Sweezy v. New Hampshire/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice BURTON joins, dissenting.

The Court today has denied the State of New Hampshire the right to investigate the extent of 'subversive activities' within its boundaries in the manner chosen by its legislature. Unfortunately there is no opinion for the Court, for those who reverse are divided and they do so on entirely different grounds. Four of my Brothers join in what I shall call the principal opinion. They hold that the appointment of the Attorney General to act as a committee for the legislature results in a separation of its power to investigate from its 'responsibility to direct the use of that power' and thereby 'causes a deprivation of the constitutional rights of individuals and a denial of due process * *  * .' This theory was not raised by the parties and is, indeed, a novel one.

My Brothers FRANKFURTER and HARLAN do not agree with this opinion because they conclude, as do I, that the internal affairs of the New Hampshire State Government are of no concern to us. See Dreyer v. People of State of Illinois, 1902, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79. They do join in the reversal, however, on the ground that Sweezy's rights under theFirst Amendment have been violated. I agree with neither opinion.

The principal opinion finds that 'The Attorney General has been given such a sweeping and uncertain mandate that it is his decision which picks out the subjects that will be pursued, what witnesses will be summoned and what questions will be asked.' The New Hampshire Act clearly indicates that it was the legislature that determined the general subject matter of the investigation, subversive activities; the legislature's committee, the Attorney General, properly decided what witnesses should be called and what questions should be asked. My Brothrs surely would not have the legislature as a whole make these decisions. But they conclude, nevertheless, that it cannot be said that the legislature 'asked the Attorney General to gather the kind of facts comprised in the subjects upon which petitioner was interrogated.' It follows, says this opinion, that there is no 'assurance that the questions petitioner refused to answer fall into a category of matters upon which the legislature wanted to be informed * *  * .' But New Hampshire's Supreme Court has construed the state statute. It has declared the purpose to be to investigate 'subversive' activities within the State; it has approved the use of the 'one-man' technique; it has said the questions were all relevant to the legislative purpose. In effect the state court says the Attorney General was 'directed' to inquire as he did. Furthermore, the legislature renewed the Act in the same language twice in the year following Sweezy's interrogation. N.H.Laws 1955, c. 197. In ratifying the Attorney General's action it used these words: 'The investigation * *  * provided for by chapter 307 of the Laws of 1953, as continued by a resolution approved January 13, 1955, is hereby continued in full force and effect, in form, manner and authority as therein provided *  *  * .' (Emphasis added.) We are bound by the state court findings. We have no right to strike down the state action unless we find not only that there has been a deprivation of Sweezy's constitutional rights, but that the interest in protecting those rights is greater than the State's interest in uncovering subversive activities within its confines. The majority has made no such findings.

The short of it is that the Court blocks New Hampshire's effort to enforce its law. I had thought that in Common-wealth of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, we had left open for legitimate state control any subversive activity leveled against the interest of the State. I for one intended to suspend state action only in the field of subversion against the Nation and thus avoid a race to the court-house door between federal and state prosecutors. Cases concerning subversive activities against the National Government have such interstate ramifications that individual state action might effectively destroy a prosecution on the national level. I thought we had left open a wide field for state action, but implicit in the opinions today is a contrary conclusion. They destroy the fact-finding power of the State in this field and I dissent from this wide sweep of their coverage.

The principal opinion discusses, by way of dictum, due process under the Fourteenth Amendment. Since the basis of the opinion is not placed on this ground, I would not think it necessary to raise it here. However, my Brothers say that the definition of 'subversive person' lacks 'a necessary element of guilty knowledge * *  * .' Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, is heavily depended upon as authority for the view expressed. I do not so regard it. I authored that opinion. It was a loyalty oath case in which Oklahoma had declared ipso facto disqualified any employee of the State who failed to take a prescribed oath that, inter alia, he belonged to no subversive organizations. We struck down the Act for lack of a requirement of scienter. We said there that 'constitutional protection * *  * extend(s) to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.' Id., 344 U.S. at page 192, 73 S.Ct. at page 219. But Sweezy is not charged as a 'subversive person' and the Committee has made no finding that he is. In fact, had he been found to be such a person, there is no sanction under the Act. New Hampshire is invoking no statute like Oklahoma's. Its Act excludes no one from anything. Updegraff stands for no such broad abstraction as the principal opinion suggests.

Since the conclusion of a majority of those reversing is not predicated on the First Amendment questions presented, I see no necessity for discussing them. But since the principal opinion devotes itself largely to these issues I believe it fair to ask why they have been given such an elaborate treatment when the case is decided on an entirely different ground. It is of no avail to quarrel with a straw man. My view on First Amendment problems in this type of case is expressed in my dissent in Watkins, decided today. Since a majority of the Court has not passed on these problems here, and since I am not convinced that the State's interest in investigating subversive activities for the protection of its citizens is outweighed by any necessity for the protection of Sweezy I would affirm the judgment of the New Hampshire Supreme Court.