The Cure That Kills?

"One of the most irresponsible pieces of serious legislation reported by a committee to the Senate since I have been a member," said Missouri's Democratic Senator Thomas C. Hennings Jr. Not so, retorted South Carolina's Democratic Senator Olin Johnston: It is a landmark defense against a Supreme Court which has made a "shambles of established, ingrained law."

Both Hennings and Johnston were talking about a bill originally authored by Indiana's Republican Senator William Jenner, rewritten almost completely by Maryland's Republican Senator John Marshall Butler, and approved last week--without hearings--by a 10-to-5 vote of the Senate Judiciary Committee. Aimed at providing legislative remedy for recent Supreme Court decisions in the field of national security, the Jenner-Butler bill is certain to be hotly disputed. Its main points:

P: State rules for admission to the bar should not be subject to review by the Supreme Court. This stems directly from the Supreme Court decisions last year in the cases of New Mexico Lawyer Rudolph Schware, who had been denied a license to practice law because of previous Communist membership, and of California Lawyer Raphael Konigsberg, who was refused admission to the bar because he refused to answer questions about past Communist associations. The court ordered a license issued to Schware and that Konigsberg be admitted to the bar.

P: Congressional committees, by majority vote, should become the final judges of whether their questions to witnesses are pertinent to a valid legislative purpose. This is in reply to last year's Supreme Court decision reversing the contempt-of-Congress conviction of United Auto Workers Organizer John Watkins, who had refused to identify past Communist associates to the House Un-American Activities Committee. The court held that Watkins had been denied due process because he had no way of knowing whether the committee's questions were actually pertinent to a valid legislative purpose.

P: Unless specifically stated, no act of Congress would preempt state laws in the same field. This is in answer to the 1956 Supreme Court decision in the case of Pennsylvania Communist Leader Steve Nelson, who had been convicted under a state antisedition law. The court held that Congress, by passing federal antisubversion laws, had superseded all state laws dealing with subversive activities against the U.S.

P: The antisubversion Smith Act should be expanded to make a criminal offense of the mere teaching of advocacy of violent overthrow of the U.S. This provision, which would doubtless face stern constitutional testing as to whether it violated the First Amendment guarantee of freedom of speech, is an attempt to answer the Supreme Court for reversing the Smith Act convictions of 14 California Communists. The court last year held that the Smith Act did not cover the "abstract doctrine" of violent overthrow, but only the "teaching and advocacy of action in language reasonably and ordinarily calculated to incite persons to such action."

The Jenner-Butler bill is supported mostly by conservative Republicans, and by Southern Democrats already in a vengeful mood against the Supreme Court for its desegregation decisions. It has some impressive critics, e.g., the U.S. Department of Justice under Attorney General William Rogers and the American Bar Association's House of Delegates. The critics do not deny that, when the Supreme Court knocks holes in statutes, Congress has the right to pass the legislation plugging the holes--especially since the court still has the right to rule on the constitutionality of any law. But they view the bill as a massive assault against the court unequaled since Franklin Roosevelt's court-packing attempt in 1937.

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