Today's hearings suggest this History of Social Constitutional Law may not be as necessary as I thought yesterday, but who knows. Things change daily.
I've long been convinced one misunderstands the 1960's, and the movements that characterize it, if you don't know the inch by inch civil liberties legal history that came to pass in the 1950's. Case Law can seem small potatoes -- but I remain convinced if it had not been for these cases decided in 1957 and 1959, the 60's would have been a very different matter.
Five Cases were decided in 1957, all but one on what became known as Red Monday, or June 17th, 1957. It was not Brown v. Board decided in 1954 that gave rise to the "Impeach Earl Warren" roadside signs mostly in the South -- it was the Red Monday cases. (plus one).
During the run up to the Libby Trial, EW reviewed for us the Jencks Materials released to the defendent in December. It is named after "his" decision. Clinton Jencks was a New England Labor Organizer. In 1950 he complied with state law, and signed a non-Communist affidavit, swearing he had never been one. The US Government contended he lied, but refused to make available to him witnesses or documents on which they based the lie claim. Found guilty of the lie, the guilt was confirmed by the Appeals Court -- but when it finally arrived at the Supreme Court, Warren and Brennan led the argument that he should not only get his request (that the judge review the evidence in camera) but on a 5/4 decision he was awarded the rights to see all evidence, and cross examine and depose witnesses, including all reports of FBI informants. As Warren put it; How could Jencks get a fair trial if he could not see the reports of evidence against him? The decision gave extra emphasis to this principle if such reports and witnesses were to be presented against him at trial. (Jencks was not retried.)
The next decision in June, 57 was Sweezy v. New Hampshire. (Yep, the Sweezy of Monthly Review Fame.) Paul Sweezy was a Marxist Economist who taught at the U of New Hampshire, and when this caught the attention of the Legislature, they demanded the Attorney General review his lecture notes, and Sweezy's involvement with the Progressive Party. (That would be the Henry Wallace Progressives of 1948 to which he had once delivered a lecture -- he was not a member). Sweezy appealed through the New Hampshire Courts, lost, and finally appealed to the Supreme Court, and his decision came, June 17, 1957.
It was linked with another similar case, Watkins v. US, that raised a similar issue, how far could a legislature, State or US Congress go in conducting investigations of political persuasion or orientation? In Watkins case, this former labor organizer had been called before HUAC (House on Un-American Activities Committee), asked if he had been a Communist, to which he said no, but that he had been a supporter of popular front causes over the years. He was convicted of contempt, and his appeal was merged with Sweezy's. Warren crafted classic language in authoring the majority opinion in this case -- "There is no Congressional Power to Expose for the Sake of Exposure." Beyond this the court outlined requirements for legislatures, Congress and State, to follow in investiations. They had to rely on an authority around which they could legitimately legislate. Since you cannot legislate around past political beliefs or associations, you can't investigate them. You can't necessarily ask about them unless you can show a contemporary rational. It is not in the power of any legislature to change what someone thought, wrote or believed in the past.
Red Monday had two more decisions: Service v. Dulles vastly limited the powers of Loyality Boards. John Service had been cleared of disloyality in 1951 during the time of Secretary of State Acheson, but this China Expert had not been re-hired by the State Department. He sued Dulles, and won reinstatement. The decision recognized the legitimacy of such boards, but if established, Government had to follow their findings, assuming they offered proper protections for civil liberties, etc, preventing arbitrary decisions. (I rather think DOJ that fires without keeping records ought to re-read the Warren Court Service Decision.)
The last decision was Yates v. United States. This grew out of the trial of fourteen California Communists who had been convicted under the Smith Act. (Making it illegal to organize, teach or advocate the overthrow of the US Government.). What it did, simply, was apply the operative statute of limitations to Smith Act indictments, it set five of the fourteen free, and remanded for re-trial the rest, on the grounds that the CP in California's organization pre-dated the activity of the five, and the nine deserved a new trial because of doubts whether their actions were within the statute of limitations. Justice Harlan wrote in the Sweezy and Yates Cases.
While ole Joe McCarthy was dead by the time these decisions came down, (as was MacCarren), the totality of the five put an effective end to the domestic anti-Communist National Security public strategy. HUAC and a few things like it would hang and putter around on the books for a few years, but in reality all a witness had to do was ask for the legislative intent behind questions -- and much of the worst just went away. The basis for all these decisions was shy of the First Amendment, in particular Frankfurter strongly objected to deciding these matters as straight First Amendment issues...something borne out in decisions in Upham and Barenblatt in 1959. Upham was a Methodist Minister who objected to giving over the membership and attendence lists of World Peace Encampments, and Barenblatt was a Vassar Profressor found in Contempt of HUAC for refusal to discuss his current friends, and whether or not they were Communists. Their contempt convictions were upheld. And while not on the same day, the same court ruled the Alabama NAACP could keep its membership list in New York, and did not have to reveal it to Alabama Authorities -- on grounds it could endanger members if made public.
As I noted by way of introduction, these decisions, in my opinion, are a critical legal lynch-pin for the 1960's. Prior to 57, Senator James Eastland regularly held hearings where Civil Rights activists were accused of being Communists -- usually pronounced "Commonists" and were held in contempt and jailed for refusal to reveal memberships and associations. When they left hearing rooms they would regularly be beaten up, and then accused of perpertrating violence. After 57 that had to be tailored into a statement of legislative intent, and even after Barenblatt and Upham, any charge had to meet specifications. It was in some senses a matter of turning the warm water on for a few years, and then cooling it -- but taken all together, it opened the way for the 60's. If asked why you were sitting in, or supporting a sit in at a lunch counter in 1959-60, you could say -- "Well, I read the Bible, and then I read Gandhi and I really want a cup of Coffee with dignity at a regular lunch counter." Within these decisions, one finds all this and much much more.
And now for the irony.......
We all know that the question of buying a cup of coffee -- or anything else in the public marketplace -- ended with Public Accomodations in the 1964 Civil Rights Bill. But the edge, particularly in the south, against Red Monday in the South stayed, as did the Impeach Earl Warren roadside signs. So when Nixon got established, in 1969, John Mitchell tried to deal with eliminating some of the protections he believed the Warren Court had blessed on the radicals. His front man was a very Young John Dean, and the idea was to try to void some of the protections those who did not wish to testify in Congressional Hearings seemed to have. It was two versions of immunity which could be confired if someone took either the first or fifth amendment and refused to testify. The legislation offered congressional investigators two sorts -- Use, meaning for particular topics of an agreed limited range, and Transactional Immunity, for the whole appearance. Passed into law in 1971. First person to really take advantage of the law -- John Dean, in the summer of 1973. If one takes the protection of the 1st or 5th -- a legislative body is capable of giving immunity, which in effect forces truthful testimony. While I have good feelings for John Dean overall (we were Baptized in the same Methodist water on the same 1939 Palm Sunday in Akron Ohio afterall, and we shared the same doctors of those days -- delivery and baby doctor) I really don't think he was inspired to write the immunity laws as his own life raft. But when he needed it, he used it well. In fact those laws did not do what he expected -- they did not reverse the Warren Court decisions that by 1970 were warped into common legal assumptions.
Since those times many small modifications have been made given the case law, but no one has really touched the broad combination of the decisions of "Red Monday," June 17, 1957. No matter how many "Impeach Earl Warren" roadside signs went up on Southern Roadways, and it was mostly in the South, the decisions have stood -- and what they allowed has also stood. Any thought we could legitimately return to the McCarthy and MacCarren Days is extremely difficult, if not impossible. And while in the 1950's when it was impossible to imagine legislation that would have done what the Warren Court did (given lack of voting rights and all) -- it is thinkable that the worst of the Patriot Act can be revisited by informed and pressured elected officials and modified to one degree or another. Afterall non-Judicial Security Letters are on the block now, and who knows what else Waxman, Conyers and Leahy will find, isolate, analyze, and otherwise discredit.
We put ourselves partially into fear because we really don't recognize all the American Critters who did all this really hard stuff in the past, which we can simply advantage. McCarthy will not come back. Fear will -- but we need to learn a good deal more about how to thwart it.