1. This case was brought here on appeal under 28 U.S.C.
§1257(2); but the appellant has failed to meet his burden of
showing that jurisdiction by appeal was properly invoked.
Held: The appeal is dismissed. Treating the papers as a
petition for certiorari under 28 U.S.C. § 2103, certiorari is
granted. Pp.
354 U. S.
235-236.
2. In an investigation conducted by a State Attorney General,
acting on behalf of the State Legislature under a broad resolution
directing him to determine whether there were "subversive persons"
in the State and to recommend further legislation on that subject,
appellant answered most questions asked him, including whether he
was a Communist; but he refused to answer questions related to (1)
the contents of a lecture he had delivered at the State University,
and (2) his knowledge of the Progressive Party of the State and its
members. He did not plead his privilege against self-incrimination,
but based his refusal to answer such questions on the grounds that
they were not pertinent to the inquiry and violated his rights
under the First Amendment. Persisting in his refusal when haled
into a State Court and directed to answer, he was adjudged guilty
of contempt. This judgment was affirmed by the State Supreme Court,
which construed the term "subversive persons" broadly enough to
include persons engaged in conduct only remotely related to actual
subversion and done completely apart from any conscious intent to
be a part of such activity. It also held that the need of the
Legislature to be informed on the subject of self-preservation of
government outweighed the deprivation of constitutional rights that
occurred in the process.
Held: on the record in this case,
appellant's rights under the Due Process Clause of the Fourteenth
Amendment were violated, and the judgment is reversed. Pp.
354 U. S.
235-267.
100 N.H. 103,121 A.2d 783, reversed.
Page 354 U. S. 235
For the opinions of the Justices constituting the majority of
the Court,
see:
Opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR.
JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN, p.
354 U. S.
235.
Opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE
HARLAN, concurring in the result,
post, p.
354 U. S.
255.
For dissenting opinion of MR. JUSTICE CLARK, joined by MR.
JUSTICE BURTON,
see post, p.
354 U. S.
267.
MR. CHIEF JUSTICE WARREN announced the judgment of the Court and
delivered an opinion, in which MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, and MR. JUSTICE BRENNAN join.
This case, like
Watkins v. United States, 354 U.
S. 178, brings before us a question concerning the
constitutional limits of legislative inquiry. The investigation
here was conducted under the aegis of a state legislature, rather
than a House of Congress. This places the controversy in a slightly
different setting from that in
Watkins. The ultimate
question here is whether the investigation deprived Sweezy of due
process of law under the Fourteenth Amendment. For the reasons to
be set out in this opinion, we conclude that the record in this
case does not sustain the power of the State to compel the
disclosures that the witness refused to make.
This case was brought here as an appeal under 28 U.S.C. §
1257(2). Jurisdiction was alleged to rest upon contentions,
rejected by the state courts, that a statute
Page 354 U. S. 236
of New Hampshire is repugnant to the Constitution of the United
States. We postponed a decision on the question of jurisdiction
until consideration of the merits. 352 U.S. 812. The parties
neither briefed nor argued the jurisdictional question. The
appellant has thus failed to meet his burden of showing that
jurisdiction by appeal was properly invoked. The appeal is
therefore dismissed. Treating the appeal papers as a petition for
writ of certiorari, under 28 U.S.C. § 2103, the petition is
granted.
Cf. Union National Bank v. Lamb, 337 U. S.
38,
337 U. S.
39-40.
The investigation in which petitioner was summoned to testify
had its origins in a statute passed by the New Hampshire
legislature in 1951. [
Footnote
1] It was a comprehensive scheme of regulation of subversive
activities. There was a section defining criminal conduct in the
nature of sedition. "Subversive organizations" were declared
unlawful and ordered dissolved. "Subversive persons" were made
ineligible for employment by the state government. Included in the
disability were those employed as teachers or in other capacities
by any public educational institution. A loyalty program was
instituted to eliminate "subversive persons" among government
personnel. All present employees, as well as candidates for
elective office in the future, were required to make sworn
statements that they were not "subversive persons."
In 1953, the legislature adopted a "Joint Resolution Relating to
the Investigation of Subversive Activities." [
Footnote 2] It was resolved:
"That the attorney general is hereby authorized and directed to
make full and complete investigation with respect to violations of
the subversive activities act of 1951 and to determine whether
subversive
Page 354 U. S. 237
persons as defined in said act are presently located within this
state. The attorney general is authorized to act upon his own
motion and upon such information as in his judgment may be
reasonable or reliable. . . ."
"
* * * *"
"The attorney general is directed to proceed with criminal
prosecutions under the subversive activities act whenever evidence
presented to him in the course of the investigation indicates
violations thereof, and he shall report to the 1955 session on the
first day of its regular session the results of this investigation,
together with his recommendations, if any, for necessary
legislation. [
Footnote 3]"
Under state law, this was construed to constitute the Attorney
General as a one-man legislative committee. [
Footnote 4]
Page 354 U. S. 238
He was given the authority to delegate any part of the
investigation to any member of his staff. The legislature conferred
upon the Attorney General the further authority to subpoena
witnesses or documents. He did not have power to hold witnesses in
contempt, however. In the event that coercive or punitive sanctions
were needed, the Attorney General could invoke the aid of a State
Superior Court which could find recalcitrant witnesses in contempt
of court. [
Footnote 5]
Petitioner was summoned to appear before the Attorney General on
two separate occasions. On January 5, 1954, petitioner testified at
length upon his past conduct and associations. He denied that he
had ever been a member of the Communist Party or that he had ever
been part of any program to overthrow the government by force or
violence. The interrogation ranged over many matters, from
petitioner's World War II military service with the Office of
Strategic Services to his sponsorship, in 1949, of the Scientific
and Cultural Conference for World Peace, at which he spoke.
During the course of the inquiry, petitioner declined to answer
several questions. His reasons for doing so were given in a
statement he read to the Committee at
Page 354 U. S. 239
the outset of the hearing. [
Footnote 6] He declared he would not answer those
questions which were not pertinent to the
Page 354 U. S. 240
subject under inquiry as well as those which transgress the
limitations of the First Amendment. In keeping with
Page 354 U. S. 241
this stand, he refused to disclose his knowledge of the
Progressive Party in New Hampshire or of persons with
Page 354 U. S. 242
whom he was acquainted in that organization. [
Footnote 7] No action was taken by the
Attorney General to compel answers to these questions.
The Attorney General again summoned petitioner to testify on
June 3, 1954. There was more interrogation about the witness' prior
contacts with Communists. The Attorney General lays great stress
upon an article which petitioner had co-authored. It deplored the
use of violence by the United States and other capitalist countries
in attempting to preserve a social order which the writers thought
must inevitably fall. This resistance, the article
Page 354 U. S. 243
continued, will be met by violence from the oncoming socialism,
violence which is to be less condemned morally than that of
capitalism since its purpose is to create a "truly human society."
Petitioner affirmed that he styled himself a "classical Marxist"
and a "socialist" and that the article expressed his continuing
opinion.
Again, at the second hearing, the Attorney General asked, and
petitioner refused to answer, questions concerning the Progressive
Party, and its predecessor, the Progressive Citizens of America.
Those were:
"Was she, Nancy Sweezy, your wife, active in the formation of
the Progressive Citizens of America?"
"Was Nancy Sweezy then working with individuals who were then
members of the Communist Party?"
"Was Charles Beebe active in forming the Progressive Citizens of
America?"
"Was Charles Beebe active in the Progressive Party in New
Hampshire?"
"Did he work with your present wife -- Did Charles Beebe work
with your present wife in 1947?"
"Did it (a meeting at the home of Abraham Walenko in Weare
during 1948) have anything to do with the Progressive Party?"
The Attorney General also turned to a subject which had not yet
occurred at the time of the first hearing. On March 22, 1954,
petitioner had delivered a lecture to a class of 100 students in
the humanities course at the University of New Hampshire. This talk
was given at the invitation of the faculty teaching that course.
Petitioner had addressed the class upon such invitations in the two
preceding years as well. He declined to answer the following
questions:
"What was the subject of your lecture?"
"Didn't you tell the class at the University of New Hampshire on
Monday, March 22, 1954, that Socialism was inevitable in this
country? "
Page 354 U. S. 244
"Did you advocate Marxism at that time?"
"Did you express the opinion, or did you make the statement at
that time that Socialism was inevitable in America?"
"Did you in this last lecture on March 22 or in any of the
former lectures espouse the theory of dialectical materialism?"
Distinct from the categories of questions about the Progressive
Party and the lectures was one question about petitioner's
opinions. He was asked: "Do you believe in Communism?" He had
already testified that he had never been a member of the Communist
Party, but he refused to answer this or any other question
concerning opinion or belief.
Petitioner adhered in this second proceeding to the same reasons
for not answering he had given in his statement at the first
hearing. He maintained that the questions were not pertinent to the
matter under inquiry and that they infringed upon an area protected
under the First Amendment.
Following the hearings, the Attorney General petitioned the
Superior Court of Merrimack County, New Hampshire, setting forth
the circumstances of petitioner's appearance before the Committee
and his refusal to answer certain questions. [
Footnote 8] The petition prayed that the court
propound the questions to the witness. After hearing argument, the
court ruled that the questions set out above were pertinent.
[
Footnote 9] Petitioner was
called as a witness by the court and persisted in his refusal to
answer for constitutional reasons. The court adjudged him in
contempt
Page 354 U. S. 245
and ordered him committed to the county jail until purged of the
contempt.
The New Hampshire Supreme Court affirmed. 100 N.H. 103, 121 A.2d
783. Its opinion discusses only two classes of questions addressed
to the witness: those dealing with the lectures and those about the
Progressive Party and the Progressive Citizens of America. No
mention is made of the single question concerning petitioner's
belief in Communism. In view of what we hold to be the controlling
issue of the case, however, it is unnecessary to resolve
affirmatively that that particular question was or was not included
in the decision by the State Supreme Court.
There is no doubt that legislative investigations, whether on a
federal or state level, are capable of encroaching upon the
constitutional liberties of individuals. It is particularly
important that the exercise of the power of compulsory process be
carefully circumscribed when the investigative process tends to
impinge upon such highly sensitive areas as freedom of speech or
press, freedom of political association, and freedom of
communication of ideas, particularly in the academic community.
Responsibility for the proper conduct of investigations rests, of
course, upon the legislature itself. If that assembly chooses to
authorize inquiries on its behalf by a legislatively created
committee, that basic responsibility carries forward to include the
duty of adequate supervision of the actions of the committee. This
safeguard can be nullified when a committee is invested with a
broad and ill-defined jurisdiction. The authorizing resolution thus
becomes especially significant in that it reveals the amount of
discretion that has been conferred upon the committee.
In this case, the investigation is governed by provisions in the
New Hampshire Subversive Activities Act of
Page 354 U. S. 246
1951. [
Footnote 10] The
Attorney General was instructed by the legislature to look into
violations of that Act. In addition, he was given the far more
sweeping mandate to find out if there were subversive persons, as
defined in that Act, present in New Hampshire. That statute,
therefore, measures the breadth and scope of the investigation
before us.
"Subversive persons" are defined in many gradations of conduct.
Our interest is in the minimal requirements of that definition,
since they will outline its reach. According to the statute, a
person is a "subversive person" if he, by any means, aids in the
commission of any act intended to assist in the alteration of the
constitutional form of government by force or violence. [
Footnote 11] The possible remoteness
from armed insurrection of conduct that could satisfy these
criteria is obvious from the language. The statute goes well beyond
those who are engaged in efforts designed to alter the form of
government by force or violence. The statute declares, in effect,
that the assistant of an assistant is caught up in the definition.
This chain of conduct attains increased significance in light of
the lack of a necessary element of guilty knowledge in either stage
of assistants. The State Supreme Court has held that the definition
encompasses persons engaged in the specified conduct ". . . whether
or not done 'knowingly and willfully.' . . ."
Nelson v.
Wyman, 99 N.H. 33,
Page 354 U. S. 247
39, 105 A.2d 756, 763. The potential sweep of this definition
extends to conduct which is only remotely related to actual
subversion and which is done completely free of any conscious
intent to be a part of such activity.
The statute's definition of "subversive organizations" is also
broad. An association is said to be any group of persons, whether
temporarily or permanently associated together, for joint action or
advancement or views on any subject. [
Footnote 12] An organization is deemed subversive if it
has a purpose to abet, advise or teach activities intended to
assist in the alteration of the constitutional form of government
by force or violence.
The situation before us is in many respects analogous to that in
Wieman v. Updegraff, 344 U. S. 183. The
Court held there that a loyalty oath prescribed by the State of
Oklahoma for all its officers and employees violated the
requirements of the Due Process Clause because it entailed
sanctions for membership in subversive organizations without
scienter. A State cannot, in attempting to bar disloyal individuals
from its employ, exclude persons solely on the basis of
organizational membership, regardless of their knowledge concerning
the organizations to which they belonged. The Court said:
"There can be no dispute about the consequences visited upon a
person excluded from public employment
Page 354 U. S. 248
on disloyalty grounds. In the view of the community, the stain
is a deep one; indeed, it has become a badge of infamy. Especially
is this so in time of cold war and hot emotions, when 'each man
begins to eye his neighbor as a possible enemy.' Yet, under the
Oklahoma Act, the fact of association alone determines disloyalty
and disqualification; it matters not whether association existed
innocently or knowingly. To thus inhibit individual freedom of
movement is to stifle the flow of democratic expression and
controversy at one of its chief sources."
344 U.S. at
344 U. S.
190-191.
The sanction emanating from legislative investigations is of a
different kind than loss of employment. But the stain of the stamp
of disloyalty is just as deep. The inhibiting effect in the flow of
democratic expression and controversy upon those directly affected
and those touched more subtly is equally grave. Yet here, as in
Wieman, the program for the rooting out of subversion is
drawn without regard to the presence or absence of guilty knowledge
in those affected.
The nature of the investigation which the Attorney General was
authorized to conduct is revealed by this case. He delved minutely
into the past conduct of petitioner, thereby making his private
life a matter of public record. The questioning indicates that the
investigators had thoroughly prepared for the interview, and were
not acquiring new information as much as corroborating data already
in their possession. On the great majority of questions, the
witness was cooperative, even though he made clear his opinion that
the interrogation was unjustified and unconstitutional. Two
subjects arose upon which petitioner refused to answer: his
lectures at the University of New Hampshire, and his knowledge of
the Progressive Party and its adherents.
Page 354 U. S. 249
The state courts upheld the attempt to investigate the academic
subject on the ground that it might indicate whether petitioner was
a "subversive person." What he taught the class at a state
university was found relevant to the character of the teacher. The
State Supreme Court carefully excluded the possibility that the
inquiry was sustainable because of the state interest in the state
university. There was no warrant in the authorizing resolution for
that. 100 N.H. at 110, 121 A.2d at 789, 790. The sole basis for the
inquiry was to scrutinize the teacher as a person, and the inquiry
must stand or fall on that basis.
The interrogation on the subject of the Progressive Party was
deemed to come within the Attorney General's mandate because that
party might have been shown to be a "subversive organization." The
State Supreme Court held that the
". . . questions called for answers concerning the membership or
participation of named persons in the Progressive Party which, if
given, would aid the Attorney General in determining whether that
party and its predecessor are or were subversive
organizations."
100 N.H. at 112, 121 A.2d at 791.
The New Hampshire court concluded that the
". . . right to lecture and the right to associate with others
for a common purpose, be it political or otherwise, are individual
liberties guaranteed to every citizen by the State and Federal
Constitutions, but are not absolute rights. . . . The inquiries
authorized by the Legislature in connection with this investigation
concerning the contents of the lecture and the membership,
purposes, and activities of the Progressive Party undoubtedly
interfered with the defendant's free exercise of those
liberties."
100 N.H. at 113, 121 A.2d at 791, 792.
The State Supreme Court thus conceded without extended
discussion that petitioner's right to lecture and his right to
associate with others were constitutionally
Page 354 U. S. 250
protected freedoms which had been abridged through this
investigation. These conclusions could not be seriously debated.
Merely to summon a witness and compel him, against his will, to
disclose the nature of his past expressions and associations in a
measure of governmental interference in these matters. These are
rights which are safeguarded by the Bill of Rights and the
Fourteenth Amendment. We believe that there unquestionably was an
invasion of petitioner's liberties in the areas of academic freedom
and political expression -- areas in which government should be
extremely reticent to tread.
The essentiality of freedom in the community of American
universities is almost self-evident. No one should underestimate
the vital role in a democracy that is played by those who guide and
train our youth. To impose any strait jacket upon the intellectual
leaders in our colleges and universities would imperil the future
of our Nation. No field of education is so thoroughly comprehended
by man that new discoveries cannot yet be made. Particularly is
that true in the social sciences, where few, if any, principles are
accepted as absolutes. Scholarship cannot flourish in an atmosphere
of suspicion and distrust. Teachers and students must always remain
free to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise, our civilization will stagnate and
die.
Equally manifest as a fundamental principle of a democratic
society is political freedom of the individual. Our form of
government is built on the premise that every citizen shall have
the right to engage in political expression and association. This
right was enshrined in the First Amendment of the Bill of Rights.
Exercise of these basic freedoms in America has traditionally been
through the media of political associations. Any interference with
the freedom of a party is simultaneously an interference with the
freedom of its adherents. All political
Page 354 U. S. 251
ideas cannot and should not be channeled into the programs of
our two major parties. History has amply proved the virtue of
political activity by minority, dissident groups, who innumerable
times have been in the vanguard of democratic thought and whose
programs were ultimately accepted. Mere unorthodoxy or dissent from
the prevailing mores is not to be condemned. The absence of such
voices would be a symptom of grave illness in our society.
Notwithstanding the undeniable importance of freedom in the
areas, the Supreme Court of New Hampshire did not consider that the
abridgment of petitioner's rights under the Constitution vitiated
the investigation. In the view of that court,
"the answer lies in a determination of whether the object of the
legislative investigation under consideration is such as to justify
the restriction thereby imposed upon the defendant's
liberties."
100 N.H. at 113-114, 121 A.2d at 791, 792. It found such
justification in the legislature's judgment, expressed by its
authorizing resolution, that there exists a potential menace from
those who would overthrow the government by force and violence.
That court concluded that the need for the legislature to be
informed on so elemental a subject as the self-preservation of
government outweighed the deprivation of constitutional rights that
occurred in the process.
We do not now conceive of any circumstance wherein a state
interest would justify infringement of rights in these fields. But
we do not need to reach such fundamental questions of state power
to decide this case. The State Supreme Court itself recognized that
there was a weakness in its conclusion that the menace of forcible
overthrow of the government justified sacrificing constitutional
rights. There was a missing link in the chain of reasoning. The
syllogism was not complete. There was nothing to connect the
questioning of petitioner with this fundamental interest of the
State. Petitioner had been
Page 354 U. S. 252
interrogated by a one-man legislative committee, not by the
legislature itself. The relationship of the committee to the full
assembly is vital, therefore, as revealing the relationship of the
questioning to the state interest.
In light of this, the state court emphasized a factor in the
authorizing resolution which confined the inquiries which the
Attorney General might undertake to the object of the
investigation. That limitation was thought to stem from the
authorizing resolution's condition precedent to the institution of
any inquiry. The New Hampshire legislature specified that the
Attorney General should act only when he had information which " .
. . in his judgment may be reasonable or reliable." The state court
construed this to mean that the Attorney General must have
something like probable cause for conducting a particular
investigation. It is not likely that this device would prove an
adequate safeguard against unwarranted inquiries. The legislature
has specified that the determination of the necessity for inquiry
shall be left in the judgment of the investigator. In this case,
the record does not reveal what reasonable or reliable information
led the Attorney General to question petitioner. The state court
relied upon the Attorney General's description of prior information
that had come into his possession. [
Footnote 13]
Page 377 U. S. 253
The respective roles of the legislature and the investigator
thus revealed are of considerable significance to the issue before
us. It is eminently clear that the basic discretion of determining
the direction of the legislative inquiry has been turned over to
the investigative agency. The Attorney General has been given such
a sweeping and uncertain mandate that it is his decision which
picks out the subjects that will be pursued, what witnesses will be
summoned, and what questions will be asked. In this circumstance,
it cannot be stated authoritatively that the legislature asked the
Attorney General to gather the kind of facts comprised in the
subjects upon which petitioner was interrogated.
Instead of making known the nature of the data it desired, the
legislature has insulated itself from those witnesses whose rights
may be vitally affected by the investigation. Incorporating by
reference provisions from its subversive activities act, it has
told the Attorney General, in effect to screen the citizenry of New
Hampshire to bring to light anyone who fits into the expansive
definitions.
Within the very broad area thus committed to the discretion of
the Attorney General, there may be many facts
Page 354 U. S. 254
which the legislature might find useful. There would also be a
great deal of data which that assembly would not want or need. In
the classes of information that the legislature might deem to
desirable to have, there will be some which it could not validly
acquire because of the effect upon the constitutional rights of
individual citizens. Separating the wheat from the chaff, from the
standpoint of the legislature's object, is the legislature's
responsibility, because it alone can make that judgment. In this
case, the New Hampshire legislature has delegated that task to the
Attorney General.
As a result, neither we nor the state courts have any assurance
that the questions petitioner refused to answer fall into a
category of matters upon which the legislature wanted to be
informed when it initiated this inquiry. The judiciary are thus
placed in an untenable position. Lacking even the elementary fact
that the legislature wants certain questions answered and
recognizing that petitioner's constitutional rights are in
jeopardy, we are asked to approve or disapprove his incarceration
for contempt.
In our view, the answer is clear. No one would deny that the
infringement of constitutional rights of individuals would violate
the guarantee of due process where no state interest underlies the
state action. Thus, if the Attorney General's interrogation of
petitioner were in fact wholly unrelated to the object of the
legislature in authorizing the inquiry, the Due Process Clause
would preclude the endangering of constitutional liberties. We
believe that an equivalent situation is presented in this case. The
lack of any indications that the legislature wanted the information
the Attorney General attempted to elicit from petitioner must be
treated as the absence of authority. It follows that the use of the
contempt power, notwithstanding the interference with
constitutional rights,
Page 354 U. S. 255
was not in accordance with the due process requirements of the
Fourteenth Amendment.
The conclusion that we have reached in this case is not grounded
upon the doctrine of separation of powers. In the Federal
Government, it is clear that the Constitution has conferred the
powers of government upon three major branches: the Executive, the
Legislative and the Judicial. No contention has been made by
petitioner that the New Hampshire legislature, by this
investigation, arrogated to itself executive or judicial powers. We
accept the finding of the State Supreme Court that the employment
of the Attorney General as the investigating committee does not
alter the legislative nature of the proceedings. Moreover, this
Court has held that the concept of separation of powers embodied in
the United States Constitution is not mandatory in state
governments.
Dreyer v. Illinois, 187 U. S.
71;
but cf. Tenney v. Brandhove, 341 U.
S. 367,
341 U. S. 378.
Our conclusion does rest upon a separation of the power of a state
legislature to conduct investigations from the responsibility to
direct the use of that power insofar as that separation causes a
deprivation of the constitutional rights of individuals and a
denial of due process of law.
The judgment of the Supreme Court of New Hampshire is
reversed.
Reversed.
MR. JUSTICE WHITTAKER took no part in the consideration or
decision of this case.
[
Footnote 1]
N.H.Laws 1951, c. 193; now N.H.Rev.Stat.Ann.1955, c. 588, §§
1-16.
[
Footnote 2]
N.H.Laws 1953, c. 307.
[
Footnote 3]
The authority of the Attorney General was continued for another
two-year period by N.H.Laws 1955, cc. 197, 340.
[
Footnote 4]
"Having determined that an investigation should be conducted
concerning a proper subject of action by it, the Legislature's
choice of the Attorney General as its investigating committee,
instead of a committee of its own members or a special board or
commission, was not, in and of itself, determinative of the nature
of the investigation. His position as the chief law enforcement
officer of the State did not transform the inquiry which was
otherwise legislative into executive action."
Nelson v. Wyman, 99 N.H. 33, 38, 105 A.2d 756, 762,
763.
The Attorney General of New Hampshire is appointed to office by
the Governor and the State Council, a group of five persons who
share some of the executive responsibilities in the State
Government. The principal duties of the Attorney General are set
forth in N.H.Rev.Stat.Ann.1955, c. 7, §§ 6-11. He represents the
State in all cases before the State Supreme Court. He prosecutes
all criminal cases in which the accused is charged with an offense
punishable by twenty-five years in prison or more. All other
criminal cases are under his general supervision. He gives opinions
on questions of law to the legislature, or to state boards,
departments, commissions, officers, etc., on questions relating to
their official duties.
[
Footnote 5]
"Whenever any official or board is given the power to summon
witnesses and take testimony, but has not the power to punish for
contempt, and any witness refuses to obey such summons, either as
to his appearance or as to the production of things specified in
the summons, or refuses to testify or to answer any question, a
petition for an order to compel him to testify or his compliance
with the summons may be filed in the superior court, or with some
justice thereof."
N.H.Rev.Stat.Ann.1955, c. 491, § 19.
"Upon such petition the court or justice shall have authority to
proceed in the matter as though the original proceeding had been in
the court, and may make orders and impose penalties
accordingly."
Id., § 20.
See State v. Uphaus, 100 N.H. 1,
116 A.2d 887.
[
Footnote 6]
"Those called to testify before this and other similar
investigations can be classified in three categories."
"First there are Communists and those who have reason to believe
that, even if they are not Communists, they have been accused of
being and are in danger of harassment and prosecution."
"Second, there are those who approve of the purposes and methods
of these investigations."
"Third, there are those who are not Communists and do not
believe they are in danger of being prosecuted, but who yet deeply
disapprove of the purposes and methods of these
investigations."
"The first group will naturally, and I think wholly justifiably,
plead the constitutional privilege of not being witnesses against
themselves."
"The second group will equally naturally be cooperative
witnesses."
"The third group is faced with an extremely difficult dilemma. I
know, because I belong to this third group, and I have been
struggling with its problems for many weeks now. I would like to
explain what the nature of that dilemma is. I think it is important
that both those conducting these inquiries and the public should
understand."
"It is often said: if a person is not a Communist and has
nothing to fear, why should he not answer whatever questions are
put to him and be done with it? The answer, of course, is that some
of us believe these investigations are evil and dangerous, and we
do not want to give our approval to them, either tacitly or
otherwise. On the contrary, we want to oppose them to the best of
our ability and persuade others to do likewise, with the hope of
eventually abolishing them altogether."
"Our reasons for opposing these investigations are not captious
or trivial. They have deep roots in principle and conscience. Let
me explain with reference to the present New Hampshire
investigation. The official purpose of the inquiry is to uncover
and lay the basis for the prosecution of persons who in one way or
another promote the forcible overthrow of constitutional forms of
government. Leaving aside the question of the constitutionality of
the investigation, which is now before the courts, I think it must
be plain to any reasonable person who is at all well informed about
conditions in New Hampshire today that strict adherence to this
purpose would leave little room for investigation. It is obvious
enough that there are few radicals or dissenters of any kind in New
Hampshire; and if there are any who advocate use of force and
violence, they must be isolated crackpots who are no danger to
anyone, least of all to the constitutional form of government of
state and nation. The Attorney General should be able to check
these facts quickly and issue a report satisfying the mandate laid
upon him by the legislature."
"But this is not what he has done. We do not know the whole
story, but enough has come out to show that the Attorney General
has issued a considerable number of subpoenas and has held hearings
in various parts of the state. And so far as the available
information allows us to judge, most of those subpoenaed have
fallen into one or both of two groups: first professors at
Dartmouth and the University of New Hampshire who have gained a
reputation for liberal or otherwise unorthodox views, and second,
people who have been active in the Progressive Party. It should be
specially noted that whatever may be thought of the Progressive
Party in any other respect, it was certainly not devoted to violent
overthrow of constitutional forms of government, but, on the
contrary, to effecting reforms through the very democratic
procedures which are the essence of constitutional forms of
government."
"The pattern I have described is no accident. Whatever their
official purpose, these investigations always end up by inquiring
into the politics, ideas, and beliefs of people who hold what are,
for the time being, unpopular views. The federal House Committee on
Un-American Activities, for example, is supposed to investigate
various kinds of propaganda, and has no other mandate whatever.
Over the years, however, it has spent almost no time investigating
propaganda, and has devoted almost all of its energies to
'exposing' people and their ideas, their affiliations, their
associations. Similarly, this New Hampshire investigation is
supposed to be concerned with violent overthrow of government, but
it is actually turning out to be concerned with what few
manifestations of political dissent have made themselves felt in
the state in recent years."
"If all this is so, and if the very first principle of the
American constitutional form of government is political freedom --
which I take to include freedoms of speech, press, assembly, and
association -- then I do not see how it can be denied that these
investigations are a grave danger to all that Americans have always
claimed to cherish. No rights are genuine if a person, for
exercising them, can be hauled up before some tribunal and forced
under penalties of perjury and contempt to account for his ideas
and conduct."
"Let us now return to the problem of the witness who would have
nothing to fear from being what is nowadays styled a 'friendly'
witness, but who feels deeply that to follow such a course would be
a betrayal of his principles and repugnant to his conscience. What
other courses are open to him?"
"He can claim the privilege not to be a witness against himself,
and thus avoid a hateful inquisition. I respect the decision of
those who elect to take this course. My own reason for rejecting it
is that, with public opinion in its present state, the exercise of
the privilege is almost certain to be widely misinterpreted. One of
the noblest and most precious guarantees of freedom, won in the
course of bitter struggles and terrible suffering, has been
distorted in our own day to mean a confession of guilt, the more
sinister because undefined and indeed undefinable. It is
unfortunate, but true, that the public at large has accepted this
distortion, and will scarcely listen to those who have invoked the
privilege."
"Alternatively, the witness can seek to uphold his principles
and maintain his integrity not by claiming the protection of the
Fifth Amendment (or the Fifteenth Article of the New Hampshire Bill
of Rights), but by contesting the legitimacy of offensive questions
on other constitutional and legal grounds."
"Just how far the First Amendment limits the right of
legislative inquiry has not been settled. The Supreme Court of the
United States is at this very moment considering a case (the
Emspak case) which may do much to settle the question. But
even before the Court has handed down its decision in the
Emspak case, it is quite certain that the First Amendment
does place some limitations on the power of investigation, and it
is always open to a witness to challenge a question on the ground
that it transgresses these limitations and, if necessary, to take
the issue to the courts for decision."
"Moreover, a witness may not be required to answer questions
unless they are 'pertinent to the matter under inquiry' (the words
are those of the United States Supreme Court)."
"What is the 'matter under inquiry' in the present
investigation? According to the Act of the New Hampshire
legislature directing the investigation, its purpose is twofold:
(1) 'to make full and complete investigation with respect to
violations of the subversive activities act of 1951,' and (2) 'to
determine whether subversive persons as defined in said act are
presently located within this state.'"
"I have studied the subversive activities act of 1951 with care,
and I am glad to volunteer the information that I have absolutely
no knowledge of any violations of any of its provisions; further,
that I have no knowledge of subversive persons presently located
within the state."
"That these statements may carry full conviction, I am prepared
to answer certain questions about myself, though in doing so I do
not mean to concede the right to ask them. I am also prepared to
discuss my views relating to the use of force and violence to
overthrow constitutional forms of government."
"But I shall respectfully decline to answer questions concerning
ideas, beliefs, and associations which could not possibly be
pertinent to the matter here under inquiry and/or which seem to me
to invade the freedoms guaranteed by the First Amendment to the
United States Constitution (which, of course, applies equally to
the several states)."
[
Footnote 7]
The Progressive Party offered a slate of candidates for national
office in the 1948 presidential election. Henry A. Wallace, former
Vice President of the United States, was the party's selection for
the presidency. Glen Taylor, former United States Senator, was the
vice-presidential nominee of the party. Nationwide, the party
received a popular vote of 1,156,103. Of this total, 1,970 votes
for Progressive Party candidates were cast in New Hampshire.
Statistics of the Presidential and Congressional Election of
November 2, 1948, pp. 24, 48-49.
[
Footnote 8]
See note 5
supra.
[
Footnote 9]
The court made a general ruling that questions concerning the
opinions or beliefs of the witness were not pertinent.
Nevertheless, it did propound to the witness the one question about
his belief in Communism.
[
Footnote 10]
See note 1
supra.
[
Footnote 11]
"'Subversive person' means any person who commits, attempts to
commit, or aids in the commission, or advocates, abets, advises or
teaches, by any means any person to commit, attempt to commit, or
aid in the commission of any act intended to overthrow, destroy or
alter, or to assist in the overthrow, destruction or alteration of,
the constitutional form of the government of the United States, or
of the state of New Hampshire, or any political subdivision of
either of them, by force, or violence; or who is a member of a
subversive organization or a foreign subversive organization."
N.H.Rev.Stat.Ann.1955, c. 588, § 1.
[
Footnote 12]
"For the purpose of this chapter 'organization' means an
organization, corporation, company, partnership, association,
trust, foundation, fund, club, society, committee, political party,
or any group of persons, whether or not incorporated, permanently
or temporarily associated together for joint action or advancement
of views on any subject or subjects."
"'Subversive organization' means any organization which engages
in or advocates, abets, advises, or teachers, or a purpose of which
is to engage in or advocate, abet, advise, or teach activities
intended to overthrow, destroy or alter, or to assist in the
overthrow, destruction or alteration of, the constitutional form of
the government of the United States, or of the state of New
Hampshire, or of any political subdivision of either of them, by
force, or violence."
Ibid.
[
Footnote 13]
The State Supreme Court illustrated the "reasonable or reliable"
information underlying the inquiries on the Progressive Party by
quoting from a remark made by the Attorney General at the hearing
in answer to petitioner's objection to a line of questions. The
Attorney General had declared that he had
". . . considerable sworn testimony . . . to the effect that the
Progressive Party in New Hampshire has been heavily infiltrated by
members of the Communist Party, and that the policies and purposes
of the Progressive Party have been directly influenced by members
of the Communist Party."
100 N.H. at 111, 121 A.2d at 790, 791. None of this testimony is
a part of the record in this case. Its existence and weight were
not independently reviewed by the state courts.
The court did not point to anything that supported the
questioning on the subject of the lecture. It stated that the
Attorney General could inquire about lectures only if he
". . . possesses reasonable or reliable information indicating
that the violent overthrow of existing government may have been
advocated or taught, either 'knowingly and wilfully' or not."
100 N.H. at 110, 121 A.2d at 789, 790. What, if anything,
indicated that petitioner knowingly or innocently advocated or
taught violent overthrow of existing government does not appear. At
one point in the hearing, the Attorney General said to
petitioner:
"I have in the file here a statement from a person who attended
your class, and I will read it in part because I don't want you to
think I am just fishing. 'His talk this time was on the
inevitability of the Socialist program. It was a glossed-over
interpretation of the materialist dialectic.'"
R. 107. The court did not cite this statement.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins,
concurring in the result.
For me, this is a very different case from
Watkins v. United
States, 354 U. S. 178.
This case comes to us solely through the limited power to review
the action of the
Page 354 U. S. 256
States conferred upon the Court by the Fourteenth Amendment.
Petitioner claims that respect for liberties guaranteed by the Due
Process Clause of that Amendment precludes the State of New
Hampshire from compelling him to answer certain questions put to
him by the investigating arm of its legislature. Ours is the
narrowly circumscribed but exceedingly difficult task of making the
final judicial accommodation between the competing weighty claims
that underlie all such questions of due process.
In assessing the claim of the State of New Hampshire to the
information denied it by petitioner, we cannot concern ourselves
with the fact that New Hampshire chose to make its Attorney General
in effect a standing committee of its legislature for the purpose
of investigating the extent of "subversive" activities within its
bounds. The case must be judged as though the whole body of the
legislature had demanded the information of petitioner. It would
make the deepest inroads upon our federal system for this Court now
to hold that it can determine the appropriate distribution of
powers and their delegation within the forty-eight States. As the
earlier Mr. Justice Harlan said for a unanimous Court in
Dreyer
v. Illinois, 187 U. S. 71,
187 U. S.
84:
"Whether the legislative, executive and judicial powers of a
State shall be kept altogether distinct and separate, or whether
persons or collections of persons belonging to one department may,
in respect to some matters, exert powers which, strictly speaking,
pertain to another department of government, is for the
determination of the State. And its determination one way or the
other cannot be an element in the inquiry whether the due process
of law prescribed by the Fourteenth Amendment has been respected by
the State or its representatives when dealing with matters
involving life or liberty. "
Page 354 U. S. 257
Whether the state legislature should operate largely by
committees, as does the Congress, or whether committees should be
the exception, as is true of the House of Commons, whether the
legislature should have two chambers or only one, as in Nebraska,
whether the State's chief executive should have the pardoning
power, whether the State's judicial branch must provide trial by
jury, are all matters beyond the reviewing powers of this Court.
Similarly, whether the Attorney General of New Hampshire acted
within the scope of the authority given him by the state
legislature is a matter for the decision of the courts of that
State, as it is for the federal courts to determine whether an
agency to which Congress has delegated power has acted within the
confines of its mandate.
See United States v. Rumely,
345 U. S. 41.
Sanction of the delegation rests with the New Hampshire Supreme
Court, and its validation in
Nelson v. Wyman, 99 N.H. 33,
105 A.2d 756, is binding here.
Pursuant to an investigation of subversive activities authorized
by a joint resolution of both houses of the New Hampshire
legislature, the State Attorney General subpoenaed petitioner
before him on January 8, 1954, for extensive questioning. Among the
matters about which petitioner was questioned were: details of his
career and personal life, whether he was then or ever had been a
member of the Communist Party, whether he had ever attended its
meetings, whether he had ever attended meetings that he knew were
also attended by Party members, whether he knew any Communists in
or out of the State, whether he knew named persons with alleged
connections with organizations either on the United States Attorney
General's list or cited by the Un-American Activities Committee of
the United States House of Representatives or had ever attended
meetings with them, whether he had ever taught or supported the
Page 354 U. S. 258
overthrow of the State by force or violence or had ever known or
assisted any persons or groups that had done so, whether he had
ever been connected with organizations on the Attorney General's
list, whether he had supported or written in behalf of a variety of
allegedly subversive, named causes, conferences, periodicals,
petitions, and attempts to raise funds for the legal defense of
certain persons, whether he knew about the Progressive Party, what
positions he had held in it, whether he had been a candidate for
Presidential Elector for that Party, whether certain persons were
in that Party, whether Communists had influenced or been members of
the Progressive Party, whether he had sponsored activities in
behalf of the candidacy of Henry A. Wallace, whether he advocated
replacing the capitalist system with another economic system,
whether his conception of socialism involved force and violence,
whether, by his writings and actions, he had ever attempted to
advance the Soviet Union's "propaganda line," whether he had ever
attended meetings of the Liberal Club at the University of New
Hampshire, whether the magazine of which he was co-editor was "a
Communist-line publication," and whether he knew named persons.
Petitioner answered most of these questions, making it very
plain that he had never been a Communist, never taught violent
overthrow of the Government, never knowingly associated with
Communists in the State, but was a socialist believer in peaceful
change who had at one time belonged to certain organizations on the
list of the United States Attorney General (which did not include
the Progressive Party) or cited by the House Un-American Activities
Committee. He declined to answer as irrelevant or violative of free
speech guaranties certain questions about the Progressive Party and
whether he knew particular persons. He stated repeatedly, however,
that
Page 354 U. S. 259
he had no knowledge of Communists or of Communist influence in
the Progressive Party, and he testified that he had been a
candidate for that Party, signing the required loyalty oath, and
that he did not know whether an alleged Communist leader was active
in the Progressive Party.
Despite the exhaustive scope of this inquiry, the Attorney
General again subpoenaed petitioner to testify on June 3, 1954, and
the interrogation was similarly sweeping. Petitioner again answered
virtually all questions, including those concerning the
relationship of named persons to the Communist Party or other
causes deemed subversive under state laws, alleged Communist
influence on all organizations with which he had been connected
including the Progressive Party, and his own participation in
organizations other than the Progressive Party and its antecedent,
the Progressive Citizens of America. He refused, however, to answer
certain questions regarding (1) a lecture given by him at the
University of New Hampshire, (2) activities of himself and others
in the Progressive political organizations, and (3) "opinions and
beliefs," invoking the constitutional guarantees of free
speech.
The Attorney General then petitioned the Superior Court to order
petitioner to answer questions in these categories. The court ruled
that petitioner had to answer those questions pertaining to the
lectures and to the Progressive Party and its predecessor, but not
those otherwise pertaining to "opinions and beliefs." Upon
petitioner's refusal to answer the questions sanctioned by the
court, he was found in contempt of court and ordered committed to
the county jail until purged of contempt.
The Supreme Court of New Hampshire affirmed the order of the
Superior Court. It held that the questions at issue were relevant,
and that no constitutional provision permitted petitioner to
frustrate the State's demands. 100 N.H. 103, 121 A.2d 783.
Page 354 U. S. 260
The questions that petitioner refused to answer regarding the
university lecture, the third given by him in three years at the
invitation of the faculty for humanities, were:
"What was the subject of your lecture?"
"Didn't you tell the class at the University of New Hampshire on
Monday, March 22, 1954, that Socialism was inevitable in this
country?"
"Did you advocate Marxism at that time?"
"Did you express the opinion, or did you make the statement at
that time that Socialism was inevitable in America?"
"Did you, in this last lecture on March 22 or in any of the
former lectures, espouse the theory of dialectical
materialism?"
"I have in the file here a statement from a person who attended
your class, and I will read it in part because I don't want you to
think I am just fishing. 'His talk this time was on the
inevitability of the Socialist program. It was a glossed-over
interpretation of the materialist dialectic.' Now, again I ask you
the original question."
In response to the first question of this series, petitioner had
said at the hearing:
"I would like to say one thing in this connection, Mr. Wyman. I
stated under oath at my last appearance that, and I now repeat it,
that I do not advocate or in any way further the aim of
overthrowing constitutional government by force and violence. I did
not so advocate in the lecture I gave at the University of New
Hampshire. In fact, I have never at any time so advocated in a
lecture anywhere. Aside from that, I have nothing I want to say
about the lecture in question."
The New Hampshire Supreme Court, although recognizing that such
inquiries (100 N.H. 113, 114, 121 A.2d 792) "undoubtedly interfered
with
Page 354 U. S. 261
the defendant's free exercise" of his constitutionally
guaranteed right to lecture, justified the interference on the
ground that it would occur
"in a limited area in which the legislative committee may
reasonably believe that the overthrow of existing government by
force and violence is being or has been taught, advocated or
planned, an area in which the interest of the State justifies this
intrusion upon civil liberties."
According to the court, the facts that made reasonable the
committee's belief that petitioner had taught violent overthrow in
his lecture were that he was a Socialist with a record of
affiliation with groups cited by the Attorney General of the United
States or the House Un-American Activities Committee and that he
was co-editor of an article stating that, although the authors
hated violence, it was less to be deplored when used by the Soviet
Union than by capitalist countries.
When weighed against the grave harm resulting from governmental
intrusion into the intellectual life of a university, such
justification for compelling a witness to discuss the contents of
his lecture appears grossly inadequate. Particularly is this so
where the witness has sworn that neither in the lecture nor at any
other time did he ever advocate overthrowing the Government by
force and violence.
Progress in the natural sciences is not remotely confined to
findings made in the laboratory. Insights into the mysteries of
nature are born of hypothesis and speculation. The more so is this
true in the pursuit of understanding in the groping endeavors of
what are called the social sciences, the concern of which is man
and society. The problems that are the respective preoccupations of
anthropology, economics, law, psychology, sociology and related
areas of scholarship are merely departmentalized dealing, by way of
manageable division of analysis, with interpenetrating aspects of
holistic perplexities.
Page 354 U. S. 262
For society's good -- if understanding be an essential need of
society -- inquiries into these problems, speculations about them,
stimulation in others of reflection upon them, must be left as
unfettered as possible. Political power must abstain from intrusion
into this activity of freedom, pursued in the interest of wise
government and the people's wellbeing, except for reasons that are
exigent and obviously compelling.
These pages need not be burdened with proof, based on the
testimony of a cloud of impressive witnesses, of the dependence of
a free society on free universities. This means the exclusion of
governmental intervention in the intellectual life of a university.
It matters little whether such intervention occurs avowedly or
through action that inevitably tends to check the ardor and
fearlessness of scholars, qualities at once so fragile and so
indispensable for fruitful academic labor. One need only refer to
the address of T. H. Huxley at the opening of Johns Hopkins
University, the Annual Reports of President A. Lawrence Lowell of
Harvard, the Reports of the University Grants Committee in Great
Britain, as illustrative items in a vast body of literature.
Suffice it to quote the latest expression on this subject. It is
also perhaps the most poignant because its plea on behalf of
continuing the free spirit of the open universities of South Africa
has gone unheeded.
"In a university, knowledge is its own end, not merely a means
to an end. A university ceases to be true to its own nature if it
becomes the tool of Church or State or any sectional interest. A
university is characterized by the spirit of free inquiry, its
ideal being the ideal of Socrates -- 'to follow the argument where
it leads.' This implies the right to examine, question, modify or
reject traditional ideas and beliefs. Dogma and hypothesis are
incompatible, and the concept of an immutable doctrine is
repugnant
Page 354 U. S. 263
to the spirit of a university. The concern of its scholars is
not merely to add and revise facts in relation to an accepted
framework, but to be ever examining and modifying the framework
itself."
"
* * * *"
"Freedom to reason and freedom for disputation on the basis of
observation and experiment are the necessary conditions for the
advancement of scientific knowledge. A sense of freedom is also
necessary for creative work in the arts which, equally with
scientific research, is the concern of the university."
"
* * * *"
". . . It is the business of a university to provide that
atmosphere which is most conducive to speculation, experiment and
creation. It is an atmosphere in which there prevail 'the four
essential freedoms' of a university -- to determine for itself on
academic grounds who may teach, what may be taught, how it shall be
taught, and who may be admitted to study."
The Open Universities in South Africa 10-12. (A statement of a
conference of senior scholars from the University of Cape Town and
the University of the Witwatersrand, including A. v. d. S.
Centlivres and Richard Feetham, as Chancellors of the respective
universities. [
Footnote 2/1])
I do not suggest that what New Hampshire has here sanctioned
bears any resemblance to the policy against which this South
African remonstrance was directed. I do say that in these matters
of the spirit inroads on legitimacy must be resisted at their
incipiency. This kind of evil grows by what it is allowed to feed
on. The
Page 354 U. S. 264
admonition of this Court in another context is applicable
here.
"It may be that it is the obnoxious thing in its mildest and
least repulsive form, but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of
procedure."
Boyd v. United States, 116 U.
S. 616,
116 U. S.
635.
Petitioner stated, in response to questions at the hearing, that
he did not know of any Communist interest in, connection with,
influence over, activity in, or manipulation of the Progressive
Party. He refused to answer, despite court order, the following
questions on the ground that, by inquiring into the activities of a
lawful political organization, they infringed upon the
inviolability of the right to privacy in his political thoughts,
actions and associations:
"Was she, Nancy Sweezy, your wife, active in the formation of
the Progressive Citizens of America?"
"Was Nancy Sweezy then working with individuals who were then
members of the Communist Party? [
Footnote 2/2]"
"Was Charles Beebe active in forming the Progressive Citizens of
America?"
"Did he work with your present wife -- id Charles Beebe work
with your present wife in 1947?"
"Did it [a meeting at the home of one Abraham Walenko] have
anything to do with the Progressive Party? "
Page 354 U. S. 265
The Supreme Court of New Hampshire justified this intrusion upon
his freedom on the same basis that it upheld questioning about the
university lecture, namely, that the restriction was limited to
situations where the Committee had reason to believe that violent
overthrow of the Government was being advocated or planned. It
ruled:
". . . That he [the Attorney General] did possess information
which was sufficient to reasonably warrant inquiry concerning the
Progressive Party is evident from his statement made during the
hearings held before him that"
"considerable sworn testimony has been given in this
investigation to the effect that the Progressive Party in New
Hampshire has been heavily infiltrated by members of the Communist
Party, and that the policies and purposes of the Progressive Party
have been directly influenced by members of the Communist
Party."
100 N.H. 111, 121 A.2d 790.
For a citizen to be made to forego even a part of so basic a
liberty as his political autonomy, the subordinating interest of
the State must be compelling. Inquiry pursued in safeguarding a
State's security against threatened force and violence cannot be
shut off by mere disclaimer, though, of course, a relevant claim
may be made to the privilege against self-incrimination. (The New
Hampshire Constitution guarantees this privilege.) But the
inviolability of privacy belonging to a citizen's political
loyalties has so overwhelming an importance to the wellbeing of our
kind of society that it cannot be constitutionally encroached upon
on the basis of so meagre a countervailing interest of the State as
may be argumentatively found in the remote, shadowy threat to the
security of New Hampshire allegedly presented in the origins and
contributing elements of the Progressive Party and in petitioner's
relations to these.
Page 354 U. S. 266
In the political realm, as in the academic, thought and action
are presumptively immune from inquisition by political authority.
It cannot require argument that inquiry would be barred to
ascertain whether a citizen had voted for one or the other of the
two major parties either in a state or national election. Until
recently, no difference would have been entertained in regard to
inquiries about a voter's affiliations with one of the various
so-called third parties that have had their day, or longer, in our
political history. This is so even though adequate protection of
secrecy by way of the Australian ballot did not come into use till
1888. The implications of the United States Constitution for
national elections and "the concept of ordered liberty" implicit in
the Due Process Clause of the Fourteenth Amendment as against the
States,
Palko v. Connecticut, 302 U.
S. 319,
302 U. S. 325,
were not frozen as of 1789 or 1868, respectively. While the
language of the Constitution does not change, the changing
circumstances of a progressive society for which it was designed
yield new and fuller import to its meaning.
See Hurtado v.
California, 110 U. S. 516,
110 U. S.
528-529;
McCulloch v.
Maryland, 4 Wheat. 316. Whatever, on the basis of
massive proof and in the light of history, of which this Court may
well take judicial notice, be the justification for not regarding
the Communist Party as a conventional political party, no such
justification has been afforded in regard to the Progressive Party.
A foundation in fact and reason would have to be established far
weightier than the intimations that appear in the record to warrant
such a view of the Progressive Party. [
Footnote 2/3] This precludes the questioning that
petitioner resisted in regard to that Party.
To be sure, this is a conclusion based on a judicial judgment in
balancing two contending principles -- the right
Page 354 U. S. 267
of a citizen to political privacy, as protected by the
Fourteenth Amendment, and the right of the State to
self-protection. And striking the balance implies the exercise of
judgment. This is the inescapable judicial task in giving
substantive content, legally enforced, to the Due Process Clause,
and it is a task ultimately committed to this Court. It must not be
an exercise of whim or will. It must be an overriding judgment
founded on something much deeper and more justifiable than personal
preference. As far as it lies within human limitations, it must be
an impersonal judgment. It must rest on fundamental presuppositions
rooted in history to which widespread acceptance may fairly be
attributed. Such a judgment must be arrived at in a spirit of
humility when it counters the judgment of the State's highest
court. But, in the end, judgment cannot be escaped -- the judgment
of this Court.
See concurring opinions in
Haley v.
Ohio, 332 U. S. 596,
332 U. S. 601;
Louisiana ex rel. Francis v. Resweber, 329 U.
S. 459,
329 U. S. 466,
329 U. S.
470-471;
Malinski v. New York, 324 U.
S. 401,
324 U. S. 412,
324 U. S.
414-417.
And so I am compelled to conclude that the judgment of the New
Hampshire court must be reversed.
[
Footnote 2/1]
The Hon. A. v. d. S. Centlivres only recently retired as Chief
Justice of South Africa, and the Hon. Richard Feetham is also an
eminent retired South African judge.
[
Footnote 2/2]
Inclusion of this question among the unanswered questions
appears to have been an oversight in view of the fact that
petitioner attempted to answer it at the hearing by stating that he
had never to his knowledge known members of the Communist Party in
New Hampshire. In any event, petitioner's brief states that he is
willing to repeat the answer to this question if the Attorney
General so desires. This is consistent with his demonstrated
willingness to answer all inquiries regarding the Communist Party,
including its relation to the Progressive Party.
[
Footnote 2/3]
The Progressive Party was on the ballot in forty-four States,
including New Hampshire, in 1948, and in twenty-six States in
1952.
MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON joins,
dissenting.
The Court today has denied the State of New Hampshire the right
to investigate the extent of "subversive activities" within its
boundaries in the manner chosen by its legislature. Unfortunately
there is no opinion for the Court, for those who reverse are
divided and they do so on entirely different grounds. Four of my
Brothers join in what I shall call the principal opinion. They hold
that the appointment of the Attorney General to act as a committee
for the legislature results in a separation of its power to
investigate from its "responsibility to direct the use of that
power," and thereby "causes a deprivation
Page 354 U. S. 268
of the constitutional rights of individuals and a denial of due
process. . . ." This theory was not raised by the parties and is,
indeed, a novel one.
My Brothers FRANKFURTER and HARLAN do not agree with this
opinion, because they conclude, as do I, that the internal affairs
of the New Hampshire State Government are of no concern to us.
See Dreyer v. Illinois, 187 U. S. 71,
187 U. S. 84
(1902). They do join in the reversal, however, on the ground that
Sweezy's rights under the First Amendment have been violated. I
agree with neither opinion.
The principal opinion finds that
"[t]he Attorney General has been given such a sweeping and
uncertain mandate that it is his decision which picks out the
subjects that will be pursued, what witnesses will be summoned and
what questions will be asked."
The New Hampshire Act clearly indicates that it was the
legislature that determined the general subject matter of the
investigation, subversive activities; the legislature's committee,
the Attorney General, properly decided what witnesses should be
called and what questions should be asked. My Brothers surely would
not have the legislature as a whole make these decisions. But they
conclude, nevertheless, that it cannot be said that the legislature
"asked the Attorney General to gather the kind of facts comprised
in the subjects upon which petitioner was interrogated." It
follows, says this opinion, that there is no "assurance that the
questions petitioner refused to answer fall into a category of
matters upon which the legislature wanted to be informed. . . ."
But New Hampshire's Supreme Court has construed the state statute.
It has declared the purpose to be to investigate "subversive"
activities within the State; it has approved the use of the
"one-man" technique; it has said the questions were all relevant to
the legislative purpose. In effect, the state court says the
Attorney General was "directed" to inquire as he did.
Page 354 U. S. 269
Furthermore, the legislature renewed the Act in the same
language twice in the year following Sweezy's interrogation.
N.H.Laws 1955, c. 197. In ratifying the Attorney General's action,
it used these words:
"The investigation . . . provided for by chapter 307 of the Laws
of 1953, as continued by a resolution approved January 13, 1955, is
hereby continued in full force and effect, in form,
manner
and authority as therein provided. . . ."
(Emphasis added.) We are bound by the state court findings. We
have no right to strike down the state action unless we find not
only that there has been a deprivation of Sweezy's constitutional
rights, but that the interest in protecting those rights is greater
than the State's interest in uncovering subversive activities
within its confines. The majority has made no such findings.
The short of it is that the Court blocks New Hampshire's effort
to enforce its law. I had thought that, in
Pennsylvania v.
Nelson, 350 U. S. 497
(1956), we had left open for legitimate state control any
subversive activity leveled against the interest of the State. I,
for one, intended to suspend state action only in the field of
subversion against the Nation, and thus avoid a race to the
courthouse door between federal and state prosecutors. Cases
concerning subversive activities against the National Government
have such interstate ramifications that individual state action
might effectively destroy a prosecution on the national level. I
thought we had left open a wide field for state action, but
implicit in the opinions today is a contrary conclusion. They
destroy the factfinding power of the State in this field, and I
dissent from this wide sweep of their coverage.
The principal opinion discusses, by way of dictum, due process
under the Fourteenth Amendment. Since the basis of the opinion is
not placed on this ground, I would not think it necessary to raise
it here. However, my Brothers say that the definition of
"subversive person"
Page 354 U. S. 270
lacks "a necessary element of guilty knowledge. . . ."
Wieman v. Updegraff, 344 U. S. 183
(1952), is heavily depended upon as authority for the view
expressed. I do not so regard it. I authored that opinion. It was a
loyalty oath case in which Oklahoma had declared
ipso
facto disqualified any employee of the State who failed to
take a prescribed oath that,
inter alia, he belonged to no
subversive organizations. We struck down the Act for lack of a
requirement of
scienter. We said there that
"constitutional protection . . . extend[s] to the public servant
whose exclusion pursuant to a statute is patently arbitrary or
discriminatory."
Id. at
344 U. S. 192.
But Sweezy is not charged as a "subversive person," and the
Committee has made no finding that he is. In fact, had he been
found to be such a person, there is no sanction under the Act. New
Hampshire is invoking no statute like Oklahoma's. Its Act excludes
no one from anything.
Updegraff stands for no such broad
abstraction as the principal opinion suggests.
Since the conclusion of a majority of those reversing is not
predicated on the First Amendment questions presented, I see no
necessity for discussing them. But since the principal opinion
devotes itself largely to these issues, I believe it fair to ask
why they have been given such an elaborate treatment when the case
is decided on an entirely different ground. It is of no avail to
quarrel with a straw man. My view on First Amendment problems in
this type of case is expressed in my dissent in
Watkins,
decided today. Since a majority of the Court has not passed on
these problems here, and since I am not convinced that the State's
interest in investigating subversive activities for the protection
of its citizens is outweighed by any necessity for the protection
of Sweezy, I would affirm the judgment of the New Hampshire Supreme
Court.