Evening star., 1950-03-26
Judge Edgerton's Dissent

The dissenting opinion by Judge Edgerton
in the Dorothy Bailey case has, at the least
strong emotional appeal. And this is one reason
why the dissent should be examined carefully
to see just what effect it would have if it should
become the prevailing view.
Most people would concede, given the inter-
national climate in which we live, that the Gov
ernment should have the necessary power to get
rid of Federal employees who are loyal to the
Communist philosophy and disloyal to our own.
Judge Edgerton comes close to saying, however,
that the Government has no such power.
Miss Bailey was dismissed from her Govern
ment job on suspicion of disloyalty. 1t should
be understood, of course, that neither the ma
jority nor the minority opinions passed on this
point. The appellate judges were concerned with
questions of law not the factual issue as to Miss
Baileys loyalty or disloyalty.
Judge Edgertons first major conclusion was
that a dismissal for disloyalty is punishment and
requires all the safeguards of judicial trial.
This means, first, that in his view the Govern
ment may discharge an employe for an undis-
closed reason without judicial trial. If Miss
Bailey, for instance, had simply been discharged,
and no reason given, that, in Judge Edgertons
opinion, would have been legitimate exercise
of power by her employer. But if that procedure
had been followed in the loyalty program, the
cleared of accusations after investigation
and hearing would have lost their jobs. Ger
tainly it would be hard to convince them that
this would have been more just procedure.
What happens if the Government deals
candidly with it's employees and notifies those to
be dismissed that the ground is disloyalty? Ac-
cording to Judge Edgerton that requires judicial
trial-a trial by jury, full statement of the
charge, and the right to be confronted with,
and to cross-examine adverse witnesses. Pre-
sumably, also, guilt would have to be established
beyond a reasonable doubt.
This would be emnently fair to accused en-
ployes. But it would also cripple, if not destroy,
the Governments ability to safeguard itself
against disloyal employees and against the whole
of the Communist conspiracy. 1t is safe to
assume that the FBI, which is the Governments
principal source of information in the loyalty
program, has planted it's agents in the Com
munist Party They operate within the party,
and are known as good Communists. 1t has
taken years to set up this counterespionage or
ganization. But it would be destroyed immedi-
ately if these agents and other similar sources
of confidential information had to come into
open court and testify against Communist who
was maSquerading as a loyal Government en-
ploye Nothing could delight the Communists
more than that easy way of finding out who are
the undercover agents in their midst
The choice posed is admittedly a choice of
evils. On the one hand there is the danger of
branding an innocent person as probably dis
loyal without the protection of what we think of
fair trial On the other there is the danger,
if not the certainty, that this country would have
to put up with disoyal employees or see much of
the effectiveness of its counterespionage work
destroyed.
But Judge Edgerton goes step further He
says that Miss Bailey's dismissal violates the
First and Fifth Amendments in that it is form
of thought control and attributes guilt by asso-
citation. If Judge Edgerton is right, what does
this mean as practical matter?
1t means, apparently, that Government
employe who is an ardent believer in communism,
but who has not actually committed disloyal
act, could not be discharged, even after judicial
trial. 1t also means that a Government EN-
poye whose intimate friends admittedly are
active Communists could not be discharged with
without trial, for that would be to attribute
guilt by association.
1t seems to The Star that this is utterly
unrealistic. The Communist philosophy is openly
hostile to our system and Communist activity is
admittedly aimed at it's downfall. Does our Con-
stitution require that one avowed Communist, or
hundred, or ten thousand, be kept on the public
pay roll on the theory that to tire them would
be thought control? With the hostility of
communism obvious to any one, must this Gov
ernment keep known Communist in its employ
until it can prove beyond a reasonable doubt
that he has committed disoyal act?
Judge Edgerton evidently thinks So He also
says that "even if such dismissals (as Miss
Baileys) strengthened the Government instead
of weakening it, they would still cost too much
in constitutional rights. We cannot preserve our
liberties by sacrificing them"
Maybe not. But some countries, Czechoslo-
vaka for one have discovered too late that when
enough Communists infiltrate their government
their liberties are speedily sacrificed for them.
The United States is not Czechoslovakia, and
there is no comparable danger. But there is
some danger, as witness the case of DR.. Fuchs,
and it is a curious doctrine which holds that
the prospect of thought control is a greater
menace than the continuation of known and sus-
pected Communists in the Government service.
A Few Words for Our Time