A pair of inquisitions
RECAP: Last week, we discussed the Lovett case, where a federal employee and private citizen was named in an appropriations bill for the express purpose of excluding him from any future payments from the US government. After Congress added three citizens’ names to a bill, they sued, and the Supreme Court called Congress out- this was clearly attainder, the unconstitutional practice of legislatively punishing individual citizens without due process.
This week, let’s talk about Watkins and Sweezy.
The principle Justice Black articulated in Lovett was specific to legislative acts that inflicted punishment on named individuals. But the practice the case responded to — the use of legislative power to target private citizens for their political views — did not require formal attainder to function. It required only that a legislature, or a body operating under legislative authority, develop a mechanism for identifying, summoning, exposing, and punishing individuals whose views the legislature found objectionable.
By the mid-1950s, the House Un-American Activities Committee — the same committee whose chairman had named Lovett, Watson, and Dodd in 1943 — had developed exactly such a mechanism. It summoned witnesses. It demanded that they testify about their political associations and the political associations of others. It used the act of public testimony itself as the punishment: witnesses who appeared lost their jobs, their professional licenses, and their public reputations regardless of whether they were charged with any crime. The witnesses who refused to testify were charged with criminal contempt under 2 U.S.C. § 192 and sentenced to prison.
On the same day in June 1957 — a day conservative commentators would call “Red Monday” — the Supreme Court decided two cases that brought the Lovett principle to bear on this legislative-investigation machinery.
Red Monday, the day the Supreme Court decided Watkins and Sweezy
Watkins
John Thomas Watkins was a United Auto Workers organizer from Rock Island, Illinois. In April 1954, a HUAC subcommittee subpoenaed him to testify about his connections to the Communist Party. Watkins answered every question about himself fully. He identified individuals he believed were currently members of the Party. He refused, on conscience grounds, to identify individuals he had known to be associated with the Party in the past but whom he believed had since left. He argued that questions about people who were no longer affiliated with the Party exceeded the legitimate scope of the subcommittee’s authorized inquiry
John Watkins was subpoenaed to testify before Congress on suspicion of Communism.
He was indicted for contempt of Congress, convicted, and his conviction was affirmed by the D.C. Circuit en banc. The Supreme Court reversed, 6–1, in Watkins v. United States, 354 U.S. 178 (1957). Chief Justice Earl Warren wrote the majority opinion.
Warren’s opinion contains the sentence that is the spiritual successor to Black’s formulation in Lovett: “There is no congressional power to expose for the sake of exposure.”
The argument was structural. Congress possesses an investigative power, but the power is ancillary to the legislative power. Congress investigates in order to legislate — to inform itself about subjects on which it might pass laws, to oversee the operation of existing laws, to evaluate the conduct of the executive branch. The investigative power has constitutional legitimacy when it serves these purposes. It loses constitutional legitimacy when it is used for other purposes — when, for example, it is used to expose private citizens to public obloquy because Congress disapproves of their views, or to punish individuals by making their political associations a matter of public spectacle.
Warren held that the resolution authorizing HUAC was so broad that “it would be difficult to imagine a less explicit authorizing resolution.” Watkins, summoned to testify, had no way to determine which of the subcommittee’s questions fell within the committee’s legitimate scope and which did not. The vagueness of the authorization, combined with the chairman’s failure to clarify the pertinence of specific questions when Watkins objected, deprived him of due process under the Fifth Amendment.
The deeper holding, the one Watkins is remembered for, is that the Bill of Rights applies to congressional investigations as to all other forms of governmental action. The First Amendment does not permit Congress to investigate citizens because of their political beliefs. The Fifth Amendment does not permit Congress to punish citizens through investigative process without the procedural protections that any other punitive proceeding would require. The legislative power is broad. It is not unlimited. And it is constrained, specifically, by the same constitutional protections that constrain every other federal exercise of power against private individuals.
The Sweezy Inquisition
The same June day, the Court decided Sweezy v. New Hampshire, 354 U.S. 234 (1957). The vote was 6–2.
Paul M. Sweezy was a Marxist economist, the founding editor of Monthly Review, and an occasional guest lecturer at the University of New Hampshire. The New Hampshire legislature had passed the Subversive Activities Act of 1951 and delegated authority for its enforcement to the state Attorney General, Louis Wyman — making Wyman, in effect, a one-person legislative investigating committee.
Sweezy was subpoenaed. He cooperated extensively. He refused two categories of questions: those about the specific content of a lecture he delivered at the University of New Hampshire, and those about his knowledge of the Progressive Party and the Progressive Citizens of America — third-party political organizations of the late 1940s — including their members and activities. He was held in contempt and ordered jailed.
Chief Justice Warren’s plurality opinion (joined by Black, Douglas, and Brennan) held that the New Hampshire procedure violated the Due Process Clause of the Fourteenth Amendment. The state legislature had “turned over” its investigative discretion to the Attorney General without meaningful legislative oversight, leaving no way to determine whether the specific questions served a legitimate legislative purpose. Without that linkage to legislative function, the intrusion on Sweezy’s freedoms of expression, association, and academic inquiry could not be sustained.
Paul M. Sweezy, a professor, was investigated by the state of New Hampshire under suspicion of Communism, held in contempt and ordered jailed. The Court held the state failed to meet its burden proving the questions asked were within their legislative purview.
Warren’s plurality contained one of the most cited passages in American academic-freedom jurisprudence: “The essentiality of freedom in the community of American universities is almost self-evident. … To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”
Justice Felix Frankfurter, joined by Justice John Marshall Harlan, concurred on broader grounds, articulating academic freedom as a constitutional value in its own right. His concurrence has been cited repeatedly in subsequent cases — Keyishian v. Board of Regents (1967), Healy v. James (1972), Regents of the University of California v. Bakke (1978) — as the seminal Supreme Court statement of the principle.
Sweezy extended the Watkins principle to include legislative investigations under the Fourteenth Amendment. Together, the two cases established that the limits on governmental investigative power apply at both federal and state levels, and that those limits are not procedural niceties but substantive constitutional protections derived from the same structural concerns Black had identified in Lovett.
The Doctrine, Stated Whole
Read together, Lovett, Watkins, and Sweezy establish a coherent doctrine. The federal and state governments may not use legislative power — or any power derived from legislative authority — to target named private citizens for harm. The prohibition applies whether the mechanism is a formal bill of attainder (Lovett), a congressional investigation designed to expose rather than to legislate (Watkins), or a state inquisition operating under broad delegated authority (Sweezy).
The doctrine has constitutional foundations in three different places:
Article I, Section 9, Clause 3 forbids bills of attainder by Congress; Article I, Section 10, Clause 1 forbids them by the states. The Fifth Amendment requires due process before the federal government may deprive any person of life, liberty, or property; the Fourteenth Amendment imposes the same requirement on the states. The First Amendment forbids governmental abridgment of speech and association, and applies to congressional investigations as to all other forms of governmental action.
The cases do not say that the federal government may never investigate private citizens. They say that when the government does investigate, the investigation must serve a legitimate purpose tied to the government’s enumerated powers, must be authorized by a sufficiently specific grant of authority, must accord the targeted individual the procedural protections the Bill of Rights requires, and must not become — by design or by drift — a vehicle for inflicting punishment on individuals because of their political views.
Where the margins meet the moment.
