The Hatch Act Cases

• Author: Francis D. Wormuth
• DOI: 10.1177/106591294800100206
• Published date: 01 June 1948
• Date: 01 June 1948
• Subject Matter: Articles

THE HATCH ACT CASES
by
FRANCIS D. WORMUTH
University of Utah
The method of decision practised in English law, that of arguing from
case to case rather than from principle to case, often yields curious results.
Sometimes one rule will be applied in a series of cases embodying one fact
situation, while an entirely different rule is employed in other cases no
different in principle but differing in unessential respects. On the other
hand, a court sometimes uncritically extends a rule suited to a particular
fact situation to another case superficially similar to which it is nevertheless
entirely inappropriate. The cases upholding civil service legislation re-
stricting the political activities of public employees illustrate both types of
aberrancy.
The fact that our government is republican in form gives rise to
certain implied rights of citizenship. Among these are a right to assemble
and petition Congress, quite distinct from that recognized in the First and
Fourteenth Amendments,’ and a right to discuss federal laws and to infirm
other citizens of their provisions.2
2
These rights, being implied in the Con-
stitution, are not subject to legislative abridgment.
It has frequently been recognized that the right to engage in political
activities is such a right. The California Appellate Court has said:
If the American philosophy of government is to be preserved, founded as it is
on the recognition of the dignity of the individual as a natural right, it would
seem necessary that each person should have absolute freedom to pursue the
particular course of political action or political activity that he chooses, and the
state owes to the individual the duty of making him secure in that right.3
The due process clauses of the Fifth and Fourteenth Amendments, in
recognizing the right of the individual to liberty, qualify this right by con-
ceding that certain abridgments of liberty may come within due process of
law. It is this fact that gives rise to the familiar &dquo;balancing&dquo; of private
interest against public interest. The provisions of the First Amendment have
been dealt with in a somewhat similar manner, with the result that neither
the First, the Fifth, nor the Fourteenth Amendment guarantees an absolute
right. Private right must yield to the demands of the public interest.
It is sometimes said that &dquo;There are no absolute fundamental rights,&dquo;4
but this is not yet true. The blur of &dquo;reasonableness&dquo; has obscured many of
1
United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876).
2
Hague v. C. I. O., 307 U.S. 496, 83 L. Ed. 1423 (1939).
3
Lockheed Aircraft Corp. v. Superior Court, 153 P. (2d) 966 (Cal. App., 1944). See also Santiago
v. People of Puerto Rico, 154 F. (2d) 811 (C.C.A. 1, 1946).
4
Prettyman, J., in Barsky v. United States (C.A.D.C.), decided March 18, 1948.
165

---

166
the sharp lineaments of the Constitution, but there remain absolute rights
which cannot be invaded under any claim of public convenience, or even of
necessity. No man can be penalized by bill of attainder, even though the
Congress alleges a ground of public policy;5 nor can any emergency justify
an ex post facto law. The rights to jury trial in the civil courts and to con-
frontation of witnesses, the immunity granted in the double jeopardy clause
-these are all absolute rights.
The rights appurtenant to citizenship also appear to be absolute rights.
It has never been suggested seriously that any consideration of public ad-
vantage would justify deporting a bona fide citizen; he has an implied right
of residence in this country. In 1868, in Crandall v. Nevada,’ the Court
held that a state poll tax of one dollar on every person leaving the state
was invalid because it touched the right of citizens of the United States to
travel to national offices to transact national business. The Court conceded
that the tax &dquo;cannot sensibly affect any function of the government, or
deprive a citizen of any valuable right.&dquo; Nevertheless the Court held that
there was a total absence of power in the state to tax the national right.
In spite of Justice Stone’s strictures,’ Crandall v. Nevada is still a controlling
precedent.&dquo;
In 1935, in Colgate v. Harv ey,9 the Court recognized as a right of
national citizenship the right to lend money outside the state of one’s resi-
dence, and held invalid as a burden on this right a tax by the state of the
residence directed at the income from money so lent. Colgate v. Harvey was
overruled in 1940 in Madden v. Kentucky,l° but this latter decision confirms
rather than rejects the proposition immediately in question. In Madden v.
Kentucky the Court held a Kentucky tax, similar to the Vermont tax in
Colgate v. Harvey, valid under the due process and equal protection
clauses, and declared that the right of national citizenship asserted in Colgate
v. Harvey did not exist. The implication seems to be that if such a right
had existed the tax would have been invalid, despite its &dquo;reasonableness.&dquo;
Justice Jackson, in Edwards v. California,&dquo; argued that a citizen of the
United States has a right to enter any state in the Union, but conceded that
the exercise of this right might be subjected to quarantine laws. It is clear,
however, that this does not constitute a limitation of the alleged right as
such. It is merely a recognition of the boundary which defines all rights:
Sic utere tuo ut alienum non laedas. Justice Jackson did not suggest that any
consideration of policy would justify shifting this boundary; on the con-
5
United States v. Lovett, 328 U.S. 303, 90 L. Ed. 1252 (1946).
6
6 Wall. 35, 18 L. Ed. 745 (1868).
7
See Colgate v. Harvey, 296 U.S. 404, 444, 80 L. Ed. 299, 319 (1935).
8
See Hague v. C.I.O., supra, n. 2.
9Supra, n. 7.
10309 U.S. 83, 84 L. Ed. 590.
11
314 U.S. 160, 86 L. Ed. 119 (1941).

---

167
trary, he rejected the argument that the financial exigencies of the state of
California were a valid ground for limiting the right implied in citizenship.
So it comes as a distinct shock when the Court in United Public Work-
ers v. Mitchell, 12 upholding the prohibition in the First Hatch Act on
political activities by federal employees, asserts that &dquo;these fundamental
human rights are not absolutes,&dquo; and that &dquo;this Court must balance the ex-
tent of the guarantees of freedom against a congressional enactment to pro-
tect a democratic society against the supposed evil of political partisanship by
classified employees of the government.&dquo; The same assumption underlies
Oklahoma v. United States Civil...