Appellant
Herbert Aptheker
Appellee
Dean Rusk, U.S. Secretary of State
Appellant's Claim
That the provision of the Internal Security Act of 1950 denying passports tomembers of the American Communist Party interferes with the constitutional right to travel.
Chief Lawyers for Appellant
John J. Abt, Joseph Forer
Chief Lawyer for Appellee
Abram Chayes
Justices for the Court
Hugo Lafayette Black, William J. Brennan, Jr., William O. Douglas, Arthur Goldberg (writing for the Court), Potter Stewart, Earl Warren
Justices Dissenting
Tom C. Clark, John Marshall Harlan II, Byron R. White
Place
Washington, D.C.
Date of Decision
22 June 1964
Decision
The provision denying passports was struck down as unconstitutional.
Significance
The decision effectively established a constitutional right to travel. Although this particular decision barred government from denying passports to members of allegedly subversive organizations, the principle was soon applied to uphold the government's right to prohibit discrimination in public accommodations, such as motels, against African Americans.
The Passport Act of 1926 gave the secretary of state the power to issue passports to American citizens. During the Cold War, however, when paranoia aboutCommunist infiltration was high, the U.S. State Department adopted a policy of denying passports needed for foreign travel to American Communists. In Kent v. Dulles (1958), the Supreme Court, arguing that the right to travelwas a fundamental right guaranteed by the Fifth Amendment, declared this policy unconstitutional.
In 1950, however, Congress had passed the Internal Security Act, also known as the McCarran Act, requiring registration of members of the Communist Partyof America with the attorney general. Once registered, individuals were, among other things, denied passports. The registration provisions of the McCarranAct had been upheld by the Court in Communist Party of the United Statesv. Subversive Activities Control Board (1961), but now the chairman of the American Communist Party filed suit challenging the constitutionality of the provision denying passports to registered persons. The U.S. District Courtfor the District of Columbia upheld the constitutionality of the provision, and Aptheker petitioned the U.S. Supreme Court for review of this decision.
In a 6-3 vote, the Court overturned the decision of the district court, basing its opinion on the view that the provision was too broad on its face, indiscriminately restricting the right to travel both of actual subversives and passive, "unknowing" members of the Communist Party. Congress had, said JusticeGoldberg for the majority, "less drastic" means of achieving the goal of safeguarding national security. The right to travel, although not absolute, is aconstitutional liberty closely related to freedom of speech and of association:
This emphasis on the right to travel was to remain very much on the justices'minds. In the fall of the same year in which they handed down their decisionin Aptheker, they delivered their opinion in an important civil rights case, Heart of Atlanta Motel v. United States, in which Congress's power under the Commerce Clause to regulate business affecting interstate commerce was cited as the rationale for outlawing racial discrimination in a privately-owned place of accommodation. In essence, by not providing African Americans with a place to stay, the Heart of Atlanta Motel was unconstitutionallyrestricting their right to travel. The prevailing mood of the Court during the activist era overseen by Chief Justice Warren restored civil liberties--including the right to travel--both to political dissidents and to racial minorities.
Related Cases
The Subversive Activities Control Act
The Subversive Activities Control Act was part of a larger piece of legislation, the McCarran Internal Security Act of 1950. It was named for Senator Patrick A. McCarran, a Democrat from Nevada who supported Wisconsin's anti-Communist senator, Joseph McCarthy. Contained within the McCarran Act were the Subversive Activities Control Act, and the Emergency Detention Act of 1950.
The Subversive Activities Control Act amended espionage, sabotage, alien exclusion, deportation, immigration, and nationality laws already on the books, and set up a five-member Subversive Activities Control Board (SACB) to overseethe registration of suspected "Communist-action" and "Communist-front" groups. During the 1950s, the SACB reviewed a number of organizations, and it wona Supreme Court victory with Communist Party of the United States v. Subversive Activities Control Board (1961). But Albertson v. Subversive Activities Control Board (1965) struck a blow against the board, and it began to lose power. In 1974 President Nixon in effect ended the SACB by cuttingoff its funding.
Sources
Bacon, Donald C., et al., eds. The Encyclopedia of the United States Congress. New York: Simon & Schuster, 1995.
Herbert Aptheker
Appellee
Dean Rusk, U.S. Secretary of State
Appellant's Claim
That the provision of the Internal Security Act of 1950 denying passports tomembers of the American Communist Party interferes with the constitutional right to travel.
Chief Lawyers for Appellant
John J. Abt, Joseph Forer
Chief Lawyer for Appellee
Abram Chayes
Justices for the Court
Hugo Lafayette Black, William J. Brennan, Jr., William O. Douglas, Arthur Goldberg (writing for the Court), Potter Stewart, Earl Warren
Justices Dissenting
Tom C. Clark, John Marshall Harlan II, Byron R. White
Place
Washington, D.C.
Date of Decision
22 June 1964
Decision
The provision denying passports was struck down as unconstitutional.
Significance
The decision effectively established a constitutional right to travel. Although this particular decision barred government from denying passports to members of allegedly subversive organizations, the principle was soon applied to uphold the government's right to prohibit discrimination in public accommodations, such as motels, against African Americans.
The Passport Act of 1926 gave the secretary of state the power to issue passports to American citizens. During the Cold War, however, when paranoia aboutCommunist infiltration was high, the U.S. State Department adopted a policy of denying passports needed for foreign travel to American Communists. In Kent v. Dulles (1958), the Supreme Court, arguing that the right to travelwas a fundamental right guaranteed by the Fifth Amendment, declared this policy unconstitutional.
In 1950, however, Congress had passed the Internal Security Act, also known as the McCarran Act, requiring registration of members of the Communist Partyof America with the attorney general. Once registered, individuals were, among other things, denied passports. The registration provisions of the McCarranAct had been upheld by the Court in Communist Party of the United Statesv. Subversive Activities Control Board (1961), but now the chairman of the American Communist Party filed suit challenging the constitutionality of the provision denying passports to registered persons. The U.S. District Courtfor the District of Columbia upheld the constitutionality of the provision, and Aptheker petitioned the U.S. Supreme Court for review of this decision.
In a 6-3 vote, the Court overturned the decision of the district court, basing its opinion on the view that the provision was too broad on its face, indiscriminately restricting the right to travel both of actual subversives and passive, "unknowing" members of the Communist Party. Congress had, said JusticeGoldberg for the majority, "less drastic" means of achieving the goal of safeguarding national security. The right to travel, although not absolute, is aconstitutional liberty closely related to freedom of speech and of association:
Since freedom of association is itself guaranteed in the FirstAmendment, restrictions imposed upon the right to travel cannot be dismissedby asserting that the right to travel could be fully exercised if the individual would first yield up his membership in a given organization.
This emphasis on the right to travel was to remain very much on the justices'minds. In the fall of the same year in which they handed down their decisionin Aptheker, they delivered their opinion in an important civil rights case, Heart of Atlanta Motel v. United States, in which Congress's power under the Commerce Clause to regulate business affecting interstate commerce was cited as the rationale for outlawing racial discrimination in a privately-owned place of accommodation. In essence, by not providing African Americans with a place to stay, the Heart of Atlanta Motel was unconstitutionallyrestricting their right to travel. The prevailing mood of the Court during the activist era overseen by Chief Justice Warren restored civil liberties--including the right to travel--both to political dissidents and to racial minorities.
Related Cases
- Kent v. Dulles, 357 U.S. 116 (1958).
- Communist Party of the United States v. Subversive Acivities Control Board, 367 U.S. 1 (1961).
- Heart of Atlanta Motel v. United States, 349 U.S. 241 (1964).
The Subversive Activities Control Act
The Subversive Activities Control Act was part of a larger piece of legislation, the McCarran Internal Security Act of 1950. It was named for Senator Patrick A. McCarran, a Democrat from Nevada who supported Wisconsin's anti-Communist senator, Joseph McCarthy. Contained within the McCarran Act were the Subversive Activities Control Act, and the Emergency Detention Act of 1950.
The Subversive Activities Control Act amended espionage, sabotage, alien exclusion, deportation, immigration, and nationality laws already on the books, and set up a five-member Subversive Activities Control Board (SACB) to overseethe registration of suspected "Communist-action" and "Communist-front" groups. During the 1950s, the SACB reviewed a number of organizations, and it wona Supreme Court victory with Communist Party of the United States v. Subversive Activities Control Board (1961). But Albertson v. Subversive Activities Control Board (1965) struck a blow against the board, and it began to lose power. In 1974 President Nixon in effect ended the SACB by cuttingoff its funding.
Sources
Bacon, Donald C., et al., eds. The Encyclopedia of the United States Congress. New York: Simon & Schuster, 1995.
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