Devil's Advocates

The right of citizens, either as individuals or as groups, to question and to criticize governmental action, cannot be denied. In the free and responsible exercise of this privilege the American system has often found strength. But the entry of so respectable a body as the American Bar Association into the raucous chorus of intemperate criticism of the Supreme Court is an occasion at least for eyebrow-raising.

In asking the Congress legislatively to reverse several important Court decisions in the field of internal security, the ABA has heralded a retreat to the witch-hunting days of the late Senator McCarthy. The reaction to this McCarthy aberration, as expressed in the liberalizing rulings of the Court, did not represent a violent move to an opposite aberration, but a reasoned return to established values of civil and individual liberty.

The Bar Association wisely asks that Congress deal with each recommendation as a separate bill, rather than in an omnibus action restricting the Court's jurisdiction. Such omnibus legislation, not only dangerous but of dubious constitutional validity, was twice proposed in the Eighty-fifth Congress. The ABA's attack on this type of action and its defense of the Court as an institution are welcome.

But its specific recommendations, countermanding sound Court decisions, indicate, that the Association--though not without stormy debate--has allowed itself to be bullied by a committee apparently stacked with rightwing, witch-hunting elements. Each of the five legislative proposals, if enacted, would have the effect of reinitiating a segment of the anti Communist panic campaign of the early '50's.

To allow the states to enforce their own laws on subversive activity against the United States Government would, as the Supreme Court argued in the Nelson case of 1956, conflict with and duplicate Federal legislation which has pre-empted the field. The other ABA recommendations--to give the Secretary of State broad power to withhold passports from "alleged subversives," to strengthen the already too stringent Smith Act, to extend the already too wide security program, to tighten immigration laws requiring the deportation of Communists (probably unconstitutional, and at least unjust, as they stand)--similarly represent dangerous incursions upon individual political liberty.

The decisions of the Supreme Court striking down the illiberal practices which the Bar Association seeks to reinstate were not, as some critics have argued, legalisms based on semantic misinterpretation. They were, on the contrary, reasonable assertions of basic, but long-neglected, civil rights. It is therefore astounding to find the ABA standing with the American Legion and comparable reactionary elements in proposing a return to the days of the witch-hunt and the Red herring.