BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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Re: BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959), continued ...

MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS concur, dissenting., continued ...

Even after our Lovett holding, however, the Committee continued to view itself as the "only agency of government that has the power of exposure," and to work unceasingly and sincerely to identify and expose all suspected Communists and "subversives" in order to eliminate them from virtually all fields of employment. 30

How well it has succeeded in its declared program of "pitiless publicity and exposure" is a matter of public record.

It is enough to cite the experience of a man who masqueraded as a Communist for the F.B.I. and who reported to this same Committee that since 1952 when his "membership" became known he has been unable to hold any job. 31

To accomplish this kind of result, the Committee has called witnesses who are suspected of Communist affiliation, has subjected them to severe questioning and has insisted that each tell the name of every person he has ever known at any time to have been a Communist, and, if possible, to give the addresses and occupations of the people named.

These names are then indexed, published, and reported to Congress, and often to the press.
32

The same technique is employed to cripple the job opportunities of those who strongly criticize the Committee or take other actions it deems undesirable. 33

Thus, in 1949, the Committee reported that it had indexed and printed some 335,000 names of people who had signed "Communist" petitions of one kind or another. 34

All this the Committee did and does to punish by exposure the many phases of "un-American" activities that it reports cannot be reached by legislation, by administrative action, or by any other agency of Government, which, of course, includes the courts.

The same intent to expose and punish is manifest in the Committee's investigation which led to Barenblatt's conviction.

The declared purpose of the investigation was to identify to the people of Michigan the individuals responsible for the, alleged, Communist success there.
35

The Committee claimed that its investigation "uncovered" members of the Communist Party holding positions in the school systems in Michigan; that most of the teachers subpoenaed before the Committee refused to answer questions on the ground that to do so might result in self-incrimination, and that most of these teachers had lost their jobs.

It then stated that "the Committee on Un-American Activities approves of this action. . . ." 36

Similarly, as a result of its Michigan investigation, the Committee called upon American labor unions to amend their constitutions, if necessary, in order to deny membership to any Communist Party member. 37

This would, of course, prevent many workers from getting or holding the only kind of jobs their particular skills qualified them for.

The Court, today, barely mentions these statements, which, especially when read in the context of past reports by the Committee, show unmistakably what the Committee was doing.

I cannot understand why these reports are deemed relevant to a determination of a congressional intent to investigate communism in education, but irrelevant to any finding of congressional intent to bring about exposure for its own sake or for the purposes of punishment.

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Re: BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959), continued ...

MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS concur, dissenting., concluded ...

I do not question the Committee's patriotism and sincerity in doing all this. 38

I merely feel that it cannot be done by Congress under our Constitution.

For, even assuming that the Federal Government can compel witnesses to testify as to Communist affiliations in order to subject them to ridicule and social and economic retaliation, I cannot agree that this is a legislative function.

Such publicity is clearly punishment, and the Constitution allows only one way in which people can be convicted and punished.


As we said in Lovett, "Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment."

"They intended to safeguard the people of this country from punishment without trial by duly constituted courts." 328 U.S., at 317. (Italics added.)

Thus if communism is to be made a crime, and Communists are to be subjected to "pains and penalties," I would still hold this conviction bad, for the crime of communism, like all others, can be punished only by court and jury after a trial with all judicial safeguards.

It is no answer to all this to suggest that legislative committees should be allowed to punish if they grant the accused some rules of courtesy or allow him counsel.

For the Constitution proscribes all bills of attainder by State or Nation, not merely those which lack counsel or courtesy.

It does this because the Founders believed that punishment was too serious a matter to be entrusted to any group other than an independent judiciary and a jury of twelve men acting on previously passed, unambiguous laws, with all the procedural safeguards they put in the Constitution as essential to a fair trial - safeguards which included the right to counsel, compulsory process for witnesses, specific indictments, confrontation of accusers, as well as protection against self-incrimination, double jeopardy and cruel and unusual punishment - in short, due process of law.
Cf. Chambers v. Florida, 309 U.S. 227.

They believed this because not long before worthy men had been deprived of their liberties, and indeed their lives, through parliamentary trials without these safeguards.

The memory of one of these, John Lilburne - banished and disgraced by a parliamentary committee on penalty of death if he returned to his country - was particularly vivid when our Constitution was written.

His attack on trials by such committees and his warning that "what is done unto any one, may be done unto every one" 39 were part of the history of the times which moved those who wrote our Constitution to determine that no such arbitrary punishments should ever occur here.

It is the protection from arbitrary punishments through the right to a judicial trial with all these safeguards which over the years has distinguished America from lands where drumhead courts and other similar "tribunals" deprive the weak and the unorthodox of life, liberty and property without due process of law.

It is this same right which is denied to Barenblatt, because the Court today fails to see what is here for all to see - that exposure and punishment is the aim of this Committee and the reason for its existence.

To deny this is to ignore the Committee's own claims and the reports it has issued ever since it was established.

I cannot believe that the nature of our judicial office requires us to be so blind, and must conclude that the Un-American Activities Committee's "identification" and "exposure" of Communists and suspected Communists, like the activities of the Committee in Kilbourn v. Thompson, amount to an encroachment on the judiciary which bodes ill for the liberties of the people of this land.

Ultimately all the questions in this case really boil down to one - whether we as a people will try fearfully and futilely to preserve democracy by adopting totalitarian methods, or whether in accordance with our traditions and our Constitution we will have the confidence and courage to be free.

I would reverse this conviction.

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Re: BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959), continued ...

APPENDIX TO OPINION OF MR. JUSTICE BLACK, DISSENTING.

RANDOM SELECTION OF STATEMENTS BY THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE ON EXPOSURE AND PUNISHMENT OF "SUBVERSIVES."


"To inform the American people of the activities of any such organizations . . . is the real purpose of the House Committee."

"The purpose of this committee is the task of protecting our constitutional democracy by turning the light of pitiless publicity on [these] organizations."
H. R. Rep. No. 1476, 76th Cong., 3d Sess. 1-2, 24.

"The very first exposure which our committee undertook in the summer of 1938 was that of the German-American Bund."

"Other organizations . . . have been greatly crippled . . . as a result of our exposures."

"The American Youth Congress once enjoyed a very considerable prestige . . . ."

"Today many of its distinguished former sponsors refuse to be found in its company. . . ."

"We kept the spotlight of publicity focused upon the American Youth Congress, and today it is clear to all that, in spite of a degree of participation in its activities by many fine young people, it was never at its core anything less than a tool of Moscow."

"This committee is the only agency of Government that has the power of exposure. . . ."

"There are many phases of un-American activities that cannot be reached by legislation or administrative action."

"We believe that the committee has shown that fearless exposure . . . is the . . . answer."
H. R. Rep. No. 1, 77th Cong., 1st Sess. 21-22, 24.

"Our investigation has shown that a steady barrage against Congress comes . . . from the New Republic, one of whose editors . . . was recently forced out of an $8,000 Government job by the exposure of his Communist activities." H. R. Rep. No. 2277, 77th Cong., 2d Sess. 3.

"The House Committee on Un-American Activities is empowered to explore and expose activities by un-American individuals and organizations which, while sometimes being legal, are nonetheless inimical to our American concepts."

The Committee recommends that Congress "discharge . . . any employee or official of the Federal Government whose loyalty to the United States is found to be in doubt." H. R. Rep. No. 2742, 79th Cong., 2d Sess. 16, 17.

"Index of Persons and Organizations." (Six pages of names follow.) H. R. Rep. No. 2233, 79th Cong., 2d Sess. III-VIII.

"Early in 1947 the committee adopted the following eight point program . . . ."

"1. To expose and ferret out the Communists and Communist sympathizers in the Federal Government."

"2. To spotlight the spectacle of . . . Communists . . . in American labor."

"In a sense the storm of opposition to the activities of the committee is a tribute to its achievements in the field of exposure . . . ." Report of the Committee on Un-American Activities to the United States House of Representatives, 80th Cong., 2d Sess., Dec. 31, 1948, 2, 3 (Committee print).

"The committee would like to remind the Congress that its work is part of an 11-year continuity of effort that began . . . in August 1938."

"The committee would also like to recall that at no time in those 11 years has it ever wavered from a relentless pursuit and exposure."

"In the course of its investigations . . . the committee has made available a large, completely indexed, and readily accessible reference collection of lists of signers of Communist Party election petitions." H. R. Rep. No. 1950, 81st Cong., 2d Sess. 15, 19.

"To conduct the expose . . . it was necessary for the investigative staff to interview over 100 persons . . . ."

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Re: BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959), continued ...

APPENDIX TO OPINION OF MR. JUSTICE BLACK, DISSENTING., continued ...

RANDOM SELECTION OF STATEMENTS BY THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE ON EXPOSURE AND PUNISHMENT OF "SUBVERSIVES."
, concluded ...

"The same tedious investigation of details was necessary prior to the successful exposure . . . in the Territory of Hawaii."

"As a result of the investigation and hearings held by the committee, Dolivet's contract with the United Nations has not been renewed, and it is the committee's understanding that he was removed from editorship of the United Nations World." H. R. Rep. No. 3249, 81st Cong., 2d Sess. 4, 5.

"During 1951 the committee's hearings disclosed the positive identification of more individuals . . . than during any preceding year."

"If communism in Hollywood is now mythical, it is only because this committee conducted three investigations to bring it about."

"The industry itself certainly did not accomplish this."

"The committee's investigation . . . was concerned almost entirely with the problem of exposure of the actual members of the Communist Party and did not deal, except in a few instances, with . . . fellow travelers."

"On the question of fellow travelers, suffice it to say . . . 'The time has come now when even the fellow traveler must get out.'"

"Dr. Struik was identified as a Communist teacher . . . ."

"Nevertheless, he was permitted to teach . . . until this year."

"With individuals like . . . Struik . . . teaching in our leading universities, your committee wonders who the Professor Struiks were . . . who led Alger Hiss along the road of communism." H. R. Rep. No. 2431, 82d Cong., 2d Sess. 6, 8-9, 16-17.

"In this annual report, the committee feels that the Congress and the American people will have a much clearer and fuller picture . . . by having set forth the names and, where possible, the positions occupied by individuals who have been identified as Communists, or former Communists, during the past year."

"The committee considers the failure of certain trade-unionists to rid themselves of Communists to be a national disgrace."

"The following persons were identified." (Approximately fifty pages of names follow.) H. R. Rep. No. 2516, 82d Cong., 2d Sess. 6-7, 12-27, 28-34, 36-40, 41-56, 58-67 (similar lists can be found in various other reports).

"The focal point of the investigation into the general area of education was to the individual who had been identified."

"The question has been asked as to what purpose is served by the disclosure of the names of individuals who may long ago have left the conspiracy."

"The committee has no way of knowing the status of his membership at present until he is placed under oath and the information is sought to be elicited." H. R. Rep. No. 1192, 83d Cong., 2d Sess. 1, 7.

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Re: BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959), continued ...

APPENDIX TO OPINION OF MR. JUSTICE BLACK, DISSENTING., continued ...

[ Footnote 1 ] Bills of attainder are among the few measures explicitly forbidden to both State and Federal Governments by the body of the Constitution itself. U.S. Const., Art. I, 9, cl. 3, states "No Bill of [360 U.S. 109, 136]  Attainder [or] ex post facto Law shall be passed." U.S. Const., Art. I, 10, cl. 1, reads in part "No State shall . . . pass any Bill of Attainder [or] ex post facto Law . . . ."

[ Footnote 2 ] E.g., Lanzetta v. New Jersey, 306 U.S. 451; Winters v. New York. 333 U.S. 507, 515; Jordan v. De George, 341 U.S. 223, 230 -231.

[ Footnote 3 ] E.g., Watkins v. United States, 354 U.S. 178, 207 -208; Flaxer v. United States, 358 U.S. 147; Scull v. Virginia, 359 U.S. 344:

[ Footnote 4 ] See, e.g., Herndon v. Lowry, 301 U.S. 242; Winters v. New York, 333 U.S. 507; Watkins v. United States/b], 354 U.S. 178; Scull v. Virginia, 359 U.S. 344 .

[ Footnote 5 ] Thornhill v. Alabama, 310 U.S. 88, 97 -98. Cf. Herndon v. Lowry, 301 U.S. 242.

[ Footnote 6 ] Rule XI in relevant part reads, "The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation." H. Res. 5, 83d Cong., 1st Sess., 99 Cong. Rec. 15, 18, 24. See also H. Res. 7, 86th Cong., 1st Sess., Cong. Rec., Jan. 7, 1959, p. 13.

[ Footnote 7 ] See, e. g., Panama Refining Co. v. Ryan, 293 U.S. 388; Schechter Poultry Corp. v. United States, 295 U.S. 495 ; id., at 551 (concurring opinion); Berra v. United States, 351 U.S. 131, 135 (dissenting opinion); Watkins v. United States, 354 U.S. 178, 203-205; Sweezy v. New Hampshire, 354 U.S. 234. Cf. United States v. Rumely, 345 U.S. 41; Kent v. Dulles, 357 U.S. 116. These cases show that when this Court considered that the legislative measures involved were of doubtful constitutionality substantively, it required explicit delegations of power.

[ Footnote 8 ] It is of course no answer to Barenblatt's claim that Rule XI is too vague, to say that if it had been too vague it would have been so held in Watkins v. United States, 354 U.S. 178 . It would be a strange rule, indeed, which would imply the invalidity of a broad ground of decision from the fact that this Court decided an earlier case on a narrower basis.

[ Footnote 9 ] The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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." There can be no doubt that the same Amendment protects the right to keep silent. See West Virginia Board of Education v. Barnette, 319 U.S. 624; N.A.A.C.P. v. Alabama, 357 U.S. 449, 460-466; Sweezy v. New Hampshire, 354 U.S. 234, 255 (concurring opinion); Watkins v. United States, 354 U.S. 178; Scull v. Virginia, 359 U.S. 344. Cf. United States v. Rumely, 345 U.S. 41.

[ Footnote 10 ] I do not understand the Court's opinion in Watkins v. United States, 354 U.S. 178, 198, to approve the type of balancing process adopted in the Court's opinion here. We did discuss in that case "the weight to be ascribed to . . . the interest of the Congress in demanding disclosures from an unwilling witness." As I read, and still read, the Court's discussion of this problem in Watkins it was referring to the problems raised by Kilbourn v. Thompson, 103 U.S. 168, which held that legislative committees could not make roving inquiries into the private business affairs of witnesses. The Court, in Kilbourn, held that the courts must be careful to insure that, on balance, Congress did not unjustifiably encroach on an individual's private business affairs. Needless to say, an individual's right to silence in such matters is quite a different thing from the public's interest in freedom of speech and the test applicable to one has little, if anything, to do with the test applicable to the other.

[ Footnote 11 ] 1 Annals of Cong. 439 (1789). (Italics supplied.)

[ Footnote 12 ] "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."
De Jonge v. Oregon, 299 U.S. 353, 365 .

[ Footnote 13 ] Cf. statement of Sir Richard Nagle presenting a bill of attainder against between two and three thousand persons for political offenses, "Many of the persons here attainted,' said he,`have been proved traitors by such evidence as satisfies us.' 'As to the rest we have followed common fame.'" Cited in Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 142 , 148 (concurring opinion).

[ Footnote 14 ] See Hearings, Senate Committee on the Judiciary on H. R. 5852, 80th Cong., 2d Sess. 415-420, 420-422.

[ Footnote 15 ] Id., at 422-425. See also Hearings, Subcommittee on Legislation of the House Committee on Un-American Activities on H. R. 4422, H. R. 4581, 80th Cong., 2d Sess. 16-37.

[ Footnote 16 ] Hearings, Subcommittee on Legislation of the Committee on Un-American Activities on H. R. 4422, H. R. 4581, 80th Cong., 2d Sess. 13. This statement was relied on by the Honorable Thomas E. Dewey, then a candidate for the presidency of the United States, in a speech given in Portland, Oregon, in May, 1948. Mr. Dewey went on to say, in opposing outlawry of the Communist Party:

"I am against it because it is a violation of the Constitution of the United States and of the Bill of Rights, and clearly so."

"I am against it because it is immoral and nothing but totalitarianism itself."

"I am against it because I know from a great many years' experience in the enforcement of the law that the proposal wouldn't work, and instead it would rapidly advance the cause of communism in the United States and all over the world. . . . ."

"There is an American way to do this job, a perfectly simple American way . . . outlawing every conceivable act of subversion against the United States. . . ."

"Now, times are too grave to try any expedients and fail."

"This expedient has failed, this expedient of outlawing has failed in Russia."

"It failed in Europe, it failed in Italy, it failed in Canada. . . ."

"Let us not make such a terrific blunder in the United States . . . ."

"Let us go forward as Free Americans."

"Let us have the courage to be free."

XIV Vital Speeches of the Day, 486-487. (Italics supplied.)

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Re: BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959), continued ...

APPENDIX TO OPINION OF MR. JUSTICE BLACK, DISSENTING., continued ...

[ Footnote 17 ] Hearings, Subcommittee on Legislation of the Committee on Un-American Activities on H. R. 4422, H. R. 4581, 80th Cong., 2d Sess. 20. Compare statement of John Lilburne, "what is done unto any one, may be done unto every one." Note 39, infra.

[ Footnote 18 ] S. Doc. No. 97, 85th Cong., 2d Sess. 149, lists the States with laws relating to the Communist Party and the ballot. See also, Fund For The Republic, Digest of the Public Record of Communism in the United States, 324-343. For a discussion of state laws requiring a minimum percentage of the votes cast to remain on the ballot, see Note, 57 Yale L. J. 1276.

[ Footnote 19 ] See O'Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev. 592, 593. Significantly the action of the New York Assembly was strongly condemned by Charles Evans Hughes, then a former Associate Justice of this Court, and later its Chief Justice.

[ Footnote 20 ] See generally, McCarthy, The Antimasonic Party: A Study of Political Antimasonry in the United States, 1827-1840. H. R. Doc. No. 461, 57th Cong., 2d Sess. 365. Nye, William Lloyd Garrison, 88-105; Korngold, Two Friends of Man, 82-104. Cf. St. George Tucker, Appendix, 1 Blackstone (Tucker ed. 1803) 315, discussing English laws "for suppressing assemblies of free-masons" and pointing out that similar laws cannot be enacted under our Constitution.

[ Footnote 21 ] Ames, Laocoon, printed in Works of Fisher Ames (1809 ed.), 94, 97, 101, 106. See also American Communications Assn. v. Douds, 339 U.S. 382, 445 (dissenting opinion).

[ Footnote 22 ] Cf. Mill, On Liberty (1885 ed.), 30 (criticizing laws restricting the right to advocate tyrannicide).

[ Footnote 23 ] Cf. St. George Tucker, Appendix, 1 Blackstone Commentaries (Tucker ed. 1803) 299. "The judicial courts of the respective states are open to all persons alike, for the redress of injuries of this nature [libel]; . . . . But the genius of our government will not permit the federal legislature to interfere with the subject; and the federal courts are, I presume, equally restrained by the principles of the constitution, and the amendments which have since been adopted."

[ Footnote 24 ] The record in this very case indicates how easily such restrictions spread. During the testimony of one witness an organization known as the Americans for Democratic Action was mentioned. Despite testimony that this organization did not admit Communists, one member of the Committee insisted that it was a Communist front because "it followed a party line, almost identical in many particulars with the Communist Party line." Presumably if this accusation were repeated frequently and loudly enough that organization, or any other, would also be called a "criminal gang." Cf. Feiner v. New York, 340 U.S. 315, 321 , 329 (dissenting opinions).

[ Footnote 25 ] See generally, XII Encyclopedia of the Social Sciences 714; Barnes, The Story of Punishment, 62-64; Lowie, Primitive Society, 398; Andrews, Old-Time Punishments (1890 ed.), 1-145, 164-187; IV Plutarch's Lives (Clough, New Nat. ed. 1914) 43-44.

[ Footnote 26 ] In its very first report it stated, "The committee has felt that it is its sworn duty and solemn obligation to the people of this country to focus the spotlight of publicity upon every individual and organization engaged in subversive activities regardless of politics or partisanship." It further claimed that, "While Congress does not have the power to deny to citizens the right to believe in, teach, or advocate, communism, fascism, and nazism, it does have the right to focus the spotlight of publicity upon their activities. . . ." H. R. Rep. No. 2, 76th Cong., 1st Sess. 9-10, 13. See also the statement of the Committee's first Chairman, "I am not in a position to say whether we can legislate effectively in reference to this matter, but I do know that exposure in a democracy of subversive activities is the most effective weapon that we have in our possession." 83 Cong. Rec. 7570 (1938).

[ Footnote 27 ] See, e. g., H. R. Rep. No. 2748, 77th Cong., 2d Sess. 5. "On September 6, 1941, the chairman of this committee wrote the President a letter, accompanied by 43 exhibits, detailing the Communist affiliation and background of the following officials . . . and suggested that they be dismissed from their positions." "On November 28, 1941 . . . the chairman called the attention of the members to the case of [the] principal economist in the Department of Agriculture"; "On January 15, 1942, the chairman of the committee . . . called attention to . . . one Malcolm Cowley. . . . Several weeks later Mr. Cowley resigned his position with the Federal Government"; "On March 28, 1942, the chairman wrote a letter to the . . . Chairman of the Board of Economic Welfare, and called attention to . . . eight of its employees and made particular reference to one Maurice Parmelee . . . . The following week, Mr. Parmelee was dismissed . . . ." Id., at 6. "In the Chairman's speech of September 24 1942. he also presented to the House the names of 19 officials of the Government . . . . Yet, to the committee's knowledge, no action has been taken in the cases of the 19 officials." Id., at 8.

[ Footnote 28 ] Section 304 of the Urgent Deficiency Appropriation Act, 1943, 57 Stat. 431, 450. The history of this rider is detailed in United States v. Lovett, 328 U.S. 303 .

[ Footnote 29 ] See, e. g., H. R. Rep. No. 448, 78th Cong., 1st Sess. 6, 8. The Un-American Activities Committee did not actually undertake the trials of these government employees. That task fell to a special Subcommittee of the Committee on Appropriations which was created in response to a speech by the Chairman of the Un-American Activities Committee. Id., at 3.

[ Footnote 30 ] Virtually every report of the Committee emphasizes that its principal function is exposure and that once exposed subversives must be driven out. Space, however, prevents listing more than a random sampling of statements by the Committee. These are given in an Appendix to this opinion, post, p. 163. For other similar statements by the Committee and its members see, e. g., notes 26, 27, supra; 31-37, infra; Watkins v. United States, 354 U.S. 178; United States v. Josephson, 165 F.2d 82, 93 (dissenting opinion); Barsky v. United States, 83 U.S. App. D.C. 127, 138, 167 F.2d 241, 252 (dissenting opinion).

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Re: BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959), continued ...

APPENDIX TO OPINION OF MR. JUSTICE BLACK, DISSENTING., concluded ...

[ Footnote 31 ] This evidence was given before the Committee on May 7, 1959, in Chicago, Ill. It has not yet been published.

Even those the Committee does not wish to injure are often hurt by its tactics, so all-pervasive is the effect of its investigations.

"It has been brought to the attention of the committee that many persons so subpenaed . . . have been subjected to ridicule and discrimination as a result of having received such subpenas"; "The committee . . . has met with many obstacles and difficulties. Not the least of these has been the reluctance of former Communists to give testimony before the committee which might bring upon them public censure and economic retaliation"; "To deny to these cooperative witnesses a full opportunity for social, economic, and political rehabilitation . . . will . . . render more difficult the obtaining of authentic . . . information." H. R. Rep. No. 2431, 82d Cong., 2d Sess. 5. (Italics added.)

"While the American people . . . were fortunate to have this testimony, some of the witnesses themselves were not. Instances have come to the committee's attention where several of these witnesses have been forced from gainful employment after testifying. Some have been released from the employment which they competently held for years prior to their testimony." H. R. Rep. No. 2516, 82d Cong., 2d Sess. 3.

[ Footnote 32 ] Descriptions of the size and availability of Committee's files as well as the efficiency of its cross-indexing system can be found in most of its reports. See, e. g., H. R. Rep. No. 2742, 79th Cong., 2d Sess. 16-17; H. R. Rep. No. 1950, 81st Cong., 2d Sess. 18-23; H. R. Rep. No. 2431, 82d Cong., 2d Sess. 24-28.

[ Footnote 33 ] It is impossible even to begin to catalogue people who have been stigmatized by the Committee for criticizing it. In 1942 the Committee reported "Henry Luce's Time magazine has been drawn sucker-fashion into this movement to alter our form of government. . . ." H. R. Rep. No. 2277, 77th Cong., 2d Sess. 2. In 1946 Harold Laski and socialists generally were attacked for their "impertinence in suggesting that the United States should trade its system of free economy for some brand of Socialism." The Committee deemed it "imperative" that it ascertain the "methods used to enable Mr. Laski to broadcast to a rally." H. R. Rep. No. 2233, 79th Cong., 2d Sess. 46-47. In 1951 a full report was issued on a "communist lobby" - a committee formed to urge defeat of a communist control bill before Congress. Among the distinguished sponsors of the group listed by the committee was the late Prof. Zechariah Chafee. The Committee, nevertheless, advised "the American public that individuals who knowingly and actively support such a propaganda outlet . . . are actually aiding and abetting the Communist program in the United States." H. R. Rep. No. 3248, 81st Cong., 2d Sess. 1, 11-12, 15. See also, Gellhorn, Report on a Report of the House Committee on Un-American Activities, 60 Harv. L. Rev. 1193.

[ Footnote 34 ] H. R. Rep. No. 1950, 81st Cong., 2d Sess. 19.

[ Footnote 35 ] "The 1954 hearings were set up by the committee in order to demonstrate to the people of Michigan the fields of concentration of the Communist Party in the Michigan area, and the identity of those individuals responsible for its success." H. R. Rep. No. 57, 84th Cong., 1st Sess. 15.

[ Footnote 36 ] Id., at 17.

[ Footnote 37 ] "[T]he Committee on Un-American Activities calls upon the American labor movement . . . to amend its constitutions where necessary in order to deny membership to a member of the Communist Party or any other group which dedicates itself to the destruction of America's way of life." Ibid.

[ Footnote 38 ] Sincerity and patriotism do not, unfortunately, insure against unconstitutional acts. Indeed, some of the most lamentable and tragic deaths of history were instigated by able, patriotic and sincere men. See generally Mill, On Liberty (1885 ed.), 43-48.

[ Footnote 39 ] "For certainly it cannot be denied, but if he be really an offender, he is such by the breach of some law, made and published before the fact, and ought by due process of law, and verdict of 12 men, to be thereof convict, and found guilty of such crime; unto which the law also hath prescribed such a punishment agreeable to that our fundamental liberty; which enjoineth that no freeman of England should be adjudged of life, limb, liberty, or estate, but by Juries; a freedom which parliaments in all ages contended to preserve from violation; as the birthright and chief inheritance of the people, as may appear most remarkably in the Petition of Right, which you have stiled that most excellent law.

"And therefore we trust upon second thoughts, being the parliament of England, you will be so far from bereaving us, who have never forfeited our right, of this our native right, and way of Trials by Juries, (for what is done unto any one, may be done unto every one), that you will preserve them entire to us, and to posterity, from the encroachments of any that would innovate upon them. . . .

"And it is believed, that . . . had [the cause] at any time either at first or last been admitted to a trial at law, and had passed any way by verdict of twelve sworn men: all the trouble and inconveniences arising thereupon had been prevented: the way of determination by major votes of committees, being neither so certain nor so satisfactory in any case as by way of Juries, the benefit of challenges and exceptions, and unanimous consent, being all essential privileges in the latter; whereas committees are tied to no such rules, but are at liberty to be present or absent at pleasure. Besides, Juries being birthright, and the other but new and temporary, men do not, nor, as we humbly conceive, ever will acquiesce in the one as in the other; from whence it is not altogether so much to be wondered at, if upon dissatisfactions, there have been such frequent printing of men's cases, and dealings of Committees, as there have been; and such harsh and inordinate heats and expressions between parties interested, such sudden and importunate appeals to your authority, being indeed all alike out of the true English road, and leading into nothing but trouble and perplexity, breeding hatred and enmities between worthy families, affronts and disgust between persons of the same public affection and interest, and to the rejoicing of none but public adversaries. All which, and many more inconveniences, can only be avoided, by referring all such cases to the usual Trials and final determinations of law." 5 Howell's State Trials 411-412, Statement of John Lilburne (1653).

TO BE CONTINUED ...
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Re: BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959), continued ...

MR. JUSTICE BRENNAN, dissenting.

I would reverse this conviction.

It is sufficient that I state my complete agreement with my Brother BLACK that no purpose for the investigation of Barenblatt is revealed by the record except exposure purely for the sake of exposure.

This is not a purpose to which Barenblatt's rights under the First Amendment can validly be subordinated.


An investigation in which the processes of law-making and law-evaluating are submerged entirely in exposure of individual behavior - in adjudication, of a sort, through the exposure process - is outside the constitutional pale of congressional inquiry. Watkins v. United States, 354 U.S. 178, 187, 200; see also Sweezy v. New Hampshire, 354 U.S. 234; NAACP v. Alabama, 357 U.S. 449; Uphaus v. Wyman, ante, p. 82 (dissenting opinion).

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