All of these State statutes define, generally, a philosophy. Thus, the syndicalist statute of California defines the criminal syndicalist philosophy and makes adherence thereto, belief therein, and advocacy thereof a crime. Similarly, the New York Penal Code defines the philosophy of criminal anarchy and makes the adherence thereto, belief therein, and advocacy thereof a crime. In prosecutions brought under these statutes the constitutional immunities were asserted, particularly the rights of free speech guaranteed by article 1 of the Constitution, and the due-process clause of amendment 14 of the Constitution. Both of these defenses, fully presented to the Supreme Court of the United States, were held not to be valid. The State statutes were sustained as necessary and reasonable exercises by political governments in the preservation thereof and the alleged individual rights guaranteed by the Constitution were held not to be violated by their enactment.

Similarly, the authority of Congress under article 1, section 8, of the Constitution is sufficiently wide to embrace similar, if not a greater, area of self-protection. Thus, Congress can define a philosophy and movement which is disloyal and subversive as a crime, and constitutionally define that adherence thereto, belief therein, and advocacy thereof are criminal. The plenary power of the legislature is unrestricted, except insofar as the provisions of the State or Federal Constitutions limit it, and the courts will not invalidate legislative enactments unless they are in direct conflict therewith. There is a well-recognized doctrine of the preservation of the state which applies in situations of extreme necessity, such as war. The subordinate bodies of Congress can promulgate proper regulations. For example, the civil-service regulations which permit dismissal of employees, if there is a reasonable doubt as to their loyalty, and other legislative enactments and Executive orders which have concerned public employment and public office. The leading case declaring that the rights of speech, press, and so forth, are not absolute, is Gitlow v. New York ((1925), 268 U. S. 652), frequently reaffirmed by the court. The court affirmed the conviction of Gitlow and upheld the constitutionality of the State criminal anarchy statutes which he was charged with violating. In effect the decision held that freedom of speech and of the press does not confer an absolute right to speak or to publish whatever one may choose or an unrestricted or unbridled license that gives immunity for any absolute use of language or that prevents the punishment of those who abuse this freedom. In certain espionage cases Justices Brandeis and Holmes, in dissent opinions, laid down the test that in freedom-of-speech cases unless the effect of the language spoken or written is such that it constitutes a clear and immediate danger to the institutions of the state, the protection of the Constitution should not be denied. As stated before, this doctrine was set forth in a dissent and I doubt that it would be reasserted or upheld in any case involving the issue of the overthrow of our Government by force and violence. However, the Communists do not hesitate to urge its limitations in prosecutions, criminal and otherwise.

There are two United States Supreme Court decisions which the Communists invoke which deal with constitutional guarantees and which require explanation.

Schneiderman v. United States (320 U. S. 118), decided June 21, 1943. Proceedings were brought in 1939 to cancel a certificate of

citizenship granted in 1927. Schneiderman conceded that he was a member of the Communist Party. The action for denaturalization and cancellation was not brought on the ground of fraud but on the ground of illegal procurement. The particular illegality alleged was that for 5 years preceding his naturalization, Schneiderman had not behaved as a person attached to the principles of the Constitution but was in fact a member of and affiliated with and believed in and supported the principles of the Communist Party, whose principles were opposed to the principles of the Constitution, and, further, that such principles advocated and taught the overthrow of the Government by force and violence. The Government, unfortunately, made a concession which was fatal to their cause. The Government conceded that it was ordinarily unsound to impute to an organization the views expressed in writings of all its members or to impute such writings to each member. After making that concession, the Government then took a contradictory position by contending that, nevertheless, it was proper to impute to Schneiderman certain excerpts from documents in evidence to show the advocacy of force and violence as a principle of the Communist Party in 1927 because these documents were official publications carefully supervised by the party, because of the party's notorious discipline over its members and because Schneiderman was not a mere rank-and-file member, but an intelligent and educated individual, a leader of the organization, and an intellectual revolutionary. In my opinion, the Government vitiated whatever merit its contention would have had by the concession it made. The Court, in noting this concession, set forth in dictum language, which is now considered by all subversive groups as a principle of law, namely, the doctrine that writings of a party will not be attributable to a member on the principle of association. Such a conclusion is absolutely unsound because people who belong to an organization such as the Communist Party must accept the principles of the organization, otherwise their membership in such an organization has no meaning. Mr. Justice Murphy delimited the issue strictly (pp. 153–154):

We

We do not say that a reasonable man could not possibly have found, as the district court did, that the Communist Party in 1927 actively urged the overthrow of the Government by force and violence. But that is not the issue here. are not concerned with the question whether a reasonable man might so conclude, nor with the narrow issue whether administrative findings to that effect are so lacking in evidentiary support as to amount to a denial of due process. As pointed out before, this is a denaturalization proceeding in which, if the Government is entitled to attack a finding of attachment as we have assumed, the burden rests upon it to prove the alleged lack of attachment by "clear, unequivocal, and convincing” evidence.

The total effect of the Schneiderman case is that the courts are extremely reluctant in any case, on well-established principles of jurisprudence, to upset a judicial decree. The Schneiderman case was the first case before the Supreme Court in which the Court was asked to consider the nature and scope of the Government's right in a denaturalization proceeding to reexamine the finding and judgment of attachment upon a charge of illegal procurement. The Court held that in denaturalization proceedings the evidence and burden on the Government must be clear and unequivocal. The Court did not pass upon the principles of the party.

The Bridges case, Bridges v. Wixon (326 U. S. 135), decided June 18, 1945, held that Bridges was never proved a member of the party and

that "affiliation" as used in the Deportation Act had been misconstrued. In my opinion, neither of the cases have any application to the illegality of the Communist Party and the Court did not determine that issue. I am of the opinion that any restrictive and regulatory measures which Congress may enact pursuant to your findings will be constitutional. In my opinion, present Communist activities render academic the present-danger doctrine. Witness the armed insurrection and seizure of power by the Communists in taking over and maintaining control of the satellite nations; the organized riots that have taken place in Italy, France, and Austria; the obstreperous attitude of Russia and her satellites in the United Nations; the present cold war of nerves which Russia is conducting; Communist-inspired espionage and the steady infiltration of Communists into important Government departments, making necessary the loyalty tests; the re-creation of the Comintern; the spending by the United States of billions yearly to avert further communistic onslaughts in nations made weak by war; the bipartisan agreement in this country that unless we stop the international growth of communism our national security will be endangered; the numerous court determinations that Communists are disloyal; and reports by responsible legislative bodies in which the illegal activities of Communists are set forth and their disloyalty condemned. When we consider this situation we must come to the irresistible conclusion that the danger is not only imminent but that it is here and we must take protective measures against communism. The constitutionally recognized doctrine of the right of self-preservation by the state has immediate application. I believe that present conditions will permit the enactment of legal measures against communism and that this would be sustained by the courts. Such measures should be adopted. In the State of New York, Governor Dewey is giving no quarter to subversive groups. The legislature has accepted Governor Dewey's leadership and recommendations and the courts in New York have been most sympathetic. I believe that all courts, Federal and State, will recognize the existing conditions and they, too, will be sympathetic.

I recommend adoption of an appropriate amendment to section 10 making communism, the adherence thereto, belief therein, and advocacy thereof, a crime.

The newspaper article dealing with the testimony of Attorney General Tom C. Clark, who appeared before your committee on February 5, 1948, stated in effect that he was opposed to the principles of outlawing the Communist Party. Outlawing the Communist Party, he contends, would "run the risk of turning radicals into martyrs" and afford members an opportunity to operate underground. "In short," he said, "every such (subversive) movement must be rendered completely ineffective as a fifth column." (New York Times, February 6, 1948.)

His line of reasoning was somewhat similar to that expressed by J. Edgar Hoover, who has appeared before your committee, and who likewise testified that he was against outlawing communism because it would result in their going underground. I believe that there were several other witnesses that appeared before your committee and testified more or less to the same effect. None of these witnesses, however, disputed the contention that communism was unlawful. In effect, they agreed with the contention that communism as it is prac

ticed today is wrong, or can be considered equal to a criminal act, but they fear that by making it such it couldn't be coped with because it might, or rather it would, go underground. I believe that the argument is specious.

Practically all crimes are committed underground. None is committed in a manner that would lead the perpetrator to believe that he would be apprehended. We do not run away from making certain acts crimes and fixing penalties in connection therewith just because the crimes would thus become more difficult to detect. If communism is all that we say it is, then it constitutes a crime and it should be met as such. That is the American way of doing things. The time has passed when we are to act "cute." Let's meet it head on. Investigation of communistic activities discloses that a large percentage of their work is done underground and in an underhanded

manner.

There is no surer way to get at the Communists than to attack them with the strongest weapon we possess in this country-the criminal law. I have indicated to you that we needn't concern ourselves with any unconstitutional objection and barring such a contingency, no other valid reason exists to stop the Congress from calling communism what it is an offense against the Government.

The Mundt bill, H. R. 4422, provides that all persons of the Communist Party and organizations controlled by it must register as agents of a foreign principal and that all printed matter distributed by such members and organizations shall be clearly labeled as being in compliance with the terms of this legislation and for other purposes. I would call your attention to the Criminal Code, articles 14 and 15, which define organizations carrying on subversive political, civilian, and military activities and the necessity that such organizations register. It may be advisable to amend sections 14 and 15 to provide that Communists or the Communist Party be deemed to be one of the organizations thus required to register. However, if you are to adopt an amendment to H. R. 4581, as I suggested, making communism a crime, you should not adopt a bill such as H. R. 4422. If you would make communism a crime, you could not require its members to register since that would be self-incriminatory and would be contrary to the fifth amendment of the Constitution. It might well be that if communism would be made a crime, that requiring the members of the party to register as foreign agents would constitute an immunity from prosecution under the charge of criminal communism and the very purpose of the bill would thereby be defeated. I would recommend against the adoption of this bill. Furthermore, the adoption of this bill would not add much to the present situation. Communists today avow themselves publicly as such and the additional means of legislation which this bill seeks to impose would not add such an approbrium as to make Communists desist from holding themselves forth as such. In addition, it would have no effect on outlawing the party.

There is another bill before the House, the Cole bill-H. R. 4482, which was referred to the Committee on House Administration and I would like to discuss it because it concerns the same objectives with which the bills I have discussed concern themselves. That bill would bar the Communist Party from the election ballot and it goes so far

as to hold that Communists would not be permitted to have the name of any candidate printed on the ballot, "in any election in the United States of America." The qualifications of voters are fixed by State constitutions and statutes and States have the exclusive power to prescribe any reasonable qualifications for voters not inconsistent with the limitations of the United States Statutes. The power of each State to define the qualifications of its voters is practically unlimited with respect to elections not only of local officers, but also of Presidential electors. Under the Constitution of the United States, Members of the House of Representatives as well as Senators are elected by the people of the several States and the qualifications for such electors are those "requisite for electors of the most numerous branch of the State legislature" (art. I, sec. 2; amendment 17 of the Constitution). Thus, the criterion for the right to exercise the franchise is, constitutionally, the State criterion solely and is not the function of or subject to definition by the Congress of the United States. The power of Congress to legislate at all upon voting in State elections, unless it may be with respect to the election of Senators and Representatives, rests upon the fifteenth and nineteenth amendments. Both, it should be pointed out, are constitutional amendments which were necessary and prerequisite to confer constitutional power upon the Congress to exercise any legislation necessary and which embraces limitations upon the States. The legislation authorized by these amendments is restricted; it extends only to the prevention of legislation which is forbidden by the provisions. The right of the citizen to vote depends upon the laws of the State in which he resides, and is not granted to him by the Constitution of the United States, nor is such right guaranteed to him by that instrument. There are many Federal Court decisions holding as I have stated. The rule is clearly set forth in the following case:

This amendment [the fifteenth] is—a limitation upon the powers of the States in the execution of their otherwise unlimited right to prescribe the qualification of voters in their own elections, and the powers of Congress to enforce this limitation is necessarily limited to legislation appropriate to the correction of any discrimination on account of race, color, or condition. The affirmative right to vote in such elections is still dependent upon and secured by the constitution and laws of the State, the power of the State to prescribe qualification being limited in only one particular. The right of the voter not be discriminated against at such elections on account of race, or color is the only right protected by this amendment, and that right is a very different right from the affirmative right to vote (Karem v. U. S., C. C. A. Ky. 1903, 121 F. 250).

The States have adopted laws disenfranchising felons and in their definitions they have included convictions for felonies under the United States Criminal Code. It must be pointed out, however, that a conviction for a felony under the United States Criminal Code does not ipso facto result in the disenfranchisement of any person; State action must follow to accomplish that result. Seventeen States have adopted laws outlawing the Communist Party on the ballots in the respective States. This was done in the exercise of a State power. There are no election laws in the United States Code, as such, dealing with political parties. There are United States statutes which seek to prohibit corrupt practices in connection with the election of Federal officers. I believe that I have indicated sufficiently that regulations affecting the right to the franchise and laws with regard to political parties are