Majority ruling

Chief Justice Fred M. Vinson wrote the plurality decision for the majority, joined by Associate Justices Stanley Forman Reed and Harold Hitz Burton. Associate Justice Felix Frankfurter joined in all but Part VII of the majority opinion.

In Part I of the decision, Vinson first reviewed the relevant language in the Taft-Hartley Act, as well as that language which provided for processing of affidavits and imposition of penalties in the event no affidavits were filed in the time permitted.^[21] He also reviewed the justification for upholding the constitutionality of the NLRA, which was to remove obstructions to interstate commerce.^[22] He also reviewed Congress' justification for passing the Taft-Hartley Act, which also attempted to remove impediments to interstate commerce—including the so-called "political strike," in which "legitimate trade union objectives" were subordinated by the Communist Party to political objectives.^[23]

In Part II, Vinson posed what a plurality of the court believed was the key question:^[24]

We are, therefore, neither free to treat § 9(h) as if it merely withdraws a privilege gratuitously granted by the Government, nor able to consider it a licensing statute prohibiting those persons who do not sign the affidavit from holding union office. The practicalities of the situation place the proscriptions of § 9(h) somewhere between those two extremes. The difficult question that emerges is whether, consistently with the First Amendment, Congress, by statute, may exert these pressures upon labor unions to deny positions of leadership to certain persons who are identified by particular beliefs and political affiliations.

Part III of the decision addressed Congress' power to prevent political strikes through the Commerce Clause, whether the remedy designed was reasonable, and whether the threat posed by the Communist Party was so unique in its use of political strikes and in advocacy of violence that Congress could single it out. Vinson answered all questions affirmatively.^[25] Citing In re Summers, 325 U.S. 561 (1945); Clarke v. Deckebach, 274 U.S. 392 (1927); and Hirabayashi v. United States, 320 U.S. 81 (1943), among others, Vinson noted that the Constitution often permitted otherwise irrelevant beliefs, personal traits, or employment status to be infringed upon in certain, limited circumstances.^[26]

The question addressed in Part IV of the decision was whether the Communist Party presented such circumstances. The unions had argued that a "clear and present danger" test be applied to the legislation, as this was a First Amendment issue, but could not agree on how to do so.^[27] Vinson rejected this test as mechanical.^[28] But Congress had not concluded in enacting the Taft-Hartley Act that expressing communist beliefs was a danger; rather, Congress had wished to eliminate impediments to interstate commerce.^[29] The problem with political strikes, Vinson asserted, was that rather than allowing speech to combat speech in the "marketplace of ideas", strikes constitute force and coercion which Congress has every authority to regulate.^[29] One of the unions had argued that political strikes did not constitute such an imminent danger as to pass constitutional scrutiny, but Vinson rejected this once more as a mechanical application of an inapt test.^[30] Rather, Vinson argued, the Constitution permits infringement of constitutionally protected rights when a sound truck invades the privacy of the home (Kovacs v. Cooper, 336 U.S. 77 (1949)), unauthorized parades disrupt traffic (Cox v. New Hampshire, 312 U.S. 569, (1941)), the health of children is at stake (Prince v. Massachusetts, 321 U.S. 158 (1944)), or the provision of public services is affected (United Public Workers v. Mitchell, 330 U.S. 75 (1947)).^[31] Advocating a balancing of interests and citing Reynolds v. United States, 98 U. S. 145 (1878) (an individual's religious beliefs cannot be accepted as proof of a felony act without evidence of commission of the crime), Vinson instead proposed a balancing test.^[32]

Part V of the decision discussed whether political strikes posed such a significant issue as to permissibly infringe on freedom of speech. Vinson refused to substitute the Court's judgment for the congressional determination that this was the case.^[33] In accepting the authority of government to promote strong unions, Vinson observed, the Court had repeatedly also accepted the authority of government to infringe in sometimes substantial ways upon individual liberties.^[34] The Taft-Hartley Act's penalties, Vinson held, were not direct infringements on the freedom to speak and thus not as onerous as infringements the Court had approved in the past.^[35] Vinson rejected the suggestion that the statute had not been narrowly drawn. Although legislation could have been enacted which made political strikes themselves unlawful (rather than require anti-communist affidavits), Vinson asserted that:^[36]

...the legislative judgment that interstate commerce must be protected from a continuing threat of such strikes is a permissible one in this case. The fact that the injury to interstate commerce would be an accomplished fact before any sanctions could be applied, the possibility that a large number of such strikes might be called at a time of external or internal crisis, and the practical difficulties which would be encountered in detecting illegal activities of this kind are factors which are persuasive that Congress should not be powerless to remove the threat, not limited to punishing the act.

Part VI of the decision discussed whether the statute impermissibly targeted the Communist Party as the sole political party seeking the violent overthrow of the United States government. If the statute had penalized anyone who advocated violent overthrow of the government, Vinson held, there would be new constitutional doubts raised.^[37] But it was the Court's long-held tenet that statutes should be construed constitutionally wherever possible.^[38] Subsequently, Vinson interpreted Section 9(h) narrowly as barring from union office those who actually advocated overthrow of the government and not those who (for example) believed it would happen without their assistance.^[39] Vinson reiterated that the balancing of interests in Part V had found the infringement on free speech permissible.^[40] But how did this reconcile with Reynolds v. United States? Because, Vinson said, "Insofar as a distinction between beliefs and political affiliations is based upon absence of any 'overt act' ... the act of joining the Party is crucial. ... courts and juries every day pass upon knowledge, belief and intent—the state of men's minds—having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred."^[41]

In Part VII, Vinson address whether Section 9(h) was unconstitutionally vague and/or was a bill of attainder or ex post facto law. Vinson admitted that, hypothetically, the language of the Act might be construed as vague. But in accordance with the Court's long-held rule, he construed the Act narrowly and asserted that there was no vagueness.^[42] Although the unions had held the Act was a bill of attainder under United States v. Lovett, 328 U.S. 303 (1946); Ex parte Garland, 71 U.S. 333 (1867); and Cummings v. Missouri, 71 U.S. 277 (1867), Vinson observed that these cases punished past actions whereas Section 9(h) punished only future conduct.^[42] Nor did the Act run afoul of Article VI of the Constitution: "...the mere fact that § 9(h) is in oath form hardly rises to the stature of a constitutional objection. All that was forbidden was a 'religious Test.' We do not think that the oath here involved can rightly be taken as falling within that category."^[43]

The judgment of the district court was affirmed.^[44]

Concurrence

Associate Justice Felix Frankfurter concurred with the majority opinion except as to Part VII.^[44]

Frankfurter argued that constitutional questions should be decided as narrowly as possible.^[45] He asserted that "it would make undue inroads upon the policymaking power of Congress" to deny the government the right to prevent political strikes and disruptions to interstate commerce so long as it does not do so in an arbitrary way or infringes on unrelated rights.^[46]

However, despite his agreement with nearly all of the majority's reasoning in Parts I-VI, Frankfurter held that portions of Section 9(h) over impermissibly overbroad.^[47] Section 9(h) "ask[s] assurances from men regarding matters that open the door too wide to mere speculation or uncertainty. It is asking more than rightfully may be asked of ordinary men to take oath that a method is not 'unconstitutional' or 'illegal' when constitutionality or legality is frequently determined by this Court by the chance of a single vote."^[48] The safeguards of the judicial system, Frankfurter asserted, were "too tenuous to neutralize the danger" to First Amendment freedoms.^[48]

Section 9(h) simply goes too far, he said, in demanding that an oath taken today—even if well-considered, sincere, and seriously undertaken—is predictive of all future behavior and belief.^[49]

I cannot deem it within the rightful authority of Congress to probe into opinions that involve only an argumentative demonstration of some coincidental parallelism of belief with some of the beliefs of those who direct the policy of the Communist Party, though without any allegiance to it. To require oaths as to matters that open up such possibilities invades the inner life of men...^[50]

Frankfurter acknowledged, however, that only these parts of Section 9(h) were invalid, and he would have remanded the case back to the district court with instructions for the union officers to obey only those constitutionally sound provisions.^[50]

Concurrence/Dissent

Associate Justice Robert H. Jackson concurred in part and dissented in part.

Jackson held that the critical distinction was the nature of the Communist Party: "If the statute before us required labor union officers to forswear membership in the Republican Party, the Democratic Party or the Socialist Party, I suppose all agree that it would be unconstitutional. But why, if it is valid as to the Communist Party?"^[50] But "the Communist Party is something different, in fact, from any other substantial party we have known, and hence may constitutionally be treated as something different in law."^[51] Jackson reviewed at length the reasons why the Communist Party was unique: It constituted a minority which advocated the seizing of power through non-majoritarian means, it was a political party controlled by a foreign government, it was dedicated to violence as the means of seizing power (including "occasional terroristic and threatening methods, such as picketing courts and juries, political strikes and sabotage"), it sought to achieve its violent ends by controlling the labor movement (control it must conceal in order to be effective), and it considers all its members "agents" of the party (unlike loosely-knit "native" parties).^[52]

Jackson equated the power of Congress to protect a union from domination by the Communist Party equal to the power Congress had to prevent a union from being dominated by an employer.^[53] The Taft-Hartley Act did not prevent unions from governing themselves or union members from electing Communists as its officers, but rather ensured transparency in governance and elections (thereby ensuring self-governance as well).^[54]

Jackson agreed with the majority that the Act did not infringe free speech, but rather merely withdrew the protection of the NLRA from unions which exercised their transparent choice to elect Communists as leaders.^[54] Jackson saw the chilling effect on free speech to be incidental:^[55]

I suppose no one likes to be compelled to exonerate himself from connections he has never acquired. I have sometimes wondered why I must file papers showing I did not steal my car before I can get a license for it. But experience shows there are thieves among automobile drivers, and that there are Communists among labor leaders. The public welfare, in identifying both, outweighs any affront to individual dignity.

However, did Congress have the "power to proscribe any opinion or belief which has not manifested itself in any overt act"?^[56] That raised much more serious constitutional questions, Jackson said. He agreed that "The law sometimes does inquire as to mental state, but only, so far as I recall, when it is incidental to, and determines the quality of, some overt act in question."^[57] Citing Cramer v. United States, 325 U.S. 1 (1945), Jackson observed that the Constitution barred punishment even of the very serious crime of treason unless there was some overt act.^[57] But under the majority's decision, Jackson said, "since Congress has never outlawed the political strike itself, the Court must be holding that Congress may root out mere ideas which, even if acted upon, would not result in crime."^[58] That was anathema to the Constitution.^[57] Agreeing that the Bill of Rights was not a suicide pact (as the majority had pointed out), Jackson nonetheless concluded that Congress had narrower, just as effective means of preventing the violent overthrow of the government than attempting to regulate thought. "I think that, under our system, it is time enough for the law to lay hold of the citizen when he acts illegally, or in some rare circumstances when his thoughts are given illegal utterance. I think we must let his mind alone."^[59]

Jackson would have upheld the power of Congress to require disclosure of past acts or membership in the Communist Party, but overturned any parts of the Act that called for a disclosure of belief.^[60]

Dissent

Associate Justice Hugo Black dissented.

The First Amendment does not allow the government to regulate beliefs, Black asserted, and yet the majority admitted that this is exactly what Section 9(h) does.^[61] Despite the majority's lengthy citation of cases, Black said, "No case cited by the Court provides the least vestige of support for thus holding that the Commerce Clause restricts the right to think."^[61]

Black found that Section 9(h) did indeed impose a "test oath" on union leaders, and the Constitution explicitly barred such oaths.^[62] He rejected the majority's claim that the First Amendment was not offended since only a small number of people were affected. The very nature of "the First Amendment is its protection of each member of the smallest and most unorthodox minority."^[63]

Furthermore, Black said, the majority's decision does not prevent the government from "barring Communists and their suspected sympathizers from election to political office, mere membership in unions, and, in fact, from getting or holding any jobs whereby they could earn a living."^[64] He also found offensive the majority's belief that the Supreme Court exists to protect individual liberty. That claim "springs from the assumption that individual mental freedom can be constitutionally abridged whenever any majority of this Court finds a satisfactory legislative reason. Never before has this Court held that the Government could for any reason attaint persons for their political beliefs or affiliations. It does so today."^[64] That Congress had concluded from testimony that the Communist Party was a threat to national security was irrelevant, he said, for Democrats could testify the same thing about Republicans and thus ban Republicans from union office just as effectively.^[65] Such reasoning was offensive to the idea of constitutionally protected liberties, Black said:^[66]

Under today's opinion, Congress could validly bar all members of these parties from officership in unions or industrial corporations; the only showing required would be testimony that some members in such positions had, by attempts to further their party's purposes, unjustifiably fostered industrial strife which hampered interstate commerce.

Nor was Justice Jackson's claim that the Communist Party was foreign-controlled a valid reason for imposing test oaths. Test oaths were imposed in 16th century England because Protestant rulers feared papal control of their Roman Catholic subjects, Black noted.^[67] Even Thomas Jefferson was once accused of having more loyalty to France than the United States.^[68] The Constitution expressly barred test oaths because of injustices such as these, Black said.^[68]

Black also held that "Guilt should not be imputed solely from association or affiliation with political parties or any other organization, however much we abhor the ideas which they advocate."^[69] Addressing the majority's "suicide pact" idea, Black asserted that the First Amendment's tolerance of anti-democratic ideas was what protected the nation from disaster: "...the postulate of the First Amendment is that our free institutions can be maintained without proscribing or penalizing political belief, speech, press, assembly, or party affiliation. This is a far bolder philosophy than despotic rulers can afford to follow. It is the heart of the system on which our freedom depends."^[70] Citing De Jonge v. Oregon, 299 U.S. 353 (1937), Black noted that a unanimous Court had already struck down laws which banned citizens from attending Communist Party meetings.^[71] It should strike down the relevant portions of the Taft-Hartley Act as well, he concluded.