Passports for Communists

Editorial writers and columnists across the nation echoed a familiar complaint: the Supreme Court, they said, was being soft on Communists. By a vote of 6 to 3 last week, the court ruled that Congress had exceeded its power in forbidding passports to all U.S. Communists. Disturbing as their decision was to many Americans, the majority of the Justices were not ruling on the nature of Communism or its threat to the U.S.; what bothered them was one single paragraph in the Subversive Activities Control Act of 1950.

Severe Sanction. Section 6 of the act provided that any member of a Communist-action, Communist-front, or Communist-infiltrated organization who uses a U.S. passport, or even applies for one, is guilty of a felony and punishable by a maximum $10,000 fine and five years in prison. In early 1962, several months after Section 6 became law, the State Department revoked the passports of leading American Communists, including those of Party Chairman Elizabeth Gurley Flynn, 74, and Herbert Aptheker, 48, editor of the Communist monthly Political Affairs. Miss Flynn and Aptheker sued the State Department, charging an unconstitutional deprivation of their rights. After a federal district court upheld State's action, they appealed to the Supreme Court.

Speaking for the majority, Justice Arthur Goldberg found a great deal wrong with Section 6. It penalized a person for his associations rather than for his acts, warned Justice Goldberg. And it failed to consider that even a Communist might want to travel abroad for no more sinister purpose than "to read rare manuscripts in the Bodleian Library of Oxford University." So cautious is the court about reversing acts of Congress that it has done so only nine times in the past 28 years. But because Section 6 "sweeps too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment," the court invoked its most powerful sanction and declared the section unconstitutional.

Bibliophile Alibi. Even as it swept away Section 6, the court intimated that Congress could write a new law which would pass constitutional muster. "The appellants in this case," said the court pointedly, "should not be required to assume the burden of demonstrating that Congress could have written a statute which might constitutionally have prohibited their travel."

Justice Tom Clark, joined by Justices Harlan and White in dissenting, was puzzled. "Which Communist Party member is worthy of trust?" he asked. "Since the party is a secret, conspiratorial organization subject to rigid discipline by Moscow, the Congress merely determined that it was not wise to take the risk which foreign travel by Communists entailed."

This file is automatically generated by a robot program, so reader's discretion is required.