The Truman Years, the Korean Conflict, and the Second Red Scare
[American] Communists are like maggots.*
—REP. EMANUEL CELLER
Following World War II, the United States was drawn into what some would call World War III, the Cold War—the third major global conflict in fifty years. This one was “fought” between the Soviet Union and the United States from the end of World War II until the collapse of the Soviet Union in 1992. Fought, of course, is a misnomer because there was no actual direct fighting between the two major participants.
Traditional instruments of war like national armies, bombs, and guns were replaced with proxy armies, an arms race, spy games, and economic warfare. Several conflicts involved the United States against Soviet proxies, for example, the Korean War against North Korea and China, the Bay of Pigs invasion of Cuba, the Vietnam War against the Vietcong, and conflicts in South America such as the invasions of the Dominican Republic and Grenada.
Clandestine operators came into existence during this period. In 1947, President Truman signed the National Security Act that reorganized the military into the Pentagon, the National Security Council, and the Joint Chiefs of Staff, while creating the CIA.1 In 1952, Truman issued National Security Council Intelligence Directive, or Presidential Decision Directive No. 9, that created the National Security Agency (NSA).2
Attitudes on the home front reflected those of World War I and World War II. From the McCarthy era to COINTELPRO (FBI: Counterintelligence Program), from the McCarran Internal Security Act to the Pentagon Papers case, in a misguided belief that it could keep the home front secure from its enemies, Congress ceded more power to the presidency under Truman and Eisenhower. Eventually, the presidency reached a new height of power under Nixon and then collapsed when revelations came to light about the extent of his executive reach. Meanwhile, the Court maintained a lukewarm approach to limiting presidential power, restraining it at times and affirming it at others.
During World War II, Earl Browder led the Communist Party of the United States of America (CPUSA). “Under Browder’s leadership, the CPUSA threw itself into the war effort.”3 The CPUSA even agreed to dissolve itself for a period of time and “cooperate[d] with capitalists.”4 “So long as American Communists pursued such a cooperative course and their patron remained an American ally, they were in no danger [from political prosecution].” However, the tides of political fortune changed in 1945 when the CPUSA reorganized with William Z. Foster, “a hardline Stalinist,” at the helm. After FDR’s death, the Soviet Union refused to honor the Yalta Conference and began imposing its will over Eastern Europe. Communists became a political liability as the Second Red Scare swept America following the Communist aggression in Eastern Europe and the fall of China to Communist forces.5
Truman, between his Marshall Plan and his foreign policy of Soviet “containment,” “called upon the country to abandon more than a century of isolationism in favor of expensive overseas initiatives.”6 In order to swing the country to his viewpoint, he needed to use a noble lie to galvanize the hysterical and fearful American people into following his lead. “Given the tendency of the Americans to define international issues in moral terms and their historic fear of foreign radicalism, he . . . portrayed the undertaking as a crusade against communism.”7 What ensued was the Second Red Scare.
Truman needed to create an atmosphere of wartime fear and hysteria against communism: The “administration found it politically impossible to ignore GOP charges that it was doing too little to combat communism at home.”8 “Although convinced that domestic communism was a non-problem,” which he once dismissed as “a contemptible minority in a land of freedom” that shrank in size from eighty-thousand to sixty-thousand between 1944 and 1948, and despite his Attorney General Tom C. Clark’s statements that Americans “ ‘have all been influenced in [their] thinking . . . by loud shouts from some quarters, notably the House Un-American Activities Committee,’ ” Truman “adopted a stringent loyalty-security program” and began mentioning the issue of communism in major campaign speeches.9
On March 21st 1947, Truman issued Executive Order 9835, setting the tone for the Cold War and the Second Red Scare over the next decade. Executive Order 9835 was an unprecedented legal measure that created the first loyalty program in the executive branch and established a Loyalty Review Board.10 It led to the investigation of more than three million government employees, thousands of resignations, and the firing of more than three hundred as disloyal Communists.11
In Korea, the peninsula was divided into two different countries after the end of the Japanese occupation. The northern Democratic People’s Republic of Korea chose Kim Il-Sung to lead it in a totalitarian, oppressive Communist government while the southern Republic of Korea selected Syngman Rhee, who maintained Western allies. The South and North were intent on reunification at any cost under their respective regimes and began engaging in border skirmishes, the North being the more victorious and better armed of the two.12 Sensing American weakness in the Asian hemisphere because of the withdrawal of American troops and the victory of Communist Chinese forces over Chiang Kai-shek in the Chinese civil war, Soviet dictator Stalin approved of Kim’s invasion of the South in April 1950, and on June 25th, North Korean forces crossed into South Korea.13 In June 1950, the U.N. Security Council approved Resolution 83, permitting member states to provide military aid to South Korea, which Truman afforded.14
The McCarran Internal Security Act of 1950
Congress followed Truman’s lead and cashed in on the political capital to be gained from prosecuting Communists rather than expending political capital to protect their civil liberties. They impermissibly silenced the one to feed the fears of the many. The infamous HUAC and McCarthy Committee’s CPUSA, Hollywood, and U.S. Army hearings are the prime historic examples of the everyday congressional milking of the political cash cow of war hysteria. Almost three months into the Korean War, Congress passed the McCarran Internal Security Act of 1950.15 With the passage of the McCarran Act, the follower became the leader as the Second Red Scare slipped out of Truman’s control, becoming a beast of war hysteria unto its own.
The Act is divided into two titles. Title I, “Subversive Activities Control,” which contemplates the suppression of Communist “activities” and “front” organizations in the United States, like the CPUSA, devoted to establishing an American “Communist totalitarian dictatorship.”16 Title II, “Emergency Detention,” gave the president broad, unconstitutional, and unprecedented authority to incarcerate Americans and foreigners at the discretion of the president.17
Title I of the Act reads like a fascist repression statute. It prohibited members of Communist organizations from federal employment.18 It denied passports to citizens who were members of the same.19 It forced Communist organizations and individual members thereof to register with the ominously named Subversive Activities Control Board (SACB).20 It legally compelled all persons who published works or used broadcast airways to disclose their Communist affiliation.21 It created the SACB to harass and spy on these organizations’ activities.22 It limited judicial review of board decisions.23 Errors in registrations could result in $10,000 fines or five years in jail.24
But of all those things, first and foremost it gave eager and ambitious prosecutors a broad and deadly tool to use against Communists: The conspiracy to create a totalitarian dictatorship charge. The conspiracy charge is a prosecutor’s greatest weapon. It doesn’t really need to show much to prove the crime, only that there was agreement to do so, and one overt act in furtherance of the conspiracy by one of those who agreed. Moreover, when the conspiracy charge is on the table, hearsay testimony is admissible and no marital privilege applies when a spouse is accused of being part of the same conspiracy. The statute criminalized “substantially contribut[ing] to the establishment within the United States of a totalitarian dictatorship,” punishable by up to ten years in jail or a $10,000 fine.25
Personally, I would not care for the United States to become a totalitarian dictatorship, and I am comfortable asserting that the vast majority of the country would agree with that in the marketplace of ideas. What is disquieting about this provision, however, is that the elements of the crime are not written proscriptively so as to exclude lawful and democratic means. Fascists and Communists, despite the asinine and widely unworkable and unpopular tenets of their philosophies, have as much right under the First Amendment as Republicans and Democrats to advocate for legal reforms sympathetic to their worldviews.
This Act is so broad, even attempting to promote or modify a constitutional amendment to make America totalitarian, as a peaceful measure of change, would be proscribed. If the tables were reversed, and the totalitarians were repressing the proponents of rights and democracy, one should hope that the guaranteed avenue of rewriting the social covenant would remain open to all those subject to it.
Title II, the “concentration camp” provision, is the totalitarian centerpiece of the McCarran Act. It authorized the arbitrary detention of any person—even a non-Communist citizen—by the president after a presidentially declared emergency. The Act permits the president, at his discretion and as he may certify, to declare an “Internal Security Emergency” when war is declared, there is an invasion, or a domestic insurrection occurs.26 Thereafter, the president may, “acting through the Attorney General” and by issuing Justice Department warrants, detain anyone indefinitely.27 Violations of the Act subjected the offender to a potential ten-year prison sentence and a $10,000 fine.28 Detainees, however, would get the same judicial treatment as Guantanamo prisoners fifty years later and West Coast Japanese Americans five years before—their detention would be subject to the review of a Detention Review Board, a group of presidential appointees.29
The House considered the McCarran Act as H.R. 9490 on August 29th 1950.30 The debate began by noting that a few years earlier, Congress failed the less offensive Mundt-Ferguson Communist Registration Bill of 1950, which was a reimaging of the 1948 Mundt-Nixon Bill, one of the authors of which was Rep. Richard Nixon (R-CA) who was, at the time, a young and eager member of the HUAC Committee.31 The McCarran Act “does go considerably farther” than the original two attempts and “is a stronger bill.”32 One opponent of the bill, Rep. Emanuel Celler (D-NY), noted there were almost no opponents to the bill: “I fear me this bill will pass with a preponderating vote.”33 However, he went on to give a blistering attack on Truman’s noble lie: “[T]he shadow of Russia and the sad events in Korea have highlighted a sort of fear, a hysteria that has gripped the Nation, and I shall say even has gripped many members of the House. I do hope that confusion will not track down our wisdom and that our hysterical feeling on anticommunism will not warp our judgment.”34
Celler, even in attacking the Act’s adoption of totalitarian “Communist techniques” and comparing it to the dreaded 1798 Alien and Sedition attacks, succumbed a bit to the hysteria.35 Only a few sentences after his plea for sanity, he declared, “[American] Communists are like maggots.”36 Rep. Vito Marcantonio (L-NY), who had opposed the adoption of the Smith Act in World War II, opposed this “extreme assault upon the Constitution,” comparing it to Jim Crow laws and the “edicts” of Mussolini and Hitler.37 He made a pointed attack at the proponents of Truman’s anti-Communist policy: “You are ripping [the Bill of Rights]; you are tearing [it] to pieces. You are using war hysteria to do it, and incidentally to promote an insane war policy about which there is so much confusion and which no one has as yet attempted in honesty to justify.”38
Proponents of the Act, waxing jingoist, billed it as a “nonpolitical bill; it is an American bill for the protection and defense of this country.”39 The Act would not, as well, “in any way violate the civil rights or personal rights of any decent, God-fearing, loyal, American citizen.”40 Of course, the same man who made those remarks, Rep. Clarence Brown (R-OH), shortly thereafter noted: “Under this bill[,] I can conceive of a situation arising where some individual may be discriminated against a bit.”41 Rep. John E. Rankin (D-MS) dismissed Representatives Marcantonio and Celler’s comments as “most amusing.”42 He further noted for the record many cases in the news involving Communist subversives, such as Julius and Ethel Rosenberg, who never had been “a member of a Christian Church” and sought to, in his opinion, “destroy the Christian religion—the Christian civilization.”43 He also lamented the lack of a “single Christian or a single white gentile among the Communists which [he] ha[s] just named [in the Congressional Record],” but ended on a patriotic note—“God save America.”44
Rep. Usher L. Burdick (R-ND), who admittedly never expected Congress to be “legislating in a spirit of hysteria,” had the last word on the House debate: “My desire to remain in office is not as strong as my desire to preserve the greatest democracy on earth. The clouds of hysteria will pass away some day and when the sun shines again on our institutions, our liberties, and this fair land, I hope our freedom, bought by such a terrible price, will not be supplanted by any form of dictatorship, or emasculated principles of free government.”45
The Act passed the House in a vote of 354 to 20 and H.R. 9490 moved on to the Senate.46
The Senate debated the bill on September 12th 1950 as a separate piece of legislation, S. 4037.47 The only serious debate was over adding self-serving detention amendments and deciding whether the registration process would be satisfactorily effective in combating the Communists compared to the FBI.48 One of the few dissenters, Sen. Homer S. Ferguson (R-MI), lambasted the Act as “pure thought-control” and “a blueprint of dictatorship in America.”49 Eventually, the Senate vacated its version of the bill and passed H.R. 9490 in a vote of 70 to 7.50
The war hysteria that Truman tried to use as a tool to galvanize the people had spun out of his control. The worst abuses of World War II were being enacted to the sound of deafening applause. Moreover, the effect of this hysteria on the American people had been uniquely exacerbated by the previous forty years in a way Randolph Bourne could not have predicted. America had been in major, life-or-death global conflicts since the turn of the century, each time with its fear honed in to attacks on dissidents in order to superimpose domestic moral outrage onto distant international conflict. World War II was not even a decade past its end at the time. War hysteria appeared to have a cumulative effect on the American psyche.
Attempting to quell somewhat the beast he loosened, Truman made an empty gesture of vetoing a bill that had passed Congress by more than the majorities required to override the veto. His message to Congress on the matter gave them a serious dressing-down on the Act he believed would “put the Government of the United States in the thought control business” and “would make a mockery of the Bill of Rights.” He continued,
Instead of striking blows at communism, the [provisions of the Act] would strike blows at our own liberties and at our position in the forefront of those working for freedom in the world. At a time when our young men are fighting for freedom in Korea, it would be tragic to advance the objectives of communism in this country, as this bill would do. . . .
[T]he application of the registration requirements to so-called Communist-front organizations can be the greatest danger to freedom of speech, press, and assembly, since the Alien and Sedition Laws of 1798.51
The House wasted no time responding to Truman’s rather lengthy set of objections to the Act. It immediately moved to call the question, and Rep. John E. Rankin (D-MS), the only proponent of the bill to address Truman’s message—even to speak at all—had this to say of its merits: “I have never heard so many misstatements in the same number of words. I am sure the President did not write it, and I doubt if he even read it. It sounds like Communist propaganda.”52 The House overrode the veto in a vote of 268 to 48.53 The Senate engaged in longer debate, but nonetheless overrode the veto in a vote of 57 to 10.54 Freedom subsumed to perceived security risk.
The Wrath of the Smith Act and the Escalating Korean Conflict
Chapter 6 discussed the Great Sedition Trial of the early 1940s and how the press at the time eventually begged “Let This Be Our Last Mass Trial.”55 Unfortunately, it was not our last mass trial.
Chapter 6 also discussed the Smith Act of 1940, which criminalized even being a member of a group advocating or showing the desirability of disloyal viewpoints such as overthrowing the government or even printing or editing material doing the same.56 The Smith Act was a tool that not only could be used only against leaders rather than mere members, but also could lead to the entire political prosecution of a minority political faction. Yet as it was crafted, it did not apply only to Nazis and fascist sympathizers, but to Communists and other subversives.57 Truman’s legal infrastructure for abusing executive power in criminal prosecutions was already in place, left over from FDR’s war. The criminal prosecutions under the Smith Act began in 1949.
Cold War Tension and the Great Communist Trial of 1949
“As early as 1946 the FBI and the Internal Security Section of the Justice Department’s Criminal Division had begun assembling a case against the [Communist] [P]arty.”58 By 1948, that investigation yielded a “1,850-page prosecutive summary” which formed the basis for Attorney General Clark’s order to obtain a grand jury indictment of the CPUSA leaders in that year.59 Clark enlisted the U.S. Attorney for the Southern District of New York, John F. X. McGohey, to prosecute the case, despite warnings from his own attorneys that “the government would ‘be faced with a difficult task in seeking to prove beyond a reasonable doubt . . . that the Communist Party advocates resolution by violence.’ ”60
“Worried that these indictments might disturb leftist liberals, and thereby undermine Truman’s efforts to win them away from the third-party presidential candidacy of Henry Wallace, Justice Department officials arranged to keep the grand jury’s action secret until after the Democratic National Convention.”61 On July 20th 1948, a federal grand jury in the Southern District of New York in Manhattan “handed up true bills” of indictment against the entire twelve-person board of the CPUSA for violations of the Smith Act. (Two days after, Wallace expressed support for them in the New York Times.)62 The popular appellation for the case, the Foley Square Trial, came about because the case was held in Manhattan at the federal courthouse on Foley Square. The building was renamed the Thurgood Marshall United States Courthouse in 2001.
The Truman administration was adamant about a speedy trial for these defendants and wanted the case to begin trial proceedings by “September or October [of 1948],” not because of a concern over the defendants’ civil liberties, but “so Democrats could exploit it during the campaign to answer Republican charges that Truman was soft on subversion.”63 Truman was expected to lose the election to the Republican ticket of New York Governor Thomas E. Dewey and California Governor (and later Chief Justice) Earl Warren, leaving responsibility for the impending end of nearly twenty years of unbroken Democratic White House rule squarely on Truman’s shoulders. The administration did not get its wish for an October trial date, however. The defense attorneys—quite rightly—attacked the sufficiency of the indictment on the grounds that “anti-Communist hysteria [was] gripping the country” and managed to use William Z. Foster’s failing health to delay the trial until January 17th 1949 and sever Foster from the other eleven defendants.64 Of course, Truman’s unexpected victory in the 1948 election demonstrates how unnecessary such a political farce was at the time in a practical sense in addition to being revolting in a constitutional sense. He won by more than two million votes, almost 5 percent, and this non-existent trial certainly was not the difference.65
The verdict was predetermined.66 The CPUSA defendants were saddled from the outset with a then tenderfoot, cantankerous judge, Harold R. Medina, who, although beloved at my undergraduate alma mater, has been described by commentators, biographers, and Supreme Court justices as “combative, abrasive, sarcastic, hypersensitive, and an ‘insufferable egoist.’ ”67 In addition to having “substantial personal wealth and prep school-Princeton[-Columbia] background,” Medina was an imperfect choice to sit as impartial judge for a politically motivated prosecution involving poor radicals because “there was also reason to believe Medina was biased against the defendants.”68 The belief was certainly confirmed throughout the course of the trial.69
From the outset, Judge Medina put his foot in his mouth. When he was ruling on whether to grant a defense motion to delay the trial, the prosecution objected on the grounds that it would let them continue their CPUSA activities. Medina noted, “If we let them do that sort of thing, they’ll destroy the government.”70 A curious prospect: CPUSA membership had been shrinking; if they were left to carry on their CPUSA activities, they likely would become a smaller problem all by themselves and without the need for mass political suppression to further diminish their numbers. The marketplace of ideas was working and sifting out Communist ideology.
Moreover, Medina, who was sixty-one at the time of the trial and lived to be one hundred and two, was paranoid about his health after seeing the death of Judge Edward C. Eicher from a heart attack due to the stress of the Great Sedition Trial of 1944:
[Medina] quickly concluded that the endless wrangling with defense counsel, in which he became involved almost from the first day, was part of a deliberate effort by what a sympathetic friend characterized as “the scum of the bar” to wear him down. Medina moaned publicly that the whole experience was just “more than any human being can stand.”
Animated by concern for his health, the judge developed an intense hostility toward the defense, which he expressed in a refusal “to have this trial carried on for the purpose of pushing out propaganda.”71
While the defense attorneys’ conduct certainly could be considered provocative, one of the most effective strategies to winning mass trials like these, as the Great Sedition Trial of 1944 showed, is making an absurdity of the proceedings. Medina, of course, would not hold the prosecution and the defense to the same standards in pushing out Communist propaganda. The prosecution’s theory proving that the defendants advocated the violent overthrow of the government in contravention of the Smith Act asserted that before 1935, the CPUSA was devoted to the violent overthrow of the government per Leninist Marxism. It eschewed that during World War II because of the Nazi threat facing the mother country and then returned to former violent revolutionary tendencies in the post-war peacetime.72 To prove it, they would need to introduce Communist “propaganda” into evidence:
To prove [CPUSA schools on Communist philosophy indoctrinated violent revolution of the Proletariat], the prosecution relied mainly on articles, pamphlets, and books—especially on Marx and Engels’s The Communist Manifesto (1848), Lenin’s State and Revolution (1917), Stalin’s Fundamentals of Leninism (1929) and Program of the Communist International (1928). Much of this literary evidence was quite dated, and the government could offer no proof that American Communists were about to translate into action any of the ideas it contained. Nevertheless, literature was the heart of the prosecution’s case. Government lawyers regarded the testimony of witnesses as only corroborative of their printed evidence and put them on the stand primarily to introduce and interpret Communist literature and explain how it manifested itself in the activities of the CPUSA.73
As Michael Belknap noted in American Political Trials, “The prosecution proceeded as if the party itself were the defendant, however. Only about ten percent of its evidence tended in any way to establish the complicity of the accused in the alleged conspiracy. The rest served only to build a case against the CPUSA.”74 Belknap’s statement requires a bit more explication. In federal courts, for evidence to be introduced by either side into its case-in-chief, it must be relevant and not unfairly prejudicial. It must tend to prove the proposition for which it stands, and the prejudicial value must not substantially outweigh the probative or proposition-proving value.75 Thus, only 10 percent of the evidence that was introduced at the trial even met the threshold that it tended to prove that Communists in general wanted to overthrow the government. Why introduce the rest? It had unfair, prejudicial value against the ideology but not against the defendants for the alleged crime. The trial was political theatre and propaganda for the government: An opportunity to showcase communism, bash it, and bash its leaders as “pinkos.” “Indeed, some courts had held that calling a person a Communist was libel.”76
When the defense got up to put on its case-in-chief, the trial continued the downward spiral into a kangaroo court. The defense team wanted to put on its own propaganda show and “ ‘to show the whole body of Marxist-Leninist doctrine and from that let the jury decide whether . . . there is any teaching or advocacy of the overthrow of the government by force and violence.’ ”77 Judge Medina would not allow this to happen; he “ruled that the defense might offer as evidence only those parts of books and articles which directly refuted the government’s accusations.”78 This ruling condemned the entire defense strategy: “This, of course, rendered unworkable the defense strategy of disproving the charges against the defendants by showing the totality of what they taught and advocated.”79
On cross-examination of defense witnesses, Medina permitted extraordinarily prejudicial behavior by the prosecution. “[T]he defendants were severely handicapped by the prosecution’s principal cross-examination technique: asking defense witnesses to identify other individuals as members of the Communist party.”80 McGohey, on cross-examination, employed HUAC’s favored technique of getting witnesses to name other Communists, making it the Justice Department’s vehicle for attacking witness credibility. The bigger concern is what on earth did that have to do with proving they advocated trying to overthrow the government? Not only were these questions prejudicial, but utterly irrelevant. Nevertheless, Judge Medina “permit[ted] government lawyers to ask repeatedly for identification of other Communists having no apparent connection with the case and did let the jury consider witnesses’ refusal to answer such questions in deciding how much weight to give their testimony.”81
When the jury went to deliberate, Medina’s instructions to them rejected any use of the First Amendment’s “clear and present danger” test: “[I]f the defendants had violated the Smith Act, ‘as a matter of law,’ they had created ‘sufficient danger of a substantive evil that Congress had a right to prevent to justify the application of the statute under the First Amendment.’ ”82 Of course, the jury handed back convictions in a mere seven and a half hours on the narrow question of whether they had violated the Smith Act.83 Ten of the defendants received five-year sentences. The eleventh, Robert Thompson, received a three-year sentence in light of his bravery in World War II that earned him a Distinguished Service Cross (D.C.S.).84 Thompson was less than pleased with the outcome: “Thompson promptly informed the press that he took ‘no pleasure that this Wall Street judicial flunky has seen fit to equate my possession of the D.C.S. with two years in prison.’ ”85
After this sedition trial, however, the press did not assail the Justice Department or the judicial system, but approved of the outcome: “Most newspaper writers seem to find in the conviction of the eleven Communist leaders a source of satisfaction. . . . It is pleasant to indulge in such feelings of satisfaction.”86 No paper would demand that the government end mass political trials this time. However, the trial was just the first step—the defendants appealed.
Invasion and the Second Circuit Court of Appeals
The defendants had planted an appellate litigation strategy, however, in their objections to Medina’s jury instructions. Medina’s omission of the First Amendment question to the jury on “clear and present danger” created an issue of law that appellate courts review de novo. The defendants appealed, arguing that Judge Medina should have permitted them to use freedom of speech as a defense and that he committed reversible error by not instructing the jury on the “clear and present danger” test.87 The Supreme Court had been favorably applying the “clear and present danger” test before this case,88 so it seemed that Medina’s error might result in a reversal.
Then the day following the conclusion of oral arguments, North Korea invaded South Korea, which “obviously shaped [the court’s] treatment of the free speech issue.”89 The clarity of the war hysteria that faced the Court of Appeals is well demonstrated in the majority’s apocryphal description of the CPUSA’s activities:
One may reasonably think it wiser in the long run to let an unhappy, bitter outcast vent his venom before any crowds he can muster and in any terms that he wishes, be they as ferocious as he will; one may trust that his patent impotence will be a foil to anything he may propose. Indeed, it is a measure of the confidence of a society in its own stability that it suffers such fustian to go unchecked. Here we are faced with something very different. The American Communist Party, of which the defendants are the controlling spirits, is a highly articulated, well contrived, far spread organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom are infused with a passionate Utopian faith that is to redeem mankind. It has its Founder, its apostles, its sacred texts—perhaps even its martyrs. It seeks converts far and wide by an extensive system of schooling, demanding of all an inflexible doctrinal orthodoxy.90
Because of the Korean conflict, the character of the case changed from a peacetime First Amendment case to a wartime subversion case. Accordingly, writing for the Second Circuit Court of Appeals, Chief Judge and famous jurist Learned Hand expectedly affirmed the convictions under the Smith Act, as well as its constitutionality.91 In order to accomplish this herculean feat, Hand reformulated the “clear and present danger” rule to adopt a balancing test for First Amendment constitutionality:
The phrase, “clear and present danger,” has come to be used as a shorthand statement of those among such mixed or compounded utterances which the Amendment does not protect. . . . It is a way to describe a penumbra of occasions, even the outskirts of which are indefinable, but within which, as is so often the case, the courts must find their way as they can. In each case they must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. We have purposely substituted “improbability” for “remoteness,” because that must be the right interpretation.92
Hand’s reformulation converted the constitutional bias in favor of the freedom of speech, that Congress shall make no law abridging it, and replaced it with a balancing test of government and personal interests. Under that formulation, reaching the result of upholding the convictions was much easier.
As to the first matter, the constitutionality of the Smith Act under the First Amendment, the court held that “the Smith Act is constitutional, so limited.”93 However, it took some mental gymnastics to reach this conclusion. The defendants argued that the statute is so overbroad that it proscribes not only words inciting imminent, lawless action, but even innocuous speech. As Judge Hand stated in the majority opinion, the “words of the Act are unconditional and forbid advocacy or teaching of such a violent overthrow at any time and by anyone, weak or strong; literally, they make criminal the fulminations of a half crazy zealot on a soap box, calling for an immediate march upon Washington.”94 Clearly, this Act went well beyond the scope of the “clear and present danger” test, and the defense believed that this should be resolved through Congress rewriting the statute after the court strikes it down.
Instead, the court rewrote the statute from the bench, inferring that the statute was meant to reach only to the extent permitted by the First Amendment, similar to the Second War Powers Act of 1941, which permitted property takings to the extent permitted by the Fifth Amendment. The problem is, unlike the War Powers Act, the supposedly curative language was not even in the text of the statute. The court, however, considered this intent on behalf of Congress self-evident: “We have no such problem here, because there can be no doubt as to the intent; Congress has explicitly declared that it wished the words to govern all cases which they constitutionally could.”95 That is a particularly poor inference in light of the history of the Smith Act itself and Congress’s intentions in previous wartime abridgments of the freedom of speech. Moreover, by upholding the convictions, the court had rendered meaningless the constitutional test. If these defendants were a clear and present danger to national security, it requires a vibrant imagination to envision what wouldn’t be.
Judge Medina’s jury instructions, “which took from the jury all questions regarding the constitutionality of the Act,” were similarly upheld.96 Although he refused to instruct them to make the actual determination of the clear “presence” or imminence of the danger, and the “degree of probability that the utterance will bring about the evil is a question of fact” within the province of a jury, and the “clear and present danger” test as Judge Hand formulated it is a question of fact, not a question of law, the actual balancing of interests was something within the court’s province rather than the jury’s.97 Thus, for “these reasons the judge appears to us to have been right, when in the case at bar he took upon himself the duty of declaring that the defendants were guilty.”98 The court then added the qualifier for review, “if the jury found that they organized and supported the Party for the purpose, among others, of spreading the doctrine of violent revolution, that purpose to be realized as soon as it was feasible.”99 That question bears a striking similarity to the question of how imminently or presently the defendants might realize the desired lawless end. Therefore, what is seen here is an instance of question begging: The judge did not err in taking the question of presence or imminence from the jury because his determination was acceptable since the jury later made a finding regarding the feasibility of accomplishing the purpose.
The defendants appealed, and the Supreme Court agreed to hear a portion of their appeal.100
The Supreme Court heard oral argument for Dennis v. United States on December 4th 1950. Ten days before the Supreme Court heard oral argument, on November 24th, General MacArthur promised an impressive victory on behalf of the U.S. Eighth Army in Korea, launching his Home-by-Christmas Offensive to end the war decisively.101 It appeared that he could deliver given the U.S. forces’ victories up to that point, and thus, war hysteria might abate. Nine days before the Supreme Court heard oral argument, on November 25th, the Eighth Army began the longest, most humiliating retreat in U.S. military history due to massive Chinese intervention in the war, and during a period in which the Chinese were inflicting heavy casualties on the retreating forces.102 Just as the exigencies of war played out in the Second Circuit, the same considerations would taint the Supreme Court.
The Supreme Court waited to decide the case until June 4th 1951, when it became more obvious that the U.N. and Communist forces had deadlocked on the 38th Parallel. The Supreme Court, with the unmentioned background of the war against totalitarian China and North Korean Communist dictators, described the appellants thusly:
[T]he Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double-meaning language; that the Party is rigidly controlled; . . . Communists, unlike other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that the approved program is slavishly followed by the members of the Party; that the literature of the Party and the statements and activities of its leaders, petitioners here, advocate, and the general goal of the Party, was, during the period in question, to achieve a successful overthrow of the existing order by force and violence.103
The Court began its analysis by drawing a false dichotomy: The “obvious purpose of the statute is to protect existing Government not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism.”104 The statute stands for peace, law, and the constitutional order, while that which it stands against are the forces of violent, Communist revolution, and totalitarian terror. The false dichotomy is a fallacy wherein the proposition forces a binary choice when there are in reality many middle grounds and possibilities (especially relevant here given the breadth of the statute). It is the intellectual equivalent of forcing black and white onto what is actually gray. Accordingly, the Court broadly “reject[ed] any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy.”105
Chief Justice Vinson’s opinion is one of the more fantastic examples of tortured reasoning in American jurisprudence. Take this line of reasoning, for example. He began by attempting to parse distinctions that delineate permissible speech from what the Smith Act covers—an admittedly “difficult” task, “the very language of the Smith Act negates the interpretation which petitioners would have us impose on that Act. It is directed at advocacy, not discussion.”106 Then, he went on to discuss the purposes of the First Amendment, which, for his argument to hold water, should line up with the distinction he just drew between advocacy and discussion: “The basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies. It is for this reason that this Court has recognized the inherent value of free discourse.”107
The underlying premise of the First Amendment is an adversarial marketplace of ideas, where ideas compete for success. Speech can rebut speech. Propaganda is advocacy and discussion. It is impossible for that distinction to hold up over time. How can people discuss two opposing points of view in any form of competing ideas, or debate over the merits of opposite ideas without advocating for the merits of one perspective? Advocacy is essential to discussion because without it, the latter does not contain the adversarial ingredient that leads to an effectively functioning debate in the marketplace of ideas. Vinson’s argument is nonsensical. His reasoning, while praising the value of “debate,” leads to a Wilsonian distortion of the marketplace of ideas, not its efficient functioning the First Amendment protects.
For the majority, Vinson then concisely summarized the precedents to date that had advanced the freedom of speech: “Although no case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in those cases, there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis rationale.”108 In previous chapters, this work has discussed the alliance between Justices Holmes and Brandeis in dissenting from the majority’s evisceration of speech rights during the World War I and Red Scare First Amendment cases. Thus, despite recognizing that jurisprudence has developed in a way which would demand that the lower court be reversed, Chief Justice Vinson somehow managed to find his Dennis reasoning sound.
The majority also found Judge Hand’s reasoning so sound that they adopted his formulation of the “clear and present danger” test outright.109 And applying that test, they reasoned that the test “cannot mean that, before the Government may act, it must wait until the putsch [The Germanic term (now in American English usage) refers to a quick coup. One of Hitler’s many coups was called (in English) the Beer Hall Putsch.] is about to be executed, the plans have been laid and the signal is awaited.” Moreover, “[i]f Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.”110
In a completely unsurprising outcome, the Court determined that the leaders of the organization it presumed indoctrinated and spurred its members to subversive revolution, the CPUSA, were in fact guilty of Smith Act violations which were not protected by the First Amendment.111 Citing the text quoted above, the record “convince[d] us that their convictions were justified on this score.”112 That sweeping conclusion is an interesting show of the majority’s prejudice and the impact of war hysteria: The Court had “limited [the grant of certiorari] to . . . two questions,” neither of which involved justifying the convictions but whether the First Amendment rendered parts of the Smith Act unconstitutional.113
In dissent, Justice Hugo Black concisely raised the voice of reason:
At the outset I want to emphasize what the crime involved in this case is, and what it is not. These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold §3 of the Smith Act authorizing this prior restraint unconstitutional on its face and as applied.114
License to Persecute: The Second-Tier Offenders
The Dennis decision was a major blow to civil liberties. With the national leaders imprisoned and isolated, the CPUSA began to collapse, and “by 1953 that body was, according to the FBI, ‘more or less inoperative.’ ”115 Despite the functional impotence of the party and the failure of the government prosecution, as Justice Black pointed out, to tie the members to any actual overt act that could reasonably be interpreted as attempting to overthrow the government, the FBI and Justice Department took Dennis as a Supreme Court blessing to persecute the members of the Communist Party:
The government added to the leadership problems of the CPUSA by prosecuting 132 additional Communists on Smith Act charges. Treating the Supreme Court’s Dennis decision as a green light to move against the entire party [from 1951 to 1956], the Justice Department quickly secured indictments against national and state Communist leaders in New York and California. By July 1956, Los Angeles, Baltimore, Honolulu, Pittsburgh, Seattle, Detroit, St. Louis, Philadelphia, Cleveland, Denver, New Haven, and New York (twice) had hosted trials of “second string” Communist leaders for conspiring to violate the Smith Act, and other groups of Communists were awaiting trial in Boston and Puerto Rico.116
As the Justice Department was leading the American version of the purge of the Communist Party, juries were handing out convictions from war hysteria. The appellate courts stood silent: “[C]ourts of appeals upheld every Smith Act conviction that came before them. Twice the Supreme Court refused even to review such cases.”117 Recall as well that these indictments were handed down as late as 1956—Truman had put America in such a state of war hysteria and fear of Communist revolution that the Justice Department continued indicting Communists three years after the Korean Armistice, Stalin’s death, and Truman’s departure from the presidency in 1953.
The End of the Second Red Scare: The Warren Court
During the presidency of Dwight D. Eisenhower, the Supreme Court began to attack the legal bulwarks of the Second Red Scare as the exigencies of the Korean War began to fade. Additionally, in 1953, Earl Warren succeeded Fred M. Vinson as chief justice, bringing a new era of liberalism to the Court. In addition to marking the year in which the Warren Court began, 1953 was the year of the Korean Armistice and Stalin’s death. However, it took until 1956 for the Red Scare to wind down, and in 1957, the Court reined in both Congress and the president in two successive decisions: Yates v. United States and Watkins v. United States.
Yates was a landmark Supreme Court opinion at the time.118 It served as the most clear marking post that war hysteria would no longer be allowed to impose on the rights of political minorities. The Yates defendants were convicted in the Southern District of California under the Smith Act as second-tier Communist defendants following the Dennis decision.119 The Los Angeles group appealed their convictions all the way to the Supreme Court, which issued a decision in 1957.120
In Yates, the Supreme Court held that convictions under the Smith Act require “advocacy of action to that end” of forcible overthrow of the government, not merely advocacy of forcible overthrow of the government as an abstract doctrine.121
Indeed, to accomplish this doctrinal end, the Court completely reshaped the meaning of Chief Justice Vinson’s distinction between advocacy and discussion in Dennis:
It is true that at one point in the late Chief Justice’s opinion it is stated that the Smith Act “is directed at advocacy, not discussion,” but it is clear that the reference was to advocacy of action, not ideas, for in the very next sentence the opinion emphasizes that the jury was properly instructed that there could be no conviction for “advocacy in the realm of ideas.” . . .
In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. It seems to have considered that, since “inciting” speech is usually thought of as something calculated to induce immediate action, and since Dennis held advocacy of action for future overthrow sufficient, this meant that advocacy, irrespective of its tendency to generate action, is punishable, provided only that it is uttered with a specific intent to accomplish overthrow. In other words, the District Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action.122
To be entirely fair to the district court, despite Vinson’s inclusion of what the Court considered apparently curative language, the former chief justice very clearly obliterated that distinction in Dennis, which Yates thankfully rehabilitated. The Yates decision is more properly read as overruling the Dennis case, efforts by the Court to save the former chief justice embarrassment at being overruled notwithstanding. That same day, the Supreme Court handed down a companion case to Yates, Watkins v. United States.123
In Watkins, the petitioner John T. Watkins was a career labor union leader and organizer who was subpoenaed by HUAC to testify.124 When it was time to name names for the committee, he refused to do so and was held in criminal contempt of Congress.125
Writing for the majority, Chief Justice Warren noted that the text of the statute for contempt of Congress contains unusual narrowing language regarding how pertinent the question asked by a congressman is to the inquiry at bar: “Part of the standard of criminality, therefore, is the pertinency of the questions propounded to the witness.”126 Warren then went on to attack the pertinence of naming names to the inquiry of Communist activity: “[T]he authorizing resolution, the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might sometimes make the topic clear. This case demonstrates, however, that these sources often leave the matter in grave doubt.”127 The majority concluded that Watkins “was thus not accorded a fair opportunity to determine whether he was within his rights in refusing to answer, and his conviction is necessarily invalid under the Due Process Clause of the Fifth Amendment.”128
The Yates and Watkins decisions were twin stabs at the heart of the Second Red Scare legal infrastructure. In Yates, the Court’s reading of the Smith Act was “narrowed to the point of making it virtually unenforceable.”129 It “took the ‘teeth’ out of the Smith Act,” and “[a]fter the Yates case, there were [almost] no more prosecutions carried out to enforce the Smith Act.”130 The Watkins holding had far-reaching implications for reform to the congressional investigatory system, “plac[ing] fundamental restrictions on a Congressional investigatory power that in recent years has been asserted as all but limitless.”131 It permanently damaged the power of committees like HUAC and the McCarthy Committee to harangue individuals for public spectacle and political profit.
However, “[a]ll that glisters is not gold,”132 and in 1959, the Vietnam War would become the focus of the American public. In the Vietnam-era cases Scales v. United States and United States v. O’Brien, the Court would leave the door open for future oppression.133
Property Rights and Presidential Power in the Korean War: Youngstown Sheet and Tube Co. v. Sawyer
The Youngstown Sheet and Tube Co. v. Sawyer case represents a modern landmark check by the Supreme Court on presidential power.134 Justice Black’s 1952 opinion that the president’s actions violated the Separation of Powers principle, integral to the Constitution, was “so simplistic,”135 yet powerful in its implications for restraint on future executive action in wartime.
In 1950, when the North Korean military invaded the South in defiance of international peace treaties, President Harry Truman ordered American troops into the region. President Truman decided not to seek a congressional declaration of war and thus unlawfully bypassed Congress. His approach was not only unconstitutional; at the time, it was novel. President Truman applied to the newly formed United Nations for a resolution authorizing military force.
The Truman administration addressed the problem of post-war inflation with the creation of a new governmental agency called the Wage Stabilization Board.136 The board sought to keep nationwide price levels down by diffusing labor quarrels and using other techniques. Despite the board’s best efforts, the agency was unable to contain the strike of the United Steel Workers of America. The steel industry had rejected the proposed increases in hourly wages put forward by the Wage Stabilization Board, citing the inability to increase steel prices in response to higher wages.
President Truman, fully appreciating the importance of a reliable, efficient, and above all American steel industry in wartime, moved to avoid a potential military embarrassment. Similar to Wilson’s and FDR’s economic seizure actions in their respective world wars, on April 8th 1952, the president issued Executive Order 10340, directing the secretary of commerce to seize and operate the majority of American steel mills137 in direct contravention of the Fourth and Fifth Amendments. The executive order did not cite a specific statutory provision asserting the power to execute this action; it “invoked generally the powers vested in the President by the Constitution and laws of the United States.”138
Truman subsequently notified Congress of his actions, submitting to the fact that Congress possessed the power to supersede his order.139 Congress failed to act on the president’s seizures. However, Congress had already acted on the possibility of similar situations with the passage of the Defense Production Act of 1950,140 the Labor Management Relations Act of 1947,141 and the Selective Service Act of 1948,142 all of which “repeatedly,” and affirmatively, “declined to authorize governmental seizures of property to settle labor disputes.”143 The steel industry filed suit in federal district court, seeking a declaratory judgment and injunctive relief. The district court judge issued a temporary injunction on the secretary of commerce’s actions. The Court of Appeals stayed the injunction, and the Supreme Court agreed to hear the appeal.
In a 6-to-3 decision, the Supreme Court affirmed the district court’s order, restoring the injunction upon the government and awarding control of the steel mills back to their rightful and lawful owners. In his majority opinion, Justice Hugo L. Black emphasized the obvious: The president may use only powers specifically given to him by the Constitution itself or powers authorized by Congress when exercising its enumerated legislative abilities. There was no statute that authorized the president to seize the mills, and the Constitution does not provide such an individual enumerated power to the president outright: “Authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the executive powers under Article II of the Constitution; nor was the Order maintainable as an exercise of the president’s powers as commander-in-chief of the armed forces. The power sought to be exercised was the lawmaking power.”144
Despite the fact that, as Truman’s attorney general argued, presidents in the past had exercised this kind of executive power,* the Court correctly held that the actions of President Truman were indeed illegal. Justice Black concluded his opinion with this: “The Founders of this nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.”145 The president acted in a “total absence” of power in his attempt to circumvent the legislative process and control the private companies.146
Arguably the most well-known judicial concurrence in U.S. judicial history emerged from the Youngstown case. That opinion, a concurrence by Justice Robert Jackson, has come to be recognized as “the seminal decision defining presidential power within the separation of powers context.”147 Justice Jackson opined three separate power categories which the president can occupy at any one time:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the federal [g]overnment as an undivided whole lacks power.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or acquiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent Presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.148
When the president has statutory authorization, his power is at its highest; law exists, and the president is empowered by the Constitution to enforce the law. When the president acts on his own, without congressional approval, he may execute only such powers that were given to him by the Constitution itself. He may not, for example, declare war on another country. However, as the commander in chief, the president is empowered through Article II of the Constitution to mobilize troops in preparation for war.
The most obvious situation in which the president lacks both congressional and constitutional authority is when he acts in complete contradiction to congressional action.149 In a presidential-power category described by Justice Jackson as the “lowest ebb,”150 the president “has no authorization to act in this type of situation, even in an emergency.”151 As Tara Branam wrote: “If the President’s action is incompatible with the will of Congress, then the only possible justification for the action is that it is based on presidential authority derived from the Constitution. Where such a showing cannot be made, the presidential directive must be overturned.”152
The courts have remained largely deferential to presidential action. Youngstown represents the only presidential executive order ever overturned in its entirety by the U.S. Supreme Court, and surprisingly, lower courts have struck down only two other presidential directives.153
Both lower court decisions154 involved a presidential order in conflict with the National Labor Relations Act.155 In the first case, in 1996, Chamber of Commerce v. Reich, the Court reprimanded President Clinton when he issued an executive order prohibiting the permanent replacement of striking workers.156 The D.C. Circuit held that President Bill Clinton, although not claiming independent constitutional power, cannot claim broad statutory authority from a general statute when there exists another more specific statute which restricts the president.157
In the second case, in 2002, Building & Construction Trades Department v. Allbaugh, President George W. Bush signed an executive order which prohibited federal agencies from requiring or prohibiting project labor agreements on construction jobs that were federally funded.158 The D.C. Circuit overturned that order. The Court, unlike the case with Clinton, found that Bush’s directive lacked both independent constitutional power and statutory authorization. The Court invalidated the order as “beyond the scope of the President’s authority.”159
In practical terms, actions of previous presidents have emboldened the actions of future officeholders. The courts have not only the power but also the responsibility to restrain the president when he attempts to wield unauthorized power. As discussed below, modern presidents have repeatedly usurped legislative power at both the expense of Congress and the rights of individual citizens. For all the academic laurels heaped on Justice Jackson’s concurrence and all the relief over stopping the president from stealing property, the Natural Law point has been missed. Under the Natural Law, the only moral property transfers are those which are fully and truly voluntary. I suspect that Jefferson would have argued that no government may give itself the power to seize or take property, and no majority may make it lawful for the government to do so to a minority because the ownership of property is a natural right—thus free from government interference.
Does the Constitution provide protection to individuals abroad? Do we enjoy freedoms guaranteed to us by the Bill of Rights when we travel to other countries? In 1957, the Supreme Court answered these questions, at least with respect to American citizens who are arrested by U.S. authorities overseas. In the case of Reid v. Covert, the Court ruled that the Constitution supersedes international treaties ratified by the Senate and that American citizens still enjoy protections abroad while in the custody of U.S. forces.160
A military tribunal convicted Clarice Covert, wife of a U.S. Air Force sergeant stationed in the United Kingdom, of murdering her husband. Mrs. Covert was brought before a court-martial under the Uniform Code of Military Justice, where she was tried, convicted, and sentenced to life imprisonment.161 The military claimed it was given jurisdiction to prosecute Mrs. Covert by an executive agreement entered into between the president of the United States and the government of the United Kingdom, allowing for the U.S. military courts to exercise jurisdiction over offenses committed by American servicemen and their dependents in Great Britain. Covert petitioned a federal court for a writ of habeas corpus, and the case eventually reached the Supreme Court. The Court addressed two separate questions: (1) Does the ability of Congress “to make Rules for the Government and Regulation of the land and naval Forces” allow for the court-martial of civilian dependents of soldiers? and (2) Even if Congress had that power, do the Fifth and Sixth Amendments prohibit such an action?162
Answering in the negative to the former and in the affirmative to the latter, the Court held that U.S. citizen civilians abroad have the right to Fifth and Sixth Amendment constitutional protections.163 Therefore Mrs. Covert was entitled to a civilian jury trial in an Article III court, not a military tribunal, which essentially consisted of her husband’s peers. “No agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”164
This was not the original conclusion165 of the Court, however. In Reid v. Covert I, the majority held that the provisions of Article III and other amendments do not apply to American citizens tried by the U.S. government in foreign countries.166 It took until rehearing in Reid v. Covert II167 for the Court to reverse its position and hold in its new opinion that civilian citizen military dependents could not be tried by military authorities.168
Remarkably, this is the only time the Supreme Court has reversed its previous decision after a petition for rehearing.169 The Constitution should not be thrown to the wayside while Americans are abroad. If natural rights are truly inalienable, they do not disappear while one is outside the United States; they are inalienable. Justice Black summarized this notion beautifully: “[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.”170
The passage of a law through Congress and the ratification of a treaty by the Senate are the only ways in which enforceable federal law can be created. However, the Supreme Court has been consistent in its insistence that the government cannot supersede the Constitution. International treaties ratified by the Senate may supplement the Constitution, but they may not alter the protections and provisions already contained within its authority. The Supremacy Clause dictates a mandatory adherence to this principle.
With the modern rise of technology and transnational corporations, American citizens are increasingly overseas. How can it be logical or consistent with Natural Law principles for the U.S. government to apply the Constitution at home and disregard it abroad? It cannot. The Constitution was not designed to apply merely to individuals within the borders of the United States; rather, it was crafted to protect from the government the inalienable rights that all human beings possess regardless of location, status, or wealth.
As we have seen, the federal government has twisted and tortured the Constitution to its own ends of the acquisition of power and property even when it is not actively engaged in large-scale war. Is it any wonder that all war—violent war and cold war—makes this easier to accomplish? Let us look at what the feds did during the infamous Cold War of the twentieth century.
* Remarks of Rep. Emanuel Celler (D-NY), 96 Cong. Rec. 13722.
* “The assertion of plenary, if not absolute, policy making authority did not originate with Truman. Lincoln, Wilson, Theodore Roosevelt, Franklin D, Roosevelt, and subsequent Presidents, including Clinton, George H. W. Bush and George W. Bush, all have made similar assertions of power.” See Arthur H. Garrison, “National Security and Presidential Power: Judicial Deference and Establishing Boundaries in World War Two and the Korean War,” Cumberland Law Review 39, no. 3 (2009): 662.