Uphaus and the Court

If there ever was a chance that the state of civil liberties in New Hampshire would improve, the past two weeks have shown that little remains now. Close to 85 per cent of the electorate turned out to give reactionary Governor Wesley Powell the greatest margin he has ever received, and while the feud between Powell and previously elected Attorney-General Louis Wyman might induce the stalwart investigator to resign, Wyman will probably return to continue his persecution of dissent. And to furnish a further indication that this atmosphere will not change, the Attorney-General's chief target, pacifist Willard Uphaus, failed last week to obtain review of his latest appeal to the Supreme Court.

The unjustness with which the state investigated Uphaus is manifest. After the legislature made Wyman a one-man committee to inquire into subversion in 1953, the Attorney-General demanded that the New Haven minister hand over the names of guests who visited the summer camp where he directed conferences on peace. Uphaus refused, and in 1956 the state Superior Court cited him for civil contempt by a close 3-2 decision, with a minority which objected that "on a record such as this so slim a semblance of pertinency is not enough to justify inquisition violative of the First Amendment."

A series of appeals ensued, in which Wyman's view of liberty became blatantly clear, as in his statement to the Supreme Court that "those who knowingly and voluntarily appear with, consult with, confer with, attend functions with and otherwise act in concert with communists or former communists in America cannot possibly have any reasonable right of privacy in regard to such activities."

This case is much more than a New Hampshire affair: it links together not only the debate over personal freedom but those over the Federal-State relationship, several relevant segregation decisions and the attitude toward the controversial Supreme Court.

Because last week's Supreme Court decision was based on lack of Federal jurisdiction, it is not the sell-out it is claimed to be. The appeal claimed that since in 1957 the legislature had changed the law under which Wyman was acting, Uphaus's conviction now had no force. But because the State Supreme Court had ruled that the change was only in wording, the Federal court had to have grounds of constitutional conflict to assert jurisdiction. It had denied itself such grounds when it declared in 1959 that governmental interest out-weighed the right of associational privacy in this kind of investigation.

The crux of the case is this 1959 decision. Justice Brennan--who read the latest dismissal but continued to protest the 1959 precedent--put very precisely the argument against the Court's action: "The record not only fails to reveal any interest of the state sufficient to subordinate appellant's constitutionally protected rights but affirmatively shows that the investigatory objective was the impermissible one of exposure for exposure's sake."

The limitation of Uphaus's freedom of association illustrates how little segregation and civil liberties decisions really impinge upon each other. When Alabama tried to force the NAACP to hand over membership lists, the Court answered that group privacy is indispensable to freedom of association. Since Wyman was cooperating with Attorney Generals from 37 states in compiling a blacklist, there is little reason why the Alabama decision should not apply to Willard Uphaus as well.

But the curious relationship between these two areas hits two ways, for it necessarily raises the question of what criticism and action should be taken against a court whose decisions have satisfied no one completely. While the Court has ruled that Uphaus must produce the names and letters, he has set himself above the Court because "he feels bound to a higher obligation even than the direction of the Court."

Yet this appeal to the superior authority of his conscience, the values of his religious group, and the Bible, is just the one made by defenders of segregation. There is a fundamental conflict here. The irony of this case is that in employing civil disobedience and challenging the authority of the Supreme Court--but not in just criticizing it--Willard Uphaus might in the long run impair its development as the defender of civil rights and civil liberties.