Opinion of JACKSON, J. 339 U.S. If Congress has power to condition any right or privilege of an American citizen❞ upon disclosure and disavowal of belief on any subject, it is obviously this one. But the serious issue is whether Congress has power to proscribe any opinion or belief which has not manifested itself in any overt act. While the forepart of the oath requires disclosure and disavowal of relationships which depend on overt acts of membership or affiliation, the afterpart demands revelation and denial of mere beliefs or opinions, even though they may never have matured into any act whatever or even been given utterance. In fact, the oath requires one to form and express a conviction on an abstract proposition which many good citizens, if they have thought of it at all, have considered too academic and remote to bother about. That this difference is decisive on the question of power becomes unmistakable when we consider measures of enforcement. The only sanction prescribed, and probably the only one possible in dealing with a false affidavit, is punishment for perjury. If one is accused of falsely stating that he was not a member of, or affiliated with, the Communist Party, his conviction would depend upon proof of visible and knowable overt acts or courses of conduct sufficient to establish that relationship. But if one is accused of falsely swearing that he did not believe to require disclosure of membership in an organization which had the characteristics of the Communist Party or other characteristics of similar gravity. As drawn, this clause might, however, apply to membership in a mere philosophical or discussion group. This part of the oath was obviously intended to disclose persons not members of or affiliated with the Communist Party but who were a part of the undertow of the Communist movement. It was probably suggested by the long-standing requirement of somewhat similar oaths in immigration and naturalization matters. There is, however, no analogy between what Congress may require of aliens as a condition of admission or of citizenship and what it may require of a citizen. 382 Opinion of JACKSON, J. something that he really did believe, the trial must revolve around the conjecture as to whether he candidly exposed his state of mind. The law sometimes does inquire as to mental state, but only so far as I recall when it is incidental to, and determines the quality of, some overt act in question. From its circumstances, courts sometimes must decide whether an act was committed intentionally or whether its results were intended, or whether the action taken was in malice, or after deliberation, or with knowledge of certain facts. But in such cases the law pries into the mind only to determine the nature and culpability of an act, as a mitigating or aggravating circumstance, and I know of no situation in which a citizen may incur civil or criminal liability or disability because a court infers an evil mental state where no act at all has occurred.10 Our trial processes are clumsy and unsatisfying for inferring cogitations which are incidental to actions, but they do not even pretend to ascertain the thought that has had no outward manifestation. Attempts of the courts to fathom modern political meditations of an accused would be as futile and mischievous as the efforts in the infamous heresy trials of old to fathom religious beliefs. Our Constitution explicitly precludes punishment of the malignant mental state alone as treason, most serious of all political crimes, of which the mental state of adherence to the enemy is an essential part. It requires a duly witnessed overt act of aid and comfort to the enemy. Cramer v. United States, 325 U. S. 1. It is true that in England of olden times men were tried for treason for mental indiscretions such as imagining the death of the king. But our Constitution was intended to end such. prosecutions. Only in the darkest periods of human his 10 See Holmes, The Common Law, Lectures II, III and IV, pp. 65-68, 132 et seq. Opinion of JACKSON, J. 339 U.S. tory has any Western government concerned itself with mere belief, however eccentric or mischievous, when it has not matured into overt action; and if that practice survives anywhere, it is in the Communist countries whose philosophies we loathe. How far we must revert toward these discredited systems if we are to sustain this oath is made vivid by the Court's reasoning that the Act applies only to those "whose beliefs strongly indicate a will to engage in political strikes . . . Since Congress has never outlawed the political strike itself, the Court must be holding that Congress may root out mere ideas which, even if acted upon, would not result in crime. It is a strange paradox if one may be forbidden to have an idea in mind that he is free to put into execution. But apart from this, efforts to weed erroneous beliefs from the minds of men have always been supported by the argument which the Court invokes today, that beliefs are springs to action, that evil thoughts tend to become forbidden deeds. Probably so. But if power to forbid acts includes power to forbid contemplating them, then the power of government over beliefs is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner of social, economic, moral and political issues. These suggestions may be discounted as fanciful and farfetched. But we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds that which is their own and that which is false and dangerous. Communists are not the only faction which would put us all in mental strait jackets. Indeed all ideological struggles, religious or political, are primarily battles for dominance over the minds of people. It is not to be supposed that the age-old readiness to 382 Opinion of JACKSON, J. try to convert minds by pressure or suppression, instead of reason and persuasion, is extinct. Our protection against all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution. It happens that the belief in overthrow of representative government by force and violence which Congress conditionally proscribes is one that I agree is erroneous. But "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate." Holmes, J., dissenting in United States v. Schwimmer, 279 U. S. 644, 654–55. Moreover, in judging the power to deny a privilege to think otherwise, we cannot ignore the fact that our own Government originated in revolution and is legitimate only if overthrow by force may sometimes be justified. That circumstances sometimes justify it is not Communist doctrine but an old American belief."1 The men who led the struggle forcibly to overthrow lawfully constituted British authority found moral support by asserting a natural law under which their revolution was justified, and they broadly proclaimed these beliefs in the document basic to our freedom. Such sentiments have also been given ardent and rather ex 11 Nothing is more pernicious than the idea that every radical measure is "Communistic" or every liberal-minded person a "Communist." One of the tragedies of our time is the confusion between reform and Communism-a confusion to which both the friends and enemies of reform have contributed, the one by failing to take a clear stand against Communists and Communism and the other by characterizing even the most moderate suggestion of reform as "Communistic" and its advocates as "Communists." Unquestioning idolatry of the status quo has never been an American characteristic. Opinion of JACKSON, J. 339 U.S. travagant expression by Americans of undoubted patriotism.12 Most of these utterances were directed against a tyranny which left no way to change by suffrage. It seems to me a perversion of their meaning to quote them, as the Communists often do, to sanction violent attacks upon a representative government which does afford such But while I think Congress may make it a crime means. 12 A surprising catalogue of statements could be compiled. The following are selected from Mencken, A New Dictionary of Quotations, under the rubric "Revolution": "Whenever any government becomes destructive of these ends [life, liberty and the pursuit of happiness] it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." Thomas Jefferson, The Declaration of Independence, July 4, 1776. "The community hath an indubitable, inalienable, and indefeasible right to reform, alter or abolish government, in such manner as shall be by that community judged most conducive to the public weal." The Pennsylvania Declaration of Rights, 1776. "It is an observation of one of the profoundest inquirers into human affairs that a revolution of government is the strongest proof that can be given by a people of their virtue and good sense." John Adams, Diary, 1786. "What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms." Thomas Jefferson, Letter to W. S. Smith, Nov. 13, 1787. "An oppressed people are authorized whenever they can to rise and break their fetters." Henry Clay, Speech in the House of Representatives, March 4, 1818. "Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better." Abraham Lincoln, Speech in the House of Representatives, 1848. "All men recognize the right of revolution: that is, the right to refuse allegiance to, and to resist, the government when its tyranny or its inefficiency are great and unendurable." H. D. Thoreau, An Essay on Civil Disobedience, 1849. "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it." Abraham Lincoln, Inaugural Address, March 4, 1861. "Whenever the ends of govern |