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“GUILT BY ASSOCIATION” AND THE POSTWAR CIVIL LIBERTARIANS
Published online by Cambridge University Press: 02 June 2008
Abstract
In recent years, the constitutional freedom of association has assumed a relatively low profile. Today, the most extended discussions of the right consider it as a second-order countervailing claim in civil rights cases involving questions of identity and the right to exclude. This article provides a brief overview of the right at a time when it was one of the most widely discussed, first-order constitutional rights, and when those discussions centered not on the right to exclude but on the question of “guilt by association.” The article provides a sampling of the way that right was considered in the immediate post-World War Two years in the writings of some of the era's most prominent civil libertarian thinkers – Leo Pfeffer, Milton Konvitz, Robert Cushman, Henry Steele Commager, Zechariah Chafee, Jr., and Sidney Hook. These writings demonstrate that doctrinal development concerning the right was driven by its implication in two of the major political issues of the day: domestic security at the height of the Cold War and civil rights. The article concludes by arguing that, in the aftermath of the September 11 attacks and the ongoing fight against terrorism, free association questions are likely to assume renewed prominence. It argues further that, in a contemporary context, those thinking about the most pressing freedom of association questions would profit by looking less to the more recent discussions of the right as a matter of the right to exclude, and more to the highly-relevant discussions of “guilt by association” by the currently less well known mid-century civil libertarians.
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- Copyright © Social Philosophy and Policy Foundation 2008
References
1 Hook, Sidney, Heresy, Yes; Conspiracy, No (New York: John Day & Co., 1953), 83Google Scholar.
2 Ibid., 85.
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7 See Griswold v. Connecticut, 381 U.S. 479 (1965)Google Scholar; Roe v. Wade, 410 U.S. 113 (1973)Google Scholar; Allgeyer v. Louisiana, 165 U.S. 578 (1897)Google Scholar; and Lochner v. New York, 198 U.S. 45 (1905)Google Scholar. The freedom of association was the most prominent unenumerated right of its time. It is notable that, although the Supreme Court's rulings based on it were criticized, so far as I can tell, associational freedom was not attacked with any special vehemence on the specific ground that it was unenumerated. See generally Kersch, Ken I., “The Right to Privacy,” in Bodenhamer, David and Ely, James W. Jr., eds., The Bill of Rights in Modern America, 2d ed. (Bloomington: Indiana University Press, 2008)Google Scholar. In its lead-up to declaring the new right to freedom of association, however, the Supreme Court considered the issue under the rubric of the (enumerated) right to assembly. See Adler v. Board of Education, 342 U.S. 485 (1952)Google Scholar; and Wieman v. Updegraff, 344 U.S. 183 (1952)Google Scholar, discussed in note 16 below.
8 See Tobias Barrington Wolff and Andrew Koppelman, “Expressive Association and the Ideal of the University in the Solomon Amendment Litigation,” elsewhere in this volume.
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11 Boy Scouts of America v. Dale, 530 U.S. 640 (2000)Google Scholar. In Dale, the Court recognized the Boy Scouts' claims to freedom of expressive association.
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25 Cushman, Civil Liberties in the United States, 185.
26 Here Cushman is emphasizing rule of law aspects of the freedom of association similar to those emphasized by James Madison. See Boyd, “The Madisonian Paradox of Freedom of Association.”
27 Cushman, Civil Liberties in the United States, 185–86.
28 Ibid., 186.
29 Ibid., 186–205.
30 Ibid., 65. See also Pfeffer, The Liberties of an American, 99: “In our own day persons who signed the Stockholm peace petition, or a petition for clemency for the Rosenbergs, or a Communist Party or even a Progressive Party nominating petition are very likely to have that fact count against them in applying for or seeking to retain government employment or employment in private industry working on defense contracts, or in resisting deportation, or in a variety of other situations where their loyalty is called into question. The fact that the American public does not uniformly believe that ‘there is no harm in asking’ and that exercise of the right of petition does not entail punitive consequences is indicated by the difficulties encountered not long ago by a reporter of a Midwestern newspaper who vainly sought to obtain signatures from street passers-by to a petition incorporating part of the Declaration of Independence.” The Stockholm Peace Petition, which called for a ban on atomic weapons, occasioned considerable controversy in 1950, as the petition was championed by the communist movement around the world. Julius and Ethel Rosenberg were New York City communists who were tried and executed for passing U.S. nuclear secrets to the Soviet Union. Although they were championed by the left at the time as the prototypical dissenters victimized by the excesses of McCarthyism, it was later confirmed by documents from the Soviet archives that Julius Rosenberg was indeed a Soviet spy. Note that both Cushman and Pfeffer consider guilt by association inappropriate in both criminal and noncriminal contexts.
31 Konvitz, Expanding Liberties, 48.
32 Ibid., 49–50.
33 Ibid., 59.
34 Ibid., 50.
35 Ibid. Konvitz is referring to Federalist No. 10, written by Madison.
36 Konvitz, Expanding Liberties, 51.
37 Ibid.
38 Ibid.
39 Ibid., 57.
40 Ibid., 84. On the Founders' ambivalence toward the freedom of association, see Boyd, “The Madisonian Paradox of Freedom of Association.” The degree to which the Founders' negative views toward faction and the spirit of party were coextensive with their views on other, potentially quite different and more benign forms of association remains an open question. Of course, even if they were positively disposed toward the more benign forms of associations—the equivalents of, say, 4-H clubs—they would likely have understood that these sorts of benign groups would be much less likely to need to invoke a constitutional freedom specifically enumerated in the constitutional text: it would likely be the self-seeking troublemakers who would appeal to such a freedom.
41 Konvitz, Expanding Liberties, 62. That it led the Court to the invention of a new constitutional right, which subsequently developed a life of its own, is yet another way in which Brown v. Board of Education, 347 U.S. 483 (1954)Google Scholar, had a major effect on the shape of the law, revealing one of the many limits of Gerald N. Rosenberg's popular account of Brown's limits. See Rosenberg, Gerald N., The Hollow Hope: Can the Courts Bring about Social Change? (Chicago: University of Chicago Press, 1991)Google Scholar.
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46 Ibid., 85, quoting N.A.A.C.P. v. Button, 371 U.S. 415 (1963)Google Scholar (invalidating, on free expression and free association grounds, Virginia's prosecution of NAACP litigators for improper solicitation of legal business).
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48 Ibid., 86.
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51 Ibid., 18.
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54 Hook, Heresy, Yes; Conspiracy, No, 11.
55 Ibid.
56 Ibid.
57 Ibid., 12. The Palmer Raids (1919–1921) were crackdowns on radical political groups, pursuant to the Espionage Act of 1917 and the Sedition Act of 1918, initiated by President Woodrow Wilson's attorney general, A. Mitchell Palmer, in the aftermath of a series of bomb attacks launched across the country by anarchists—including one on the home of Palmer himself.
58 Ibid., 20.
59 The Communist conspiracy, Hook insisted, would not warrant the approval of even Karl Marx himself; after all, Marx in the Communist Manifesto thundered: “The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions” (quoted in ibid., 26).
60 Ibid., 92.
61 “The members of the Communist Party are literally the fifth column of the Red Army, and the success and strategic position of that Army are certainly relevant in considering the danger, not merely of Communist advocacy, but of Communist organization in this country” (ibid., 111). The phrase “fifth column” is attributed to the Spanish Civil War's General Emilio Mola, who said that he had four columns encircling Madrid, and a fifth column working for him in the city. See The Wordsworth Dictionary of Phrase and Fable, ed. Brewer, Ebenezer Cobham, Evans, revised by Ivor H. (London: Wordsworth Editions, 1993), 409Google Scholar.
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67 Ibid., 24.
68 Ibid.
69 Ibid., 25.
70 Ibid.
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74 Ibid., 28 (emphasis in the original).
75 Ibid., 30.
76 Ibid., 74.
77 Ibid., 75. In 1938, President Franklin Roosevelt appointed the controversial Thurman Arnold, the author of the bestselling 1937 book The Folklore of Capitalism (which was highly critical of both antitrust enforcement and the capitalist economic system itself), to head the U.S. Justice Department's antitrust division. In his Senate confirmation hearings, Arnold faced a lengthy and heated encounter with the trust-busting Senator Borah, a populist Republican from Idaho, whose views on antitrust law had been singled out for criticism in Arnold's book.
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79 Ibid.
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88 McCarran-Walter was officially known as the Immigration and Nationality Act, 66 Stat. 163 (1952), as amended, 8 U.S.C. Sec. 1101 et seq. (1982 & Supp. II 1984). President Harry Truman had vetoed the law, claiming, “The basic error of this bill is that it moves in the direction of suppressing opinion and belief … [in a manner] that would make a mockery of the Bill of Rights and our claims to stand for freedom in the world.” His veto was overridden.
89 Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, P.L. 104-132 (April 24, 1996)Google Scholar.
90 The Intelligence Reform and Terrorism Prevention Act (2004) makes the secretary of state's designation of a group as a terrorist group permanent.
91 USA Patriot Act, P.L. 107-56 (October 26, 2001). See Cole, David and Dempsey, James X., Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (New York: New Press, 2002), 153Google Scholar.
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93 See ibid., 108.
94 See United States v. Rahmani, sub nom. United States v. Afshari, 426 F.3d 1150 (9th Cir. 2005).