Evening star., 1948-04-15
Courts and Communists

Courts and Communists
A special three-judge Federal Court,
dividing two to one, has upheld the con-
stitutionality of the Communist affidavit
provision of the Taft-Hartley Act AS
matter of fact, the court sustained three
provisions of the law including that per-
tanning to publishing of financial state
ments, but the judges were in disagreement
only as to the Communist phase.
This latter is by far the most important,
however, and for that reason the dissent
is the more disturbing.
The majority decision was written by
Justice Wilbur X. Miller of the United
States Court of Appeals and concurred in
bv Chief Justice Bolitha Laws of the
District Court. Dissenting was Justice
Barrett Prettyman of the Court of Appeals.
The essential question at issue was
whether Congress, having conferred upon
unions the privilege of the Wagner Act
as amended, including the privilege OF
using the facilities of the Labor Relations
Board, can withdraw or modify that
privilege in the case of unions offlcered by
Communists. The majority held that it
was entirely proper for Congress to do
this, provided the modification of the
privilege was reasonably related to the
objective of promoting free flow of COM
merce. And on this latter point, the
majority concluded that there was ample
evidence to support the congressional
belief that Communists seek key positions
in labor unions not to promote the free
flow of commerce, but to use the power
thus acquired to obStruct commerce for
political purposes of their own.
1t seems to The Star that this majority
decision is entirely right and reasonable.
Justice Prettyman, however. has in
jected constitutional issue into .le case.
Boiled down to layman's language, 1t is
this: The First Amendment protects
Communist labor leaders right of free
speech, including the right to remain
silent. Congress cannot abridge that right
unless the presence of Communists III
official union posts threatens the national
interest, and, in that event, it must be
established that there is a clear and
present danger to the country
Initially, the question whether Com
munist control of labor unions threatens
the country is question of fact, and JUS
tice Prettyman thinks that despite the
affirmative congressional finding as to
the fact, based on exhaustive hearings, the
courts should proceed to make their own
finding In the last analysis, however, the
question is one of opinion based on facts.
And that being So whose opinion is to
prevail? That of the Congress or that of
the courts?
To deny that communism is menace
to democracy, or to take the position that
this is not already well-esta olished fact,
is simply to close ones eyes to the facts
of life In country after country the world
has seen the Communists worm their way
into control of labor unions for the pur-
pose of using the general strike as polit-
ical weapon. This is what happened not
long ago in Czechoslovakia, and we have
seen it attempted in France and Italy.
In other lands the problem has been
to arouse the executive and legislative
branches of government to the threat and
the menace of communism. In this coun-
try fortunately the Congress and the
President are alive to the danger, and they
have taken significant steps to meet the
challenge Of communism throughout the
world before it overwhelms us here. For
a democracy, this is a matter of life or
death. And it would be tragic thing if,
in our own land, the courts should hold
that democratic government lacks the con-
stitutional power to protect itself against
the inroadS of totalitarianS.
Justice Prettyman is we'll aware of this,
for in decision which he prepared
recently in another case, he said: 80
Unless democratic government can
protect itself by means commensurate with
danger, it is doomed
In this instance, however, he is not
satisfied that the Communist danger is
enough to justify Congress i'll taking even
the mild and limited countermeasures pro-
vided in the Taft-Hartley Act. But as the
majority decision points out, "it will not
be often, if ever, that the presence of
potential danger, or clear and present
danger, can be conclusively demonstrated
until the portended harm has been done"
1t is fair conclusion from all of this
that the courts should not insist that we
lock the stable door only after the Com