The Supreme Court Must Be Purged

HE PLACE of the judiciary in government is a subject of extraordinary interest at this time. It commands thoughtful and immediate consideration by all people who love freedom and want to keep it.

The framers of the Federal Constitution drew heavily on American, English and world history when they came to frame the judiciary provisions of 1787. Article III of the Federal Constitution vests all of the judicial power of the United States in courts where judges must be emancipated from the fear of loss of tenure or pay except for misbehavior, in the hope that such judges, amenable to none except to the people by impeachment would obey their oaths to support a Constitution which assures their tenure and pay, and thus preserve for all time that freedom for all which is protected by the document that protects their tenure and purses.

A nation which easily casts itself loose from the traditions of the past loses steadiness of purpose, and ultimately wearied by excitement, falls into the arms of despotism.

A patriotic, learned, upright and God-fearing judiciary, emancipated from control, except by the people, is the pride of creation and the finest flower of history. A judiciary composed of servile, incompetent, and Godless judges has always ben the foul and effective tool of tyrants. The history books describe no characters of more infamy than the Jeffries' and the Scroggs'.

After James I, founder of the dynasty of infamous English tyrants known as The Stuart Kings, came to the throne in 1603, he made this significant statement:

The robes of the judiciary have, in all ages, lent an aura of respectability to the endeavors of designing men to assume and to exercise arbitrary power over the lives, liberties and properties of people. As Lord Camden said in the case of Hindson v. Kersey (8 Howell State Trials 57) in 1680: "The discretion of a judge is the law of tyrants."

Law is an instrument of politics . . . There are libraries full of books trying to prove the contrary, but it is known to be a legal fiction.

In an address by E. Blythe Stason, Dean of the University of Michigan Law School before the Chicago Bar Association, published in the February 1958 issue of the Journal of the American Judicature Society, he emphasized that in Russia courts and judges are mere agencies of administration. He quoted from a leading textbook on the Soviet Judiciary:

. . . the judges of the Soviet Courts . . . carry out unswervingly the policy of a totalitarian dictatorship as expressed in the statutes of the Soviet state.

Legal training is not necessary to attaining a position on the bench in the U.S.S.R. Indeed, the level of even the general education of the Soviet judge is rather low. As late as 1947, a report from a convention of Soviet jurists stated that only 14.0% of the judges have legal education on the university level, and only 21.8% have received legal training in secondary schools. Thus, it would appear that about 64% of Soviet judges . . . lack any legal training whatsoever.

The ministers of justice and the heads of the Regional Bureaus of Justice are . . . authorized to impose disciplinary penalties upon judges for violation of 'labor discipline,' or to recommend the dismissal of judges to the local soviets. Under such conditions the judge becomes more or less a pawn in the hands of a political administration. The desire for a bench made up of persons of independence and ability seems not to have penetrated the steppes of the Union of Soviet Socialist Republics.

Communism may be safely and easily instituted where a congenial judicial climate exists. Communism cannot be instituted nor can it live in any country where all laws are made with the consent of the people, by representatives who may be defeated at the next election, and where learned, Godly and honorable judges, independent of all except the people, interpret the law.

The people consent to laws in two ways only: Either laws grow out of the immemorial customs of the people or they are made by people themselves through representatives elected to assemblies for that purpose. James I and every other despotic English king as well as Hitler, Mussolini, Stalin -- and Roosevelt and Eisenhower too -- learned from history that government according to the will of rulers cannot be instituted or maintained where judges are selected by reason of their virtue and learning in law, in the science of government, in history and in the fundamental principles of freedom and where they are emancipated from all controls except control by the people.

The indexes to legal periodicals in America have carried my name frequently during the last 10 years in connection with articles based on original research, in defense of the federal judiciary and its constitutional powers. The subject has engaged my interest deeply because the judiciary is the key to liberty under law as it is the key to despotism. Hence what is here said is not said lightly.

The condition of the federal judiciary in America is fast approaching that which exists in Russia. For example, who can explain with reason, the appointment of Earl Warren as Chief Justice? President Eisenhower is said to have tried and failed. What was there in the background, legal training or character of Warren to cause President Eisenhower to pass over every good lawyer and every good judge in America to elevate him above all of them to the highest judicial position in the world?

In all literature no clearer description of Earl Warren may be found than that spoken of a bureaucrat on the floor of the United States Senate in 1825 by John Randolph of Roanoke:

His mind is like the Susquehanna flats: naturally poor, and made less fertile by cultivation. Never has ability so far below mediocrity been so richly rewarded since Caligula's horse was made consul.

The legal experience of Earl Warren, with that of two other members Supreme Court does not add up to enough to make one of the three eligible to become a superior court judge under the constitutions of many American states.

In Volume 1, page 49, of his History, Tacitus seemed to describe such a ruler as would innocently name such a man to such a post:

He seemed greater than a private citizen while he was one, and by the consent of all would have been considered capable of government, if he had not governed.

In recent Hearings before the Internal Security Subcommittee of the Judiciary Committee of the United States Senate it was brought out that all except two of the present Supreme Court judges have habitually and consistently voted in favor of communists and communist causes. Part II of the Hearings on Senate Bill 2646 lists numerous cases in which the issue was clear-cut between that which was American and anti-communistic and that which was unAmerican and communistic. It carries a tabulation of the votes of the present judges in ten cases. To those cases ten have been added, making twenty for a new tabulation. All of these twenty cases appear in bound Volumes 76 and 77 of the Supreme Court Reporter, and the unbound advance sheets, later to be Volume 78. The oldest of the 20 cases considered is not more than 2 years. Here is the roll call of judges in the 20 recent cases involving communists and the internal security of our country.

(1) In the Nelson Case (decided April 2, 1956) the Court held that the American states, which created the federal government and whose republican forms of government are guaranteed by Federal Constitution, may no longer exercise the right of self-defense against communistic traitors seeking to undermine and destroy our free state governments. The Benedict Arnold's, Alger Hiss', and American Quisling's are now the wards of Warren and his Court.

(2) In the Slochower Case (decided April 9, 1956) states and municipalities were denied the power to discharge communistic teachers who refused to admit or deny their disloyalty. Those who shape the minds of our children may not be discharged for silence in a matter or charge involving simply integrity and as to which any honorable man would welcome a chance to speak.

(3) In the Communist Party Case (decided April 30, 1956) the Court held that a finding by the Subversive Activities Control Board, affirmed by the Circuit Court of Appeals for the District of Columbia, to the effect that the Communist Party of the United States was a "Communist-action organization" within the meaning of the federal law, was a finding based on "tainted evidence" where it appeared that one or more witnesses might possibly have sworn falsely, even though there was ample evidence independent of such witnesses to demand the conclusion. With becoming modesty, the Court said:

Fastidious regard for the honor of the administration of justice requires the court to make certain that the doing of justice [to communists] be made so manifest that only irrational or perverse claims of its disregard can be asserted.

(4) In the Cole Case (decided June 11, 1956) the Court denied to the federal government the power to discharge self-confessed communist employees unless they hold "sensitive positions" -- a phrase no one can define.

(5) In the Ben Gold Case (decided January 28, 1957) the Court reversed the conviction of a communist perjurer who had falsely denied under oath that he was a member or supporter of the Communist Party, because the F.B.I. had made inquiries of some of the individuals who were jurors in that case as to their qualifications to try an entirely different and unrelated case involving another communist.

(6) In the Witkovich Case (decided April 29, 1957) the Court denied to the federal government the right to question an alien, ordered to be deported, as to whether or not he had attended communist meentings while awaiting deportation.

(7) In the Konigsberg Case (decided May 6, 1957) the Court held that a state may not deny a license to an applicant to practice law who refuses to deny membership in the Communist Party.

(8) In the Schware Case (decided May 6, 1957) the Court held that a state may not raise or enforce effective barriers to deny to communists admission to the practice of law in the courts of the states, and that to be a communist is not a stigma.

(9) In the Antonia Sentner Case (decided May 20, 1957) the Court enlarged its holding in the Witkovich Case and rendered ineffective the laws carefully drafted by Congress to protect our country from alien subversives. The Court ruled that the Attorney General had no authority to require an alien, who slipped into this country without right and who was awaiting deportation, to desist from further communist activities.

(10) In the Jencks Case (decided June 3, 1957) the Court held that the federal government may not withhold from communists, on trial for their treasonable perfidy, secret information gathered by investigators for the government, so that American patriots are effectively prevented now from going to the aid of their country and informing against traitors, for fear of retaliation by communist conspirators.

(11) In the Yates Case (decided June 17, 1957) commonly known as The Fourteen California Communists Case, the Court held that the teaching and advocacy of the violent overthrow of the government of the United States, even "with evil intent" was not punishable under the Smith Act if it was "divorced from any effort to instigate action to that end." In other words, communist traitors were rendered immune from federal prosecution unless such traitors are caught in the act such as lighting a fuse. Under that decision Benedict Arnold would have gone free during the American Revolution because the only evidence against him was just a plan "divorced from any effort" found in the boot of André, a British captain. If Alger Hiss were to be tried again, presumably the stolen secrets in pumpkins would not count. Under that decision, thrusting a dagger into the back of one's country doesn't count unless it goes through the heart.

(12) In the Service Case (decided June 17, 1957) the Court denied to the Secretary of State "the absolute discretion" given to him by law to fire any employee "in the interest of the United States." Sexual "queers" and communist traitors may now work like maggots among the secrets in our State Department without fear of losing their jobs. In that particular case the F.B.I. had a recording of a secret conversation between Service and the editor of a communistic magazine, made in the latter's hotel room. The defendent may yet be heard from that recording whispering about certain military plans of which he knew and which were "very secret."

(13) In the Watkins Case (decided June 17, 1957) the Court held that the unAmerican Activities Committee of the House of Representatives was powerless to pursue simple inquiries that have been found essential to the existence of every free government in the history of the world. There the Court held that a witness who admitted "I frankly cooperated with the Communist Party" should not be required to name his associates. Six members of the Court confessed their inability to distinguish between that which is "American" and that which is "unAmerican" and ridiculed the idea that communism may be "unAmerican." The Court violated or disregarded the plain and unambiguous provisions of the Constitution in its zeal to curb the constitutional powers of the House of Representatives.

(14) In the Sweezy Case (decided June 17, 1957) the Court denied to the State of New Hampshire the right to question one of its University professors as to his advocacy of Marxism or his belief in communism, although the Constitution clearly leaves such matter exclusively to the states.

(15) In the Raley, Stern & Brown Case* (decided June 24, 1957) the Court denied to the State of Ohio the right and power to require of its citizens to answer questions about communist activities, asked of him by the Ohio unAmerican Activities Commission, as authorized by the valid laws of Ohio and as to which the Supreme Court had no concern or jurisdiction.

(16) In the Flaxer Case* (decided June 24, 1957) the Court set aside the contempt conviction of a communist who refused to produce records of his communist activities, subpoenaed by the Internal Security Committee of the United States Senate, even though the Constitution plainly says that each house of Congress shall make its own rules and in spite of the fact that the 5th Amendment, by its words and history, has no application to any proceeding except in a criminal case in a judicial proceeding.

(17) In the Sacher case* (decided June 24, 1957) the Court reversed the contempt conviction of an attorney-at-law who refused to tell the Senate Internal Security Subcommittee whether he was or ever had been a communist. There again the Court usurped rule-making power from the Senate and violated the Constitution.

(18) In the Rowoldt Case (decided December 9, 1957) the Court cancelled the deportation order of an alien communist who entered the United States in 1914 and who admitted that he had been a member of the Communist Party and a worker in communist causes such as a salesman of communist literature during many of those years. The Court held that before an act of Congress designed to protect this country against communist subversives could be applied against such an alien, it must be made to appear affirmatively that activity in the Communist Party was a "meaningful association" with "political implications" and that the alien "committed himself to the Communist Party in consciousness that he was joining an organization . . . which operates as a distinct and active political organization." Who ever heard of such a rule as that? Who ever heard of anyone so ignorant as not to know the answer to such a fool question, without any proof whatsoever?

(19) In the Heikkinen Case (decided January 6, 1958) the Supreme Court reviewed and reversed the conviction of an alien who was conclusively shown to have been a member of the Communist Party from 1923 to 1930, '32, '47 and '48, and who had gone to a communist school in Russia between 1932 and 1935 to learn the newest techniques for destroying free government in America. This communist traitor was convicted in a Federal District Court of Wisconsin and his conviction was upheld by the Seventh Circuit Court of Appeals under the Immigration Act of 1917 which made it unlawful for an alien to wilfully fail or refuse to leave the United States within six months on order of deportation, or to wilfully fail or refuse to make application for travel or other documents necessary for departure, or who seeks to hamper his own deportation, or who wilfully fails or refuses to present himself for deportation at a time when ordered to do so. The reason given by the Court for keeping that man in America was that the government did not show the willingness of any country to receive him! Under that ruling communists may not be deported to Russia if Russia will not receive them! Even a sociological judge should know that Russia will never accept one of its deported agenst so long as that agent has a license from the Supreme Court of the United States such as was given in the Witkovich case and the Sentner case to roam at large and ply his treasonable trade in the country it seeks to destroy.

(20) In the Harmon & Abramowitz Cases (decided as companion cases on March 3, 1958) the Court required Wilber Brucker, Secretary of the Army, to cancel what is known as "General discharge under Honorable Conditions" for Harmon and Abramowitz and give to them an unqualified "Honorable Discharge," which is the kind received by every honorable soldier that has ever tendered his life or spilled his blood at the altar of American freedom. The reason Harmon and Abramowitz were given qualified discharges was because of communist activities on their part. Those traitorous soldiers did not contest the ruling that their retention in the army was inconsistent with national security. What they contended and what the Supreme Court held was that to be and to play the part of a communist traitor in the United States is "Honorable" -- with a capital "H"!

Eighteen of the cases listed above were cases in which the Supreme Court reversed the rulings of lower federal courts or the highest courts of sovereign states. Only two were cases in which lower courts affirmed and in each of these cases the lower courts would certainly have held otherwise, except for previous decisions of the Supreme Court which were thought to be controlling.

No fair person can read those twenty cases without suspecting that there are at least five members of the Court who have a fellow feeling for communists. What else can explain why they exhibit evidence of personal insult and wounded feelings when a communist is assailed? Why they should be so solicitous about the welfare and safety of communists is a question for determination by those in the Congress who have the duty and power to investigate.

On February 22, 1957,** the General Assembly of Georgia adopted a Resolution requesting that impeachment proceedings be instituted against six members of the Supreme Court by reason of high crimes, misdemeanors, and misconduct, as set forth in that Resolution. There was a hue and cry by some who never read the Resolution. Fellow travelers and the ill informed tried to laugh it off -- and everyone was ill informed who depended on the newspapers for information.

The Georgia Impeachment Resolution cited and analyzed 18 cases in which it was alleged that six members of the Court had been guilty of such high crimes and misdemeanors as to demand impeachment. Only two of those 18 cases are listed above. They are the Nelson Case and the Slochower Case. A new Resolution should list at least 40 recent cases that convict certain Supreme Court judges of such "misdemeanors" as demands their removal from the bench, in the interest of the internal security of the United States, if for no other.

After referring to some of the cases analyzed above, one of the witnesses before the Internal Security Subcommittee of the Senate, a few weeks ago, an outstanding student of the Constitution and lawyer of Pennsylvania said:

Can the logical and orderly sequence of these cases be but an accident? There area not a few . . . who suspect one member of the United States Supreme Court as being under communist discipline, and another as being subject to blackmail, and another knowingly following their desires out of political ambitions and another as being sympathetic with communism because of his associations with so many of them as personal friends, and including members of his family, and a fifth as being motivated by a resentment of a religious nature.

The late H.L. Mencken pointed in the same direction in his secret Notebook, published recently under the title Minority Report. On page 172, he said:

Probably the worst thing that has happened in America in my time is the decay of any confidence in the courts. No one can be sure any more that in a given case they will uphold the plainest mandate of the Constitution. On the contrary, everyone begins to be more or less convinced in advance that they won't. Judges are chosen not because they know the Constitution and are in favor of it, but precisely because they appear to be against it.

If it had not been made to appear that some of the men named to the Court were violently against the Constitution, as Mencken said, it is unlikely that they would have been appointed. Not one man on the Court had, before his appointment, ever uttered a word or written a sentence that was ever published, so far as we can find, evidencing that he had studied the Constitution, understood it, and was in favor of it.

If there is any living man today who should know something about the communist conspiracy, that man should be John Edgar Hoover, Director of the Federal Bureau of Investigation. At the National Convention of the American Legion in 1957, he alluded to some of the decisions of the Supreme Court which give aid and comfort to the communist enemy, saying:

We face a regenerated domestic branch of the international conspiracy, making plans to exploit recent court decisions and highly optimistic for the future.

Commenting on some of those decisions George Sokolsky, the noted newspaper columnist, and a Russian himself, who learned about communism at its source, said:

When, in a court, the United States is consistently the loser, the subject requires very profound consideration. Maybe the United States needs an American Supreme Court.

After the decisions of May 17, 1957, which deprived our government of the essential means for defending itself against traitors, Congressman Howard W. Smith, author of the Smith Act, said:

In decision after decision, the Warren Supreme Court has befriended the Communists and their Kremlin masters, and has weakened the defenses of the American people against this enemy.

Those quotations, with many others of like tenor, may be found on pages 290 and 291 of part II of the published Hearings referred to above.

Shortly after the decisions of May 17, 1957, Miss Stephanie Horvath, an undercover detective of the New York City Police Department, testified before the Internal Security Subcommittee of the Senate. Her testimony may be found on page 4571 of Part 78 of the Subcommittee Hearings. She testified that she attended a communist meeting in New York City, held at Carnegie Hall on July 24, 1957 and that she made stenographic notes of the speeches there.

John T. McManus, the brazen editor of the pro-communist National Guardian and long known for his communist associations was heard to say:

It is, in my opinion, no accident that the Warren Court -- and Warren is no accident either -- had the courage and determination to right the wrongs of the Vinson Court. . . .

I think we must look back also over the behavior of some of the Federal judiciary, and set aside a special niche for Justices Black and Douglas . . .

When one of the leaders in the movement to substitute a government of flesh for a government of law boasts that "Warren is no accident" and is in their hands, and when Warren acts like he is no accident and is in their hands, it is time for the representatives of the people to start asking a few questions of those who should know the answers. It is time also for the people to replace those members of the Congress who are afraid to ask questions.

In a series of lectures at Harvard University published only a few weeks ago, Judge Learned Hand of New York, pointed out many instances in which the present Supreme Court has leaped the bounds of the Constitution to roam at large, tinkering here, experimenting there and destroying landmarks everywhere. Commenting on the constitutional barriers that the Supreme Court laid waste so ruthlessly to in the School cases, Judge Hand thought it "curious" that the Court could not see as big a thing as the 5th sections of the 14th Amendment which denied to it jurisdiction to decide as it did.

I cannot frame any definition that will explain when the Court will assume a role of a third legislative chamber and when it will limit its authority to keeping Congress and the states within their accredited authority. . . . I hope that it may be regarded as permissible for me to say that I have never been able to understand on what basis it does or can rest except as a coup de main.

The Georgia Impeachment Resolution cites the cse of Bridges v. Wixon (decided on June 18, 1945). There is a strange connection between that case and the School Case that was not noticed in the Georgia Resolution nor elsewhere.

In the Bridges Case the Supreme Court reversed an order requiring the deportation of the alien Harry Bridges, because certain harmless, inconsequential, unsworn, hearsay evidence was admitted in the record against Bridges. There the Court held that the use of such harmless, hearsay and nonlegal evidence "runs counter to the notion of fairness on which our legal system is founded." Thus the communist Bridges was saved to serve the cause of communism in America because something was allowed to creep into the record against Bridges that had no business there. Bridges was a communist -- mind you!

In National Council of American-Soviet Friendship, Inc. v. McGrath (decided April 30, 1951) a whole nest of communists was involved. In that case the Supreme Court held that the use of nonlegal hearsay evidence to blacklist a communist organization was "abhorrent to free men."

However, in the School Cases of May 17, 1954, the Court based its decision entirely and exclusively upon nonlegal hearsay and unsworn evidence -- not made a part of the records below but brought into the Supreme Court through a back door -- not through the Clerk's Office -- by sociological tramps -- and secretly slipped into the record by the Court itself. Thus we have one rule for communists in America and an entirely different and secretive rule for Americans in America. Communists are now the cherished mentors and privileged pets of the Supreme Court judges who violate elemental rules of evidence to do for them that which would be "abhorrent to free men" if done against them.

The hearsay brought in by the Court itself in footnote 11 of the Brown School Case was "claims of social scientists" as to the dependence of individual Negroes on the position of his racial group in the community. In the Beauharnais Case (decided April 28, 1952) where racial questions were involved, Justice Frankfurter, speaking for a majority of six judges, rejected sociology, ecology and anthropology as unworthy of consideration by upright judges in racial matters, saying:

Only those lacking responsible humility will have a confident solution for problems as intractable as frictions attributable to differences of race . . . It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community.

The lesson and the moral taught by the Supreme Court in those cases is that hearsay in any form may not be used against communists, or communist causes, but hearsay compounded with sociology and psychology may be freely used in favor of communists or communist causes -- such as race-mixing for everyone except themselves.

We are nearing the end of a strange revolution and don't realize it. Successful revolutions do not come suddenly and dramatically. Revolutions are won or lost in the hearts and minds of men, long before they are dramatized on battlefields or consolidated in constitutional conventions. Successful revolutions result from long and careful preparation. Outbreaks of violence are but the outward evidence of change. They are but the breakers on the shores of time. The American Revolution began 16 years before the Declaration of Independence and ended 15 years later when the Bill of Rights was adopted on December 15, 1791. We have lost the Revolution. Our Constitution, our country and our freedom are ripe fruit for communist picking.

It does not require unusual mental astuteness for a hunter to determine the species of an animal by the footprints he makes as he passes. Indians could tell at a glance. They could track white men by the leaves they disturbed as they passed. To one who knows a smattering of history and has brains enough to reason, that which our Supreme Court has done and is doing is not difficult to understand. Some of those judges think they have found the bag of gold at the end of the rainbow. The gold at the end of their rainbow is in the mines of Siberia, and "Our harps are upon the Willows"!

Our Constitution contains the seeds of its own destruction. It also contains the seed of its own survival. The members of the Congress may yet restore constitutional government in America by doing what they said they would do when they swore they would support the Constitution. Some cry: "The Court must be curbed"! That is not enough. The Court must be purged!

The Potomac in olden days was associated with grand men like George Mason and George Washington. One was the brains and the other the sword of the Revolution. In October, 1792, George Mason was buried at the edge of an old field near Gunston Hall 13 miles down from Mount Vernon. He had penned the most influential documents ever penned by man. He lived barely long enough to see the Bill of Rights he had written and fought for adopted as the first ten amendments.

On the following day the five sons and four daughters gathered in the library of Gunston Hall for the reading of his solemn will. It had been written in 1773, just as the Revolution appeared to be one that would result in the loss of much American blood. On paragraph of that will mirrored the man:

I recommend it to my sons from my own experience in life, to prefer the happiness of independence and a private station to the troubles and vexation of publick business, but if either their own inclinations or the necessity of the times should engage them in public affairs, I charge them on a father's blessing never to let the motives of private interest or ambition induce them to betray, nor the terrors of poverty and disgrace, or the fear of danger or of death, deter them from asserting the liberty of their country and endeavoring to transmit to their posterity those sacred rights to which themselves were born.

If a majority of our representatives in Congress would find themselves in Mason's mirror there would be no qualms about curbing the Court now, and purging the Court would follow in due course in accordance with Mason's liberal plan of impeachment for "misdemeanors" or misconduct which was embodied in Section 4 of Article II of the Constitution in 1787. Warren hasting was then being impeached for "High crimes and misdemeanors" in the British Parliament. The impeachment provision proposed by George Mason in Philadelphia was adopted on September 8, 1787. At that time as now, the word "misdemeanor" meant misbehavior or misconduct. That was first made plain when Madison's Secret Notes were published around 1835. John Marshall and Jefferson, for example, were dead before that secret was revealed.

In the debate on the impeachment clause Mason pointed out the necessity of making impeachment easy in order, as he stated, that "attempts to subvert the Constitution" might be conveniently and adequately dealt with by the people, acting through their representatives in the Congress. Over violent objection by Madison that Mason's proposal "will be equivalent to a tenure during the pleasure of the Senate," the proposal was adopted by a vote of 8 states to 3. The delegates from Virginia stood with Mason against the so-called "father of the Constitution" in 1787. May God give us men with courage to stand with him now to thwart "attempts to subvert the Constitution" by the guardians of the Constitution.