THE YALE LAW JOURNAL VOLUME 58 DECE-MBER, 1948 Nu-.mnB 1 LOYALTY AMONG GOVERNMENT EMPLOYEES THOMAS I. EMERSON* DAVID M. HELFELD t I. BACKGROUNM MOUNTING tensions in our society have brought us to a critical point in the matter of political and civil rights. The stresses are in large measure internal. They grow out of the accelerating movement to effect far-reaching changes in our economic and social structure, a movement which evokes ever-increasing resistance. As the conflicts sharpen, there is rising pressure to discard or undermine the basic principles embodied in the democratic concept of freedom for political opposition. Maintenance of free institutions in a period of deepening crisis would be difficult enough if the struggle were confined to our shores. But the domestic problem is only an element of the world problem. Large areas of the world have abandoned the system of capitalism in favor of socialism. Other areas are far advanced in economic and social change. Everywhere there is struggle, uncertainty, fear and confusion. Pro- tagonists of the more militant economic and social philosophies are organized into political parties which have their offshoots and counter- parts in other countries, including our owm. As a result, the preserva- tion of political freedom, the right to hold and express opinions di- verging from the opinion of the majority, is often made to appear incompatible with the overriding requirements of "loyalty," "patri- otism," "national security" and the like. The danger of "foreign id- eologies," "infiltration," "subversion" and "espionage" are invoked to justify the suspension of traditional rights and freedoms. If we look to our basic traditions and attend the counsel of our wisest forbears, the path before us should be reasonably clear. Recognizing that no political organism can survive vithout evolution and change, we must face change with courage and imagination. The journey to- wards a new destination must be undertaken within the framework of the democratic process. We must seek to plot our course through rational and intelligent discussion. We must encourage the fullest * Professor of Law, Yale Law School. - Graduate Fellow, Yale Law School. The authors are indebted to Alexander D. Brooks, Yale Law School 1948, for valuable assistance in the preparation of this article. A second article on loyalty investigations, written by General William J. Donovan, will appear in a later issue of the Yale Law Journal. HeinOnline -- 58 Yale L. J. 1 1948-1949 THE YALE LAW JOURNAL [Vol, 58: 1 -participation of all elements in our society. We must be willing to ,compromise when the road ahead is obscure and to advance firmly 'when the road is clear. There are tragic signs that this is not our course, that we have lost the path. The opponents of change have resorted increasingly to the delusively simple expedient of cutting off political opposition or of hounding it out of existence through appeals to irrationalism and prejudice. For ten years now the House Committee on Un-American Activities has spearheaded a drive which, while largely failing in its announced objective of exposing the activities of "subversive groups," has undoubtedly succeeded in arousing fierce and emotional opposi- tion to progressive ideas and organizations. In the Alien Registra- tion Act of 1940 Congress enacted an anti-sedition law comparable in sweep with the Alien and Sedition Acts of 1798. In Section 304 of the Taft-Hartley Act Congress undertook to emasculate the political power of labor by prohibiting expenditures for political purposes by labor organizations. The dangerously increasing ascendancy of the military in our national life is not only a threat to representative government but reflects a serious weakening of democratic vitality. And recent proposed legislation, aimed ostensibly at the Communist Party, threatens the existence of all political organizations not adhering to orthodox views. These and other manifestations of the trend have aroused a number ,of open minded citizens to warn publicly against the rising threat to -democratic institutions.1 And certainly the danger is real. The sup- pression of political opposition is opposed to every tenet of democracy, It entails, among other things, the retention of outworn institutions, the elimination of every possibility of compromise and mutual adjust- ment, and the fomenting of class hatred, racial and religious prejudice, and allied social disorders. It must lead inevitably to an internal ex- plosion in the form of revolt or an external explosion in the form of war, The fear of "disloyalty" and "subversion" among the government bureaucracy is a modern aspect of the problem, brought to the fore by the greatly expanded function assumed by the executive in recent years. But the underlying issues are not new to America. Our history has been marked by a never ending struggle between the ideal of free- dom in political expression and the efforts of temporarily dominant groups, particularly in periods of crisis, to demand rigid political or- 1. See, e.g., To SECURE THESE RIGHTS, REPoRT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 13-95 (1947); CUSHMAN, NEW THREATS TO AMERICAN FREEDOMS (1948); AMERICAN CIVIL LIBERTIES UNION, OUR UNCERTAIN LIBERTIES (1948); Gellhorn, The Challenge to Civil Liberties, 15 CONGRESS WEExLY No. 15, p. 11 (April 10, 1948); Com- mnager, Who Is Loyal to America?, 195 HARPER'S 193 (Sept. 1947); Gillmor, Guilt By Gossip, 118 NEW REPUBLIC No. 22, p. 15 (May 31, 1948) ; letter from 22 members of the faculty of the Yale Law School to the President, the Secretary of State and the Speaker of the House of Representatives, N. Y. Herald-Tribune, Nov. 27, 1947, p. 1, col. 6. HeinOnline -- 58 Yale L. J. 2 1948-1949 1948] LOYALTY AMONG GOVERNMENT EMPLOYEES thodoxy. An invariable attribute of the struggle has been the stig- matization of the non-conformists as "disloyal." This is the typical behavior of standpatters, moved by fear and hostility toward the forces of change. Its malignance has been accentuated in the United States by the constant flow into a new and developing country of people and ideas from foreign lands. The founders of our government, successful in their revolution- against established governmental authority, embodied the principles of free political expression in the new Constitution. Two features of that document are noteworthy here. The provision on treason was designed to insure that the government's right to protection against treasonable acts would never be perverted, as it had been in England, to a weapon for the outlawing of political opposition. Secondly, the First Amend- ment constituted an express guarantee that the rights essential to the exercise of political freedom would be protected. Within a decade after adoption of the Constitution these principles were put to a severe test. The period was in many respects similar to our own. Relations between the United States and France were critical. When President Adams publicized the notorious X.Y.Z. papers, anti-French and anti-foreign hatred was aroused to a frenzied pitch. The pro-British Federalists, who despised French libertarianism, fanned the flames with wild stories of French invasion plans. Federalist teachers, preachers and judges aroused the people with clamor for war. The Federalists contended that the French government was spreading pro-French propaganda through paid agents and sowing revolutionary doctrine. This hysteria even seized some of the Republicans, normally pro-French and anti-monarchist. Thus divided, the Republicans were easy prey. Denouncing all opposition as "disloyalty," the Federal- 2 ists forced through Congress the Alien and Sedition Laws. The Alien Act was designed to harry the revolutionary Irish immi- grant as well as the French, both of whom were attracted to the lib- ertarian Jeffersonian Party. It provided for the imprisonment or expulsion of "enemy aliens" at the President's discretion. The Sedi- tion Act was even more severe. It provided fines and imprisonment for the publication of any "false, scandalous and malicious writing" against the Government, or which brought officers of the government "into contempt or disrepute," provisions which would effectively seal opposition lips, even including members of Congress. Even the hardbitten arch-Federalist Hamiliton was amazed at the ruthlessness of the measures. But his counsel of moderation was ignored and the Acts were vigorously enforced against indignant and alarmed Republicans. One major objective of the campaign was 2. Act of June 25, 1798, 1 STAT. 570; Act of July 14, 179S, 1 STAT. 590. For excellent histories of the period see generally Bowfins, JEFrEson M,;D H wr1-o,. (1923) ; Bowrms, JEFFERSON ir PowEa (1936) ; 1 BEAR, THE RISE OF A-m. mcv CvIz=ATxo (192). HeinOnline -- 58 Yale L. J. 3 1948-1949 THE YALE LAW JOURNAL [Vol. 58:1 to eliminate Republican office-holders. Thus the first prosecution under the Sedition Act was against a Republican member of Congress running for re-election. The constitutionality of the Sedition Act was sustained in the lower federal courts and by three Supreme Court justices sitting in circuit, but the issue of constitutionality never reached the Supreme Court. Jefferson and Madison, in the Kentucky and Virginia Resolutions of 1799, attacked the laws as unconstitutional. Regardless of their legality, the harsh enforcement of the Acts stunned the American people, and the legislation seems to have been a major reason for the 4 defeat of the Federalists in 1800. Upon the accession of the Republicans to power, the Alien and Sedition Acts were repealed and Jefferson pardoned the persons-all Republicans-convicted under them. In his inaugural address Jefferson boldly reaffirmed the ideal of political freedom: "If there be any among us who wish to dissolve this Union, or to change its republican form, let them stand undisturbed, as monu- ments of the safety with which error of opinion may be tolerated where reason is left free to combat it." 5 Thus the first experiment with "loyalty" as a weapon in political struggles came to a happy end.