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What the Warren Court Had to Say About McCarthyism

The author, in 2020, graduated from the University of the Philippines with a Juris Doctor degree. He was also a member of their Law Journal.

Wisconsin Senator Joseph McCarthy

Wisconsin Senator Joseph McCarthy

Stoking the Embers of the Red Scare

On 09 February 1950, Senator Joseph McCarthy of Wisconsin was on a mission.

According to Robert Griffith, in his book The Politics of Fear: Joseph R. McCarthy and the Senate, Senator McCarthy gave a rousing Lincoln Day speech to the Republican Women's Club of Wheeling, West Virginia. Lincoln Day is the primary annual celebration and fundraising event of many Republican Party organizations in the United States.

Griffith wrote, "According to the radio and newspaper men who followed his rough draft, the senator [waved] aloft a sheaf of paper and shouted, 'I have here in my hand a list of 205—a list of names that were made known to the Secretary of State as being members of the Communist Party and who nevertheless are still working and shaping policy in the State Department.'"

The Associated Press wire service carried the story across the country. While some of the major papers like the New York Times dismissed the story as the usual Lincoln Day enthusiasm, papers like the Denver Post and Chicago Tribune carried it.

In truth, Senator McCarthy had no list at all.

When the senator was pressed about the list of communists by reporters who surrounded him in Denver, the Denver Post reported he "discovered he had left his baggage on the plane." There was also apparently a picture of him peering into his briefcase for the list.

Senator McCarthy nevertheless experienced a meteoric rise in popularity.

Anti-communist literature targeting the entertainment industry

Anti-communist literature targeting the entertainment industry


Political journalist Richard Rovere, in his biography of the senator, Senator Joe McCarthy, quoted Samuel Lubell in Revolt of the Moderates when he wrote that McCarthy gained the following of "a coalition of the aggrieved—of men and women not deranged but deeply affronted by various tendencies over the preceding two or three decades: toward internationalism, [x x x]; toward classlessness."

Certain sentiments, like opposition to the New Deal, social welfare provisions, child labor laws, and women's suffrage helped McCarthyism gain a greater following. These reforms were called communist or socialist to repel any favor towards them.

Professor Emeritus Richard M. Fried, who retired in 2009 and taught History at the University of Illinois at Chicago, wrote in his book Nightmare in Red: The McCarthy Era in Perspective, “Despite communism’s feebleness, its opponents did not rest. Foes of reform found anticommunism too useful. Critics reviled as a Red plot the child labor amendment that Congress passed in 1924. One group warned that it would nationalize children. [x x x] Feminist causes were also slathered with a red brush. The National Association Opposed to Woman Suffrage, which led the fight against the Nineteenth Amendment, argued that bolshevism inspired the unnatural pursuits of feminist reformers.”

Support for McCarthyism would eventually decline due in part to the decisions of Chief Justice Earl Warren's Supreme Court. Rovere wrote, "[T]he United States Supreme Court took judicial notice of the rents McCarthy was making in the fabric of liberty and thereupon wrote a series of decisions that have made the fabric stronger than before."

The Warren Court in 1958

The Warren Court in 1958

Slochower v. Board of Higher Education of New York City (1956)

In 1952, a committee of the US Senate held open hearings in New York City. The committee sought to investigate "subversive influences" in the American educational system. Harry Slochower, a tenured professor, invoked his right against self-incrimination when he was called to testify.

He was fired.

Section 903 of the Charter of the City of New York at the time provided that whenever an employee of the City utilized the privilege against self-incrimination to avoid answering a question relating to his or her official conduct, he or she was to be terminated.

The professor challenged its constitutionality and won. The Court ruled, "[W]e must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment [x x x] The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury."

Cole v. Young (1956)

Kendrick Cole was summarily suspended from his civil service position as a food and drug inspector on charges of "close association with alleged communists and an allegedly subversive organization". Later, he was dismissed on the ground that his continued employment was not "clearly consistent with the interests of national security."

The Civil Service Commission, the district court of Columbia, and the Court of Appeals of the same district all ruled against him.

But the Supreme Court ruled in Cole's favor. It held that the termination of an employee under the specific law used, without a determination that his or her position was one in which he or she could adversely affect national security, was invalid. The Court ruled that the law's use of "national security" only relates to the nation's safety from internal subversion and external aggression, and not in the sense of its general welfare.

This decision helped lessen undue discrimination in the workforce.

Chief Justice Earl Warren

Chief Justice Earl Warren

Yates v. United States (1957)

Fourteen officials of the US Communist Party in California were convicted under the Smith Act for allegedly conspiring (1) to advocate and teach the overthrow of the government and (2) to organize a society of persons which shall so advocate and teach.

The Supreme Court, ruling 6-1, reversed and remanded. "The Smith Act does not prohibit advocacy and teaching of forcible overthrow of the Government as an abstract principle, divorced from any effort to instigate action to that end." The Court thus distinguished this from "advocacy of action", which it noted was "few and far between."

The ruling protects such beliefs and speech, unless they call for concrete action, of course.

For Justice Black, in his separate opinion, he wanted to acquit them all outright on Free Speech grounds. "When the propriety of obnoxious or unorthodox views about government is in reality made the crucial issue, as it must be in cases of this kind, prejudice makes conviction inevitable except in the rarest circumstances."

Kent v. Dulles (1957)

Rockwell Kent wanted to go to Europe to paint but was refused a passport. "The Secretary of State denied passports to certain persons because of their alleged Communistic beliefs and associations and their refusal to file affidavits concerning present or past membership in the Communist Party."

They were refused travel documents to supposedly prevent them from furthering communist causes.

The Court held that, "The right to travel is a part of the 'liberty' of which a citizen cannot be deprived without due process of law."

Six years later, in Aptheker v. Secretary of State, the Court ruled as unconstitutional the challenged section of the Subversive Activities Control Act of 1950.

"Section 6 is unconstitutional on its face, for it too broadly and indiscriminately transgresses the liberty guaranteed by the Fifth Amendment." [x x x] "Congress could have chosen less drastic means of achieving the national security objective without such sweeping abridgment of liberty."

Poster in San Francisco Calling for Chief Justice Warren's Impeachment: Here he is accused of subversion, "Racial Mongrelization", compelling whites to mix with ******* in school, and imposing judicial tyranny among white southerners.

Poster in San Francisco Calling for Chief Justice Warren's Impeachment: Here he is accused of subversion, "Racial Mongrelization", compelling whites to mix with ******* in school, and imposing judicial tyranny among white southerners.

Watkins v. United States (1957)

In 1954, John Watkins, a labor organizer was called to testify before a House Committee for "Un-American Activities". He refused to answer questions which required him to disclose those who had already left the Communist Party. Watkins argued they were beyond the committee's scope.

He was convicted of a misdemeanor.

The Court ruled he was not afforded due process and that Congress had no authority to unduly expose his private affairs.

Chief Justice Warren wrote in the decision, "Abuses of the investigative process may imperceptibly lead to abridgment of protected freedoms. The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of governmental interference. And when those forced revelations concern matters that are unorthodox, unpopular, or even hateful to the general public, the reaction in the life of the witness may be disastrous."

Mr. Justice Black, Concurring

I would like to end by quoting a portion of Justice Black's concurring opinion in Aptheker discussed above.

"This case offers another appropriate occasion to point out that the Framers [of the Constitution] thought (and I agree) that the best way to promote the internal security of our people is to protect their First Amendment freedoms of speech, press, religion and assembly, and that we cannot take away the liberty of groups whose views most people detest without jeopardizing the liberty of all others whose views, though popular today, may themselves be detested tomorrow."


Kenneth Charles Hamada (author) from Quezon City on November 01, 2020:

Thank you very much!

CJ Kelly from the PNW on October 27, 2020:

Very well written, well researched hub. Congrats. Keep up the good work.

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