UNITED STATES v. BROWN.
No. 399.
Supreme Court of the United States
Argued March 29, 1965.---Decided June 7, 1965.
381 U.S. 437
Richard Gladstein argued the cause for respondent. With him on the brief was Norman Leonard.
Briefs of amici curiae, urging affirmance, were filed by Melvin L. Wulf for the American Civil Liberties Union of Northern California et al., and by Victor Rabinowitz and Leonard B. Boudin for the Emergency Civil Liberties Committee.
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.1 Section 504, the purpose of which is to protect
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
The provisions outlawing bills of attainder were adopted by the Constitutional Convention unanimously, and without debate.6
“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.7 In addition to thе death sentence, attainder generally carried with it a “corruption of blood,” which meant that the attainted party‘s heirs could not inherit his property.8 The “bill of pains and penalties” was identical to the bill of attainder, except that it prescribed a penalty short of death,9 e. g., banishment,10 deprivation of the right to
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 therеfore 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.
“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.”16
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,
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
“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.”18
“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.”19
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 fedеral 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 con-
“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 Clause21 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,22 as a bill of attainder.
“[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascer-
tainable 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 permаnent 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 315-316.23
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
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
“[A]ny organization in the United States . . . which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and (ii) operates primarily to advance the objectives of such world
Communist movement . . . .” 64 Stat. 989,
50 U. S. C. § 782 (1958 ed.).
A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that § 3 does not specify the persons or groups upon which the deprivations set forth in the Act are to be imposed, but instead sets forth a general definition. Although the Board had determined in 1953 that the Communist Party was a “Communist-action organization,” the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it:
“In this proceeding the Board has found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtue of the activities in which it now engages, comes within the terms of the Act. If the Party should at any time choose to abandon these activities, after it is once registerеd pursuant to § 7, the Act provides adequate means of relief.” 367 U. S., at 87.
The entire Court did not share the view of the majority that § 3‘s definition constituted rule-making rather than specification.25 See also Garner v. Los Angeles Board, 341 U. S. 716, 723. However, language incorporated in the majority opinion indicates that there was agreement on one point: by focusing upon “the crucial constitutional significance of what Congress did when it rejected the approach of outlawing the Party by name and accepted instead a statutory program regulating not enumerated organizations but designated activities,” 367 U. S., at 84-85, the majority clearly implied that if the Act had applied to the Communist Party by name, it would have been a bill of attainder:
“The Act is not a bill of attainder. It attaches not to specified organizations but to described activities
in which an organization may or may not engage. . . . The Subversive Activities Control Act . . . requires the registration only of organizations which, after the date of the Act, are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made after full administrative hearing, subject to judicial review which opens the record for the reviewing court‘s determination whether the administrative findings as to fact are supported by the preponderance of the evidence.” Id., at 86-87.26
In this case no disagreement over whether the stаtute in question designates a particular organization can arise, for § 504 in terms inflicts its disqualification upon members of the Communist Party. The moment § 504 was enacted, respondent was given the choice of declining a leadership position in his union or incurring criminal liability.
“No officer, director, or employee of any corporation or unincorporated association, no partner or employee of any partnership, and no individual, primarily engaged in the issue, flotation, underwriting, public sale, or distribution, at wholesale or retail, or through syndicate participation, of stocks, bonds, or other similar securities, shall serve the same time as an officer, director, or employee of any member bank except in limited classes of cases in which the Board of Governors of the Federal Reserve System may allow such service by general regulations when in the judgment of the said Board it would not unduly influence the investment policies of such member bank or the advice it gives its customers regarding investments.”27
He suggests that for purposes of the Bill of Attainder Clause, such conflict-of-interest laws28 are not meaningfully distinguishable from the statute before us. We find this argument without merit. First, we note that § 504, unlike § 32 of the Banking Act, inflicts its deprivation upon the members of a political group thought to present a threat to the national security. As we noted above, such groups were the targets of the overwhelming majority of English and early American bills of attainder. Second, § 32 incorporates no judgment censuring or con-
It is argued, however, that in § 504 Congress did no more than it did in enacting § 32: it promulgated a general rule to the effect that persons possessing characteristics which make them likely to incite political strikes should not hold union office, and simply inserted in place of a list of those characteristics an alternative, shorthand criterion---membership in the Communist Party. Again, we cannot agree. The designation of Communists as those persons likely to cause political strikes is not the substitution of a semantically equivalent phrase; on the contrary, it rests, as the Court in Douds explicitly recognized, 339 U. S., at 389, upon an empirical investigation by Congress of the acts, characteristics and propensities of Communist Party members. In a number of decisions, this Court has pointed out the fallacy of the suggestion that membership in the Communist Party, or any other political organization, can be regarded as an alternative, but equivalent, expression for a list of undesirable characteristics. For, as the Court noted in Schneiderman v. United States, 320 U. S. 118, 136, “under our traditions beliefs are personal and not a matter of mere association, and . . . men in adhering to a political party or other organization notoriously do not subscribe un-
IV.
The Solicitor General argues that § 504 is not a bill of attainder because the prohibition it imposes does not constitute “punishment.” In support of this conclusion, he urges that the statute was enacted for preventive rather
“the individuals involved were in fact being punished for past actions; whereas in this case they are subject to possible loss of position only because there is substantial ground for the congressional judgment that their beliefs and loyalties will be transformed into future conduct.” Id., at 413.
This case is not necessarily controlled by Douds. For to prove its assertion that
“Here the intention is to forestall future dangerous acts; there is no one who may not, by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit. We cannot conclude that this section is a bill of attainder.” Id., at 414.
Section 504, unlike
Historical considerations by no means compel restriction of the bill of attainder ban to instances of retribution. A number of English bills of attainder were enacted for preventive purposes—that is, the legislature made a judgment, undoubtedly based largely on past acts and associations (as § 504 is)33 that a given person or group was likely to cause trouble (usually, overthrow the
“In the progress of the conflict, and particularly in its earliest periods, attainder and confiscation had been resorted to generally, throughout the continent, as a means of war. But it is a fact important to the history of the revolting colonies, that the acts prescribing penalties, usually offered to the persons against whom they were directed the option of avoiding them, by acknowledging their allegiance to the existing governments.
“It was a preventive, not a vindictive policy. In the same humane spirit, as the contest approached its close, and the necessity of these severities diminished, many of the states passed laws offering pardons
to those who had been disfranchised, and restoring them to the enjoyment of their property. . . .”35
Thus Justice Iredell was on solid historical ground when he observed, in Calder v. Bull, 3 Dall. 386, 399-400, that “attainders, on the principle of retaliation and proscription, have marked all the vicissitudes of party triumph.” (Emphasis supplied.)
We think that the Court in Douds misread United States v. Lovett when it suggested, 339 U. S., at 413, that that case could be distinguished on the ground that the sanction there imposed was levied for purely retributive reasons. In Lovett the Court, after reviewing the legislative history of
We do not hold today that Congress cannot weed dangerous persons out of the labor movement, any more than the Court held in Lovett that subversives must be permitted to hold sensitive government positions. Rather, we make again the point made in Lovett: that Congress must accomplish such results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied. Under our Constitution, Congress possesses full legislative authority, but the task of adjudication must be left to other tribunals.
“By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”40
The judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART join, dissenting.
“A bill of attainder is a legislative act which inflicts punishment without a judicial trial.” Cummings v. Missouri, 4 Wall. 277, 323. When an enactment is challenged as an attainder, the central inquiry must be whether the disability imposed by the act is “punishment” (i. e., is directed at an individual or a group of individuals) or is “regulation” (i. e., is directed at controlling future conduct). Flemming v. Nestor, 363 U. S. 603, at 613-614; accord, Trop v. Dulles, 356 U. S. 86, 95-96 (WARREN, C. J., announcing judgment). Whether a punitive purpose would be inferred has depended in past cases on a number of circumstances, including the nature of the disability, whether it was traditionally regarded as punishment, whether it is rationally connected to a permissible legislative objective, as well as the specificity of the legisla-
In this case, however, the Court discards this meticulous multifold analysis that has been deemed necessary in the past. Instead the Court рlaces the burden of separating attainders from permissible regulation on an examination of the legislative findings implied by the nature of the class designated. The Bill of Attainder Clause, the Court says, was intended to implement the separation of powers by confining the legislature to rule-making and preventing legislative invasion of a function left exclusively to the courts—fact-finding connected with applications of a general rule to individuals or groups. Section 504 of the Labor-Management Reporting and Disclosure Act is therefore a bill of attainder because in pursuit of its purpose of preventing political strikes, it has specified the persons—Communist Party members—who are to be disqualified from holding union office, rather than excluding all persons who might engage in the undesirable conduct. The vice in § 504 is that it does not set forth a rule generally applicable to “any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress’ view, make them likely to initiate political strikes)” but has instead designated “the persons who possess the feared characteristics,” members of the Communist Party. Ante, at 450.
At this point the Court implies that legislation is sufficiently general if it specifies a characteristic that makes it likely that individuals falling within the group designated will engage in conduct Congress may prohibit. But the Court then goes on to reject the argument that Communist Party membership is in itself a characteristic raising such a likelihood. The Court declares that “[e]ven assuming that Congress had reason to conclude that some Communists would use union positions to bring about
In the Court‘s view, therefore, § 504 is too narrow in specifying the particular class; but it is also too broad in treating all members of the class alike. On both counts—underinclusiveness and overinclusiveness—§ 504 is invalid as a bill of attainder because Congress has engaged in forbidden fact-finding about individuals and groups and has thus strayed into the area reserved to the judiciary by the Constitution.
I.
It is not difficult to find some of thе cases and statutes which the necessary implications of the Court‘s approach will overrule or invalidate.
American Communications Assn. v. Douds, 339 U. S. 382, which upheld the predecessor statute to § 504 is ob-
Similarly invalidated are statutes denying positions of public importance to groups of persons identified by their business affiliations, commonly known as conflict-of-interest statutes. In the Douds case the Court found in such statutes support for its conclusion that Congress could rationally draw inferences about probable conduct on the basis of political affiliations and beliefs, which it considered comparable to business affiliations. The majority in the case now before us likewise recognizеs the pertinency of such statutes and, in its discussion of Board of Governors v. Agnew, 329 U. S. 441, strenuously—and unsuccessfully—attempts to distinguish them.
The statute involved in Agnew,
In terms of the Court‘s analysis of the Bill of Attainder Clause, no meaningful distinction may be drawn between
In attempting to distinguish the two sections, the Court states that in enacting
Conflict-of-interest statutes are an accepted type of legislation.2 Indeed, our Constitution contains a con-
Other legislative enactments relevant here are those statutes disqualifying felons from occupying certain positions. The leading case is Hawker v. New York, 170 U. S. 189, which upheld a provision prohibiting convicted felons from practicing medicine against a claim that, as applied to one convicted before its enactment, it was an ex post facto law. The Court noted that a legislature may establish qualifications for the practice of medicine, and character may be such a qualification. Conviction of a felony, the Court reasoned, may be evidence of character:
“It is not open to doubt that the commission of crime has some relation to the question of character. It is not, as a rule, the good people who commit crime. When the legislature declares that whoever has violated the criminal laws of the State shall be deemed lacking in good moral character it is not laying down an arbitrary or fanciful rule—one having no relation to the subject-matter, but is only appealing to a well recognized fact of human experience. . . .
“It is no answer to say that this test of character is not in all cases absolutely certain, and that sometimes it works harshly. Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind
to make a rule of universal application, and no inquiry is permissible back of the rule to ascertain whether the fact of which the rule is made the absolute test does or does not exist.” 170 U. S., at 196-197.
Accord, De Veau v. Braisted, 363 U. S. 144, 159-160 (Frankfurter, J., announcing judgment) (bill of attainder and ex post facto challenges).
Like § 504, the legislation challenged in Hawker was both overinclusive and underinclusive. Felons were not the only persons who might possess character defects making them unsuitable practitioners of medicine; and, as the Court expressly noted, not all felons would lack good moral character. Nevertheless, the legislature was permitted to disqualify all members оf the class, rather than being required to delegate to the courts the responsibility of determining the character of each individual based on all relevant facts, including the prior conviction. The legislative findings that sustained the legislation attacked in Hawker were simply that a substantial number of felons would be likely to abuse the practice of medicine because of their bad character. It is just such findings respecting the average propensities of a given class of persons to engage in particular conduct that the Court will not now permit under the Bill of Attainder Clause. Though the Court makes no attempt to distinguish the Hawker-type laws it apparently would save them, see Trop v. Dulles, 356 U. S. 86, 96-97 (WARREN, C. J., announcing judgment), and with them the provision of the statute now before the Court which disqualifies felons from holding union office.3
On the other hand, if the statutes involved in Hawker and Agnew are not bills of attainder, how can the
And if the disqualification of Party members in the
This, of course, is not the path the Court follows. Section 504 is said to impose punishment on specific individuals because it has disqualified all Communist Party members without providing for a judicial determination as to each member that he will call a political strike. A likelihood of doing so based on membership is not enough. By the same token, a statute disqualifying Communists (or authorizing the Executive Branch to do so) from holding sensitive positions in the Government would be auto-
But how does one prove that a person would be disloyal? The Communist Party‘s illegal purpose and its domination by a foreign power havе already been adjudicated, both administratively and judicially. If this does not in itself provide a sufficient probability with respect to the individual who persists in remaining a member of the Party, or if a probability is in any event insufficient, what evidence with regard to the individual will be sufficient to disqualify him? If he must be apprehended in the act of calling one political strike or in one act of disloyalty before steps can be taken to exclude him from office, there is little or nothing left of the preventive or prophylactic function of § 504 or of the statutes such as the Court had before it in Hawker and Agnew.
Examples of statutes that will now be suspect because of the Court‘s opinion but were, until today, unanimously accepted as legitimate exercises of legislative power could easily be multiplied. Such a catalogue in itself would lead one to inquire whether the Court‘s reasoning does not contain some flaw that explains such perverse results.
II.
One might well begin by challenging the Court‘s premise that the Bill of Attainder Clause was intended to provide a general dividing line between legislative and judicial functions and thereby to operate as the chief means of implementing the separation of powers. While it must be conceded that our system of government is
On the other hand, there are substantial reasons for concluding that the Bill of Attainder Clause may not be regarded as enshrining any general rule distinguishing between the legislative and judicial functions. Congress may pass legislation affecting specific persons in the form of private bills. It may also punish persons who commit contempt before it. So too, one may note that if
The basic flaw in the Court‘s reasoning, however, is its too narrow view of the legislative process. The Court is concerned to separate the legislative and judicial functions by ensuring that the legislature does not infringe the judicial function of applying general rules to specific circumstances. Congress is held to have violated the Bill of Attainder Clause here because, on the one hand, § 504 does not encompass the whole class of persons having characteristics that would make them likely to call political strikes and, on the other hand, § 504 does single out a particular group, members of the Communist Party, not all of whom possess such characteristics. Because of this combination of underinclusiveness and overinclusiveness the Court concludes that Communist Party members were singled out for punishment, thus rejecting the Government‘s contention that § 504 has solely a regulatory aim.
The Court‘s conclusion that a statute which is both underinclusive and overinclusive must be deemed to have been adopted with a punitive purpose assumes that legislatures normally deal with broad categories and attack all of an evil at a time. Or if partial measures are undertaken, a legislature singles out a particular group for regulation only because the group label is a “shorthand phrase” for traits that are characteristic of the broader evil. But this Court has long recognized in equal protection cases that a legislature may prefer to deal with only part of an evil. See, e. g., Railway Express Agency, Inc. v. New York, 336 U. S. 106; Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608; Bryant v. Zimmerman, 278 U. S. 63; Patsone v. Pennsylvania, 232 U. S. 138. And it is equally true that a group may be singled out for regulation without any punitive purpose even when not all members of the group would be likely to engage in the feared conduct. “[I]f the class discrimi-
IV.
Putting aside the Court‘s per se approach based on the nature of the classification specified by the legislation, we must still test § 504 against the traditional definition of the bill of attainder as legislative punishment of particular individuals. In my view, § 504 does not impose punishment and is not a bill of attainder.
“Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whеther it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.” 372 U. S., at 168-169.
An application of these criteria to § 504 compels the conclusion that it is regulatory rather than punitive.
Congress’ concern with the possibility of political strikes is not simply a fictional concern advanced to mask a puni-
Nor can it be denied that § 504 is reasonably related to a permissible legislative objective. In American Communications Assn. v. Douds, we held that “Congress could rationally find that the Communist Party is not like other political parties in its utilization of positions of union leadership as means by which to bring about strikes . . . ,” 339 U. S., at 391, and therefore Congress could rationally
In view of Congress’ demonstrated concern in preventing future conduct—political strikes—and the reasonableness of the means adopted to that end, I cannot conclude that § 504 had a punitive purpose or that it constitutes a bill of attainder. I intimate no opinion on the issues that the Court does not reach.
Notes
“(a) No person who is or has been a member of the Communist Party . . . shall serve---
“(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization . . .
“during or for five years after the termination of his membership in the Communist Party . . . .
“(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both.” An overbroadness challenge could also be made under the First Amendment on the ground that in § 504 Congress has too broadly and indiscriminately visited disabilities on a class defined in terms of associational ties. See Aptheker v. Secretary of State, 378 U. S. 500. But the Court expressly disavows decision of First Amendment claims, and I likewise put such questions aside.
“No investigation shall be made by thе Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, no petition under section 9 (e) (1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of section 35 A of the Criminal Code shall be applicable in respect to such affidavits.”
Section 9 (h) was repealed by § 201 (d) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 525. For a partial listing of similar statutes, see De Veau v. Braisted, 363 U. S. 144, 159 (Frankfurter, J., announcing judgment). De Veau v. Braisted itself sustained against a bill of attainder challenge, without dissent on this issue, a state statute disqualifying felons from holding office in waterfront labor unions.
“Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers
“Some hundreds of gentlemen, every one of whom had much more than half made up his mind before the case was open, performed the office both of judge and jury. They were not restrained, as a judge is restrained, by the sense of responsibility . . . . They were not selected,
“173 despots would surely be as oppressive as one. . . [L]ittle will it avail us that they are chosen by ourselves. . . . [T]he government we fought for [is] one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention, which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. . . . If . . . the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can it be effectual; because in that case they may put their proceedings into the form of an aсt of assembly, which will render them obligatory on the other branches. They have accordingly in many instances, decided rights which should have been left to judiciary controversy . . . .” Jefferson, Notes on the State of Virginia, pp. 157-158 (Ford ed. 1894). (Emphasis supplied.)
“No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this Act, or (2) which is now, or which
It is argued that § 504 is not a bill of attainder because prior to its enactment there had been an administrative adjudication (by the Subversive Activities Control Board) of “the nature of the Party.” Compare Hawker v. New York, 170 U. S. 189; De Veau v. Braisted, 363 U. S. 144, 160. Even leaving aside the fact that the legislative history of § 504, see note 2, supra, indicates that Congress was acting in reliance on the findings it had made in 1947 rather than on those made by the Board in 1953, we think that this argument misses the point of the Court‘s opinion in the Communist Party case, where the Court stressed that the Subversive Activities Control Act did not name the Communist Party but rather set forth a broad definition, which would permit the Party to escape the prescribed deprivations in the event its character changed.