Brief Amicus Curiae — United States v. Brown

Supreme Court brief1965

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Text

_: ne ‘ 4 LED.

MAR 6 1965

ee the Sepeinin Gout DAVIS, CLERK |

United States

_ OctorER Term, 1964

No. 399

Untrep States or AMERICA, a

_ Petitioner;

_ VS.

ARCHIE Brown,

Respondent. |

- BRIEF AMICI CURIAE ON BEHALF OF THE AMERICAN CIVIL

"LIBERTIES UNION OF: NORTHERN CALIFORNIA AND

THE AMERICAN CIVIL LIBERTIES UNION

MARSHALL W. KRAUSE,

Staff Counsel, American Civil. Liberties Union

of Northern California,

LAURENT B. FRANTZ,

. 503 Market Street,

Ps San Francisco, California 94105,

-Metvin L. WoLrF,

156 Fifth Avenue,

New York, New York,

Attorneys for Amici Curiae.

PERNAU-WALSH PRINTING CO., SAN FRANCISCO, CALIFORNIA

I. , . Page

SS eer errr NA ey oT

II.

Statute involved ......-. Cheeks bese cuehesavveseseeanseust 2

: es

» Statement of the case ...... ccc cece ee cece eee t rete eeees 4

Section 504 is not saved from unconstitutionality by Ameri-

can Communications Association v. Douds because that case

is ungognd and this court has not followed its reasoning . 7

- Vz.

Section 504 is a bill of attainder both on ‘its face ma as

applied to respondent in this CRBC 2. ole cc ccecivecccscess 14

A. The meaning and background of bill of eddie. 14

B. Section 504 is a bill of _attainder on its face wads —

-applied in this ease ...... parses see phusataeces ss 19

: VI.

Conclusion 2... cece gece cecccceccstwnccescccccverecccess 24

Table of Authorities Cited

Cases | Pages

American Communications . moneanenes v. Douds, 339 U.S.

Gee errr rT fret hee ee 2, 5, 7, 8, 9, 11, 13

.Aptheker v. Secretary of State, 378. U. Bs wae vdes 7,11, 12,13

Brotherhood of RR Trainmen v. Virginia, 377 US. 1, 12-

L.Ed. ME recess dene niece sas eheuye sens ¥ es 13

Brown v. United States, 334 F.2d 488........--++++: Orr 6, 10

Cummings v. Missouri, 4 Wall. (71 US.) Sa 14, 16

‘De Veau y. Braisted, 363 U.S. 144.......- ress elec 23,

Ex Parte Garland, 4 Wall. (71 U.S.) 333.-.......----- 16, 18, 20

Ex Parte Law, 15 Fed. Cas. 3, No. 8126.......6.----2e0> 14, 16

Flemming v.+Nestor, 363 US. ere finieene eens caces ae

rte eee ALE LIE SLL AE CML . c onars ponent iT ALL AAT Ee

li Tasie or AUTHORITIES CrrzeD ©

Pages

In re Baxter, 2 Fed. Cas. 1043, No. 1118 (D.C. Tenn. 1866) =

In re Shorter, 22 Fed. Cas. 16, No. 12811 (D.C. Ala. 1865) .

_ Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123.. 22.

Lovett v. United States, 328 U.S. ee a, ge are 18, 21, 22

Mobile, J. & K.C. R. Co. v. Turnipseed, 219 US. 35... 10

NAACP y. Alabama; 357 U.S. 449........ Seucceute eticae:) ae

~ NAACP v. Button, 371 U.S. 415. ..... 2.2 eee ee eee renee 10.

Noto v. United States, 367 U.S. 290........-- seleseees .10, 11, 15

Renaud v. Abbott, 116 U.S. 277........-. cweekerenseneds 10

Seales v. United States, 367 U.S..203..... De eureniid hanes 11, 13

Schware v. Board of Bar Examiners, 353 U.S. 232........ 10,13

Steele vy. Louisville & Nashville RR Co., 323 U.S. 192...... 12

Trop v. Dulles, 356 U.S. 86.......-- Fie itees aaateowes 22

Wieman v. Updegraff, 334 U.S. 183 eedne BRE maine 8 Ce eeeee 12

Yates v. United States, 354 U.S. 298......:..-.-.- ee eee 11,13

Statutes

Labor-Management Relations Act of 1947: |

29 U.S.C. 150(h) ....-vc00e' iivieneepewed «e abs e a 5

29 U.S.C. 402(i) and (j) Canvanbaeaen Fe mre rye

29 US.C. Re eer es ces evens . 2, 5, 11, 19, 20, 21, 23, 24

12 Stat. 502 (1862) repealed, 23 Stat. 22 (1884) ....:..... 15

! Emergency Appropriations Act of 1943 (57 Stat. 431, 450), :

ee TOE Ooi cvacodecsscesstucacedeetsveeavcostvree’ 18

Labor-Management Reporting and Disclosure Act of 1959

(73 Btkt. GID) ...ccvevcscecgeccccccyescesscccscvsees ;

af Constitutions «

United States Constitution, Article I, Section 9, Clause3.. 14

| Texts

Annotation, What Constitutes Bill of Attainder Under the

Federal Constitution, 90 L.Ed. 1267, 1268-1270 ......-:..

Cooley,” Constitutional Limitations (8th Edition), 297, 547 14

II Henning (Va.) Statutes at Large 373-374 Rabe eeRe Rea 15

- JI Story, The Constitution, 210-211 ..... cae ons ieee 15

Macaulay’s Essays (New York 1869), p. 668 ............. -

ee &

Pnited States

In the Supreme Court

Ocroser Term, 1964 ?

—

No. 399

Unirep Staves oF AMERICA, i

oe Petitioner,

VS.

ARCHIE BRowN,

Respondent. |

2s rn

BRIEF AMICI CURIAE ON BEHALF OF THE AMERICAN CIVIL

- LIBERTIES UNION OF NORTHERN CALIFORNIA AND

THE AMERICAN CIVIL LIBERTIES UNION |

ee an :

orm OF AMICI

The American Civil Liberties Union and its North-

ern California affiliate file this brief pursuant to per-

_ mission eranted by the parties and filed with the Clerk. -

of this Court. The Union has an enduring interest in

euarding through legal action and other appropriate,

ee”

3 ~

" means tthe guaranices of individual liberty set forth

-in the Constitution of the United States. The Union

believes that the Act of Congress here in question, by ©

narrowing the political and social liberties of the

members of an admittedly lawful political association ,

through a generalized finding of evil intent, is a

_ dangerous threat to political freedom. ,

The statute seeks to partition off from a small

minority the full guarantee of freedom of speech’ and

‘association, the guarantee that liberty will not be taken

without due process of law, and sé¢eks to put members

—of the group under the sweep of a bill of attainder.

The ACLU has never believed that the preservation ;

of: the liberties of the majority requires ' protection

.from,the ideas and advocacy of those who would

change our. system of government. For these reasons,

we joined many petitioners in asking’ this Court to

find unconstitutional the oath requirement considered

in American Communications Association v. Douds,

339 U.S. 382, and we now ask that the criminal penalty ©

. herein question be held void.” —— |

_ STATUTE INVOLVED

29-0 S.C. § 504. ' Prohibition against, certain “per-

sons holding office; violations and penalties.

(a) No person who is or has been a member of the

Communist Party or who ‘has been convicted of, or

served any part of a prison term resulting from his

ene

conviction of, robbery, bribery, ‘extortion, embezzle-

ment, grand larceny, burglary, arson, violation ‘of

narcotics laws, murder, rape, assault with intent to

kill, assault which inflicts grievous bodily injury, or

a violation of subchapter EII or IV of this chapter,

or conspiracy to commit any such crimes, shall serve—

(1) as an officer, director, trustee, member of any

: executive board or similar governing body, busi-

ness agent; manager, organizer, or other employee

(other than as an employee performing exclu-

sively clerical or: custodial duties) of any labor

organization, or

(2) as a labor relations consultant to a person

engaged in an industry or activity affecting com-.

‘merce,’ or as an officer, director, agent, or em-

ployee (other than as an employee performing |

exclusively clerical or custodial duties) of any

group or association of employers oo —

any labor organization, Bs

‘during or for five years after the tevtainattbin of his

membership in the Communist Party, or for five years .

after such conviction or: after the end of such im-

prisonment, unless prior to the end of- such five-year

period, in the case of a person so convicted or im-_

prisoned, (A) his citizenship rights, having been re-

voked as a result. of such conviction, have been fully

restored, or (B) the Boaid of Parole of the United

States Department of Justice determines that such

-person’s service in any capacity referred to in clause

mes) or (2) would not be contrary to the — of

4 .

this chapter. Prior to making any such determination

the Board shall hold an administrative hearing and.

shall give notice of such proceeding by certified. mail

' to the State, County, and Federal prosecuting officials

". in the jurisdiction or jurisdiegions in which such per-

son was convicted. The Board’s determination’ in any

such proceeding shall be final. No labor organization

: or officer thereof. shall knowingly permit. any person

to assume or hold any office or _ position in viola-

tion of this subsection. |

(b) “Any person who willfully violates this nda :

shall be fined not more than $10,000 or imprisoned for

not more than one year, or both.

shall be deemed to have been ‘‘convicted’’ and under

- the disability of ‘‘conviction” from the date of the.

judgment of the trial court or the date of the final |

sustaining of such, judgment on appeal, whichever is

the later event, regardless of whether such conviction

occurred before or after — 14, 1959.

pas

im... .

STATEMENT OF THE CASE .

This ‘case is. the first application the provision of

the Labor-Management Reporting and Disclosure Act

of 1959 (73 Stat. 519) which forbids Communist

- Party members, and ex-Party members before the ex-

piration of a five-year period, from serving as officers

or, exceptiin clerical or custodial positions, employees

of a “labor organization’ or group of “employers

dealing with a labor organization, or from serving as

‘a labor relations consultant to a person engaged in an

industry or activity “affecting commerce,” 29 U.S.C.

The récord shows without dispute that the respond-

ent, Archie Brown, has ‘openly. heen a- member of the

Communist Party for many years. Nor is it disputed

that Brown served as a membet of the 35-man Execu-

tive Board of Local 10 of the International Long- ©

shoremen’s .and °Warehousemen’s Union and that’.

these two statuses co-existed during the period meh-

_ tidned in the indictment. It was just this co-existence

which Congress sought to discourage by the ‘now-

a repealed non-Communist affidavit provision of the

‘ Labor-Management Relations Act of 1947 (29. USC.

159 [h]), and which Congress. now seeks to punish

by 29 U.S.C. 504. The legislative purpose of these

. laws, assuming that Section 504 may be considered

as a replacement for Section 159(ht), .was found

by. this Court in Anverican Communications Associ-

ation v. Douds, 339 U.S. 382 (1950), to be protection

against the danger that Communist Party members |

would be able to disrupt interstate commerce in times:

of emergency by precipitating or encouraging strikes ,

for political reasons.”

‘The term is broadly defiried by 29 U.S.C. 402(i) and 43).

2We submit that the government has overstated the_case in

suggesting in its. opening brief (p. 8) that either Section 159(h)

or Section.504 could “eliminate the. danger of ‘political ‘strikes’ by

keeping from union leadership the class of persons who would be»

likely to engage in such. disruptive activity’... .” (Emphasis

- added.)

ee ee ee

‘Though respondcut received a jury trial and did not ~~~

- admit or stipulate to the fruth of the facts charged in

_ the indictment, there were no disputed questions of fact

for the jury to decide since respondent’s individual at-

titudes were not in issue and neither was the question

- -- of his ability to abuse his power as a member of the

_ Executive Board.* By a motion to dismiss (R. 3-5) and

' motion in arrest of judgment (R. 19) respondent

raised the issue of the validity of the statute claiming,

. _ inter alia, that it was a bill of attainder, abridged his

right to freedom of speech, press and association, and

deprived him of due process of law. The motions were

denied and respondent was convicted, but his convic-

tion was reversed’ on appeal by the Court-of Appeals _

for .the Ninth Circuit (Brown v. United States, 334

F.2d 488). ‘That court. found the statute an ‘‘unreason-

ably broad” restraint on freedom of association and.

‘‘so wholly lacking in notice of the constitutionally

! essential components of the crime that: it cannot be |

judicially narrowed.” Thus it held Section 504 void —

as in conflict with the First and Fifth Amendments. —

3Nor was.the power of respondent’ $ union to disrupt commerce

in times of emergency made ‘an issue. The proscription of the

statute evidently applies just as forcefully to Local 10 of the Des

Moines Harness Makers’ Union as it does to the International

Atomic Workers’ Union, so long as both are “labor organizations”

(oe note 1, ere)

’ IV.

° af :

SECTION 504 IS NOT SAVED FROM UNCONSTITUTIONALITY

BY AMERICAN COMMUNICATIONS ASSOCIATION v. DOUDS

BECAUSE THAT CASE IS UNSOUND AND THIS COURT HAS

NOT POLLOWED ITS REASONING.

This case, should the statute be upheld, would go

further than American Communications Association

-v. Douds, 339 U.S.-382. Discouraging unions. from

choosing officers with.Communist affiliations is less

drastic than prohibiting their election, as this Court

has pointed out. Aptheker v. Secretary of State, 378 -

‘ U.S. 500,/512-513, n. 11. Furthermore, the Douds .

reasoning proceeds from the express assumption that

. the persons affected “have the will; and power’ to

call political strikes ‘‘w ithout advocacy or ‘persuasion

| .” 339 U.S. at 396. This assumption was basic to

the Douds line of reasoning, since it was the basis

for the Court’s conclusion that the statute was

aimed at force, not speech, which made the clear -

-and present danger -test inapplicable. ‘Congress was -

moving agains: ‘‘substantial evils of conduct that

are not the product of speech at alJ.” Ibid. The statute

we now deal with is not. limited to persons: who occupy

positions of power; indeed respondent. occupies no

such’ position. If he desired a political strike he could ;

not ‘‘call’’ one ‘‘without advocacy or persuasion”? or

. at all. He could: bring one about only by convincing

other members of the Executive Board and, even then,

the Board’s action would be subject to review and _re-

jection by the membership.

Nevertheless, since the government contends that

Douds controls, we believe it appropriate to argue

that the Douds decision is unsound, that its authority

has been greatly undermined, if not destroyed, by this

Court’s subsequent decisions, and that it ‘should now

be overruled.

There is, howéver, a more fundamental reason why

amici curiae make this argument. Douds is not merely

a precedent in the ordinary sense. It is the bedrock |

case which legitir ited a pernicious process of reason-

ing. This process starts with an assertion about the

characteristics, the propensities, the intentions of a

~ group. Individuals are then made to suffer restrictions

of their freedom, or other harm, which can be ex-

plained only on the theory that they personally have

these characteristics, propensities, or intentions. Yet

no. proof of individual possession of these qualities: is -

required. No refutation of it is ordinarily permitted.

‘Membership alone is sufficient to bring the individual

within the blanket condemnation of the stereotype.‘

-- It is only on the basis of such thinking that it

‘would, be possible to conclude, either ‘in the Douds

ease or in this one, that evidence that some commu-

nists have ‘used union office to promote political

4Compare Macaulay’s Essays ( New York 1869) p. 668: “A

man who should act, for one day, on the supposition that al! the

people about him were influenced by the religion which they

profess, would find himself ruined before night; and no man ever

does act, on that supposition in any of the ordinary concerns of

life, in borrowing, in ‘lending, jin buying,. or in selling. But when

any of our fellow ereatures are to be oppressed, the case is dif-

ferent. Then we represent those motives, which we know to be

so feeble for good, as omnipotent for evil. Then we lay to the -

charge of our victinis all the vices and follies to which their doc-

trines, however remotely, seem to tend. We forget that the same

weakness, the same laxity, the same disposition to prefer the

“ present to the future, which make men worse than a good religion,

: make them better than a bad one.”

strikes justifies barring all communists from all union

offices or positions.

The Douds Court expressly stated that commu-

_ nists ‘‘earry on legitimate activities,” 339 U.S. 382,

393. But it did not face the fact that this precludes

holding an individual responsible for illegitimate ac-_

tivity on the mere showing of membership. The Douds

opinion does not treat Communist Party members as

individuals, each having his own characteristics and

- each entitled to be judged on his own merits- and

record. It treats them as fungibles. It is sufficient

that Congress has come to conclusions about what

“they” (i.e., communists generally) ‘‘have done and

are likely to do again.”’ Id. at 396." —

Virtually every threatened or accomplished limita-

tion of our constitutional liberties for the. past 15

years’ has employed this process for its justifica-

tion. It is likely to continue to haunt us (and not _

only in cases involving communists) until this Court

erapples with the Douds case, not by limiting or

qualifying or distinguishing it, but by recognizing

and repudiating its pasic fallacy.

The corrosive reasoning process which Douds legiti-

mized is at the heart of 29 U.S.C. 504.-It subjects

respondent to penalties which can be justified only if

he is a man whose propensity for indulging in politi-

eal strikes, or his intention’ to do so, makes him a

person whose officership in a labor union would he too

dangerous to be tolerated. Without this, the conduct -

for which he is being prosecuted is not pertinent to-

any substantive evil which Congress has a right to.

prevent or punish. Without this, there is no ‘‘substan-

tial regulatory interest” which, even under the balane-

ing test, could justify restricting respondent’s free-

dom of association. NAACP v. Button, 371 U.S. 415,

444, Yet this indispensable premise had not been

proved by any evidence addressed to respondent’s

personal qualities and record. Neither this premise,

nor the blanket assertion from which it was derived,

has been proved in any proceeding to which he was a

party. Cf. Noto v. United States, 367 U.S. 290, 299;

Yates v. United States, 354 U.S. 298, 330; Renaud v.

Abbott, 116 U.S. 277, 288. Nor was respondent given

the opportunity to rebut either assertion. Cf. Mobile,

J. & K.C. R. Co. v. Turnipseed, 219 U.S. 35, 43.°

Fortunately, since, 1950 the Douds principle that

Communist Party members may be treated as fun-

- gibles has been departed from in case after case. Thus.

this Court has recognized that, assuming that some

members of ‘the Communist Party had. illegal aims

and engaged in illegal activities, ‘‘it cannot automati-— |

cally be inferred that all members shared their evil

purposes or participated in their unlawful conduct.’’ |

Schware v. Board of Bar Examiners, 353 U.S. 232,

246. This is directly contrary to Douds and’ means

that the evidence Congress heard about some commu-

nists engaging in poiitical strikes could not ipso facto

justify its conclusion that each and every communist |

is unfit for union. office.

5Respondent’ s effort to sinies rebuttal evidenee was rebuffed

by the trial Court, Brown v. United States, 334 F.2d 488, foot-

note 4, and the statute does not appear to make this matter

pertinent. .

If specifié intent to overthrow the government can-

not be deemed proved bya showing of mere member-

ship or holding of office in the Communist Party,

Yates v. United States, 354 U.S. 298, 331, can ‘intent

to engage in political strikes be so proved? And can

criminal punishment or a deprivation of constitutional

rights be justified without proof of such specific in-

tent?

In Scales v. United States, 367 U.S. 208, 224-225,

due process was held to require that the-relationship

hetween the conduct or status punished and the -ac-

tivity justifying regulation ‘‘must be sufficiently sub-

stantial to satisfy the concept of ‘personal guilt . . .”

Clearly Section 504 does not meet that —__:

- Scales also recognized that a blanket prohibition of

association with an organization hayi ing both legal and

- illegal aims would endanger legitimate expression and

association and that the statute must not cut sé deep

‘as to punish the members for whom the organization

is a vehicle for the advancement of legitimate aims

and policies. Id. at 229-230. Neither under Section 504

nor in Douds was any: effort made to encompass any- |

thing: less than all members no matter what their aims

or commitments.°®

Finally, Aptheker v. Seer om of State, 378 U.S.

500, wove these strands together and demonstrated

that any deprivation of a constitutional right turning

on mere membership without requiring a further

®Noto v. United States, 367 U.S. 292, 299-300, warns against

punishing a person “for his adherence to lawful and constitu-

tionally protected purposes because of other and unprotected

purposes w hich he does not seins! share.” .

showing of “plainly relevant eamaldienalions such as

the individual’s*kniowledge, activity, commitment, and

purposes” (Id., 12 L.Ed. .2d at 1002) sweeps too ~

broadly and cannot stand. Such a law necessarily vio-

‘lates the principle that regulations founded upon as-

Sociation must be drawn with precision so that they °

will not punish or deter constitutionally’ lon ci

activities. : !

We are not impressed with the government ’s offort

to distinguish Aptheker on the ground that there is

a constitutional right to travel, but no constitutional -

. Tight to be a union officer ‘(Brief adh ‘the. United

ACiaatiien hie seen fit to clothe the: caidas

‘ representative with powers comparable to those

possessed by a legislative body*both to create.

and restrict the rights of those whom it repre-

sents .. .’’ Steele v. Louisville & Nashville RR

Co., 223 U. S. 192, 202. |

Is it possible that the right to participate in the

councils of an organization which has been given

quasi-governmental powers ove one ’s work and live-’

lihood is of less constitutipnal significance than the -

- right-to be 4 tourist? Whether or not there is any ab-

stract right to be a union officer, constitutional pro-

_ tection must extend tu one. whose exclusion from union

office by statute is based on unconstitutional standards.

See eee v. Updegraff, 334 — 183, 192."

"It may be noted that the dissenting justices in Aptheker took

the view that exclusion from union office imposed “more onerous

burdens” than exclusion from passport rights. Fadi U.S. 500, 527.

Respondent stands before this Court asserting

more than his own rights.“We must also consider

the rights of those members of Local 10 who elected

respondent to represent them on the Executive

Board, evidently ,.with knowledge of his affiliations.

The members of Local 10 have a First Amendment

3 right, to. consult with each -other and that Tight

“necessarily includes the right to select a spokesman

who could be expected to give. -the wisest counsel,”’ -

Brotherhood of RR Trainmen v. Virginia, 377 USS.

1; 12 L.Ed.2d 89, 93. True, the members of Local

10 are not parties to this proceeding. Respondent, how-

ever, is the ‘appropriate representative’’ since they

‘voted for him, and their rights, if not taken into ac-

count in this proceeding, ¢ carjnot be ‘‘effectively vindi-

cated”’ at all. NAACP v. Alabama, 357 U. S. 449, 459.

The process of reasoning legitimated in Douds

threatens the. gravest dangers, not only to. First |

_ Amendment freedoms, but to American standards of

justice. This process has been implicitly repudiated in

Schware, Yates, Scales, Noto, and now Aptheker, yet

it continues to be very influential and is likely to re-

main ‘so until Douds is overruled.

| V. |

SECTION 504 IS A BILL OF ATTAINDER BOTH ON ITS FACE AND

AS APRLIED TO RESPONDENT IN THIS CASE

A. The Meaning and Background of Bill of Attainder

~ Clause 3 of Section 9 of Article I of the United

States Constitution unqualifiedly forbids Congress to

pass a bill of attainder in the following words:

No bill of attainder or ex post facto law shall be

passed. .

Aithough attainder had the historical meaning of

punishment by death, the landmark case of Cummings

v. Missouri, 4 Wall. (71 U.S.) 277 indicated, at p. 323,

that its use in the Constitution was broader: -

A bill of attainder is a legislative act which in-

flicts punishment’ without a judicial trial. If the

punishment be’ less than death, the act is termed

a bill of pains and penalties. Within: the mean-

ing of the (onstitution, bills of attainder include

bills of pagns and peralties.

Bills of attainder were in common use in Great

_ Britian as a powerful and useful weapon against. ‘po-

- litical dissenters from eatly days, and they remained °

is use in England throughout the 17th and early 18th

centuries. Sec Ex Parte Laqw,.15 Fed. Cas. 3, No.

8126 (scholarly opinion by Erskine, J.); Cooley, Con-

stitutional Limitations (8th Edition), 297, 547. It wa’s’

not only the dread of attainders as used in England .

which. made the drafters of the Constitution absolutely

‘forbid their passage. Their pre-revolutionary wise in

the American colonies had made their provisions and

- : 15

reach familiar. A famous example is pe bill passed by

the General Assembly of ‘Virginia in 1676 inflicting

punishment on the principal leaders of Bacon’s re

bellion against Governor Berkeley which included

within the scope of the Act a large group of persons

who were stated to have aided and abetted the plotters.

See II Henning (Va.) Statutes at Large 373-374; II

Story, The Constitution, 210-211. Other examples of

American use of attainder will be found in Annoia-

tion, What Constitutes Bill of Attainder Under the

Federal Constitution, 90 L.Ed. 1267, 1268-1270.

._rhe first detailed discussion of the term ‘Bill of

Attainder” in the Federal Courts came in the period

immediately after the Civil War. During the recon- -

struction era, Congress and many ‘of the state. —

legislatures enacted statutes requiring, as 2 condition

precedent to the exercise of certain political or ¢ivil

privileges, the taking of an oath to the effect that an

1 . applicant had not participated in the ‘‘recent rebel-

-lion.’’ In some of these statutes participation was de-

fined so as to include, not only actual service in ‘the

Confederate armies, but also “sympathizing with” or

‘‘aiding’’ those forces.

Before the Suprenic Court rene tpon the con-’

stitutionality of this type of legislation, several chal- | :

lenges had arisen in the lower federal Courts. They

tested the validity of a statute providing that no

attorney could practice in the federal Courts without

taking a test oath. In three eases, the act of con-

cress imposing the test oath [12 Stat. 502 (1862) re-

pealed, 23 Stat. 22 (1884)] was held unconstitutional.

16 ;

In re Shorter, 22 Fed. Cas. 16, No. 12811 (D.C. Ala.

1865) ; Ex Parte Law, 15 Fed. Cas. 3, No. 8126 (D.C.

Ga. 1866); In re Baater, 2 Fed. Cas.. 1043» No. 1118 ©

(D.C.. Tenn. 1866). The Shorter and Law cases held

the oath to be void as enacting a bill of attainder; the

_. Baater case held the oath void as, inter alia, an ex

' post facto law and requiring self-incrimination.

In 1867 the Supreme Court in twin cases passed

upon the constitutionality of the previously cited

federal attorney’s test oath statute, Ex Parte Garland,

4 Wall. (71 U.S.) 333 and on the constitutionality of

the test oath clause of the Missouri Constitution.

Cummings v. Missouri, 4 Wall. (71 U.S.) 277. Cum-

~ mings v. Missouri was an appeal from a criminal

conviction of a priest who declined to take the test

oath reqi iired by the Missouri Constitution as a pre-

requisite to functioning in the State as attorney,

teacher, clergyman, eorporate official, or in various

other capacities. The: oath required individuals to

swear that they had nev ér engaged: in any past con-.

duct hostile to the United States, or expressed any

distoyal sentiments, or aided or abetted enemies of the

United States. . ;

The State of Missouri argued -in Cummings that this:

requirément did not constitute a bill of. attainder since..

it did not inflict any punishment. In support of this

contention it was urged that ‘‘to punish one is to de-

prive him of life, liberty, or property, and to take

from him anything less than this did not punish. him °

at all... .”-(4 Wall. at 320). This contention was

: effectively ‘tuted by the Court in an opinion point-

ing out that any deprivation of rights freely avail-

_ able to others, constituted a punishment. the Court’s .

opinion reads in part:

The learned counse} does not use e these terms—life,

liberty, and property—as comprehending every

right known to the law. He does not include under

liberty freedom from outrage of the feelings as

well as restraints on the person. He does not jn-

clude under property -those estates which one may

acquire in professions, though they are often the

sources of the highest -emoluments. and. honors.

The deprivation of. any rights, civil or political,

previously enjoyed, may be punishment, the cir- :

cumstances attending and the causes of the depri- .

vation determining this fact. Disqualification from

office may be punishment, as in cases of convie-

tion upon impeachment. Disqualification ~ from ~

pursuits of a lawful. avocation, or. from positions

of trust, or from the privilege of appearing in

courts, or acting as an executor, administrator,

or guardian, may also, and often has been, im-

posed as punishment. (Emphasis a arse es

a * *+* ©

The theory upon which our political institutions

rest is, that all men have certain inalienable -

rights—that among these are life, liberty, and

- the pursuit of happiness; and that in the pursuit

of happiness all avocations, all honors, all posi-

_ tions are alike open to everyone, and that in

the protection of these rights all are equal before

the law. Any deprivation or suspension of any of’

these rights for past conduct is punishment, and

can be in no otherwise — (Id. at pp. 321- |

322).

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‘Th the Garland cage the Court was ‘required to p

on the constitutionsity of the previously eited m1

excluding from practice athe federal: ‘Courts attor-

_neys who had not taken - an oath as“to their past

sar loyalty to the United States. The Court held that the

statute was ‘ unconstitittional agth bill of attainder,

. pointing out that deprivation of the liberty of prac-

ticing before the federal Courts could ‘be “regarded ?

- in nd other light aan 4 as punishment***”” Cf ‘Wall. vat

| Lovett V. United States; 308 U. S. 308, is the most

- recent application of ‘the bill of attainder prohibition.

e Section 304, of the Emergency Appropriations . Act of

funds the appropriated could be ‘used to - pay sal-

‘aries to three named individuals, As the Court stated,

the purpose of Section 30% was: .

#*#To “purge” tlie then existing and: all futon

lists of government employees of those whom °

“congress deemed guilty of ‘‘subversive activities”

and therefore “‘infit”” to hold a federal eg 328

US. 303, 314. Ea

It was argued that. Section 304 was not .a bill of at- |

tainder since it was merely. a means of effectuating

-Congress’ power to determine the conditions ef em”

‘ployment in thé federal government and that denial

ef such employmént did! not. constitute a “punish-

“ment.””- > “ a.

The holding of the Z ovett oad was' that dtere |

mination . of ‘unfitness’? to. hold federa] office? by °

legislative: finding of political. subversion constituted

at 328 U.S: 303,315,316: ~ - |. °°

| +... Legislative \acts, no matter What. their form,

that apply either to named individuals or ‘to

easily ascertainable member& of a group in such —

_ a way as to inflict punishment on then without

a judicial trial gre bills of attainder prohibited

by the constitution. ***Section 304 was designed

to apply to particular individuals.’ Just as the

statute in the two cases mentioned. [Cummings

and Garland] it ‘‘operates as ‘a legislative decree

of perpetual exclusion” from)a chosen voeation. -

This permanent proscription from any opportu-

nity to serve the government is punishment, -and

of a most severe type. — : o.

. , ; ‘ ; ee ff,

B. Section 504 Is: Bill of Attainder on Its Face and as Appliegs

We think that there can be little doubt that oné

who reads 29 U.S.C. Sec. 504 in the light of the

o. 1istorical background described above must. conclude

tet Cone has enacted a bill of attainder. The

statute: provides criminal penalties for persong’who -

are Communist Party members or have been mem-

bers during the paggpfive years. and who ‘hold of-

fice or employment 1 -unions or certain facets of .

a management.,It is true that’.one éan avoid the penal.

sanction,. but only at: the cost of undergoing aes

punishment, the loss of employment, or position , in

‘union or certain management ‘affaits. This pinish-

4 oO

ment is meted out by the legislative branch for ast

- eonduct, to wit: lawful political affiliation and nothing

more.: | Pea “ai

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e'. Santon the priest'in Cummings v. Missouri could

have avoided criminal liability by not preaching, re-

| spondent could have avoided criminal liability by

resigning from ‘his elected position. . Just as Congress“

- “was only punishing a suspected proclivity for future

misconduct | in government service in. United States v.

Lovett, Congress is. only: punishing a suspected pro-

elivity for political strikes i in interstate commerce in’

the instant case. Just’: as the attorney in Er Parte

Garland could not expunge his activities during the

Civil War, respondent could not expunge the fact that

heshad been a member of the Communist Party during

the five years preceding the enactment of Section 504.

In. those three cases, as in the instant. case, there was

a legislative finding as to ascertainable members of a’

group so as to inflict sammcani pacar e judicial-

trial. :

The Brief of the United States (at page 11, foot-

note 2) asks this Court to give no consideration to

the portion of Section 504 forbidding a person who

“has been”? a member of the Communist Party dur-

ing the previous five years from holding union or

*. assumes that this is a severable provision: We doubt

that this ‘is so. Without the five year “‘cooling off” >

period, Congress might never have passed the legisla-

‘tion because of the fear. of pro forma resignations

from the Communist Party. See Brief for the United”.

States at pp. 32-33 and on “Ine cases cited in

wee q,

It is-also act the burden of respondent to guess as

to whether the Courts will or will not, hold-a certain —

portion of a legislative enactment to be severable and :

invalid. On the face of this statute respondent was ,

- disqualified from union office and it would not have

changed his position, to have resigned his Communist :

Party ‘membership. Thus’ respondent, had no choice

between union office and Party "membership, even if

- such an election could constitutionally be forced —

him. z

But even. if the portions of Section ‘504 which make

it an obvious bill of attainder may be. excised, its ape

plication in this case ‘is still within the prohibition. It

is helpful to look on, the bill of, attainder prohibition

_as an aspect of the most basic concept of our consti- |

tutional government, the separation of powers. Con-

gress may preseribe and proscribe conduct, but the .

judiciary, and only the judiciary, may adjudicate

guilt. In this case, respondent's trial did not take

place in ‘the Court below but on the floor of Congress.

The legislative branch has the power to prohibit per-

_sons loyal to another government from serving .as_

union officers, and it has the power to prohibit per-

sons who advocate of ‘conspire to advocate political

strikes from-serving as union officers; but when Con-:

gress makes it indisputable that each and every. mem: |

ber of the Communist Party: will disloyally advocate 2

political strikes and thus may fot be union officers,

that is a legislative finding of guilt. That is the punish-

ment ; that is the attaint without trial, without judi-

cially screeried evidence.”

This Court said in United States v. Lovett, 328 US.

303, 316:

No one would think that. Congress could -have

passed a valid law, stating that after investiga-

tion it had found Lovett, Dodd and Watson

“guilty” of the crime of engaging in ‘‘subversive |

activities” defined that term for the first time, and

government eraployment. 6

Yet -if one substitutes ‘Communist Party” for the

es mentioned in the above quotation and ‘‘nolitical

Kote" for ‘‘subversive activities” we have the exact

! n of the instant case where respondent has

been found “ guilty” of a proclivity to engage in politi- -

ur 2

eal strikes, without having had an opportunity-to pre-

sent ‘A defense to. the charge, and has been sentenced _

to exclusion from labor union (and management) em-

ployment and office.’ If this kind of guilt without

judicial: trial can be applied to one unpopular and.

hated group, then: any unpopular minority -group |

ntay likewise be stigmatized to its detriment. Compare

Joint Anti-Fascist Committee v. McGrath, 341 US.

It was argued in the Court below that: the prohibi-

tion of Section 504 is not ‘‘puhnishment’’ but *‘regula-

tion’? with a few side effects. This argument was

_” buttressed . by disctissing those cases, such as Trop °

v. Dulles, 356 US. 86, and: Flemming v. Nestor, 363

o® The, government's power over employment in labor unions

’ ‘should certainly not: be any greater than its power over its own °

employees.

U.S. 603 which deal with the question, what is a penal

statute? But we are not dealing here with side effects.

' Congress ‘intended to punish. those who violated ‘See.

504: A Statute providing fora year in prison could

~ not be non-penal any more than a statute punishing

batik robbers is non-penal because its legislative pur-

pose was to provide security for depositors’ funds. —

‘The case of De Veau-v. Braisted, 363 US. 144,-was—

-glso-discussed-in the brief¢’below as providing a basis >. ”

_. for the validity of the statute here involved. That case ~

sustained the validity of a state statute forbidding sda

persons who had been convicted of certain felonies —

from serving as union officers on the New York water-

- front., However, the. opinion of ‘the Court.was ex-

préssly premised on the fact. that there had already

‘been a judicial finding on the individual guilt of each

person so restrieted. The opinion stated at page 160:

The distinguishing feature of a bill of attainder

is the substitution of a legisfttive for a judicial

determination of guilt. See United States v.

Lovett, 328 U.S. 303, 90 L.Ed. 1252, 66 S.Ct. 1073;

Clearly, Section’ 8 embodies no further implica-

‘tions of appellant’s guilt than are contained in

“his 1920 judicial conviction; and so it manifestly

-. | ig not a-bill of attainder.

It need not be-emphasized that respondent in this case

has‘never been found guilty ef having a specific in-

tent or desire to engage in political strikes.

We urge the Court to reassert the vitality of the

"pill of attainder prohibition and to. condemn this

statute as an exercise of that forbidden power.

' &

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Seu et

CONCLUSION . Yai A

If Section 504 is constitutional it would only be

consistent to hold that~-Communist Party“members

can be punished for speaking at union meetings for

fear that they will incite political strikes. Amici do~;,

- not believe we have reached the point where a trouble- Sok

some. person or. group may be ‘‘peoulated”” out of ex- -

instence because a legislative body. indisputably |

‘‘finds” that his affiliations pose ‘potential dangers

to interests which that body has the.duty to protect.

_ Amici also urge that Section.504 be condemned as

a bill of attainder and ‘@n attempt by the legislative

body to perform a judicial function without the safe-

- guards of due process of law. a feawdiaes

_-Dated, San Francisco, California,

February 20, 1965..-

es Respectfully submitted, seas ee

_Marswauu W. Kravse, -

Staff Counsel, American Civil Liberties Union

of Northern California, -

LavReENT B. FRANT. , u)

~ Mexvin L. WULF, ey

Attorneys for Amici Curiae.

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