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UNITED STATES v. BROWN

decided: June 7, 1965.

UNITED STATES
v.
BROWN



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg

Author: Warren

[ 381 U.S. Page 438]

 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

In this case we review for the first time a conviction under § 504 of the Labor-Management Reporting and Disclosure Act of 1959, which makes it a crime for a member of the Communist Party to serve as an officer or (except in clerical or custodial positions) as an employee of a labor union.*fn1 Section 504, the purpose of which is to protect

[ 381 U.S. Page 439]

     the national economy by minimizing the danger of political strikes,*fn2 was enacted to replace § 9 (h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, which conditioned a union's access to the National Labor Relations Board upon the filing of affidavits by all of the union's officers attesting that they were not members of or affiliated with the Communist Party.*fn3

[ 381 U.S. Page 440]

     Respondent has been a working longshoreman on the San Francisco docks, and an open and avowed Communist, for more than a quarter of a century. He was elected to the Executive Board of Local 10 of the International Longshoremen's and Warehousemen's Union for consecutive one-year terms in 1959, 1960, and 1961. On May 24, 1961, respondent was charged in a one-count indictment returned in the Northern District of California with "knowingly and wilfully serv[ing] as a member of an executive board of a labor organization . . . while a member of the Communist Party, in wilful violation of Title 29, United States Code, Section 504." It was neither charged nor proven that respondent at any time advocated or suggested illegal activity by the union, or proposed a political strike.*fn4 The jury found respondent guilty, and he was sentenced to six months' imprisonment. The Court of Appeals for the Ninth Circuit, sitting en banc, reversed and remanded with instructions to set aside the conviction and dismiss the indictment, holding that § 504 violates the First and Fifth Amendments to the Constitution. 334 F.2d 488. We granted certiorari, 379 U.S. 899.

Respondent urges -- in addition to the grounds relied on by the court below -- that the statute under which he was convicted is a bill of attainder, and therefore violates Art. I, § 9, of the Constitution.*fn5 We agree that § 504 is void as a bill of attainder and affirm the decision of the Court of Appeals on that basis. We therefore find it unnecessary to consider the First and Fifth Amendment arguments.

[ 381 U.S. Page 441]

     I.

The provisions outlawing bills of attainder were adopted by the Constitutional Convention unanimously, and without debate.*fn6

"No Bill of Attainder or ex post facto Law shall be passed [by the Congress]." Art. I, § 9, cl. 3.

"No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . ." Art. I, § 10.

A logical starting place for an inquiry into the meaning of the prohibition is its historical background. The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.*fn7 In addition to the death sentence, attainder generally carried with it a "corruption of blood," which meant that the attainted party's heirs could not inherit his property.*fn8 The "bill of pains and penalties" was identical to the bill of attainder, except that it prescribed a penalty short of death,*fn9 e. g., banishment,*fn10 deprivation of the right to

[ 381 U.S. Page 442]

     vote,*fn11 or exclusion of the designated party's sons from Parliament.*fn12 Most bills of attainder and bills of pains and penalties named the parties to whom they were to apply; a few, however, simply described them.*fn13 While some left the designated parties a way of escaping the penalty, others did not.*fn14 The use of bills of attainder and bills of pains and penalties was not limited to England. During the American Revolution, the legislatures of all thirteen States passed statutes directed against the Tories; among these statutes were a large number of bills of attainder and bills of pains and penalties.*fn15

While history thus provides some guidelines, the wide variation in form, purpose and effect of ante-Constitution bills of attainder indicates that the proper scope of the Bill of Attainder Clause, and its relevance to contemporary problems, must ultimately be sought by attempting to discern the reasons for its inclusion in the Constitution, and the evils it was designed to eliminate. The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply -- trial by legislature.

The Constitution divides the National Government into three branches -- Legislative, Executive and Judicial.

[ 381 U.S. Page 443]

     This "separation of powers" was obviously not instituted with the idea that it would promote governmental efficiency. It was, on the contrary, looked to as a bulwark against tyranny. For if governmental power is fractionalized, if a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will. James Madison wrote:

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."*fn16

The doctrine of separated powers is implemented by a number of constitutional provisions, some of which entrust certain jobs exclusively to certain branches, while others say that a given task is not to be performed by a given branch. For example, Article III's grant of "the judicial Power of the United States" to federal courts has been interpreted both as a grant of exclusive authority over certain areas, Marbury v. Madison, 1 Cranch 137, and as a limitation upon the judiciary, a declaration that certain tasks are not to be performed by courts, e. g., Muskrat v. United States, 219 U.S. 346. Compare Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579.

The authors of the Federalist Papers took the position that although under some systems of government (most notably the one from which the United States had just broken), the Executive Department is the branch most likely to forget the bounds of its authority, "in a representative republic . . . where the legislative power is exercised by an assembly . . . which is sufficiently numerous to feel all the passions which actuate a multitude; yet

[ 381 U.S. Page 444]

     not so numerous as to be incapable of pursuing the objects of its passions . . . ," barriers had to be erected to ensure that the legislature would not overstep the bounds of its authority and perform the functions of the other departments.*fn17 The Bill of Attainder Clause was regarded as such a barrier. Alexander Hamilton wrote:

"Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government, would be a mockery of common sense."*fn18

[ 381 U.S. Page 445]

     Thus the Bill of Attainder Clause not only was intended as one implementation of the general principle of fractionalized power, but also reflected the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.

"Every one must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited, -- the very class of cases most likely to be prosecuted by this mode."*fn19

[ 381 U.S. Page 446]

     By banning bills of attainder, the Framers of the Constitution sought to guard against such dangers by limiting legislatures to the task of rule-making. "It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments." Fletcher v. Peck, 6 Cranch 87, 136.*fn20

[ 381 U.S. Page 447]

     II.

It is in this spirit that the Bill of Attainder Clause was consistently interpreted by this Court -- until the decision in American Communications Assn. v. Douds, 339 U.S. 382, which we shall consider hereafter. In 1810, Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch 87, 138, stated that "[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both." This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court's pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups. See also Ogden v. Saunders, 12 Wheat. 213, 286.

The approach which Chief Justice Marshall had suggested was followed in the twin post-Civil War cases of Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333. Cummings involved the constitutionality of amendments to the Missouri Constitution of 1865 which provided that no one could engage in a number of specified professions (Cummings was a priest) unless he first swore that he had taken no part in the rebellion against the Union. At issue in Garland was a federal statute which required attorneys to take a similar oath before they could practice in federal courts. This Court struck down both provisions as bills of attainder on the ground that they were legislative acts inflicting punishment on a specific group: clergymen and lawyers who had taken part in the rebellion and therefore could not truthfully take the oath. In reaching its result, the Court emphatically rejected the argument that the constitutional

[ 381 U.S. Page 448]

     prohibition outlawed only a certain class of legislatively imposed penalties:

"The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment." 4 Wall., at 320.

The next extended discussion of the Bill of Attainder Clause*fn21 came in 1946, in United States v. Lovett, 328 U.S. 303, where the Court invalidated § 304 of the Urgent Deficiency Appropriation Act, 1943, 57 Stat. 431, 450, which prohibited payment of further salary to three named federal employees,*fn22 as a bill of attainder.

"Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable

[ 381 U.S. Page 449]

     members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. . . . This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. . . . No one would think that Congress could have passed a valid law, stating that after investigation it had found Lovett, Dodd, and Watson 'guilty' of the crime of engaging in 'subversive activities,' defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that language, accomplishes that result." Id., at 315-316.*fn23

III.

Under the line of cases just outlined, § 504 of the Labor-Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact

[ 381 U.S. Page 450]

     legislation designed to keep from positions affecting interstate commerce persons who may use such positions to bring about political strikes. In § 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leave to courts and juries the job of deciding what persons have committed the specified acts or possess the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability -- members of the Communist Party.*fn24

Communist Party v. Subversive Activities Control Board, 367 U.S. 1, lends support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat. 987, 50 U. S. C. § 781 et seq. (1958 ed.). The definition ...


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