381 U.S. 437 (1965), 399, United States v. Brown

Docket Nº:No. 399
Citation:381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484
Party Name:United States v. Brown
Case Date:June 07, 1965
Court:United States Supreme Court

Page 437

381 U.S. 437 (1965)

85 S.Ct. 1707, 14 L.Ed.2d 484

United States



No. 399

United States Supreme Court

June 7, 1965

Argued March 29, 1965




Respondent was convicted under §504 of the Labor-Management Reporting and Disclosure Act of 1959, which makes it a crime for one who belongs to the Communist Party or who has been a member thereof during the preceding five years wilfully to serve as a member of the executive board of a labor organization. The Court of Appeals reversed, holding § 504 violative of the First and Fifth Amendments.

Held: Section 504 constitutes a bill of attainder, and is therefore unconstitutional. Pp. 441-462.

(a) The Bill of Attainder Clause, Art. I, § 9, cl. 3, was intended to implement the separation of powers among the three branches of the Government by guarding against the legislative exercise of judicial power. Pp. 441-446.

(b) The Bill of Attainder Clause is to be liberally construed in the light of its purpose to prevent legislative punishment of designated persons or groups. Cummins v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; United States v. Lovett, 328 U.S. 303. Pp. 447-449.

(c) In designating Communist Party members as those persons who cannot hold union office, Congress has exceeded its Commerce Clause power to enact generally applicable legislation disqualifying from positions affecting interstate commerce persons who may use such positions to cause political strikes. Pp. 449-452.

(d) Section 504 is distinguishable from such conflict of interest statutes as § 32 of the Banking Act, where Congress was legislating with respect to general characteristics, rather than with respect to the members of a specific group. Pp. 453-455.

(e) The designation of Communist Party membership cannot be justified as an alternative, "shorthand" expression for the characteristics which render men likely to incite political strikes. Pp. 455-456.

(f) A statute which inflicts its deprivation upon named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, discouraging future conduct. In America Communications Ass'n v. Douds, 339 U.S. 382, where the Court upheld § 9(h) of the National

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Labor Relations Act, the predecessor of § 504, the Court erroneously assumed that only a law visiting retribution for past acts could constitute a bill of attainder, and misread the statute involved in United States v. Lovett, 328 U.S. 303, which it sought to distinguish from § 9(h), as being in that category. Pp. 456-460.

(g) The legislative specification of those to whom the enacted sanction is to apply invalidates a provision as a bill of attainder whether the individuals are designated by name, as in Lovett, or by description, as here. Pp. 461-462.

334 F.2d 488, affirmed.

WARREN, J., lead opinion

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

In this case, we review for the first time a conviction under § 504 of the Labor-Management Reporting and Disclosure Act of 1959, which makes it a crime for a member of the Communist Party to serve as an officer or (except in clerical or custodial positions) as an employee of a labor union.1 Section 504, the purpose of which is to protect

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the national economy by minimizing the danger [85 S.Ct. 1710] of political strikes,2 was enacted to replace § 9(h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, which conditioned a union's access to the National Labor Relations Board upon the filing of affidavits by all of the union's officers attesting that they were not members of or affiliated with the Communist Party.3

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Respondent has been a working longshoreman on the San Francisco docks, and an open and avowed Communist, for more than a quarter of a century. He was elected to the Executive Board of Local 10 of the International Longshoremen's and Warehousemen's Union for consecutive one-year terms in 1959, 1960, and 1961. On May 24, 1961, respondent was charged in a one-count indictment returned in the Northern District of California with

knowingly and wilfully serv[ing] as a member of an executive board of a labor organization . . . while a member of the Communist Party, in wilful violation of Title 29, United States Code, Section 504.

It was neither charged nor proven that respondent at any time advocated or suggested illegal activity by the union, or proposed a political strike.4 The jury found respondent guilty, and he was sentenced to six months' imprisonment. The Court of Appeals for the Ninth Circuit, sitting en banc, reversed and remanded with instructions to set aside the conviction and dismiss the indictment, holding that § 504 violates the First and Fifth Amendments to the Constitution. 334 F.2d 488. We granted certiorari, 379 U.S. 899.

Respondent urges -- in addition to the grounds relied on by the court below -- that the statute under which he was convicted is a bill of attainder, and therefore violates Art. I, § 9, of the Constitution.5 We agree that § 504 is void as a bill of attainder. and affirm the decision of the Court of Appeals on that basis. We therefore find it unnecessary to consider the First and Fifth Amendment arguments.

Page 441


The provisions outlawing bills of attainder were adopted by the Constitutional Convention unanimously, and without debate.6

No Bill of Attainder or ex post facto Law shall be passed (by the Congress).

Art. I, § 9, cl. 3.

No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . . .

Art. I, § 10. A logical starting place for an inquiry into the meaning of the prohibition is its historical background. The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.7 In addition to the death sentence, attainder generally carried with it a "corruption of blood," which meant that the attainted party's heirs could not inherit his property.8 The "bill of pains and penalties" was identical to the bill of attainder, except that it prescribed a penalty short of death,9 e.g., banishment,10 deprivation of the right to

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vote,11 or exclusion of the designated party's sons from Parliament.12 Most bills of attainder and bills of pains and penalties named the parties to whom they were to apply; a few, however, simply described them.13 While some left the designated parties a way of escaping the penalty, others did not.14 The use of bills of attainder and bills of pains and penalties was not limited to England. During the American Revolution, the legislatures of all thirteen States passed statutes directed against the Tories; among these statutes were a large number of bills of attainder and bills of pains and penalties.15

While history thus provides some guidelines, the wide variation in form, purpose and effect of ante-Constitution bills of attainder indicates that the proper scope of the Bill of Attainder Clause, and its relevance to contemporary problems, must ultimately be sought by attempting to discern the reasons for its inclusion in the Constitution, and the evils it was designed to eliminate. The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or, [85 S.Ct. 1712] more simply, trial by legislature.

The Constitution divides the National Government into three branches -- Legislative, Executive and Judicial.

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This "separation of powers" was obviously not instituted with the idea that it would promote governmental efficiency. It was, on the contrary, looked to as a bulwark against tyranny. For if governmental power is fractionalized, if a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will. James Madison wrote:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.16

The doctrine of separated powers is implemented by a number of constitutional provisions, some of which entrust certain jobs exclusively to certain branches, while others say that a given task is not to be performed by a given branch. For example, Article III's grant of "the judicial Power of the United States" to federal courts has been interpreted both as a grant of exclusive authority over certain areas. Marbury v. Madison, 1 Cranch 137, and as a limitation upon the judiciary, a declaration that certain tasks are not to be performed by courts, e.g., Muskrat v. United States, 219 U.S. 346. Compare Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579.

The authors of the Federalist Papers took the position that, although under some systems of government (most notably, the one from which the United States had just broken), the Executive Department is the branch most likely to forget the bounds of its authority,

in a representative republic . . . where the legislative power is exercised by an assembly . . . which is sufficiently numerous to feel all the passions which actuate a multitude; yet

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not so numerous as to be incapable of pursuing the objects of its passions . . . ,

barriers had to be erected to ensure that the...

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