Law, Logic and Revolution: the Smith Act Decisions
| DOI | 10.1177/106591296101400402 |
| Published date | 01 December 1961 |
| Author | John Somerville |
| Date | 01 December 1961 |
| Subject Matter | Articles |
839
LAW,
LOGIC
AND
REVOLUTION:
THE
SMITH
ACT
DECISIONS
JOHN
SOMERVILLE
City
University
of
New
York
HE
RELATION
of
the
Smith
Act
cases,
and
of
the
Smith
Act
itself,
to
the
tradition
of
American
democracy
is
a
key
question
for
us
and
for
JL
people
all
over
the
world.
It
is
a
question
which
involves
more
than
the
field
of
law.
Its
content
significantly
concerns
fields
like
social
philosophy,
political
science,
history,
and,
one
becomes
increasingly
convinced,
basic
logic.
So
perhaps
a
philosopher
with
a
responsibility
for
logic
need
not
apologize
for
trying
to
deal
with
certain
aspects
of
it,
in
the
light
of
concrete
observation
and
participation
as
a
non-Communist
expert
witness
in
several
of
the
cases.
What
now
seems
in
special
need
of
examination
is
the
reasoning
embodied
in
the
series
of
opinions
which
have
come
from
the
United
States
Supreme
Court
and
Courts
of
Appeals
beginning
with
the
decision
handed
down
in
June
1957
by
the
Supreme
Court
in
the
Yates’
case.
The
Smith
Act
2 being
a
law
directed
against
advocacy
or
teaching
of
violent
revolution,
at
least
in
the
sec-
tions
of
it
applied
in
the
prosecutions
of
Communists,
these
recent
opinions
are
centrally
concerned
with
speech
and
teaching
about
forcible
revolutian.3
3
The
Yates
decision
ended
one
whole
phase
in
the
handling
of
Smith
Act
cases,
a
phase
strangely
out
of
keeping
with
the
American
tradition,
and
inaugu-
rated
a
new
approach.
This
approach,
while
closer
to
the
constitutional
demands
of
our
tradition,
will
undoubtedly
have
to
go
further
to
meet
them
squarely.
However,
very
few
people
of
the
bar
or
bench
anticipated
the
change
that
came
in
1957,
when
the
Supreme
Court
for
the
first
time
reversed
convictions
obtained
against
Communists
under
the
Smith
Act.
Perhaps
the
general
stunned
reaction
in
the
lower
courts
to
the
Yates
decision
when
it
was
handed
down
was
best
expressed
by
Judge
Chambers
when
he
wrote
the
opinion
for
the
Court
of
Appeals
reversing
eleven
Smith
Act
convictions
in
Fujimoto4
and
Huff.5
He
then
stated:
&dquo;One
may
as
well
recognize
that
the
Yates
decision
leaves
the
Smith
Act,
as
to
any
further
prosecution
under
it,
a
1
354
U.S.
298.
2
18
U.S.C.
2385.
3
The
heart
of
this
part
of
the
law
is
expressed
in
the
following
language,
from
section
2:
"Whoever
knowingly
or
willfully
advocates,
abets,
advises
or
teaches
the
duty,
necessity,
desirability
or
propriety
of
overthrowing
or
destroying
the
government
of
the
United
States
or
the
government
of
any
State,
Territory,
District
or
Possession
thereof,
or
the
government
of
any
political
subdivision
therein,
by
force
or
violence ..."
is
subject
to
criminal
penalty.
This
sort
of
provision
was
what
moved
the
late
Professor
Zechariah
Chafee,
Jr.,
to
write
about
the
Smith
Act
with
such
indignation,
one
might
almost
say,
incredulity.
Cf.
his
Free
Speech
in
the
United
States
(Cambridge:
Harvard
University
Press,
1941),
p.
463;
"No
proof
was
offered
of
any
evil
which
had
to
be
remedied
by
the
unprecedented
provision
of
section
2.
The
plain
reason
for
it
is,
that
the
persons
and
organizations
who
have
been
hankering
for
such
a
measure
during
the
last
two
decades
took
advantage
of
the
passion
against
immigrants
to
write
into
an
anti-alien
statute
the
first
federal
peace-time
restriction
on
speaking
and
writing
by
American
citizens
since
the
ill-fated
Sedition
Act
of
1798."
(The
Smith
Act
was
passed
June
28,
1940,
as
a
measure
providing
for
registration
of
aliens.)
4
251
F.
2d
342.
5
Ibid.
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