Price v. Austin Independent School District Brief of Appellants
Public Court Documents
July 17, 1990
Cite this item
-
Brief Collection, LDF Court Filings. Bond v. Floyd Brief for the Appellants, 1966. 28d3b916-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b6619634-01de-40c8-9cea-9c83271872d4/bond-v-floyd-brief-for-the-appellants. Accessed August 19, 2025.
Copied!
IN THE
frtpnw (Emtrt ot tljp Inttpfr States
O ctob er T erm , 1966
N o. 87
JULIAN BOND, et ah.,
Appellants,
v.
JAMBS “ SLOPPY” FLOYD, e t a l .,
On Ap p e a l from t h e U n it e d S tates D istr ic t C ourt for
t h e N o r th er n D ist r ic t of G eorgia (A tlanta D iv is io n )
BRIEF FO R TH E A PPELLANTS
H oward M oore, J r .,
859% Hunter Street N.W.,
Atlanta, Georgia, 30314,
L eonard B . B o u d in ,
V ictor R a b in o w itz ,
30 East 42nd Street,
New York, New York, 10017,
Attorneys for Appellants.
I N D E X
PAGE
Opinions Below.................................................. 1
Jurisdiction ........................................... 1
Questions Presented ................................................. 2
Constitution and Legislative Acts Involved . . . . . . . 2
Statement of the C ase............................................... 3
Summary of Argument ............................................ 9
A r g u m e n t :
I. The House did not have power under Georgia
law to bar Mr. Bond from office.................... 13
II. The oath provision of the Georgia Con
stitution, as interpreted below, is uncon
stitutionally vague under the Fourteenth
Amendment .................................................. 25
III. Mr. Bond’s exclusion from elected legislative
office solely because of his opinions and public
statements on national issues violated the
guarantee of freedom of speech and his immu
nities and privileges under the First and
Fourteenth Amendments ............................. 27
IV. Mr. Bond’s constituents have been disen
franchised in violation of the Fourteenth
Amendment .................. 38
V. The disqualification of Mr. Bond was a bill
of attainder and an ex post facto law . . . . . . 42
Conclusion ................ 46
Appendix ......................................... 47
11
Citations
PAGE
C ases :
Aptheker v. Secretary of State, 378 IT. S. 500 . . . . 27
Ashby v. White, 2 Lcl. Raym. 938, 14 S. T. 695
(1702) ................................................................ 18
Baggett v. Bullitt, 377 U. S. 360 ........................... 11, 26
Baker v. Carr, 369 U. S. 186.................................. 39
Barr v. Matteo, 360 U. S. 564 ................................ 27
Barry v. United States, 279 U. S. 597 ................... 23, 38
Beatty v. Myrick, 218 Ga. 629, 129 S. E. 2d 764
(1963) ................................................................. 17
Calder v. Bull, 3 Dali. (3 U. S.) 386 ....................... 45
Carrington v. Bash, 380 U. S. 8 9 ........................... 41
Chaplinsky v. State of New Hampshire, 315 U. S.
568 .............................................................. 33
In re Chapman, 166 U. S. 661................................ 23
Coleman v. MacLennan, 78 Kan. 711 (1908)......... 30
Cox v. Louisiana, 379 U. S. 536 ............................. 27
Cramp v. Board of Public Instruction, 368 U. S.
278 ...................................................................... 11,26
Crandall v. Nevada, 6 Wall. (73 U. S.) 3 6 ............. 29
Cummings v. Missouri, 4 Wall. (71 U. S.) 277 . . . . 43
De Jonge v. Oregon, 299 U. S. 353 ....................... 27
Dennis v. United States, 341 U. S. 494 ................ 34
De Veau v. Braisted, 363 U. S. 144....................... 45
Dombrowski v. Pfister, 380 U. S. 479 .................. 31
Edwards v. South Carolina, 372 U. S. 229 ............ 34
Feiner v. New York, 340 U. S. 315........................ 34
Fowler v. Bostick, 99 Ga. App. 428, 108 S. E. 2d
720 (1959) ........................................................... 17
Ex parte Garland, 4 Wall. (71 U. S.) 333 ............. 43
C a s e s (Cont’d)
m
PAGE
Garner v. Louisiana, 368 U. S. 157....................... 33
Garrison v. Louisiana, 379 U. S. 64 ............ 27,30,31,33
Gray v. Sanders, 372 U. S. 368 ............................. 18, 39
Hague v. C.I.O., 307 U. S. 496 ......................... . 29
Herndon v. Lowry, 301 U. S. 242 ........................... 34
Hiss v. Bartlett, 3 Gray 468 (1855) . ......... ........... 23
Kent v. Dulles, 357 U. S. 116....... ........... ............. 25, 27
Kingsley Pictures Corp. v. Regents, 360 U. S. 684. . 27, 28
Konigsberg v. State Bar of California, 366 U. S. 36 33
Lamont v. Postmaster General, 381 TJ. S. 301 . . .27, 30, 31
Martin v. City of Struthers, 319 U. S. 141............ 30
Mishkin v. New York, 383 U. S. 502 .............. . 33
New York Times Co. v. Sullivan, 376 IT. S.
254 ................ .................... - ..................... 27,28,30,31
Noto v. United States, 367 IT. S. 290 .................... 37
Pennsylvania v. Nelson, 350 U. S. 497 ....... . 12
Rainey v. Taylor, 166 Ga. 476, 143 S. E. 383 (1928) 17
Reynolds v. Sims, 377 U. S. 533 ....................... 39, 40, 41
Schenk v. United States, 249 U. S. 4 7 .................... 32
Schneider v. State, 308 U. S. 147 ....................... 41
Sherbert v. Verner, 374 U. S. 398 ...................... . 33
Slaughterhouse Cases, 16 Wall. (83 U. S.) 36 . .. . 29
Smith v. Allwright, 321 U. S. 649 .......................... 39, 41
Snowden v. Hughes, 321 U. S. 1 ..................... . 23
Speiser v. Randall, 357 U. S. 513 ......................... 26
Stromberg v. California, 283 U. S. 359 ................ 27
Sweezy v. New Hampshire, 354 U. S. 234 ............. 31
Tenney v. Brandhove, 341 U. S. 367 .................... 18
Terminiello v. Chicago, 337 U. S. 1 .................... . 27, 31
Terry v. Adams, 345 U. S. 461 ............................. 41
Thomas v. Collins, 323 U. S. 516........................... 33
Thompson v. Louisville, 362 U. S. 199 . . . . . . . . . . 33
Toombs v. Fortson, 241 F. Supp. 65 .................... 3,4
Cases (C ont’d)
iv
PAGE
United States v. Brown, 381 U. S. 437 ......... 42, 43, 44,45
United States v. Carotene Products Co., 304 U. S.
144 ......................................... ............................ 32
United States v. C.I.O., 335 U. S. 106....... ........... 27
United States v. Classic, 313 U. S. 299 .......... 41
United States v. Cruikshank, 92 U. S. 542 ............. 29
United States v. Dennis, 183 F. 2d 201 (2d Cir.
1950) ................................................................... 33
United States v. Lovett, 328 U. S. 303 ................ 43, 45
United States v. Midwest Oil Co., 236 U. S. 459 . . . . 22
United States v. Miller, 249 F. Supp. 59 (S. D.
N. Y. 1965) ........................................................ 36
United States v. Mitcliell, 354 F. 2d 767 (2d Cir.
1966) ................................................................... 36
United States v. Rumely, 345 U. S. 4 1 .................. 25
United States v. Seeger, 380 U. S. 163........... 35
Uphaus v. Wyman, 360 U. S. 72 ........................... 33, 36
Wesberry v. Sanders, 376 U. S. 1 ....................... 39
West Virginia State Board of Education v. Barn
ette, 319 U. S. 624 .......................................... 32,33,35
White v. Clements, 39 G-a. 232 ................................ 16,17
Whitney v. California, 274 U. S. 357 .................... 27
Wilson v. North Carolina, 169 U. S. 586 ................ 23
Wood v. Georgia, 370 U. S. 375 ............................. 30, 32
Yates v. United States, 354 U. S. 298 .................... 37
U. S. Constitution:
Article I, Section 2 ............................................... 38
Article I, Section 1 0 ............................................... 13, 45
Article IV, Section 4 ........................................... 38
First Amendment -----2,8,11,12,26,27,28,31,32,33,37
Fourteenth Amendment ..................2, 8,13, 22, 29, 33, 38
Fifteenth, Amendment ........................................... 38
V
PAGE
F ederal and S tate S t a t u t e s :
Interposition Resolution (March 9, 1956) H. R.
185, Georgia Laws, 1956 Session ...................... 26
28 U. S. C. §1331 ....... ....................................... 1
28 U. S. C . § 1343(3) and (4) ....................... 1
28 U. S. C. § 2201 ............................................. . 1
28 U. S. C. § 2281 ............................... . . . . . . . . 1,8
42 U. S. C. § 1971................................................. 1
42 U. S. C. § 1983 ........................................ 1
42 U. S. C. § 1988 .................................................. 1
50 U. S. C. App. § 456(j) ..................................... 35
50 IT. S. C. App. § 462(a), (b) .............................. 44
Ga. Code Ann. § 89-101, subd. 5 ..................................17
G eorgia C o n st it u t io n :
Article II, Section II, Paragraph I (§ 2-1801, Ga.
Code Ann.) . .................................... • • 3,14, 24, 25, 48
Article III, Section IV, Paragraph V (§ 2-1605, Ga.
Code Ann.) ....................... - .........................3,11,23,47
Article III, Section IV, Paragraph VI (§ 2-1601,
Ga. Code Ann.) .............. . • • • ■ ................ 3,14, 25, 48
Article III, Section VI, Paragraph I (§ 2-1801, Ga.
Code Ann.) ....... ............................ . 2,10,14, 24, 25, 47
Article III, Section VII, Paragraph I (§2-1901,
Ga. Code Anil.) ...................2, 3,15,17, 47
Article VII, Section III, Paragraph VI (§ 2-5606,
Ga. Code Ann.) ................................................3,15, 49
VI
PAGE
R u les and R eso lu tio n s oe t h e G eorgia H ouse op
R epr esen ta tiv es :
House Rule 6 1 ........................................................ 3, 49
I n ter po sitio n R eso lu tio n (March 9, 1956),
G eorgia L aws 1956, No. 130 ............................... 26
House Resolution 19, January 10, 1966 ................ 2, 3,
8,13, 45, 49-50
C ongressional M aterials :
88 Cong. Rec. 2859 ............................................... 23
93 Cong. Rec. 15, 1 6 ............................................... 23
Senate Election, Expulsion and Censure Cases
from 1789 to 1960, S. Doc. No. 71, 87th Cong.
2d Sess.................................................................. 23
M iscella n eo u s :
4 Annals of Congress (1794) .............................. 28
Beloff, The Debate on the American Revolution,
1761-1783 (2d ed. 1960) ...................................... 19
Brennan, The Supreme Court and the Meiklejohn
Interpretation of the First Amendment, 79
Harv. L. Rev. 1 .................................................. 28
32 C. F. R. §§ 1160, et seq....................................... 35
Chafee, Free Speech in the United States (1964)
18,19, 34, 37, 39, 40
Commager, Can We Control the War in Viet Nam,
Saturday Review, S'ept. 17, 1966 ..................... 34
1 Cooley, Constitutional Limitations (8th ed. 1927) 44
DuBois, Black Reconstruction in America............ 42
2 Farrand, The Records of the Federal Convention
of 1787 ................................................................ 21
The Federalist, No. 60 (Cooke ed. 1961) .............. 21
vn
PAGE
M is c e l l a n e o u s (Cont’d ) :
Gellhorn, American Rights (1960) . .................... . 34
Hand, The Spirit of Liberty, Papers and Ad
dresses of Learned Hand (Dilliard ed. 1953) . . . 37
10 Holdsworth, History of English Law (1903) . . 18, 19
House of Commons Journal, XXXVIII ............... 20
House of Lords Journals, XVIII, 534 (1704)....... 18
Journal of Georgia Constitutional Convention,
Jan., May, 1789 . ................................................. 16
Journal of the Georgia Constitutional Convention
of 1798, 36 The Georgia Historical Quarterly,
No. 4, Dec. 1952 . ............................................... 16
May, Constitutional History of England, I (1863) 18
May, Treatise on the Lawr, Privileges and Pro
ceedings and Usage of Parliament (17th ed.
1964) .................................................................. 20
McCall, History of Georgia, II (1816) ................ 22
McElreath, A Treatise on the Constitution of
Georgia (1948) ................ 16
Meiklejohn, Political Freedom. (1948) .................. 28
Miller, Origins of the American Revolution (1943) 19
New York Times, Jan. 5, 1966, p. 1 ....... ............... 5
Note, The Right of Congress to Exclude its Mem
bers, 33 Va! L. Rev. 322 (1947) ......................... 22
Parliamentary History, Vol. XVL, 587 ................. 19
Parliamentary History, Vol. XVII, 131 .............. 20
Postgate, That Devil Wilkes (1930) .................... 19
Pusey, Charles Evans Hughes (1951) .................. 37
V l l l
PAGE
M isc ella n eo u s (Cont’d ) :
Rude, Wilkes and Liberty .................................... 19
Saye, A Constitutional History of Georgia (1948) 16
Schlesinger, Prelude to Independence (Vintage ed.
1965) ................................................................... 19
A Stenographic Report of the Proceedings of the
Georgia Constitutional Convention (1877) . . . . 16
Story on the Constitution (6th ed. 1891) .............. 21
Thompson, Reconstruction in Georgia (LXIV
Studies in History, Economics and Public Law,
Columbia University, 1915) ............................... 42
Ware, A Constitutional History of Georgia (1947) 16
Williams, The Eighteenth Century Constitution
(1960) .................. 18,19,20
Warren, The Making of the Constitution (1928) .. 20, 22
Willoughby, The Constitution of the United States,
I (2d ed. 1929) 22
IN' THE
Stqjrrpm? dmtrt nf % lutteb BtnUs
O cto b er T erm , 1966
No. 87
------------ o------------
J u l ia n B ond , et al .,
v.
Appellants,
J am es “ S l o p p y ” F loyd, e t al .,
On A ppe a l from t h e U n it e d S tates D istr ic t C ourt for
t h e N o rth ern D istr ic t of G eorgia (A tlanta D iv is io n )
-------------------------- — ....... — o ---------------------------------------------
BRIEF FOR THE APPELLANTS
O pin ions Below
The opinions below (R. 132, 154) are reported at 251 F.
Supp. 333 (N. D. Ga. 1966).
Ju risd ic tio n
The judgment below (R. 178) was entered on February
16, 1966. Appellant filed a notice of appeal in the court
below on the same day (R. 180).
The District Court had jurisdiction under 28 U. S. C.
§§ 1331, 1343, subds. 3 and 4, 2201 and 2281, and under 42
U. S. C. §§ 1971, 1983 and 1988. The appellees moved to
dismiss the appeal or to affirm the judgment below. On June
20, 1966, the Court noted probable jurisdiction (R. 186).
2
Q uestions Presented
1. Did the Georgia House of Representatives exceed
its authority under the Georgia Constitution in excluding
Mr. Bond from his elected office as representative to the
House solely because of the opinions he expressed on issues
of national concern.
2. Are the provisions of the Georgia Constitution, as
interpreted by the court below, unconstitutionally vague
under the Fourteenth Amendment.
3. Did the exclusion of Mr. Bond from legislative office
solely because of the opinions he expressed impair freedom
of opinion and speech as well as his privileges and immu
nities under the First and Fourteenth Amendments.
4. Did his exclusion from office disenfranchise Mr.
Bond’s constituents in violation of the due process and equal
protection clauses of the Fourteenth Amendment.
5. Does House Resolution 19 disqualifying Mr. Bond
from his elected office constitute an ex post facto law or a
bill of attainder in violation of Article I, Section 10 of the
United States Constitution.
Constitution and Legislative A cts Involved
The provisions of the Georgia Constitution involved
in this case are as follows:
Article III, Section VII, Paragraph I (§2-1901,
Ga. Code Ann.), making the House “ the judge of
the election, returns, and qualifications of its mem
bers” , infra, p. 47.
Article III, Section VI, Paragraph I (§ 2-1801,
Ga. Code Ann.), setting forth the members’ qualifi
cations, infra, p. 47.
3
Article III, Section IV, Paragraph V (§ 2-1605,
G-a. Code Ann.), specifying the oath of office of rep
resentatives, infra, p. 47.
The following provisions of the Georgia Constitution
setting forth the disqualifications for office are also involved
in this case:
Article II, Section II, Paragraph I (§ 2-801, Ga.
Code Ann.), infra, p. 48.
Article III, Section IV, Paragraph VI (§ 2-1606,
Ga. Code Ann.), infra, p. 48.
Article VII, Section III, Paragraph VI (§ 2-
5606, Ga. Code Ann.), infra, p. 49.
The legislative actions involved in this ease are as
follows:
House Eule 61 of the Georgia House of Repre
sentatives adopting the provisions of Article III,
Section VII of the Georgia Constitution, infra, p. 49.
House Resolution 19 of January 10, 1966, exclud
ing Mr. Bond from office, infra, pp. 49, 50.
Statement of the Case
This case arises from the refusal of the Georgia
House of Representatives to seat the appellant Julian
Bond, the duly elected Representative from the 136th
House District, Atlanta, Pulton County, Georgia. The
events which led to his exclusion from the Georgia House
are as follows:
A . H ow Mr. Bond A cq u ired th e R igh t to be Sw orn
and S ea ted as a M em ber o f th e G eorg ia H ouse
o f R ep resen ta tives
The United States District Court for the Northern
District of Georgia in Toombs v. Forison, 241 F. Supp. 65
4
(N.D. Ga. 1965), ordered the Georgia House of Rep
resentatives reapportioned on the basis of population. As
a result, Fulton County, Georgia, gained 21 seats in ad
dition to the three seats it already held, making a total of 24
Representatives from that county, one for each of the 21
newly created House Districts and three Representatives
at large. Pursuant to legislation enacted in compliance
with the order in Toombs v. Fortson, supra, House District
136 was created and a primary election was held on May
5, 1965 to nominate a candidate for this office (R. 4, 105).
Appellant Bond, a 25-year-old Negro pacifist and communi
cations director of the Student Nonviolent Coordinating
Committee (hereinafter SNCC) entered and won the Demo
cratic nomination. He received 1,243 votes, and the Rev.
Howard Creecy Sr., his opponent, a Negro also, 522 votes
(R. 4, 105, 106).
In the general election held on June 15, 1965, appellant
Bond defeated his Republican opponent, Malcom J. Dean,
Dean of Men at Atlanta University and a Negro, by a
vote of 2,320 to 487 (R. 4, 106). Eighty-two per cent of the
eligible voters voted, more than in any other House District
(R. 106). House District 136 is predominantly Negro. Of
the 6,500 voters, 6,000 are Negroes (R. 4, 106).
Appellant Mrs. Arel Keyes voted for Julian Bond in
both the primary and in the general election. Appellant
Dr. Martin Luther King, Jr., Nobel Peace Prize laureate
and noted civil rights leader, is a resident of House District
136 (R. 4, 120).
B. E vents o f Jan u ary 6 , 1966 G iving R ise to the
D em and to E xclu d e Mr. Bond
On January 6, 1966 SNCC issued a statement to the
press critical of American policy with respect to Viet
Nam and with respect to equal rights for Negroes within
the United States (R. 135, 136). The statement placed
5
responsibility for the murder of Samuel Young 1 in Tus-
kegee, Alabama, upon the federal government and equated
the failure of the Administration to protect Samuel Young
with the death of Vietnamese peasants emanating from an
aggressive foreign policy conducted in violation of interna
tional law (R. 136, 137). SNCC charged the United States
with deception in its concern for freedom for the Viet
namese people and for the freedom of colored people in the
Dominican Republic, Africa, and in the United States (R.
136, 137).
Scoring the unpunished acts of violence and false im
prisonment to which its members and others engaged in the
struggle for equal rights in the South had been subjected,
the SNUG statement questioned both the ability and the
desire of the federal government to guarantee free elections
abroad and labeled declarations to “ preserve freedom in
the world”, a hypocritical mask behind which the United
States suppresses liberation movements (R. 137).
The statement expressed SNCC’s support for men in
this country unwilling to respond to a military draft.
SNCC questioned, “ where is the draft for the freedom
fight in the United States?” (R. 137). The statement, after
noting the disproportionate number of Negroes serving
in Viet Nam, concluded:
“ We therefore encourage those Americans who
prefer to use their energy in building democratic
forms within this country. We believe that work in
the civil rights movement and with other human re
lations organizations is a valid alternative to the
draft. We urge all Americans to seek this alterna-
1 Samuel Young, a SNCC worker, was a Navy veteran. He
lost one of his kidneys from a wound he had received in the ill-fated
Bay of Pigs invasion of 1961 off the coast of Cuba. Young was
shot and killed in January, 1966 near a gasoline service station in
Macon County, Alabama as he approached the station to use the
rest-room. New York Times, Jan. 5, 1966, p. 1, col. 2.
6
tive, knowing full well that it may cost their lives—
as painfully as in Viet Nam.” (R. 137).
Later in the afternoon, a newsman employed by a state-
owned radio station called Julian Bond, who had not parti
cipated in drafting the statement, at his residence in
Atlanta and inquired whether Bond endorsed the SNCC
statement (R. 36, 45, 48). Bond said that he did, adding
that as a pacifist he opposed all wars and was “ eager and
anxious to encourage people not to participate in it [war]
for any reason that they choose” (R. 111). He further
stated that he agreed with the statement for the reasons
set forth because he thought it was “ sorta hypocritical for
us to maintain that we are fighting for liberty in other
places and we are not guaranteeing liberty to citizens in
side the continental United States” (R. 111). He saw no
conflict between his endorsement of the SNCC statement
and the performance of his duties as a legislator or his
ability to take the oath of office (R. 111).
C. P roceed in gs in th e H ouse o f R ep resen ta tiv es
to E xclu d e Mr. B ond
On the morning of January 10, 1966, when Mr. Bond
arrived at the House of Representatives to he sworn in as
the Representative-elect from the 136th House District, the
Clerk of the House ordered him to stand aside as the oath
was administered to the other Representatives. Challenges
to Mr. Bond’s right to he sworn and seated, based upon his
statement to the press, were filed by at least 75 white mem
bers of the House. The petitions charged, inter alia, that
Mr. Bond’s actions and statement gave aid and comfort to
the enemies of the United States, violated the Selective
Service laws, and tended to bring discredit and disrespect
on the House of Representatives (R. 13-15) ; that he had
stated that he “ admires the courage of those persons who
burn their draft cards” (R. 13). It was also charged that
the statements and views of Mr. Bond disqualified him
7
from taking the oath to support the Constitution of the
United States and the Constitution of Georgia required of
a member of the House of Representatives (R. 14, 18, 19),
The petition charged that Mr. Bond’s “ full endorsement”
of the SJNTCC policy statement “ is totally and completely
repugnant to and inconsistent with the mandatory oath
prescribed” for members (R. 19).
Mr. Bond tiled a written response to the challenge peti
tions, denying that he was disloyal, disqualified, or that he
had committed treason, or violated any law. His response
alleged, inter alia, that the challenges, contests and petitions
were filed against him to deprive him of his rights under
the First Amendment (R. 21).
A Special Committee composed of the Rules Committtee
and three additional members, two of whom were Negroes,
was appointed to hear the challenge. Three of the persons
challenging Mr. Bond’s right to be seated served on the
Special Committee (R. 9).
A hearing was then held on the challenge petitions for
the purpose of deciding “ the substance of what Mr. Bond
said” before offering himself for membership in the House,
“ and the intentions behind what he said” (R. 29). For evi
dence, the challengers introduced a tape of the telephonic
interview on January 6, 1966, a tape of an interview with
Mr. Bond in the hallway of the State Capitol immediately
after the Clerk refused to administer the oath to him (R.
115), and the testimony of Mr. Bond (R. 81). Mr. Bond was
asked at the hearing whether he admired “ the courage of
persons who burn their draft cards” (R. 40). He replied:
“ I admire people who take an action, and I admire
people who feel strongly enough about their convic
tions to take an action like that knowing the conse
quences that they will face, and that was my original
statement when asked the question.” (R. 41).
8
Mr. Bond called four witnesses who urged his seating
and stated that he deserved the right to he seated (R. 58, 61,
65, 69).
The Special Committee then recommended that Mr.
Bond not be seated (R. 88). The two Negro members dis
sented along with a white legislator from Fulton County
(R. 89, 92). The House then adopted House Resolution 19
not to seat Mr. Bond in accordance with the majority recom
mendation of the Special Committee (R. 99).
D. P roceed in gs in th e Court B elo w to R em ed y
th e E xclusion
Mr. Bond and his constituents thereupon instituted this
action for injunctive relief and a declaratory judgment that
the legislature’s action was unauthorized by the state Con
stitution and violated their rights under the federal Consti
tution. A three-judge court was convened under 28 U. S. C.
§ 2281, and conducted a trial of the issues.2
On February 14, 1966, the Court rendered final judg
ment against the appellants. It unanimously held that it had
jurisdiction because the plaintiffs had asserted substantial
First Amendment rights (R. 140). The Court, Chief Judge
Tuttle dissenting, struck from the complaint the names of
the appellants other than Mr. Bond on the ground that they
lacked “ such a direct interest in the litigation as would
give them standing to bring the complaint” (R. 141).
On the merits, the Court was also divided. The majority
agreed that “ [t]he substantial issue in the case rests on the
guaranty of freedom of speech or to dissent, under the First
Amendment as the amendment has long been applicable
to the states under the due process clause of the Fourteenth
Amendment” (R. 142). Nevertheless, it held that Mr.
Bond’s “ statements and affirmation of the SNC'C state-
2 At the trial, in order to avoid adding the State Treasurer as a
party defendant, the parties stipulated that the State of Georgia
would pay Mr. Bond’s legislative salary should he prevail upon this
appeal (R. 185).
9
ment as they bore on the functioning of the Selective Serv
ice System could reasonably be said to be inconsistent with
and repugnant to the oath which he was required to take”
(E. 153).
Chief Judge Tuttle, dissenting, was of the view that
since substantial federal constitutional issues of freedom
of speech were involved, the Court was under a duty to con
strue the Georgia constitutional provisions “ with an eye to
the avoiding of the constitutional question if possible” (R,
166). He concluded that Mr. Bond had met the qualifica
tions for legislative office explicitly set forth in the Consti
tution and that it could not be construed to authorize
rejection from elected office for a reason not specified, viz.,
for making a lawful public statement upon foreign affairs.
E. S u b se q u e n t A c tio n s b y t h e E le c to ra te
While this appeal was pending the Governor of Georgia
called a special election to fill the vacancy created by Mr.
Bond’s exclusion. Mr. Bond entered the election on protest
and won it on February 23, 1966. He wTas again prevented
from taking his seat by a decision of the Rules Committee
authorized by the House to act during the legislative recess.
The decision was made after a hearing in which lie declined
to recede from the earlier position which had. led to this
litigation.3 On September 14, 1966, Mr. Bond again won the
Democratic primary and will be the Democratic candidate
in the November 1966 election.
Summary of Argument
I
In excluding Mr. Bond from the office to which he had
been elected, the Georgia House exceeded its authority
3 See appellees’ motion to affirm or dismiss, appellants’ brief in
opposition and motion to advance, and appellants’ memorandum of
June 14, 1966.
10
under the clear language of the Georgia Constitution. This
conclusion is further supported by the lessons of Anglo-
American history, by Georgia case law, and by the need to
avoid the substantial constitutional problems otherwise pre
sented by this case.
The Georgia Constitution is explicit on the subject of
the qualifications and disabilities for office in the House.
Article III, Section VI, Paragraph I sets forth the qualifi
cations, infra, p. 47. Three succeeding articles set forth
in precise terms the reasons for disqualifications or in
eligibility, infra, pp. 48, 49. The court below agreed that
Mr. Bond met these constitutional requirements. The case
does not present the different and broader power of the
House to punish its members “ for disorderly behavior or
misconduct,” infra, p. 49.
The constitutional provision that the House “ be the
judge of the election returns, and qualifications of its mem
bers” authorizes it to determine whether the constitutional
qualifications have been met, not to add new ones. This view
is epitomized by the Middlesex election case of John Wilkes,
infra, p. 19 which was reflected in the language of the
federal Constitution and in many of the succeeding state
constitutions prescribing qualifications for legislative office.
The oath required of a legislator that he will support
the federal and state Constitutions, and will “ so conduct
myself, as will, in my judgment, be most conducive to the
interests and prosperity of this State”, infra, p. 47 does
not authorize the House to impose additional qualifi
cations. Such a construction of the oath is a distortion of
language raising serious constitutional problems of vague
ness, impairment of freedom of speech, denial of the fran
chise, and gives rise as here to a bill of attainder and an ex
post facto law. It also violates the salutary rule that courts
should, if possible, seek a construction which would avoid
constitutional problems.
11
II
There is nothing vague about the provisions of the
Georgia Constitution which explicitly set forth both the
qualifications and disqualifications of members of the
legislature. However, the finding below in the constitutional
requirement of an oath of office, Article III, Section IY,
Paragraph Y, of an implicit substantive qualification for
office makes the oath unconstitutionally vague. In terms,
the oath is a promise that its taker will support the federal
and state Constitutions and conduct himself in his judg
ment in the state’s best interests. The court below has
changed this promissory oath into a representation as to
the past, giving a legislative majority the authority to
determine whether the oath can be sincerely taken. The
required assessment of the legislator’s past behavior, state
ments and opinions finds no standard in an oath as to what
is “ most conducive to the interests and prosperity of this
State . . . ” in his judgment. Such an oath is unconstitution
ally vague under this Court’s decisions in Cramp v. Board
of Public Instruction, 368 II. S. 278 and Baggett v. Bullitt,
377 U. S. 360. The vice of vagueness is aggravated since the
oath as applied admittedly touches upon sensitive First
Amendment freedoms.
III
It is not disputed that Mr. Bond was excluded from
office solely because of his opinions and statements on
national issues. This exclusion strikes at the “ national com
mitment” for debate on public issues embodied in the
First Amendment. It does violence to the guarantee in
the privileges and immunities clause of the right to as
semble, debate and petition on issues affecting the federal
government. An elected legislator has as much right as his
constituents under the First Amendment to have these
beliefs and to state his opinion on the subject. Indeed, he
has a special duty to state his views to his constituents who
12
are entiled to have a basis for evaluating him. He also
carries out his responsibilities by expressing their views.
Neither the principle of separation of powers nor that
of federalism justifies a diminution of First Amendment
protections. It is a judicial function to restrain illegal action
by the other branches of government, and the federal courts
have the responsibility of protecting federal constitutional
rights against state action. The test applied below of a
‘ ‘ rational evidentiary basis ’ ’ has been held to be appropriate
in cases of economic regulation, not where First Amendment
freedoms are involved. An elected representative has an
absolute right to express his opinions on public issues
without being declared ineligible for office.
But even under the lower court’s own test, there was no
rational basis for believing that Mr. Bond’s statements
“ could reasonably be said to be inconsistent with and repug
nant to the oath which he was required to take.” The SNCC
statement which he endorsed was a vigorous expression of
opinion on national affairs and protected by the First
Amendment. Mr. Bond’s approval of it and his admiration
for the courage of persons who were prepared to act
in accordance with their conscience was not inconsistent
with his oath of office. There was no substantive state
interest here comparable to those found in cases involving
conspiracies to overthrow the government, obscenity and
disorderly conduct in the street. The state has no legitimate
interest in the suppression of dissenting views in its legisla
ture; indeed, the policy of Georgia, constitutionally estab
lished, is not to disqualify legislators even for criminal con
duct until after a judgment of criminal conviction. The very
subject under discussion, national conscription for military
service, is beyond state jurisdiction. Pennsylvania v.
Nelson, 350' U. S. 497. But there is a real state interest
inherent in a democracy in the expression of dissenting-
views by the members of the Legislature, and in obedience
to the choice of the electorate.
13
IV
Mr. Bond’s constituents have been deprived of repre
sentation in the House. Mrs. Keyes’ right to cast a
meaningful vote and Dr. King’s right to be represented
are as important as Mr. Bond’s right to take office. To
deprive them of these rights because the legislature dis
approved of Mr. Bond’s political views is to violate the
due process and the equal protection clauses of the Four
teenth Amendment. The court below was therefore in error
in holding that they lacked a direct interest in the litigation.
V
House Resolution 19 is a bill of attainder under the
tests established by history and by this Court and violates
Article I, Section 10 of the United States Constitution.
It named Mr. Bond as the object of the resolution and it
punished him for his expressions of political opinion.
The House Resolution is also an ex post facto law, viola
tive of the same constitutional provisions. The Georgia
Constitution afforded no notice that a legislator’s opinions
and public statements would disqualify him from office.
It is an ex post facto law because it is punishment for acts
innocent at the time of occurrence.
ARG UM ENT
P O T N T I
The H ouse did not have power under Georgia law
to bar Mr. Bond from office.
Chief Judge Tuttle, dissenting below, correctly stated
that “ the House exceeded its authority [under the Consti
tution and laws of Georgia] in voting to reject Bond”
(R. 154, 176). This conclusion was required by the clear
14
language of the Georgia Constitution, the absence of con
flicting state court decisions, and the need to avoid the
substantial constitutional problems otherwise presented by
this case.
The Georgia Constitution is explicit on the subject of
the qualifications of and the disabilities for office in the
House of Representatives.
Article III, Section VI, Paragraph I provides:
“ Qualifications of representatives.—The Repre
sentatives shall be citizens of the United States
who have attained the age of twenty-one years, and
who shall have been citizens of this State for two
years, and for one year residents of the counties from
which elected.” (§2-1801, Ga. Code Ann.)
The disqualifications appear in three other provisions of
the same Constitution.
Article II, Section II, Paragraph I, entitled “ Registra
tion of electors ; who disfranchised ’ ’, provides that:
“ * * * the following classes of persons shall not
be permitted to register, vote, or hold any office, or
appointment of honor, or trust in this State, to-wit:
1st. Those who shall have been convicted in any court
of competent jurisdiction of treason against the
State, of embezzlement of public funds, malfeasance
m office, bribery or larcency, or of any crime involv
ing moral turpitude, punishable by the laws of this
State with imprisonment in the penitentiary, unless
such persons shall have been pardoned. 2nd. Idiots
and insane persons.” (§ 2-801, Ga. Code Ann.)
Article III, Section IV, Paragraph YI, entitled “ Eligi
bility; appointments forbidden”, denies a seat in either
House to persons “ holding a military commission, or other
appointment, or office having an emolument, or compensa
tion annexed thereto, under this State, or the United States”
(with certain exceptions) and to “ any defaulter for public
money, or for any legal taxes”. (§2-1606, Ga, Code Ann.)
15
Article VII, Section III, Paragraph VI, entitled “ Profit
on public money” , makes it “ a felony, and punishable as
may be prescribed by law, a part of which punishment shall
be disqualifications from holding office” for a member of the
General Assembly to receive “ any interest, profits or per
quisites, arising from the use or loan of public funds in his
hands or moneys to be raised through his agency for State
or county purposes.” (§2-5606, Ga. Code Ann.)
The precision of these qualifications stands out in con
trast to the broader power of the House to punish its mem
bers “ for disorderly behavior, or misconduct, by censure,
fine, imprisonment, or expulsion” Article III Section VII
Paragraph I (§ 2-1901, Ga. Code Ann.). The breadth of this
latter power is appropriately balanced in the Georgia Con
stitution as in most others by the requirement that “ no
member shall be expelled except by a vote of two-thirds of
the House to which he belongs ’ ’, ibid.
The majority below did not disagree with the Chief
Judge’s view that Mr. Bond could not be excluded under
any specific provision of the Georgia Constitution. Instead,
it denied that the “ qualifications and disqualifications of
legislators in the Georgia Constitution are all-inclusive” (R.
148), and it found in the principle of separation of powers
an implied right in the Georgia House to reject the majority
choice of the voters. It said that the Chief Judge’s “ re
strictive ” view was “ unfounded in recognized authority and
not in keeping with our history or the principle of separation
of powers” (R. 144).
It is not clear from the decision below which of the au
thorities and facts it sets forth was intended to be covered
by the terms “ authority” , “ history” and “ separation of
powers” . Regardless of how they are categorized, they do
not support the conclusion of the court below.
Every Georgia Constitution, including the first Consti
tution of 1777, has specified the qualifications of representa-
16
lives.4 The frequent changes which have been made in these
qualifications suggest that close attention has been paid to
the problem, and that the drafters of the Constitutions have
always sought to make the qualifications explicit and to
keep them politically meaningful. There is no indication in
the journals or reports of the conventions5 or in the schol
arly discussions of Georgia constitutional law8 that qualifi
cations for legislative office existed outside those specified in
the Constitution.
No state court in Georgia has ever held that the House
has the power to impose qualifications. The Supreme
Court of Georgia held directly to the contrary in 1869
when the results of an election for Clerk of the Superior
Court were challenged on the ground that the victor had
‘‘one-eighth or more of African blood” and hence was
ineligible under the Georgia code. In White v. Clements,
39 Ga. 232, 265, the court definitively held that “ if the
Constitution prescribes a qualification for an officer, it by
necessary implications denies to the legislature the power
to fix new and other qualifications.”
The court below cited three Georgia state cases for
the proposition that its courts “ have consistently refused
to take jurisdiction over controversies having to do with
qualifications of legislators. The Senate or House, as hap
pened to be the case, was deemed to have exclusive juris-
4 The constitutions are cited at R. 143.
5 See, e.g., Journal of the Georgia Constitutional Convention,
January 4, 1789, May 4, 1789; Journal of the Georgia Constitutional
Convention of 1/98, ed. Saye, 36 The Georgia Historical Quarterly,
No. 4, Dec. 1952, 350, 356, 365; A Stenographic Report of the
Proceedings of the Georgia Constitutional Convention, 1877, 374.
6 See McElreath, A Treatise on the Constitution of Georgia
(1912); Saye, A Constitutional History of Georgia (1948); Ware,
A Constitutional History of Georgia (1947).
17
diction under the Georgia Constitution. Rainey v. Taylor,
1928, 166 Ga. 476, 143 S. E. 383; Fowler v. Bostick, 1959,
99 Ga. App. 428, 108 S. E. 2d 720; and Beatty v. Myrick,
1963, 218 Ga. 629, 129 S. E. 2d 764” (R. 143-144). None
of those cases, as Chief Judge Tuttle pointed out, gives
the House or Senate jurisdiction “ to judge whether the
contesting parties lacked qualifications which are not ex
pressly stated as ‘qualifications’ or rules of ‘eligibility’ in
the Georgia Constitution” (R. 167). In Rainey, the Gen
eral Assembly was held solely authorized to determine
whether the successful candidate was disqualified under a
constitutional prohibition against one holding another state
office. In Fowler, the same issue was raised with respect
to the position of court clerk. Beatty involved not quali
fications but the judging of the election results.
Those cases were correctly decided under the constitu
tional provision that “ each House shall be the judge of
the election, returns and qualifications of its members . .
Article III, Section VII, Paragraph I (§2-1901, Ga. Code
Ann.). That provision does not authorize the House to
establish qualifications other than those set forth in the
Constitution, nor did the court below7 so hold. It means
that the House is to determine whether the members meet
the qualifications specified by law7.
The lower court’s statement that “ there is at least
one disqualification in the Georgia law which is not con
tained in the Constitution” (R. 147) is not apposite. It is
not clear that the statute making “ persons of unsound
mind” ineligible for “ civil office” refers to the legislature
(Ga. Code Ann. §§ 89-101 subd. 5), cf. 17 Op. Atty. Gen.
(U. S.) 420 (1882) interpreting Art. 2, Section 4 of the
United States Constitution; if so, it would violate the
Georgia Constitution, White v. Clements, supra. In any
event, the establishment of qualifications by statute is very
different from a House Resolution adopted pursuant to
quasi-judicial powers.
18
Chief Judge Tuttle’s conclusion that the qualifications
must he specified by law, not promulgated on an ad hoc
basis, is supported by the 18th century parliamentary
history of England and by the debates and actions of the
Federal Constitutional Convention of 1787. The former is
important because of the close relationship between John
Wilkes and the Revolutionists, the latter because the United
States Constitution was followed by the Georgia Constitu
tion which like it made the qualifications for legislative office
quite specific.
Significant English history on this point goes back to
Ashby v. White (1702), 2 Ld. Raym. 938, 14 S. T. 695,
where Chief Justice Holt, dissenting, expressed the view
that “ since the privileges of Parliament were a part of the
law, they must be defined by the law, and not by the resolu
tions of the House” . 10 Holdsworth, History of English
Law, 543.7 As Mr. Justice Frankfurther has said, “ The
House of Commons’ claim of power to establish the limits of
its privilege has been little more than a pretense since Ashby
v. White, 2 Ld. Raym. 938, 3 id. 320”, Tenney v. Brandhove,
341 U. S. 367, 376-377.®
The principle was established most dramatically by
the Middlesex election case of John Wilkes 9 who is known
in Anglo-American constitutional history for more than
his successful assault upon general warrants employed to
ferret out opposition to the Crown,10 or legislative im-
7 Holt’s opinion was adopted by the House of Lords. See, H. L.
Jour. XVII, 534 (1704) ; Williams, The Eighteenth Century Con
stitution (1960) 221, 224-228.
8 Ashby is also cited in Gray v. Sanders, 372 U. S. 368, 375, n. 7.
9 The Middlesex election case is described at length in May,
Constitutional History of England, I, 364-384; Chafee, Free Speech
in the United States (1964) 242-247; 10 Holdsworth, History of
English Law, 540-549; Williams, The Eighteenth Century Con
stitution (1960), 222-223, which includes significant parliamentary
resolutions on the subject, id. at 242-244.
10 Chafee, op. cit. 242.
19
munity from arrest11 or Ms insistence upon the reporting
of parliamentary debates.12
Wilkes was elected to the House of Commons as a
member for the County of Middlesex in 1768 and was ex
pelled from it on account of “ seditious libel” , viz., his at
tack upon George III. He was re-elected, re-expelled and
declared incapable of being elected to serve in that Par
liament. On his third re-election the House declared his op
ponent to have been elected. “ The crux of the matter
was whether the House had power to incapacitate Wilkes
from being elected.” 13 This issue was bitterly contested
in England, with financial and other support from the
American colonists, whose cause was identified with that of
Wilkes.14 It was recognized in both countries that the
right of the people to choose their representatives was at
stake. Thus, in the House of Commons serjeant Glyn
stated:15
‘ ‘ The disqualification of Mr. Wilkes not being
the law of the land, the freeholders of Middlesex
were not obliged to take notice of it. That the
disqualifications of bodies of men, as clergy, aliens,
etc., were all either by express laws, or by implica
tion from the common law, and that the votes of
the House to that effect were only declaratory, but
not enacting. That undoubtedly the House had a
jurisdiction over its own members, and were judges
of the rights of electors, but such judgments must
be according to law, a natural consequence of every
11 Ibid.
12 E. N. Williams, op. cit. 223.
13 Ibid.
14 Miller, Origins of the American Revolution (1943) 201, 305,
317, 321-325, 425, Rude, Wilkes and Liberty, Beloff, The Debate-
on the American Revolution, 1761-1783 ( 2d ed. 1960 ) 21, 27; Post
gate, That Devil Wilkes (1930) 150, 186, 234-235; Schlesinger,
Prelude to Independence (Vintage ed 1965) 35-37 and passim.
15 Pari. Hist. Vol. XVI, 587 in; Holdsworth, op. cit. at 543.
20
court of judicature in this kingdom. That the rights
of the freeholders of Middlesex, as well as the right
of every citizen or burgess, was an inherent right
in them, not derived from the House of Commons,
and therefore could not be taken away from them
by the House, except in cases when, offending against
law, they had forfeited a right to such privileges.”16
In 1782 the House of Commons expunged the prior
exclusions “ as being subversive of the Rights of the whole
Body of Electors of this Kingdom”.17 Since then it has
been established law in England that there may be no dis
qualification for office except for reasons established by
law, see Erskine May’s Treatise on the Law, Privileges and
Proceedings and Usage of Parliament (17th ed. 1964)
60-63.
It was quite natural that the draftsmen of the various
American Constitutions should take pains to ensure that
the legislative bodies be selected by the people in accord
ance with prescribed conditions of office. Thus, on the floor
of the Constitutional Convention of 1787 James Madison
successfully led the opposition to a proposal “ to give to
Congress power to establish qualifications in general . . .
and it also defeated the proposal for a property qualifica
tion. . . .” Warren, The Making of the Constitution (1928),
420-422. As the Journal of the Federal Convention of
1787 states:
“ Mr. Madison was opposed to the Section as
vesting an improper and dangerous power in the
Legislature. The qualifications of electors and
elected were fundamental articles in a Republican
Govt, and ought to be fixed by the Constitution. If
the Legislature could regulate those of either, it can
by degrees subvert the Constitution. A Republic
may be converted into an aristocracy or oligarchy
is See also Pari. Hist. Vol. XVII, 131-134.
n H. C. Tour. XXXVIII, 977 (May 3, 1782) ; William, op. cit,
244.
21
as well by limiting* the number capable of being
elected, as the number authorised to elect. In all
cases where the representatives of the people will
have a personal interest distinct from that of their
Constituents, there was the same reason for being-
jealous of them, as there was for relying on them
with full confidence, when they had a common inter
est. This was one of the former cases. It was as
improper as to allow them to fix their own wages, or
their own privileges. It was a power also which
might be made subservient to the views of one fac
tion agst. another. Qualifications founded on
artificial distinctions may be devised, by the stronger
in order to keep out partizans of a weaker faction.
# # *
Mr. Madison observed that the British Parliament
possessed the power of regulating the qualifications
both of the electors, and the elected; and the abuse
they had made of it was a lesson worthy of our
attention. They had made the changes in both cases
subservient to their own views, or to the views of
political or Religious parties.” 2 Farrand, The
Records in the Federal Convention of 1787 (Aug. 10,
1787), pp. 249-50.
Authoritative contemporary discussion was to the same
effect. Alexander Hamilton wrote:
“ The qualifications of the persons who may
choose or be chosen . . . are defined and fixed by the
constitution; and are unalterable by the legislature. ’ ’
The Federalist, No. 60 (Cooke ed. 1961) 409.
And Mr. Justice Story wrote:
“ It would seem but fair reasoning, upon the
plainest principles of interpretation, that when the
Constitution established certain qualifications as
necessary for office, it meant to exclude all others as
requisites. From the very nature of such a provi
sion, the affirmation of these qualifications would
seem to imply a negative of all others.” Story on
the Constitution, § 625 (6th ed. 1891) 461.
Mr. Warren is correct in concluding that, “ The elimi
nation of all power in Congress to fix qualifications clearly
22
left the provisions of the Constitution itself as the sole
source of qualifications” , Warren, op cit. at 422.18
Significantly, a constitutional amendment was appar
ently deemed necessary to exclude persons from Congress
who, contrary to their oath, had “ engaged in insurrection
or rebellion” or “ given aid or comfort to the enemies”
of the United States (Const., Amendment XIV, § 3).
It is reasonable to assume that the views of the dele
gates to the Federal Constitutional Convention were known
and accepted in Georgia. John Wilkes was strongly
supported in Georgia as elsewhere in the United States.19
The Georgia Convention of May 1789 adopted the state’s
second Constitution, some 16 months after Georgia had
ratified the federal Constitution, containing language
similar to that in the federal Constitution.20
The plain language of the Georgia Constitution, rein
forced by English and American constitutional history is
not refuted by the occasional partisan claims in Congress
to a greater power over qualifications. This is very dif
ferent from the administrative implementation of a statute
in which Congress by failing to amend is deemed to
acquiesce. Cf. United States v. Midwest Oil Co., 236 U. S.
459. For every claim of a legislative body’s power to fix
qualifications there is an equally firm claim to the contrary
18 The same conclusion was reached after a detailed study of the
convention proceedings. Note, The Right of Congress to Exclude its
Members, 33 Va. L. Rev. 322 (1947). Another commentator
relied upon by the court below concerning Congressional practice
(R. 146-47) agrees that “neither House may impose qualifications
additional to those that are mentioned” I Willoughby, The Con
stitution of the United States (2d ed. 1929) § 340.
19 See, e.g., McCall, History of Georgia (1816) II, 299-300.
20 Georgia’s first Constitution, that of 1777, contained a statement
of qualifications. Its second, that of 1789, was the first to authorize
the legislature to judge the “election, returns and qualifications” of
members.
and inconsistency of position by the most judicious of Sen
ators is not unknown.21 It is more significant that on a
subject so fraught with polities the attempt to impose extra
constitutional qualifications has been so rarely asserted.
The ‘ ‘ historical precedents ’ ’ cited by the court below are
illusory (E. 146). The Senate never decided the case of
Senator Bilbo who died before action could be taken. The
principal charge against him related to his conduct of his
election campaign, a legitimate subject of inquiry (see
Senate Election, Expulsion ancl Censure Cases from 1789 to
1960, S. Doc. No. 71, 87th Cong. 2d Sess., 142-143). As for
Senator Smoot, the Senate refused to exclude him “ for
alleged disqualifications other than those specified in the
Constitution”, id. at 97-98; even the attempt to expel him
failed.
The federal cases relied upon by the majority below are
equally inapposite (E. 145-148). Two of them, In re Chap
man, 166 TJ. S. 661, and Barry v. United States, 279 U. S.
597, involve the federal power of investigation. Wilson v.
North Carolina, 169 U. S. 586, involved a state governor’s
suspension of a state commissioner. Snoivden v. Hughes,
321 U. S. 1, did not involve a legislative imposition of new
qualifications, but a challenge of election results.22
The court below finally sought to find in the “ oath of
members” provision of the Constitution (Article III,
Section IV, Paragraph V) some authority for the action
of the House:
“ Each senator and representative, before taking
his seat, shall take the following oath, or affirmation,
21 See, for example, the views of Senators Taft and George on
the qualifications of Senator Langer, 88 Cong. Rec. 2859 (1942)
and Senator Bilbo, (93 Cong. Rec. 15, 16).
22 The single state court case cited by the majority was Hiss v.
Bartlett, 3 Gray 468 (1855), a case involving the broader right of
expulsion (R. 145).
24
to wit: ‘ I will support the Constitution of this State
and of the United States, and on all questions and
measures which may come before me, I will so con
duct myself, as will, in my judgment, he most con
ducive to the interests and prosperity of this State’.”
('§ 2-1605, Ga. Code Ann.)
Nothing in this oath authorizes the House to bar from
office a person who meets the qualifications of Article III,
Section VI, Paragraph I of the Constitution, and who is
not disqualified by the explicit provisions for disqualifica
tion. The Constitution requires an elected member to take
the oath before he takes his seat; it does not authorize his
fellow members to prevent him from taking the oath, which
is promissory in character and not a standard for judging
past conduct. There is nothing more subjective and hence
incapable of use as a test of qualifications than the agree
ment that the oath-taker will support the state and
federal Constitutions and that he will conduct himself
as will in his judgment “ be most conducive to the interests
and prosperity of this State. ’ ’
The determination of loyalty is not to be found in the
manipulation of this oath of office. The state Constitution
has made explicit provision elsewhere for such a determin
ation which disqualifies persons “ convicted in any court of
competent jurisdiction of treason against the state,” Arti
cle II, Section II, Paragraph I, infra, p. 48.
The attempt to turn the oath provision, a solemn ap
peal to the conscience of a member, into a qualification for
office is a plain distortion of language and of the purpose
of an oath of office. Constitutional questions aside, it
should be rejected, simply because words should be given
their plain meaning and not used to achieve purposes rad
ically different from those intended by the draftsmen.
Moreover, the construction adopted belowT does raise a
host of constitutional problems: vagueness (infra, p. 25),
25
effect upon the franchise (infra, p. 38), effect upon free
dom of speech (infra, p. 27) and the prohibition against
bills of attainder and ex post facto laws. These problems
are so familiar that, even before studying them closely,
the wisdom of Chief Judge Tuttle’s admonition is ev
ident : a court should first construe the statute with an eye
to the avoiding of the constitutional question if possible
(R. 166). See Kent v. Dulles, 357 U. S. 116; United States
v. Rumely, 345 U. S. 41, 46.
P O I N T II
The oath provision of the Georgia Constitution, as
interpreted below, is unconstitutionally vague under
the Fourteenth Amendment.
The Georgia Constitution on its face contains an explicit
statement of (i) the qualifications of Representatives,23
(ii) disqualification after conviction of specific crimes and
of “ idiots and insane persons”,24 (iii) disqualification of
persons holding other state offices, receiving other state
benefits, or in default of their financial obligations.25 There
is nothing imprecise about any of these provisions.
But the court below as we have seen, supra, p. 23, has
found that there is an implicit qualification for office—
namely that a member-elect’s past conduct indicates that
he will support the state and federal Constitutions and
that “ on all measures which may come before me, I will
so conduct myself, as will in my judgment be most con
ducive to the interest and prosperity of this State.”
The Court below has changed the promissory oath into
a representation as to the past. As thus construed, the oath
23 Article III, Section VI, Paragraph I, infra, p. 47.
24 Article II, Section II, Paragraph I, infra, p. 48.
25 Article III, Section IV, Paragraph VI, infra, p. 48.
26
provision authorizes a legislative majority to evaluate
the oath-taker’s opinions, past behavior and public state
ments to determine whether he is capable of taking the
oath with sincerity. There are absolutely no standards
for this judgment by the legislature.
In Cramp v. Board of Public Instruction, 368 U. S. 278,
the Court doubted that the words “ aid, support, advice,
counsel or influence” to the Communist Party were “ sus
ceptible of objective measurement”, supra, at 285-286; con
versely, there is no more precision in evaluating Mr. Bond’s
“ support” of the Constitution. Indeed, a recent Georgia
legislature, whose members had taken this very oath, ac
cused this Court of treason for its decisions protecting con
stitutional rights. Interposition Resolution, (March 9, 1956)
H. R. 185, Georgia Laws 1956, No. 130, at 642.
Every legislator may have a different view as to
whether the past behavior of a colleague indicates that his
future behavior will ‘ ‘ support the Constitution of this State
and of the United States” . Further, a promise to “ conduct
myself as will in my judgment, be most conducive to the
interests and prosperity of this State” is no more precise
than the promise to “ promote . . . undivided allegiance to
the government of the United States” which this Court held
invalid in Baggett v. Bullitt, 377 U. S. 360.
It is apparent that the measuring rod found by the
court below in the constitutional oath of office is vague
enough when applied to conduct. It becomes absolutely
meaningless when it is applied to public expressions of opin
ion, which are protected by the First Amendment, as the
court below recognizes in the case of the ordinary citizen
(R. 151). Where an oath “ abut[s] upon sensitive areas of
basic First Amendment freedoms” the vice of unconsti
tutional vagueness is aggravated since, as applied here, it
would require all candidates for office to eschew clearly
lawful activities. Baggett v. Bullitt, supra, at 372.
27
P O I N T I I I
Mr. Bond’s exclusion from elected legislative office
solely because o f his opinions and public statem ents
on national issues violated the guarantee o f freedom
of speech and his privileges and immunities under the
First and Fourteenth A m endm ents.
Mr. Bond was denied his seat because of his public ex
pression of opinion on domestic and foreign affairs. This
is manifest from the charges filed against him (R. 13-20)
and from the hearings in the committee and the House
(R. 28-99). This action, endorsed by the court below,
strikes at the First Amendment’s imperative of a govern
ment based upon the consent of an informed citizenry.
Cox v. Louisiana, 379 U. S. 536, 552; Stromberg v.
California, 283 U. S. 359; New York Times Co. v. Sullivan,
376 U. S. 254, 270; Garrison v. Louisiana, 379 U. S.
64; DeJonge v. Oregon, 299 U. S. 353, 365; Terminiello v.
Chicago, 337 U. S. 1, 4; Whitney v. California, 274 U. S.
357, 375; United States v. C. I. 0., 335 U. 8. 106.
This Court has recognized the importance to the public
of securing information and knowledge in a wide variety of
cases involving travel (Kent v. Dulles, 357 U. S. 116;
Aptheker v. Secretary of State, 378 U. S. 500), freedom
to receive information through the mail (Lamont v. Post
master General, 381 U. S. 301), newspaper commentaries
and advertisements (New York Times Co. v. Sullivan,
supra), criminal libel against public officials (Garrison v.
Louisiana, supra), immunity of government officials from
libel (Barr v. Matteo, 360 U. S. 564) and the arts and litera
ture (Kingsley Pictures Corp. v. Regents, 360 U. S. 684).
These cases have emphasized the central meaning of the
First Amendment, namely,
“ the profound national commitment to the principle
that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include
vehement, caustic and sometimes unpleasantly sharp
attacks on government and public officials.” Neiv
York Times Co. v. Sullivan, supra, at 270.
The exclusion from office of Mr. Bond cannot be squared
with the principle that “ the censorial power is in the peo
ple over the Government, and not in the Government over
the people,” 4 Annals of Congress 934 (1794) quoted by
Mr. Justice Brennan in The Supreme Court and- the Meikle-
john Interpretation of the First Amendment, 79 Harv. L.
Rev. 1, 15.
The SNCC statement was a vigorous criticism of
American foreign and domestic policy. It was entitled to
constitutional protection regardless of whether or not one
agrees with it. As Professor Meiklejohn says, “ The vital
point . . . is that no suggestion of policy shall be denied a
hearing because it is on one side of the issue rather than
another. . . . These conflicting views may be expressed, must
be expressed, not because they are valid, but because they
are relevant,” Meiklejohn, Political Freedom, 26-28 (1948).
And in Kingsley Pictures Corp. v. Regents, supra, at 688-89,
Mr. Justice Stewart stated:
“ It is contended that the State’s action was justi
fied because the motion picture attractively portrays
a relationship which is contrary to moral standards,
the religious precepts, and the legal code of its citi
zenry. This argument misconceives what it is that
the Constitution protects. Its guarantee is not con
fined to the expression of ideas that are conventional
or shared by a majority. It protects advocacy of the
opinion that adultery may sometimes be proper, no
less than advocacy of socialism or the single tax.
And in the realm of ideas it protects expression which
is eloquent no less than that which is unconvincing. ’ ’
The First Amendment protection given to the SNCC
statement is enhanced by the fact that it related to the
functioning of the federal government. This is a subject
29
upon which the citizens’ views are protected also by the
privileges and immunities clause of the Fourteenth Amend
ment. Such is the teaching of Crandall v. Nevada, 6 Wall.
(73 TJ. S.) 36; The Slaughterhouse Cases, 16 Wall. (83
U. S.) 36, 79, and Hague v. C.I.O., 307 U. S. 496. In United
States v. Cruikshank, 92 U. S. 542, 552, this Court said:
“ The right of the people peaceably to assemble
for the purpose of petitioning Congress for a redress
of grievances, or for anything else connected with
the powers or the duties of the National Government,
is an attribute of national citizenship and, as such,
under the protection of and guarantied by, the United
States.”
This was applied in Hague v. C .1.0., supra, at 512 where
the Court held that
“ freedom to disseminate information concerning the
provisions of the National Labor Relations Act, to
assemble peaceably for discussion of the Act, and
of the opportunities and advantages offered by it, is
a privilege or immunity of a citizen of the United
States secured against State abridgement by Sec
tion 1 of the Fourteenth Amendment . . . ”
The opinion below does not challenge the constitutional
right of SNCC to make the statement. Rather, it empha
sizes the fact that Mr. Bond “ was more than a private
citizen; he was an officer and employee of SNCC and was
about to become a member of the House of Representatives
of Georgia” (R. 152). The court below was of the opinion
that an elected member of the House was entitled to less
constitutional protection than the average citizen. Under
lying the opinion is the unarticulated view that Mr. Bond’s
elected position imposed upon him the obligation to sup
port “ national policy” or to be restrained in his criticism
of it.
This is a conception of second class citizenship for a
legislator, totally without support in logic or in the con-
30
stitutional history of legislative bodies. It is completely
inconsistent with the duty which the office itself imposes
upon the incumbent to engage in a continuing dialogue on
public affairs with his constituents. This court has repeat
edly recognized the critical importance of exposing the
views and conduct of government officials to the view of
their constituents and the public at large, New York Times
Co. v. Sullivan, supra; Garrison v. Louisiana, supra.
The argument of the court below was rejected by this
Court in Wood v. Georgia, 370 U. S. 375, where a sheriff
was held in contempt for issuing a press release criticizing
a judge’s charge to a grand jury. The State had argued
that “ because the petitioner is sheriff of Bibb County and
therefore owes a special duty and responsibility to the
court and its judges, his right to freedom of expression
must be more severely curtailed than that of an average
citizen.” (Id. at 393.) The Court’s response was:
“ The petitioner was an elected official and had
the right to enter the field of political controversy,
particularly where his political life was at stake.
Cf. In re Sawyer, 360 U. S. 622. The role that elected
officials play in our society makes it all the more
imperative that they be allowed freely to express
themselves on matters of current public importance.”
Id. at 394-95.
The court below also assumed that freedom of speech
is solely for the benefit of the speaker. The contrary is of
course true; indeed, the larger interest is that of the public,
Lamont v. Postmaster General of the United States, supra;
Martin v. City of Struthers, 319 U. S. 141, 143. There is a
“ paramount public interest in a free flow of information to
the people concerning public officials, their servants. To
this end, anything which might touch on an official’s fitness
for office is relevant” , Garrison v. Louisiana, supra. If
aspirants for public office are to be discreetly silent, how
can the people intelligently “ discuss the character and
qualifications of candidates for their suffrage” , Coleman
31
v. MacLennan, 78 Kan. 711, 724 (1908), quoted in New York
Times Co. v. Sullivan, 376 U. S. 254, 281.
The lower court’s novel distinction between the rights of
a citizen and those of a legislator led it to disregard the
established principles applicable to the First Amendment.
Thus, it began by stating that First Amendment rights
could he impaired constitutionally “ in the context of two
fundamental principles of government: separation of pow
ers and state government under our system of federalism”
(R. 142). But there is no logical connection between “ fed
eralism” and the need to restrict speech. The First Amend
ment protects speech whatever the source of limitation:
federal legislation, Lamont v. Postmaster General, supra,
a state legislative body, Sweezy v. New Hampshire, 354
U. S. 234, a state judge, Garrison v. Louisiana, supra or
a state criminal prosecution, Dombrowski v. Pfister, 380
U. S. 479.
Nor is there, any logical connection between the separa
tion of powers doctrine and the need to restrict freedom
of speech. That doctrine is not violated when the judicial
branch protects First Amendment rights against impair
ment by either of the other two branches of state govern
ment. See, e.g., Stveezy v. New Hampshire, supra.
The Court below further deviated from the now estab
lished method of testing the impairment of First Amend
ment rjghts when it applied what it called a “ rational evi
dentiary basis test” (R. 151). For it treated this case as
if it involved, not the freedoms of speech and franchise,
but the regulation of business or property calling for
deference to the legislative judgment (R. 150). But this
is a case involving both freedom of speech and of franchise
(infra, p. 38). It directly affects the “ vitality of civil and
political institutions in our society” , Terminietto v. Chicago,
337 U, 8. 1, 4, and the rights of the appellants and the
public are not subject to so narrow a test.
32
When the rational evidentiary basis test was applied in
1938 to a purely economic issue, Mr. Justice Stone inti
mated in a famous footnote the distinction between eco
nomic regulation and the restriction of First Amendment
rights, United States v. Carotene Products Co., 304 U. S.
144, 152, n. 4. This was fully articulated by Mr. Justice
Jackson’s opinion five years later in West Virginia State
Board of Education v. Barnette, 319 U. S. 624, 639:
“ In weighing arguments of the parties it is im
portant to distinguish between the due process clause
of the Fourteenth Amendment as an instrument for
transmitting the principles of the First Amendment
and those cases in which it is applied for its own
sake. The test of legislation which collides with the
Fourteenth Amendment, because it also collides with
the principles of the First, is much more definite
than the test when only the Fourteenth is involved.
Much of the vagueness of the due process clause dis
appears when the specific prohibitions of the First
become its standard. The right of a State to regu
late, for example, a public utility may well include,
so far as the due process test is concerned, power to
impose all of the restrictions which a legislature may
have a ‘rational basis’ for adopting. But freedoms
of speech and of press, of assembly, and of worship
may not be infringed on such slender grounds. They
are susceptible of restriction only to prevent grave
and immediate danger to interests which the State
may lawfully protect. It is important to note that
while it is the Fourteenth Amendment which bears
directly upon the State it is the more specific limit
ing principles of the First Amendment that finally
govern this case.” (Emphasis supplied.)
During the quarter of a century that has elapsed since
the Carotene Products Co. case it is fair to say that no
case has been decided against a person asserting First
Amendment rights upon the basis of the so-called rational
evidentiary test. The test may have varied from clear
and present danger, Schenk v. United States, 249 U. S. 47;
Wood v. Georgia, 370 U. S. 375, 384, to “ grave and imme-
33
diate danger” , West Virginia State Board of Education v.
Barnette, 319 U. S. 624, 639, to Chief Judge Learned Hand’s
variant, United States v. Dennis, 183 F. 2d 201 (2d Cir,
1950), aff’d, Dennis v. United States, 341 U. S. 494, 507.
But the one test never adopted by this Court is that articu
lated below. There is absolutely no basis for the lower
court’s reliance upon decisions in two recent criminal
cases in support of its rational evidence theory; those cases
involved a very different proposition, that a criminal con
viction will not stand under the Fourteenth Amendment
if the record is devoid of evidence to sustain it. Thompson
~v. Louisville, 362 U. S. 199; Garner v. Louisiana, 368 U. S.
157 (R. 151). This is a far cry from a holding that a First
Amendment right may be impaired or restricted if there is
an iota of evidence to justify it.
It cannot be said that this case presents “ some com
pelling state interest [which] justifies the substantive in
fringement of appellant’s First Amendment rights”, Sher-
bert v. Verner, 374 U. S. 398, 406. It must be remembered
that “ in this highly sensitive constitutional area, ‘ [o ]n ly
the gravest abuses endangering paramount interests, give
occasion for permissible limitation’ ” . Ibid, citing Thomas
v. Collins, 323 IJ. S. 516, 530. There is no substantial state
interest involved here comparable to that found by the
Court to exist in cases involving, e.g., the power to inves
tigate subversive activities (Uphaus v. Wyman, 360 U. 8.
72), the power to regulate obscenity (Mishkin v. New York,
383 U. S. 502), and the power to regulate admission to the
bar (Konigsberg v. State Bar of California, 366 U. 8. 36).
The mild observations made by Mr. Bond or endorsed
by him were far from “ fighting words”, and even fight
ing words were held insufficient to support an infringe
ment of First Amendment rights in Chaplinsky v. Neiv
Hampshire, 315 U. S. 568, and see Garrison v. Louisiana,
supra, Mr. Bond’s statement was made at a press inter
view. There was no threat of violence in the streets as
34
in Feiner v. New York, 340 U. S. 315, cf. Edwards v. South
Carolina, 372 U. S. 229. This Court reversed a conviction
in Herndon v. Lowry, 301 U. S. 242, because there was no
situation of imminent danger. Certainly there was no im
minent danger here, nor was there even a remote threat
of a “ putsch” , cf. Dennis v. United States, 341 TJ. S. 494;
Gellhorn, American Rights (1960) 76. Here there was a
peaceful statement made to a newspaper man in response
to his question.
The court below did not properly apply its own test
when it concluded that Mr. Bond’s statements “ could
reasonably be said to be inconsistent with and repugnant
to the oath which he was required to take” (R. 153).
There is nothing in this record to suggest that Mr. Bond
would not support the state and federal Constitutions and
would not conduct himself as would in his judgment “ be
most conducive to the interests and prosperity of this
State.” There is nothing in the record which would cast
doubt upon his integrity; on the contrary, his statements
are impressive in their candor and they reflect an ad
mirable concern for the public welfare.
The SNC'C statement was a vigorous expression by a
Negro organization of its views concerning inadequate pro
tection of the civil rights and lives of the Negroes in this
country, and strong opposition to the present war in Yiet
Nam. It is fair to say that a large section of the intellectual
community is openly critical of the Administration’s con
duct of the war.26 Such opposition is not unusual in a
democracy. Its tradition is reflected in the parliamentary
opposition to the English war against the colonies and in
American congressional opposition to the Mexican and
26 See e.g. Commager, Can we Control the War in Viet-Nam,
Saturday Review, Sept. 17, 1966, 25.
35
Civil Wars. See, e.g., Chafee, Free Speech in the United
States (1964) 267 and passim.
The statement of the court below that “ the SNCC state
ment is at war with the national policy of this country”
(E. 151) is a very strange statement for a court to make
under our system of government. There is no such thing
as a “ national policy” to which dissenting views must be
subordinated. That would be indeed the ‘ ‘ unanimity of the
graveyard” of which Mr. Justice Jackson spoke in West
Virginia State Board of Education v. Barnette, supra, at
641.
The SNCC statement which encouraged alternative wmrk
in the civil rights movement as “ a valid alternative to the
draft”, was an expression of sympathy, not of action or its
incitement. It violated no law. The Selective Service Law
expressly provides for exemption for conscientious ob
jectors 50 U. S. Code App. §456(j) which the Court has
construed broadly in United States v. Seeger, 380 U. S.
163.
The regulations of the Selective Service System make
provision for alternative service or deferments in the na
tional interest, even for persons who are not conscientious
objectors, 32 CFB § 1660 et seq. Such work of the kind
recommended by SNCC has been found acceptable by Selec
tive Service Boards as an alternative to military service.
Aside from its animadversions on SNCC for its state
ment, there was even less justification for the court below
to conclude that Mr. Bond’s statements were repugnant
to his oath of office. He is a Negro and a pacifist who
is opposed to all war. He did not draft the SNCC state
ment, nor did he issue a “ call to action” (E. 36). He
merely responded to a newspaper man’s inquiry as to
whether he agreed with the statement (E. 110). Should
36
he have concealed his agreement with the SNCC statement
by refusing’ to answer the press or by telling an untruth ?
The court below also referred to Mr. Bond’s statement
“ that he admired the courage of anyone who burned his
draft card” (R. 152). This, too, was a response to the
press inquiry. A fair reading of the statement—required
in the interest of freedom of expression—supports Mr.
Bond’s explanation when he appeared before the House
committee:
“ I have never suggested or counseled or advo
cated that any one other person burn their draft
card. In fact, I have mine in my pocket and will
produce it if you wish. I do not advocate that people
should break' laws. What I simply try to say was
that I admired the courage of some one who could
act on his convictions knowing that he faces pretty
stiff consequences” (R. 41).
This is no different from the recognition by courts of
the integrity of persons even while sustaining their convic
tions ; see e.g., Uphaus v. Wyman, supra. It is also an over
simplification to suggest that persons charged either with
refusal to serve in the armed forces or with the burning
of draft cards have committed a crime or are necessarily
without constitutional protection. Recent judicial opinions
attest to the fact that important First Amendment and
other constitutional questions may be involved. See e.g.
Judge Medina’s opinion in United States v. Mitchell, 354
F2d 767 (2d Cir. 1966) and the opinion in United States
v. Miller, 249 F. Supp. 59 (S.D.N.Y. 1965) pending on
appeal.
The mild remarks made here are in contrast to the
activities ascribed to the Socialist Assemblymen in Janu
ary 1920, when they were expelled from the New York legis
lature on the serious charges of their participation in a
revolutionary organization connected with the Communist
37
International in Moscow which was allegedly pledged to
the violent overthrow of the Government of the United
States.27 Despite the fact that the First Amendment, as
we know it today, had not developed through judicial deci
sion, former Justice (later Chief Justice) Hughes filed a
brief on behalf of the Association of the Bar of the City of
New York opposing the action of the legislature and calling
attention to the protection of free speech in England. See
Chafee, op. cit. passim, and Pusey, Charles Evans Hughes.
(1951) I, 391-393.
The state has no legitimate interest in maintaining a
legislature without diversity of opinion. On the contrary,
there is “ a compelling state interest” that the electorate
be free to choose its representatives in the House what
ever their political views or expressions of opinion. This
interest was stated by Chief Judge Learned Hand in his
“Risk for Risk” statement in 1952:
“ I believe that that community is really in
process of dissolution where each man begins to eye
his neighbor as a possible enemy, where non-con
formity with the accepted creed, political as well as
religious, is a mark of disaffection; where denuncia
tions, without specification or backing, takes the place
of evidence; where orthodoxy chokes freedom of dis
sent; where faith in the eventual supremacy of reason
has become so timid that we dare not enter our con
victions in the open lists, to win or lose. Such fears
as these are a solvent which can eat out the cement
that binds the stones together; they may in the end
subject us to a despotism as evil as any that we
dread . . . ” Address before Convocation of the Uni
versity of the State of New York, October 25, 1952,
reprinted in The Spirit of Liberty, Papers and Ad
dresses of Learned Hand (Billiard ed. 1953) 284.
27 Cf. the subsequent decisions in Yates v. United States, 354
U. S. 298; Noto v. United States, 367 U. S. 290.
38
P O I N T I V
Mr. B ond’s constituents have been disenfranchised
in violation o f the Fourteenth Am endm ent.
The people of the 136th House District have twice
elected Mr. Bond to represent them in the Georgia House
of Representatives. On both occasions the House refused
to admit him because it disapproved of his public state
ments. This legislative flat did more than deprive him of
his property without due process of law; it deprived the
residents and voters of House District 136 of their repre
sentation in the House.
This strikes directly at the fundamental principle of
democratic government that it is the people who have ab
solute power to dictate their choice of Representatives.
This was one of the “ Blessings of Liberty” for which the
United States Constitution was established. It pervades
the Constitution—the provision for the election of Rep
resentatives “ by the people of the several states” (Article I,
Section 2), the guarantee to every state of a “ republican
form of government” (Article IV, Section 4), the right to
vote under the Fourteenth and Fifteenth Amendments.
The view of the court below that the appellees, Dr.
Martin Luther King and Mrs. Arel Keyes, do not have a
direct interest in this litigation is inexplicable. Dr. King
is a constituent of Mr. Bond. Mrs. Keyes is a registered
voter. Both have been deprived of representation by the
House Resolution whose legality is in question here.
There can be no more direct right in litigation of this
kind than that of persons who suffer from the injury.28
28 Barry v. United States, 279 U. S. 597, relied upon by the
court below, involved the Congressional power of investigation, not
standing to sue, and the temporary delay in seating during the in
vestigation.
39
Mrs. Keyes ’ right to vote becomes meaningless if her choice
is to be overridden by a legislative majority. She, like any
person whose right to vote is impaired (Smith v. Allwright,
321 U. S'. 649; Baker v. Carr, supra, 204-208; Gray v. San
ders, 372 IT. S. 368, 375) has standing to sue. Dr. King as
a resident of the district has a right to be represented in
the legislature even if the period of his residence did not,
at the time the litigation was instituted, give him a right
to vote. Only thus do we adhere to the principle that “ the
form of government must be representative,” (Mr. Justice
Clark concurring in Baker v. Carr, 369 U. S. 186, 261).
See also Wesberry v. Sanders, 376 U. S. 1, 17; Reynolds v.
Sims, 377 U. S. 533, 560.
The principal importance of the Wilkes case is not that
it protected the property right of the elected member but
that it involved “ the rights of the freeholders of Middle
sex” to have their designee represent them, supra, pp. 19, 20.
Mr. Madison was equally concerned with the right of fran
chise as a “ fundamental article[s] in a Republican Gov
ernment”, supra, p. 20.
The emphasis of Charles Evans Hughes, speaking for
the Association of the Bar of the City of New York in
opposition to the exclusion in 1920 of the five Socialist
members of the New York Assembly, was upon the same
issue of freedom of franchise.
“ Let every resource of inquiry, of pursuit, of
prosecution be employed to ferret out and punish
the guilty according to our laws. But I count it a
most serious mistake to proceed, not against indi
viduals charged with violation of law, but against
masses of our citizens combined for political action,
by denying them the only resource of peaceful gov
ernment ; that is, action by the ballot box and through
duly elected representatives in legislative bodies.”
Chafee, op. cit. 273.
40
He urged that “ these members shall enjoy all the priv
ileges of their seats in recognition of their own rights and
of the rights of their constituencies”, Chafee, op. cit. 275.
And as Professor Chafee has said of the New York Assem
bly:
“ It appealed to force as the normal method of
settling conflicts between ideas. It disenfranchised
60,000 American citizens on the basis of a caricature
of Socialism. It repudiated government .by repre
sentation and substituted government by misrepre
sentation.” Chafee, op. cit. 282.
This particular problem has never been presented to
this Court. But the Court has repeatedly spoken on the
fundamental importance of the right of suffrage. The Chief
Justice has said that “ [t]he right to vote freely for the
candidate of one’s choice is of the essence of a democratic
society, and any restrictions on that right strike at the
heart of representative government.” Reynolds v. Sims,
377 U. S. 533, 535 (1964), and
“ Undeniably the Constitution of the United
States protects the right of all qualified citizens to
vote, in state as well as in federal elections. A con
sistent line of decisions by this Court in cases in
volving attempts to deny or restrict the right of
suffrage has made this indelibly clear. It has been
repeatedly recognized that all qualified voters have
a constitutionally protected right to vote, Ex parte
Yarbrough, 110 U. S. 651, and to have their votes
counted, United States v. Mosely, 238 U. S. 383. . . .
The right to vote can neither be denied outright,
Guinn v. United States, 238 U. S. 347, Lane v. Wilson,
307 U. S. 268, destroyed by alteration of ballots, see
United States v. Classic, 313 U. S. 299, 315, nor
diluted by ballot-box stuffing, Ex parte Siebold, 100
U. S. 371, United States v. Saylor, 322 U. S. 385. As
the court stated in Classic, ‘Obviously included with
in the right to choose, secured by the Constitution,
is the right of qualified voters within a state to cast
their ballots and have them counted. . . .’ 313 U. S.
at 315. . . . And the right of suffrage can be denied
41
by a debasement or dilution of the weig-ht of a citi
zen’s vote just as effectively as by wholly prohibiting
the free exercise of the franchise.” Reynolds v.
Sims, supra at 554-55.
The exclusion of the elected representative nullifies the
votes of his constituents. Where the right to vote is con
cerned, this Court looks to the substance and not the form.
See United States v. Classic, 313 U. S. 299; Smith v. AU-
wright, 321 TJ. S'. 649; Terry v. Adams, 345 IT. S. 461.
“ [E]ach and every citizen has an inalienable right to full
and effective participation in the political processes of his
State legislative bodies.” Reynolds v. Sims, supra at 565.
Obviously, the exclusion of his Representative deprives
him of the right to “ effective participation.”
Further, “ ‘Fencing out’ from the franchise a sector
of the population because of the way they may vote is con
stitutionally impermissible. ‘[T]he exercise of rights so
vital to the maintenance of democratic institutions, ’
Schneider v. State, 308 U. S. 147, 161, cannot constitu
tionally be obliterated because of a fear of the political
views of a particular group of bona fide residents.” Car
rington v. Rash, 380 U. S. 89, 94. In the instant case, the
“ fencing* out” was done after the ballots were counted and
the political views were expressed, but there is no differ
ence in principle which can be based on the stage of the
electoral process.
We agree with the court below that there was no direct
evidence that the ineligibility of Mr. Bond was predicated
upon his race, rather than upon his political opinions (R.
141, 153). It is unnecessary for the appellants to establish
such motivation in view of the direct impact of the appel
lees’ action upon the First Amendment, upon the privilege
to discuss federal issues and upon freedom of franchise.
But it would be completely unrealistic not to recognize the
racial background of the current dispute. In 1966 Georgia
did not engage in a wholesale expulsion of the Negro
42
members of its legislature, as in 1868 (see Du Bois, Black
Reconstruction in America (1935) 501-504).29 But it does
have a long contemporary record of discrimination against
the Negro in many fields 30 and the representative excluded
in the instant case was a Negro representing a Negro con
stituency who presumed to express himself openly on mat
ters of domestic and foreign policy.
P O I N T V
The disqualification of Mr. Bond was a bill of
attainder and an e x p o s t f a c to law.
This case is governed by much of what the Chief Justice
stated for the Court in United States v. Brown, 381 IT. S.
437. The historical discussion, the analysis of the ele
ments of bills of attainder and the tests to be employed
—as described in that opinion—are dispositive of the issues
in this case. In Brown, it was pointed out that the bill of
attainder was a parliamentary act imposing punishment
for political crime; that the punishment often included the
exclusion of the person involved and his sons from Parlia
ment, and that the act frequently named the parties af
fected, United States v. Brown, supra, at 441-2.
A review of the reasons for the inclusion of the pro
scription against bills of attainder either by the Congress
or the States into the Constitution led this Court to con
clude that “ the bill of attainder clause was intended not
as a narrow technical (and, therefore, soon to be out
moded) prohibition, but rather as an implementation of
the separation of powers, a general safeguard against
legislative exercise of the judicial function, or more simply
—trial by legislature.” Id. at 442.
29 See also Thompson, Reconstruction in Georgia (LXIV Studies
in History, Economics and Public Law, Columbia University, 1915),
211-216.
30 See the cases cited in the brief amicus curiae herein of the
Emergency Civil Liberties Committee, p. 7.
43
The instant case shows more of the classic attributes
of the bill of attainder in some respects than any of the
previously decided cases in this Court. Like all of
them, it was an act of the legislative branch imposing
sanctions for political crime; see Cummings v. Missouri,
4 Wall. (71 U. S.) 277; Ex parte Garland, 4 Wall. (71 U. S.)
333; United States v. Lovett, 328 U. S. 303; United States
v. Brown, supra. But, unlike three of those cases, the
legislative act actually named the individual against whom
it was directed; and unlike all of them, it disqualified
a member of the legislative body itself—a most familiar
sanction of the English bill of attainder.
It will, of course, be argued by the appellees, as was
done by the government in all the preceding bill of attainder
cases, including Brown, that disqualification from office is
not punishment, but is intended merely to regulate the
qualifications of admission to office. But in Garland, the
Court said that “ disqualification from office may be pun
ishment, as in cases of conviction upon impeachment”, 4
Wall, at 320. In words appropriate to appellant Bond,
in the light of the appellees’ reaffirmation of his ineligi
bility, this Court said in Lovett, supra, that the “ perma
nent proscription of any member to serve the government
is punishment and of a most serious type”, 328 U. S. 303,
316.
In Brown, the Solicitor General presented the argument
in more sophisticated form by urging, to use this Court’s
words, “ that the statute was enacted for preventive rather
than retributive reasons—that its aim wTas not to punish
Communists for what they have done in the past but rather
to keep them from a position where they will in the future
be able to bring about undesirable events.” United States
v. Brown, supra, at pp. 456-57.
But this approach, which had at least the support of
repeated expressions of view by all branches of the govern
ment, was anticipated by this Court’s observation that the
44
framers had sought to bar ‘‘legislative punishment of any
form or severity.” Id. at 447. In Brown, the Court
described as “ archaic” the attempt to limit the definition
of punishment to retribution, stating:
“ One of the reasons society imprisons those con
victed of crimes is to keep them from inflicting future
harm, but that does not make imprisonment any less
punishment.” Id. at 458.
And in a look at history, the Chief Justice added:
“ A number of English bills of attainder were
enacted for preventive purpose—that is, the legis
lature made a judgment, undoubtedly based upon
past acts and associations (as § 504 is) that a given
person or group was likely to cause trouble (usually,
overthrow the government) and therefore inflicted
deprivations on that person or group in order to
keep them from bringing about the feared event.”
Id. at 458-59.
The legislative act against Mr. Bond falls squarely
within the scope of the bill of attainder clause. The very
charges against him were that he “ adheres to the enemies
of the United States and of the State of Georgia” (R. 14)
that he “ gives aid and comfort” to those enemies and that
his actions and statements violate 50 U. S. C. App. §§ 462(a)
and (b) (R. 14). The intemperate remarks made by his
judges in the course of the Committee and House hearings
well illustrate Mr. Cooley’s warning that the legislative body
“ is not properly constituted to try with coolness, caution
and impartiality a criminal charge especially in those cases
in which the popular feeling is strongly excited—the very
class of cases most likely to be prosecuted by this mode.”
1 Cooley, Constitutional Limitations, 536-537 (8th ed.
1927), quoted by this Court in United States v. Brown,
supra, at 445. Indeed, this emotional approach was
manifested by the use in the court below of such an ex
pression as “ at war with the national policy of this
country” (R. 151).
45
A legislative punishment for expressions of political
opinion is not any the less a bill of attainder because it
is phrased in terms of inability to take an oath to
support the federal and state constitutions. We note else
where that nothing in Georgia law authorizes its legisla
ture to determine whether a person can conscientiously
take the oath, supra, p. 24, and that the oath provision,
if thus construed, has the constitutional defect of vague
ness, supra, p. 25. But this aside, this Court has re
peatedly noted that the form of the legislative act is
irrelevant to its classification as a bill of attainder, United
States v. Brown, supra, at 448; United States v. Lovett,
supra, at 315, 316.
Like many other bills of attainder, House Resolution
19 is also an ex post facto law in violation of Article I,
Section 10 of the Constitution. There is nothing in the
language of the Georgia Constitution, statutes or the
judicial decisions, which could support the right of the
legislature to evaluate the public statements of an electee
and to decide that he cannot conscientiously take the oath.
This, then, is an entirely new qualification, written for
the day and the man. It was not one generally applicable
at the time of Mr. Bond’s election; he had no reason to
believe that his public statements could be the basis for
disqualification. As to him—and those who elected him-—
House Resolution 19 is an ex post facto law. Calder v.
Bull, 3 Da-11. (3 U. S.) 386, 390; De Veau v. Braisted, 363
U. S. 144, 160.
46
CONCLUSION
The judgm ent of the District Court should be re
versed w ith instructions to enter judgm ent for the
relief dem anded in the com plaint.
Respectfully submitted,
H oward M oore, J r .,
859% Hunter Street, N. W.,
Atlanta, Georgia 30314.
L eonard B . B o u d in ,
V ictor R a bin o w itz ,
30 East 42nd Street,
New York, New York 10017.
Attorneys for Appellants.
September 24, 1966.
47
A PPENDIX
Constitutional Provisions and Legislative
A cts Involved
Article III, Section VII, Paragraph I, of the Georgia
Constitution provides in pertinent part as follows:
“ Election, returns, etc.; disorderly conduct.—
Each House shall be the judge of the election, re
turns, and qualifications of its members and shall
have power to punish them for disorderly behavior,
or misconduct, by censure, fine, imprisonment, or
expulsion but no member shall be expelled, except
by a vote of two-thirds of the House to which he
belongs.” (2-1901, Ga. Code Ann.)
Article III, Section VI, Paragraph I, of the Georgia
Constitution provides in pertinent part as follows:
“ Qualifications of representatives—The Repre
sentatives shall be citizens of the United States who
have attained the age of twenty-one years, and who
shall have been citizens of this State for two years,
and for one year residents of the counties from
which elected. (2-1801, Ga. Code Ann.)
Article III, Section IV, Paragraph V, of the Georgia
Constitution provides in pertinent part as follows:
“ Oath of members.—Each senator and repre
sentative, before taking his seat, shall take the fol
lowing oath, or affirmation, to wit: ‘I will support
the Constitution of this State and of the United
States, and on all questions and measures which
may come before me, I will so conduct myself, as
will, in my judgment, be most conducive to the in
terests and prosperity of this State.’ ” (2-1605, Ga.
Code Ann.)
48
Article II, Section II, Paragraph I, of the Georgia Con
stitution provides in pertinent part as follows:
“ ‘Registration of electors; who disfranchised.—
The General Assembly may provide, from time to
time, for the registration of all electors, but the fol
lowing classes of persons shall not he permitted to
register, vote, or hold any office, or appointment of
honor, or trust in this State, to w it: 1st. Those
who shall have been convicted in any court of com
petent jurisdiction of treason against the State of
embezzlement of public funds, malfeasance in office,
bribery or larceny, or of any crime involving moral
turpitude, punishable by the laws of this State with
imprisonment in the penitentiary, unless such per
sons shall have been pardoned. 2nd. Idiots and
insane persons.” (2-1801, Ga. Code Ann.)
Article III, Section IV, Paragraph VI, of the Georgia
Constitution provides in pertinent part as follows:
“ Eligibility; appointments forbidden.—No per
son holding a military commission, or other appoint
ment, or office, having an emolument, or compensa
tion annexed thereto, under this State, or the United
States or either of them except Justices of the
Peace and officers of the militia, nor any defaulter
for public money, or for any legal taxes required
of him shall have a seat in either house; nor shall any
Senator, or Representative, after his qualification
as such, be elected by the General Assembly, or ap
pointed by the Governor, either with or without the
advice and consent of the Senate, to any office or
appointment having any emolument annexed thereto,
during the time for which he shall have been elected,
unless he shall first resign his seat, provided, how
ever, that during the term for which he was elected
no Senator or Representative shall be appointed to
49
any civil office which has been created during such
term.” (2-1601, Ga. Code Ann.)
Article VII, Section III, Paragraph VI, of the Georgia
Constitution provides in pertinent part as follows:
“ Profit on public money.—The receiving, directly
or indirectly, by any officer of State or county, or
member or officer of the General Assembly of any
interest, profits or perquisites, arising from the use
or loan of public funds in his hands or moneys to
be raised through his agency for State or county
purposes, shall be deemed a felony, and punishable
as may be prescribed by law, a part of which punish
ment shall be a disqualification from holding office.”
(2-5606, Ga. Code Ann.)
House Rule 61 of the Georgia House of Representatives
provides in pertinent part as follows:
“ Each house shall be the judge of the election,
returns, and qualifications of its members and shall
have power to punish them for disorderly behavior,
or misconduct, by censure, fine, imprisonment, or ex
pulsion; but no member shall be expelled except by
a vote of two-thirds of the House to which he be
longs.”
House Resolution 19 of January 10 1966 of the Georgia
House of Representatives provides in pertinent part as
follows:
“ Relative to the matter of the seating of Repre
sentative-Elect Julian Bond; and for other purposes.
“ W h e r e a s , a special committee created pursuant
to H.R. No. 7 which was appointed for the purpose
of holding a hearing on petitions challenging and
contesting the seating of Representative-Elect Julian
50
Bond of the 136th District has conducted a hearing
in said matter; and
“ W h er ea s , said committee has submitted a re
port in which it is recommended that Representa
tive-Elect Julian Bond not be allowed to take the
oath of office as a Representative of the House of
Representatives and that he not he seated as a mem
ber of the House of Representatives.
“ Now, THEREFORE, BE IT RESOLVED BY THE HOUSE
of R epresen ta tiv es t h a t th e r e p o r t o f th e a f o re s a id
c o m m itte e is h e re b y a d o p te d a n d th e re c o m m e n d a
t io n s c o n ta in e d th e r e in s h a ll be fo llo w ed .
“ B e i t f u r t h e r r e s o l v e d that Representative-
Elect Julian Bond shall not he allowed to take the
oath of office as a member of the House of Repre
sentatives, and that Representative-Elect Julian
Bond shall not he seated as a member of the House
of Representatives.
“ B e it f u r t h e r r e s o l v e d that the Clerk of the
House is hereby instructed to immediately transmit
a copy of the aforesaid report and a copy of this
resolution to the Governor, to the Secretary of
State and to Representative-Elect Julian Bond.”
T he H ecla P ress, 225 Varick Street, N. Y. 14, 255—2800