, at 249 U. S. 206.
~Page 54 of 96~
"The question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question of proximity and
degree."
Schenck v. United States, supra, at 249 U. S. 52. When "the words used had as their
natural tendency and reasonably probable effect to obstruct the recruiting service," and
"the defendant had the specific intent to do so in his mind," conviction in wartime is not
prohibited by the Constitution. Debs v. United States, supra, at 249 U. S. 216.
In the three succeeding cases, Holmes and Brandeis, JJ., dissented from judgments of the
Court affirming convictions. The indictment in Abrams v. United States, 250 U. S. 616, was
laid under an amendment to the Espionage Act which prohibited conspiracies to advocate
curtailment of production of material necessary to prosecution of the war, with the intent
thereby to hinder the United States in the prosecution of the war. It appeared that the
defendants were anarchists who had printed circulars and distributed them in New York
City. The leaflets repeated standard Marxist slogans, condemned American intervention in
Russia, and called for a general strike in protest. In Schaefer v. United States, 251 U. S.
466, the editors of a German language newspaper in Philadelphia were charged with
obstructing the recruiting service and with willfully publishing false reports with the intent to
promote the success of the enemies of the United States. The evidence showed
publication of articles which accused American troops of weakness and mendacity, and in
one instance misquoted or mistranslated two words of a Senator's speech. The indictment
in Pierce v. United States, 252 U. S. 239, charged that the defendants had attempted to
cause insubordination in the armed forces and had conveyed false reports with intent to
interfere with military operations. Conviction was based on circulation of a pamphlet which
belittled Allied war aims and criticized conscription in strong terms.
In each case, both the majority and the dissenting opinions relied on Schenck v. United
States. The Court divided on its view of the evidence. The majority held that the jury could
infer the required intent and the probable effect of the articles from their content. Holmes
and Brandeis, JJ., thought that only "expressions of opinion and exhortations," 250 U.S.
at 250 U. S. 631, were involved, that they were "puny anonymities," 250 U.S. at 250 U. S.
629, "impotent to produce the evil against which the statute aimed," 251 U. S. 251
U.S. 493, and that, from them, the specific intent required by the statute could not
reasonably be inferred. The Court agreed that an incitement to disobey the draft statute
could constitutionally be punished. It disagreed over the proof required to show such an
incitement.
(b) In the eyes of a majority of the Court, Gitlow v. New York, 268 U. S. 652, presented a
very different problem. There, the defendant had been convicted under a New York statute
nearly identical with the Smith Act now before us. The evidence showed that the defendant
was an official of the Left Wing Section of the Socialist Party, and that he was responsible
for publication of a Left Wing Manifesto. This document repudiated "moderate Socialism,"
and urged the necessity of a militant "revolutionary Socialism," based on class struggle
and revolutionary mass action. No evidence of the effect of the Manifesto was introduced,
but the jury were instructed that they could not convict unless they found that the
document advocated employing unlawful acts for the purpose of overthrowing organized
government.
The conviction was affirmed. The question, the Court held, was entirely different from that
involved in Schenck v. United States, where the statute prohibited acts without reference
to language. Here, where
"the legislative body has determined generally, in the constitutional exercise of its
discretion, that utterances of a certain kind involve such danger of substantive evil that
they may be punished, the question whether any specific utterance coming within the
prohibited class is likely, in and of itself, to bring about the substantive evil is not open to
consideration."
268 U.S. at 268 U. S. 670. It is sufficient that the defendant's conduct falls within the
statute, and that the statute is a reasonable exercise of legislative judgment.
This principle was also applied in Whitney v. California, 274 U. S. 357, to sustain a
conviction under a State criminal syndicalism statute. That statute made it a felony to
assist in organizing a group assembled to advocate the commission of crime, sabotage, or
unlawful acts of violence as a means of effecting political or industrial change. The
defendant was found to have assisted in organizing the Communist Labor Party of
California, an organization found to have the specified character. It was held that the
legislature was not unreasonable in believing organization of such a party
"involves such danger to the public peace and the security of the State, that these acts
should be penalized in the exercise of its police power."
274 U.S. at 274 U. S. 371.
In neither of these cases did Mr. Justice Holmes and Mr. Justice Brandeis accept the
reasoning of the Court. "The question,'" they said, quoting from Schenck v. United States,
"'in every case is whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the substantive
evils that [the State] has a right to prevent.'"
268 U.S. at 268 U. S. 672-673. Since the Manifesto circulated by Gitlow "had no chance of
starting a present conflagration," 268 U.S. at 268 U. S. 673, they dissented from the
affirmance of his conviction. In Whitney v. California, they concurred in the result reached
by the Court, but only because the record contained some evidence that organization of
the Communist Labor Party might further a conspiracy to commit immediate serious
crimes, and the credibility of the evidence was not put in issue by the defendant. [Footnote
2/9]
(c) Subsequent decisions have added little to the principles established in these two
groups of cases. In the only case arising under the Espionage Act decided by this Court
during the last war, the substantiality of the evidence was the crucial issue. The defendant
~Page 55 of 96~
in Hartzel 322 U. S. S. 538 v. United States,@ 322 U. S. 680, was an educated man and
a citizen, not actively affiliated with any political group. In 1942, he wrote three articles
condemning our wartime allies and urging that the war be converted into a racial conflict.
He mailed the tracts to 600 people, including high-ranking military officers. According to his
testimony, his intention was to "create sentiment against war amongst the white races."
The majority of this Court held that a jury could not reasonably infer from these facts that
the defendant had acted with a specific intent to cause insubordination or disloyalty in the
armed forces.
Of greater importance is the fact that the issue of law which divided the Court in
the Gitlow and Whitney cases has not again been clearly raised, although in four additional
instances we have reviewed convictions under comparable statutes.Fiske v. Kansas, 274
U. S. 380, involved a criminal syndicalism statute similar to that before us in Whitney v.
California. We reversed a conviction based on evidence that the defendant exhibited an
innocuous preamble to the constitution of the Industrial Workers of the World in soliciting
members for that organization. In Herndon v. Lowry, 301 U. S. 242, the defendant had
solicited members for the Communist Party, but there was no proof that he had urged or
even approved those of the Party's aims which were unlawful. We reversed a conviction
obtained under a statute prohibiting an attempt to incite to insurrection by violence on the
ground that the Fourteenth Amendment prohibited conviction where, on the evidence, a
jury could not reasonably infer that the defendant had violated the statute the State sought
to apply. [Footnote 2/10]
The other two decisions go no further than to hold that the statute, as construed by the
State courts, exceeded the bounds of a legislative judgment founded in reason. The
statute presented in De Jonge v. Oregon, 299 U. S. 353, had been construed to apply to
anyone who merely assisted in the conduct of a meeting held under the auspices of the
Communist Party. In Taylor v. Mississippi, 319 U. S. 583, the statute prohibited
dissemination of printed matter "designed and calculated to encourage violence, sabotage,
or disloyalty to the government of the United States, or the state of Mississippi." We
reversed a conviction for what we concluded was mere criticism and prophesy, without
indicating whether we thought the statute could in any circumstances validly be applied.
What the defendants communicated, we said,
"is not claimed or shown to have been done with an evil or sinister purpose, to have
advocated or incited subversive action against the nation or state, or to have threatened
any clear and present danger to our institutions or our Government."
319 U.S. at 319 U. S. 589-590.
I must leave to others the ungrateful task of trying to reconcile all these decisions. In some
instances, we have too readily permitted juries to infer deception from error, or intention
from argumentative or critical statements. Abrams v. United States, supra; Schaefer v.
United States, supra; Pierce v. United States, supra; Gilbert v. Minnesota, 254 U. S. 325.
In other instances, we weighted the interest in free speech so heavily that we permitted
essential conflicting values to be destroyed. Bridges v. California, supra; Craig v. Harney,
supra. Viewed as a whole, however, the decisions express an attitude toward the judicial
function and a standard of values which, for me, are decisive of the case before us.
First. -- Free-speech cases are not an exception to the principle that we are not legislators,
that direct policymaking is not our province. How best to reconcile competing
Page 341 U. S. 540
interests is the business of legislatures, and the balance they strike is a judgment not to be
displaced by ours, but to be respected unless outside the pale of fair judgment.
On occasion, we have strained to interpret legislation in order to limit its effect on interests
protected by the First Amendment. Schneiderman v. United States, supra; Bridges v.
Wixon, supra. In some instances, we have denied to States the deference to which I think
they are entitled. Bridges v. California, supra; Craig v. Harney, supra. Once in this recent
course of decisions the Court refused to permit a jury to draw inferences which seemed to
me to be obviously reasonable. Hartzel v. United States, supra.
But in no case has a majority of this Court held that a legislative judgment, even as to
freedom of utterance, may be overturned merely because the Court would have made a
different choice between the competing interests had the initial legislative judgment been
for it to make. In the cases in which the opinions go farthest towards indicating a total
rejection of respect for legislative determinations, the interests between which choice was
actually made were such that decision might well have been expressed in the familiar
terms of want of reason in the legislative judgment. In Thomas v. Collins,323 U. S. 516, for
example, decision could not unreasonably have been placed on the ground that no
substantial interest justified a State in requiring an out-of-State labor leader to register
before speaking in advocacy of the cause of trade unionism. In Martin v. City of
Struthers, 319 U. S. 141, it was broadly held that a municipality was not justified in
prohibiting knocking on doors and ringing doorbells for the purpose of delivering handbills.
But since the good faith and reasonableness of the regulation were placed in doubt by the
fact that the city did not think it necessary also to prohibit door-to-door commercial sales,
decision could be sustained on narrower ground. And compare Breard v. Alexandria,
post, p. 341 U. S. 622, decided this day.
In other cases, moreover, we have given clear indication that even when free speech is
involved, we attach great significance to the determination of the legislature. Gitlow v. New
York, supra; Whitney v. California, supra; American Communications Assn. v. Douds,
supra; cf. Bridges v. California, 314 U.S. at 314 U. S. 260. And see Hughes v. Superior
Court, supra; International Brotherhood of Teamsters Union v. Hanke, supra.
In Gitlow v. New York, we put our respect for the legislative judgment in terms which, if
they were accepted here, would make decision easy. For that case held that, when the
legislature has determined that advocacy of forceful overthrow should be forbidden, a
conviction may be sustained without a finding that, in the particular case, the advocacy
had a close relation to a serious attempt at overthrow. We held that it was enough that the
statute be a reasonable exercise of the legislative judgment, and that the defendant's
conduct fall within the statute.
~Page 56 of 96~

One of the judges below rested his affirmance on the Gitlow decision, and the defendants
do not attempt to distinguish the case. They place their argument squarely on the ground
that the case has been overruled by subsequent decisions. It has not been explicitly
overruled. But it would be disingenuous to deny that the dissent in Gitlow has been treated
with the respect usually accorded to a decision.
The result of the Gitlow decision was to send a left-wing Socialist to jail for publishing a
Manifesto expressing Marxist exhortations. It requires excessive tolerance of the
legislative judgment to suppose that the Gitlow publication in the circumstances could
justify serious concern.
In contrast, there is ample justification for a legislative judgment that the conspiracy now
before us is a substantial threat to national order and security. If the Smith Act is justified at
all, it is justified precisely because it may serve to prohibit the type of conspiracy for which
these defendants were convicted. The court below properly held that, as a matter of
separability, the Smith Act may be limited to those situations to which it can constitutionally
be applied. See 183 F.2d at 214-215. Our decision today certainly does not mean that the
Smith Act can constitutionally be applied to facts like those in Gitlow v. New York. While
reliance may properly be placed on the attitude of judicial self-restraint which
the Gitlow decision reflects, it is not necessary to depend on the facts or the full extent of
the theory of that case in order to find that the judgment of Congress, as applied to the
facts of the case now before us, is not in conflict with the First Amendment.
Second. -- A survey of the relevant decisions indicates that the results which we have
reached are on the whole those that would ensue from careful weighing of conflicting
interests. The complex issues presented by regulation of speech in public places, by
picketing, and by legislation prohibiting advocacy of crime have been resolved by scrutiny
of many factors besides the imminence and gravity of the evil threatened. The matter has
been well summarized by a reflective student of the Court's work.
"The truth is that the 'clear and present danger' test is an oversimplified judgment unless it
takes account also of a number of other factors: the relative seriousness of the danger in
comparison with the value of the occasion for speech or political activity; the availability of
more moderate controls than those which the state has imposed, and perhaps the specific
intent with which the speech or activity is launched. No matter how rapidly we utter the
phrase 'clear and present danger,' or how closely we hyphenate the words, they are not a
substitute for the weighing of values. They tend to convey a delusion of certitude when
what is most certain is the complexity of the strands in the web of freedoms which the
judge must dissentangle."
Freund, On Understanding the Supreme Court, 27-28.
It is a familiar experience in the law that new situations do not fit neatly into legal
conceptions that arose under different circumstances to satisfy different needs. So it was
when the injunction was tortured into an instrument of oppression against labor in
industrial conflicts. So it is with the attempt to use the direction of thought lying behind the
criterion of "clear and present danger" wholly out of the context in which it originated, and
to make of it an absolute dogma and definitive measuring rod for the power of Congress to
deal with assaults against security through devices other than overt physical attempts.
Bearing in mind that Mr. Justice Holmes regarded questions under the First Amendment as
questions of "proximity and degree," Schenck v. United States, 249 U.S. at 249 U. S. 52, it
would be a distortion, indeed a mockery, of his reasoning to compare the "puny
anonymities," 250 U.S. at 250 U. S. 629, to which he was addressing himself in
the Abrams case in 1919 or the publication that was "futile and too remote from possible
consequences," 268 U.S. at 268 U. S. 673, in the Gitlow case in 1925 with the setting of
events in this case in 1950.
"It does an ill service to the author of the most quoted judicial phrases regarding freedom
of speech, to make him the victim of a tendency which he fought all his life, whereby
phrases are made to do service for critical analysis by being turned into dogma."
"It is one of the misfortunes of the law that ideas become encysted in phrases, and
thereafter for a long time cease to provoke further analysis."
"Holmes, J., dissenting, in Hyde v. United States, 225 U. S. 347, 225 U. S. 384, at 225 U.
S. 391."
The phrase "clear and present danger," in its origin,
"served to indicate the importance of freedom of speech to a free society, but also to
emphasize that its exercise must be compatible with the preservation of other freedoms
essential to a democracy and guaranteed by our Constitution."
Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 350, 328 U. S. 352-353 (concurring). It
were far better that the phrase be abandoned than that it be sounded once more to hide
from the believers in an absolute right of free speech the plain fact that the interest in
speech, profoundly important as it is, is no more conclusive in judicial review than other
attributes of democracy or than a determination of the people's representatives that a
measure is necessary to assure the safety of government itself.
Third. -- Not every type of speech occupies the same position on the scale of values.
There is no substantial public interest in permitting certain kinds of utterances:
"the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words --
those which, by their very utterance, inflict injury or tend to incite an immediate breach of
the peace."
Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 572. We have frequently indicated
that the interest in protecting speech depends on the circumstances of the occasion. See
cases collected in Niemotko v. Maryland, 340 U.S. at 340 U. S. 275-283. It is pertinent to
the decision before us to consider where on the scale of values we have in the past placed
the type of speech now claiming constitutional immunity.
~Page 57 of 96~

The defendants have been convicted of conspiring to organize a party of persons who
advocate the overthrow of the Government by force and violence. The jury has found that
the object of the conspiracy is advocacy as "a rule or principle of action," "by language
reasonably and ordinarily calculated to incite persons to such action," and with the intent to
cause the overthrow "as speedily as circumstances would permit."
On any scale of values which we have hitherto recognized, speech of this sort ranks low.
Throughout our decisions, there has recurred a distinction between the statement of an
idea which may prompt its hearers to take unlawful action and advocacy that such action
be taken. The distinction has its root in the conception of the common law, supported by
principles of morality, that a person who procures another to do an act is responsible for
that act as though he had done it himself. This principle was extended in Fox v.
Washington, supra, to words directed to the public generally which would constitute an
incitement were they directed to an individual. It was adapted in Schenck v. United States,
supra, into a rule of evidence designed to restrict application of the Espionage Act. It was
relied on by the Court in Gitlow v. New York, supra. The distinction has been repeated in
many of the decisions in which we have upheld the claims of speech. We frequently have
distinguished protected forms of expression from statements which "incite to violence and
crime and threaten the overthrow of organized government by unlawful
means." Stromberg v. California, 283 U.S. at 283 U. S. 369. See also Near v.
Minnesota, 283 U.S. at 283 U. S. 716; De Jonge v. Oregon, 299 U.S. at 299 U. S.
365; Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 308; Taylor v. Mississippi, 319 U.S.
at 319 U. S. 589.
It is true that there is no divining rod by which we may locate "advocacy." Exposition of
ideas readily merges into advocacy. The same Justice who gave currency to application of
the incitement doctrine in this field dissented four times from what he thought was its
misapplication. As he said in the Gitlow dissent, "Every idea is an incitement." 268 U.S.
at 268 U. S. 673. Even though advocacy of overthrow deserves little protection, we should
hesitate to prohibit it if we thereby inhibit the interchange of rational ideas so essential to
representative government and free society.
But there is underlying validity in the distinction between advocacy and the interchange of
ideas, and we do not discard a useful tool because it may be misused. That such a
distinction could be used unreasonably by those in power against hostile or unorthodox
views does not negate the fact that it may be used reasonably against an organization
wielding the power of the centrally controlled international Communist movement. The
object of the conspiracy before us is so clear that the chance of error in saying that the
defendants conspired to advocate, rather than to express ideas is slight. MR. JUSTICE
DOUGLAS quite properly points out that the conspiracy before us is not a conspiracy to
overthrow the Government. But it would be equally wrong to treat it as a seminar in
political theory.
III
These general considerations underlie decision of the case before us.
On the one hand is the interest in security. The Communist Party was not designed by
these defendants as an ordinary political party. For the circumstances of its organization,
its aims and methods, and the relation of the defendants to its organization and aims, we
are concluded by the jury's verdict. The jury found that the Party rejects the basic premise
of our political system -- that change is to be brought about by nonviolent constitutional
process. The jury found that the Party advocates the theory that there is a duty and
necessity to overthrow the Government by force and violence. It found that the Party
entertains and promotes this view not as a prophetic insight or as a bit of unworldly
speculation, but as a program for winning adherents and as a policy to be translated into
action.
In finding that the defendants violated the statute, we may not treat as established fact that
the Communist Party in this country is of significant size, well organized, well disciplined,
conditioned to embark on unlawful activity when given the command. But, in determining
whether application of the statute to the defendants is within the constitutional powers of
Congress, we are not limited to the facts found by the jury. We must view such a question
in the light of whatever is relevant to a legislative judgment. We may take judicial notice
that the Communist doctrines which these defendants have conspired to advocate are in
the ascendency in powerful nations who cannot be acquitted of unfriendliness to the
institutions of this country. We may take account of evidence brought forward at this trial
and elsewhere, much of which has long been common knowledge. In sum, it would amply
justify a legislature in concluding that recruitment of additional members for the Party
would create a substantial danger to national security.
In 1947, it has been reliably reported, at least 60,000 members were enrolled in the Party.
[Footnote 2/11] Evidence was introduced in this case that the membership was organized
in small units, linked by an intricate chain of command, and protected by elaborate
precautions designed to prevent disclosure of individual identity. There are no reliable data
tracing acts of sabotage or espionage directly to these defendants. But a Canadian Royal
Commission appointed in 1946 to investigate espionage reported that it was
"overwhelmingly established" that "the Communist movement was the principal base
within which the espionage network was recruited." [Footnote 2/12] The most notorious
spy in recent history was led into the service of the Soviet Union through Communist
indoctrination. [Footnote 2/13] Evidence supports the conclusion that members of the
Party seek and occupy positions of importance in political and labor organizations.
[Footnote 2/14] Congress was not barred by the Constitution from believing that
indifference to such experience would be an exercise not of freedom, but of irresponsibility.
On the other hand is the interest in free speech. The right to exert all governmental powers
in aid of maintaining our institutions and resisting their physical overthrow does not include
intolerance of opinions and speech that cannot do harm although opposed and perhaps
alien to dominant, traditional opinion. The treatment of its minorities, especially their legal
position, is among the most searching tests of the level of civilization attained by a society.
It is better for those who have almost unlimited power of government in their hands to err
~Page 58 of 96~
on the side of freedom. We have enjoyed so much freedom for so long that we are
perhaps in danger of forgetting how much blood it cost to establish the Bill of Rights.
Of course, no government can recognize a "right" of revolution, or a "right" to incite
revolution if the incitement has no other purpose or effect. But speech is seldom restricted
to a single purpose, and its effects may be manifold. A public interest is not wanting in
granting freedom to speak their minds even to those who advocate the overthrow of the
Government by force. For, as the evidence in this case abundantly illustrates, coupled with
such advocacy is criticism of defects in our society. Criticism is the spur to reform, and
Burke's admonition that a healthy society must reform in order to conserve has not lost its
force. Astute observers have remarked that one of the characteristics of the American
Republic is indifference to fundamental criticism. Bryce, The American Commonwealth, c.
84. It is a commonplace that there may be a grain of truth in the most uncouth doctrine,
however false and repellent the balance may be. Suppressing advocates of overthrow
inevitably will also silence critics who do not advocate overthrow but fear that their criticism
may be so construed. No matter how clear we may be that the defendants now before us
are preparing to overthrow our Government at the propitious moment, it is self-delusion to
think that we can punish them for their advocacy without adding to the risks run by loyal
citizens who honestly believe in some of the reforms these defendants advance. It is a
sobering fact that, in sustaining the convictions before us, we can hardly escape restriction
on the interchange of ideas.
We must not overlook the value of that interchange. Freedom of expression is the well
spring of our civilization -- the civilization we seek to maintain and further by recognizing
the right of Congress to put some limitation upon expression. Such are the paradoxes of
life. For social development of trial and error, the fullest possible opportunity for the free
play of the human mind is an indispensable prerequisite. The history of civilization is in
considerable measure the displacement of error which once held sway as official truth by
beliefs which in turn have yielded to other truths. Therefore, the liberty of man to search for
truth ought not to be fettered, no matter what orthodoxies he may challenge. Liberty of
thought soon shrivels without freedom of expression. Nor can truth be pursued in an
atmosphere hostile to the endeavor or under dangers which are hazarded only by heroes.
"The interest, which [the First Amendment] guards, and which gives it its importance,
presupposes that there are no orthodoxies -- religious, political, economic, or scientific --
which are immune from debate and dispute. Back of that is the assumption -- itself an
orthodoxy, and the one permissible exception -- that truth will be most likely to emerge, if
no limitations are imposed upon utterances that can with any plausibility be regarded as
efforts to present grounds for accepting or rejecting propositions whose truth the utterer
asserts, or denies."
International Brotherhood of Electrical Workers v. Labor Board, 181 F.2d 34, 40. In the last
analysis, it is on the validity of this faith that our national security is staked.
It is not for us to decide how we would adjust the clash of interests which this case
presents were the primary responsibility for reconciling it ours. Congress has determined
that the danger created by advocacy of overthrow justifies the ensuing restriction on
freedom of speech. The determination was made after due deliberation, and the
seriousness of the congressional purpose is attested by the volume of legislation passed
to effectuate the same ends. [Footnote 2/15]
Can we then say that the judgment Congress exercised was denied it by the Constitution?
Can we establish a constitutional doctrine which forbids the elected representatives of the
people to make this choice? Can we hold that the First Amendment deprives Congress of
what it deemed necessary for the Government's protection?
To make validity of legislation depend on judicial reading of events still in the womb of time
a forecast, that is, of the outcome of forces, at best, appreciated only with knowledge of
the topmost secrets of nations -- is to charge the judiciary with duties beyond its
equipment. We do not expect courts to pronounce historic verdicts on bygone events.
Even historians have conflicting views to this day on the origins and conduct of the French
Revolution, or, for that matter, varying interpretations of "the glorious Revolution" of 1688.
It is as absurd to be confident that we can measure the present clash of forces and their
outcome as to ask us to read history still enveloped in clouds of controversy.
In the light of their experience, the Framers of the Constitution chose to keep the judiciary
dissociated from direct participation in the legislative process. In asserting the power to
pass on the constitutionality of legislation, Marshall and his Court expressed the purposes
of the Founders. See Charles A. Beard, The Supreme Court and the Constitution. But the
extent to which the exercise of this power would interpenetrate matters of policy could
hardly have been foreseen by the most prescient. The distinction which the Founders drew
between the Court's duty to pass on the power of Congress and its complementary duty
not to enter directly the domain of policy is fundamental. But, in its actual operation, it is
rather subtle, certainly to the common understanding. Our duty to abstain from
confounding policy with constitutionality demands perceptive humility as well as self-
restraint in not declaring unconstitutional what in a judge's private judgment is deemed
unwise and even dangerous.
Even when moving strictly within the limits of constitutional adjudication, judges are
concerned with issues that may be said to involve vital finalities. The too easy transition
from disapproval of what is undesirable to condemnation as unconstitutional has led some
of the wisest judges to question the wisdom of our scheme in lodging such authority in
courts. But it is relevant to remind that, in sustaining the power of Congress in a case like
this, nothing irrevocable is done. The democratic process, at all events, is not impaired or
restricted. Power and responsibility remain with the people, and, immediately, with their
representatives. All the Court says is that Congress was not forbidden by the Constitution
to pass this enactment and that a prosecution under it may be brought against a
conspiracy such as the one before us.
~Page 59 of 96~
IV
The wisdom of the assumptions underlying the legislation and prosecution is another
matter. In finding that Congress has acted within its power, a judge does not remotely
imply that he favors the implications that lie beneath the legal issues. Considerations there
enter which go beyond the criteria that are binding upon judges within the narrow confines
of their legitimate authority. The legislation we are here considering is but a truncated
aspect of a deeper issue. For me, it has been most illuminatingly expressed by one in
whom responsibility and experience have fructified native insight, the Director-General of
the British Broadcasting Corporation:
"We have to face up to the fact that there are powerful forces in the world today misusing
the privileges of liberty in order to destroy her. The question must be asked, however,
whether suppression of information or opinion is the true defense. We may have come a
long way from Mill's famous dictum that: "
"If all mankind minus one were of one opinion, and only one person were of the contrary
opinion, mankind would be no more justified in silencing that one person than he, if he had
the power, would be justified in silencing mankind,"
"but Mill's reminders from history as to what has happened when suppression was most
virulently exercised ought to warn us that no debate is ever permanently won by shutting
one's ears or by even the most Draconian policy of silencing opponents. The debate must
be won . And it must be won with full information. Where there are lies, they must be
shown for what they are. Where there are errors, they must be refuted. It would be a major
defeat if the enemies of democracy forced us to abandon our faith in the power of informed
discussion, and so brought us down to their own level. Mankind is so constituted,
moreover, that, if, where expression and discussion are concerned, the enemies of liberty
are met with a denial of liberty, many men of goodwill will come to suspect there is
something in the proscribed doctrine after all. Erroneous doctrines thrive on being
expunged. They die if exposed."
Sir William Haley, What Standards for Broadcasting? Measure, Vol. I, No. 3, Summer
1950, pp. 211-212.
In the context of this deeper struggle, another voice has indicated the limitations of what
we decide today. No one is better equipped than George F. Kennan to speak on the
meaning of the menace of Communism and the spirit in which we should meet it.
"If our handling of the problem of Communist influence in our midst is not carefully
moderated -- if we permit it, that is, to become an emotional preoccupation and to blind us
to the more important positive tasks before us -- we can do a damage to our national
purpose beyond comparison greater than anything that threatens us today from the
Communist side. The American Communist party is today, by and large, an external
danger. It represents a tiny minority in our country, it has no real contact with the feelings
of the mass of our people, and its position as the agency of a hostile foreign power is
clearly recognized by the overwhelming mass of our citizens."
"But the subjective emotional stresses and temptations to which we are exposed in our
attempt to deal with this domestic problem are not an external danger: they represent a
danger within ourselves -- a danger that something may occur in our own minds and souls
which will make us no longer like the persons by whose efforts this republic was founded
and held together, but rather like the representatives of that very power we are trying to
combat: intolerant, secretive, suspicious, cruel, and terrified of internal dissension because
we have lost our own belief in ourselves and in the power of our ideals. The worst thing
that our Communists could do to us, and the thing we have most to fear from their
activities, is that we should become like them."
"That our country is beset with external dangers I readily concede. But these dangers, at
their worst, are ones of physical destruction, of the disruption of our world security, of
expense and inconvenience and sacrifice. These are serious, and sometimes terrible
things, but they are all things that we can take and still remain Americans."
"The internal danger is of a different order. America is not just territory and people. There is
lots of territory elsewhere, and there are lots of people; but it does not add up to America.
America is something in our minds and our habits of outlook which causes us to believe in
certain things and to behave in certain ways, and by which, in its totality, we hold ourselves
distinguished from others. If that, once goes there will be no America to defend. And that
can go too easily if we yield to the primitive human instinct to escape from our frustrations
into the realms of mass emotion and hatred and to find scapegoats for our difficulties in
individual fellow-citizens who are, or have at one time been, disoriented or confused."
George F. Kennan, Where Do You Stand on Communism? New York Times Magazine,
May 27, 1951, pp. 7, 53, 55.
Civil liberties draw, at best, only limited strength from legal guaranties. Preoccupation by
our people with the constitutionality, instead of with the wisdom, of legislation or of
executive action is preoccupation with a false value. Even those who would most freely
use the judicial brake on the democratic process by invalidating legislation that goes
deeply against their grain, acknowledge, at least by paying lip service, that constitutionality
does not exact a sense of proportion or the sanity of humor or an absence of fear.
Focusing attention on constitutionality tends to make constitutionality synonymous with
wisdom. When legislation touches freedom of thought and freedom of speech, such a
tendency is a formidable enemy of the free spirit. Much that should be rejected as illiberal,
because repressive and envenoming, may well be not unconstitutional. The ultimate
reliance for the deepest needs of civilization must be found outside their vindication in
courts of law; apart from all else, judges, howsoever they may conscientiously seek to
discipline themselves against it, unconsciously are too apt to be moved by the deep
undercurrents of public feeling. A persistent, positive translation of the liberating faith into
the feelings and thoughts and actions of men and women is the real protection against
attempts to strait-jacket the human mind. Such temptations will have their way, if fear and
hatred are not exorcized. The mark of a truly civilized man is confidence in the strength
and security derived from the inquiring mind. We may be grateful for such honest comforts
as it supports, but we must be unafraid of its incertitudes. Without open minds, there can
~Page 60 of 96~
be no open society. And if society be not open, the spirit of man is mutilated, and becomes
enslaved.
|341 U.S. 494app|
APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER.
Opinions responsible for the view that speech could not constitutionally be restricted
unless there would result from it an imminent -- i.e., close at hand -- substantive evil.
1. Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 104-105 (State statute prohibiting
picketing held invalid):
". . . Every expression of opinion on matters that are important has the potentiality of
inducing action in the interests of one rather than another group in society. But the group in
power at any moment may not impose penal sanctions on peaceful and truthful discussion
of matters of public interest merely on a showing that others may thereby be persuaded to
take action inconsistent with its interests. Abridgment of the liberty of such discussion can
be justified only where the clear danger of substantive evils arises under circumstances
affording no opportunity to test the merits of ideas by competition for acceptance in the
market of public opinion. . . ."
". . . [N]o clear and present danger of destruction of life or property, or invasion of the right
of privacy, or breach of the peace can be thought to be inherent in the activities of every
person who approaches the premises of an employer and publicizes the facts of a labor
dispute involving the latter."
2. Bridges v. California, 314 U. S. 252, 314 U. S. 262-263 (convictions for contempt of
court reversed):
". . . [T]he 'clear and present danger' language of the Schenck case has afforded practical
guidance in a great variety of cases in which the scope of constitutional protections of
freedom of expression was in issue. It has been utilized by either a majority or minority of
this Court in passing upon the constitutionality of convictions under espionage
acts, Schenck v. United States, supra, [249 U.S. 47]; Abrams v. United States, 250 U. S.
616; under a criminal syndicalism act, Whitney v. California, supra, [274 U.S. 357]; under
an 'anti-insurrection' act, Herndon v. Lowry, supra, [301 U.S. 242], and for breach of the
peace at common law, Cantwell v. Connecticut, supra, [310 U.S. 296]. And, very recently,
we have also suggested that 'clear and present danger' is an appropriate guide in
determining the constitutionality of restrictions upon expression where the substantive evil
sought to be prevented
Page 341 U. S. 558
by the restriction is 'destruction of life or property, or invasion of the right of
privacy.' Thornhill v. Alabama, 310 U. S. 88,310 U. S. 105."
"* * * *"
"What finally emerges from the 'clear and present danger' cases is a working principle that
the substantive evil must be extremely serious and the degree of imminence extremely
high before utterances can be punished. Those cases do not purport to mark the
furthermost constitutional boundaries of protected expression, nor do we here. They do no
more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment
does not speak equivocally. It prohibits any law 'abridging the freedom of speech, or of the
press.' It must be taken as a command of the broadest scope that explicit language, read
in the context of a liberty-loving society, will allow."
3. West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 639 (flag salute
requirement for school children held invalid):
"In weighing arguments of the parties, it is important to distinguish between the due
process clause of the Fourteenth Amendment as an instrument for transmitting the
principles of the First Amendment and those cases in which it is applied for its own sake.
The test of legislation which collides with the Fourteenth Amendment, because it also
collides with the principles of the First, is much more definite than the test when only the
Fourteenth is involved. Much of the vagueness of the due process clause disappears
when the specific prohibitions of the First become its standard. The right of a State to
regulate, for example, a public utility may well include, so far as the due process test is
concerned, power to impose all of the restrictions which a legislature may have a 'rational
basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may
not be infringed on such slender grounds. They are susceptible
Page 341 U. S. 559
of restriction only to prevent grave and immediate danger to interests which the State may
lawfully protect. It is important to note that, while it is the Fourteenth Amendment which
bears directly upon the State, it is the more specific limiting principles of the First
Amendment that finally govern this case."
4. Thomas v. Collins, 323 U. S. 516, 323 U. S. 529-530 (State statute requiring registration
of labor organizers held invalid as applied):
"The case confronts us again with the duty our system places on this Court to say where
the individual's freedom ends and the State's power begins. Choice on that border, now as
always delicate, is perhaps more so where the usual presumption supporting legislation is
balanced by the preferred place given in our scheme to the great, the indispensable
democratic freedoms secured by the First Amendment. Cf. Schneider v. State, 308 U. S.
147; Cantwell v. Connecticut, 310 U. S. 296; Prince v. Massachusetts, 321 U. S. 158. That
priority gives these liberties a sanctity and a sanction not permitting dubious intrusions.
And it is the character of the right, not of the limitation, which determines what standard
governs the choice. Compare United States v. Carolene Products Co., 304 U. S. 144, 304
U. S. 152-153."
"For these reasons, any attempt to restrict those liberties must be justified by clear public
interest, threatened not doubtfully or remotely, but by clear and present danger. The
rational connection between the remedy provided and the evil to be curbed, which in other
contexts might support legislation against attack on due process grounds, will not suffice.
These rights rest on firmer foundation. Accordingly, whatever occasion would restrain
orderly discussion and persuasion, at appropriate time and place, must have clear support
in public danger, actual or impending. Only the gravest abuses, endangering paramount
interests, give occasion for permissible limitation. "
Page 341 U. S. 560
5. Craig v. Harney, 331 U. S. 367, 331 U. S. 376 (conviction for contempt of court
reversed):
~Page 61 of 96~
"The fires which [the language] kindles must constitute an imminent, not merely a likely,
threat to the administration of justice. The danger must not be remote or even probable; it
must immediately imperil."
6. Giboney v. Empire Storage Co., 336 U. S. 490, 336 U. S. 503 (injunction against
picketing upheld):
". . . There was clear danger, imminent and immediate, that, unless restrained, appellants
would succeed in making [the State's policy against restraints of trade] a dead letter
insofar as purchases by nonunion men were concerned. . . ."
7. Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4-5 (conviction for disorderly conduct
reversed):
"Speech is often provocative and challenging. It may strike at prejudices and
preconceptions and have profound unsettling effects as it presses for acceptance of an
idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire,
supra, [315 U.S. 568,] 315 U. S. 571-572, is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience, annoyance, or unrest. See
Bridges v. California, 314 U. S. 252, 314 U. S. 262; Craig v. Harney, 331 U. S. 367,331 U.
S. 373. There is no room under our Constitution for a more restrictive view. For the
alternative would lead to standardization of ideas either by legislatures, courts, or
dominant political or community groups."
8. American Communications Assn. v. Douds, 339 U. S. 382, 339 U. S. 396, 339 U. S.
412 ("Non-Communist affidavit" provision of Taft-Hartley Act upheld):
"Speech may be fought with speech. Falsehoods and fallacies must be exposed, not
suppressed, unless there is not sufficient time to avert the evil consequences of noxious
doctrine by argument and education. That is the command of the First Amendment."
And again,
"[The First] Amendment requires
Page 341 U. S. 561
that one be permitted to believe what he will. It requires that one be permitted to advocate
what he will unless there is a clear and present danger that a substantial public evil will
result therefrom."
[Footnote 2/1]
Mass.Const., 1780, Part I, Art. XVI. See Duniway, Freedom of the Press in Massachusetts,
144-146.
[Footnote 2/2]
Pa.Const., 1790, Art. IX, 7; Del.Const., 1792, Art. I, 5.
[Footnote 2/3]
The General Assembly of Virginia passed a statute on December 26, 1792, directed at
establishment of
"any government separate from, or independent of the government of Virginia, within the
limits thereof, unless by act of the legislature of this commonwealth for that purpose first
obtained."
The statute provided that
"EVERY person . . . who shall by writing or advised speaking, endeavour to instigate the
people of this commonwealth to erect or establish such government without such assent
as aforesaid, shall be adjudged guilty of a high crime and misdemeanor. . . ."
Va.Code, 1803, c. CXXXVI.
[Footnote 2/4]
In a letter to Abigail Adams, dated September 11, 1804, Jefferson said with reference to
the Sedition Act:
"Nor does the opinion of the unconstitutionality and consequent nullity of that law remove
all restraint from the overwhelming torrent of slander which is confounding all vice and
virtue, all truth and falsehood in the US. The power to do that is fully possessed by the
several state legislatures. It was reserved to them, and was denied to the general
government, by the constitution according to our construction of it. While we deny that
Congress have a right to controul the freedom of the press, we have ever asserted the
right of the states, and their exclusive right, to do so."
The letter will be published in a forthcoming volume of The Papers of Thomas Jefferson
(Boyd ed.), to which I am indebted for its reproduction here in its exact form.
The Sedition Act of July 14, 1798, was directed at two types of conduct. Section 1 made it
a criminal offense to conspire "to impede the operation of any law of the United States,"
and to "counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or
combination." Section 2 provided:
"That if any person shall write, print, utter or publish, or shall cause or procure to be
written, printed, uttered or published, or shall knowingly and willingly assist or aid in
writing, printing, uttering or publishing any false, scandalous and malicious writing or
writings against the government of the United States, or either house of the Congress of
the United States, or the President of the United States, with intent to defame the said
government, or either house of the said Congress, or the said President, or to bring them,
or either of them, into contempt or disrepute; or to excite against them, or either or any of
them, the hatred of the good people of the United States, or to stir up sedition within the
United States, or to excite any unlawful combinations therein, for opposing or resisting any
law of the United States, or any act of the President of the United States, done in
pursuance of any such law, or of the powers in him vested by the constitution of the United
States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any
hostile designs of any foreign nation against the United States, their people or
government, then such person, being thereof convicted before any court of the United
States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand
dollars, and by imprisonment not exceeding two years."
1 Stat. 596-597.
No substantial objection was raised to 1 of the Act. The argument against the validity of
2 is stated most fully in the Virginia Report of 1799-1800. That Report, prepared for the
House of Delegates by a committee of which Madison was chairman, attempted to
establish that the power to regulate speech was not delegated to the Federal Government
by the Constitution, and that the First Amendment had prohibited the National Government
from exercising the power. In reply, it was urged that power to restrict seditious writing was
implicit in the acknowledged power of the Federal Government to prohibit seditious acts,
~Page 62 of 96~
and that the liberty of the press did not extend to the sort of speech restricted by the
Act. See the Report of the Committee of the House of Representatives to which were
referred memorials from the States, H.R.Rep. No. 110, 5th Cong., 3d Sess., published in
American State Papers, Misc. Vol. 1, p. 181. For an extensive contemporary account of
the controversy, see St. George Tucker's 1803 edition of Blackstone's Commentaries,
Appendix to Vol. First, Part Second, Note G.
[Footnote 2/5]
Professor Alexander Meiklejohn is a leading exponent of the absolutist interpretation of the
First Amendment. Recognizing that certain forms of speech require regulation, he
excludes those forms of expression entirely from the protection accorded by the
Amendment.
"The constitutional status of a merchant advertising his wares, of a paid lobbyist fighting for
the advantage of his client, is utterly different from that of a citizen who is planning for the
general welfare."
Meiklejohn, Free Speech, 39.
"The radio as it now operates among us is not free. Nor is it entitled to the protection of the
First Amendment. It is not engaged in the task of enlarging and enriching human
communication. It is engaged in making money."
Id. at 104. Professor Meiklejohn even suggests that scholarship may now require such
subvention and control that it no longer is entitled to protection by the First
Amendment. See id. at 99-100. Professor Chafee, in his review of the Meiklejohn book, 62
Harv.L.Rev. 891, has subjected this position to trenchant comment.
[Footnote 2/6]
In Hartzel v. United States, 322 U. S. 680, 322 U. S. 687, the Court reversed a conviction
for willfully causing insubordination in the military forces on the ground that the intent
required by the statute was not shown. It added that there was a second element
necessary to conviction,
"consisting of a clear and present danger that the activities in question will bring about the
substantive evils which Congress has a right to prevent. Schenck v. United States, 249 U.
S. 47. Both elements must be proved by the Government beyond a reasonable doubt."
Other passages responsible for attributing to the Court the principle that imminence of the
apprehended evil is necessary to conviction in free speech cases are collected in an
Appendix to this opinion, post, p. 341 U. S. 556.
[Footnote 2/7]
No useful purpose would be served by considering here decisions in which the Court
treated the challenged regulation as though it imposed no real restraint on speech or on
the press. E.g., Associated Press v. Labor Board, 301 U. S. 103; Valentine v.
Chrestensen, 316 U. S. 52; Railway Express Agency v. New York, 336 U. S. 106; Lewis
Publishing Co. v. Morgan, 229 U. S. 288. We recognized that restrictions on speech were
involved in United States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U. S. 407,
and Gilbert v. Minnesota, 254 U. S. 325; but the decisions raised issues so different from
those presented here that they too need not be considered in detail. Our decisions
in Stromberg v. California, 283 U. S. 359, and Winters v. New York,333 U. S. 507, turned
on the indefiniteness of the statutes.
[Footnote 2/8]
The Taft-Hartley Act also requires that an officer of a union using the services of the
National Labor Relations Board take oath 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."
The Court divided on the validity of this requirement. Test oaths raise such special
problems that decisions on their validity are not directly helpful here. See West Virginia
Board of Education v. Barnette, 319 U. S. 624.
[Footnote 2/9]
Burns v. United States, 274 U. S. 328, adds nothing to the decision in Whitney v.
California.
[Footnote 2/10]
In Herndon v. Georgia, 295 U. S. 441, the opinion of the Court was concerned solely with a
question of procedure. Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo,
however, thought that the problem of Gitlow v. New York was raised. See 295 U.S. at 295
U. S. 446.
[Footnote 2/11]
See the testimony of the Director of the Federal Bureau of Investigation. Hearings before
the House Committee on Un-American Activities, on H.R. 1884 and H.R. 2122, 80th
Cong., 1st Sess., Part 2, p. 37.
[Footnote 2/12]
Report of the Royal Commission to Investigate Communication of Secret and Confidential
Information to Agents of a Foreign Power, June 27, 1946, p. 44. There appears to be little
reliable evidence demonstrating directly that the Communist Party in this country has
recruited persons willing to engage in espionage or other unlawful activity on behalf of the
Soviet Union. The defection of a Soviet diplomatic employee, however, led to a careful
investigation of an espionage network in Canada, and has disclosed the effectiveness of
the Canadian Communist Party in conditioning its members to disclose to Soviet agents
vital information of a secret character. According to the Report of the Royal Commission
investigating the network, conspiratorial characteristics of the Party similar to those shown
in the evidence now before us were instrumental in developing the necessary motivation to
cooperate in the espionage. See pp. 43-83 of the Report.
[Footnote 2/13]
The Communist background of Dr. Klaus Fuchs was brought out in the proceedings
against him. See The [London] Times, Mar. 2, 1950, p.2, col. 6.
[Footnote 2/14]
See American Communications Assn. v. Douds, 339 U. S. 382. Former Senator Robert M.
La Follette, Jr., has reported his experience with infiltration of Communist sympathizers
into congressional committee staffs. Collier's, Feb. 8, 1947, p. 22.
[Footnote 2/15]
Immigration laws require, for instance, exclusion and deportation of aliens who advocate
the overthrow of the Government by force and violence, and declare ineligible for
naturalization aliens who are members of organizations so advocating. Act of Feb. 5, 1917,
~Page 63 of 96~
 19, 39 Stat. 889, 8 U.S.C. 155; Act of Oct. 16, 1918, 40 Stat. 1012, 8 U.S.C. 137; Act
of Oct. 14, 1940, 305, 54 Stat. 1141, 8 U.S.C. 705. The Hatch Act prohibits
employment by any Government agency of members of organizations advocating
overthrow of "our constitutional form of government." Act of Aug. 2, 1939, 9A, 53 Stat.
1148, 5 U.S.C. (Supp. III) 118j. The Voorhis Act of Oct. 17, 1940, was passed to require
registration of organizations subject to foreign control which engage in political activity. 54
Stat. 1201, 18 U.S.C. 2386. The Taft-Hartley Act contains a section designed to exclude
Communists from positions of leadership in labor organizations. Act of June 23, 1947,
9(h), 61 Stat. 146, 29 U.S.C. (Supp. III) 159(h). And, most recently, the McCarran Act
requires registration of "Communist action" and "Communist front" organizations. Act of
Sept. 23, 1950, 7, 64 Stat. 987, 993.
MR. JUSTICE JACKSON, concurring.
This prosecution is the latest of never-ending, because never successful, quests for some
legal formula that will secure an existing order against revolutionary radicalism. It requires
us to reappraise, in the light of our own times and conditions, constitutional doctrines
devised under other circumstances to strike a balance between authority and liberty.
Activity here charged to be criminal is conspiracy -- that defendants conspired to teach and
advocate, and to organize the Communist Party to teach and advocate, overthrow and
destruction of the Government by force and violence. There is no charge of actual violence
or attempt at overthrow. [Footnote 3/1]
The principal reliance of the defense in this Court is that the conviction cannot stand under
the Constitution because the conspiracy of these defendants presents no "clear and
present danger" of imminent or foreseeable overthrow.
Page 341 U. S. 562
I when the blame will be placed on shoulders other than their own. They resort to violence
The statute before us repeats a pattern, originally devised to combat the wave of
anarchistic terrorism that plagued this country about the turn of the century, [Footnote 3/2]
which lags at least two generations behind Communist Party techniques.
Anarchism taught a philosophy of extreme individualism and hostility to government and
property. Its avowed aim was a more just order, to be achieved by violent destruction of all
government. [Footnote 3/3] Anarchism's sporadic and uncoordinated acts of terror were
not integrated with an effective revolutionary machine, but the Chicago Haymarket riots of
1886, [Footnote 3/4] attempted murder of the industrialist Frick, attacks on state officials,
and
Page 341 U. S. 563
assassination of President McKinley in 1901, were fruits of its preaching.
However, extreme individualism was not educive to cohesive and disciplined organization.
Anarchism fell into disfavor among incendiary radicals, many of whom shifted their
allegiance to the rising Communist Party. Meanwhile, in Europe, anarchism had been
displaced by Bolshevism as the doctrine and strategy of social and political upheaval. Led
by intellectuals hardened by revolutionary experience, it was a more sophistic&ted,
dynamic and realistic movement. Establishing a base in the Soviet Union, it founded an
aggressive international Communist apparatus which has modeled and directed a
revolutionary movement able only to harass our own country. But it has seized control of a
dozen other countries.
Communism, the antithesis of anarchism, [Footnote 3/5] appears today as a closed
system of thought representing Stalin's
Page 341 U. S. 564
version of Lenin's version of Marxism. As an ideology, it is not one of spontaneous protest
arising from American working-class experience. It is a complicated system of
assumptions, based on European history and conditions, shrouded in an obscure and
ambiguous vocabulary, which allures our ultrasophisticated intelligentsia more than our
hard-headed working people. From time to time it champions all manner of causes and
grievances and makes alliances that may add to its foothold in government or embarrass
the authorities.
The Communist Party, nevertheless, does not seek its strength primarily in numbers. Its
aim is a relatively small party whose strength is in selected, dedicated, indoctrinated, and
rigidly disciplined members. From established policy it tolerates no deviation and no
debate. It seeks members that are, or may be, secreted in strategic posts in transportation,
communications, industry, government, and especially in labor unions where it can compel
employers to accept and retain its members. [Footnote 3/6] It also seeks to infiltrate and
control organizations of professional and other groups. Through these placements in
positions of power, it seeks a leverage over society that will make up in power of coercion
what it lacks in power of persuasion.
The Communists have no scruples against sabotage, terrorism, assassination, or mob
disorder, but violence is not with them, as with the anarchists, an end in itself. The
Communist Party advocates force only when prudent and profitable. Their strategy of
stealth precludes premature or uncoordinated outbursts of violence, except, of course,
as to truth, not
Page 341 U. S. 565
as a principle but as an expedient. Force or violence, as they would resort to it, may never
be necessary, because infiltration and deception may be enough.
Force would be utilized by the Communist Party not to destroy government, but for its
capture. The Communist recognizes that an established government in control of modern
technology cannot be overthrown by force until it is about ready to fall of its own weight.
Concerted uprising, therefore, is to await that contingency, and revolution is seen not as a
sudden episode, but as the consummation of a long process.
The United States, fortunately, has experienced Communism only in its preparatory
stages, and, for its pattern of final action, must look abroad. Russia, of course, was the
pilot Communist revolution which, to the Marxist, confirms the Party's assumptions and
points its destiny. [Footnote 3/7]
Page 341 U. S. 566
But Communist technique in the overturn of a free government was disclosed by the coup
d'etat in which they seized power in Czechoslovakia. [Footnote 3/8] There, the Communist
Party, during its preparatory stage, claimed and received protection for its freedoms of
speech, press, and assembly. Pretending to be but another political party, it eventually was
~Page 64 of 96~
conceded participation in government, where it entrenched reliable members chiefly in
control of police and information services. When the government faced a foreign and
domestic crisis, the Communist Party had established a leverage strong enough to
threaten civil war. In a period of confusion, the Communist plan unfolded, and the
underground organization came to the surface throughout the country in the form chiefly of
labor "action committees." Communist officers of the unions took over transportation, and
allowed only persons with party permits to travel. Communist printers took over the
newspapers and radio, and put out only party-approved versions of events. Possession
was taken of telegraph and telephone systems, and communications were cut off
wherever directed by party heads. Communist unions took over the factories, and in the
cities, a partisan distribution of food was managed by the Communist organization. A
virtually bloodless abdication by the elected government admitted the Communists to
power, whereupon they instituted a reign of oppression and terror, and ruthlessly denied to
all others the freedoms which had sheltered their conspiracy.
Page 341 U. S. 567
II
The foregoing is enough to indicate that,.either by accident or design, the Communist
stratagem outwits the anti-anarchist pattern of statute aimed against "overthrow by force
and violence" if qualified by the doctrine that only "clear and present danger" of
accomplishing that result will sustain the prosecution.
The "clear and present danger" test was an innovation by Mr. Justice Holmes in
the Schenck case, [Footnote 3/9] reiterated and refined by him and Mr. Justice Brandeis in
later cases, [Footnote 3/10] all arising before the era of World War II revealed the subtlety
and efficacy of modernized revolutionary techniques used by totalitarian parties. In those
cases, they were faced with convictions under so-called criminal syndicalism statutes
aimed at anarchists but which, loosely construed, had been applied to punish socialism,
pacifism, and left-wing ideologies, the charges often resting on far-fetched
Page 341 U. S. 568
inferences which, if true, would establish only technical or trivial violations. They proposed
"clear and present danger" as a test for the sufficiency of evidence in particular cases.
I would save it, unmodified, for application as a "rule of reason" [Footnote 3/11] in the kind
of case for which it was devised. When the issue is criminality of a hot-headed speech on
a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots
behind a red flag, or refusal of a handful of school children to salute our flag, it is not
beyond the capacity of the judicial process to gather, comprehend, and weigh the
necessary materials for decision whether it is a clear and present danger of substantive
evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases
has matured by the time of trial or it was never present. The test applies and has meaning
where a conviction is sought to be based on a speech or writing which does not directly or
explicitly advocate a crime, but to which such tendency is sought to be attributed by
construction or by implication from external circumstances. The formula in such cases
favors freedoms that are vital to our society, and even if sometimes applied too generously,
the consequences cannot be grave. But its recent expansion has extended, in particular to
Communists, unprecedented immunities. [Footnote 3/12] Unless we are to hold our
Government captive in a judge-made verbal trap, we must approach the problem of a well
organized, nationwide conspiracy, such as I have
Page 341 U. S. 569
described, as realistically as our predecessors faced the trivialities that were being
prosecuted until they were checked with a rule of reason.
I think reason is lacking for applying that test to this case.
Page 341 U. S. 570
If we must decide that this Act and its application are constitutional only if we are
convinced that petitioner's conduct creates a "clear and present danger" of violent
overthrow, we must appraise imponderables, including international and national
phenomena which baffle the best informed foreign offices and our most experienced
politicians. We would have to foresee and predict the effectiveness of Communist
propaganda, opportunities for infiltration, whether, and when, a time will come that they
consider propitious for action, and whether and how fast our existing government will
deteriorate. And we would have to speculate as to whether an approaching Communist
coup would not be anticipated by a nationalistic fascist movement. No doctrine can be
sound whose application requires us to make a prophecy of that sort in the guise of a legal
decision. The judicial process simply is not adequate to a trial of such far-flung issues. The
answers given would reflect our own political predilections, and nothing more.
The authors of the clear and present danger test never applied it to a case like this, nor
would I. If applied as it is proposed here, it means that the Communist plotting is protected
during its period of incubation; its preliminary stages of organization and preparation are
immune from the law; the Government can move only after imminent action is manifest,
when it would, of course, be too late.
III
The highest degree of constitutional protection is due to the individual acting without
conspiracy. But even an individual cannot claim that the Constitution protects him in
advocating or teaching overthrow of government by force or violence. I should suppose no
one would doubt that Congress has power to make such attempted
Page 341 U. S. 571
overthrow a crime. But the contention is that one has the constitutional right to work up a
public desire, and will to do what it is a crime to attempt. I think direct incitement by speech
or writing can be made a crime, and I think there can be a conviction without also proving
that the odds favored its success by 99 to 1, or some other extremely high ratio.
The names of Mr. Justice Holmes and Mr. Justice Brandeis cannot be associated with
such a doctrine of governmental disability. After the Schenck case, in which they set forth
the clear and present danger test, they joined in these words of Mr. Justice Holmes,
spoken for a unanimous Court:
". . . [T]he First Amendment, while prohibiting legislation against free speech as such,
cannot have been, and obviously was not, intended to give immunity for every possible
use of language. Robertson v. Baldwin, 165 U. S. 275, 165 U. S. 281. We venture to
believe that neither Hamilton nor Madison, nor any other competent person then or later,
ever supposed that to make criminal the counseling of a murder within the jurisdiction of
Congress would be an unconstitutional interference with free speech."
~Page 65 of 96~
Frohwerk v. United States, 249 U. S. 204, 249 U. S. 206.
The same doctrine was earlier stated in Fox v. Washington, 236 U. S. 273, 236 U. S. 277,
and that case was recently and with approval cited in Giboney v. Empire Storage & Ice
Co., 336 U. S. 490, 336 U. S. 502.
As aptly stated by Judge Learned Hand in Masses Publishing Co. v. Patten, 244 F. 535,
540:
"One may not counsel or advise others to violate the law as it stands. Words are not only
the keys of persuasion, but the triggers of action, and those which have no purport but to
counsel the violation of law cannot by any latitude of interpretation be a part of that public
opinion which is the final source of government in a democratic state. "
Page 341 U. S. 572
Of course, it is not always easy to distinguish teaching or advocacy in the sense of
incitement from teaching or advocacy in the sense of exposition or explanation. It is a
question of fact in each case.
IV
What really is under review here is a conviction of conspiracy, after a trial for conspiracy,
on an indictment charging conspiracy, brought under a statute outlawing conspiracy. With
due respect to my colleagues, they seem to me to discuss anything under the sun except
the law of conspiracy. One of the dissenting opinions even appears to chide me for
"invoking the law of conspiracy." As that is the case before us, it may be more amazing
that its reversal can be proposed without even considering the law of conspiracy.
The Constitution does not make conspiracy a civil right. The Court has never before done
so, and I think it should not do so now. Conspiracies of labor unions, trade associations,
and news agencies have been condemned, although accomplished, evidenced and
carried out, like the conspiracy here, chiefly by letter-writing, meetings, speeches and
organization. Indeed, this Court seems, particularly in cases where the conspiracy has
economic ends, to be applying its doctrines with increasing severity. While I consider
criminal conspiracy a dragnet device capable of perversion into an instrument of injustice
in the hands of a partisan or complacent judiciary, it has an established place in our
system of law, and no reason appears for applying it only to concerted action claimed to
disturb interstate commerce and withholding it from those claimed to undermine our whole
Government. [Footnote 3/13]
Page 341 U. S. 573
The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself,
independently of any other evil it seeks to accomplish. Thus, we recently held in Pinkerton
v. United States, 328 U. S. 640, 328 U. S. 643-644,
"It has been long and consistently recognized by the Court that the commission of the
substantive offense and a conspiracy to commit it are separate and distinct offenses. The
power of Congress to separate the two and to affix to each a different penalty is well
established. . . . And the plea of double jeopardy is no defense to a conviction for both
offenses. . . ."
So far does this doctrine reach that it is well settled that Congress may make it a crime to
conspire with others to do what an individual may lawfully do on his own. This principle is
illustrated in conspiracies that violate the antitrust laws as sustained and applied by this
Court. Although one may raise the prices of his own products, and many, acting without
concert, may do so, the moment they conspire to that end, they are punishable. The same
principle is applied to organized labor. Any workman may quit his work for any reason, but
concerted actions to the same end are in some circumstances forbidden. National Labor
Relations Act, as amended, 61 Stat. 136, 8(b), 29 U.S.C. 158(b).
The reasons underlying the doctrine that conspiracy may be a substantive evil in itself,
apart from any evil it may threaten, attempt, or accomplish, are peculiarly appropriate to
conspiratorial Communism.
"The reason for finding criminal liability in case of a combination to effect an unlawful end
or to use unlawful means, where none would exist, even though the act contemplated
were actually committed by an individual, is that a combination of persons to commit a
wrong, either as an end or as a means to an end, is so much more dangerous, because of
its increased power to do wrong, because it is more difficult
Page 341 U. S. 574
to guard against and prevent the evil designs of a group of persons than of a single
person, and because of the terror which fear of such a combination tends to create in the
minds of people. [Footnote 3/14]"
There is lamentation in the dissents about the injustice of conviction in the absence of
some overt act. Of course, there has been no general uprising against the Government,
but the record is replete with acts to carry out the conspiracy alleged, acts such as always
are held sufficient to consummate the crime where the statute requires an overt act.
But the shorter answer is that no overt act is or need be required. The Court, in antitrust
cases, early upheld the power of Congress to adopt the ancient common law that makes
conspiracy itself a crime. Through Mr. Justice Holmes, it said:
"Coming next to the objection that no overt act is laid, the answer is that the Sherman Act
punishes the conspiracies at which it is aimed on the common law footing -- that is to say,
it does not make the doing of any act other than the act of conspiring a condition of
liability."
Nash v. United States, 229 U. S. 373, 229 U. S. 378. Reiterated, United States v. Socony-
Vacuum Oil Co., 310 U. S. 150, 310 U. S. 252. It is not to be supposed that the power of
Congress to protect the Nation's existence is more limited than its power to protect
interstate commerce.
Also, it is urged that, since the conviction is for conspiracy to teach and advocate, and to
organize the Communist Party to teach and advocate, the First Amendment is violated
because freedoms of speech and press protect teaching and advocacy regardless of what
is taught or advocated. I have never thought that to be the law.
Page 341 U. S. 575
I do not suggest that Congress could punish conspiracy to advocate something, the doing
of which it may not punish. Advocacy or exposition of the doctrine of communal property
ownership, or any political philosophy unassociated with advocacy of its imposition by
force or seizure of government by unlawful means could not be reached through
conspiracy prosecution. But it is not forbidden to put down force or violence, it is not
forbidden to punish its teaching or advocacy, and the end being punishable, there is no
doubt of the power to punish conspiracy for the purpose.
~Page 66 of 96~
The defense of freedom of speech or press has often been raised in conspiracy cases,
because, whether committed by Communists, by businessmen, or by common criminals, it
usually consists of words written or spoken, evidenced by letters, conversations, speeches
or documents. Communication is the essence of every conspiracy, for only by it can
common purpose and concert of action be brought about or be proved. However, when
labor unions raised the defense of free speech against a conspiracy charge, we
unanimously said:
"It rarely has been suggested that the constitutional freedom for speech and press extends
its immunity to speech or writing used as an integral part of conduct in violation of a valid
criminal statute. We reject the contention now. . . ."
". . . It is true that the agreements and course of conduct here were as in most instances
brought about through speaking or writing. But it has never been deemed an abridgment of
freedom of speech or press to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by means of language, either
spoken, written, or printed. . . . Such an expansive interpretation
Page 341 U. S. 576
of the constitutional guaranties of speech and press would make it practically impossible
ever to enforce laws against agreements in restraint of trade, as well as many other
agreements and conspiracies deemed injurious to society."
Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 336 U. S. 498, 336 U. S. 502.
A contention by the press itself, in a conspiracy case, that it was entitled to the benefits of
the "clear and present danger" test, was curtly rebuffed by this Court, saying:
"Nor is a publisher who engages in business practices made unlawful by the Sherman Act
entitled to a partial immunity by reason of the 'clear and present danger' doctrine. . . .
Formulated as it was to protect liberty of thought and of expression, it would degrade the
clear and present danger doctrine to fashion from it a shield for business publishers who
engage in business practices condemned by the Sherman Act. . . ."
Associated Press v. United States, 326 U. S. 1, 326 U. S. 7. I should think it at least as
"degrading" to fashion of it a shield for conspirators whose ultimate purpose is to capture
or overthrow the Government.
In conspiracy cases, the Court not only has dispensed with proof of clear and present
danger, but even of power to create a danger:
"It long has been settled, however, that a 'conspiracy to commit a crime is a different
offense from the crime that is the object of the conspiracy.' . . . Petitioners, for example,
might have been convicted here of a conspiracy to monopolize without ever having
acquired the power to carry out the object of the conspiracy. . . ."
American Tobacco Co. v. United States, 328 U. S. 781, 328 U. S. 789.
Having held that a conspiracy alone is a crime and its consummation is another, it would
be weird legal reasoning to hold that Congress could punish the one only if there was
"clear and present danger" of the second. This
Page 341 U. S. 577
would compel the Government to prove two crimes in order to convict for one.
When our constitutional provisions were written, the chief forces recognized as antagonists
in the struggle between authority and liberty were the Government, on the one hand, and
the individual citizen, on the other. It was thought that, if the state could be kept in its
place, the individual could take care of himself.
In more recent times, these problems have been complicated by the intervention between
the state and the citizen of permanently organized, well financed, semi-secret and highly
disciplined political organizations. Totalitarian groups here and abroad perfected the
technique of creating private paramilitary organizations to coerce both the public
government and its citizens. These organizations assert as against our Government all of
the constitutional rights and immunities of individuals, and at the same time exercise over
their followers much of the authority which they deny to the Government. The Communist
Party realistically is a state within a state, an authoritarian dictatorship within a republic. It
demands these freedoms not for its members, but for the organized party. It denies to its
own members at the same time the freedom to dissent, to debate, to deviate from the
party line, and enforces its authoritarian rule by crude purges, if nothing more violent.
The law of conspiracy has been the chief means at the Government's disposal to deal with
the growing problems created by such organizations. I happen to think it is an awkward
and inept remedy, but I find no constitutional authority for taking this weapon from the
Government. There is no constitutional right to "gang up" on the Government.
While I think there was power in Congress to enact this statute and that, as applied in this
case, it cannot be
Page 341 U. S. 578
held unconstitutional, [Footnote 3/15] I add that I have little faith in the long-range
effectiveness of this conviction to stop the rise of the Communist movement. Communism
will not go to jail with these Communists. No decision by this Court can forestall revolution
whenever the existing government fails to command the respect and loyalty of the people
and sufficient distress and discontent is allowed to grow up among the masses. Many
failures by fallen governments attest that no government can long prevent revolution by
outlawry. [Footnote 3/16] Corruption, ineptitude, inflation, oppressive taxation,
militarization, injustice, and loss of leadership capable of intellectual initiative in domestic
or foreign affairs are allies on which the Communists
Page 341 U. S. 579
count to bring opportunity knocking to their door. Sometimes I think they may be mistaken.
But the Communists are not building just for today -- the rest of us might profit by their
example.
[Footnote 3/1]
The Government's own summary of its charge is:
"The indictment charged that from, April 1, 1945, to the date of the indictment, petitioners
unlawfully, willfully, and knowingly conspired with each other and with other persons
unknown to the grand jury (1) to organize as the Communist Party of the United States of
America a society, group and assembly of persons who teach and advocate the overthrow
and destruction of the Government of the United States by force and violence, and (2)
knowingly and willfully to advocate and teach the duty and necessity of overthrowing and
destroying the Government of the United States by force and violence. The indictment
alleged that Section 2 of the Smith Act proscribes these acts, and that the conspiracy to
take such action is a violation of Section 3 of the act (18 U.S.C. 10, 11 (1946 ed.))."
~Page 67 of 96~
[Footnote 3/2]
The Government says this Act before us was modeled after the New York Act of 1909,
sustained by this Court in Gitlow v. New York, 268 U. S. 652. That, in turn, as the Court
pointed out, followed an earlier New York Act of 1902. Shortly after the assassination of
President McKinley by an anarchist, Congress adopted the same concepts in the
Immigration Act of March 3, 1903. 32 Stat. 1213, 2. Some germs of the same concept
can be found in some reconstruction legislation, such as the Enforcement Act of 1871, 17
Stat. 13. The Espionage Act of 1917, 40 Stat. 217, tit. 1, 3, which gave rise to a series of
civil rights decisions, applied only during war and defined as criminal "false statements
with intent" to interfere with our war effort or cause insubordination in the armed forces or
obstruct recruiting. However, a wave of "criminal syndicalism statutes" were enacted by
the States. They were generally upheld, Whitney v. California, 274 U. S. 357, and
prosecutions under them were active from 1919 to 1924. In California alone, 531
indictments were returned and 164 persons convicted. 4 Encyc.Soc.Sci. 582, 583. The
Smith Act followed closely the terminology designed to incriminate the methods of
terroristic anarchism.
[Footnote 3/3]
Elementary texts amplify the theory and practice of these movements which must be
greatly oversimplified in this opinion. See Anarchism, 2 Encyc.Soc.Sci. 46; Nihilism, 11
Encyc.Soc.Sci. 377.
[Footnote 3/4]
Spies v. Illinois, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898.
[Footnote 3/5]
Prof. Beard demonstrates this antithesis by quoting the Russian anarchist leader Bakunin,
as follows:
"'Marx is an authoritarian and centralizing communist. He wishes what we wish: the
complete triumph of economic and social equality, however, within the state and through
the power of the state, through the dictatorship of a very strong and, so to speak, despotic
provisional government, that is, by the negation of liberty. His economic ideal is the state
as the sole owner of land and capital, tilling the soil by means of agricultural associations,
under the management of its engineers, and directing through the agency of capital all
industrial and commercial associations."
"'We demand the same triumph of economic and social equality through the abolition of
the state and everything called juridical right, which is according to our view the permanent
negation of human right. We wish the reconstruction of society and the establishment of
the unity of mankind not from above downward through authority, through socialistic
officials, engineers and public technicians, but from below upward through the voluntary
federation of labor associations of all kinds emancipated entirely from the yoke of the
state.'"
Beard, Individualism and Capitalism, 1 Encyc.Soc.Sci. 145, 158.
[Footnote 3/6]
For methods and objects of infiltration of labor unions, see American Communications
Assn. v. Douds, 339 U. S. 382, 339 U. S. 422.
[Footnote 3/7]
The Czar's government, in February, 1917, literally gave up, almost without violence, to the
Provisional Government because it was ready to fall apart from its corruption, ineptitude,
superstition, oppression and defeat. The revolutionary parties had little to do with this, and
regarded it as a bourgeoisie triumph. Lenin was an exile in Switzerland, Trotsky in the
United States, and Stalin was in Siberia. The Provisional Government attempted to
continue the war against Germany, but it, too, was unable to solve internal problems, and
its Galician campaign failed with heavy losses. By October, its prestige and influence sank
so low that it could not continue. Meanwhile, Lenin and Trotsky had returned and
consolidated the Bolshevik position around the Soviets, or trade unions. They simply took
over power in an almost bloodless revolution between October 25 and November 7, 1917.
That Lenin and Trotsky represented only a minority was demonstrated in November
elections, in which the Bolsheviks secured less than a quarter of the seats. Then began
the series of opportunistic movements to entrench themselves in power. Faced by invasion
of the allies, by counterrevolution, and the attempted assassination of Lenin, terrorism was
resorted to on a large scale, and all the devices of the Czar's police state were
reestablished. See 1 Carr, The Bolshevik Revolution 1917-1923, 99-110, and Moore,
Soviet Politics -- The Dilemma of Power, 117-139.
[Footnote 3/8]
Duchacek, The Strategy of Communist Infiltration: Czechoslovakia, 1944-1948, World
Politics, Vol. II, No. 3 (April 1950) 345-372, and The February Coup in
Czechoslovakia, id., July, 1950, 511-532; see also Kertesz, The Methods of Communist
Conquest: Hungary, 1944-1947, id., October 1950, 20-54; Lasswell, The Strategy of Soviet
Propaganda, 24 Acad.Pol.Sci.Proc. 214, 221. See also Friedman, The Break-up of Czech
Democracy.
[Footnote 3/9]
Schenck v. United States, 249 U. S. 47. This doctrine has been attacked as one which
"annuls the most significant purpose of the First Amendment. It destroys the intellectual
basis of our plan of self-government." Meiklejohn, Free Speech And Its Relation to Self-
Government, 29. It has been praised:
"The concept of freedom of speech received for the first time an authoritative judicial
interpretation in accord with the purpose of the framers of the Constitution."
Chafee, Free Speech in the United States, 82. In either event, it is the only original judicial
thought on the subject, all later cases having made only extensions of its application. All
agree that it means something very important, but no two seem to agree on what it
is. See concurring opinion, MR. JUSTICE FRANKFURTER, Kovacs v. Cooper, 336 U. S.
77, 336 U. S. 89.
[Footnote 3/10]
Gitlow v. New York, 268 U. S. 652; Whitney v. California, 274 U. S. 357. Holmes' comment
on the former, in his letters to Sir Frederick Pollock of June 2 and 18, 1925, as "a case in
which conscience and judgment are a little in doubt," and description of his dissent as one
"in favor of the rights of an anarchist (so-called) to talk drool in favor of the proletarian
dictatorship" show the tentative nature of his test, even as applied to a trivial case.
Holmes-Pollock Letters (Howe ed.1946).
[Footnote 3/11]
~Page 68 of 96~
So characterized by Mr. Justice Brandeis in Schaefer v. United States, 251 U. S. 466, 251
U. S. 482.
[Footnote 3/12]
Recent cases have pushed the "clear and present danger" doctrine to greater extremes.
While Mr. Justice Brandeis said only that the evil to be feared must be "imminent" and
"relatively serious," Whitney v. California, 274 U. S. 357, 274 U. S. 376 and 274 U. S. 377,
more recently it was required
"that the substantive evil must be extremely serious and the degree of imminence
extremely high before utterances can be punished."
Bridges v. California, 314 U. S. 252, 314 U. S. 263. (Italics supplied.)
Schneiderman v. United States, 320 U. S. 118, overruled earlier holdings that the courts
could take judicial notice that the Communist Party does advocate overthrow of the
Government by force and violence. This Court reviewed much of the basic Communist
literature that is before us now, and held that it was within "the area of allowable
thought," id. at 320 U. S. 139, that it does not show lack of attachment to the Constitution,
and that success of the Communist Party would not necessarily mean the end of
representative government. The Court declared further that
"[a] tenable conclusion from the foregoing is that the Party, in 1927, desired to achieve its
purpose by peaceful and democratic means, and, as a theoretical matter, justified the use
of force and violence only as a method of preventing an attempted forcible counter-
overthrow once the Party had obtained control in a peaceful manner, or as a method of
last resort to enforce the majority will if at some indefinite future time because of peculiar
circumstances constitutional or peaceful channels were no longer open."
Id. at 320 U. S. 157. Moreover, the Court considered that this
"mere doctrinal justification or prediction of the use of force under hypothetical conditions
at some indefinite future time -- prediction that is not calculated or intended to be presently
acted upon. . . ."
ibid., was within the realm of free speech. A dissent by Mr. Chief Justice Stone, for himself
and Justices Roberts and Frankfurter, challenged these naive conclusions, as they did
again in Bridges v. Wixon, 326 U. S. 135, in which the Court again set aside an Attorney
General's deportation order. Here, Mr. Justice Murphy, without whom there would not have
been a majority for the decision, speaking for himself in a concurring opinion, pronounced
the whole deportation statute unconstitutional, as applied to Communists, under the "clear
and present danger test," because
"Not the slightest evidence was introduced to show that either Bridges or the Communist
Party seriously and imminently threatens to uproot the Government by force or violence."
326 U.S. at 326 U. S. 165.
[Footnote 3/13]
These dangers were more fully set out in Krulewitch v. United States, 336 U. S. 440, 336
U. S. 445.
[Footnote 3/14]
Miller on Criminal Law, 110. Similar reasons have been reiterated by this Court. United
States v. Rabinowich, 238 U. S. 78,238 U. S. 88; Pinkerton v. United States, 328 U. S.
640, 328 U. S. 643-644.
[Footnote 3/15]
The defendants have had the benefit so far in this case of all the doubts and confusions
afforded by attempts to apply the "clear and present danger" doctrine. While I think it has
no proper application to the case, these efforts have been in response to their own
contentions and favored, rather than prejudiced, them. There is no call for reversal on
account of it.
[Footnote 3/16]
The pathetically ineffective efforts of free European states to overcome feebleness of the
Executive and decomposition of the Legislative branches of government by legal
proscriptions are reviewed in Loewenstein, Legislative Control of Political Extremism in
European Democracies, 38 Col.L.Rev. 591, 725 (1938). The Nazi Party seizure of power in
Germany occurred while both it and its Communist counterpart were under sentence of
illegality from the courts of the Weimar Republic. The German Criminal Code struck
directly at the disciplinary system of totalitarian parties. It provided:
"The participation in an organization the existence, constitution, or purposes of which are
to be kept secret from the Government, or in which obedience to unknown superiors or
unconditional obedience to known superiors is pledged, is punishable by imprisonment up
to six months for the members and from one month to one year for the founders and
officers. Public officials may be deprived of the right to hold public office for a period of
from one to five years."
2 Nazi Conspiracy and Aggression (GPO 1946) 11. The Czar's government of Russia fell
while the Communist leaders were in exile. See n. 7. Instances of similar failures could be
multiplied indefinitely.
MR. JUSTICE BLACK, dissenting.
Here again, as in Breard v. Alexandria, post, p. 341 U. S. 622, decided this day, my basic
disagreement with the Court is not as to how we should explain or reconcile what was said
in prior decisions, but springs from a fundamental difference in constitutional approach.
Consequently, it would serve no useful purpose to state my position at length.
At the outset, I want to emphasize what the crime involved in this case is, and what it is
not. These petitioners were not charged with an attempt to overthrow the Government.
They were not charged with overt acts of any kind designed to overthrow the Government.
They were not even charged with saying anything or writing anything designed to
overthrow the Government. The charge was that they agreed to assemble and to talk and
publish certain ideas at a later date: the indictment is that they conspired to organize the
Communist Party and to use speech or newspapers and other publications in the future to
teach and advocate the forcible overthrow of the Government. No matter how it is worded,
this is a virulent form of prior censorship of speech and press, which I believe the First
Amendment forbids. I would hold 3 of the Smith Act authorizing this prior restraint
unconstitutional on its face and as applied.
But let us assume, contrary to all constitutional ideas of fair criminal procedure, that
petitioners, although not indicted for the crime of actual advocacy, may be punished for it.
Even on this radical assumption, the other opinions in this case show that the only way to
affirm
Page 341 U. S. 580
~Page 69 of 96~
these convictions is to repudiate directly or indirectly the established "clear and present
danger" rule. This the Court does in a way which greatly restricts the protections afforded
by the First Amendment. The opinions for affirmance indicate that the chief reason for
jettisoning the rule is the expressed fear that advocacy of Communist doctrine endangers
the safety of the Republic. Undoubtedly a governmental policy of unfettered
communication of ideas does entail dangers. To the Founders of this Nation, however, the
benefits derived from free expression were worth the risk. They embodied this philosophy
in the First Amendment's command that "Congress shall make no law . . . abridging the
freedom of speech, or of the press. . . ." I have always believed that the First Amendment
is the keystone of our Government, that the freedoms it guarantees provide the best
insurance against destruction of all freedom. At least as to speech in the realm of public
matters, I believe that the "clear and present danger" test does not "mark the furthermost
constitutional boundaries of protected expression," but does "no more than recognize a
minimum compulsion of the Bill of Rights." Bridges v. California, 314 U. S. 252, 314 U. S.
263.
So long as this Court exercises the power of judicial review of legislation, I cannot agree
that the First Amendment permits us to sustain laws suppressing freedom of speech and
press on the basis of Congress' or our own notions of mere "reasonableness." Such a
doctrine waters down the First Amendment so that it amounts to little more than an
admonition to Congress. The Amendment as so construed is not likely to protect any but
those "safe" or orthodox views which rarely need its protection. I must also express my
objection to the holding because, as MR. JUSTICE DOUGLAS dissent shows, it sanctions
the determination of a crucial issue of fact by the judge, rather than by the jury. Nor can I
let this opportunity
Page 341 U. S. 581
pass without expressing my objection to the severely limited grant of certiorari in this case
which precluded consideration here of at least two other reasons for reversing these
convictions: (1) the record shows a discriminatory selection of the jury panel which
prevented trial before a representative cross-section of the community; (2) the record
shows that one member of the trial jury was violently hostile to petitioners before and
during the trial.
Public opinion being what it now is, few will protest the conviction of these Communist
petitioners. There is hope, however, that, in calmer times, when present pressures,
passions and fears subside, this or some later Court will restore the First Amendment
liberties to the high preferred place where they belong in a free society.
MR. JUSTICE DOUGLAS, dissenting.
If this were a case where those who claimed protection under the First Amendment were
teaching the techniques of sabotage, the assassination of the President, the filching of
documents from public files, the planting of bombs, the art of street warfare, and the like, I
would have no doubts. The freedom to speak is not absolute; the teaching of methods of
terror and other seditious conduct should be beyond the pale along with obscenity and
immorality. This case was argued as if those were the facts. The argument imported much
seditious conduct into the record. That is easy, and it has popular appeal, for the activities
of Communists in plotting and scheming against the free world are common knowledge.
But the fact is that no such evidence was introduced at the trial. There is a statute which
makes a seditious conspiracy unlawful. [Footnote 4/1] Petitioners, however, were not
Page 341 U. S. 582
charged with a "conspiracy to overthrow" the Government. They were charged with a
conspiracy to form a party and groups and assemblies of people who teach and advocate
the overthrow of our Government by force or violence and with a conspiracy to advocate
and teach its overthrow by force and violence. [Footnote 4/2] It may well be that
indoctrination in the techniques of terror to destroy the Government would be indictable
under either statute. But the teaching which is condemned here is of a different character.
So far as the present record is concerned, what petitioners did was to organize people to
teach and themselves teach the Marxist-Leninist doctrine contained chiefly in four books:
[Footnote 4/3] Stalin, Foundations of Leninism (1924); Marx and Engels, Manifesto of the
Communist Party (1848); Lenin, The State and Revolution (1917); History of the
Communist Party of the Soviet Union (B.) (1939).
Those books are to Soviet Communism what Mein Kampf was to Nazism. If they are
understood, the ugliness of Communism is revealed, its deceit and cunning are exposed,
the nature of its activities becomes apparent, and the chances of its success less likely.
That is not, of course, the reason why petitioners chose these books for their classrooms.
They are fervent Communists to whom these volumes are gospel. They preached the
creed with the hope that some day it would be acted upon.
Page 341 U. S. 583
The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the
Communists do literature offensive to their creed. But if the books themselves are not
outlawed, if they can lawfully remain on library shelves, by what reasoning does their use
in a classroom become a crime? It would not be a crime under the Act to introduce these
books to a class, though that would be teaching what the creed of violent overthrow of the
Government is. The Act, as construed, requires the element of intent -- that those who
teach the creed believe in it. The crime then depends not on what is taught, but on who the
teacher is. That is to make freedom of speech turn not on what is said, but on the intent
with which it is said. Once we start down that road, we enter territory dangerous to the
liberties of every citizen.
There was a time in England when the concept of constructive treason flourished. Men
were punished not for raising a hand against the king, but for thinking murderous thoughts
about him. The Framers of the Constitution were alive to that abuse, and took steps to see
that the practice would not flourish here. Treason was defined to require overt acts -- the
evolution of a plot against the country into an actual project. The present case is not one of
treason. But the analogy is close when the illegality is made to turn on intent, not on the
nature of the act. We then start probing men's minds for motive and purpose; they become
entangled in the law not for what they did, but for what they thought; they get convicted not
for what they said, but for the purpose with which they said it.
Intent, of course, often makes the difference in the law. An act otherwise excusable or
carrying minor penalties may grow to an abhorrent thing if the evil intent is present. We
deal here, however, not with ordinary acts, but with speech, to which the Constitution has
given a special sanction.
~Page 70 of 96~
Page 341 U. S. 584
The vice of treating speech as the equivalent of overt acts of a treasonable or seditious
character is emphasized by a concurring opinion, which, by invoking the law of conspiracy,
makes speech do service for deeds which are dangerous to society. The doctrine of
conspiracy has served divers and oppressive purposes, and, in its broad reach, can be
made to do great evil. But never until today has anyone seriously thought that the ancient
law of conspiracy could constitutionally be used to turn speech into seditious conduct. Yet
that is precisely what is suggested. I repeat that we deal here with speech alone, not with
speech plus acts of sabotage or unlawful conduct. Not a single seditious act is charged in
the indictment. To make a lawful speech unlawful because two men conceive it is to raise
the law of conspiracy to appalling proportions. That course is to make a radical break with
the past and to violate one of the cardinal principles of our constitutional scheme.
Free speech has occupied an exalted position because of the high service it has given our
society. Its protection is essential to the very existence of a democracy. The airing of ideas
releases pressures which otherwise might become destructive. When ideas compete in
the market for acceptance, full and free discussion exposes the false, and they gain few
adherents. Full and free discussion even of ideas we hate encourages the testing of our
own prejudices and preconceptions. Full and free discussion keeps a society from
becoming stagnant and unprepared for the stresses and strains that work to tear all
civilizations apart.
Full and free discussion has indeed been the first article of our faith. We have founded our
political system on it. It has been the safeguard of every religious, political, philosophical,
economic, and racial group amongst us. We have counted on it to keep us from embracing
what is cheap and false; we have trusted the common sense of our
Page 341 U. S. 585
people to choose the doctrine true to our genius and to reject the rest. This has been the
one single outstanding tenet that has made our institutions the symbol of freedom and
equality. We have deemed it more costly to liberty to suppress a despised minority than to
let them vent their spleen. We have above all else feared the political censor. We have
wanted a land where our people can be exposed to all the diverse creeds and cultures of
the world.
There comes a time when even speech loses its constitutional immunity. Speech
innocuous one year may at another time fan such destructive flames that it must be halted
in the interests of the safety of the Republic. That is the meaning of the clear and present
danger test. When conditions are so critical that there will be no time to avoid the evil that
the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength
of the Nation will be the cause of its destruction.
Yet free speech is the rule, not the exception. The restraint to be constitutional must be
based on more than fear, on more than passionate opposition against the speech, on more
than a revolted dislike for its contents. There must be some immediate injury to society
that is likely if speech is allowed. The classic statement of these conditions was made by
Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U. S. 357, 274
U. S. 376-377,
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burnt women. It is the function of speech to free men from the bondage
of irrational fears. To justify suppression of free speech, there must be reasonable ground
to fear that serious evil will result if free speech is practiced. There must be reasonable
ground to believe that the danger apprehended
Page 341 U. S. 586
is imminent. There must be reasonable ground to believe that the evil to be prevented is a
serious one. Every denunciation of existing law tends in some measure to increase the
probability that there will be violation of it. Condonation of a breach enhances the
probability. Expressions of approval add to the probability. Propagation of the criminal state
of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still
further. But even advocacy of violation, however reprehensible morally, is not a justification
for denying free speech where the advocacy falls short of incitement and there is nothing
to indicate that the advocacy would be immediately acted on. The wide difference between
advocacy and incitement, between preparation and attempt, between assembling and
conspiracy, must be borne in mind. In order to support a finding of clear and present
danger, it must be shown either that immediate serious violence was to be expected or
was advocated, or that the past conduct furnished reason to believe that such advocacy
was then contemplated."
"Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. To courageous, self-reliant
men, with confidence in the power of free and fearless reasoning applied through the
processes of popular government, no danger flowing from speech can be deemed clear
and present unless the incidence of the evil apprehended is so imminent that it may befall
before there is opportunity for full discussion. If there be time to expose through discussion
the falsehood and fallacies, to avert the evil by the processes of education, the remedy to
be applied is more speech, not enforced silence."
(Italics added.)
Page 341 U. S. 587
I had assumed that the question of the clear and present danger, being so critical an issue
in the case, would be a matter for submission to the jury. It was squarely held in Pierce v.
United States, 252 U. S. 239, 252 U. S. 244, to be a jury question. Mr. Justice Pitney,
speaking for the Court, said,
"Whether the statement contained in the pamphlet had a natural tendency to produce the
forbidden consequences, as alleged, was a question to be determined not upon demurrer,
but by the jury at the trial."
That is the only time the Court has passed on the issue. None of our other decisions is
contrary. Nothing said in any of the nonjury cases has detracted from that ruling. [ Footnote
4/4] The statement in Pierce v. United States, supra, states the law as it has been, and as
it should be. The Court, I think, errs when it treats the question as one of law.
Yet, whether the question is one for the Court or the jury, there should be evidence of
record on the issue. This record, however, contains no evidence whatsoever showing that
the acts charged, viz., the teaching of the Soviet theory of revolution with the hope that it
~Page 71 of 96~
will be realized, have created any clear and present danger to the Nation. The Court,
however, rules to the contrary. It says,
"The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined
members subject to call when the leaders, these petitioners, felt that the time had come for
action, coupled with the inflammable nature of world conditions, similar uprisings in other
countries, and the touch-and-go nature of our relations with countries with whom
petitioners were in the very least ideologically attuned, convince us that their convictions
were justified on this score."
That ruling is, in my view, not responsive to the issue in the case. We might as well say
that the speech of
Page 341 U. S. 588
petitioners is outlawed because Soviet Russia and her Red Army are a threat to world
peace.
The nature of Communism as a force on the world scene would, of course, be relevant to
the issue of clear and present danger of petitioners' advocacy within the United States. But
the primary consideration is the strength and tactical position of petitioners and their
converts in this country. On that, there is no evidence in the record. If we are to take
judicial notice of the threat of Communists within the nation, it should not be difficult to
conclude that, as a political party, they are of little consequence. Communists in this
country have never made a respectable or serious showing in any election. I would doubt
that there is a village, let alone a city or county or state, which the Communists could carry.
Communism in the world scene is no bogeyman; but Communism as a political faction or
party in this country plainly is. Communism has been so thoroughly exposed in this country
that it has been crippled as a political force. Free speech has destroyed it as an effective
political party. It is inconceivable that those who went up and down this country preaching
the doctrine of revolution which petitioners espouse would have any success. In days of
trouble and confusion, when bread lines were long, when the unemployed walked the
streets, when people were starving, the advocates of a short-cut by revolution might have
a chance to gain adherents. But today there are no such conditions. The country is not in
despair; the people know Soviet Communism; the doctrine of Soviet revolution is exposed
in all of its ugliness, and the American people want none of it.
How it can be said that there is a clear and present danger that this advocacy will succeed
is, therefore, a mystery. Some nations less resilient than the United States, where illiteracy
is high and where democratic traditions are only budding, might have to take drastic
Page 341 U. S. 589
steps and jail these men for merely speaking their creed. But in America, they are
miserable merchants of unwanted ideas; their wares remain unsold. The fact that their
ideas are abhorrent does not make them powerful.
The political impotence of the Communists in this country does not, of course, dispose of
the problem. Their numbers; their positions in industry and government; the extent to
which they have, in fact, infiltrated the police, the armed services, transportation,
stevedoring, power plants, munitions works, and other critical places -- these facts all bear
on the likelihood that their advocacy of the Soviet theory of revolution will endanger the
Republic. But the record is silent on these facts. If we are to proceed on the basis of
judicial notice, it is impossible for me to say that the Communists in this country are so
potent or so strategically deployed that they must be suppressed for their speech. I could
not so hold unless I were willing to conclude that the activities in recent years of
committees of Congress, of the Attorney General, of labor unions, of state legislatures, and
of Loyalty Boards were so futile as to leave the country on the edge of grave peril. To
believe that petitioners and their following are placed in such critical positions as to
endanger the Nation is to believe the incredible. It is safe to say that the followers of the
creed of Soviet Communism are known to the FBI; that, in case of war with Russia, they
will be picked up overnight, as were all prospective saboteurs at the commencement of
World War II; that the invisible army of petitioners is the best known, the most beset, and
the least thriving of any fifth column in history. Only those held by fear and panic could
think otherwise.
This is my view if we are to act on the basis of judicial notice. But the mere statement of
the opposing views indicates how important it is that we know the facts before we act.
Neither prejudice nor hate nor senseless
Page 341 U. S. 590
fear should be the basis of this solemn act. Free speech -- the glory of our system of
government -- should not be sacrificed on anything less that plain and objective proof of
danger that the evil advocated is imminent. On this record, no one can say that petitioners
and their converts are in such a strategic position as to have even the slightest chance of
achieving their aims.
The First Amendment provides that "Congress shall make no law . . . abridging the
freedom of speech." The Constitution provides no exception. This does not mean,
however, that the Nation need hold its hand until it is in such weakened condition that
there is no time to protect itself from incitement to revolution. Seditious conduct can always
be punished. But the command of the First Amendment is so clear that we should not
allow Congress to call a halt to free speech except in the extreme case of peril from the
speech itself. The First Amendment makes confidence in the common sense of our people
and in their maturity of judgment the great postulate of our democracy. Its philosophy is
that violence is rarely, if ever, stopped by denying civil liberties to those advocating resort
to force. The First Amendment reflects the philosophy of Jefferson
"that it is time enough for the rightful purposes of civil government for its officers to
interfere when principles break out into overt acts against peace and good order. [Footnote
4/5]"
The political censor has no place in our public debates. Unless and until extreme and
necessitous circumstances are shown, our aim should be to keep speech unfettered and
to allow the processes
Page 341 U. S. 591
of law to be invoked only when the provocateurs among us move from speech to action.
Vishinsky wrote in 1938 in The Law of the Soviet State, "In our state, naturally, there is and
can be no place for freedom of speech, press, and so on for the foes of socialism."
Our concern should be that we accept no such standard for the United States. Our faith
should be that our people will never give support to these advocates of revolution, so long
as we remain loyal to the purposes for which our Nation was founded.
~Page 72 of 96~
|341 U.S. 494app2|
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
There have been numerous First Amendment cases before the Court raising the issue of
clear and present danger since Mr. Justice Holmes first formulated the test in Schenck v.
United States, 249 U. S. 47, 249 U. S. 52. Most of them, however, have not involved jury
trials.
The cases which may be deemed at all relevant to our problem can be classified as
follows:
CONVICTIONS FOR CONTEMPT OF COURT (NON-JURY): Near v. Minnesota, 283 U. S.
697; Bridges v. California, 314 U. S. 252; Thomas v. Collins, 323 U. S. 516; Pennekamp v.
Florida, 328 U. S. 331; Craig v. Harney, 331 U. S. 367.
CONVICTIONS BY STATE COURTS SITTING WITHOUT JURIES, GENERALLY FOR
VIOLATIONS OF LOCAL ORDINANCES: Lovell v. Griffin, 303 U. S. 444; Schneider v.
State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Marsh v. Alabama, 326 U. S.
501; Tucker v. Texas, 326 U. S. 517; Winters v. New York, 333 U. S. 507; Saia v. New
York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Kunz v. New York, 340 U. S.
290; Feiner v. New York, 340 U. S. 315.
INJUNCTIONS AGAINST ENFORCEMENT OF STATE OR LOCAL LAWS (NON-
JURY): Grosjean v. American Press Co., 297
Page 341 U. S. 592
U.S. 233; Hague v. CIO, 307 U. S. 496; Minersville School District v. Gobitis, 310 U. S.
586; West Virginia Board of Education v. Barnette, 319 U. S. 624.
ADMINISTRATIVE PROCEEDINGS (NON-JURY): Bridges v. Wixon, 326 U. S.
135; Schneiderman v. United States, 320 U. S. 118; American Communications
Association v. Douds, 339 U. S. 382.
CASES TRIED BEFORE JURIES FOR VIOLATIONS OF STATE LAWS DIRECTED
AGAINST ADVOCACY OF ANARCHY, CRIMINAL SYNDICALISM, ETC.: Gilbert v.
Minnesota, 254 U. S. 325; Gitlow v. New York, 268 U. S. 652; Whitney v. California, 274 U.
S. 357; Fiske v. Kansas, 274 U. S. 380; Stromberg v. California, 283 U. S. 359; De Jonge
v. Oregon, 299 U. S. 353; Herndon v. Lowry, 301 U. S. 242; Taylor v. Mississippi, 319 U. S.
583; or for minor local offenses: Cox v. New Hampshire, 312 U. S. 569; Chaplinsky v. New
Hampshire, 315 U. S. 568; Terminiello v. Chicago, 337 U. S. 1; Niemotko v. Maryland, 340
U. S. 268.
FEDERAL PROSECUTIONS BEFORE JURIES UNDER THE ESPIONAGE ACT OF 1917
FOLLOWING WORLD WAR I: Schenck v. United States, 249 U. S. 47; Frohwerk v. United
States, 249 U. S. 204; Debs v. United States, 249 U. S. 211; Abrams v. United States, 250
U. S. 616; Schaefer v. United States, 251 U. S. 466; Pierce v. United States, 252 U. S.
239. Pierce v. United States ruled that the question of clear and present danger was for
the jury. In the other cases in this group the question whether the issue was for the court or
the jury was not raised or passed upon.
FEDERAL PROSECUTION BEFORE A JURY UNDER THE ESPIONAGE ACT OF 117
FOLLOWING WORLD WAR II: Hartzel v. United States, 322 U. S. 680. The jury was
instructed on clear and present danger in terms drawn from the language of Mr. Justice
Holmes in Schenck v. United States, supra, p. 249 U. S. 52. The Court reversed the
conviction on the ground that there had not been sufficient evidence for submission of the
case to the jury.
[Footnote 4/1]
18 U.S.C. 2384 provides:
"If two or more persons in any State or Territory, or in any place subject to the jurisdiction
of the United States, conspire to overthrow, put down, or to destroy by force the
Government of the United States, or to levy war against them, or to oppose by force the
authority thereof, or by force to prevent, hinder, or delay the execution of any law of the
United States, or by force to seize, take, or possess any property of the United States
contrary to the authority thereof, they shall each be fined not more than $5,000 or
imprisoned not more than six years, or both."
[Footnote 4/2]
54 Stat. 671, 18 U.S.C. 10, 11.
[Footnote 4/3]
Other books taught were Stalin, Problems of Leninism, Strategy and Tactics of World
Communism (H.R.Doc. No. 619, 80th Cong., 2d Sess.), and Program of the Communist
International.
[Footnote 4/4]
The cases which reached the Court are analyzed in the Appendix attached to this
opinion, post, p. 341 U. S. 591.
[Footnote 4/5]
12 Hening's Stat. (Virginia 1823), c. 34, p. 84. Whipple, Our Ancient Liberties (1927), p. 95,
states:
"This idea that the limit on freedom of speech or press should be set only by an actual
overt act was not new. It had been asserted by a long line of distinguished thinkers,
including John Locke, Montesquieu in his The Spirit of the Laws ('Words do not constitute
an overt act'), the Rev. Phillip Furneaux, James Madison, and Thomas Jefferson."
Reference
https://supreme.justia.com/cases/federal/us/341/494/case.html
~Page 73 of 96~

American Communications Assn. v. Douds 339 U.S. 382 (1950)
American Communications Assn. v. Douds No. 10
Argued October 10-11, 1949
Decided May 8, 1950*
339 U.S. 382
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Syllabus
Section 9(h) of the National Labor Relations Act, as amended by the Labor Management
Relations Act, 1947, which imposes certain restrictions on, and denies the benefits of
certain provisions of the National Labor Relations Act to, any labor organization the officers
of which have not filed with the National Labor Relations Board the so-called "non-
Commmist" affidavits prescribed by 9(h), is valid under the Federal Constitution. Pp. 339
U. S. 385-415.
1. One of the purposes of the Labor Management Relations Act was to remove the
obstructions to the free flow of commerce resulting from "political strikes" instigated by
Communists who had infiltrated the management of labor organizations and were
subordinating legitimate trade union objectives to obstructive strikes when dictated by
Communist Party leaders, often in support of the policies of a foreign government. Pp. 339
U. S. 387-389.
2. Section 9(h) does not merely withhold from noncomplying unions benefits granted by
the Government; it also imposes on them a number of restrictions which would not exist if
the National Labor Relations Act had not been enacted. However, it does not prohibit
persons who do not sign the prescribed affidavit from holding union office. Pp. 339 U. S.
389-390.
3. The remedy provided by 9(h) bears reasonable relation to the evil which it was
designed to reach, since Congress might reasonably find that Communists, unlike
members of other political parties, and persons who believe in the overthrow of the
Government by force, unlike persons of other beliefs, represent a continuing danger of
disruptive political strikes when they hold positions of union leadership. Pp. 339 U. S. 390-
393.
Page 339 U. S. 383
4. Section 9(h) is designed to protect the public not against what Communists and others
identified therein advocate or believe, but against what Congress has concluded they have
done and are likely to do again, and the probable effects of the statute upon the free
exercise of the right of speech and assembly must be weighed against the congressional
determination that political strikes are evils of conduct which cause substantial harm to
interstate commerce, and that Communists and others identified by 9(h) pose continuing
threats to that public interest when in positions of union leadership. Pp. 339 U. S. 393-400.
5. In view of the complexity of the problem of political strikes and how to deal with their
leaders, the public interest in the good faith exercise of the great powers entrusted by
Congress to labor bargaining representatives under the National Labor Relations Act, the
fact that 9(h) touches only a relatively few persons who combine certain political
affiliations or beliefs with the occupancy of positions of great power over the economy of
the country, and the fact that injury to interstate commerce would be an accomplished fact
before any sanctions could be applied, the legislative judgment that interstate commerce
must be protected from a continuing threat of political strikes is a permissible one in this
case. Pp.339 U. S. 400-406.
6. The belief identified in 9(h) is a belief in the objective of overthrow by force or by any
illegal or unconstitutional methods of the Government of the United States as it now exists
under the Constitution and laws thereof. The sole effect of the statute upon one who holds
such beliefs is that he may be forced to relinquish his position as a union leader. So
construed, in the light of the circumstances surrounding the problem, 9(h) does not
unduly infringe freedoms protected by the First Amendment. Pp. 339 U. S. 406-412.
7. Section 9(h) is not unconstitutionally vague; it does not violate the prohibition of Article I,
9 of the Constitution against bills of attainder or ex post facto laws, and it does not
~Page 74 of 96~
require a "test oath" contrary to the provision of Article VI that "no religious Test shall ever
be required as a Qualification to any Office or public Trust under the United States."
Pp. 339 U. S. 412-415.
79 F.Supp. 563, 170 F.2d 247, affirmed.
No. 10. Although the officers of appellant union had not filed with the National Labor
Relations Board the affidavit prescribed by 9(h) of the National Labor Relations Act, as
amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 146, 29 U.S.C.
(Supp. III) 141, 159(h), appellant, claiming hat the section was unconstitutional, sued to
restrain the Board from holding a representation election in a bargaining unit in which
appellant was the employee representative, until a hearing was granted to appellant. The
three-judge district court dismissed the complaint. 79 F.Supp. 563. On appeal to this
Court, affirmed, p. 339 U. S. 415.
No. 13. On an unfair labor practice complaint filed with the National Labor Relations Board
by petitioner unions, the Board found that the employer had violated the National Labor
Relations Act in refusing to bargain on the subject of pensions; but the Board postponed
the effective date of its order compelling the employer to bargain, pending the unions'
compliance with 9(h). 77 N.L.R.B. 1. The Court of Appeals sustained the Board's action
on both counts. 170 F.2d 247. This Court denied certiorari on the pension issue, 336 U.S.
960, but granted certiorari on an issue regarding the constitutionality of 9(h). 335 U.S.
910. Affirmed, p. 339 U. S. 415.
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. [Footnote 1]
This section, commonly referred to as the non-Communist affidavit provision, reads as
follows:
"No investigation shall be made by the [National Labor Relations] Board of any question
affecting commerce concerning the representation of employees, raised by a labor
organization under subsection (c) of this section, no petition under section 9(e)(1) shall be
entertained, and no complaint shall be issued pursuant to a charge made by a labor
organization under subsection (b) of section 10, unless there is on file with the Board an
affidavit executed contemporaneously or within the preceding twelve-month period by
each officer of such labor organization and the officers of any national or international labor
organization of which it is an affiliate or constituent unit that he is not a member of the
Communist Party or affiliated with such party, and 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. The
provisions of section 35 A of the Criminal Code shall be applicable in respect to such
affidavits."
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 to the pension issue,
336 U.S. 960 (1949), but granted the petition directed at the affidavit requirement, 335
U.S. 910 (1949), because of the manifest importance of the constitutional issues involved.
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:
"Experience has further demonstrated that certain practices by some labor organizations,
their officers, and members have the intent or the necessary effect of burdening or
obstructing commerce by preventing the free flow of goods in such commerce through
strikes and other forms of industrial unrest or through concerted activities which impair the
interest of the public in the free flow of such commerce. The elimination of such practices
is a necessary condition to the assurance of the rights herein guaranteed. [Footnote 2] "
One such obstruction, which it was the purpose of 9(h) of the Act to remove, was the so-
called "political strike." Substantial amounts of evidence were presented to various
committees of Congress, including the committees immediately concerned with labor
legislation, that Communist leaders of labor unions had in the past, and would continue in
the future, to subordinate legitimate trade union objectives to obstructive strikes when
~Page 75 of 96~
dictated by Party leaders, often in support of the policies of a foreign government. And
other evidence supports the view that some union leaders who hold to a belief in violent
overthrow of the Government for reasons other than loyalty to the Communist Party
likewise regard strikes and other forms of direct action designed to serve ultimate
revolutionary goals as the primary objectives of labor unions which they control. [Footnote
3] At the committee hearings, the incident most fully developed was a strike at the
Milwaukee plant of the Allis-Chalmers Manufacturing Company in 1941, when that plant
was producing vital materials for the national defense program. A full hearing was given
not only to company officials, but also to leaders of the international and local unions
involved. Congress heard testimony that the strike had been called solely in obedience to
Party orders for the purpose of starting the "snowballing of strikes" in defense plants.
[Footnote 4]
No useful purpose would be served by setting out at length the evidence before Congress
relating to the problem of political strikes, nor can we attempt to assess the validity of each
item of evidence. It is sufficient to say that Congress had a great mass of material before it
which tended to show that Communists and others proscribed by the statute had infiltrated
union organizations not to support and further trade union objectives, including the
advocacy of change by democratic methods, but to make them a device by which
commerce and industry might be disrupted when the dictates of political policy required
such action.
II
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.
[Footnote 5] The Board has argued, on the other hand, that 9(h) presents no First
Amendment problem, because its sole sanction is the withdrawal from noncomplying
unions of the "privilege" of using its facilities.
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 established. [Footnote 6] The statute does not, however,
specifically forbid persons who do not sign the affidavit from holding positions of union
leadership, nor require their discharge from office. The fact is that 9(h) may well make it
difficult for unions to remain effective if their officers do not sign the affidavits. How difficult
depends upon the circumstances of the industry, the strength of the union and its
organizational discipline. We are, therefore, neither free to treat 9(h) as if it merely
withdraws a privilege gratuitously granted by the Government, nor able to consider it a
licensing statute prohibiting those persons who do not sign the affidavit from holding union
office. The practicalities of the situation place the proscriptions of 9(h) somewhere
between those two extremes. The difficult question that emerges is whether, consistently
with the First Amendment, Congress, by statute, may exert these pressures upon labor
unions to deny positions of leadership to certain persons who are identified by particular
beliefs and political affiliations.
III
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 relation to the evil
which the statute was designed to reach. Congress could rationally find that the
Communist Party is not like other political parties in its utilization of positions of union
leadership as means by which to bring about strikes and other obstructions of commerce
for purposes of political advantage, and that many persons who believe in overthrow of the
Government by force and violence are also likely to resort to such tactics when, as
officers, they formulate union policy.
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). [Footnote 7] If accidents of
birth and ancestry under some circumstances justify an inference concerning future
conduct, it can hardly be doubted that voluntary affiliations and beliefs justify a similar
inference when drawn by the legislature on the basis of its investigations.
This principle may be illustrated by reference to statutes denying positions of public
importance to groups of persons identified by their business affiliations. One federal
statute, [Footnote 8] for example, provides that no partner or employee of a firm primarily
engaged in underwriting securities may be a director of a national bank. This Court noted
that the statute is directed
"to the probability or likelihood, based on the experience of the 1920's, that a bank director
interested in the underwriting business may use his influence in the bank to involve it or its
customers in securities which his underwriting house has in its portfolio or has committed
itself to take."
~Page 76 of 96~
Board of Governors v. Agnew, 329 U. S. 441, 329 U. S. 447 (1947). It was designed "to
remove tempting opportunities from the management and personnel of member
banks." Id. at p. 329 U. S. 449. There was no showing, nor was one required, that all
employees of underwriting firms would engage in such conduct. Because of their business
connections, carrying as they do certain loyalties, interests and disciplines, those persons
were thought to pose a continuing threat of participation in the harmful activities described
above. Political affiliations of the kind here involved, no less than business affiliations,
provide rational ground for the legislative judgment that those persons proscribed by 9(h)
would be subject to "tempting opportunities" to commit acts deemed harmful to the
national economy. In this respect, 9(h) is not unlike a host of other statutes which prohibit
specified groups of persons from holding positions of power and public interest because, in
the legislative judgment, they threaten to abuse the trust that is a necessary concomitant
of the power of office.
If no more were involved than possible loss of position, the foregoing would dispose of the
case. But the more difficult problem here arises because, in drawing lines on the basis of
beliefs and political affiliations, though it may be granted that the proscriptions of the
statute bear a reasonable relation to the apprehended evil, Congress has undeniably
discouraged the lawful exercise of political freedoms as well. Stated otherwise, the
problem is this: Communists, we may assume, carry on legitimate political activities.
Beliefs are inviolate. Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303 (1940).
Congress might reasonably find, however, that Communists, unlike members of other
political parties, and persons who believe in overthrow of the Government by force, unlike
persons of other beliefs, represent a continuing danger of disruptive political strikes when
they hold positions of union leadership. By exerting pressures on unions to deny office to
Communists and others identified therein, 9(h) undoubtedly lessens the threat to
interstate commerce, but it has the further necessary effect of discouraging the exercise of
political rights protected by the First Amendment. Men who hold union offices often have
little choice but to renounce Communism or give up their offices. Unions which wish to do
so are discouraged from electing Communists to office. To the grave and difficult problem
thus presented, we must now turn our attention.
IV
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 in No. 13, on the other hand, would require
a showing that political strikes, the substantive evil involved, are a clear and present
danger to the security of the Nation or threaten widespread industrial unrest.
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, 233 U. S. 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 to
the public welfare. [Footnote 9] Some thought speech having a reasonable tendency to
lead to such conduct might be punished. Justices Holmes and Brandeis took a different
view. They thought that the greater danger to a democracy lies in the suppression of public
discussion; that ideas and doctrines thought harmful or dangerous are best fought with
words. Only, therefore, when force is very likely to follow an utterance before there is a
chance for counter-argument to have effect may that utterance be punished or prevented.
[Footnote 10] Thus,
"the necessity which is essential to a valid restriction does not exist unless speech would
produce, or is intended to produce, a clear and imminent danger of some substantive evil
which the State [or Congress] constitutionally may seek to prevent. . . ."
Mr. Justice Brandeis, concurring in Whitney v. California, 274 U. S. 357, 274 U. S. 373. By
this means, they sought to convey the philosophy that, under the First Amendment, the
public has a right to every man's views, and every man the right to speak them.
Government may cut him off only when his views are no longer merely views, but threaten,
clearly and imminently, to ripen into conduct against which the public has a right to protect
itself.
But the question with which we are here faced is not the same one that Justices Holmes
and Brandeis found convenient to consider in terms of clear and present danger.
Government's interest here is not in preventing the dissemination of Communist doctrine
or the holding of particular beliefs because it is feared that unlawful action will result
therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce
from what Congress considers to be substantial evils of conduct that are not the products
~Page 77 of 96~
of speech at all. Section 9(h), in other words, does not interfere with speech because
Congress fears the consequences of speech; it regulates harmful conduct which Congress
has determined is carried on by persons who may be identified by their political affiliations
and beliefs. The Board does not contend that political strikes, the substantive evil at which
9(h) is aimed, are the present or impending products of advocacy of the doctrines of
Communism or the expression of belief in overthrow of the Government by force. On the
contrary, it points out that such strikes are called by persons who, so Congress has found,
have the will and power to do so without advocacy or persuasion that seeks acceptance in
the competition of the market. [Footnote 11] Speech may be fought with speech.
Falsehoods and fallacies must be exposed, not suppressed, unless there is not sufficient
time to avert the evil consequences of noxious doctrine by argument and education. That
is the command of the First Amendment. But force may and must be met with force.
Section 9(h) is designed to protect the public not against what Communists and others
identified therein advocate or believe, but against what Congress has concluded they have
done and are likely to do again.
The contention of petitioner in No. 13 that this Court must find that political strikes create a
clear and present danger to the security of the Nation or of widespread industrial strife in
order to sustain 9(h) similarly misconceives the purpose that phrase was intended to
serve. In that view, not the relative certainty that evil conduct will result from speech in the
immediate future, but the extent and gravity of the substantive evil, must be measured by
the "test" laid down in the Schenck case. But there the Court said that:
"The question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent."
Schenck v. United States, supra, at 294 U. S. 52. (Emphasis supplied.)
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 274 U. S.
374, 274 U. S. 377, or sometimes "extremely serious," Bridges v. California, 314 U. S.
252, 314 U. S. 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 an appeal in which
a church group contended that its First Amendment rights were violated by a municipal
zoning ordinance preventing the building of churches in certain residential
areas. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day
Saints v. Porterville, 338 U.S. 805 (1949). And recent cases in this Court involving
contempt by publication likewise have no meaning if imminent danger of national peril is
the criterion. [Footnote 12]
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, 312 U. S. 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 336 U. S. Empire Storage Co., 336 U.
S. 490, 336 U. S. 499-501 (1949). We have never held that such freedoms are absolute.
The reason is plain. As Mr. Chief Justice Hughes put it,
"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be lost in the excesses of
unrestrained abuses."
Cox v. New Hampshire, supra, at 312 U. S. 574.
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
"[i]t 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. [Footnote 13]"
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
~Page 78 of 96~
the exercise of First Amendment rights. Reynolds v. United States, supra; Prince v.
Massachusetts, supra; Cox v. New Hampshire, supra; Giboney v. Empire Storage Co.,
supra. In essence, the problem is one of weighing the probable effects of the statute upon
the free exercise of the right of speech and assembly against the congressional
determination that political strikes are evils of conduct which cause substantial harm to
interstate commerce and that Communists and others identified by 9(h) pose continuing
threats to that public interest when in positions of union leadership. We must, therefore,
undertake the
"delicate and difficult task . . . to weigh the circumstances and to appraise the substantiality
of the reasons advanced in support of the regulation of the free enjoyment of the rights."
Schneider v. State, 308 U. S. 147, 308 U. S. 161 (1939).
V 255 (1944); Railway Mail Association v. Corsi, 326 U. S. 88, 326 U. S. 94 (1945).
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. [Footnote 14]"
It should be emphasized that Congress, not the courts, is primarily charged with
determination of the need for regulation of activities affecting interstate commerce. This
Court must, if such regulation unduly infringes personal freedoms, declare the statute
invalid under the First Amendment's command that the opportunities for free public
discussion be maintained. But insofar as the problem is one of drawing inferences
concerning the need for regulation of particular forms of conduct from conflicting evidence,
this Court is in no position to substitute its judgment as to the necessity or desirability of
the statute for that of Congress. Cf. United Public Workers v. Mitchell, supra, at 330 U. S.
95, 330 U. S. 102. In Bridges v. California, supra, we said that even restrictions on
particular kinds of utterances, if enacted by a legislature after appraisal of the need, come
to this Court "encased in the armor wrought by prior legislative deliberation." 314 U.S.
at 314 U. S. 261. Compare Gitlow v. New York, 268 U. S. 652 (1925). The deference due
legislative determination of the need for restriction upon particular forms of conduct has
found repeated expression in this Court's opinions.
When compared with ordinances and regulations dealing with littering of the streets or
disturbance of householders 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 lower by private persons becomes closely akin, in some respects, to its
exercise by Government itself.
See Graham v. Brotherhood of Locomotive Firemen, 338 U. S. 232 (1949); Steele v.
Louisville & N. R. Co., 323 U. S. 192 (1944); Tunstall v. Brotherhood of Locomotive
Firemen, 323 U. S. 210 (1944); Wallace Corp. v. Labor Board, 323 U. S. 248, 323 U. S.
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," [Footnote 15] the public interest in the good faith exercise of that power is
very great.
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, [Footnote 16] nor one which, although ostensibly aimed at the regulation of conduct,
may actually "be made the instrument of arbitrary suppression of free expression of
views." Hague v. Committee for Industrial Organization, 307 U. S. 496, 307 U. S.
516 (1939). [Footnote 17] There are here involved none of the elements of censorship or
prohibition of the dissemination of information that were present in the cases mainly relied
upon by those attacking the statute. [Footnote 18] The "discouragements" of 9(h)
proceed, not against the groups or beliefs identified therein, but only against the
combination of those affiliations or beliefs with occupancy of a position of great power over
the economy of the country. Congress has concluded that substantial harm, in the form of
direct, positive action, may be expected from that combination. In this legislation,
Congress did not restrain the activities of the Communist Party as a political organization;
nor did it attempt to stifle beliefs. Compare West Virginia State Board of Education v.
Barnette, 319 U. S. 624 (1943). [Footnote 19] Section 9(h) touches only a relative handful
of persons, leaving the great majority of persons of the identified affiliations and beliefs
completely free from restraint. And it leaves those few who are affected free to maintain
~Page 79 of 96~
their affiliations and beliefs subject only to possible loss of positions which Congress has
concluded are being abused to the injury of the public by members of the described
groups.
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 a statute which provided that employees of
the Federal Government could not participate in partisan political activities, concededly a
First Amendment right if they would retain their positions. The decision was not put upon
the ground that government employment is a privilege to be conferred or withheld at will.
For it was recognized that Congress may not
"enact a regulation providing that no Republican, Jew or Negro shall be appointed to
federal office, or that no federal employee shall attend Mass or take any active part in
missionary work."
330 U.S. at 330 U. S. 100. But the rational connection between the prohibitions of the
statute and its objects, the limited scope of the abridgment of First Amendment rights, and
the large public interest in the efficiency of government service which Congress had found
necessitated the statute, led us to the conclusion that the statute may stand consistently
with the First Amendment.
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.
It is contended that the principle that statutes touching First Amendment freedoms must be
narrowly drawn dictates that a statute aimed at political strikes should make the calling of
such strikes unlawful, but should not attempt to bring about the removal of union officers,
with its attendant effect upon First Amendment rights. We think, however, that the
legislative judgment that interstate commerce must be protected from a continuing threat
of such strikes is a permissible one in this case. The fact that the injury to interstate
commerce would be an accomplished fact before any sanctions could be applied, the
possibility that a large number of such strikes might be called at a time of external or
internal crisis, and the practical difficulties which would be encountered in detecting illegal
activities of this kind are factors which are persuasive that Congress should not be
powerless to remove the threat, not limited to punishing the act. We recently said that
"nothing in the Constitution prevents Congress from acting in time to prevent potential
injury to the national economy from becoming a reality."
North American Co. v. Securities & Exchange Commission, 327 U. S. 686, 327 U. S.
711 (1946). While this statement may be subject to some qualification, it indicates the wide
scope of congressional power to keep from the channels of commerce that which would
hinder and obstruct such commerce.
VI
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 very literally to include all persons who might, under
any conceivable circumstances, subscribe to that belief. 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, 335 U. S. 120-121 (1948); United States v. Delaware & Hudson Co., 213 U. S.
366, 213 U. S. 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 methods
of the Government of the United States as it now exists under the Constitution and laws
thereof.
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
~Page 80 of 96~
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. 339 U. S. 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 of the President. Is this beyond the power of Congress, whatever the need
revealed by its investigations? An affirmative answer hardly commends itself to reason
unless, indeed, the Bill of Rights has been converted into a "suicide pact."Terminiello v.
Chicago, 337 U. S. 1, 337 U. S. 37 (1949) (dissenting opinion). Yet the example chosen is
far-fetched only because of the manifest absurdity of reliance upon an oath in such a
situation. One can have no doubt that the screening process in the selection of persons to
occupy such positions probes far deeper than mere oath-taking can possibly do.
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 may not be asked his beliefs the former must necessarily be exempt is to make a
fetish of beliefs. The answer to the implication that, if this statute is upheld,
"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,"
post, p. 339 U. S. 438, is that that result does not follow "while this Court sits." [Footnote
20] The circumstances giving rise to the inquiry, then, are likewise factors to be weighed by
the courts, giving due weight, of course, to the congressional judgment concerning the
need. In short, the problem of balancing the conflicting individual and national interests
involved is no different from the problem presented by proscriptions based upon political
affiliations. 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 that he is not a Communist, the act of
joining the Party is crucial. Proof that one lied in swearing that he does not believe in
overthrow of the Government by force, on the other hand, must consist in proof of his
mental state. To that extent, they differ.
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. [Footnote 21]
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) of the National Labor Relations Act, as amended by the Labor
Management Relations Act, 1947, does not unduly infringe freedoms protected by the First
Amendment. Those who, so Congress has found, would subvert the public interest cannot
escape all regulation because, at the same time, they carry on legitimate political
activities. Cf. Valentine v. Chrestensen, 316 U. S. 52 (1942). To encourage unions to
displace them from positions of great power over the national economy, while at the same
time leaving free the outlets by which they may pursue legitimate political activities of
persuasion and advocacy, does not seem to us to contravene the purposes of the First
Amendment. That Amendment requires that one be permitted to believe what he will. It
requires that one be permitted to advocate what he will unless there is a clear and present
danger that a substantial public evil will result therefrom. It does not require that he be
permitted to be the keeper of the arsenal.
~Page 81 of 96~
VII
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 "knowingly and willfully."
The question in any criminal prosecution involving a non-Communist affidavit must
therefore be whether the affiant acted in good faith or knowingly lied concerning his
affiliations, beliefs, support of organizations, etc. And since the constitutional vice in a
vague or indefinite statute is the injustice to the accused in placing him on trial for an
offense, the nature of which he is given no fair warning, the fact that punishment is
restricted to acts done with knowledge that they contravene the statute makes this
objection untenable. As this Court pointed out in United States v. Ragen, 314 U. S.
513, 314 U. S. 524 (1942), "A mind intent upon willful evasion is inconsistent with
surprised innocence." Cf. Omaechevarria v. Idaho, 246 U. S. 343 (1918); Hygrade
Provision Co. v. Sherman, 266 U. S. 497 (1925); Screws v. United States,325 U. S.
91 (1945). Without considering, therefore, whether, in other circumstances, the words used
in 9(h) would render a statute unconstitutionally vague and indefinite, we think that the
fact that, under 35(A) of the Criminal Code, no honest, untainted interpretation of those
words is punishable removes the possibility of constitutional infirmity.
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 the future conduct is likely to be; but that does not alter the conclusion
that 9(h) is intended to prevent future action, rather than to punish past action.
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. 328 U. S. 314; Cummings v. Missouri,
supra, at p. 71 U. S. 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 here involved can rightly be taken as falling
within that category.
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.
[Footnote 22] Obviously, the Framers of the Constitution thought that the exaction of an
affirmation of minimal loyalty to the Government was worth the price of whatever
deprivation of individual freedom of conscience was involved. All that we need hold here is
that the casting of 9(h) into the mold of an oath does not invalidate it, if it is otherwise
constitutional.
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
Affirmed.
MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK and MR. JUSTICE MINTON took no
part in the consideration or decision of these cases.
* Together with No. 13, United Steelworkers of America et al. v. National Labor Relations
Board, on certiorari to the Court of Appeals for the Seventh Circuit, argued October 11,
1949.
[Footnote 1]
61 Stat. 136, 146, 29 U.S.C. (Supp. III) 141, 159(h), amending the National Labor
Relations Act of 1935, 49 Stat. 449, 29 U.S.C. 151 et seq.
~Page 82 of 96~
[Footnote 2]
29 U.S.C. (Supp. III) 151.
[Footnote 3]
A detailed description of the aims and tactics of the Socialist Workers Party, for example,
may be found in the transcript of record in Dunne v. United States, 320 U.S. 790 (1943),
certiorari denied. We cite the record as evidence only, and express no opinion whatever on
the merits of the case. See record, pp 267-271, 273274, 330-332, 439, 475, 491-42, 495-
46, 535, 606, 683-688, 693, 737, 804-805.
[Footnote 4]
See Hearings before House Committee on Education and Labor on Bills to Amend and
Repeal the National Labor Relations Act, 80th Cong., 1st Sess. 3611-3615.
[Footnote 5]
The First Amendment provides:
"Congress shall make no law . . . abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a redress of
grievances."
[Footnote 6]
For example, a union whose officers do not file an affidavit in compliance with 9(h) may
not enter into a union shop contract with an employer, as it was free to do before passage
of the National Labor Relations Act. A noncomplying union is excluded from the ballot in
representation proceedings. If another union is certified, the noncomplying union incurs the
disabilities of 8(b)(4)(C) and 303(a)(3), as it would not have done prior to 1935.
Similarly, certain strikes and boycotts are prohibited to noncomplying unions by 8(b)(4)
(B), 8(b)(4)(C) and 8(b)(4)(D) of the Act.
[Footnote 7]
See also Luria v. United States, 231 U. S. 9 (1913); Mackenzie v. Hare, 239 U. S.
299 (1915); Lapides v. Clark, 85 U.S.App.D.C. 101, 176 F.2d 619 (1949).
[Footnote 8]
Sections 30 and 32 of the Banking Act of 1933, 48 Stat. 162, 193, 194, as amended, 49
Stat. 684, 709, 12 U.S.C. 77, 78.
[Footnote 9]
See Schenck v. United States, 249 U. S. 47 (1919); Frohwerk v. United States, 249 U. S.
204 (1919); Debs v. United States, 249 U. S. 211 (1919); Abrams v. United States, 250 U.
S. 616 (1919); Schaefer v. United States, 251 U. S. 466 (1920); Pierce v. United
States, 252 U. S. 239 (1920); Gitlow v. New York, 268 U. S. 652 (1925).
[Footnote 10]
". . . no danger flowing from speech can be deemed clear and present unless the
incidence of the evil apprehended is so imminent that it may befall before there is
opportunity for full discussion. If there be time to expose through discussion the falsehood
and fallacies, to avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence."
Mr. Justice Brandeis, concurring in Whitney v. California, 274 U. S. 357, 274 U. S.
377 (1927).
[Footnote 11]
See Mr. Justice Holmes, dissenting in Abrams v. United States, 250 U. S. 616, 250 U. S.
630 (1919).
[Footnote 12]
Bridges v. California, 314 U. S. 252 (1941); Pennekamp v. Florida, 328 U. S.
331 (1946); Craig v. Harney, 331 U. S. 367 (1947).
[Footnote 13]
MR. JUSTICE JACKSON, concurring in Thomas v. Collins, 323 U. S. 516, 323 U. S.
547 (1945).
[Footnote 14]
Schneider v. State, 308 U. S. 147, 308 U. S. 161 (1939).
[Footnote 15]
Steele v. Louisville & N. R. Co., 323 U. S. 192, 323 U. S. 202 (1944).
[Footnote 16]
Cf. cases cited in note 9 supra, and Whitney v. California, 274 U. S. 357 (1927); Fiske v.
Kansas, 274 U. S. 380 (1927); Stromberg v. California, 283 U. S. 359 (1931); Near v.
Minnesota, 283 U. S. 697 (1931); De Jonge v. Oregon, 299 U. S. 353 (1937); Herndon v.
Lowry, 301 U. S. 242 (1937).
[Footnote 17]
Cf. Grosjean v. American Press Co., 297 U. S. 233 (1936); Thomas v. Collins, 323 U. S.
516 (1945).
[Footnote 18]
In Cox v. New Hampshire, 312 U. S. 569 (1941), Mr. Chief Justice Hughes, speaking for a
unanimous Court, stated the considerations thought controlling in a number of these
cases:
"In Lovell v. Griffin, [303 U.S. 444], the ordinance prohibited the distribution of literature of
any kind at any time, at any place, and in any manner without a permit from the city
manager, thus striking at the very foundation of the freedom of the press by subjecting it to
license and censorship. In Hague v. Committee for Industrial Organization, [307 U.S. 496],
the ordinance dealt with the exercise of the right of assembly for the purpose of
communicating views; it did not make comfort or convenience in the use of streets the
standard of official action, but enabled the local official absolutely to refuse a permit on his
mere opinion that such refusal would prevent 'riots, disturbances or disorderly
assemblage.' The ordinance thus created, as the record disclosed, an instrument of
arbitrary suppression of opinions on public questions. The court said that"
"uncontrolled official suppression of the privilege cannot be made a substitute for the duty
to maintain order in connection with the exercise of the right."
"In Schneider v. State, [308 U.S. 147] (p. 308 U. S. 163) the ordinance was directed at
canvassing and banned unlicensed communication of any views, or the advocacy of any
cause, from door to door, subject only to the power of a police officer to determine as a
censor what literature might be distributed and who might distribute it. In Cantwell v.
Connecticut, [310 U.S. 296] (p. 310 U. S. 305), the statute dealt with the solicitation of
funds for religious causes and authorized an official to determine whether the cause was a
~Page 83 of 96~
religious one and to refuse a permit if he determined it was not, thus establishing a
censorship of religion."
312 U.S. at 312 U. S. 577-578.
[Footnote 19]
In the Barnette case, the Court was careful to point out that the sole interest of the State
was in securing uniformity of belief by compelling utterance of a prescribed pledge, and
that refusal to comply with the State order resulted in punishment for both parent and child:
"The freedom asserted by these appellees does not bring them into collision with rights
asserted by any other individual. It is such conflicts which most frequently require
intervention of the State to determine where the rights of one end and those of another
begin. But the refusal of these persons to participate in the ceremony does not interfere
with or deny rights of others to do so. Nor is there any question in this case that their
behavior is peaceable and orderly. The sole conflict is between authority and rights of the
individual. The State asserts power to condition access to public education on making a
prescribed sign and profession and at the same time to coerce attendance by punishing
both parent and child. The latter stand on a right of self-determination in matters that touch
individual opinion and personal attitude."
319 U.S. at 319 U. S. 630-631.
[Footnote 20]
Panhandle Oil Co. v. Knox, 277 U. S. 218, 277 U. S. 223 (1928) (dissenting opinion). The
words of Mr. Justice Holmes, while written concerning a very different problem, are well
worth rereading in this connection:
"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, 204 U. S. 162."
[Footnote 21]
While it is true that state of mind is ordinarily relevant only when it is incidental to, and
determines the quality of, some overt act (but cf. Hamilton v. Regents, 293 U. S.
245 (1934); In re Summer, 325 U. S. 561 (1945)), the fact must not be overlooked that
mental state in such cases is a distinct issue, 2 Wigmore, Evidence (3d ed.) 244, 266,
of which the "overt act" may or may not be any proof. For example, the physical facts
surrounding a death by shooting may be as consistent with a finding of accident as of
murder. Willfulness, malice and premeditation must therefore be proved by evidence
wholly apart from the act of shooting.
[Footnote 22]
23 Stat. 22, 5 U.S.C. 16.
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.
Page 339 U. S. 416
"The judicial Power" with which alone this Court is invested comes into operation only as
to issues that the long tradition of our history has made appropriate for disposition by
judges. When such questions are properly here, they are to be disposed of within those
strict confines of legal reasoning which laymen too often deem invidiously technical. This
restriction to justiciable issues to be disposed of in the unrhetorical manner of opinion-
writing reflects respect by the judiciary for its very limited, however great, function in the
proper distribution of authority in our political scheme so as to avoid autocratic rule. No
doubt issues like those now before us cannot be completely severed from the political and
emotional context out of which they emerge. For that very reason, adjudication touching
such matters should not go one whit beyond the immediate issues requiring decision, and
what is said in support of the adjudication should insulate the Court as far as is rationally
possible from the political conflict beneath the legal issues.
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. [Footnote 2/1] Wrapped up
Page 339 U. S. 417
in this problem are two great concerns of our democratic society -- the right of association
for economic and social betterment and the right of association for political purposes. It is
too late in the day to deny to Congress the power to promote industrial peace in all the far-
flung range of interstate commerce. To that end, Congress may take appropriate measures
to protect interstate commerce against disruptive conduct not fairly related to industrial
betterment within our democratic framework. It is one thing to forbid heretical political
thought merely as heretical thought. It is quite a different thing for Congress to restrict
attempts to bring about another scheme of society not through appeal to reason and the
use of the ballot, as democracy has been pursued throughout our history, but through an
associated effort to disrupt industry.
Thus, stated, it would make undue inroads upon the policymaking 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
~Page 84 of 96~
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
Page 339 U. S. 418
of the Act may be denied unions which prefer their freedom to have officers who are
Communists to their opportunities under the Act.
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
Page 339 U. S. 419
be led by officers who are not willing to disavow membership in the Communist Party. The
scope of its legislation was much more extensive.
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
Page 339 U. S. 420
avowal that one
"does not believe in, and is not a member of or supports any organization that believes
in . . . the overthrow of the United States Government . . . by any illegal or unconstitutional
methods"
is to ask assurances from men regarding matters that open the door too wide to mere
speculation or uncertainty. It is asking more than rightfully may be asked of ordinary men
to take oath that a method is not "unconstitutional" or "illegal" when constitutionality or
legality is frequently determined by this Court by the chance of a single vote. [Footnote
2/2] It does not meet the difficulty to suggest that the hazard of a prosecution for perjury is
not great, since the convictions for perjury must be founded on willful falsity. To suggest
that a judge might not be justified in allowing a case to go to a jury, or that a jury would not
be justified in convicting, or that, on the possible happening of these events, an appellate
court would be compelled to reverse, or, finally, that resort could be had to this Court for
review on a petition for certiorari, affords safeguards too tenuous to neutralize the
danger. See Musser v. Utah, 333 U. S. 95. The hazards that were found to be fatal to the
legislation under review in Winters v. New York, 333 U. S. 507, appear trivial by
comparison with what is here involved.
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
Page 339 U. S. 421
matters that may not be subjected to compulsory avowal of belief or disbelief. In the
uncertainty of the reach of 9(h), one may withhold an oath because of conscientious
scruples that it covers beliefs whose disclosure Congress could not in terms exact. If a
man has scruples about taking an oath because of uncertainty as to whether it
encompasses some beliefs that are inviolate, the surrender of abstention is invited by the
ambiguity of the congressional exaction. As MR. JUSTICE JACKSON's opinion indicates,
probing into men's thoughts trenches on those aspects of individual freedom which we
rightly regard as the most cherished aspects of Western civilization. The cardinal article of
faith of our civilization is the inviolate character of the individual. A man can be regarded as
~Page 85 of 96~
an individual, and not as a function of the state, only if he is protected to the largest
possible extent in his thoughts and in his beliefs as the citadel of his person. Entry into that
citadel can be justified, if at all, only if strictly confined so that the belief that a man is
asked to reveal is so defined as to leave no fair room for doubt that he is not asked to
disclose what he has a right to withhold.
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, 328 U. S. 318, 328 U. S. 329; Shapiro v. United States, 335 U. S. 1, 335 U. S.
36; United States v. CIO, 335 U. S. 106, 335 U. S. 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,
Page 339 U. S. 422
as a matter of present policy, in the overthrow of the Government of the United States by
force. But what Congress has written does not permit such a gloss, nor deletion of what it
has written. See Yu Cong Eng v. Trinidad, 271 U. S. 500. I cannot deem it within the
rightful authority of Congress to probe into opinions that involve only an argumentative
demonstration of some coincidental parallelism of belief with some of the beliefs of those
who direct the policy of the Communist Party, though without any allegiance to it. To
require oaths as to matters that open up such possibilities invades the inner life of men
whose compassionate thought or doctrinaire hopes may be as far removed from any
dangerous kinship with the Communist creed as were those of the founders of the present
orthodox political parties in this country.
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).
[Footnote 2/1]
Section 9(h) requires each officer of a union seeking to invoke the machinery of the Labor
Management Relations Act to submit an affidavit
"that he is not a member of the Communist Party or affiliated with such party, and 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."
61 Stat. 146, 29 U.S.C. (Supp. III) 159(h). The provisions of what is now 18 U.S.C.
1001, formerly 35(A) of the Criminal Code, are made applicable in respect to such
affidavits.
[Footnote 2/2]
As to the dubious scope of the term "affiliated" in the statute, see Bridges v. Wixon, 326 U.
S. 135.
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
Page 339 U. S. 423
political opposition compatible with our free institutions, I limit concurrence to grounds and
distinctions explicitly set forth herein, without which I should regard his Act as
unconstitutional.
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 [Footnote 3/1] that the Communist Party is something different, in fact, from any
other substantial party we have known, and hence may constitutionally be treated as
something different in law.
Page 339 U. S. 424
I
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 [Footnote 3/2] would permit Congress to draw these important
conclusions as to its distinguishing characteristics.
Page 339 U. S. 425
1. The goal of the Communist Party is to seize powers of government by and for a
minority, rather than to acquire power through the vote of a free electorate. It seeks not
merely a change of administration, or of Congress, or reform legislation within the
constitutional framework. Its program is not merely to socialize property more rapidly and
extensively than the other parties are doing. While the difference between other parties in
these matters is largely as to pace, the Communist Party's difference is one of direction.
~Page 86 of 96~
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
Page 339 U. S. 426
accompaniment of violence, but at the same time they disclaim responsibility by blaming
the violence upon those who engage in resistance or reprisal. It matters little by whom the
first blow would he struck; no one can doubt that an era of violence and oppression,
confiscations and liquidations would be concurrent with a regime of Communism.
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. [Footnote 3/3] And this is the kind
of struggle projected by the Communist Party and inherent in its program.
Page 339 U. S. 427
2. The Communist Party, alone among American parties past or present, is dominated and
controlled by a foreign government. It is a satrap party which, to the threat of civil disorder,
adds the threat of betrayal into alien hands.
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
Page 339 U. S. 428
Party is not native to this country, and its beginnings here were not an effort of Americans
to answer American problems. Nor is it the response to a quest by American political
leaders for lessons from European experiences. As a consequence, the leaders of the
American Communist Party have been otherwise insignificant personalities, without
personal political followings or aptitudes for our political methods, adapted by training only
to boring their way into the labor movement, minority groups and coteries of naive and
confused liberals, whose organizations they have captured and discredited and among
whom they lie in wait for further orders.
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. [Footnote 3/4] In each country where the Communists have seized
control, they have so denationalized its foreign policy as to make it a satellite and vassal of
the Soviet Union and enforced a domestic policy in complete conformity with the Soviet
pattern, tolerating no deviation in deference to any people's separate history, tradition or
national interests.
Page 339 U. S. 429
3. Violent and undemocratic means are the calculated and indispensable methods to
attain the Communist Party's goal. It would be incredible naivete to expect the American
branch of this movement to forego the only methods by which a Communist Party has
anywhere come into power. In not one of the countries it now dominates was the
Communist Party chosen by a free or contestable election; in not one can it be evicted by
any election. The international police state has crept over Eastern Europe by deception,
coercion, coup d'etat, terrorism and assassination. Not only has it overpowered its critics
and opponents; it has usually liquidated them. The American Communist Party has copied
the organizational structure, and its leaders have been schooled in the same technique
and by the same tutors.
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. [Footnote 3/5] If they can persuade
enough citizens, they may not only name new officials and inaugurate new policies, but, by
amendment of the Constitution, they can abolish the Bill of Rights and set up an absolute
government by legal methods. They are given liberties of speech, press and assembly to
enable them to present to the people their proposals and propaganda for peaceful and
lawful changes, however extreme. But instead of resting their case upon persuasion and
any appeal inherent in their ideas and principles, the Communist Party adopts the
techniques of a secret cabal -- false names, forged passports, code messages,
clandestine meetings. To these it adds occasional terroristic and threatening methods,
Page 339 U. S. 430
such as picketing courts and juries, political strikes and sabotage.
~Page 87 of 96~
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.
Page 339 U. S. 431
This labor leverage, however, usually can be obtained only by concealing the Communist
tie from the union membership. Whatever grievances American workmen may have with
American employers, they are too intelligent and informed to seek a remedy through a
Communist Party which defends Soviet conscription of labor, forced labor camps and the
police state. Hence the resort to concealment, and hence the resentment of laws to
compel disclosure of Communist Party ties. The membership is not likely to entrust its
bargaining power, its records, and its treasury to such hands. When it does, the union finds
itself a more or less helpless captive of the Communist Party. Its officers cease to be
interested in correcting grievances, but seek to worsen and exploit them; they care less for
winning strikes than that they be long, bitter and disruptive. They always follow the
Communist Party line, without even knowing its source or its objectives. The most
promising course of the Communist Party has been the undercover capture of the coercive
power of strategic labor unions as a leverage to magnify its power over the American
people.
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
Page 339 U. S. 432
again as much a member as those who were regular. And it is often a source of grief to
those who have labored long in the vineyard that late arrivals are taken into the party
councils from other parties without scrutiny. Of course, when party organization is of this
character, there is little ground for inference that all members are committed to party plans
or that they are agents for their execution.
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. [Footnote 3/6]
Page 339 U. S. 433
However, there has recently entered the dialectic of politics a cliche used to condemn
application of the conspiracy principle to Communists. "Guilt by association" is an epithet
frequently used and little explained, except that it is generally accompanied by another
slogan, "guilt is personal." Of course it is; but personal guilt may be incurred by joining a
conspiracy. That act of association makes one responsible for the acts of others committed
in pursuance of the association. It is wholly a question of the sufficiency of evidence of
association to imply conspiracy. There is certainly sufficient evidence that all members owe
allegiance to every detail of the Communist Party program and have assumed a duty
actively to help execute it, so that Congress could, on familiar conspiracy principles,
charge each member with responsibility for the goals and means of the Party.
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.
II
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-
~Page 88 of 96~
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. [Footnote 3/7]
Congress has conferred upon labor unions important rights and powers in matters that
affect industry, transport,
Page 339 U. S. 434
communications, and commerce. And Congress has not now denied any union full self-
government nor prohibited any union from choosing Communist officers. It seeks to protect
the union from doing so unknowingly. And if members deliberately choose to put the union
in the hands of Communist officers, Congress withdraws the privileges it has conferred on
the assumption that they will be devoted to the welfare of their members. It would be
strange indeed if it were constitutionally powerless to protect these delegated functions
from abuse and misappropriation to the service of the Communist Party and the Soviet
Union. Our Constitution is not a covenant of nonresistance toward organized efforts at
disruption and betrayal, either of labor or of the country.
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 above-board 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
Page 339 U. S. 435
acquired. I have sometimes wondered why I must file papers showing I did not steal my
car before I can get a license for it. But experience shows there are thieves among
automobile drivers, and that there are Communists among labor leaders. The public
welfare, in identifying both, outweighs any affront to individual dignity.
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 longstanding
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.
III
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." [Footnote 3/8]
Page 339 U. S. 436
If Congress has power to condition any right or privilege of an American citizen [Footnote
3/9] upon disclosure and disavowal of belief on any subject, it is obviously this one. But the
serious issue is whether Congress has power to proscribe any opinion or belief which has
not manifested itself in any overt act. While the forepart of the oath requires disclosure and
disavowal of relationships which depend on overt acts of membership or affiliation, the
after-part demands revelation and denial of mere beliefs or opinions, even though they
may never have matured into any act whatever or even been given utterance. In fact, the
oath requires one to form and express a conviction on an abstract proposition which many
good citizens, if they have thought of it at all, have considered too academic and remote to
bother about.
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
Page 339 U. S. 437
something that he really did believe, the trial must revolve around the conjecture as to
whether he candidly exposed his state of mind.
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. [Footnote 3/10] Our trial processes are clumsy and unsatisfying for inferring
cogitations which are incidental to actions, but they do not even pretend to ascertain the
thought that has had no outward manifestation. Attempts of the courts to fathom modern
political meditations of an accused would be as futile and mischievous as the efforts in the
infamous heresy trials of old to fathom religious beliefs.
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
~Page 89 of 96~
our Constitution was intended to end such prosecutions. Only in the darkest periods of
human history
Page 339 U. S. 438
has any Western government concerned itself with mere belief, however eccentric or
mischievous, when it has not matured into overt action, and, if that practice survives
anywhere, it is in the Communist countries whose philosophies we loathe.
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 far-fetched. 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 straitjackets. 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
Page 339 U. S. 439
try to convert minds by pressure or suppression, instead of reason and persuasion, is
extinct. Our protection against all kinds of fanatics and extremists, none of whom can be
trusted with unlimited power over others, lies not in their forbearance, but in the limitations
of our Constitution.
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, 279 U. S. 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. [Footnote 3/11]
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
Page 339 U. S. 440
expression by Americans of undoubted patriotism. [Footnote 3/12] Most of these
utterances were directed against a tyranny which left no way to change by suffrage. It
seems to me a perversion of their meaning to quote them, as the Communists often do, to
sanction violent attacks upon a representative government which does afford such means.
But while I think Congress may make it a crime
Page 339 U. S. 441
to take one overt step to use or to incite violence or force against our Government, I do not
see how, in the light of our history, a mere belief that one has a natural right under some
circumstances to do so can subject an American citizen to prejudice any more than
possession of any other erroneous belief. Can we say that men of our time must not even
think about the propositions on
Page 339 U. S. 442
which our own Revolution was justified? Or may they think, provided they reach only one
conclusion -- and that the opposite of Mr. Jefferson's?
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 reexamine 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
Page 339 U. S. 443
citizen to keep the Government from falling into error. We could justify any censorship only
when the censors are better shielded against error than the censored.
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. [Footnote
3/13] An exaction of some profession of belief or nonbelief is precisely what the
~Page 90 of 96~
Communists would enact -- each individual must adopt the ideas that are common to the
ruling group. Their whole philosophy is to minimize man as an individual and to increase
the power of man acting in the mass. If any single characteristic distinguishes our
democracy from Communism, it is our recognition of the individual as a personality, rather
than as a soulless part in the jigsaw puzzle that is the collectivist state.
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, 322 U. S. 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
Page 339 U. S. 444
is protected when it does not clearly and presently threaten some injury to society which
the Government has a right to protect. Separate pinion, Thomas v. Collins, 323 U. S. 516.
But I have protested the degradation of these constitutional liberties to immunize and
approve mob movements, whether those mobs be religious or political, radical or
conservative, liberal or illiberal, Douglas v. City of Jeannette, 319 U. S. 157; Terminiello v.
Chicago, 337 U. S. 1, 337 U. S. 13, or to authorize pressure groups to use amplifying
devices to drown out the natural voice and destroy the peace of other individuals. Saia v.
People of New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77. And I have pointed
out that men cannot enjoy their right to personal freedom if fanatical masses, whatever
their mission, can strangle individual thoughts and invade personal privacy. Martin v.
Struthers, 319 U. S. 141, dissent at 319 U. S. 166. A catalogue of rights was placed in our
Constitution, in my view, to protect the individual in his individuality, and neither statutes
which put those rights at the mercy of officials nor judicial decisions which put them at the
mercy of the mob are consistent with its text or its spirit.
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. [Footnote 3/14]
Page 339 U. S. 445
IV
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. [Footnote 3/15]
[Footnote 3/1]
Of course, it is not for any member of this Court to express or to act upon any opinion he
may have as to the wisdom, effectiveness or need of this legislation. Our
"inquiries, where the legislative judgment is drawn in question, must be restricted to the
issue whether any state of facts either known or which could reasonably be assumed
affords support for it."
United States v. Carolene Product Co., 304 U. S. 144, 304 U. S. 154.
[Footnote 3/2]
It is unnecessary to set out a comprehensive compendium of the materials which
Congress may or could have considered, or to review the voluminous evidence before its
several Committees, much of which is already referred to in the Court's opinion. Most of
this information would be of doubtful admissibility or credibility in a judicial proceeding. Its
persuasiveness, validity and credibility for Legislative purposes are for Congress, see n.
1, supra. I intimate no opinion as to its sufficiency for purposes of a criminal trial.
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) 159-17; 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, Odegaard and Helms, American
Politics (1938) 795-797.
[Footnote 3/3]
Such is the view of students of Western society, with outlook so opposed as Lord Balfour
and Harold Laski. Balfour wrote:
"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
~Page 91 of 96~
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 never-ending din of political
conflict. May it always be so."
Preface to the World's Classics edition of Bagehot's English Constitution, p. xxiii.
Laski commented:
"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.
[Footnote 3/4]
To compare attacks against Thomas Jefferson with attacks against the Communist leaders
-- as Communists generally do [e.g. Dennis, Let the People Know (1947) 13] -- would be
meaningful only if his character and motives were comparable to those of the Communist
leaders. When we consider that Jefferson was the author of Virginia's Statute of Religious
Liberty, was war Governor of Virginia, risked his life to sign the Declaration of
Independence, was Secretary of State in President Washington's Cabinet, and became
President of the United States through the influence of Alexander Hamilton, it seems
sacrilegious to liken Jefferson's motives in supporting certain phases of French policy with
Communist allegiance to the Kremlin.
[Footnote 3/5]
Changes as decisive as those wrought by most revolutions resulted from the election of
Jefferson in 1800, Jackson in 1828, Lincoln in 1860, and Roosevelt in 1932.
[Footnote 3/6]
I have taken pains to point out that the whole doctrine of conspiracy and its abuse
presents a danger to the fair administration of justice. Concurring opinion, Krulewitch v.
United States, 336 U. S. 440, 336 U. S. 445.
[Footnote 3/7]
See cases collected in Thomas v. Collins, 323 U. S. 516, 323 U. S. 548.
[Footnote 3/8]
The Act lays down other requirements for the oath which do not require extended
discussion, as, for example, the clause "is not a member of or supports any organization
that believes in or teaches, the overthrow of the United States Government by force." For
reasons set forth in parts I and II, Congress would undoubtedly have power to require
disclosure of membership in an organization which had the characteristics of the
Communist Party or other characteristics of similar gravity. As drawn, this clause might,
however, apply to membership in a mere philosophical or discussion group.
[Footnote 3/9]
This part of the oath was obviously intended to disclose persons not members of or
affiliated with the Communist Party but who were a part of the undertow of the Communist
movement. It was probably suggested by the longstanding requirement of somewhat
similar oaths in immigration and naturalization matters. There is, however, no analogy
between what Congress may require of aliens as a condition of admission or of citizenship
and what it may require of a citizen.
[Footnote 3/10]
See Holmes, The Common Law, Lectures II, III and IV, pp. 668, 132 et seq.
[Footnote 3/11]
Nothing is more pernicious than the idea that every radical measure is "Communistic" or
every liberal-minded person a "Communist." One of the tragedies of our time is the
confusion between reform and Communism -- a confusion to which both the friends and
enemies of reform have contributed, the one by failing to take a clear stand against
Communists and Communism, and the other by characterizing even the most moderate
suggestion of reform as "Communistic," and its advocates as "Communists."
Unquestioning idolatry of the status quo has never been an American characteristic.
[Footnote 3/12]
A surprising catalogue of statements could be compiled. The following are selected from
Mencken, A New Dictionary of Quotations, under the rubric "Revolution":
"Whenever any government becomes destructive of these ends [life, liberty and the pursuit
of happiness], it is the right of the people to alter or abolish it, and to institute a new
government, laying its foundations on such principles, and organizing its powers in such
form, as to them shall seem most likely to effect their safety and happiness."
Thomas Jefferson, The Declaration of Independence, July 4, 1776.
"The community hath an indubitable, inalienable, and indefeasible right to reform, alter or
abolish government, in such manner as shall be by that community judged most conducive
to the public weal."
The Pennsylvania Declaration of Rights, 1776.
"It is an observation of one of the profoundest inquirers into human affairs that a revolution
of government is the strongest proof that can be given by a people of their virtue and good
sense."
John Adams, Diary, 1786.
"What country can preserve its liberties if their rulers are not warned from time to time that
their people preserve the spirit of resistance? Let them take arms."
Thomas Jefferson, Letter to W. S. Smith, Nov. 13, 1787. "An oppressed people are
authorized whenever they can to rise and break their fetters." Henry Clay, Speech in the
House of Representatives, March 4, 1818.
"Any people anywhere, being inclined and having the power, have the right to rise up and
shake off the existing government and form a new one that suits them better."
Abraham Lincoln, Speech in the House of Representatives, 1848.
"All men recognize the right of revolution: that is, the right to refuse allegiance to, and to
resist, the government when its tyranny or its inefficiency are great and unendurable."
H. D. Thoreau, An Essay on Civil Disobedience, 1849.
~Page 92 of 96~
"This country, with its institutions, belongs to the people who inhabit it. Whenever they
shall grow weary of the existing government, they can exercise their constitutional right of
amending it, or their revolutionary right to dismember or overthrow it."
Abraham Lincoln, Inaugural Address, March 4, 1861.
"Whenever the ends of government are perverted, and public liberty manifestly
endangered, and all other means of redress are ineffectual, the people may, and of a right
ought to, reform the old or establish a new government; the doctrine of nonresistance
against arbitrary power and oppression is absurd, slavish and destructive of the good and
happiness of mankind."
Declaration of Rights of Maryland, 1867.
"The right of revolution is an inherent one. When people are oppressed by their
government, it is a natural right they enjoy to relieve themselves of the oppression, if they
are strong enough, either by withdrawal from it or by overthrowing it and substituting a
government more acceptable."
U.S. Grant, Personal Memoirs, I, 1885.
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.
[Footnote 3/13]
Prime Minister Attlee recently stated:
"I constantly get hypocritical resolutions protesting against alleged infringements of
freedom in this country. I get protests because we keep out from places where secret work
is carried on people who cannot be trusted. This from Communists who know that their
fellows in Communist countries carry on a constant purge and ruthlessly remove from
office anyone who shows the slightest sign of deviating from what their rulers consider to
be orthodoxy. It is sickening hypocrisy."
London Times Weekly Edition, July 6, 1949.
[Footnote 3/14]
The Court appears to recognize and compound the constitutional weakness of this statute
and, to save this part of the oath from unconstitutionality, declines to read the text "very
literally." It renders the Act to call for disclaimer of belief in forcible overthrow only as an
objective, but not as a prophecy. And, furthermore, one is allowed to believe in forcible
overthrow, even as an objective, so long as the belief does not relate to the Government
"as it now exists." I think we do not make an Act constitutional by making it vague, but only
compound its invalidity. Cf. Winters v. New York, 333 U. S. 507.
[Footnote 3/15]
This conclusion, if it prevailed, would require decision of the effect of partial invalidity on
the whole and the applicability of the severability clause. As it does not prevail, discussion
of the question would be academic.
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. [Footnote 4/1]"
But people can be, and, in less democratic countries, have
Page 339 U. S. 446
been, made to suffer for their admitted or conjectured thoughts. Blackstone recalls that
Dionysius is
"recorded to have executed a subject barely for dreaming that he had killed him, which
was held for a sufficient proof that he had thought thereof in his waking hours. [ Footnote
4/2]"
Such a result, while too barbaric to be tolerated in our nation, is not illogical if a
government can tamper in the realm of thought and penalize "belief" on the ground that it
might lead to illegal conduct. Individual freedom and governmental thought-probing cannot
live together. As the Court admits even today, under the First Amendment, "Beliefs are
inviolate."
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
Page 339 U. S. 447
to utilize the test oath as a weapon. History attests the efficacy of that instrument for
inflicting penalties and disabilities on obnoxious minorities. It was one of the major devices
used against the Huguenots in France, and against "heretics" during the Spanish
~Page 93 of 96~
Inquisition. It helped English rulers identify and outlaw Catholics, Quakers, Baptists, and
Congregationalists -- groups considered dangerous for political as well as religious
reasons. [Footnote 4/3] And wherever the test oath was in vogue, spies and informers
found rewards far more tempting than truth. [Footnote 4/4] Painful awareness of the evils
of thought espionage made
Page 339 U. S. 448
such oaths "an abomination to the founders of this nation," In re Summers, 325 U. S.
561, 325 U. S. 576, dissenting opinion. Whether religious, political, or both, test oaths are
implacable foes of free thought. By approving their imposition, this Court has injected
compromise into a field where the First Amendment forbids compromise.
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
Page 339 U. S. 449
all those who have ever been associated with any member of the group under attack or
who hold a view which, though supported by reversed Americans as essential to
democracy, has been adopted by that group for its own purposes.
Under such circumstances, restrictions imposed on proscribed groups are seldom static,
[Footnote 4/5] even though the rate of expansion may not move in geometric progression
from discrimination to arm-band to ghetto and worse. Thus, I cannot regard the Court's
holding as one which merely bars Communists from holding union office, and nothing
more. For its reasoning would apply just as forcibly to statutes barring Communists and
their suspected sympathizers from election to political office, mere membership in unions,
and, in fact, from getting or holding any jobs whereby they could earn a living.
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
Page 339 U. S. 450
strikes" is held sufficient to uphold a law coercing union members not to elect any
Communist as an officer. Under this reasoning, affiliations with other political parties could
be proscribed just as validly. Of course, there is no practical possibility that either major
political party would turn this weapon on the other, even though members of one party
were accused of "political lockouts" a few years ago and members of the other are now
charged with fostering a "welfare state" alien to our system. But with minor parties, the
possibility is not wholly fanciful. One, for instance, advocates socialism; [Footnote 4/6]
another allegedly follows the Communist "line"; still another is repeatedly charged with a
desire and purpose to deprive Negroes of equal job opportunities. Under today's opinion,
Congress could validly bar all members of these parties from officership in unions or
industrial corporations; the only showing required would be testimony that some members
in such positions had, by attempts to further their party's purposes, unjustifiably fostered
industrial strife which hampered interstate commerce.
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
Page 339 U. S. 451
religion. [Footnote 4/7] Yet, in the hour of crisis, an overwhelming majority of the English
Catholics thus persecuted rallied loyally to defend their homeland against Spain and its
Catholic troops. [Footnote 4/8] And in our own country, Jefferson and his followers were
earnestly accused of subversive allegiance to France. [Footnote 4/9] At the time,
imposition of civil disability on all members of his political party must have seemed at least
as desirable as does 9(h) today. For at stake, so many believed, was the survival of a
newly founded nation, not merely a few potential interruptions of commerce by strikes
"political", rather than economic, in origin.
Page 339 U. S. 452
These experiences underline the wisdom of the basic constitutional precept that penalties
should be imposed only for a person's own conduct, not for his beliefs or for the conduct of
others with whom he may associate. Guilt should not be imputed solely from association or
affiliation with political parties or any other organization, however much we abhor the ideas
which they advocate. Schneiderman v. United States, 320 U. S. 118, 320 U. S. 136-139.
[Footnote 4/10] Like anyone else, individual Communists who commit overt acts in
violation of valid laws can and should be punished. But the postulate of the First
Amendment is that our free institutions can be maintained without proscribing or penalizing
political belief, speech, press, assembly, or party affiliation. [Footnote 4/11] This is a far
bolder philosophy
Page 339 U. S. 453
than despotic rulers can afford to follow. It is the heart of the system on which our freedom
depends.
Fears of alien ideologies have frequently agitated the nation and inspired legislation aimed
at suppressing advocacy of those ideologies. [Footnote 4/12] At such times, the fog of
public excitement obscures the ancient landmarks set up in our Bill of Rights. Yet then, of
all times, should this Court adhere most closely to the course they mark. This was done
in De Jones v. Oregon, 299 U. S. 353, 299 U. S. 365, where the Court struck down a state
~Page 94 of 96~
statute making it a crime to participate in a meeting conducted by Communists. It had
been stipulated that the Communist Party advocated violent overthrow of the Government.
Speaking through Chief Justice Hughes, a unanimous Court calmly announced time-
honored principles that should govern this Court today:
"The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and free assembly in
order to maintain the opportunity for free political discussion, to the end that government
may be responsive to the will of the people and that changes, if desired, may be obtained
by peaceful means. Therein lies the security of the Republic, the very foundation of
constitutional government."
[Footnote 4/1]
Dissenting opinion in Jones v. Opelika, 316 U. S. 584, 316 U. S. 618, adopted as the
Court's opinion in 319 U. S. 103. See also Cantwell v. Connecticut, 310 U. S. 296, 310 U.
S. 303.
[Footnote 4/2]
4 Blackstone, Commentaries 79 (6th ed. Dublin 1775).
[Footnote 4/3]
The increasing restrictions and punishment imposed on these groups are shown by the
following examples. In 1558, Parliament prescribed an oath, which no conscientious
Catholic could take, for all judges, ecclesiastical ministers, those receiving pay from the
Queen, and those taking university degrees; four years later, the oath was extended to
schoolmasters, lawyers, sheriffs, and court officers. In 1593, all Protestants were required
to attend Anglican services and forbidden to hold nonconformist religious meetings. And
Catholics convicted of failing to attend Anglican services regularly were restricted to within
five miles of their dwellings. In 1609, such Catholics were barred even from serving as
executors, guardians, physicians, or apothecaries, and their right to prosecute suits in
court was practically abolished; it was also made treason to be converted or convert
anyone else to Catholicism. Between 1661 and 1677, Parliament outlawed attendance at
any non-Anglican religious services, and required those holding civil, military, or municipal
office to subscribe to an oath which effectively barred Catholics and non-Anglican
Protestants. Punishment for violations of these and the many similar statutes ranged from
fines and imprisonment to exile and death. See, e.g., 1 Eliz. c. 1; 5 Eliz. c. 1; 35 Eliz. cc. 1,
2; 3 Jac. I cc. 4, 5; 7 Jac. I cc. 2, 6; 13 Car. II Stat. 2, c. 1; 13 & 14 Car. II cc. 1, 4, 33; 22
Car. II c. 1; 25 Car. II c. 2; 30 Car. II Stat. 2.
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.
[Footnote 4/4]
Under the Stuart monarchs in England, it was standard practice to give an informer one-
third of the fines collected from his victim. E.g., 3 Jac. I c. 5. And a few were sufficiently
daring and unscrupulous to obtain the more satisfying reward of fame. A notorious
example took place in England during the reign of Charles II:
"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.
[Footnote 4/5]
See note 3 supra. And see the comment on such legislation in 2 Hallam, The
Constitutional History of England 473 (London, 1829):
"It is the natural consequence of restrictive laws to aggravate the disaffection which has
served as their pretext, and thus to create a necessity for a legislature that will not retrace
its steps, to pass still onward in the course of severity."
[Footnote 4/6]
Proscriptions based on affiliation with the Socialist Party are not unprecedented. In 1920,
the New York Assembly, upon allegations that the party was disloyal, suspended five
legislators elected on the Socialist ticket. The vigorous protests of a Bar Association
committee headed by Charles Evans Hughes, later Chief Justice of this Court, were of no
avail. See John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592,
593.
[Footnote 4/7]
35 Eliz. c. 2, for example, was aimed at
"sundry wicked and seditious Persons, who terming themselves Catholicks, and being
indeed Spies and Intelligencers, . . . and hiding their most detestable and devilish
Purposes under a false Pretext of Religion and Conscience, do secretly wander and shift
from Place to Place within this Realm, to corrupt and seduce her Majesty's Subjects, and
to stir them to Sedition and Rebellion."
[Footnote 4/8]
As is evidenced by the statute quoted in note 7 supra, the test oaths, the drastic
restrictions and the punishment imposed on Catholics were
"based on the assumption that all Catholics were politically hostile to the Queen, and were
at one with Allen and the Jesuits in seeking her deposition and the conquest of the country
by Spain. The patriotic action of the Catholics at home through the crisis of the Spanish
Armada proved the weakness of this assumption. In the hour of peril the English Catholics
placed loyalty to their Queen and country before all other considerations. . . . The injustice
of imputing treachery to the whole Catholic population was proved beyond question."
3 Cambridge Modern History 351.
[Footnote 4/9]
Castigating Jefferson and his followers as "jacobins," a "French faction" guilty of
"subversion," Fisher Ames warned:
~Page 95 of 96~
"[T]he jacobins have at last made their own discipline perfect: they are trained, officered,
regimented and formed to subordination, in a manner that our militia have never yet
equalled. . . . [A]nd it is as certain as any future event can be, that they will take arms
against the laws as soon as they dare. . . ."
Ames, Laocoon, printed in Works of Fisher Ames 94, 101, 106 (Boston, 1809).
[Footnote 4/10]
And see, e.g., John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev.
592. That article quotes the following from a Memorial submitted to the New York
Assembly by a special committee of the Bar Association of the City of New York protesting
the suspension of five Socialist legislators:
"it is of the essence of the institutions of liberty that it be recognized that guilt is personal
and cannot be attributed to the holding of opinion or to mere intent, in the absence of overt
acts. . . ."
O'Brian points out that this Memorial was "largely written by" Charles Evans Hughes. Id. at
594.
[Footnote 4/11]
"If there be any among us who would wish to dissolve this Union or to change its
republican form, let them stand undisturbed as monuments of the safety with which error
of opinion may be tolerated where reason is left free to combat it. I know, indeed, that
some honest men fear that a republican government cannot be strong; that this
government is not strong enough. But would the honest patriot, in the full tide of successful
experiment, abandon a government which has so far kept us free and firm on the theoretic
and visionary fear that this government, the world's best hope, may by possibility want
energy to preserve itself?"
Thomas Jefferson, First Inaugural Address, March 4, 1801. This address, along with other
writings on freedoms guaranteed by the First Amendment, is reprinted in Jones, Primer of
Intellectual Freedom 142 (Harvard University Press, 1949).
[Footnote 4/12]
For discussion of early American models, the Alien and Sedition Acts, see Bowers,
Jefferson and Hamilton, 1925, c. XVI, "Hysterics," and c. XVII, "The Reign of Terror"; 1
Morison, Life of Otis, c. VIII, "A System of Terror."
Reference
https://supreme.justia.com/cases/federal/us/339/382/case.html
Disclaimer: Official Supreme Court case law is only found in the print version of the
United States Reports. Justia case law is provided for general informational purposes only,
and may not reflect current legal developments, verdicts or settlements. We make no
warranties or guarantees about the accuracy, completeness, or adequacy of the
information contained on this site or information linked to from this site. Please check
official sources.
~Page 96 of 96~