as much right to free speech as has an exclusive bargaining agent.
Moreover, political beliefs may disqualify one from following a calling if the beliefs are such as to render him, in the view of the sovereign, unfit. In the case of In Re Summers, 325 U.S. 561, 65 S. Ct. 1307, 89 L. Ed. 1795, Summers had passed the examination for admission to practice law in the State of Illinois. The sole reason for denying him the right to practice was that he had conscientious scruples about participation in war. He was, therefore, unable to take in good faith a required oath to support the Constitution of Illinois. The Court upheld his exclusion from the practice. It is noteworthy that Summers' actions were merely passive. He was unwilling to promise in effect that he would perform military service if called. The Taft-Hartley Act, instead of requiring a positive showing of attachment to the principles of our government and a willingness to defend it, merely requires evidence that those who act as exclusive bargaining agents are not actively opposed to those principles.
We shall briefly consider the dissenting opinion filed herewith. Some of the differences between us are minor in character. For example, it is said in dissent, 'The strong presumption of constitutionality which attaches to an act of Congress challenged for lack of power under one of the delegations of power, does not attach to an act challenged as violative of the prohibitions of the First Amendment.' In support of the statement West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628, 147 A.L.R. 674, and United States v. Carolene Products Company, 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234, are cited. We do not read either decision as so holding. The Carolene Products opinion, to the contrary, remarks that, 304 U.S.at page 152, 58 S. Ct.at page 783: ' * * * the existence of facts supporting the legislative judgment is to be presumed, for regulatory transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.'
At that point in the Supreme Court's opinion, it is said in a footnote, 'There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, * * * ,' To say that its scope of operation in such circumstances may be narrower than otherwise, is not to say that the presumption of constitutionality does not attach at all. The continuance of the presumption of validity is expressly recognized in Thomas v. Collins, supra, 323 U.S.at pages 529, 520, 65 S. Ct.at page 322, where it was said: 'The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on the border, now as always delicate, is perhaps more to where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.'
Thus the Court said, not that the presumption of constitutional validity is absent when the First Amendment is present, but that it is balanced by it. When, as here, Congress finds impending danger to national interests which justifies restraint of an individual freedom of silence, the presumption of constitutional validity, no longer balanced by the First Amendment, continues in full vigor.
The principal point of divergence between us arises from the view in the dissenting opinion 'that when an act of Congress abridges freedom of speech, press and assembly, the court itself, by an independent examination and upon evidence presented to it, must determine the actuality of the necessity for the abridgment.' The dissent confesses, however, that no case has been found where the Supreme Court 'has said that when Congress has made a conclusion of fact upon which the constitutionality of an act depends, the courts must take evidence upon those facts. But it seems to me that such must be the rule.' We are convinced that there is no such case. Many decisions indicate to the contrary.
A legislative statement of fact may be challenged as being wholly without foundation, in which event a court will examine the evidence which the legislative body had, to see if the conclusion of fact actually was without basis; but it will not try the issue of fact de novo. In dealing with statutes which fall into the second of the two classes described in Gitlow v. New York, that is, enactments which do not contain within their own terms the conclusion of fact which is attacked as making their application unconstitutional, obviously the court must hear evidence in order to determine whether such an enactment can be applied in the circumstances. That is not, however, a de novo reexamination of a legislative determination of fact. The case before us falls in the first category mentioned in the Gitlow case, in that Congress determined, and by enacting the statute said, that industrial peace will be disturbed by Communists in places of bargaining authority. If we should undertake to hear evidence on the validity of that determination, we would be asserting the power to substitute our judgment for that of the Congress. Courts do not have that power. Their function ends when they have found whether Congress had a substantial basis for its conclusion.
Moreover, the Supreme Court has said, 'When a statute is assailed as unconstitutional we are bound to assume the existence of any state of facts, which would sustain the statute in whole or in part.' Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 1392, 89 L. Ed. 1725. See also Metropolitan Casualty Insurance Company v. Brownell, 294 U.S. 580, 584, 55 S. Ct. 538, 79 L. Ed. 1070, and cases cited; and United States v. Carolene Products Company, supra, 304 U.S. at pages 152, 153, 58 S. Ct. 778.
It follows that we cannot agree with the theory of the dissent that the only way of determining whether Congress was justified in seeing a clear and present danger is by the means afforded for judicial determination of issues of fact formed by the pleadings of litigants. This case is being considered on the defendants' motion to dismiss, which necessarily concedes all the facts well pleaded in the complaint. The question is one of law, not of fact; and, as we have seen, the complaint is devoid of any allegation that there was no evidence to justify the legislative apprehension of clear and present danger. Had such an averment been made, its effect would have been no more than to require us to examine the information which Congress had, in order to ascertain whether it was sufficient to justify the legislative action.
As a matter of fact, however, despite the absence from the complaint of an allegation that Congress acted without supporting information, we have examined into that question, as appears heretofore in this opinion. The transcript of the Senate committee hearings exceeds 2,400 pages in length. That of the House committee hearings contains more than 3,800 pages. The reports of committees, the debates, speeches, and the veto message of the President fill two volumes aggregating 1,680 pages.
In all this voluminous matter there is ample evidence which justified Congress in concluding that a clear and present danger to industrial peace and present danger to industrial peace would exist unless Communists were excluded from labor negotiations. Some of that evidence we have discussed already. A few further references to it will serve to emphasize the correctness of the congressional conclusion. Lewis F. Budenz, former editor of the Daily Worker, who was for six years a member of the National Committee of the Communist Party, was a witness before the House committee. He said:
' * * * At that time, (i.e. 1940) I might say, after the Hitler-Stalin pact, that the Communist Party, of course, in every issue of every publication declared itself against Great Britain, declared itself against President Roosevelt as a Fascist, and, likewise, defended Hitler as an evangel of peace; that is, saying that Hitler's peace proposal was genuine at that time. Following that up, of course, they also suddenly found a tremendous interest in the possibilities of wage rises and strikes and had a whole campaign in regard to strikes in the various Communist publications.'
Again in his testimony the following coloquies appeared:
'Mr. Kersten. Can you state whether or not, up until the time you left the Communist Party, the technique of strikes was an important technique in bringing about communism or Communist control?
'Mr. Bundenz. Well, it is under certain circumstances; that is to say, strikes are hit upon as a technique when Moscow wants that sort of a policy to be carried out. You understand that the Communist Party is only a fifth column for the Soviet Union and nothing else.
'Mr. Kersten. Hypothetically, let me put this question to you: If a member of the Communist Party in this country received an order from Moscow with regard to a certain situation, and the Government of this country, let us say the President of the United States, made an order pertaining to the same subject but the order was exactly the opposite of the Moscow order, can you state, from your knowledge of the Communist Party, what the obligation of the member, the Communist Party member in this country, would be as to which order he should or would have to follow?
'Mr. Bundenz. I can state from my knowledge and from my experience he would have no option but to follow the orders from Moscow.' (Emphasis supplied.)
Mr. Bundenz was not the only witness who testified at length on the Allis-Chalmers and the North American Aviation strikes. He was joined by others in demonstrating that both strikes followed the Party line and were on Party orders.
While we have reviewed and evaluated the evidence presented to the congressional committees regardless of the fact that the complaint does not allege its insufficiency to support the legislation, we think it would be manifestly incorrect and improper to investigate independently, through the hearing of evidence de novo, the question whether there was in fact the clear and present danger which Congress saw. That is what the dissent indicates to be proper. There is no such allegation in the complaint and, if there were, it is our considered view that it could not properly tender that issue.
There are other difficulties inherent in the dissenting view which directly demonstrate that its suggested procedure should not be adopted. If this court should hear evidence and make a finding of fact that there was no clear and present danger and, therefore, brand the Act as unconstitutional; and if another district court in another circuit should hear evidence in a case between another union and the defendant Board, and should find as a fact that there was a clear and present danger and, therefore, hold the Act to be constitutional; what would be the procedure of the Supreme Court when both cases came before it? Would it disregard the evidence which Congress had and dispose of the constitutional question on the basis of a district court's finding of fact regarding the existence of clear and present danger? If the latter, which court's finding would it adopt; or would the theory expect the Supreme Court to disregard the evidence before Congress and before the district courts and itself hear evidence? Such considerations seem to us conclusively to demonstrate the soundness of our position.
Another fundamental difference between us is revealed by this statement in the dissent: 'Thus, a requirement as to political belief, imposed upon the use of a facility, is not a mere condition upon a privilege; it is, in fact, an abridgment of political belief.' We have sufficiently demonstrated, we think, that the requirement of the non-Communist affidavit is nothing more than a condition attached to the grant of a privilege.
Instead of being convinced beyond reasonable doubt that Sec. 9(h) of the statute is void for violating the basic law, we hold the considered view that the subsection is a constitutional exercise of congressional power to prescribe qualifications which must be possessed by those who ask to enjoy the extraordinary privilege of acting as exclusive bargaining agent. It would be unrealistic to say, in the light of all that appears, that the presence of Communists in key positions in labor relations does not constitute a clearly discernible and imminent threat to important national interests. Since we are of the opinion that all three provisions of the statute assailed by the plaintiff were enacted and may be enforced without offense to the Constitution, we shall dismiss the complaint.