BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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BARENBLATT v. UNITED STATES - LIMITATIONS ON CONGRESSIONAL AUTHORITY

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United States Supreme Court

BARENBLATT v. UNITED STATES (1959)

No. 35

Argued: November 18, 1958

Decided: June 8, 1959

Summoned to testify before a Subcommittee of the House of Representatives Committee on Un-American Activities, which was investigating alleged Communist infiltration into the field of education, petitioner, formerly a graduate student and teaching fellow at the University of Michigan, refused to answer questions as to whether he was then or had ever been a member of the Communist Party.

He disclaimed reliance upon the privilege against self-incrimination, but objected generally to the right of the Subcommittee to inquire into his "political" and "religious" beliefs or any "other personal or private affairs" or "associational activities" upon grounds set forth in a previously prepared memorandum, which was based on the First, Ninth, and Tenth Amendments, the prohibition against bills of attainder and the doctrine of separation of powers.

For such refusal, he was convicted of a violation of 2 U.S.C. 192, which makes it a misdemeanor for any person summoned as a witness by either House of Congress or a committee thereof to refuse to answer any question pertinent to the question under inquiry.


He was fined and sentenced to imprisonment for six months.

Held: Petitioner's conviction is sustained.

1. In the light of the Committee's history and the repeated extensions of its life, as well as the successive appropriations by the House of Representatives for the conduct of its activities, its legislative authority and that of the Subcommittee to conduct the inquiry under consideration here is unassailable; and House Rule XI, 83d Congress, which defines the Committee's authority, cannot be said to be constitutionally infirm on the score of vagueness. Watkins v. United States, 354 U.S. 178 , distinguished.

(a) Rule XI has a "persuasive gloss of legislative history" which shows beyond doubt that, in pursuance of its legislative concerns in the domain of "national security," the House of Representatives has clothed the Committee with pervasive authority to investigate Communist activities in this country.

(b) In the light of the legislative history, Rule XI cannot be construed so as to exclude the field of education from the Committee's compulsory authority.

2. The record in this case refutes petitioner's contention that he was not adequately apprised of the pertinency of the Subcommittee's questions to the subject matter of the inquiry. Watkins v. United States, supra, distinguished.

3. On the record in this case, the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and, therefore, the provisions of the First Amendment were not transgressed by the Subcommittee's inquiry into petitioner's past or present membership in the Communist Party.

(a) Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.

(b) The investigation here involved was related to a valid legislative purpose, since Congress has wide power to legislate in the field of Communist activity in this Country and to conduct appropriate investigations in aid thereof.

(c) Investigatory power in this domain is not to be denied Congress solely because the field of education is involved, and the record in this case does not indicate any attempt by the Committee to inquire into the content of academic lectures or discussions, but only to investigate the extent to which the Communist Party had succeeded in infiltrating into our educational institutions persons and groups committed to furthering the Party's alleged objective of violent overthrow of the Government. Sweezy v. New Hampshire, 354 U.S. 234 , distinguished.

(d) On the record in this case, it cannot be said that the true objective of the Committee and of the Congress was purely "exposure," rather than furtherance of a valid legislative purpose.

(e) The record is barren of other factors which in themselves might lead to the conclusion that the individual interests at stake were not subordinate to those of the Government.

102 U.S. App. D.C. 217, 252 F.2d 129, affirmed.

Edward J. Ennis argued the cause for petitioner.

With him on the brief were Nanette Dembitz and David Scribner.

Philip R. Monahan argued the cause for the United States.

With him on the brief were Solicitor General Rankin, Acting Assistant Attorney General Yeagley and Doris H. Spangenburg.

Briefs of amici curiae urging reversal were filed by Ralph F. Fuchs and Leo A. Huard for the American Association of University Professors, and by Nathan Witt and John M. Coe for the National Lawyers Guild.

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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 HARLAN delivered the opinion of the Court.

Once more the Court is required to resolve the conflicting constitutional claims of congressional power and of an individual's right to resist its exercise.

The congressional power in question concerns the internal process of Congress in moving within its legislative domain; it involves the utilization of its committees to secure "testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution." McGrain v. Daugherty, 273 U.S. 135, 160 .

The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate.

The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.

Broad as it is, the power is not, however, without limitations.

Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government.

Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary.

Neither can it supplant the Executive in what exclusively belongs to the Executive.

And the Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case the relevant limitations of the Bill of Rights.


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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 HARLAN delivered the opinion of the Court, continued ...

The congressional power of inquiry, its range and scope, and an individual's duty in relation to it, must be viewed in proper perspective. McGrain v. Daugherty, supra; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 214; Black, Inside a Senate Investigation, 172 Harpers Monthly 275 (February 1936).

The power and the right of resistance to it are to be judged in the concrete, not on the basis of abstractions.

In the present case congressional efforts to learn the extent of a nation-wide, indeed world-wide, problem have brought one of its investigating committees into the field of education.

Of course, broadly viewed, inquiries cannot be made into the teaching that is pursued in any of our educational institutions.

When academic teaching-freedom and its corollary learning-freedom, so essential to the well-being of the Nation, are claimed, this Court will always be on the alert against intrusion by Congress into this constitutionally protected domain.


But this does not mean that the Congress is precluded from interrogating a witness merely because he is a teacher.

An educational institution is not a constitutional sanctuary from inquiry into matters that may otherwise be within the constitutional legislative domain merely for the reason that inquiry is made of someone within its walls.

In the setting of this framework of constitutional history, practice and legal precedents, we turn to the particularities of this case.

We here review petitioner's conviction under 2 U.S.C. 192 1 for contempt of Congress, arising from his refusal to answer certain questions put to him by a Subcommittee of the House Committee on Un-American Activities during the course of an inquiry concerning alleged Communist infiltration into the field of education.

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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 HARLAN delivered the opinion of the Court, continued ...

The case is before us for the second time.

Petitioner's conviction was originally affirmed in 1957 by a unanimous panel of the Court of Appeals, 100 U.S. App. D.C. 13, 240 F.2d 875.

This Court granted certiorari, 354 U.S. 930, vacated the judgment of the Court of Appeals, and remanded the case to that court for further consideration in light of Watkins v. United States, 354 U.S. 178, which had reversed a contempt of Congress conviction, and which was decided after the Court of Appeals' decision here had issued.

Thereafter the Court of Appeals, sitting en banc, reaffirmed the conviction by a divided court. 102 U.S. App. D.C. 217, 252 F.2d 129.

We again granted certiorari, 356 U.S. 929, to consider petitioner's statutory and constitutional challenges to his conviction, and particularly his claim that the judgment below cannot stand under our decision in the Watkins case.

Pursuant to a subpoena, and accompanied by counsel, petitioner on June 28, 1954, appeared as a witness before this congressional Subcommittee.

After answering a few preliminary questions and testifying that he had been a graduate student and teaching fellow at the University of Michigan from 1947 to 1950 and an instructor in psychology at Vassar College from 1950 to shortly before his appearance before the Subcommittee, petitioner objected generally to the right of the Subcommittee to inquire into his "political" and "religious" beliefs or any "other personal and private affairs" or "associational activities," upon grounds set forth in a previously prepared memorandum which he was allowed to file with the Subcommittee.
2

Thereafter petitioner specifically declined to answer each of the following five questions:

"Are you now a member of the Communist Party?" [Count One.]

"Have you ever been a member of the Communist Party?" [Count Two.]

"Now, you have stated that you knew Francis Crowley."

"Did you know Francis Crowley as a member of the Communist Party?" [Count Three.]

"Were you ever a member of the Haldane Club of the Communist Party while at the University of Michigan?" [Count Four.]

"Were you a member while a student of the University of Michigan Council of Arts, Sciences, and Professions?" [Count Five.]

In each instance the grounds of refusal were those set forth in the prepared statement.

Petitioner expressly disclaimed reliance upon "the Fifth Amendment." 3
 
Following receipt of the Subcommittee's report of these occurrences the House duly certified the matter to the District of Columbia United States Attorney for contempt proceedings.

An indictment in five Counts, each embracing one of petitioner's several refusals to answer, ensued.


With the consent of both sides the case was tried to the court without a jury, and upon conviction under all Counts a general sentence of six months' imprisonment and a fine of $250 was imposed.

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thelivyjr
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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 HARLAN delivered the opinion of the Court, continued ...

Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, 4 the judgment below must be upheld if the conviction upon any of the Counts is sustainable. See Claassen v. United States, 142 U.S. 140, 147 ; Roviaro v. United States, 353 U.S. 53 ; Whitfield v. Ohio, 297 U.S. 431.

As we conceive the ultimate issue in this case to be whether petitioner could properly be convicted of contempt for refusing to answer questions relating to his participation in or knowledge of alleged Communist Party activities at educational institutions in this country, we find it unnecessary to consider the validity of his conviction under the Third and Fifth Counts, the only ones involving questions which on their face do not directly relate to such participation or knowledge.

Petitioner's various contentions resolve themselves into three propositions: First, the compelling of testimony by the Subcommittee was neither legislatively authorized nor constitutionally permissible because of the vagueness of Rule XI of the House of Representatives, Eighty-third Congress, the charter of authority of the parent Committee. 5

Second, petitioner was not adequately apprised of the pertinency of the Subcommittee's questions to the subject matter of the inquiry.

Third, the questions petitioner refused to answer infringed rights protected by the First Amendment.

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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 HARLAN delivered the opinion of the Court, continued ...

SUBCOMMITTEE'S AUTHORITY TO COMPEL TESTIMONY.

At the outset it should be noted that Rule XI authorized this Subcommittee to compel testimony within the framework of the investigative authority conferred on the Un-American Activities Committee. 6

Petitioner contends that Watkins v. United States, supra, nevertheless held the grant of this power in all circumstances ineffective because of the vagueness of Rule XI in delineating the Committee jurisdiction to which its exercise was to be appurtenant.

This view of Watkins was accepted by two of the dissenting judges below. 102 U.S. App. D.C., at 124, 252 F.2d, at 136.

The Watkins case cannot properly be read as standing for such a proposition.

A principal contention in Watkins was that the refusals to answer were justified because the requirement of 2 U.S.C. 192 that the questions asked be "pertinent to the question under inquiry" had not been satisfied. 354 U.S., at 208 -209.

This Court reversed the conviction solely on that ground, holding that Watkins had not been adequately apprised of the subject matter of the Subcommittee's investigation or the pertinency thereto of the questions he refused to answer. Id., at 206-209, 214-215; and see the concurring opinion in that case, id., at 216.

In so deciding the Court drew upon Rule XI only as one of the facets in the total mise en scene in its search for the "question under inquiry" in that particular investigation. Id., at 209-215.

The Court, in other words, was not dealing with Rule XI at large, and indeed in effect stated that no such issue was before it, id., at 209.

That the vagueness of Rule XI was not alone determinative is also shown by the Court's further statement that aside from the Rule "the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might sometimes make the topic [under inquiry] clear." Ibid.

In short, while Watkins was critical of Rule XI, it did not involve the broad and inflexible holding petitioner now attributes to it. 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 ...

MR. JUSTICE HARLAN delivered the opinion of the Court, continued ...

Petitioner also contends, independently of Watkins, that the vagueness of Rule XI deprived the Subcommittee of the right to compel testimony in this investigation into Communist activity.

We cannot agree with this contention, which in its furthest reach would mean that the House Un-American Activities Committee under its existing authority has no right to compel testimony in any circumstances.

Granting the vagueness of the Rule, we may not read it in isolation from its long history in the House of Representatives.

Just as legislation is often given meaning by the gloss of legislative reports, administrative interpretation, and long usage, so the proper meaning of an authorization to a congressional committee is not to be derived alone from its abstract terms unrelated to the definite content furnished them by the course of congressional actions.

The Rule comes to us with a "persuasive gloss of legislative history," United States v. Witkovich, 353 U.S. 194, 199 , which shows beyond doubt that in pursuance of its legislative concerns in the domain of "national security" the House has clothed the Un-American Activities Committee with pervasive authority to investigate Communist activities in this country.

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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 HARLAN delivered the opinion of the Court, continued ...

The essence of that history can be briefly stated.

The Un-American Activities Committee, originally known as the Dies Committee, was first established by the House in 1938. 8

The Committee was principally a consequence of concern over the activities of the German-American Bund, whose members were suspected of allegiance to Hitler Germany, and of the Communist Party, supposed by many to be under the domination of the Soviet Union. 9

From the beginning, without interruption to the present time, and with the undoubted knowledge and approval of the House, the Committee has devoted a major part of its energies to the investigation of Communist activities. 10

More particularly, in 1947 the Committee announced a wide-range program in this field, 11 pursuant to which during the years 1948 to 1952 it conducted diverse inquiries into such alleged Communist activities as espionage; efforts to learn atom bomb secrets; infiltration into labor, farmer, veteran, professional, youth, and motion picture groups; and in addition held a number of hearings upon various legislative proposals to curb Communist activities. 12

In the context of these unremitting pursuits, the House has steadily continued the life of the Committee at the commencement of each new Congress; 13 it has never narrowed the powers of the Committee, whose authority has remained throughout identical with that contained in Rule XI; and it has continuingly supported the Committee's activities with substantial appropriations. 14

Beyond this, the Committee was raised to the level of a standing committee of the House in 1945, it having been but a special committee prior to that time. 15

In light of this long and illuminating history it can hardly be seriously argued that the investigation of Communist activities generally, and the attendant use of compulsory process, was beyond the purview of the Committee's intended authority under Rule XI.

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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 HARLAN delivered the opinion of the Court, continued ...

We are urged, however, to construe Rule XI so as at least to exclude the field of education from the Committee's compulsory authority.

Two of the four dissenting judges below relied entirely, the other two alternatively, on this ground. 102 U.S. App. D.C., at 224, 226, 252 F.2d, at 136, 138.

The contention is premised on the course we took in United States v. Rumely, 345 U.S. 41 , where in order to avoid constitutional issues we construed narrowly the authority of the congressional committee there involved.

We cannot follow that route here, for this is not a case where Rule XI has to "speak for itself, since Congress put no gloss upon it at the time of its passage," nor one where the subsequent history of the Rule has the "infirmity of post litem motam, self-serving declarations." See United States v. Rumely, supra, at 44-45, 48.

To the contrary, the legislative gloss on Rule XI is again compelling.

Not only is there no indication that the House ever viewed the field of education as being outside the Committee's authority under Rule XI, but the legislative history affirmatively evinces House approval of this phase of the Committee's work.

During the first year of its activities, 1938, the Committee heard testimony on alleged Communist activities at Brooklyn College, N. Y. 16

The following year it conducted similar hearings relating to the American Student Union and the Teachers Union. 17

The field of "Communist influences in education" was one of the items contained in the Committee's 1947 program. 18

Other investigations including education took place in 1952 and 1953. 19

And in 1953, after the Committee had instituted the investigation involved in this case, the desirability of investigating Communism in education was specifically discussed during consideration of its appropriation for that year, which after controversial debate was approved. 20

In this framework of the Committee's history we must conclude that its legislative authority to conduct the inquiry presently under consideration is unassailable, and that independently of whatever bearing the broad scope of Rule XI may have on the issue of "pertinency" in a given investigation into Communist activities, as in Watkins, the Rule cannot be said to be constitutionally infirm on the score of vagueness.

The constitutional permissibility of that authority otherwise is a matter to be discussed later.

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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 HARLAN delivered the opinion of the Court, continued ...

PERTINENCY CLAIM.

Undeniably a conviction for contempt under 2 U.S.C. 192 cannot stand unless the questions asked are pertinent to the subject matter of the investigation. Watkins v. United States, supra, at 214-215.

But the factors which led us to rest decision on this ground in Watkins were very different from those involved here.

In Watkins the petitioner had made specific objection to the Subcommittee's questions on the ground of pertinency; the question under inquiry had not been disclosed in any illuminating manner; and the questions asked the petitioner were not only amorphous on their face, but in some instances clearly foreign to the alleged subject matter of the investigation - "Communism in labor." Id., at 185, 209-215.

In contrast, petitioner in the case before us raised no objections on the ground of pertinency at the time any of the questions were put to him.

It is true that the memorandum which petitioner brought with him to the Subcommittee hearing contained the statement, "to ask me whether I am or have been a member of the Communist Party may have dire consequences."

"I might wish to . . . challenge the pertinency of the question to the investigation," and at another point quoted from this Court's opinion in Jones v. Securities & Exchange Comm'n, 298 U.S. 1 , language relating to a witness' right to be informed of the pertinency of questions asked him by an administrative agency. 21

These statements cannot, however, be accepted as the equivalent of a pertinency objection.

At best they constituted but a contemplated objection to questions still unasked, and buried as they were in the context of petitioner's general challenge to the power of the Subcommittee they can hardly be considered adequate, within the meaning of what was said in Watkins, supra, at 214-215, to trigger what would have been the Subcommittee's reciprocal obligation had it been faced with a pertinency objection.

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