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“Bill of Attainder” in the Seventy-Eighth Congress

Published online by Cambridge University Press:  02 September 2013

Frederick L. Schuman
Frederick L. Schuman
Affiliation:
Williams College
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Extract

Among the numerous recent clashes between the Chief Executive and Congress, only one poses fundamental constitutional issues. This conflict has arisen from the efforts of Congress to drive three well-known liberals out of the federal service. On September 14, President Roosevelt submitted a special message to Congress, as forecast in his press conference of July 13, recording his view that the action in question was “not only unwise and discriminatory, but unconstitutional” as an “unwarranted encroachment upon the authority of both the executive and the judicial branches,” and hence not binding upon them. The following commentary is offered by a participant observer in the hope that it may help to clarify the climate of Congressional opinion and explain in some degree why defense of the Constitution and subversion of the Constitution have become confused in the national legislature.

Anti-Comintern on Capitol Hill. On February 1, 1943, Martin Dies of Texas arose on the floor of the House on a question of personal privilege to defend himself against allegations by the National Lawyers' Guild and The New Republic that he was giving aid and comfort to the Axis Powers. In the course of his two-hour address (Cong. Record, 78th Cong., 1st Sess., Vol. 89, pp. 504–516), he assailed 39 named officials in various executive agencies as “irresponsible, unrepresentative, radical, and crackpot.”

Type
American Government and Politics
Information
American Political Science Review , Volume 37 , Issue 5 , October 1943 , pp. 819 - 829
Copyright
Copyright © American Political Science Association 1943

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References

1 All date and page references hereafter are to the volume indicated unless otherwise designated.

2 Said Cox of Georgia: “This is my resolution…. The Dies Committee has done a noble job. They have had magnificent support from the American Legion, the Veterans of Foreign Wars, and the Catholic Church.” All members of the Kerr Committee voted to reject the Pickens rider and all except Kerr voted to extend the Dies Committee. Up to the present time, the Dies Committee, originally established in 1938, has received total appropriations of $495,000. In 1941, Congress voted $100,000 and in 1942 $200,000 to the Department of Justice to investigate allegedly subversive federal employees, making a total of $795,000 thus far devoted to investigating “un-American activities,” not including regular appropriations to the F.B.I. and the Civil Service Commission. Cf. Robert E. Cushman, “Civil Liberties,” in this Review, Feb., 1943.

3 The rules adopted by the Committee on March 23 appear in the Congressional Record for June 2, p. A2963. The statement there made, and repeated on several other occasions by Kerr and Anderson, that the right of counsel was not denied rests upon the contention that “in no case has any accused person demanded counsel.”. This is true, since all the witnesses knew from the experience of the first witness called that the Committee was opposed to permitting counsel. They therefore refrained from making a request which would prejudice the Committee against them. At the outset of the session of April 2, Mr. Charles Denny, General Counsel of the F.C.C., who was present only as an observer (in which capacity he had been allowed to attend the Dies subcommittee hearing), was excluded on the ground that the Committee had already decided that no observers or attorneys for the accused would be permitted to attend. Cannon's argument (July 3, p. 7202) that the “fairness” of the hearings was demonstrated by the circumstance that “all three men told the Committee they had been treated with every consideration” is of the same order, since no witness, when asked this question, wished to risk conviction by giving a negative answer. Judge Kerr's contention (June 15, p. 6013) that “in every case the person invited to appear was advised of the charges which had been made on the floor of the House of Representatives by the gentleman from Texas” is misleading, since the questioning of witnesses before the Kerr Committee was based, not upon Dies' speech of February 1, but upon numbered charges confidentially submitted by the Dies Committee.

4 Cf. 78th Cong., 1st Sess., House Report No. 448, and Hearings … on the Fitness for Continuance in Federal Employment of … Watson, Dodd, and Lovett (U. S. Govt. Printing Office, Washington, D. C., 1943)Google Scholar. For a brief evaluation of the latter, see “The New Red Network,” The New Republic, Aug. 2, 1943.

5 James Lawrence Fly and Harold L. Ickes promptly and vigorously defended their subordinates. Certain other agency heads sought to discharge accused officials even before any hearings were held, or were asked by the Civil Service Commission to take such action. Thus Leonard Emil Mins, of the Office of Strategic Services, was summarily discharged, then reprieved, and finally put on indefinite leave without pay by General William J. Donovan and the Civil Service Commission. More recently (August 4), John Bovingdon, accused by Dies of being a rhythmic dancer with pro-Russian sympathies, was discharged by Leo T. Crowley from his post as economic analyst in the Office of Economic Warfare.

6 But see the cases of Col. John E. Hunt and Maj. Charles C. Cresson, H. R. 7877, 68th Cong., 1st Sess., Cong. Rec., pp. 10, 4744, 5031–36, 5041 f.; J. Ross Eakin, H. R. 4852, 76th Cong., 1st Sess., ibid., pp. 112, 4312 f., 4346 f.; deportation of Harry Bridges, H. R. 9766, 76th Cong., 3rd Sess., ibid., A4155, A4184, 8201 f., and Sen. Rep. 2031, 76th Cong., 1st Sess.; David Lasser, 77th Cong., 1st Sess., ibid., pp. A3186 f., 5227 f., 5263; Goodwin B. Watson (1942), ibid., Senate, May 6, 1942. Only in the case of David Lasser (again named by Dies as one of the subversive 39) did both houses vote a removal from the pay-roll. The House Appropriations Committee decided in 1942 that it had committed an injustice in this instance and moved to repeal its earlier action. Cf. Cong. Rec., pp. 6150, 9783.

7 Madison, James (1 Annals of Congress, 581)Google Scholar, quoted by Chief Justice Taft in Myers v. United States, 272 U.S. 52: “If there is any principle in our Constitution, indeed in any free Constitution, more sacred than another, it is that which separates the legislative, executive, and judicial powers. If there is any point in which the separation of the legislative and executive powers ought to be maintained with great caution, it is that which relates to officers and offices.”

8 There was considerable dispute in Congress as to exactly what Watson, Dodd, and Lovett had been found guilty of Representative Ludlow (July 3, p. 7205) asserted: “These three men have never been found guilty of subversive activities. What the House found them guilty of was anti-American indoctrination…. What Judge Kerr's able committee, in which we all have complete confidence, said to these men was: ‘We don't like your philosophy and we don't believe that men of your type of thinking should be in the public service of the United States.’ That was all. And to that the House agreed.”

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