Evening star. [volume] (Washington, D.C.) 1854-1972, 1949-08-12
Loyalty Program Upheld


the Joint Anti-Fascist Refugee Commit
tee case is of more than ordinary i'm
portance because it not only upholds the
right of the Attorney General to compile
so-called "subversive lists" but sustains
broadly the constitutionality of the loyalty
program as a whole. BY two-to-one vote
of its six judges, the appellate court has
served notice that its stand will be the
same in all cases where similar constitu-
tional objections to the program are raised
Although the Joint Committees appeal
was directed specifically against the At
torney Generals action In listing it among
allegedly subversive organizations, Judge
Proctor, writing the opinion for himself
and Judge Clark, took cognizance OF "the
number Of cases in this jurisdiction attack
ing validity of the loyalty program" IN
general In two such cases recently Dis
trict Judge Holtzoh has rejected arguments
that the program violates both the free
speech and due process provisions OF the
Constitution. Judge Holtzof held in the
Dorothy Bailey case and in one involving
a group of dismissed postal workers that
the Governments right to investigate and
dismiss an employe, with or without hear
ing, Is absolute.
Judges Proctor and Clark, in effect, up
held Judge Holtzoffs views and set pat
tern for possible future rulings when they
said: Contrary to the contentious of the
committee, nothing in the Hatch Act or
the loyalty program deprives the commit
tee or its members of any property rights.
Freedom Of speech and assembly is denied
no one. Freedom of thought and belief is
not impaired. Any one is free to join the
committee and give it his support and
encouragement. Every one has constitu-
tional right to do these things, but no one
has a constitutional right to be Govern
ment employee" The last sentence is remi-
niscent of Justice Holmes oft-quoted COM
ment in Massachusetts, police case: "The
petitioner "a discharged officer may have
a constitutional right to talk politics but
he has no constitutional right to be
policeman"
\. In dissenting, Judge Edgerton did not
question the constitutionality Of the loyalty
program as such. He confined his COM
ments to the question of the validity OF
the subversive listing procedure itself. He
felt that in the case of the Joint Commit
tee, on the basis of facts at hand, the
failure of the Attorney General to afford
the committee hearing before placing 1t
on the list amounted to denial of "due
process" And he said that the listing OF
the committee involved a threat of dis
missal to Federal employees If they asso-
ciated with 1t and hence restricted their
freedom of speech and assembly. The ma
jority, however, held that no hearings were
necessary prior to listing pointing out
that the action was not directed against
the committee but was incidental to the
valid purpose of determining the loyalty
OF employees. As for the free speech issue,
the majority sided with the Holmes opin-
ion regarding limited rights Of public serv-
ants.
The majority ruling is signal victory
for the Presidents loyalty program. What
the lineup of the six-judge court would
be on this question is matter for specu-
lation. 1t is certain, however, that the ulti-
mate decision as to the constitutionality of
the program will be made by the Supreme
Court, for several of the cases are slated
to be carried to the highest court for final
determination of the crucial issue.