Sweezy v. New Hampshire, 354 U.S. 234 (1957)
Sweezy v. New Hampshire, 354 U.S. 234 (1957)
Sweezy v. New Hampshire, 354 U.S. 234 (1957)
234
77 S.Ct. 1203
1 L.Ed.2d 1311
This case, like Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, brings
before us a question concerning the constitutional limits of legislative inquiry.
The investigation here was conducted under the aegis of a state legislature,
rather than a House of Congress. This places the controversy in a slightly
different setting from that in Watkins. The ultimate question here is whether the
investigation deprived Sweezy of due process of law under the Fourteenth
Amendment. For the reasons to be set out in this opinion, we conclude that the
record in this case does not sustain the power of the State to compel the
disclosures that the witness refused to make.
thus failed to meet his burden of showing that jurisdiction by appeal was
properly invoked. The appeal is therefore dismissed. Treating the appeal papers
as a petition for writ of certiorari, under 28 U.S.C. 2103, 28 U.S.C.A. 2103,
the petition is granted. Cf. Union National Bank of Wichita, Kan. v. Lamb, 337
U.S. 38, 3940, 69 S.Ct. 911, 912, 93 L.Ed. 1190.
3
The investigation in which petitioner was summoned to testify had its origins in
a statute passed by the New Hampshire legislature in 1951.1 It was a
comprehensive scheme of regulation of subversive activities. There was a
section defining criminal conduct in the nature of sedition. 'Subversive
organizations' were declared unlawful and ordered dissolved. 'Subversive
persons' were made ineligible for employment by the state government.
Included in the disability were those employed as teachers or in other capacities
by any public educational institution. A loyalty program was instituted to
eliminate 'subversive persons' among government personnel. All present
employees, as well as candidates for elective office in the future, were required
to make sworn statements that they were not 'subversive persons.'
'That the attorney general is hereby authorized and directed to make full and
complete investigation with respect to violations of the subversive activities act
of 1951 and to determine whether subversive persons as defined in said act are
presently located within this state. The attorney general is authorized to act
upon his own motion and upon such information as in his judgment may be
reasonable or reliable * * *.
Under state law, this was construed to constitute the Attorney General as a oneman legislative committee.4 He was given the authority to delegate any part of
the investigation to any member of his staff. The legislature conferred upon the
Attorney General the further authority to subpoena witnesses or documents. He
did not have power to hold witnesses in contempt, however. In the event that
coercive or punitive sanctions were needed, the Attorney General could invoke
the aid of a State Superior Court which could find recalcitrant witnesses in
contempt of court.5
8
10
11
Again, at the second hearing, the Attorney General asked, and petitioner
refused to answer, questions concerning the Progressive Party, and its
predecessor, the Progressive Citizens of America. Those were:
12
'Was she, Nancy Sweezy, your wife, active in the formation of the Progressive
Citizens of America?'
13
'Was Nancy Sweezy then working with individuals who were then members of
the Communist Party?'
14
15
16
'Did he work with your present wifeDid Charles Beebe work with your
present wife in 1947?'
17
18
The Attorney General also turned to a subject which had not yet occurred at the
time of the first hearing. On March 22, 1954, petitioner had delivered a lecture
to a class of 100 students in the humanities course at the University of New
Hampshire. This talk was given at the invitation of the faculty teaching that
course. Petitioner had addressed the class upon such invitations in the two
preceding years as well. He declined to answer the following questions:
19
20
'Didn't you tell the class at the University of New Hampshire on Monday,
March 22, 1954, that Socialism was inevitable in this country?'
'Did you express the opinion, or did you make the statement at that time that
Socialism was inevitable in America?'
22
'Did you in this last lecture on March 22 or in any of the former lectures
espouse the theory of dialectical materialism?'
23
Distinct from the categories of questions about the Progressive Party and the
lectures was one question about petitioner's opinions. He was asked: 'Do you
believe in Communism?' He had already testified that he had never been a
member of the Communist Party, but he refused to answer this or any other
question concerning opinion or belief.
24
Petitioner adhered in this second proceeding to the same reasons for not
answering he had given in his statement at the first hearing. He maintained that
the questions were not pertinent to the matter under inquiry and that they
infringed upon an area protected under the First Amendment.
25
Following the hearings, the Attorney General petitioned the Superior Court of
Merrimack County, New Hampshire, setting forth the circumstances of
petitioner's appearance before the Committee and his refusal to answer certain
questions.8 The petition prayed that the court propound the questions to the
witness. After hearing argument, the court ruled that the questions set out above
were pertinent.9 Petitioner was called as a witness by the court and persisted in
his refusal to answer for constitutional reasons. The court adjudged him in
contempt and ordered him committed to the county jail until purged of the
contempt.
26
The New Hampshire Supreme Court affirmed. 100 N.H. 103, 121 A.2d 783. Its
opinion discusses only two classes of questions addressed to the witness: those
dealing with the lectures and those about the Progressive Party and the
Progressive Citizens of America. No mention is made of the single question
concerning petitioner's belief in Communism. In view of what we hold to be the
controlling issue of the case, however, it is unnecessary to resolve affirmatively
that that particular question was or was not included in the decision by the State
Supreme Court.
27
28
29
in the minimal requirements of that definition since they will outline its reach.
According to the statute, a person is a 'subversive person' if he, by any means,
aids in the commission of any act intended to assist in the alteration of the
constitutional form of government by force or violence.11 The possible
remoteness from armed insurrection of conduct that could satisfy these criteria
is obvious from the language. The statute goes well beyond those who are
engaged in efforts designed to alter the form of government by force or
violence. The statute declares, in effect, that the assistant of an assistant is
caught up in the definition. This chain of conduct attains increased significance
in light of the lack of a necessary element of guilty knowledge in either stage of
assistants. The State Supreme Court has held that the definition encompasses
persons engaged in the specified conduct '* * * whether or not done 'knowingly
and willfully * * *." Nelson v. Wyman, 99 N.H. 33, 39, 105 A.2d 756, 763.
The potential sweep of this definition extends to conduct which is only
remotely related to actual subversion and which is done completely free of any
conscious intent to be a part of such activity.
30
31
32
expression and controversy at one of its chief sources.' 344 U.S. at pages 190
191, 73 S.Ct. at page 218.
33
34
The nature of the investigation which the Attorney General was authorized to
conduct is revealed by this case. He delved minutely into the past conduct of
petitioner, thereby making his private life a matter of public record. The
questioning indicates that the investigators had thoroughly prepared for the
interview and were not acquiring new information as much as corroborating
data already in their possession. On the great majority of questions, the witness
was cooperative, even though he made clear his opinion that the interrogation
was unjustified and unconstitutional. Two subjects arose upon which petitioner
refused to answer: his lectures at the University of New Hampshire, and his
knowledge of the Progressive Party and its adherents.
35
The state courts upheld the attempt to investigate the academic subject on the
ground that it might indicate whether petitioner was a 'subversive person.' What
he taught the class at a state university was found relevant to the character of
the teacher. The State Supreme Court carefully excluded the possibility that the
inquiry was sustainable because of the state interest in the state university.
There was no warrant in the authorizing resolution for that. 100 N.H. at page
110, 121 A.2d at pages 789, 790. The sole basis for the inquiry was to
scrutinize the teacher as a person, and the inquiry must stand or fall on that
basis.
36
The interrogation on the subject of the Progressive Party was deemed to come
within the Attorney General's mandate because that party might have been
shown to be a 'subversive organization.' The State Supreme Court held that the
'* * * questions called for answers concerning the membership or participation
of named persons in the Progressive Party which, if given, would aid the
Attorney General in determining whether that party and its predecessor are or
were subversive organizations.' 100 N.H. at page 112, 121 A.2d at page 791.
37
The New Hampshire court concluded that the '* * * right to lecture and the
right to associate with others for a common purpose, be it political or otherwise,
are individual liberties guaranteed to every citizen by the State and Federal
Constitutions but are not absolute rights * * *. The inquiries authorized by the
Legislature in connection with this investigation concerning the contents of the
lecture and the membership, purposes and activities of the Progressive Party
undoubtedly interfered with the defendant's free exercise of those liberties.' 100
N.H. at page 113, 121 A.2d at pages 791, 792.
38
The State Supreme Court thus conceded without extended discussion that
petitioner's right to lecture and his right to associate with others were
constitutionally protected freedoms which had been abridged through this
investigation. These conclusions could not be seriously debated. Merely to
summon a witness and compel him, against his will, to disclose the nature of
his past expressions and associations in a measure of governmental interference
in these matters. These are rights which are safeguarded by the Bill of Rights
and the Fourteenth Amendment. We believe that there unquestionably was an
invasion of petitioner's liberties in the areas of academic freedom and political
expressionareas in which government should be extremely reticent to tread.
39
40
42
43
In light of this, the state court emphasized a factor in the authorizing resolution
which confined the inquiries which the Attorney General might undertake to
the object of the investigation. That limitation was thought to stem from the
authorizing resolution's condition precedent to the institution of any inquiry.
The New Hampshire legislature specified that the Attorney General should act
only when he had information which '* * * in his judgment may be reasonable
or reliable.' The state court construed this to mean that the Attorney General
must have something like probable cause for conducting a particular
investigation. It is not likely that this device would prove an adequate safeguard
against unwarranted inquiries. The legislature has specified that the
determination of the necessity for inquiry shall be left in the judgment of the
investigator. In this case, the record does not reveal what reasonable or reliable
information led the Attorney General to question petitioner. The state court
relied upon the Attorney General's description of prior information that had
come into his possession.13
44
The respective roles of the legislature and the investigator thus revealed are of
considerable significance to the issue before us. It is eminently clear that the
basic discretion of determining the direction of the legislative inquiry has been
turned over to the investigative agency. The Attorney General has been given
such a sweeping and uncertain mandate that it is his decision which picks out
the subjects that will be pursued, what witnesses will be summoned and what
questions will be asked. In this circumstance, it cannot be stated authoritatively
that the legislature asked the Attorney General to gather the kind of facts
comprised in the subjects upon which petitioner was interrogated.
45
Instead of making known the nature of the data it desired, the legislature has
insulated itself from those witnesses whose rights may be vitally affected by the
investigation. Incorporating by reference provisions from its subversive
activities act, it has told the Attorney General, in effect to screen the citizenry
of New Hampshire to bring to light anyone who fits into the expansive
definitions.
46
Within the very broad area thus committed to the discretion of the Attorney
General there may be many facts which the legislature might find useful. There
would also be a great deal of data which that assembly would not want or need.
In the classes of information that the legislature might deem to desirable to
have, there will be some which it could not validly acquire because of the effect
upon the constitutional rights of individual citizens. Separating the wheat from
the chaff, from the standpoint of the legislature's object, is the legislature's
responsibility because it alone can make that judgment. In this case, the New
Hampshire legislature has delegated that task to the Attorney General.
47
As a result, neither we nor the state courts have any assurance that the questions
petitioner refused to answer fall into a category of matters upon which the
legislature wanted to be informed when it initiated this inquiry. The judiciary
are thus placed in an untenable position. Lacking even the elementary fact that
the legislature wants certain questions answered and recognizing that
petitioner's constitutional rights are in jeopardy, we are asked to approve or
disapprove his incarceration for contempt.
48
In our view, the answer is clear. No one would deny that the infringement of
constitutional rights of individuals would violate the guarantee of due process
where no state interest underlies the state action. Thus, if the Attorney
General's interrogation of petitioner were in fact wholly unrelated to the object
of the legislature in authorizing the inquiry, the Due Process Clause would
preclude the endangering of constitutional liberties. We believe that an
equivalent situation is presented in this case. The lack of any indications that
the legislature wanted the information the Attorney General attempted to elicit
from petitioner must be treated as the absence of authority. It follows that the
use of the contempt power, notwithstanding the interference with constitutional
rights, was not in accordance with the due process requirements of the
Fourteenth Amendment.
49
The conclusion that we have reached in this case is not grounded upon the
doctrine of separation of powers. In the Federal Government, it is clear that the
Constitution has conferred the powers of government upon three major
branches: the Executive, the Legislative and the Judicial. No contention has
been made by petitioner that the New Hampshire legislature, by this
investigation, arrogated to itself executive or judicial powers. We accept the
finding of the State Supreme Court that the employment of the Attorney
General as the investigating committee does not alter the legislative nature of
the proceedings. Moreover, this Court has held that the concept of separation of
powers embodied in the United States Constitution is not mandatory in state
governments. Dreyer v. People of State of Illinois, 187 U.S. 71, 23 S.Ct. 28, 47
L.Ed. 79; but cf. Tenney v. Brandhove, 341 U.S. 367, 378, 71 S.Ct. 783, 789,
95 L.Ed. 1019. Our conclusion does rest upon a separation of the power of a
state legislature to conduct investigations from the responsibility to direct the
use of that power insofar as that separation causes a deprivation of the
constitutional rights of individuals and a denial of due process of law.
50
51
Reversed.
52
53
54
For me this is a very different case from Watkins v. United States, 354 U.S.
178, 77 S.Ct. 1173. This case comes to us solely through the limited power to
review the action of the States conferred upon the Court by the Fourteenth
Amendment. Petitioner claims that respect for liberties guaranteed by the Due
Process Clause of that Amendment precludes the State of New Hampshire from
compelling him to answer certain questions put to him by the investigating arm
of its legislature. Ours is the narrowly circumscribed but exceedingly difficult
task of making the final judicial accommodation between the competing
In assessing the claim of the State of New Hampshire to the information denied
it by petitioner, we cannot concern ourselves with the fact that New Hampshire
chose to make its Attorney General in effect a standing committee of its
legislature for the purpose of investigating the extent of 'subversive' activities
within its bounds. The case must be judged as though the whole body of the
legislature had demanded the information of petitioner. It would make the
deepest inroads upon our federal system for this Court now to hold that it can
determine the appropriate distribution of powers and their delegation within the
forty-eight States. As the earlier Mr. Justice Harlan said for a unanimous Court
in Dreyer v. People of State of Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47
L.Ed. 79:
56
'Whether the legislative, executive and judicial powers of a State shall be kept
altogether distinct and separate, or whether persons or collections of persons
belonging to one department may, in respect to some matters, exert powers
which, strictly speaking, pertain to another department of government, is for the
determination of the State. And its determination one way or the other cannot
be an element in the inquiry whether the due process of law prescribed by the
Fourteenth Amendment has been respected by the State or its representatives
when dealing with matters involving life or liberty.' Whether the state
legislature should operate largely by committees, as does the Congress, or
whether committees should be the exception, as is true of the House of
Commons, whether the legislature should have two chambers or only one, as in
Nebraska, whether the State's chief executive should have the pardoning power,
whether the State's judicial branch must provide trial by jury, are all matters
beyond the reviewing powers of this Court. Similarly, whether the Attorney
General of New Hampshire acted within the scope of the authority given him
by the state legislature is a matter for the decision of the courts of that State, as
it is for the federal courts to determine whether an agency to which Congress
has delegated power has acted within the confines of its mandate. See United
States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. Sanction of the
delegation rests with the New Hampshire Supreme Court, and its validation in
Nelson v. Wyman, 99 N.H. 33, 105 A.2d 756, is binding here.
57
whether he had ever attended meetings that he knew were also attended by
Party members, whether he knew any Communists in or out of the State,
whether he knew named persons with alleged connections with organizations
either on the United States Attorney General's list or cited by the Un-American
Activities Committee of the United States House of Representatives or had ever
attended meetings with them, whether he had ever taught or supported the
overthrow of the State by force or violence or had ever known or assisted any
persons or groups that had done so, whether he had ever been connected with
organizations on the Attorney General's list, whether he had supported or
written in behalf of a variety of allegedly subversive, named causes,
conferences, periodicals, petitions, and attempts to raise funds for the legal
defense of certain persons, whether he knew about the Progressive Party, what
positions he had held in it, whether he had been a candidate for Presidential
Elector for that Party, whether certain persons were in that Party, whether
Communists had influenced or been members of the Progressive Party, whether
he had sponsored activities in behalf of the candidacy of Henry A. Wallace,
whether he advocated replacing the capitalist system with another economic
system, whether his conception of socialism involved force and violence,
whether by his writings and actions he had ever attempted to advance the
Soviet Union's 'propaganda line,' whether he had ever attended meetings of the
Liberal Club at the University of New Hampshire, whether the magazine of
which he was co-editor was 'a Communist-line publication,' and whether he
knew named persons.
58
Petitioner answered most of these questions, making it very plain that he had
never been a Communist, never taught violent overthrow of the Government,
never knowingly associated with Communists in the State, but was a socialist
believer in peaceful change who had at one time belonged to certain
organizations on the list of the United States Attorney General (which did not
include the Progressive Party) or cited by the House Un-American Activities
Committee. He declined to answer as irrelevant or violative of free speech
guaranties certain questions about the Progressive Party and whether he knew
particular persons. He stated repeatedly, however, that he had no knowledge of
Communists or of Communist influence in the Progressive Party, and he
testified that he had been a candidate for that Party, signing the required loyalty
oath, and that he did not know whether an alleged Communist leader was active
in the Progressive Party.
59
Despite the exhaustive scope of this inquiry, the Attorney General again
subpoenaed petitioner to testify on June 3, 1954, and the interrogation was
similarly sweeping. Petitioner again answered virtually all questions, including
those concerning the relationship of named persons to the Communist Party or
other causes deemed subversive under state laws, alleged Communist influence
on all organizations with which he had been connected including the
Progressive Party, and his own participation in organizations other than the
Progressive Party and its antecedent, the Progressive Citizens of America. He
refused, however, to answer certain questions regarding (1) a lecture given by
him at the University of New Hampshire, (2) activities of himself and others in
the Progressive political organizations, and (3) 'opinions and beliefs,' invoking
the constitutional guarantees of free speech.
60
The Attorney General then petitioned the Superior Court to order petitioner to
answer questions in these categories. The court ruled that petitioner had to
answer those questions pertaining to the lectures and to the Progressive Party
and its predecessor but not those otherwise pertaining to 'opinions and beliefs.'
Upon petitioner's refusal to answer the questions sanctioned by the court, he
was found in contempt of court and ordered committed to the county jail until
purged of contempt.
61
The Supreme Court of New Hampshire affirmed the order of the Superior
Court. It held that the questions at issue were relevant and that no constitutional
provision permitted petitioner to frustrate the State's demands. 100 N.H. 103,
121 A.2d 783.
62
The questions that petitioner refused to answer regarding the university lecture,
the third given by him in three years at the invitation of the faculty for
humanities, were:
63
64
'Didn't you tell the class at the University of New Hampshire on Monday,
March 22, 1954, that Socialism was inevitable in this country?'
65
66
'Did you express the opinion, or did you make the statement at that time that
Socialism was inevitable in America?'
67
'Did you in this last lecture on March 22 or in any of the former lectures
espouse the theory of dialectical materialism?'
68
'I have in the file here a statement from a person who attended your class, and I
will read it in part because I don't want you to think I am just fishing. 'His talk
this time was on the inevitability of the Socialist program. It was a glossed-over
interpretation of the materialist dialectic.' Now, again I ask you the original
question.'
69
In response to the first question of this series, petitioner had said at the hearing:
70
'I would like to say one thing in this connection, Mr. Wyman. I stated under
oath at my last appearance that, and I now repeat it, that I do not advocate or in
any way furher the aim of overthrowing constitutional government by force and
violence. I did not so advocate in the lecture I gave at the University of New
Hampshire. In fact I have never at any time so advocated in a lecture anywhere.
Aside from that I have nothing I want to say about the lecture in question.'
71
The New Hampshire Supreme Court, although recognizing that such inquiries
(100 N.H. 113, 114, 121 A.2d 792) 'undoubtedly interfered with the defendant's
free exercise' of his constitutionally guaranteed right to lecture, justified the
interference on the ground that it would occur 'in a limited area in which the
legislative committee may reasonably believe that the overthrow of existing
government by force and violence is being or has been taught, advocated or
planned, an area in which the interest of the State justifies this intrusion upon
civil liberties.' According to the court, the facts that made reasonable the
committee's belief that petitioner had taught violent overthrow in his lecture
were that he was a Socialist with a record of affiliation with groups cited by the
Attorney General of the United States or the House Un-American Activities
Committee and that he was co-editor of an article stating that, although the
authors hated violence, it was less to be deplored when used by the Soviet
Union than by capitalist countries.
72
When weighed against the grave harm resulting from governmental intrusion
into the intellectual life of a university, such justification for compelling a
witness to discuss the contents of his lecture appears grossly inadequate.
Particularly is this so where the witness has sworn that neither in the lecture nor
at any other time did he ever advocate overthrowing the Government by force
and violence.
73
Progress in the natural sciences is not remotely confined to findings made in the
laboratory. Insights into the mysteries of nature are born of hypothesis and
speculation. The more so is this true in the pursuit of understanding in the
groping endeavors of what are called the social sciences, the concern of which
is man and society. The problems that are the respective preoccupations of
These pages need not be burdened with proof, based on the testimony of a
cloud of impressive witnesses, of the dependence of a free society on free
universities. This means the exclusion of governmental intervention in the
intellectual life of a university. It matters little whether such intervention occurs
avowedly or through action that inevitably tends to check the ardor and
fearlessness of scholars, qualities at once so fragile and so indispensable for
fruitful academic labor. One need only refer to the address of T. H. Huxley at
the opening of Johns Hopkins University, the Annual Reports of President A.
Lawrence Lowell of Harvard, the Reports of the University Grants Committee
in Great Britain, as illustrative items in a vast body of literature. Suffice it to
quote the latest expression on this subject. It is also perhaps the most poignant
because its plea on behalf of continuing the free spirit of the open universities
of South Africa has gone unheeded.
75
'In a university knowledge is its own end, not merely a means to an end. A
university ceases to be true to its own nature if it becomes the tool of Church or
State or any sectional interest. A university is characterized by the spirit of free
inquiry, its ideal being the ideal of Socrates'to follow the argument where it
leads.' This implies the right to examine, question, modify or reject traditional
ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of
an immutable doctrine is repugnant to the spirit of a university. The concern of
its scholars is not merely to add and revise facts in relation to an accepted
framework, but to be ever examining and modifying the framework itself.
76
'Freedom to reason and freedom for disputation on the basis of observation and
experiment are the necessary conditions for the advancement of scientific
knowledge. A sense of freedom is also necessary for creative work in the arts
which, equally with scientific research, is the concern of the university.
77
itself on academic grounds who may teach, what may be taught, how it shall be
taught, and who may be admitted to study.' The Open Universities in South
Africa 1012. (A statement of a conference of senior scholars from
theUniversity of Cape Town and the University of the Witwatersrand, including
A. v. d. S. Centlivres and Richard Feetham, as Chancellors of the respective
universities.1 )
78
I do not suggest that what New Hampshire has here sanctioned bears any
resemblance to the policy against which this South African remonsttrance was
directed. I do say that in these matters of the spirit inroads on legitimacy must
be resisted at their incipiency. This kind of evil grows by what it is allowed to
feed on. The admonition of this Court in another context is applicable here. 'It
may be that it is the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way,
namely, by silent approaches and slight deviations from legal modes of
procedure.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29
L.Ed. 746.
79
Petitioner stated, in response to questions at the hearing, that he did not know of
any Communist interest in, connection with, influence over, activity in, or
manipulation of the Progressive Party. He refused to answer, despite court
order, the following questions on the ground that, by inquiring into the
activities of a lawful political organization, they infringed upon the inviolability
of the right to privacy in his political thoughts, actions and associations:
80
'Was she, Nancy Sweezy, your wife, active in the formation of the Progressive
Citizens of America?'
81
'Was Nancy Sweezy then working with individuals who were then members of
the Communist Party?'2
82
83
'Did he work with your present wifeDid Charles Beebe work with your
present wife in 1947?'
84
'* * * That he (the Attorney General) did possess information which was
sufficient to reasonably warrant inquiry concerning the Progressive Party is
evident from his statement made during the hearings held before him that
'considerable sworn testimony has been given in this investigation to the effect
that the Progressive Party in New Hampshire has been heavily infiltrated by
members of the Communist Party and that the policies and purposes of the
Progressive Party have been directly influenced by members of the Communist
Party." (100 N.H. 111, 121 A.2d 790.)
86
87
In the political realm, as in the academic, thought and action are presumptively
immune from inquisition by political authority. It cannot require argument that
inquiry would be barred to ascertain whether a citizen had voted for one or the
other of the two major parties either in a state or national election. Until
recently, no difference would have been entertained in regard to inquiries about
a voter's affiliations with one of the various so-called third parties that have had
their day, or longer, in our political history. This is so, even though adequate
protection of secrecy by way of the Australian ballot did not come into use till
1888. The implications of the United States Constitution for national elections
and 'the concept of ordered liberty' implicit in the Due Process Clause of the
Fourteenth Amendment as against the States, Palko v. State of Connecticut, 302
U.S. 319, 325, 58 S.Ct. 149, 151, 82 L.Ed. 288, were not frozen as of 1789 or
1868, respectively. While the language of the Constitution does not change, the
changing circumstances of a progressive society for which it was designed
yield new and fuller import to its meaning. See Hurtado v. People of State of
California, 110 U.S. 516, 528529, 4 S.Ct. 111, 117, 292, 28 L.Ed. 232;
McCulloch v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579. Whatever, on the
basis of massive proof and in the light of history, of which this Court may well
take judicial notice, be the justification for not regarding the Communist Party
as a conventional political party, no such justification has been afforded in
regard to the Progressive Party. A foundation in fact and reason would have to
be established far weightier than the intimations that appear in the record to
warrant such a view of the Progressive Party. 3 This precludes the questioning
that petitioner resisted in regard to that Party.
88
89
90
Mr. Justice CLARK, with whom Mr. Justice BURTON joins, dissenting.
91
The Court today has denied the State of New Hampshire the right to investigate
the extent of 'subversive activities' within its boundaries in the manner chosen
by its legislature. Unfortunately there is no opinion for the Court, for those who
reverse are divided and they do so on entirely different grounds. Four of my
Brothers join in what I shall call the principal opinion. They hold that the
appointment of the Attorney General to act as a committee for the legislature
results in a separation of its power to investigate from its 'responsibility to direct
the use of that power' and thereby 'causes a deprivation of the constitutional
rights of individuals and a denial of due process * * *.' This theory was not
raised by the parties and is, indeed, a novel one.
92
93
The principal opinion finds that 'The Attorney General has been given such a
sweeping and uncertain mandate that it is his decision which picks out the
subjects that will be pursued, what witnesses will be summoned and what
questions will be asked.' The New Hampshire Act clearly indicates that it was
the legislature that determined the general subject matter of the investigation,
subversive activities; the legislature's committee, the Attorney General,
properly decided what witnesses should be called and what questions should be
asked. My Brothrs surely would not have the legislature as a whole make these
decisions. But they conclude, nevertheless, that it cannot be said that the
legislature 'asked the Attorney General to gather the kind of facts comprised in
the subjects upon which petitioner was interrogated.' It follows, says this
opinion, that there is no 'assurance that the questions petitioner refused to
answer fall into a category of matters upon which the legislature wanted to be
informed * * *.' But New Hampshire's Supreme Court has construed the state
statute. It has declared the purpose to be to investigate 'subversive' activities
within the State; it has approved the use of the 'one-man' technique; it has said
the questions were all relevant to the legislative purpose. In effect the state
court says the Attorney General was 'directed' to inquire as he did. Furthermore,
the legislature renewed the Act in the same language twice in the year
following Sweezy's interrogation. N.H.Laws 1955, c. 197. In ratifying the
Attorney General's action it used these words: 'The investigation * * * provided
for by chapter 307 of the Laws of 1953, as continued by a resolution approved
January 13, 1955, is hereby continued in full force and effect, in form, manner
and authority as therein provided * * *.' (Emphasis added.) We are bound by
the state court findings. We have no right to strike down the state action unless
we find not only that there has been a deprivation of Sweezy's constitutional
rights, but that the interest in protecting those rights is greater than the State's
interest in uncovering subversive activities within its confines. The majority has
made no such findings.
94
The short of it is that the Court blocks New Hampshire's effort to enforce its
law. I had thought that in Common-wealth of Pennsylvania v. Nelson, 1956,
350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, we had left open for legitimate state
control any subversive activity leveled against the interest of the State. I for one
intended to suspend state action only in the field of subversion against the
Nation and thus avoid a race to the court-house door between federal and state
prosecutors. Cases concerning subversive activities against the National
Government have such interstate ramifications that individual state action might
effectively destroy a prosecution on the national level. I thought we had left
open a wide field for state action, but implicit in the opinions today is a
contrary conclusion. They destroy the fact-finding power of the State in this
field and I dissent from this wide sweep of their coverage.
95
The principal opinion discusses, by way of dictum, due process under the
Fourteenth Amendment. Since the basis of the opinion is not placed on this
ground, I would not think it necessary to raise it here. However, my Brothers
say that the definition of 'subversive person' lacks 'a necessary element of guilty
knowledge * * *.' Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97
L.Ed. 216, is heavily depended upon as authority for the view expressed. I do
not so regard it. I authored that opinion. It was a loyalty oath case in which
Oklahoma had declared ipso facto disqualified any employee of the State who
failed to take a prescribed oath that, inter alia, he belonged to no subversive
organizations. We struck down the Act for lack of a requirement of scienter.
We said there that 'constitutional protection * * * extend(s) to the public
servant whose exclusion pursuant to a statute is patently arbitrary or
discriminatory.' Id., 344 U.S. at page 192, 73 S.Ct. at page 219. But Sweezy is
not charged as a 'subversive person' and the Committee has made no finding
that he is. In fact, had he been found to be such a person, there is no sanction
under the Act. New Hampshire is invoking no statute like Oklahoma's. Its Act
excludes no one from anything. Updegraff stands for no such broad abstraction
as the principal opinion suggests.
96
The authority of the Attorney General was continued for another two-year
period by N.H.Laws 1955, cc. 197, 340.
'Whenever any official or board is given the power to summon witnesses and
take testimony, but has not the power to punish for contempt, and any witness
refuses to obey such summons, either as to his appearance or as to the
production of things specified in the summons, or refuses to testify or to answer
any question, a petition for an order to compel him to testify or his compliance
with the summons may be filed in the superior court, or with some justice
thereof.' N.H.Rev.Stat.Ann.1955, c. 491, 19. 'Upon such petition the court or
justice shall have authority to proceed in the matter as though the original
proceeding had been in the court, and may make orders and impose penalties
accordingly.' Id., 20. See State v. Uphaus, 100 N.H. 1, 116 A.2d 887.
'Those called to testify before this and other similar investigations can be
classified in three categories.
'First there are Communists and those who have reason to believe that even if
they are not Communists they have been accused of being and are in danger of
harassment and prosecution.
'Second, there are those who approve of the purposes and methods of these
investigations.
'Third, there are those who are not Communists and do not believe they are in
danger of being prosecuted, but who yet deeply disapprove of the purposes and
methods of these investigations.
'The first group will naturally, and I think wholly justifiably, plead the
constitutional privilege of not being witnesses against themselves.
'The second group will equally naturally be cooperative witnesses.
'The third group is faced with an extremely difficult dilemma. I know because I
belong to this third group, and I have been struggling with its problems for
many weeks now. I would like to explain what the nature of that dilemma is. I
think it is important that both those conducting these inquiries and the public
should understand.
'It is often said: If a person is not a Communist and has nothing to fear, why
should he not answer whatever questions are put to him and be done with it?
The answer, of course, is that some of us believe these investigations are evil
and dangerous, and we do not want to give our approval to them, either tacitly
or otherwise. On the contrary, we want to oppose them to the best of our ability
and persuade others to do likewise, with the hope of eventually abolishing them
altogether.
'Our reasons for opposing these investigations are not captious or trivial. They
have deep roots in principle and conscience. Let me explain with reference to
the present New Hampshire investigation. The official purpose of the inquiry is
to uncover and lay the basis for the prosecution of persons who in one way or
another promote the forcible overthrow of constitutional forms of government.
Leaving aside the question of the constitutionality of the investigation, which is
now before the courts, I think it must be plain to any reasonable person who is
at all well informed about conditions in New Hampshire today that strict
adherence to this purpose would leave little room for investigation. It is
obvious
enough that there are few radicals or dissenters of any kind in New Hampshire;
and if there are any who advocate use of force and violence, they must be
isolated crackpots who are no danger to anyone, least of all to the constitutional
form of government of state and nation. The Attorney General should be able to
check these facts quickly and issue a report satisfying the mandate laid upon
him by the legislature.
'But this is not what he has done. We do not know the whole story, but enough
has come out to show that the Attorney General has issued a considerable
number of subpoenas and has held hearings in various parts of the state. And so
bitter struggles and terrible suffering, has been distorted in our own day to
mean a confession of guilt, the more sinister because undefined and indeed
undefinable. It is unfortunate, but true, that the public at large has accepted this
distortion and will scarcely listen to those who have invoked the privilege.
'Alternatively, the witness can seek to uphold his principles and maintain his
integrity, not by claiming the protection of the Fifth Amendment (or the
Fifteenth Article of the New Hampshire Bill of Rights), but by contesting the
legitimacy of offensive questions on other constitutional and legal grounds.
'Just how far the First Amendment limits the right of legislative inquiry has not
been settled. The Supreme Court of the United States is at this very moment
considering a case (the Emspak case (349 U.S. 190, 75 S.Ct. 687, 99 L.Ed.
997)) which may do much to settle the question. But even before the Court has
handed down its decision in the Emspak case, it is quite certain that the First
Amendment does place some limitations on the power of investigation, and it is
always open to a witness to challenge a question on the ground that it
transgresses these limitations and, if necessary, to take the issue to the courts
for decision.
'Moreover, a witness may not be required to answer questions unless they are
'pertinent to the matter under inquiry' (the words are those of the United States
Supreme Court).
'What is the 'matter under inquiry' in the present investigation? According to
the Act of the New Hampshire legislature directing
the investigation, its purpose is twofold: (1) 'to make full and complete
investigation with respect to violations of the subversive activities act of 1951,'
and (2) 'to determine whether subversive persons as defined in said act are
presently located within this state.'
'I have studied the subversive activities act of 1951 with care, and I am glad to
volunteer the information that I have absolutely no knowledge of any violations
of any of its provisions; further, that I have no knowledge of subversive persons
presently located within the state.
'That these statements may carry full conviction, I am prepared to answer
certain questions about myself, though in doing so I do not mean to concede the
right to ask them. I am also prepared to discuss my views relating to the use of
force and violence to overthrow constitutional forms of government.
'But I shall respectfully decline to answer questions concerning ideas, beliefs,
and associations which could not possibly be pertinent to the matter here under
The Progressive Party offered a slate of candidates for national office in the
1948 presidential election. Henry A. Wallace, former Vice President of the
United States, was the party's selection for the presidency. Glen Taylor, former
United States Senator, was the vice-presidential nominee of the party.
Nationwide, the party received a popular vote of 1,156,103. Of this total, 1,970
votes for Progressive Party candidates were cast in New Hampshire. Statistics
of the Presidential and Congressional Election of November 2, 1948, pp. 24, 48
49.
The court made a general ruling that questions concerning the opinions or
beliefs of the witness were not pertinent. Nevertheless, it did propound to the
witness the one question about his belief in Communism.
10
11
12
13
The Progressive Party was on the ballot in forty-four States, including New
Hampshire, in 1948, and in twenty-six States in 1952.