Dr. MAURER. You mean its realities as it is today?

Mr. McDOWELL. That is right.

Dr. MAURER. Yes; I see what you mean.

Mr. McDOWELL. You say we should make laws directed at the activities and the actions of the Communists who are trying to do something to us. Well, we have most of those laws. We have laws against the falsifying of passports or forgery on a passport, and we have laws against crossing the border illegally, but there are so many things that the Communists are taking advantage of that it is hard to develop a law.

It was testified here yesterday,and I don't think the committee had ever thought of this before, that the Communist Party is taking advantage of a very general American law giving publishers of newspapers the privilege of sending their newspapers very cheaply through the mail. The Communist Party, which is dominated by a foreign government, is using that American privilege to disseminate their treason and their sedition.

What to do about that is a puzzle. Treason is hard to define unless it is an overt act of treason. Treason could be advanced in a rather gentle fashion.

Dr. MAURER. There is a constitutional definition of treason which you can't get away from.

Mr. MCDOWELL. Yes; we know. On the other hand, there are some schools in the Nation where there are teachers who are infected with this thing, who are advocating the thing, but not in a fashion where we can reach in by law and grab them by the neck and bring them out of college and put them in jail or something of the kind. The Communists have developed something that the world never faced before, the Congress never faced before; and that is the purpose of these hearings, that is the purpose of getting you gentlemen down here— so we can assemble your thoughts; so we can know what to do.

I will tell you very frankly that I am sure the Congress is a long way from making up its mind as to just how to tackle this problem. We, too, want to preserve the old constitutional rights of Americans. On the other hand, we don't want those rights to destroy our country. We would have no hesitancy in passing a law outlawing the Communist Party if that would solve the problem, but we are not at all convinced that that would solve the problem.

As a matter of fact, it has become difficult to define what a Communist is. We know lots of Communists, but we cannot prove they are members of the Communist Party or that they are Communists; yet we know they are Communists. We are facing something the world has never faced before.

I have no further questions. In fact, I haven't asked any questions. Dr. MAURER. May I offer this suggestion? Your remarks about the alien coming into this country offers you, I think, a broader opportunity for legislation, more power than you have in the regulation of private rights, because this matter of an alien coming into this country is a matter of pure privilege and you, I think, have broad latitude in determining what the conditions are upon which they can come into this country.

Mr. MCDOWELL. You are right about that.

Dr. MAURER. May I say something else before I forget it?

Mr. MCDOWELL. Of course.

Dr. MAURER. May I also suggest something which may have interesting implications for the future, which I can't fully anticipate. The Government in handling the post office is acting in a proprietary capacity. I have the feeling along with the opinion of what I said before where the Government is acting in a proprietary capacity dealing with matters of privilege, as in the case of benefactions that the Government holds out, you have a very broad latitude and it is going to be very much more difficult to overthrow legislation of that kind in the court. Rather, I would say it is much easier to defend that kind of legislation in court than it is to defend legislation that interferes with the individual's personal rights-the right to think and to act pretty much as he pleases, to join organizations, and so on-so long as he does not resort to force and violence and unlawful means. Mr. MCDOWELL. You are right about that. No person has a right to come into this country. We can stop anybody from coming in and nobody's rights are being destroyed. However, the Congress in my judgment will shortly take care of that situation as to who comes in and who does not. This country didn't care a whole lot who came in on a visit or to go around for many, many years—for generations, as a matter of fact-except perhaps for criminals. We did not want criminals here just because we don't like criminals and didn't want them in our country.

However, the Communists have, of course, taken advantage of the very easy regulations we have established to stop people at the border and, of course, they have come in hordes and droves. We still, however, are a long way from solving this problem of what to do.

Dr. MAURER. If people in this country can be shown to be, as I have suggested a couple of times, engaged in some conspiracy, some confederated purpose, as members of some organization or agency that from the outside of the country seeks to control what is going on here, it does seem to me that you have the right to prohibit that kind of action.

Mr. MCDOWELL. Dr. Maurer, I am going to present a bill to this committee and I would like to have your comment on it. The bill has not yet been presented.

Among the questions that are asked a person who has applied for citizenship in the United States, an alien applying, is:

Are you a member of various organizations that would tend to destroy our country?

Of course, the answer is "No." Otherwise, they would not be granted citizenship. However, we have discovered-all of us know, and you know that there are thousands of citizens in the country who were born in a foreign country and who now are Communists. I think Congress should and probably will get around to the business of withdrawing that citizenship because they have become members of a foreign conspiracy. We will withdraw that citizenship and let those people face the threat of deportation and perhaps the eventuality of deportation as removing a threat from our country. What would you think of that.

Dr. MAURER. You are going to face difficulties in the light of some of the decisions of the Supreme Court.

Mr. MCDOWELL. The difficulty would be, perhaps, that we would have to prove that they were Communists before they took the oath. The difficulty would be that they became converts of communism, became Communists, after they became citizens. Whether we can work that out, I don't know. Your opinion would be valuable.

Dr. MAURER. It appears to me that characterizing them as Communists does not achieve the final result that you ought to aim at. I think you can reach these fellows if you can prove that they are actually engaged in some activity. It is their actions, as I have repeated over and over again, showing confederation of purposes, acting as agencies, whether they are being paid for it or not that are difficult to prove. It will have a much better standing in court than to simply pass blanketing laws that exclude them or do this and that to them just because they happen to be members of a certain party designated as Communists or designated as you please.

Mr. NIXON. In other words, the difficulty in that type of legislation would be that the Congress would be setting up what might be called a provisional type of citizenship. In other words, the citizenship that would be granted to an alien would be one which did not grant him a right as such but still simply a privilege which could be revoked at any time. You question whether the courts would uphold that type of legislative declaration?

Dr. MAURER. I know, as you know, that our constitutional law has not been static. It has been adjusted and readjusted to changing conditions as they have developed and as our international situation becomes more and more involved, perhaps more acute, more dangerous. Let us say, it seems to me that the courts will recognize that the Congress has the right to face those realities and legislate accordingly, and I think when you talk about that Nationality Act of 1940, there is the power of Congress to control matters within the act and they are very broad and far-reaching. I really do think so. Congress has gone a whole lot further than they did 50 or 100 years ago in that matter, and I would not be able myself to say exactly what are the limitations of power the Congress has in that direction, but they are very far-reaching.

Mr. NIXON. Dr. Maurer, on several occasions you have referred to the fact that if the Communist organization could be proved to be a conspiracy within the law, a prosecution might lie against them, assuming that the law was so drafted to cover the specific acts involved. Could you give the committee an idea of what manner of proof would in your opinion be necessary to get by in a court to prove a conspiracy on the part of the Communists?

Dr. MAURER. Of course, in the first place, you have to look at the statute in general and ask the question whether, from the findings of fact Congress has made, that statute as drawn has a legitimate basis in fact, and whether or not the statutory provisions as drawn have a real and substantial relation to the protection of the public interest in that particular situation as against activities injurious to the country. The courts are going to go pretty far in giving Congress broad discretionary power to act in legislative matters if there can be shown from the legislative history, according to the court, that you have information that perhaps the rest of the country does not have that furnishes a reasonable basis for that kind of legislation.

Mr. NIXON. You mean, Dr. Maurer, that the Congress could pass a statute and make a legislative finding or legislative declaration to the effect

Dr. MAURER. Legislative findings of fact as to what is actually being done and perhaps how it is being done in this country. If you frame the legislation upon that basis the court cannot deny you the exercise of your discretionary judgment as to the means that you are going to select to meet that factual situation. Then, of course, the only question is whether or not the act as drawn has some real and substantial relationship to the accomplishment of the purpose of meeting this situation.

I want to add to that that, of course, when the law is applied to a particular individual, then that individual may defend himself on the ground that he does not come within the purport of the legislation. Now, that is a matter of fact as applied to him individually, but what I mean is that the court cannot find the legislation invalid on its face. See what I mean?

It

may perhaps be invalid only as applied to a particular individual who can prove that he does not come within the scope of the acts objected to. I don't know if I make myself clear.

Mr. NIXON. Yes: I understand.

Are there any other questions?

Dr. Maurer, the committee is very appreciative of your taking the time to give us your views on this. We appreciate the fact, too, that you are a distinguished authority in the field of constitutional law and I am sure that your testimony will be of value to us in our consideration of the problem.

Dr. MAURER. I hope, gentlemen, that what I have said will have some practical value. I appreciate your courtesy to me this morning. I thank you for your kind words to me.

I have been very busy recently and have not been so very well and perhaps I did not give as much time to this as I might have under other circumstances; but if I have said anything here today that will help you men to reach some constructive result here, I will feel that I have done my duty.

Mr. MCDOWELL. I think you have, Dr. Maurer.

Mr. NIXON. I think you have, and I think that is unanimous.
Will you call the next witness, Mr. Stripling?

Mr. STRIPLING. Dr. Elliott.

Mr. NIXON. Raise your right hand. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? Dr. ELLIOTT. I do.

TESTIMONY OF DR. WILLIAM Y. ELLIOTT

Mr. NIXON. Will you identify Dr. Elliott for the record?

Mr. STRIPLING. Dr. Elliott, will you please state your full name and present address.

Dr. ELLIOTT. My name is William Elliott. I am a professor of government at Harvard. I am working for Congress as a staff director for the Select Committee on Foreign Aid.

My normal home address is in Belmont, Mass., but I spend a good deal of my time down here in Washington.

I am also consultant and staff director for the Foreign Affairs Committee, but I want to emphasize that I am speaking here as a professor

of government and not in any way whatever as connected with those committees.

You have asked me, I take it, as professor of government, to give you some advice, and it is in that light that I am here.

Mr. STRIPLING. You are here at the invitation of the committee; are you not?

Dr. ELLIOTT. Yes, sir.

Mr. STRIPLING. Do you have a prepared statement?

Dr. ELLIOTT. I do, sir, but it is a very limited part of what I hope to put into the record. I have a paper which I believe is available to you now.

Mr. STRIPLING. According to our procedure, then, if you will read your statement and at the conclusion of your statement, the members will direct questions to you.

Dr. ELLIOTT. May I amplify my statement by a brief introduction, sir, along the lines of the matters that I understand the committee wishes me to discuss?

Mr. NIXON. Yes, of course.

Dr. ELLIOTT. I suppose every honest American citizen today is concerned with the problem that this committee has before it, and I would like to express a feeling of gratification that the committee is approaching this now more and more in the spirit of the seriousness and dignity of the responsibility that is imposed upon it in tackling one of the most difficult questions before any democracy, particularly before our democracy, which bears the burden of leadership of all the democracies of the world.

The question that you are confronting and that is confronting you is the one of getting at the enemies of constitutional government who take refuge behind the protections of the Constitution that they are trying to destroy. Naturally, that question is fraught with very grave strategic and tactical problems from the point of view of public relations and of the education of the public as to the nature of the movements with which you are trying to deal, totalitarian movements of every sort, of which at present the major danger arises from communism.

I think we are all well aware that a primary idea of this is that we may lend the cloak of martyrdom to people who do not deserve that cloak, and the testimony that you have had from such distinguished witnesses as the head of the Federal Bureau of Investigation, Mr. Hoover, and of Mr. Bullitt, indicates some of the pitfalls of injudicious and ill-considered legislation.

I think, too, that the committee is well aware and I hope will increasingly show by its researches and by its studies and its education of the public through its hearings, that it is concerned not at all with stigmatizing innocent people who may be Socialists or whatever their political persuasions are concerned with, so long as they are not the enemies of constitutional government.

Socialists are among the most stanch defenders of democracy today, even if one does not share their economic views, and the mistake that has often been made in the past of lumping in one group people who believe in socialism and communism has been responsible for a great deal of the ill-considered actions that have led to public reactions against the necessity that you are focusing on today, which is to get