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the shafts of critics whose sincerity and attachment to the Constitution is beyond question—critics who have accused it of assuming functions of judicial review not intended to be conferred upon it, or of abusing those functions to thwart the popular will, and who have advocated various remedies taking a wide range.24a And it is hardly conceivable that the consequence of freeing the legislative branch from the restraint of the executive veto would be the end of constitutional government.24b By this discussion we certainly do not mean to indicate that we would favor such changes. Our preference and aversions have no bearing here. Our concern is with the extent of the allowable area of thought under the statute. We decide only that it is possible to advocate such changes and still be attached to the Constitution within the meaning of the Government's minimum test.
If any provisions of the Constitution can be singled out as requiring unqualified attachment, they are the guaranties of the Bill of Rights and especially that of freedom of thought contained in the First Amendment. Cf. Justice Holmes' dissent in United States v. Schwimmer, supra. We do not reach, however, the question whether petitioner was attached to the principles of the Constitution if he believed in denying political and civil rights to persons not members of the Party or of the socalled proletariat, for on the basis of the record before us it has not been clearly shown that such denial was a principle of the organizations to which petitioner belonged.
24a E. g., the recall of judicial decisions. See Theodore Roosevelt, A Charter of Democracy, S. Doc. No. 348, 62d Cong., 2d Sess. For proposed constitutional amendments relating to the judiciary and this Court see H. Doc. No. 353, pt. 2, 54th Cong., 2d Sess., pp. 144-64; S. Doc. No. 93, 69th Cong., 1st Sess, pp. 83, 86, 93, 101, 111, 12, 133.
24b For an account of the attacks on the veto power see H. Doc. No. 353, pt. 2, 54th Cong., 2d Sess., pp. 129–34.
Since it is doubtful that this was a principle of those organizations, it is certainly much more speculative whether this was part of petitioner's philosophy. Some of the documents in the record indicate that "class enemies" of the proletariat should be deprived of their political rights.25 Lenin, however, wrote that this was not necessary to realize the dictatorship of the proletariat.28 The Party's 1928 platform demanded the unrestricted right to organize, to strike and to picket and the unrestricted right of free speech, free press and free assemblage for the working class. The 1928 Program of the Communist International states that the proletarian State will grant religious freedom, while at the same time it will carry on antireligious propaganda.
We should not hold that petitioner is not attached to the Constitution by reason of his possible belief in the creation of some form of world union of soviet republics unless we are willing so to hold with regard to those who believe in Pan-Americanism, the League of Nations, Union Now, or some other form of international collaboration
25 ABC of Communism; Lenin, State and Revolution; Statutes, Theses and Conditions of Admission to the Communist International; Stalin, Theory and Practice of Leninism; 1928 Program of the Communist International.
28 "It should be observed that the question of depriving the exploiters of the franchise is purely a Russian question, and not a question of the dictatorship of the proletariat in general. ... It would be a mistake, however, to guarantee in advance that the impending proletarian revolutions in Europe will all, or for the most part, be necessarily accompanied by the restriction of the franchise for the bourgeoisie. Perhaps they will. After our experience of the war and of the Russian revolution we can say that it will probably be so; but it is not absolutely necessary for the purpose of realizing the dictatorship, it is not an essential symptom of the logical concept 'dictatorship,' it does not enter as an essential condition in the historical and class concept 'dictatorship.'” Selected Works, vol. VII, pp. 142-3. (Placed in evidence by petitioner.)
or collective security which may grow out of the present holocaust. A distinction here would be an invidious one based on the fact that we might agree with or tolerate the latter but dislike or disagree with the former.
If room is allowed, as we think Congress intended, for the free play of ideas, none of the foregoing principles, which might be held to stand forth with sufficient clarity to be imputed to petitioner on the basis of his membership and activity in the League and the Party and his testimony that he subscribed to the principles of those organizations, is enough, whatever our opinion as to their merits, to prove that he was necessarily not attached to the Constitution when he was naturalized. The cumulative effect is no greater.
Apart from the question whether the alleged principles of the Party which petitioner assertedly believed were so fundamentally opposed to the Constitution that he was not attached to its principles in 1927, the Government contends that petitioner was not attached because he believed in the use of force and violence instead of peaceful democratic methods to achieve his desires. In support of this phase of its argument the Government asserts that the organizations with which petitioner was actively affiliated advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence, and that petitioner therefore believed in that method of governmental change.
Apart from his membership in the League and the Party, the record is barren of any conduct or statement on petitioner's part which indicates in the slightest that he believed in and advocated the employment of force and violence, instead of peaceful persuasion, as a means of attaining political ends. To find that he so believed and advocated it is necessary, therefore, to find that such was a principle of the organizations to which he belonged and then impute that principle to him on the basis of his
activity in those organizations and his statement that he subscribed to their principles. The Government frankly concedes that "it is normally true . . . that it is unsound to impute to an organization the views expressed in the writings of all its members, or to impute such writings to each member ..." 27 But the Government contends, however, that it is proper to impute to petitioner certain excerpts from the documents in evidence upon which it particularly relies to show that advocacy of force and violence was a principle of the Communist Party of the United States in 1927, because those documents were official publications carefully supervised by the Party, because of the Party's notorious discipline over its members, and because petitioner was not a mere "rank and file or accidental member of the Party," but "an intelligent and educated individual” who "became a leader of these organizations as an intellectual revolutionary.” 28 Since the immediate problem is the determination with certainty of petitioner's beliefs from 1922 to 1927, events and writings since that time have little relevance, and both parties have attempted to confine themselves within the limits of that critical period.
For some time the question whether advocacy of governmental overthrow by force and violence is a principle of the Communist Party of the United States has perplexed courts, administrators, legislators, and students. On varying records in deportation proceedings some courts have held that administrative findings that the Party did so advocate were not so wanting in evidential support as to amount to a denial of due process, 2° others have held
27 Brief, pp. 23–24. 28 Brief, pp. 25–26.
29 In re Saderquist, 11 F. Supp. 525; Skeffington v. Katzeff, 277 F. 129; United States v. Curran, 11 F. 2d 683; Kenmotsu v. Nagle, 44 F. 2d 953; Sormunen v. Nagle, 59 F. 2d 398; Branch v. Cahill, 88 F.2d 545; Ex parte Vilarino, 50 F.2d 582; Kjar v. Doak, 61 F. 2d 566;
to the contrary on different records,80 and some seem to have taken the position that they will judicially notice that force and violence is a Party principle.81 This Court has never passed upon the question whether the Party does so advocate, and it is unnecessary for us to do so now.
With commendable candor the Government admits the presence of sharply conflicting views on the issue of force and violence as a Party principle,82 and it also concedes that "some communist literature in respect of force and violence is susceptible of an interpretation more rhetorical than literal.” 83 It insists, however, that excerpts from the documents on which it particularly relies, are enough to show that the trial court's finding that the Communist Party advocated violent overthrow of the Government was not "clearly erroneous," and hence can not be set aside.34 As previously pointed out, the trial court's findings do not indicate the bases for its conclusions, but the documents published prior to 1927 stressed by the Government, with the pertinent excerpts noted in the margin,
Berkman v. Tillinghast, 58 F. 2d 621; United States v. Smith, 2 F. 2d 90; United States v. Wallis, 268 F. 413.
80 Strecker v. Kessler, 95 F. 2d 976, 96 F. 2d 1020, affirmed on other grounds, 307 U. S. 22; Ex parte Fierstein, 41 F. 2d 53; Colyer v. Skeffington, 265 F. 17, reversed sub nom. Skeffington v. Katzeff, 277 F. 129.
31 United States ex rel. Yokinen v. Commissioner, 57 F. 2d 707; United States v. Perkins, 79 F. 2d 533; United States ex rel. Fernandas v. Commissioner, 65 F. 2d 593; Ungar v. Seaman, 4 F. 2d 80; Ex parte Jurgans, 17 F. 2d 507; United States ex rel. Fortmueller v. Commissioner, 14 F. Supp. 484; Murdoch v. Clark, 53 F. 2d 155; Wolck v. Weedin, 58 F. 2d 928.
82 Brief, p. 60.
83 Brief, p. 77. See also Colyer v. Skeffington, 265 F. 17, 59, reversed sub nom. Skeffington v. Katzeff, 277 F. 129. And see Evatt, J., in King v. Hush (Ex parte Devanny), 48 C. L. R. 487, 516–18.
84 Rule 52 (a) of the Rules of Civil Procedure, 28 U.S. C. A., following $ 723 (c).