Against the Loyalty Oaths

To the Editors of the CRIMSON:

The institution of loyalty oaths for the NROTC at Harvard requires that a more exhaustive study he made of the constitutional basis and reasons for such oaths than has been previously been printed in these pages.

The loyalty order now in force was promulgated by President Truman in March 1947 in Executive Order 9825. The order itself did not define the world "disloyalty" but set up certain standards by which the Attorney General could determine who was disloyal by membership is, or sympathetic association, with certain organizations which he, the Attorney General would determine are subversive. Thus, the power to decide who was eligible for government employment was placed in the hands of one man, unfettered by any unconstitutional guarantees of due process of law. Justice Jackson condemned this type of proceeding when, speaking for the Supreme Court is West Virginia State Board of Education v. Barnette, 319 US 624, 642 (1943) he said: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

The the loyalty oath was issued in order to punish and prevent unorthodox political thinking and opinion, and not to prevent subversive action, is clear when we examine the Federal acts in force at the time of the adoption of the order. There existed at that time, and still exist, statutes punishing sabatoge, 50 USC 104-6; espionage, 50 USC 31-2; treason, 18 USC 1-3; sedition, 18 USC 10; and in addition, conspiracy to commit any of the above was punished under 18 USC 88. Also, Federal Civil Service employees are liable for discharge "for such cause as will promote the efficiency of the service." 5 USC 562. Obviously, in light of these existing statutes, more than protection against "subversive acticity" motivated the issuance of the loyalty order.

Freedom of speech and press, and a fortiori, of thought and opinion, are guaranteed to all Americans by the First Amendment. The only limitation placed upon this freedom is the "clear and present danger" doctrine first enunciated by Justice Holmes in Shenck v. U. S., 249 Us 47 (1919). It is important to note that this doctrine applies when freedom of speech is abused to the point of a person screaming "fire" in a crowded theatre when he knows that no danger of fire exists. It is quite a different matter to apply this limiting doctrine to the realm of free thought and opinion where there is no overt act contrary to anyone's interests of security.

The Civil Service Commission, in issuing its first rule in 1884, recognized the right of every government employee to freedom of thought by stating, "no question . . . shall be framed as to elicit information concerning the political or religious opinions of any applicant."

Governor Smith in 1923, when repealing New York's anti-sedition statutes which required loyalty oaths, said the laws "were repugnant to the fundamentals of American democracy."

Violates Due Process

Not only does the loyalty order violate the substantive guarantees of the First Amendment, but it also violates the procedural right of Americans to due process. The standard of the loyalty order is that of "guilt by association," a doctrine first suggested by the Dies Committee in October, 1938 when it demanded the firing of teachers who attended meetings sponsored by alleged communist front organizations. In regard to the doctrine which is now being used by the President's Loyalty Board, Justice Murphy, in bridges v. Wixon, 326 US 135, 163 (1945) said: "The doctrine of personal guilt is one of the fundamental principles of our jurisprudence. It partakes of the very essence of the concept of freedom and due process to law." The standard so well advocated by Justice Murphy is completely obliterated by the use of the guilt by association doctrine.

Dismissal Penalty

The penalty of dismissal for failure to "pass" the loyalty oath is akin to a determination of treason; because of this, the proceeding is in effect, criminal. The Supreme Court, in US v. Lovett, 328 US 303. 317-18 (1946) reviewed the required proceeding safeguards in a criminal proceeding. "An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charges against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be impelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him."

That proceedings before the Loyalty Board violate most of these safeguards is clear. The Attorney General may arbitrarily place organization on his list and is not required by law to give any reasons for his action; the organization has no right to a hearing; individuals accused of "disloyalty" are not tried by a jury, have no right to counsel, are not clearly informed of the charges against them; the loyalty order is ex post facto in effect, and there is no right to examine witnesses or evidence used against the accused. This is the type of un-American proceeding which is embodied in the loyalty order. This is the proceeding used by "patriots" to ferret out "subversives."

There are a sufficient number of criminal statutes on the books to convict those who are guilty of subversive activity; instead of loyalty oaths, to muzzle the growth and exchange of free opinion, what is needed is an understanding that those who foster and use undemocratic instruments such as loyalty oaths also foster an undemocratic society. Unless the use of such oaths and other similar practices are discontinued, freedom of thought and expression will be completely effacted, and Navy-sponsored snoopers and back fence peeping-toms will not be limited to the Harvard campus. Irwin Gostin 2L.