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Vol. IV, No. 3
May, 1959

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Federal - State Relations

In recent decisions involving problems of individual civil liberties in the context of federal-state relations, the United States Supreme Court seems to have preferred state power, in the name of federalism, against claimed violations of federally-secured rights.

In New York v. O'Neill, 412.7, the Court held not violative of the Fourteenth Amendment's privileges and immunities clause a Florida statute providing for judicial extradition proceedings for witnesses subpoenaed by other jurisdictions. Justices Black and Douglas, dissenting, objected that the statute violated the nationally-created right of ingress and egress between states. Left unanswered by them was Justice Frankfurter's point that "Florida . . . could have held respondent [N.Y. resident] within Florida if he had been a material witness . . . [in Florida]."

In Harrison v. NAACP, 204.4* , the Court, in rejecting as premature a 3-judge federal court's passing on the constitutionality of Virginia's statutes requiring registration of organizations aiding desegregation litigation, adhered to long-standing precedent, and at worst postponed decision for one or two years. In view of other attacks on the right of the NAACP to exist and function in the Southern states, (see cases at 204.,) such delay might prove decisive in encouraging anti-integration forces to continue to resist all efforts to move "with all deliberate speed" to enforce the Brown decision.

In Uphaus v. New Hampshire, 273.3* , the Court held that the Nelson decision did not preclude states from enacting any sedition laws. Remembering the Court's detailed determination of the identity of the federal and state acts in Nelson, the Uphaus holding on this point should not be surprising. Justice Clark's balancing of appellant's First Amendment rights against a claimed state interest in knowing the guests and speakers at his World Fellowship lodge is something else again, particularly in view of Chief Justice Warren's statement in Sweezy that the Court could not, in 1957, "conceive of any circumstances wherein a state interest would justify infringement of rights in these fields."

Double Jeopardy

In Bartkus v. Illinois, 322.3, and Abbate v. U.S., 321.4, the Court held, respectively, that the Fifth Amendment guarantee against double jeopardy does not preclude federal trial of a defendant already punished for the same acts under state law, and that the Fourteenth Amendment does not prohibit state punishment for acts of which a defendant was acquitted under federal law.

Precedent here was not ironclad, nor was the Court confronted with the problem of expanding present precedent. The whole dual-soverignty — double-jeopardy area has never received the considered attention from the Court which it deserves, despite the seeming bulk of precedent. The sharp divisions in the Court in these cases foreshadow much further litigation.

(See discussion of decision in Mills v. Louisiana, 333.10, and Morgan and Raley v. Ohio, 335.1 and 335.4, in the next DOCKET.)

Court - Congress Relations

The House Committee on UnAmerican Activities was established by House Resolution in 1938. The Supreme Court was first confronted with the question of the constitutionality of its creation and operation in 1948 in Barsky, Josephson, Lawson and Trumbo v. U.S., (167 F. 2d 241, 165 F. 2d 82, 176 F. 2d 49). The Court denied certiorari. (339 U.S. 971, 333 U.S. 838, 339 U.S. 934.)

When the Court decided Emspak, Bart and Quinn v. U.S. in the spring of 1955, its holding was narrow — it is a denial of due process to cite a witness for contempt of Congress when he has properly claimed the privilege against self-incrimination and has not been directed to answer the question. (349 U.S. 190, 219, 155.) But the Court intimated, as it did also in Rumely, 345 U.S. 41, that there were limits to the powers of Congressional committees, that the First Amendment remained an integral part of the Constitution.

In the spring of 1957, Chief Justice Warren, for the Court, spelled out these concepts more fully in Watkins and Sweezy, 354 U.S. 178, and 234. Frankfurter wrote a short concurrence, Clark dissented at length, and Justices Burton and Whittaker did not sit.

While clients and their lawyers may have acted on the basis of this dicta, (see the 20 cases now pending in which witnesses before the UnAmerican Activities Committee and Senate Internal Subcommittee declined to answer questions on the basis of the First Amendment), Congress did not. The House of Representatives continued its appropriations to the UnAmerican Activities Committee, and continued to accept its reports, on education, labor, the youth movement, etc. The 1959 Roosevelt Resolution to shift investigation in this field away from the Committee on UnAmerican Activities received almost no Congressional support.

And in June, 1959, the Court, by a 5-4 vote, held that the Committee had been carrying out the mandate of its parent body when it investigated in the field of education.

(Further discussion of First Amendment aspects of Uphaus and Barenblatt, 271.7, will appear in Highlights of the next issue of the DOCKET.)

Supreme Court Decisions
To be Reported in Next Issue