All Things Profane and Sacred

I'm a lonely girl up on the mountain again. J is picking up some stage crew work on a variety of shows (the bastard is doing the Smashing Pumpkins show tonight at the Clark County Ampitheater), which means I've been fending for myself this week. It's actually nice to have some alone time-we've both been getting a bit of cabin fever stuck on the mountain together. Still, I can't wait to have him back tommorrow, if only to get some hot sweet lovin'.

We're battening down the hatches for winter, even though the September weather has been pretty fine. Luckily, we are less in the red this year than we were last year, so we have the time and money to get in a couple of cords of wood this weekend. We'll probably get another cord or two before it gets really cold out here. Get our lamps cleaned out and ready to go with fresh oil and wicks. Plastic over a few of our six (six!) crookedly hung doors and chink the rest of the cracks. Store away 20-40 gallons of fresh water and enough no bake food to get through the inevitable power outs. Can some blackberry jam and a shit load of apple jelly, apple sauce and apple butter. Paint the awful walls a nice warm color so it isn't as gray and grim as last year.

I think this winter we will be in better shape than last winter, although I'm hearing predictions that this winter will much longer and colder. Last winter, we got into the house in the last week of September, way too friggen broke to prepare for it. This winter, we can at least winterize and prepare for being without electric.

I was doing some legal research today to drop the SJ bomb and ran accross an interesting concurrance by Justice Black in a case that fought back against the hysterical Commie witch hunts. It sounds like he just wrote it yesterday.

MR. JUSTICE BLACK, concurring.

Without notice or hearing and under color of the President's Executive Order No. 9835, the Attorney General found petitioners guilty of harboring treasonable opinions and designs, officially branded them as Communists, and promulgated his findings and conclusions for particular use as evidence against government employees suspected of disloyalty. In the present climate of public opinion it appears certain that the Attorney General's much publicized findings, regardless of their truth or falsity, are the practical equivalents of confiscation and death sentences for any blacklisted organization not possessing extraordinary financial, political or religious prestige and influence. The Government not only defends the power of the Attorney General to pronounce such deadly edicts but also argues that individuals or groups so condemned have no standing to seek redress in the courts, even though a fair judicial hearing might conclusively demonstrate their loyalty. My basic reasons for rejecting these and other contentions of the Government are in summary the following: [341 U.S. 123, 143]

(1) I agree with MR. JUSTICE BURTON that petitioners have standing to sue for the reason among others that they have a right to conduct their admittedly legitimate political, charitable and business operations free from unjustified governmental defamation. Otherwise, executive officers could act lawlessly with impunity. And, assuming that the President may constitutionally authorize the promulgation of the Attorney General's list, I further agree with MR. JUSTICE BURTON that this Court should not attribute to the President a purpose to vest in a cabinet officer the power to destroy political, social, religious or business organizations by "arbitrary fiat," and thus the methods employed by the Attorney General exceed his authority under Executive Order No. 9835.

(2) Assuming, though I deny, that the Constitution permits the executive officially to determine, list and publicize individuals and groups as traitors and public enemies, I agree with MR. JUSTICE FRANKFURTER that the Due Process Clause of the Fifth Amendment would bar such condemnation without notice and a fair hearing. My views previously expressed under similar circumstances are relevant here. E. g., dissenting opinion in Ludecke v. Watkins, 335 U.S. 160, 173 ; and see In re Oliver, 333 U.S. 257 .

(3) More fundamentally, however, in my judgment the executive has no constitutional authority, with or without a hearing, officially to prepare and publish the lists challenged by petitioners. In the first place, the system adopted effectively punishes many organizations and their members merely because of their political beliefs and utterances, and to this extent smacks of a most evil type of censorship. This cannot be reconciled with the First Amendment as I interpret it. See my dissent in American Communications Assn. v. Douds, 339 U.S. 382, 445 . Moreover, officially prepared and proclaimed governmental [341 U.S. 123, 144] blacklists possess almost every quality of bills of attainder, the use of which was from the beginning forbidden to both national and state governments. U.S. Const., Art. I, 9, 10. It is true that the classic bill of attainder was a condemnation by the legislature following investigation by that body, see United States v. Lovett, 328 U.S. 303 , while in the present case the Attorney General performed the official tasks. But I cannot believe that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive with power to engage in the same tyrannical practices that had made the bill such an odious institution. 1
There is argument that executive power to issue these pseudo-bills of attainder can be implied from the undoubted power of the Government to hire and discharge employees and to protect itself against treasonable individuals or organizations. 2 Our basic law, however, wisely [341 U.S. 123, 145] withheld authority for resort to executive investigations, condemnations and blacklists as a substitute for imposition of legal types of penalties by courts following trial and conviction in accordance with procedural safeguards of the Bill of Rights. 3
In this day when prejudice, hate and fear are constantly invoked to justify irresponsible smears and persecution of persons even faintly suspected of entertaining unpopular views, it may be futile to suggest that the cause of internal security would be fostered, not hurt, by faithful adherence to our constitutional guarantees of individual liberty. Nevertheless, since prejudice manifests itself in much the same way in every age and country and since what has happened before can happen again, it surely should not be amiss to call attention to what has occurred when dominant governmental groups have been left free to give uncontrolled rein to their prejudices against unorthodox minorities. As specific illustration, I am adding as an appendix Macaulay's account of a parliamentary proscription which took place when popular prejudice was high; this is only one out of many similar [341 U.S. 123, 146] instances that readily can be found. 4 Memories of such events were fresh in the minds of the founders when they forbade the use of the bill of attainder.