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UNITED STATES v. BROWN.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Argued March 29, 1965.
Decided June 7, 1965.
Respondent was convicted under 504 of the Labor-Management Reporting and Disclosure Act of 1959, which makes it a crime for one who belongs to the Communist Party or who has been a member thereof during the preceding five years wilfully to serve as a member of the executive board of a labor organization. The Court of Appeals reversed, holding 504 violative of the First and Fifth Amendments. Held: Section 504 constitutes a bill of attainder and is therefore unconstitutional. Pp. 441-462.
Solicitor General Cox argued the cause for the United States. With him on the brief were Assistant Attorney General Yeagley, Nathan Lewin, Kevin T. Maroney and George B. Searls.
Richard Gladstein argued the cause for respondent. With him on the brief was Norman Leonard.
Briefs of amici curiae, urging affirmance, were filed by Melvin L. Wulf for the American Civil Liberties Union of Northern California et al., and by Victor Rabinowitz and Leonard B. Boudin for the Emergency Civil Liberties Committee.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
In this case we review for the first time a conviction under 504 of the Labor-Management Reporting and Disclosure Act of 1959, which makes it a crime for a member of the Communist Party to serve as an officer or (except in clerical or custodial positions) as an employee of a labor union. 1 Section 504, the purpose of which is to protect [381 U.S. 437, 439] the national economy by minimizing the danger of political strikes, 2 was enacted to replace 9 (h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, which conditioned a union's access to the National Labor Relations Board upon the filing of affidavits by all of the union's officers attesting that they were not members of or affiliated with the Communist Party. 3 [381 U.S. 437, 440]
Respondent has been a working longshoreman on the San Francisco docks, and an open and avowed Communist, for more than a quarter of a century. He was elected to the Executive Board of Local 10 of the International Longshoremen's and Warehousemen's Union for consecutive one-year terms in 1959, 1960, and 1961. On May 24, 1961, respondent was charged in a one-count indictment returned in the Northern District of California with "knowingly and wilfully serv[ing] as a member of an executive board of a labor organization . . . while a member of the Communist Party, in wilful violation of Title 29, United States Code, Section 504." It was neither charged nor proven that respondent at any time advocated or suggested illegal activity by the union, or proposed a political strike. 4 The jury found respondent guilty, and he was sentenced to six months' imprisonment. The Court of Appeals for the Ninth Circuit, sitting en banc, reversed and remanded with instructions to set aside the conviction and dismiss the indictment, holding that 504 violates the First and Fifth Amendments to the Constitution. 334 F.2d 488. We granted certiorari, 379 U.S. 899 .
Respondent urges - in addition to the grounds relied on by the court below - that the statute under which he was convicted is a bill of attainder, and therefore violates Art. I, 9, of the Constitution. 5 We agree that 504 is void as a bill of attainder and affirm the decision of the Court of Appeals on that basis. We therefore find it unnecessary to consider the First and Fifth Amendment arguments. [381 U.S. 437, 441]
The provisions outlawing bills of attainder were adopted by the Constitutional Convention unanimously, and without debate. 6
While history thus provides some guidelines, the wide variation in form, purpose and effect of ante-Constitution bills of attainder indicates that the proper scope of the Bill of Attainder Clause, and its relevance to contemporary problems, must ultimately be sought by attempting to discern the reasons for its inclusion in the Constitution, and the evils it was designed to eliminate. The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply - trial by legislature.
The Constitution divides the National Government into three branches - Legislative, Executive and Judicial. [381 U.S. 437, 443] This "separation of powers" was obviously not instituted with the idea that it would promote governmental efficiency. It was, on the contrary, looked to as a bulwark against tyranny. For if governmental power is fractionalized, if a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will. James Madison wrote:
The authors of the Federalist Papers took the position that although under some systems of government (most notably the one from which the United States had just broken), the Executive Department is the branch most likely to forget the bounds of its authority, "in a representative republic . . . where the legislative power is exercised by an assembly . . . which is sufficiently numerous to feel all the passions which actuate a multitude; yet [381 U.S. 437, 444] not so numerous as to be incapable of pursuing the objects of its passions . . .," barriers had to be erected to ensure that the legislature would not overstep the bounds of its authority and perform the functions of the other departments. 17 The Bill of Attainder Clause was regarded as such a barrier. Alexander Hamilton wrote:
It is in this spirit that the Bill of Attainder Clause was consistently interpreted by this Court - until the decision in American Communications Assn. v. Douds, 339 U.S. 382 , which we shall consider hereafter. In 1810, Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch 87, 138, stated that "[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both." This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court's pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups. See also Ogden v. Saunders, 12 Wheat. 213, 286.
The approach which Chief Justice Marshall had suggested was followed in the twin post-Civil War cases of Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333. Cummings involved the constitutionality of amendments to the Missouri Constitution of 1865 which provided that no one could engage in a number of specified professions (Cummings was a priest) unless he first swore that he had taken no part in the rebellion against the Union. At issue in Garland was a federal statute which required attorneys to take a similar oath before they could practice in federal courts. This Court struck down both provisions as bills of attainder on the ground that they were legislative acts inflicting punishment on a specific group: clergymen and lawyers who had taken part in the rebellion and therefore could not truthfully take the oath. In reaching its result, the Court emphatically rejected the argument that the constitutional [381 U.S. 437, 448] prohibition outlawed only a certain class of legislatively imposed penalties:
Under the line of cases just outlined, 504 of the Labor-Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact [381 U.S. 437, 450] legislation designed to keep from positions affecting interstate commerce persons who may use such positions to bring about political strikes. In 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leave to courts and juries the job of deciding what persons have committed the specified acts or possess the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability - members of the Communist Party. 24
Communist Party v. Subversive Activities Control Board, 367 U.S. 1 , lends support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat. 987, 50 U.S.C. 781 et seq. (1958 ed.). The definition of "Communist-action organization" which the Board is to apply is set forth in 3 of the Act:
The Solicitor General points out that in Board of Governors v. Agnew, 329 U.S. 441 , this Court applied 32 of the Banking Act of 1933, which provides:
It is argued, however, that in 504 Congress did no more than it did in enacting 32: it promulgated a general rule to the effect that persons possessing characteristics which make them likely to incite political strikes should not hold union office, and simply inserted in place of a list of those characteristics an alternative, shorthand criterion - membership in the Communist Party. Again, we cannot agree. The designation of Communists as those persons likely to cause political strikes is not the substitution of a semantically equivalent phrase; on the contrary, it rests, as the Court in Douds explicitly recognized, 339 U.S., at 389 , upon an empirical investigation by Congress of the acts, characteristics and propensities of Communist Party members. In a number of decisions, this Court has pointed out the fallacy of the suggestion that membership in the Communist Party, or any other political organization, can be regarded as an alternative, but equivalent, expression for a list of undesirable characteristics. For, as the Court noted in Schneiderman v. United States, 320 U.S. 118, 136 , "under our traditions beliefs are personal and not a matter of mere association, and . . . men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly [381 U.S. 437, 456] to all of its platforms or asserted principles." 30 Just last Term, in Aptheker v. Secretary of State, 378 U.S. 500 , we held 6 of the Subversive Activities Control Act to violate the Constitution because it "too broadly and indiscriminately" restricted constitutionally protected freedoms. One of the factors which compelled us to reach this conclusion was that 6 inflicted its deprivation upon all members of Communist organizations without regard to whether there existed any demonstrable relationship between the characteristics of the person involved and the evil Congress sought to eliminate. Id., at 509-511. These cases are relevant to the question before us. Even assuming that Congress had reason to conclude that some Communists would use union positions to bring about political strikes, "it cannot automatically be inferred that all members shar[e] their evil purposes or participat[e] in their illegal conduct." Schware v. Board of Bar Examiners, 353 U.S. 232, 246 . In utilizing the term "members of the Communist Party" to designate those persons who are likely to incite political strikes, it plainly is not the case that Congress has merely substituted a convenient shorthand term for a list of the characteristics it was trying to reach. 31
The Solicitor General argues that 504 is not a bill of attainder because the prohibition it imposes does not constitute "punishment." In support of this conclusion, he urges that the statute was enacted for preventive rather [381 U.S. 437, 457] than retributive reasons - that its aim is not to punish Communists for what they have done in the past, but rather to keep them from positions where they will in the future be able to bring about undesirable events. He relies on American Communications Assn. v. Douds, 339 U.S. 382 , which upheld 9 (h) of the National Labor Relations Act, the predecessor of the statute presently before us. In Douds the Court distinguished Cummings, Garland and Lovett on the ground that in those cases
Historical considerations by no means compel restriction of the bill of attainder ban to instances of retribution. A number of English bills of attainder were enacted for preventive purposes - that is, the legislature made a judgment, undoubtedly based largely on past acts and associations (as 504 is) 33 that a given person or group was likely to cause trouble (usually, overthrow the [381 U.S. 437, 459] government) and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event. 34 It is also clear that many of the early American bills attainting the Tories were passed in order to impede their effectively resisting the Revolution.
We think that the Court in Douds misread United States v. Lovett when it suggested, 339 U.S., at 413 , that that case could be distinguished on the ground that the sanction there imposed was levied for purely retributive reasons. In Lovett the Court, after reviewing the legislative history of 304 of the Urgent Deficiency Appropriation Act, 328 U.S., at 308 -313, concluded that the statute was the product of a congressional drive to oust from government persons whose (congressionally determined) "subversive" tendencies made their continued employment dangerous to the national welfare: "the purpose of all who sponsored 304 . . . clearly was to `purge' the then existing and all future lists of government employees of those whom Congress deemed guilty of `subversive activities' and therefore `unfit' to hold a federal job." Id., at 314. Similarly, the purpose of the statute before us is to purge the governing boards of labor unions of those whom Congress regards as guilty of subversive acts and associations and therefore unfit to fill positions which might affect interstate commerce. 36 [381 U.S. 437, 461]
The Solicitor General urges us to distinguish Lovett on the ground that the statute struck down there "singled out three identified individuals." It is of course true that 504 does not contain the words "Archie Brown," and that it inflicts its deprivation upon more than three people. However, the decisions of this Court, as well as the historical background of the Bill of Attainder Clause, make it crystal clear that these are distinctions without a difference. It was not uncommon for English acts of attainder to inflict their deprivations upon relatively large groups of people, 37 sometimes by description rather than name. 38 Moreover, the statutes voided in Cummings and Garland were of this nature. 39 We cannot agree that the fact that 504 inflicts its deprivation upon the membership of the Communist Party rather than upon a list of named individuals takes it out of the category of bills of attainder.
We do not hold today that Congress cannot weed dangerous persons out of the labor movement, any more than the Court held in Lovett that subversives must be permitted to hold sensitive government positions. Rather, we make again the point made in Lovett: that Congress must accomplish such results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied. Under our Constitution, Congress possesses full legislative authority, but the task of adjudication must be left to other tribunals. [381 U.S. 437, 462]
This Court is always reluctant to declare that an Act of Congress violates the Constitution, but in this case we have no alternative. As Alexander Hamilton observed:
[ Footnote 2 ] In American Communications Assn. v. Douds, 339 U.S. 382, 388 , this Court found that "the purpose of 9 (h) of the [National Labor Relations] Act [was] to remove . . . the so-called `political strike'." Section 504 was designed to accomplish the same purpose as 9 (h), but in a more direct and effective way. H. R. Rep. No. 741, 86th Cong., 1st Sess., p. 33; H. R. Rep. No. 1147, 86th Cong., 1st Sess., p. 36.
[ Footnote 3 ] 61 Stat. 146, amending the National Labor Relations Act of 1935, 49 Stat. 449. Section 9 (h) provided:
[ Footnote 4 ] Evidence that the executive board had never called a strike was, upon the motion of the Government, stricken from the record, and a defense offer to prove that the union had not been involved in a strike since 1948 was rejected by the court.
[ Footnote 5 ] Respondent first raised the bill of attainder argument in his motion to dismiss the indictment.
[ Footnote 6 ] Madison, Debates in the Federal Convention of 1787, p. 449 (Hunt and Scott ed. 1920).
[ Footnote 7 ] E. g., 3 Jac. 1, c. 2; 10 & 11 Will. 3, c. 13; 13 Will. 3, c. 3; 9 Geo. 1, c. 15.
[ Footnote 8 ] 3 Coke, First Institute (on Littleton), p. 565 (Thomas ed. 1818); Chafee, Three Human Rights in the Constitution of 1787, p. 96 (1956). Cf. U.S. Const., Art. III, 3, cl. 2.
[ Footnote 9 ] II Wooddeson, A Systematical View of the Laws of England, p. 638 (1792); II Story, Commentaries on the Constitution of the United States, p. 210 (4th ed. 1873); see, e. g., 13 Car. 2, Stat. I, c. 15; 9 Geo. 1, c. 15.
[ Footnote 10 ] II Wooddeson, A Systematical View of the Laws of England, p. 638 (1792); see, e. g., 19 Car. 2, c. 10; Proceedings Against Hugh and Hugh Le Despencer, 1 State Trials 23 (1320).
[ Footnote 11 ] E. g., 11 Geo. 3, c. 55.
[ Footnote 12 ] 21 Rich. 2, c. 6.
[ Footnote 13 ] E. g., 26 Hen. 8, c. 25 (priv.), 3 Statutes of the Realm, p. 529; 8 Will. 3, c. 5.
[ Footnote 14 ] See note 32, infra.
[ Footnote 15 ] Van Tyne, The Loyalists in the American Revolution, apps. B & C (1902); Thompson, Anti-Loyalist Legislation During the American Revolution, 3 Ill. L. Rev. 81, 147; Reppy, The Spectre of Attainder in New York, 23 St. John's L. Rev. 1. See Respublica v. Gordon, 1 Dall. 233; Cooper v. Telfair, 4 Dall. 14.
[ Footnote 16 ] The Federalist, No. 47, pp. 373-374 (Hamilton ed. 1880).
[ Footnote 17 ] The Federalist, No. 48, pp. 383-384 (Hamilton ed. 1880) (Madison); see generally The Federalist, Nos. 47 (Madison), 48 (Madison), 49 (Hamilton), 51 (Hamilton) and 78 (Hamilton).
[ Footnote 18 ] III (John C.) Hamilton, History of the Republic of the United States, p. 34 (1859), quoting Alexander Hamilton. James Madison expressed similar sentiments:
[ Footnote 19 ] 1 Cooley, Constitutional Limitations, pp. 536-537 (8th ed. 1927). To the same effect, see Calder v. Bull, 3 Dall. 386, 389; United States v. Lovett, 328 U.S. 303, 317 -318; II Story, Commentaries on the Constitution of the United States, p. 210 (4th ed. 1873); III Hamilton, History of the Republic of the United States, p. 31 (1859); Pound, Justice According to Law II, 14 Col. L. Rev. 1, 7-12. Macaulay's account of the attainder of Sir John Fenwick is particularly vivid:
[ Footnote 20 ] The same thought is reflected in the writings of Thomas Jefferson:
[ Footnote 21 ] In 1872, in Pierce v. Carskadon, 16 Wall. 234, the Court voided as a bill of attainder a West Virginia statute conditioning access to the courts upon the taking of an oath similar to those involved in Cummings and Garland. In Dent v. West Virginia, 129 U.S. 114 , this Court upheld a West Virginia statute requiring that physicians obtain a license in order to practice. Appellant argued, inter alia, that the statute was a bill of attainder because the granting of a license was conditioned upon graduating from medical school, practicing for 10 years, or passing a special examination. The Court rejected the argument on the ground that the statute set forth general qualifications applicable to all persons who wanted to practice medicine, id., at 124, and did not single out a specific person or group for deprivation. See also Drehman v. Stifle, 8 Wall. 595.
[ Footnote 22 ] Section 304 provided:
[ Footnote 23 ] Although it may be that underinclusiveness is a characteristic of most bills of attainder, we doubt that it is a necessary feature. We think it clear from the Lovett opinion that 304 would have been voided even if it could have been demonstrated that no one other than Lovett, Watson and Dodd possessed the characteristics which Congress was trying to reach. The vice of attainder is that the legislature has decided for itself that certain persons possess certain characteristics and are therefore deserving of sanction, not that it has failed to sanction others similarly situated.
[ Footnote 24 ] We of course take no position on whether or not members of the Communist Party are in fact likely to incite political strikes. The point we make is rather that the Constitution forbids Congress from making such determinations.
[ Footnote 25 ] See 367 U.S., at 146 (BLACK, J., dissenting).
[ Footnote 26 ] "It need hardly be said that it is upon the particular evidence in a particular record that a particular defendant must be judged, and not upon the evidence in some other record or upon what may be supposed to be the tenets of the Communist Party." Noto v. United States, 367 U.S. 290, 299 .
It is argued that 504 is not a bill of attainder because prior to its enactment there had been an administrative adjudication (by the Subversive Activities Control Board) of "the nature of the Party." Compare Hawker v. New York, 170 U.S. 189 ; DeVeau v. Braisted, 363 U.S. 144, 160 . Even leaving aside the fact that the legislative history of 504, see note 2, supra, indicates that Congress was acting in reliance on the findings it had made in 1947 rather than on those made by the Board in 1953, we think that this argument misses the point of the Court's opinion in the Communist Party case, where the Court stressed that the Subversive Activities Control Act did not name the Communist Party but rather set forth a broad definition, which would permit the Party to escape the prescribed deprivations in the event its character changed.
[ Footnote 27 ] 48 Stat. 194, as amended, 49 Stat. 709, 12 U.S.C. 78 (1964 ed.).
[ Footnote 28 ] A similar example is furnished by provisions forbidding state officers or employees from concurrently holding certain other types of positions, such as positions with the Federal Government. See, e. g., Cal. Const., Art. IV, 20; cf. N. Y. Const., Art. III, 7; U.S. Const., Art I, 6, cl. 2.
[ Footnote 29 ] The command of the Bill of Attainder Clause - that a legislature can provide that persons possessing certain characteristics must abstain from certain activities, but must leave to other tribunals the task of deciding who possesses those characteristics - does not mean that a legislature cannot use a shorthand phrase to summarize the characteristics with which it is concerned. For example, a legislature might determine that persons afflicted with a certain disease which has as one of its symptoms a susceptibility to uncontrollable seizures should not be licensed to operate dangerous machinery. In enacting a statute to achieve this goal, the legislature could name the disease instead of listing the symptoms, for in doing so it would merely be substituting a shorthand phrase which conveys the same meaning.
[ Footnote 30 ] To the same effect, see Noto v. United States, 367 U.S. 290, 299 -300; Wieman v. Updegraff, 344 U.S. 183, 190 .
[ Footnote 31 ] We rely on the "overbroadness" cases only to buttress our conclusion that 504 cannot be rationalized on the ground that membership in the Communist Party is merely an equivalent, shorthand way of expressing those characteristics which render likely the incitement of political strikes. We of course do not hold that overbroadness is a necessary characteristic of a bill of attainder.
[ Footnote 32 ] The Court's opinion in Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 88 , also referred to the fact that the members of the class affected by the statute could extricate themselves from the class at will. However, whereas the factor of escapability was considered in Douds to be probative of whether or not the statute was punitive, in the Communist Party case it was considered only as one factor tending to show that the Act in question was not directed at a specific group of persons but rather set forth a generally applicable definition. See note 26, supra. We do not read either opinion to have set up inescapability as an absolute prerequisite to a finding of attainder. Such an absolute rule would have flown in the face of explicit precedent, Cummings v. Missouri, 4 Wall. 277, 324, as well as the historical background of the constitutional prohibition. A number of ante-Constitution bills of attainder inflicted their deprivations upon named or described persons or groups, but offered them the option of avoiding the deprivations, e. g., by swearing allegiance to the existing government. See, e. g., Del. Laws 1778, c. 29b; Mass. Acts of September 1778, c. 13; III Hamilton, History of the Republic of the United States, p. 25 (1859); see generally Note, 72 Yale L. J. 330, 339-340.
[ Footnote 33 ] American Communications Assn. v. Douds, 339 U.S. 382, 389 ; see note 2, supra.
[ Footnote 34 ] See Ex parte Law, 15 Fed. Cas. 3, 9-10 (No. 8126) (D.C. S. D. Ga. 1866). Professor Chafee has pointed out that even the death penalty was often inflicted largely for preventive purposes:
[ Footnote 35 ] III Hamilton, History of the Republic of the United States, p. 25 (1859); see, e. g., Mass. Acts of September 1778, c. 13 ("An Act to Prevent the Return of Tories"); cf. Md. Laws February 1777, c. 20 ("An Act to punish certain crimes and misdemeanors, and to prevent the growth of toryism"); see also II Story, Commentaries on the Constitution of the United States, p. 211, n. 1 (4th ed. 1873); authorities cited note 15, supra.
[ Footnote 36 ] Nor do the deprivations imposed by the two statutes differ in any meaningful way. Section 304 cut off the salary of the specified individuals, thereby effectively barring them from government service, [381 U.S. 437, 461] 328 U.S., at 316 ; 504 provides that specified persons cannot serve as officers of, or engage in most kinds of employment with, labor unions. Compare Del. Laws 1778, c. 29b; Cummings v. Missouri, 4 Wall. 277, 317, 320; Ex parte Garland, 4 Wall. 333, 374.
[ Footnote 37 ] E. g., 12 Car. 2, c. 30; 19 Geo. 2, c. 26; 11 Geo. 3, c. 55.
[ Footnote 38 ] Note 13, supra.
[ Footnote 39 ] See also Ex parte Law, 15 Fed. Cas. 3, 8 (No. 8126) (D.C. S. D. Ga. 1866); United States v. Lovett, 328 U.S. 303, 327 (Frankfurter, J., concurring).
[ Footnote 40 ] The Federalist, No. 78, pp. 576-577 (Hamilton ed. 1880).
MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART join, dissenting.
At this point the Court implies that legislation is sufficiently general if it specifies a characteristic that makes it likely that individuals falling within the group designated will engage in conduct Congress may prohibit. But the Court then goes on to reject the argument that Communist Party membership is in itself a characteristic raising such a likelihood. The Court declares that "[e]ven assuming that Congress had reason to conclude that some Communists would use union positions to bring about [381 U.S. 437, 464] political strikes, `. . . it cannot automatically be inferred that all members shar[e] their evil purposes or participat[e] in their illegal conduct.'" Ante, at 456. (Emphasis added.) This sudden shift in analysis - from likelihood to certainty - must mean that the Bill of Attainder Clause proscribes legislative action with respect to any group smaller than the total class possessing the characteristic upon which legislative power is premised whenever the legislation is based only on a finding about the average characteristics of the subgroup. The legislature may focus on a particular group or class only when the group designation is a "shorthand phrase" for the feared characteristic - i. e., when it is common knowledge that all, not just some, members of the group possess the feared characteristic and thus such legislative designation would require no legislative fact-finding about individuals. 1
In the Court's view, therefore, 504 is too narrow in specifying the particular class; but it is also too broad in treating all members of the class alike. On both counts - underinclusiveness and overinclusiveness - 504 is invalid as a bill of attainder because Congress has engaged in forbidden fact-finding about individuals and groups and has thus strayed into the area reserved to the judiciary by the Constitution.
It is not difficult to find some of the cases and statutes which the necessary implications of the Court's approach will overrule or invalidate.
American Communications Assn. v. Douds, 339 U.S. 382 , which upheld the predecessor statute to 504 is obviously [381 U.S. 437, 465] overruled. In that case the Court accepted the congressional findings about the Communist Party and about the propensity of Party members "to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support of the policies of a foreign government." 339 U.S., at 388 . Moreover, Congress was permitted to infer from a person's "political affiliations and beliefs" that such a person would be likely to instigate political strikes. 339 U.S., at 391 -392. Like 504, the statute there under consideration did not cover all persons who might be likely to call political strikes. Nevertheless, legislative findings that some Communists would engage in illegal activities were sufficient to sustain the exercise of legislative power. The Bill of Attainder Clause now forbids Congress to do precisely what was validated in Douds.
Similarly invalidated are statutes denying positions of public importance to groups of persons identified by their business affiliations, commonly known as conflict-of-interest statutes. In the Douds case the Court found in such statutes support for its conclusion that Congress could rationally draw inferences about probable conduct on the basis of political affiliations and beliefs, which it considered comparable to business affiliations. The majority in the case now before us likewise recognizes the pertinency of such statutes and, in its discussion of Board of Governors v. Agnew, 329 U.S. 441 , strenuously - and unsuccessfully - attempts to distinguish them.
The statute involved in Agnew, 32 of the Banking Act of 1933, 48 Stat. 194, as amended, 12 U.S.C. 78 (1964 ed.), forbade any partner or employee of a firm primarily engaged in underwriting securities from being a director of a national bank. The Court expressly recognized that the statute was directed to the "probability or likelihood" that a bank director who was also a partner or employee of an underwriting firm "may use his influence in the bank [381 U.S. 437, 466] to involve it or its customers in securities which his underwriting house has in its portfolio or has committed itself to take." 329 U.S., at 447 . (Emphasis added.) And, as we noted in Douds, 339 U.S., at 392 , "[t]here was no showing, nor was one required, that all employees of underwriting firms would engage in such conduct." See also Agnew, 329 U.S., at 449 .
In terms of the Court's analysis of the Bill of Attainder Clause, no meaningful distinction may be drawn between 32 of the Banking Act and 504. Both sections disqualify a specifically described group, officers and employees of underwriting firms in the one case and members of the Communist Party in the other. Both sections may be said to be underinclusive: others besides underwriters may have business interests conflicting with the duties of a bank director and others than Communists may call political strikes. Equally, both sections may be deemed overinclusive: neither section finds that all members of the group affected would violate their obligations to the office from which they are disqualified; some members would and perhaps others would not. Both sections are based on a probability or likelihood that this would occur. Both sections leave to the courts the task of determining whether particular persons are members of the designated groups and occupy the specified positions.
In attempting to distinguish the two sections, the Court states that in enacting 32 of the Banking Act Congress made no judgment or condemnation of any specific group of persons. Instead, the Court reasons, "Congress relied upon its general knowledge of human psychology, and concluded that the concurrent holding of the two designated positions would present a temptation to any man - not just certain men or members of a certain political party." Ante, at 454. But 32 disqualifies only partners and employees of underwriting firms, not other [381 U.S. 437, 467] businessmen with conflicting interests. And 504 applies to any man who occupies the two positions of labor union leader and member of the Communist Party. If based upon "its general knowledge of human psychology" Congress may make findings about a group including members and employees of underwriting firms which disqualify such persons from a certain office, why may not Congress on a similar basis make such a finding about members of the Communist Party? "Because of their business connections, carrying as they do certain loyalties, interests and disciplines," 32 disqualifies members and employees of underwriting firms as posing "a continuing threat of participation in the harmful activities . . . ." Douds, 339 U.S., at 392 . The same might be said about 504, as was said about its predecessor: "Political affiliations of the kind here involved, no less than business affiliations, provide rational ground for the legislative judgment that those persons proscribed by 9 (h) would be subject to `tempting opportunities' to commit acts deemed harmful to the national economy. In this respect, 9 (h) is not unlike a host of other statutes which prohibit specified groups of persons from holding positions of power and public interest because, in the legislative judgment, they threaten to abuse the trust that is a necessary concomitant of the power of office." Id., at 392.
Conflict-of-interest statutes are an accepted type of legislation. 2 Indeed, our Constitution contains a conflict-of-interest [381 U.S. 437, 468] provision in Art. I, 6, cl. 2, which prohibits any Congressman from simultaneously holding office under the United States. If the Court would save the conflict-of-interest statutes, which apparently it would, it is difficult to understand why 504 is stricken down as a bill of attainder.
Other legislative enactments relevant here are those statutes disqualifying felons from occupying certain positions. The leading case is Hawker v. New York, 170 U.S. 189 , which upheld a provision prohibiting convicted felons from practicing medicine against a claim that, as applied to one convicted before its enactment, it was an ex post facto law. The Court noted that a legislature may establish qualifications for the practice of medicine, and character may be such a qualification. Conviction of a felony, the Court reasoned, may be evidence of character:
Like 504, the legislation challenged in Hawker was both overinclusive and underinclusive. Felons were not the only persons who might possess character defects making them unsuitable practitioners of medicine; and, as the Court expressly noted, not all felons would lack good moral character. Nevertheless, the legislature was permitted to disqualify all members of the class, rather than being required to delegate to the courts the responsibility of determining the character of each individual based on all relevant facts, including the prior conviction. The legislative findings that sustained the legislation attacked in Hawker were simply that a substantial number of felons would be likely to abuse the practice of medicine because of their bad character. It is just such findings respecting the average propensities of a given class of persons to engage in particular conduct that the Court will not now permit under the Bill of Attainder Clause. Though the Court makes no attempt to distinguish the Hawker-type laws it apparently would save them, see Trop v. Dulles, 356 U.S. 86, 96 -97 (WARREN, C. J., announcing judgment), and with them the provision of the statute now before the Court which disqualifies felons from holding union office. 3 [381 U.S. 437, 470]
The Court apparently agrees that the Subversive Activities Control Act was not a bill of attainder with regard to the Communist Party because, as the Court pointed out in Communist Party v. Subversive Activities Control Board, 367 U.S. 1 , the finding that the Party was a Communist-action organization was not made by the legislature but was made administratively, after a trial-type hearing and subject to judicial review. But this apparently does not settle whether the statute is a bill of attainder with respect to Party members; for under today's approach, a finding about the Party and about some of its members does not cure the vice of overinclusiveness. The Subversive Activities Control Act attaches certain disqualifications to each Party member following the administrative-judicial finding that the Party is a Communist-action organization. Among other things, each Party member is disqualified from holding union office, almost the same disqualification as is involved here. Subversive Activities Control Act of 1950, 5 (a) (1) (E), added by the Act of Aug. 24, 1954, 6, 68 Stat. 777, 50 U.S.C. 784 (a) (1) (E) (1958 ed.). I do not see how this and the other consequences attached to Party membership in that Act could survive examination under the principles announced today.
On the other hand, if the statutes involved in Hawker and Agnew are not bills of attainder, how can the Subversive Activities Control Act be an attainder with respect to members of the Communist Party? In the Communist Party case, the Board found that the "[Party's] principal leaders and a substantial number of its members are subject to and recognize the disciplinary power of the Soviet Union and its representatives. This evidences domination and control over [the Party] by the Soviet Union, and a purpose to advance the objectives of the world Communist movement." Modified Report of the Board, December 18, 1956, in Record in that case, [381 U.S. 437, 471] p. 2538. That finding was expressly sustained by this Court. 367 U.S. 1, 57 . Certainly, if Hawker and Agnew are to be followed at all, these nonlegislative findings establish a sufficient probability or likelihood with regard to Party members - a sufficient temptation to Party members who are also union officers - to permit the legislature to disqualify Party members from union office as it did in the Subversive Activities Control Act.
And if the disqualification of Party members in the Subversive Activities Control Act is not a bill of attainder, neither is 504. If it is 504's specific designation of the Communist Party and its members which concerns the Court - if the Court would have the same concern if the statute in Agnew had disqualified the members of a particular underwriting firm - it seems to me that at this point this vice is no vice at all; for the Congress has provided in another statute, the Subversive Activities Control Act, for an adjudication about Communist-action organizations, the nature of the Party has now been adjudicated and an adequate probability about the future conduct of its members established to justify the disqualification which Congress has imposed. Compare Schware v. Board of Bar Examiners, 353 U.S. 232, 244 (absent findings respecting nature of Communist Party at time of bar applicant's membership, membership in Party 15 years prior to application provides no rational ground for disqualification).
This, of course, is not the path the Court follows. Section 504 is said to impose punishment on specific individuals because it has disqualified all Communist Party members without providing for a judicial determination as to each member that he will call a political strike. A likelihood of doing so based on membership is not enough. By the same token, a statute disqualifying Communists (or authorizing the Executive Branch to do so) from holding sensitive positions in the Government would be automatically [381 U.S. 437, 472] infirm, as would a requirement that employees of the Central Intelligence Agency or the National Security Agency disclaim membership in the Communist Party, unless in each case it is proved by evidence other than membership in the Communist Party, the nature of which has already been adjudicated, that the individual would commit acts of disloyalty or subordinate his official undertakings to the interests of the Party.
But how does one prove that a person would be disloyal? The Communist Party's illegal purpose and its domination by a foreign power have already been adjudicated, both administratively and judicially. If this does not in itself provide a sufficient probability with respect to the individual who persists in remaining a member of the Party, or if a probability is in any event insufficient, what evidence with regard to the individual will be sufficient to disqualify him? If he must be apprehended in the act of calling one political strike or in one act of disloyalty before steps can be taken to exclude him from office, there is little or nothing left of the preventive or prophylactic function of 504 or of the statutes such as the Court had before it in Hawker and Agnew.
Examples of statutes that will now be suspect because of the Court's opinion but were, until today, unanimously accepted as legitimate exercise of legislative power could easily be multiplied. Such a catalogue in itself would lead one to inquire whether the Court's reasoning does not contain some flaw that explains such perverse results.
One might well begin by challenging the Court's premise that the Bill of Attainder Clause was intended to provide a general dividing line between legislative and judicial functions and thereby to operate as the chief means of implementing the separation of powers. While it must be conceded that our system of government is [381 U.S. 437, 473] based on the separation of powers and that the prohibition on bills of attainder is a judicially enforceable restraint on legislative power and therefore constitutes one among the many mechanisms implementing the separation of powers, that conclusion is the most that can be gleaned from the authorities cited by the Court. Some, like the statement quoted from Chief Justice Marshall, Fletcher v. Peck, 6 Cranch 87, 136, reflect views concerning "whether the nature of society and of government does not prescribe some limits to the legislative power," id., at 135, rather than an analysis of the bill-of-attainder provision. None assigns a pre-eminent position to that provision as compared with other restraints on the legislature.
On the other hand, there are substantial reasons for concluding that the Bill of Attainder Clause may not be regarded as enshrining any general rule distinguishing between the legislative and judicial functions. Congress may pass legislation affecting specific persons in the form of private bills. It may also punish persons who commit contempt before it. So too, one may note that if Art. I, 9, cl. 3, immortalizes some notion of the separation of powers at the federal level, then Art. I, 10, necessarily does the same for the States. But it has long been recognized by this Court that "[w]hether 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." Dreyer v. Illinois, 187 U.S. 71, 84 ; accord, e. g., Reetz v. Michigan, 188 U.S. 505, 507 ; Carfer v. Caldwell, 200 U.S. 293, 297 ; Sweezy v. New Hampshire, 354 U.S. 234, 255 (WARREN, C. J., announcing judgment), 256-257 (Frankfurter, J., concurring), 268 (CLARK, J., dissenting). [381 U.S. 437, 474]
The basic flaw in the Court's reasoning, however, is its too narrow view of the legislative process. The Court is concerned to separate the legislative and judicial functions by ensuring that the legislature does not infringe the judicial function of applying general rules to specific circumstances. Congress is held to have violated the Bill of Attainder Clause here because, on the one hand, 504 does not encompass the whole class of persons having characteristics that would make them likely to call political strikes and, on the other hand, 504 does single out a particular group, members of the Communist Party, not all of whom possess such characteristics. Because of this combination of underinclusiveness and overinclusiveness the Court concludes that Communist Party members were singled out for punishment, thus rejecting the Government's contention that 504 has solely a regulatory aim.
The Court's conclusion that a statute which is both underinclusive and overinclusive must be deemed to have been adopted with a punitive purpose assumes that legislatures normally deal with broad categories and attack all of an evil at a time. Or if partial measures are undertaken, a legislature singles out a particular group for regulation only because the group label is a "shorthand phrase" for traits that are characteristic of the broader evil. But this Court has long recognized in equal protection cases that a legislature may prefer to deal with only part of an evil. See, e. g., Railway Express Agency, Inc. v. New York, 336 U.S. 106 ; Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608 ; Bryant v. Zimmerman, 278 U.S. 63 ; Patsone v. Pennsylvania, 232 U.S. 138 . And it is equally true that a group may be singled out for regulation without any punitive purpose even when not all members of the group would be likely to engage in the feared conduct. "[I]f the class discriminated [381 U.S. 437, 475] against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out." Patsone v. Pennsylvania, 232 U.S., at 144 . (Emphasis added.) That is, the focus of legislative attention may be the substantially greater likelihood that some members of the group would engage in the feared conduct compared to the likelihood that members of other groups would do so. This is true because legislators seldom deal with abstractions but with concrete situations and the regulation of specific abuses. Thus many regulatory measures are enacted after investigation into particular incidents or the practices of particular groups and after findings by the legislature that the practices disclosed are inimical to the public interest and should be prevented in the future. Not surprisingly, the resulting legislation may reflect in its specificity the specificity of the preceding legislative inquiry. See United States v. Boston & M. R. Co., 380 U.S. 157, 161 -162. But the fact that it does should not be taken, in itself, to be conclusive that the legislature's purpose is punitive. Admittedly the degree of specificity is a relevant factor - as when individuals are singled out by name - but because in many instances specificity of the degree here held impermissible may be wholly consistent with a regulatory, rather than a punitive purpose, the Court's per se approach cuts too broadly and invalidates legitimate legislative activity.
Putting aside the Court's per se approach based on the nature of the classification specified by the legislation, we must still test 504 against the traditional definition of the bill of attainder as legislative punishment of particular individuals. In my view, 504 does not impose punishment and is not a bill of attainder. [381 U.S. 437, 476]
We have said that "only the clearest proof could suffice" to establish that Congress' purpose was punitive rather than regulatory. Flemming v. Nestor, 363 U.S. 603, 617 . A punitive purpose has been found when it could be said that a statute passed amid the fierce passions aroused by the Civil War bore no rational connection to any permissible legislative purpose. Cummings v. Missouri, 4 Wall. 277, 319, 322; see Dent v. West Virginia, 129 U.S. 114, 128 ; Hawker v. New York, 170 U.S. 189, 198 . The imposition of a particularly harsh deprivation without any discernible legitimate legislative purpose has similarly been characterized as penal. Trop v. Dulles, 356 U.S. 86 (WARREN, C. J., announcing judgment). Similarly a punitive purpose has been found when such a purpose clearly appeared in the legislative history. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 ; United States v. Lovett, 328 U.S. 303, 308 -314. In other cases the analysis is more difficult. We summarized the relevant considerations in Kennedy v. Mendoza-Martinez, supra:
Congress' concern with the possibility of political strikes is not simply a fictional concern advanced to mask a punitive [381 U.S. 437, 477] purpose. Congress has sought to forestall political strikes since 1947, when it adopted 9 (h) of the National Labor Relations Act, which was sustained as a reasonable regulation in American Communications Assn. v. Douds, 339 U.S. 382 . Section 504 was adopted as a fairer and more effective method of dealing with the same evil. H. R. Rep. No. 741, 86th Cong., 1st Sess. (1959), p. 33; 1 Leg. Hist. LMRDA 791. Section 9 (h) had proved ineffective because many Communists would take the prescribed oath, which meant the only sanction available was a perjury prosecution that presented serious difficulties of proof. See Hearings before the House Committee on Un-American Activities, Communist Infiltration of Vital Industries and Current Communist Techniques in the Chicago, Illinois, Area, 86th Cong., 1st Sess. (1959), pp. 519, 576; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare, Communist Domination of Unions and National Security, 82d Cong., 2d Sess. (1952), p. 54. Moreover, the oath requirement created inequities both because the disqualification imposed was visited on the whole union membership and because the taking of an oath was exacted of all union leaders, many of whom resented the requirement. See American Communications Assn. v. Douds, 339 U.S., at 434 -435 (Jackson, J., concurring and dissenting); S. Rep. No. 187, 86th Cong., 1st Sess. (1959), pp. 7, 9; 1 Leg. Hist. LMRDA 403, 405. It was obviously reasonable for Congress to substitute 504 for 9 (h), and no punitive purpose may be inferred from such congressional action.
Nor can it be denied that 504 is reasonably related to a permissible legislative objective. In American Communications Assn. v. Douds, we held that "Congress could rationally find that the Communist Party is not like other political parties in its utilization of positions of union leadership as means by which to bring about strikes . . .," 339 U.S., at 391 , and therefore Congress could rationally [381 U.S. 437, 478] infer that members of the Communist Party were likely to call political strikes. See also Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 93 -94, 112. In 1956 the Subversive Activities Control Board found, after a trial-type hearing, that the Party's principal leaders and a substantial number of its members recognize the disciplinary power of the Soviet Union. Without question the findings previously made by Congress and the Subversive Activities Control Board afforded a rational basis in 1959 for Congress to conclude that Communists were likely to call political strikes, and sufficiently more likely than others to do so that special measures could appropriately be enacted to deal with the particular threat posed.
In view of Congress' demonstrated concern in preventing future conduct - political strikes - and the reasonableness of the means adopted to that end, I cannot conclude that 504 had a punitive purpose or that it constitutes a bill of attainder. I intimate no opinion on the issues that the Court does not reach.
[ Footnote 1 ] An overbroadness challenge could also be made under the First Amendment on the ground that in 504 Congress has too broadly and indiscriminately visited disabilities on a class defined in terms of associational ties. See Aptheker v. Secretary of State, 378 U.S. 500 . But the Court expressly disavows decision of First Amendment claims, and I likewise put such questions aside.
[ Footnote 2 ] See, e. g., 10 of the Clayton Act, 38 Stat. 734, 15 U.S.C. 20 (1964 ed.) (requiring competitive bidding for certain transactions between a common carrier and other corporations when there are common directors), United States v. Boston & M. R. Co., 380 U.S. 157 ; 16 (b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U.S.C. 78p (b) (1964 ed.) (providing that profits made by directors, officers, and principal shareholders through short-swing transactions in corporation stock shall inure to benefit of corporation), [381 U.S. 437, 468] Blau v. Lehman, 368 U.S. 403, 411 -413; 310 (b) of the Trust Indenture Act of 1939, 53 Stat. 1157 (making certain conflicting interests grounds for disqualification of indenture trustees).
[ Footnote 3 ] For a partial listing of similar statutes, see De Veau v. Braisted, 363 U.S. 144, 159 (Frankfurter, J., announcing judgment). De Veau v. Braisted itself sustained against a bill of attainder challenge, without dissent on this issue, a state statute disqualifying felons from holding office in waterfront labor unions. [381 U.S. 437, 479]