4 months ago

Yes, the Constitution even protects communists

By Caleb R. Trotter Attorney

Naively, I thought that was obvious. But apparently I was wrong. In California, government employees may be fired solely because they are a member of the Communist Party. What if they’re great at their job? Doesn’t matter. What if their ideas are irrelevant to their job? Doesn’t matter. What if they’re the most qualified person for their role? Nope. That’s right, Bill the forest ranger, or Julia at the California Arts Council, or Susan at the DMV can all be fired for joining the Communist Party.

The law has rarely been enforced since it was enacted during the height of the Cold War. But it seems possible now that some supervisor within the state government may attempt to enforce the law. Earlier this month, the California Assembly passed a bill that would’ve repealed the language which allows the government to fire communists due to their political party membership. The vote was far from unanimous, however, and the bill only passed by an 11-vote margin on its way to the Senate. Opponents of the bill scuttled it, however, on the grounds that communists today in China and North Korea are “still a threat.”

But in the United States, no ordinary state employee should fear losing their job because of their political affiliations. No one would argue if an avowed communist who took a job as a public school teacher was fired because he refused to teach classical free-market economics. In that case, he’s been fired because he wasn’t doing his job. But if you can lose your job merely because you’ve joined the Communist Party, regardless of your reasons for doing so, then what’s to say that progressives in San Francisco or Seattle wouldn’t prohibit Libertarians or Republicans from employment? The principles of liberty and freedom of association protect individual rights of all people.

In any event, in 1967 the U.S. Supreme Court said that a similar law violated the First Amendment. In United States v. Robel, Congress had enacted the Subversive Activities Control Act which prohibited any member of the Communist Party from working in a “defense facility.” The plaintiff in the case, Eugene Frank Robel, was a machinist at a Seattle shipyard that was declared a defense facility. Because Robel was a member of the Communist Party, he was prosecuted for “unlawfully and willfully engag[ing] in employment” even though the evidence showed that Robel had worked at the shipyard for more than 10 years without incident, and had never concealed his Communist Party membership. Furthermore, following his arrest he was released and returned to his job where he continued to work throughout the litigation of his case.

The Supreme Court struck down the Subversive Activities Control Act as a violation of the First Amendment because the law swept “indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership.” The government failed to show that it was necessary to prohibit all communists from employment in order to prevent espionage or sabotage at government defense facilities. Instead, the Act “literally establishes guilt by association alone, without any need to establish that an individual’s association poses the threat feared by the Government.” Therefore, because the law put Robel “to the choice of surrendering his organizational affiliation, regardless of whether his membership threatened the security of a defense facility, or giving up his job,” the law was an unconstitutional infringement of his freedom of association.

So, if it’s unconstitutional for a law to prohibit all communists from working at “defense facilities” without evidence that they pose an actual danger, then California’s law that prohibits all communists from working in any government job is most assuredly unconstitutional as well. And as it should be. In the words of the Supreme Court: “it would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties—the freedom of association—which makes the defense of the Nation worthwhile.”

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