The Right to Passports

THE SUPREME COURT The Rights to Passports

In a 5-4 decision, the Supreme Court ruled last week that the Secretary of State has no authority to deny passports to U.S. citizens on the ground of "beliefs" or "associations." The court thus overturned the findings of lower courts that Secretary Dulles was justified in denying passports to New York Artist Rockwell Kent and Los Angeles Psychiatrist Walter Briehl in 1955, when they refused to sign non-Communist affidavits. Net of the majority opinion, written by Justice William O. Douglas, with Chief Justice Earl Warren, Justices Felix Frankfurter, Hugo Black, William Brennan concurring: passport legislation, jelling into the Passport Acts of 1926 and 1952, authorized the Secretary to deny passports in peacetime only to 1) noncitizens, 2) citizens engaged in illegal activity.

The sharp dissent, written by Justice Tom Clark, concurred in by Justices Harold Burton, John Marshall Harlan, Charles E. Whittaker: 1) the Secretary of State is authorized by precedents reaching back to 1856 to preside over passports, period--and never more so than in times of national emergency, and that 2) President Truman's declaration of national emergency, proclaimed in 1950, is still in specific effect, thereby giving the Secretary of State wider discretion over passports.

By basing their arguments on specific statutes rather than on the Constitution, both sides of the Supreme Court hewed to the tradition that cases ought to be disposed of wherever possible on nonconstitutional grounds. But the 5-4 ruling kicked up a new debate on the broader issues of "right to travel" as balanced alongside "responsibilities of travel." In his opinion, Justice Douglas, anticipating a surge of keep-Communists-at-home bills in Congress, went out of his way to hint that such legislation might well be unconstitutional. Warned he: "We deal here with a constitutional right of the citizen, a right which we must assume Congress will be faithful to respect." Nonetheless, a couple of bills designed to strengthen the State Department's hand in denying passports to subversives were introduced in the House and Senate.

Said New York Republican Kenneth Keating in the House: "Any legislation must provide for due process, guarantee a full and fair hearing for those who may be denied passports . . . but also seek to achieve a realistic balance between the demands of national security and the individual liberties of our citizens--a balance the court in recent years has often ignored."

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