# Dennis v. United States (384 U.S. 855)/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Black
United States Supreme Court
384 U.S. 855
Dennis v. United States (384 U.S. 855)
Argued: April 20, 1966. --- Decided: June 20, 1966
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring in part and dissenting in part.
This prosecution, now approaching its second decade and third trial, is a natural offspring of the McCarthy era. For reasons set out in Part III of the Court's opinion I agree that it was reversible error for the trial court to deny petitioners' motion to examine the Grand Jury minutes. While I disagree with the Court's holding that the indictment states facts sufficient to charge the offense of defrauding the United States in violation of 18 U.S.C. § 371, I shall devote my attention in this opinion to the Court's holding that petitioners are 'in no position to attack the constitutionality of § 9(h)' of the National Labor Relations Act, as amended by the Taft-Hartley Act, as a bill of attainder. I believe it is a flat denial of procedural due process of law for this Court to allow these petitioners to be tried for the third time without passing on the validity of § 9(h).
The indictment charges, as it was compelled to charge in order to show that the offense of conspiring to defraud the Government had been committed, that the petitioners' alleged fraud interfered with 'lawful' and 'proper' functions of government. Had the indictment failed to charge that the functions obstructed were 'lawful' and 'proper,' it would have been fatally defective under our prior cases accepted by the Court today which state that an essential element of the crime of defrauding the Government is the obstruction of a 'lawful' and 'legitimate' governmental function. United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749, 751, 15 L.Ed.2d 681; Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680; Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968; Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 253, 54 L.Ed. 569. Accordingly, in holding that petitioners have no right to challenge § 9(h), the Court must conclude that even if § 9(h) is a bill of attainder, petitioners have nevertheless conspired to interfere with some lawful and legitimate function of government. Yet the Court nowhere points out any governmental function that could have been interfered with by the false affidavits except functions performed under § 9(h) which the Court for purposes of this argument assumes is a bill of attainder. But if the provisions of § 9(h) requiring non-Communist affidavits constitute a bill of attainder then no requirement of that section and no services performed or refused to be performed under it can constitute either lawful or legitimate functions of government. And surely if § 9(h) is a bill of attainder, the filing of any non-Communist affidavits under § 9(h), whether true or false, cannot be said to have interfered with any lawful or legitimate function of the Labor Board. It would indeed be strange if the Court means that it is a lawful and legitimate function of the Government to enforce and carry out in any part a bill of attainder against these petitioners. But if this is what the Court means, then it frustrates the Framers' intention that a bill of attainder must never be given the slightest validity or effect in this free country, either directly or indirectly.
Our Government has not heretofore been thought of as one which sends its citizens to prison without giving them a chance to challenge validity of the laws which are the very foundation upon which criminal charges against them rest. Yet the Court refuses to allow petitioners to attack § 9(h) on the ground that 'the claimed invalidity of § 9(h) would be no defense to the crime of conspiracy charged in this indictment * * *.' It is indeed a novel doctrine if the unconstitutionality of a law which forms the very nucleus of a criminal charge cannot be a defense to that charge. Certainly the Court does not deny that violation of the § 9(h) requirement for non-Communist oaths is an essential if not indeed the only ingredient of the crime for which the Government seeks to place petitioners in jail. The indictment properly charged unlawful compliance with § 9(h) as an essential element, if indeed not the whole crime laid at petitioners' door. Congress has passed no law which requires the Court to refuse to consider petitioners' challenge to the constitutionality of § 9(h). Nor are there any prior cases of this Court which require us today to tell citizens that the courts of our land are not open for them to challenge bills of attainder under which they may be sent to prison. The holding is solely and exclusively a new court-made doctrine.
The cases relied on by the majority cannot, in my judgment, properly be stretched to support the Court's holding that petitioners have no right to challenge § 9(h) as a bill of attainder. In United 82 L.Ed. 205, relied on by the Court, the defendants conspired through use of false statements to secure benefit payments under the Agricultural Adjustment Act to which they were not entitled under the Act itself. For this they were indicted. At trial they contended that they could not be prosecuted because the Agricultural Adjustment Act had been declared unconstitutional. This Court properly rejected that defense. In that case Kapp was convicted of conspiring to get money out of the Treasury to which he had no possible right whether the statute was constitutional or unconstitutional. The alleged conspiracy was to defraud the Government of money by people who, under no circumstances, had or could have had any legitimate claim to the money. So also in Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607, as in Kapp, the defendants made false statements in order to get benefits from the Government which were not due them whether the Home Owners' Loan Act was constitutional or unconstitutional. In none of the other cases relied on by the Court today do we have the situation present in this case. Here, if § 9(h) is unconstitutional, petitioners' union has always been entitled to services of the Labor Board before any affidavits were filed, when they were filed, or after they were filed. By filing false affidavits petitioners got for their union no more than it was entitled to if the statute is unconstitutional. In this situation if § 9(h) is a bill of attainder, the Government has been deprived of nothing and defrauded of nothing.
Let us consider for a moment other similar cases in which efforts might be made to deprive citizens of their right to challenge unconstitutional laws bearing down upon them. For example, what if a State wanted to impose racial or religious qualifications for voting in violation of the Fourteenth and Fifteenth Amendments and that State refused to register people to vote until they had filed affidavits swearing that they were not of a proscribed color or religion? If a person filed a flase affidavit under such a law could it be possible that this Court would hold the person had defrauded the State out of something it was entitled to have? Take another example. Article VI of the United States Constitution provides that '* * * no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' Suppose Congress should pass a law requiring candidates for public office to make affidavits that they do not belong to a particular church and a candidate falsely denies his membership in that church. Is it conceivable that this Court would permit him to be barred from his office and sent to prison on the ground that the Government had been defrauded in its 'lawful' and 'legitimate' functions? And who would imagine that people under indictment for defrauding the Government by making false affidavits required by these unconstitutional acts would be denied in a court of justice the right to challenge such unconstitutional laws? The Court's refusal to allow these petitioners to challenge the constitutionality of § 9(h), on which the charge against them ultimately rests, is hardly consistent with Madison's view that 'independent tribunals of justice * * * will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' 1 Annals of Congress 439 (1789).
In 1959 Congress repealed § 9(h) of the National Labor Relations Act and enacted § 504 of the Labor-Management Reporting and Disclosure Act. 73 Stat. 536, 29 U.S.C. § 504 (1964 ed.). Section 504 made it a crime for a member of the Communist Party to serve as an officer of a labor union. Last year this Court in United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 held § 504 to be an unconstitutional bill of attainder. In doing so, the Court said, 'Section 504 was designed to accomplish the same purpose as § 9(h), but in a more direct and effective way.' 381 U.S., at 439, n. 2, 85 S.Ct., at 1710. In this case the Government argues with understandable brevity, feebleness and unpersuasiveness that there is a crucial distinction between § 504, which it has to admit is a bill of attainder, and § 9(h) which it contends is not. This alleged crucial distinction amounts to no more than an assertion that the punishment under § 504 is more severe than that under § 9(h). This distinction is hard to grasp and harder to accept. Section 504 made it a crime for a Communist to hold office in a labor union. Section 9(h) made it just as impossible for a Communist to hold union office, though it reached this result in a different way. Section 9(h) provided that a union could not receive the services of the Labor Board if the union had any Communist officers and required all union officers to file affidavits stating they were not Communists as a condition of their unions' receiving the Board's services. The practical effect of § 9(h) was that a union officer who was a Communist was forced either to file a false affidavit, for which he could have been prosecuted, or to give up his office. For this reason the differences between § 9(h) and § 504 upon which the Government relies are too slight, too insubstantial, and too vaporlike to justify the conclusion that one section is a bill of attainder and the other is not. Brown held that § 504 was a bill of attainder because it attainted all Communists and declared them unfit to hold office in a labor union. The heart of the holding in Brown was that Communists had been so attainted through legislative findings rather than a due process judicial trial. Section 9(h) amounts to exactly the same sort of attainder by elgislative fiat. It would be a distinct and a quick retreat from Brown to hold § 9(h) is not a bill of attainder though its successor, identical in purpose and practical effect, is a bill of attainder. I am not willing to make this retreat either directly, or indirectly by refusing to face the issue here and now.
Petitioners now face their third trial and possible prison sentences just as though the Court had today upheld § 9(h). I must say with considerable regret that future historians reporting this case may justifiably draw an inference that it is the petitioners, whatever may be their offense, and not the Government who have been defrauded. For petitioners, if convicted and sentenced again, unlike the Government, actually will have been deprived of something-their freedom. They will be in jail, having been denied by their Government the right to challenge the constitutionality of § 9(h) which, when it is challenged, must in my judgment be held to be the constitutionally doubly prohibited freedom-destroying, legislative bill of attainder.

## Notes

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