Secrecy & Civil Rights

Subpoenaed by the U.S. Civil Rights Commission last summer to answer sworn charges that they had interfered with Negro voting, 17 Louisiana voting registrars claimed the constitutional right to know the charges against them, challenged the protective secrecy given Negro informers. A three-judge U.S. federal court upheld the registrars, enjoined the commission from holding hearings. Last week the U.S. Supreme Court denied (7-2) the registrars' claim, and thereby made the commission's subpoena a powerful weapon in behalf of Negro voting rights. But two of the court's most outspoken liberals--Justices William O. Douglas and Hugo Black --vigorously dissented, in the belief that the court was retreating on the civil rights guaranteed by the Constitution's due process clause.

Speaking for the majority in a 65-page, densely footnoted opinion, Chief Justice Earl Warren wrote that Congress had explicitly authorized the rules of secrecy in the Civil Rights Act of 1957. Furthermore, the Civil Rights Commission had been given a fact-finding mandate--as opposed to a judicial function--and "cannot take any affirmative action which will affect an individual's legal rights." Due process, said Warren, "is an elusive concept. Its exact boundaries are undefinable . . . When a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used." Similar rules of procedure govern the Federal Trade Commission, the Securities Exchange Commission and the grand jury, he noted. "The investigative process could be completely disrupted," wrote Warren, "if investigative hearings were transformed into trial-like proceedings." Added Justice Felix Frankfurter in a concurring opinion: "Mere age may establish due process, but due process does not preclude new ends of Government or new means for achieving them."

In the dissent, Justice Douglas paid his respects to the importance of voting rights but warned that "it will not do to sacrifice other civil rights in order to protect them." If charges brought against registrars are true, wrote Douglas, the registrars are criminally responsible under federal law, and, in fact, on trial. Never before, said Douglas, "has a federal executive agency attempted, over the objections of the accused, to force him through a hearing to determine whether he has violated a federal law." The concept of due process approved by the majority, said he, was "whimsical" and "chameleon-like."

For its part, the Civil Rights Commission, which has seen more firsthand violations of rights than it could shake a finger at, was delighted that at long last it now clearly had the power to shake a subpoena and demand answers to its questions.

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