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123 5. Dennis v. United States (1951); the Rosenberg Case (1950–1953) I A dozen leaders of the Communist Party of the United States were indicted in July 1948 for violation of the conspiracy provisions of the Smith Act (the Alien Registration Act of 1940). “As the first federal peacetime sedition statute since 1798,” the Encyclopedia of the American Constitution recalls, “the Smith Act in its most significant section made it a crime to ‘knowingly, or willfully, advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force and violence.” And, like the Sedition Act of 1798, this 1940 legislation was associated with measures designed to supervise the aliens among us, which seems to be a recurrent concern in this Country of immigrants, with the older immigrants and their descendants often being suspicious of the newer ones (whether “documented” or “undocumented”). Here is the Government’s summary of its charges for the trial, which was to be conducted in New York City: The indictment charged that from April 1, 1945, to the date of the indictment [the defendants] unlawfully, wilfully, and knowingly conspired . . . (1) to organize as the Communist Party of the United States of America a society, group and assembly of persons who teach and advocate the overthrow and destruction of the United States by force and violence, and (2) knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. A verdict of guilty, as to all of the defendants, was returned by the jury on Part Two 124 October 14, 1949. The United States Court of Appeals, with an Opinion by Chief Judge Learned Hand, affirmed these convictions. The tumultuous trial had extended over nine months. It had not helped the Dennis defendants that they drew the trial judge that they did, which helped bring out the worst in them, their lawyers, and the system itself. Nor did it help them, or the Country, that the United States Supreme Court reviewed their convictions, as well as the applicable statute, after the Korean War had begun. II It can be questioned (as is implicit in Justice Hugo L. Black’s observation , “So long as this Court exercises the power of judicial review of legislation . . .”) whether any Court of the United States should review, for constitutionality, any Act of Congress. Certainly, there is no indication in the Constitution itself that Congressional legislation should be subject to Judicial Review, whatever the Courts might have been expected to be able to do to protect their own prerogatives. Presumably appellate courts had been intended to provide authoritative interpretations , at least for Judicial purposes, of Congressional enactments, and intended as well to assess the records of trials both for the adequacy of the evidence relied upon and for the fairness of the process that had been used. Whether or not Judicial Review is authorized, with respect to the constitutionality of Acts of Congress, Courts have long assumed that it is. In sedition cases, judges have, over the years, tended to side with the Government . That is, judges do tend to be moved by the patriotic passions that the Country at large is moved by. It sometimes seems that it would be better if judges did not routinely address constitutionality issues explicitly, especially when the First Amendment is at issue. Their more or less automatic endorsement of the constitutionality of contested sedition measures tends to relieve legislators and other citizens (in government and out) of their own duty to think about the constitutionality of the measures that they deal with. That is, the Supreme Court, in the principal sedition cases in the twentieth century , tended to reassure, if not even to provide useful slogans and judgments for, those among us who have been determined to suppress any sedition that they have come to believe a threat to the Country. 5. Dennis v. United States; the Rosenberg Case 125 III How judges are routinely induced to go along with campaigns of suppression , however much they resist particular modes of expressing such acquiescence, may be seen in what happened to Learned Hand, who had earned the reputation of being somewhat skeptical about the reign of suppression which preceded him. This is how Justice William O. Douglas, in his 1969 Brandenburg v. Ohio Concurring Opinion, speaks of Judge Hand’s involvement in Dennis: Judge Learned Hand, who wrote for the Court...

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Additional Information

ISBN
9780813131979
Related ISBN
9780813124247
MARC Record
OCLC
607701092
Pages
336
Launched on MUSE
2012-01-01
Language
English
Open Access
No
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