Bond v. Floyd

PETITIONER:Bond
RESPONDENT:Floyd
LOCATION:Multnomah County Circuit Court

DOCKET NO.: 87
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 385 US 116 (1966)
ARGUED: Nov 10, 1966
DECIDED: Dec 05, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – November 10, 1966 in Bond v. Floyd

Earl Warren:

Julian Bond et al., Appellants, versus James Floyd et al.

Mr. Moore.

Howard Moore, Jr.:

Mr. Chief Justice, may it please the Court.

This is an appeal from the United States District Court, the Northern District of Georgia dismissing the complaint and action brought to compel the House of Representatives of the General Assembly of Georgia to admit an elective representative, Julian Bond.

The plaintiffs were not on in Mr. Bond, but Dr. Martin Luther King, a constituent and resident, Mrs. (Inaudible), a resident and registered voter, each suing as members of their respective classes.

The plaintiffs sought an injunction against the enforcement of a special House resolution excluding Mr. Bond.

The plaintiffs also sought injunction against the state constitutional provisions upon which the House relied to exclude him.

The appellees are James ‘Sloppy’ Floyd, an elder state official who is acting in concert with him.

A general election was held in Georgia on June 15, 1965.

That election was conducted pursuant to legislation enacted in the weight of the decision in Toombs against Fortson as a result, House District 136 was created.

Mr. Bond was opposed in that election by Malcolm J.Dean, who was a Dean of Men at Atlanta University in Atlanta.

In that election, Bond polled 2320 votes to 487 votes for Dean.

More persons voted in Bond’s District, in District 136 then in any other district within the entire state.

There are 6500 voters in House District 136, 6000 of them are Negroes.

About two weeks before, Mr. Bond was scheduled to have been sworn in as a member of the House of Representatives.

Samuel Young, a worker with the Student Nonviolent Coordinating Committee and it —

Earl Warren:

A worker, what?

Howard Moore, Jr.:

A worker sir with the Student Nonviolent Coordinating Committee known variously and popularly as SNCC.

Young was a navy veteran.

He was shot and killed near a gasoline service station in Tuskegee, Alabama.

Young had lost one of his kidneys in the ill-fated Bay of Pig — the Bay of Pigs invasion off the coast of Cuba in 1961.

He was approaching the service station to use the restroom.

Samuel Young was very well liked within SNCC.

Three days after Young’s funeral on January 6, 1966, SNCC issued the statement to the press, critical of American policy in Vietnam and of his pass for respecting equal rights for Negroes in the United States.

The entire statement is set forth at pages 135 to 137 of the record.

The statement plays responsibility for the murder of Samuel Young upon the Federal Government.

The statement equated, the failure of the administration to protect Samuel Young with the death of Vietnamese peasants resulting from the aggressive foreign policy conductive in the violation of international law.

The following four paragraphs are perhaps the most relevant paragraphs to these procedures and I shall read from the record at page 137.

Earl Warren:

137?

Howard Moore, Jr.:

Yes sir.

Howard Moore, Jr.:

Those paragraphs recite as follows.

We are in sympathy with and support the men in this country who are unwilling to respond to a military draft, which would compel them to contribute their lives to United States’ aggression in Vietnam in the name of the freedom we find so close in this country.

We recoil with horror at the inconsistency of a supposedly free society where responsibility to freedom is equated with responsibility to men — oneself to military aggression.

We take note to the fact that 16% of the draftees from this country are Negroes called on to stay for liberation in Vietnam to preserve a democracy which does not exist with them at home.

We ask, where is the draft for the freedom fight of the United States?

We therefore encourage those Americans who prefer to use their energy in building democratic forums within this country.

We believe that work in the civil rights movement and with other human relations organizations is a valid alternative to the draft.

We urge all Americans to seek this alternative.

Going full well, it may cost their lives as painfully as in Vietnam.

Is there — Mr. Bond participate (Inaudible)?

Howard Moore, Jr.:

No, sir.

He did not participate in drawing the statement.

I think that that’s shown at page 41 of the record.

(Inaudible)

Howard Moore, Jr.:

Yes, I believe its 41 sir.

A following release of the statement later in the afternoon, a newsman employed by a state-owned radio station, WGST in Atlanta caused union buying at home.

And I have to repeat, Mr. Bond was at home at that time he received this particular call.

The newsman asked by who did not, as we said earlier, participate in drafting the statement whether he endorsed the SNCC statement by replied he did and added, as a pacifist he was opposed to all laws and was eager and anxious to encourage people not to participate in it for any reason that they chose.

The newsman pressed Bond to specify his reasons for endorsing the statement.

And Bond said, “I agree of the statement because of the reasons set forth in it, because I think it’s sort of hypocritical for us to maintain that we are fighting for liberty in other places and were not guaranteeing liberty to citizens inside the communal of United States”.

He was further pressed by the newsman and he reiterated his pacifist beliefs.

And he indicated that he was opposed to either side killing in Vietnam.

That is to the United States killing in Vietnam and to the Vietcong killing in Vietnam.

And that his temperament was such that he was opposed to abrupt changes.

This may be found in the record of page 114.

On the morning of January 10, 1966, Mr. Bond arrived in the House of Representatives to take his oath as a representative elect from the 136 House District.

Now this was not the first time that Mr. Bond had gone to the House of Representatives.

He’d gone there earlier in — about two years earlier to observe a proceeding and he was forcefully ejected from the House.

The clerk on this occasion in January 10th, 1966, ordered him to stand aside as the oath was administered to other representatives.

Challenges were filed to Mr. Bond’s right to be sworn and seated.

Howard Moore, Jr.:

The challenges were signed by at least 75 white members of the House.

They were based upon Mr. Bond’s statement to the press, the petitions charged among other things that Bond’s actions and statements gave aid and comfort to the enemies of the United States, violated the Selective Service law, tended to bring discredit and disrespect to the House of Representatives.

The challenges are set out in the record at pages 13th and 15th.

Also said that Mr. Bond’s statements indicated that he could not take the oath, they were repugnant to the oath.

A special committee then was composed for the rules committee and three additional members, including two Negro members.

I should say they were approximately eight Negroes who were in the House.

This was the first time that a Negro had sat in the House since 1907 and this was due to reapportionment and one other White representative from Fulton County.

A hearing was held on the challenge petitions for the expressed privilege of deciding the substance of what Mr. Bond said and the intentions behind what he said.

For evidence, they introduced the tape of a phone interview on January 6,1966, a tape of an interview with Mr. Bond in the hall of the state capital immediately after the clerk refused to administer the oath to him.

And they call Mr. Bond as a witness apparently against himself.

There is note of this tape are on file and available to the Court.

At the hearing, Mr. Bond was asked whether he admired the courage of people who burnt their draft cards.

And his reply was, “I admire people who take who take an action and admire people who feel strongly enough about their convictions to take an action knowing the consequences they will face.

And that was my original statement when asked a question”.

Mr. Bond called four witnesses who urged proceeding and stated that he deserved the right to be seated.

One of those witnesses was his opponent in the democratic primary.

The other was his opponent in the general election.

The other two witnesses were the two Negro members of the Georgia State Senate.

The special committee then recommended that Mr. Bond not to be seated.

A two-Negro member dissented along a white legislator from Fulton County.

The House then adopted House Resolution 19 not to seat Mr. Bond in accordance with the majority recommendation from the special committee.

Mr. Bond and his constituents then brought this action for injunctive relief and declaratory judgment.

On February 14, 1966, the special three-judge court rendered — filed a judgment against the appellees.

It unanimously held that it had jurisdiction because the plaintiffs had a series — substantial First Amendment rights.

The Court — Chief Judge Tuttle dissenting struck from the complaint the names of the appellants other than Mr. Bond on the grounds that they like such a direct interest in the litigation which would give them standing to bring the complaint.

On the merits, the Court was also divided.

The majority agreed that the substantial issue in the case rests on the guarantee of freedom of speech or to dissent under the First Amendment.

Nevertheless, it held that Mr. Bond’s statements, an affirmation of the SNCC statement as they go on the functioning of the Selective Service system could reasonably be said to be inconsistent with and repugnant to the oath which he would be required to take.

Since the exclusion and while this case has been pending on appeal, Mr. Bond has been twice reelected to office.

The first reelection occurred in February of 1966.

Howard Moore, Jr.:

He was unopposed in that election, he won it by 682 vote to none.

He was again reelected on November 8, 1966, justice Tuesday, by a vote of 2136 to 948.

That can be very little doubt that Mr. Bond is the choice of the voters in House District 136.

But with respect to the legal issues presented or raised by these set of facts, Mr. Boudin will develop them in detail.

Earl Warren:

Mr. Boudin.

Leonard B. Boudin:

Mr. Chief Justice and may it please the Court.

The central issue in this case, I see — as I think Your Honors conceive from the development by Mr. Moore is whether a state legislative body’s refusal to sit an elected representative whether refusal is based upon his public expressions of opinion on national issues, whether such a refusal violates the freedom of speech guaranteed by the First Amendment incorporated in the Fourteenth, whether it deprives him since it is a national issue that was under discussion of a privilege in immunity under the Fourteenth Amendment and whether it unconstitutionally deprive those who elected Mr. Bond of their right of franchise in violation of the Equal Protection Clause, possibly the Due Process Clause of the Fourteenth Amendment.

Now the court below recognized that there was a very substantial issue of freedom of speech involved here, as it indicated at page 142 of the records.

But it held that an elected rep — legislator had less right than an individual citizen to express his views on public issues.

As the Court said, Mr. Bond’s right to speak and to dissent as a private citizen is subject to the limitation that he sought to assume membership in the House Record 151.

And the Court was — of the view that since it said, the statement of SNCC was against national policy.

I think the first time a Court has ever made such a determination, at least the federal court in these days that it was Mr. Bond’s duty to remain silent or forfeit his position.

Now that based (Voice Overlap) —

Potter Stewart:

There’s no question as a matter of fact that the statement was contrary to national policy, (Voice Overlap) —

Leonard B. Boudin:

I supposed the statement can be said to be contrary to what the Government position is in the particular matter.

Potter Stewart:

Contemporary national policy.

Leonard B. Boudin:

Yes.

Whether national policy had any real significance as a criterion of course was (Voice Overlap) —

Potter Stewart:

Is of course another question.

Leonard B. Boudin:

— is quite right.

Now, the difficulty with the Court’s reasoning in holding that a legislator elect has less right to express himself on public issues, is that it assumed the voice contrary to what this Court has said in Lemont and in Martin against Travis and a number lot of cases that it is solely for the of the speaker that the First Amendment was written and is to be enforced.

On the contrary, there is at least a greater right in the public to hear the speaker.

And so the status of the speaker should not derogate from the right of the public to hear his statement.

As a matter of fact this Court explicitly in Wood against Georgia in a quotation which is set forth at page 30 of our brief held that an elected sheriff had a right to issue a press relief challenging a charge to a grand jury.

And the Court said that the petitioner was an elected official and had the right to enter the field of political controversy.

The role that elected official playing our society and he makes it all the more imperative, that they’d be allowed freely to express themselves on matters of current public importance.

But our position here is not nearly that there was a right on the part of Mr. Bond to make the statement, that he had a duty to express himself if those were his views on these public issues or at least three interrelated reasons.

The first is that, as a presumed leader, we now see he’s been elected three times, leader of his people in the 136th District.

He has the right to exercise his influence upon them to attempt to persuade them to his point of view.

The second is, it can be presumed, I think fairly, that he states it for a substantial number of them, they having elected him several times in the course of this controversy and he as their spokesman and if that is their view, why cannot it be expressed through him.

Leonard B. Boudin:

And the third reason, is the reason suggested by this Court’s statement in Garrison against Louisiana and in New York Times against Sullivan, namely that the public has a right to know anything that affects the qualifications of the individual whom they have elected.

And what could be a better way of assessing the qualifications of the man but in having him express his views in this way.

The position of the court below giving a lesser right, a lesser duty to the individual because if he is elected undercuts all of these principles.

Abe Fortas:

Mr. Boudin, supposed a person were elected to the Board — to the legislature though — and he had publicly advocated of the overthrow of the Government of Georgia and its replacement by a communist government or by a military dictatorship or whatever, extreme example or alternatively occurs to your mind, where were that leave the problem as a matter of principle?

Leonard B. Boudin:

We would say that as a matter of principle, subject to of course prosecution for a crime with the usual elements of due process in criminal cases that the Georgia legislature could not exclude Mr. Bond or any other person.

And that needless to say on this relatively pure record, no such problem was even touched on —

Abe Fortas:

Yes, I understand.

Leonard B. Boudin:

— despite the — its not necessary but our position here which — is that there is an absolute right on the part of the legislator elect to say anything he wishes and not to be disqualified, subject of course to criminal prosecution and as — and if they’re appropriate to a libel suit assuming that the Court were — were to hold that libel suit did not violate the First Amendment as it has.

Our view is that the reason for this absolute right to take office, subject to the qualifications set forth specifically in disqualifications in the Georgia Constitution, a constitution promulgated by the people of Georgia or their predecessors of course, is that there is not only the right of freedom of speech involved here but the freedom of the franchise.

And the — and they’d be just as appropriate for me to — well perhaps I ought to discuss the — the freedom of a franchise a little later.

No, I will develop it at this point the — if Your Honor pleases since we’ve reached that point and come back to the First Amendment and the arguments of the Court a little later.

Potter Stewart:

Under what amendment is the freedom of the franchise or (Voice Overlap)?

Leonard B. Boudin:

Well, the freedom of the franchise so far as this Court is concerned has so far having developed only into the Equal Protection Clause.

Potter Stewart:

I’m about — I’m talking about the constitution.

Leonard B. Boudin:

Of the constitution —

Potter Stewart:

Under what part of the constitution?

Leonard B. Boudin:

Under the Equal Protection Clause of the Fourteenth Amendment.

I would say however that it is inherent in represented democracy that the will of the people should be reflected in the election of their people and that anything that would have obstruct that would be inconsistent by our entire system of represented democracy as set forth by the Court in the recent cases of Reynolds against Sims, etcetera.

Now the Court has adopted the instrument, an appropriate one of the Equal Protection Clause as the key but it seems inherent in our democratic system that the will of the people should not be prevented by an existing legislative majority which very often has been elected at the same time as the man whose case is in issue.

Now, the reason I say that Your Honor —

Hugo L. Black:

I don’t quite get your idea.

You should go to something inherent to determine what the constitution says.

Leonard B. Boudin:

No, I think that there is a sufficient standard in what this Court has said under the Equal Protection Clause in the Reynolds against Sims case and in the other cases.

Hugo L. Black:

So why isn’t that enough?

Leonard B. Boudin:

I think it is enough.

Potter Stewart:

But that’s an equal protection —

Leonard B. Boudin:

That is quite right and in this —

Potter Stewart:

— criterion, that has nothing to do with the freedom of the franchise in any way equivalent to the freedom of speech guaranteed expressly by the First Amendment, is it?

Leonard B. Boudin:

Except that the Equal Protection Clause has been used by this Court specifically and repeatedly in recent days as the means of guaranteeing freedom of the franchise.

Potter Stewart:

Well, equality but not freedom of the franchise in any way equivalent to free speech or for — or free press, is it —

Leonard B. Boudin:

Oh, I can’t —

Potter Stewart:

— which is guaranteed by the constitution.

Leonard B. Boudin:

It is true that there is an explicit statement in the constitution with respect to freedom of speech.

Potter Stewart:

Well, that’s rather — an important difference because there isn’t one about freedom of the franchise.

Leonard B. Boudin:

It is a difference but I think the Equal Protection Clause also guarantee although it doesn’t say so, freedom of the franchise and to eliminate —

Hugo L. Black:

You mean as to freedom to vote?

Leonard B. Boudin:

The free —

Hugo L. Black:

You mean that the federal constitution provides that they — every state in the union must have elections to elect people and perhaps to vote.

Leonard B. Boudin:

No.

They could provide — I think the Equal Protection Clause provides that a particular group of people in a district or a section of the state cannot be deprived in having their votes counted.

Hugo L. Black:

When they vote?

Leonard B. Boudin:

When they vote, right.

And in that case —

Hugo L. Black:

Is that equal protection?

Leonard B. Boudin:

That is equal protection and that’s what we are relying upon here.

Now, the system of which was applied here of denying the right — the right of an elected representative to take office on the basis of qualification enunciated by the legislative body at the time the demand appeared to take office, is of course inconsistent with our entire history or federal history and of our state history.

And when the issue was raised at the time of the Constitutional Convention, the Federal Constitution Convention, and it was proposed to allow a legislature to determine the conditions of taking office.

It will be recalled that people with such diverse views as Madison and Hamilton agreed that the legislative body was not the body to impose the qualifications, contrary to what the constitution itself should have provided.

And this was of course inherent in the historic struggle in England which Madison made reference and refer of course to the — I refer of course to the Wilkes case.

And that to the attempt by a — the English Parliament to present Mr. Wilkes reelected and elected several times from taking office.

If I may return for the moment to the issue of the freedom of speech and then return here, let me indicate that the Court below, in addition to adopting a standard of giving less protection to the legislator elect in the freedom of speech area, adopted a self-imposed system of restricted judicial review.

What the Court said was that because of the separation of power’s principle and the principle of federalism, it would not protect the First Amendment rights in this case, the way it would in an ordinary case.

And instead it would apply what it called a rational evidentiary rule that is to determine whether there was any rational basis for the legislative impairment of First Amendment rights in this case.

Now aside from the fact that of course, this Court and other federal courts have repeatedly — despite the doctrine as a federalism and a separation of powers, federal courts have moved into the protection of rights against state body and courts of course, by virtue of their inherent function have protected rights even though the rights was sought to be taken away by legislative groups or by the executive or by commissions.

Potter Stewart:

So, if the constitution that’s done that, the Courts have been the instrument?

Leonard B. Boudin:

Yes, of course.

I agree on that.

Now, the reason why the Courts — what the court did below was improper in our view was because we are dealing here with the First Amendment.

We are not dealing here with the regulation of property under the Due Process Clause.

And I think what was said in West Virginia against Barnette and in succeeding cases indicates a distinction between the standards to be applied, a regulation of property and impairment of First Amendment rights.

Hugo L. Black:

Why do you say that?

Leonard B. Boudin:

Because this Court has said that in the area of the regulation of property, the standard — to protect the standard for the individual will not be as great as where the First Amendment right is involved?

Hugo L. Black:

Why did — you put your case to the —

Leonard B. Boudin:

West Virginia against Barnette.

Hugo L. Black:

You mean that the constitutional acquired property is protected by the constitution, that protection of the property which is accorded there would be less than in the event that First —

Leonard B. Boudin:

No, I guess I have misstated it.

The Court has really said that in determining whether there is a property right involved.

Well, I think it is fair to say Your Honor that the Court said that where property is involved, the test of protection will not be as great.

The amount of protection, it will not be great —

Hugo L. Black:

(Voice Overlap) it would be after the constitution, wouldn’t it?

What it said —

Leonard B. Boudin:

Yes, because the constitution as an explicit First Amendment provision —

Hugo L. Black:

As certain principles with relevance to property and certain principles with reference to the First.

Leonard B. Boudin:

That is correct, that’s what I meant.

Hugo L. Black:

And it happens to be more to the reference first.

Leonard B. Boudin:

It has to be more —

Hugo L. Black:

(Inaudible)

Leonard B. Boudin:

— in the sense that there is a First Amendment —

Hugo L. Black:

(Inaudible)

Leonard B. Boudin:

— which explicitly.

That is quite through.

Now, none of the — none of the test ever used by this Court, whether it was the clear and present danger of Schenck or whether it was the modification of Chief Judge Hand in the Dennis case, adopts it by a majority of this Court or whether if the Sherbert against Verner case of a compelling state interest.

None of these tests ever moved down to the test used by the court below namely, is there a rational basis for what was done.

The court below in using this rational basis test drew it out of two cases that has no possible bearing on the issues here.

Those cases were the Thompson against Louisville and Garner against Louisiana where — what the Court did here — there was to reverse convictions on the ground that there was no semblance, no iota of evidence to support the convictions under the Due Process Clause.

And of course that has — it cannot be applied here because I think that not even the appellees would urge that if there was an iota of evidence to justify the impairment of First Amendment rights that this Court could sustain the court below.

Now the appellees rely upon a decent kind of rational evidence — evidentiary test.

They referred to the cases of Konigsberg and Schare cases involving application through admission to the Bar.

And it is — those are the cases which — in which this Court sustaining applicants for members of the Bar, I’m talking about the first (Inaudible) case.

Now, as held that upon an examination of the whole record of that record, does not show a rational basis for the denial of membership with the Bar that the Court will not sustain the denial by the character committee involved.

Leonard B. Boudin:

But of course, there is a very real distinction between an application for admission to the Bar on the basis of good character to be determined by a character committee and the question of whether or not a person who is elected by the people of his district is to be — is to take his seat.

Whatever may be the test, I’m not rearguing now the test that was used in Schware and Konigsberg.

So I would argue with an absolute right, despite political views or opinions.

Whatever may be the test in the Bar cases, that test certainly can’t be applied where you not only have the question of freedom of speech.

But you have the question of giving voice to the electoral vote of the people here.

Our view I believe —

Abe Fortas:

Mr. Boudin, you are (Voice Overlap), don’t rely at all on Section 4, Article 4 of the Constitution, the obligation of the United States to guarantee to the states a republican form of Government.

Leonard B. Boudin:

We have them —

Abe Fortas:

That’s not in your brief, is it?

Leonard B. Boudin:

We have not argued that in our brief Your Honor, in view of the frequent statements by the Court on that subject, and because we don’t think it necessary to press the issue.

We think that we have enough here in terms of both the First Amendment and in terms of the Equal Protection Clause.

I’m not briefed with that.

Now even if we take any test other than the absolute test which we have suggested if necessary in order to vindicate not only the First Amendment rights but the Equal Protection Clause here.

We think on this record, the court below acted unreasonably and arbitrarily and that there is nothing to sustain the view that the statements made my Mr. Bond are inconsistent with his constitutional duty or show that he would not care — he would not execute his oaths of office.

I come shortly to the question of what the oath of office actually means.

Because as Mr. Moore has indicated, the statements that were made here by Mr. Bond, although we would argue that they would be protected if they were in the form of a speech, of a leaflet, of an argument in the marketplace, were actually as indicated a response to an inquiry made by a reporter.

Whatever the cases might suggest and we have seen none that are against us on this on the subject of incitement, on the subject of attempting to instigate overreaction, none of that happens to be in this case.

As I say, I would argue that Mr. Bond’s right to go into the seat make the same statement was absolutely protected by the First Amendment.

But here, we do not have any of that.

I do not think it can be said fairly that in this record, the remarks made by Mr. Bond support an argument that a compelling state interest justifies this infringement of his First Amendment rights.

Now tending for the moment for the question of the Georgia constitution and the oath of office, the court below recognized that there was no qualification set forth in the Georgia constitution which was not met by Mr. Bond, and that he was disqualified under any of the specific provision.

What it said however was that there was a rational basis for — the belief by the legislative body that Mr. Bond could not conscientiously take the oath to support the constitution of the United States and of Georgia.

An oath which is set forth at page 47 of our brief and which provides in the following language, 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 well in my judgment the most conducive to the interest and prosperity of the state.

This said to legislature, Mr. Bond was not able to take because of the public expressions of opinions that he had made.

And of course —

(Inaudible)

Leonard B. Boudin:

Yes, that is a very real distinction.

I think that there’s no question but that he had to take the oath if he wanted to take office.

This oath is a — first of all, the oath itself or at least part of it is required by Article VI, Clause 3 of the Federal Constitution which require state legislators to take the oath to support the federal constitution.

The oath — and that is really our point here Mr. Justice Harlan is a mode of taking office not a standard by which the judge, the fitness of the man to take office.

Leonard B. Boudin:

It is like all of these oaths of taking office, a promissory oath, a solemnification of the important step of taking office.

And it is not to minimize it in the slightest to say that it is not intended as a method of refusing to let people take the oath, which was done in the present case.

There is a New Jersey superior court decision which I may — will ask the Court to leave — to cite since I have not put it in my brief but told our opponents about Imbrie against Marsh in which Judge Bigelow discussed this particular problem and —

Hugo L. Black:

What’s the name of the case?

Leonard B. Boudin:

Imbrie, I-M-B-R-I-E Your Honor against Marsh.

Judge Bigelow in 5 New Jersey Superior 239 said, “It is a promise and assurance of future conduct.

It is not a device for making some persons ineligible for office.”

And —

You would agree or whether you refused to take the oath of the Georgia legislature didn’t — construed it.

Leonard B. Boudin:

Yes, I will agree that this is a step which must be taken by everyone who wants to take office (Voice Overlap) —

I supposed and then he said, “Alright, I’m required to take this oath and I’ll go through the bar, I’m taking it as it’s written but I want to warn my colleagues now that I don’t intend to observe it”.

Leonard B. Boudin:

I would say that it’s such an extreme case even in such an extreme case.

There is no question.

I shouldn’t put it that way.

That is my opinion that that he would be permitted to take the oath of office.

I don’t think — I think once you move away from the function of the oath namely, that it’s merely the preliminary step to taking — carrying out your official function and turn it into something which could be examined in the point of view of determining whether the man can consciously or properly or means to take the oath, then you move into an unlimited area which is exactly the area that we rendered to here.

An examination of his background of the statements of what he had intended.

Byron R. White:

Mr. Boudin —

Leonard B. Boudin:

Please.

Byron R. White:

(Inaudible)

Leonard B. Boudin:

I beg pardon?

Byron R. White:

Is critical to your case?

Leonard B. Boudin:

It is not critical to my case, no.

Byron R. White:

I would suppose you could — you would still think you’re entitled to judgment even if you answered Mr. Justice Harlan the other way.

Leonard B. Boudin:

Even if I said that (Voice Overlap) —

Byron R. White:

If he said I will take the oath and then renounce it?

Leonard B. Boudin:

Even if he’s — yes, I would say that if he said I will take the oath and renounce it or take the oath and not mean it to — that he would have a right to take the oath and he would have a right to take office.

Byron R. White:

But what if you’re wrong?

What if — what if you — what if you’re wrong on that?

Leonard B. Boudin:

That is?

Byron R. White:

That you would not be entitled to take the — take your office if that have been secured?

Leonard B. Boudin:

Well, we are still met here with the basic issue whether the legislative body to action is valid.

Byron R. White:

Well, you have still — at least be left with the issue whether what happened here was tantamount to that hypothetical?

Leonard B. Boudin:

That is quite right.

And we would also be left — I would also have in reserve so far as this oath is concerned, the whole question of whether it’s not unconstitutionally vague under the decision in Baggett against Bullitt and under the decision in Cramp against Florida.

Because this oath viewed now as the — as was done below as a standard of behavior does raise a question of vagueness and does involve the same First Amendment problem that led the Court in Bagett against Bullitt and Cramp against Florida and several others which was the greatest division of the Court.

They come to the conclusion that the oath was unconstitutional.

Hugo L. Black:

So was the intent of making a statement he was against the — what was going on in Vietnam.

He had made a statement that he was against the enforcement of all of the federal laws with reference to any discrimination against color people that he was going to do all in his power to break down the federal laws in that (Inaudible) would the case be any different in your judgment?

Leonard B. Boudin:

The case would be exactly the same and of course, exactly the case that we have here.

Since the Georgia legislature and its members as we note from the amicus curie briefs which have developed this in detail consists of members who have repeatedly and officially as legislators, taken the position that the decisions of the Court protective of civil liberties that the decisions of the Courts in the field of civil rights are not to be obeyed.

And I would say that the — all of those people when the Georgia legislature have taken these positions violative of the constitutional rights of American citizens have a right to take their position and cannot be precluded even though if one were to adopt the standard we have just discussed, one could say, “None of them could conscientiously take this oath of office”.

Hugo L. Black:

You’re taking the position that all — he have a right to say this, that’s quite different to doing so that they could be prosecuted for doing it can’t be prosecuted for saying it.

Leonard B. Boudin:

That’s exactly our of point.

And we are in our right are no different in this respect than those of the (Voice Overlap) —

Hugo L. Black:

But then you meet your real question, don’t you find it, after what the provision means in that constitution —

Leonard B. Boudin:

As to what this —

Hugo L. Black:

— as to take the oath of office.

Leonard B. Boudin:

As to what the oath of office means.

Hugo L. Black:

And to whether that oath of office can to that extent penalized by depriving him office for a statement publicly made which — but for that would undoubtedly be privileged.

Leonard B. Boudin:

That is quite true Your Honor.

Of course, the members of the Georgia legislature have gone further, they have taken actions.

The Georgia (Voice Overlap) —

Hugo L. Black:

They have taken action.

Leonard B. Boudin:

I beg pardon?

Hugo L. Black:

They have taken (Voice Overlap) —

Leonard B. Boudin:

They have taken actions —

Hugo L. Black:

— but he hasn’t.

Leonard B. Boudin:

— and we have — Mr. Bond has taken no actions.

Mr. Bond stated his opinion, and yet I would even say as to the Georgia legislators who took the various actions depriving the citizens of Georgia, perceivably the Negro citizens of their constitutional rights.

Leonard B. Boudin:

That even those actions could not be the basis for depriving them of the right to sit in the legislature or to sit in the government’s chair of Georgia.

Hugo L. Black:

You would say quite not.

Leonard B. Boudin:

I would say that the fact that a man who may be a governor elect has taken a position against the constitutional rights of citizens or has taken even action to deprive them of that constitutional rights, cannot deprive him of the right to sit.

Our situation is a much simpler here — matter here.

We have done nothing except to speak, and speak and response to a question that was questioned.

But I am — as I say, I think this constitutional provision cannot be used even as addressed to the conduct because it is a promissory oath.

Looking to the future is as I suggested before and as Judge Bigelow indicated, it is a solemnification of the step of taking office.

It is not something by which we are to judge the conduct and certainly not something by which we are to judge the speech.

Hugo L. Black:

Those in Congress had done exactly the same thing?

Leonard B. Boudin:

Exactly the same result would follow, that it would be improper.

That Congress cannot use an oath of office as a mean for excluding people, deprive them of the right to sit because of what they have said.

Hugo L. Black:

You come down to the fact that there’s a proposition, do you not that merely Congress now the state legislative can hold it to be a qualification offered to the man have not yet expressed certain views.

Leonard B. Boudin:

That is our basic position and that was why I said at the beginning, I thought that the First Amendment —

Hugo L. Black:

Is it contrary to the constitution?

Leonard B. Boudin:

It’s contrary to the First Amendment, the constitution.

Hugo L. Black:

The First Amendment or contrary to the amendment about the quality of life on account or race and color.

Leonard B. Boudin:

That is quite right.

Hugo L. Black:

Or any other constitution or provision for that could not be the basis for holding that either a Senator or a Congressman disqualified by the legislative body.

Leonard B. Boudin:

That is exactly our position.

So we think in this case —

Byron R. White:

(Inaudible)

Leonard B. Boudin:

All for statements made subsequent to oath.I think the problems after —

Byron R. White:

(Inaudible)

Leonard B. Boudin:

Now with respect to action taken after a man is sitting in the House, action, there I think we may have a different problem and it would depend upon whether or not it would constitute disorderly behavior or misconduct within the meaning of those clauses relating to the expulsion.

I suppose the —

Byron R. White:

(Inaudible)

Leonard B. Boudin:

After election, after being seated — I didn’t quite follow whetner that was the condition.

Byron R. White:

(Inaudible)

Leonard B. Boudin:

If the — if we are in the context of the present problem, we’re talking about speech.

Then whether the speech is before or after would make no difference, it would be constitutionally protected.

Leonard B. Boudin:

I didn’t know whether Your Honor was referring to action taken afterwards.

If action were taken afterwards then we would present it with a very different problem, the problem presented by the question of whether or not the House has the power of expulsion which poses completely a different historical problems I think and also questions of what misconduct means.

But we are –we avoid that problem, we don’t have that before us because we have only the problem of conduct of speech antecedent to taking office.

Abe Fortas:

Suppose a state legislature without any reason, without ascribing any reason whatever, refused to permit a person who had been elected to the take office.

He said, “We’re not going to permit you to do it”, no free speech issue in this brought by legislative resolution.

I suppose it could be argued that this probably is a person is being deprived of a right.

But would that conceptually different, is it fact that this is at First Amendment right that gives a Federal Government power here?

And if it were not the First Amendment involved here but let’s say, summary action I — perhaps the violation of due process or the fellow have attained their standing alone.

Would that give the — would that mean that in no circums — would your argument mean that no circumstances, the federal judiciary could do nothing about it whereas the First Amendment involvement here is the triggering factor.

Leonard B. Boudin:

Well, I had suggested before in my argument that I thought that it might be a violation of the equal — or it would be a violation of the equal protection law, equal protection of the laws provision to deny the will of the electorate by rejecting somebody who has been offered — who has been elected by it.

Abe Fortas:

But doesn’t that get us immediately into all state elections?

Leonard B. Boudin:

That does create a problem and a problem which I think I can avoid by indicating that I agree that the triggering factor here and the admitted factor, there’s no dispute as to this is the statement of Mr. Bond, the public expression of opinion.

I think that is the trigger.

Abe Fortas:

Well, I understand that (Voice Overlap) —

Leonard B. Boudin:

Gives the Court jurisdiction.

Abe Fortas:

Then you get the next question which is why, how, on what theory does the First Amendment operate in that fashion.

Why doesn’t the Due Process Clause trigger it?

That is to say, why doesn’t the — or recurring this bill of attainder type of action trigger.

Why the First Amendment?

Leonard B. Boudin:

Well, as Your Honor will see from our brief, we are also of the opinion that the bill of attainder provision is applicable here.

And that it does trigger the right of the Court to intervene.

Abe Fortas:

Does due process trigger?

Leonard B. Boudin:

Now as to due process it would depend — as to due process I have more doubt.

I think that it is the — sorry Your Honor.

I think it is precisely because of the special position which has been recognized the First Amendment possesses, relationship to what the Court has said, “The vitality of our institution”.

Because it is an explicit provision of the constitution and because it is then given — put it one way or the other, this preferred status that the First Amendment will always be able to trigger the protective use of the judicial arm.

I should like to add Mr. Justice Fortas that of course, bearing in mind the fact that we also have speech of the particular kind relating to national issue, we are also relying upon the fact that upon the specific immunities and privileges clause requiring —

Abe Fortas:

Well, I can say that it — and it’d be difficult for us state to take the position and it has a Republican form of Government if it denies to the persons who have by hypothesis been duly elected the opportunity to take their seat in legislature.

I can see that possibility.

But if you take the next step and say that Section 4 of Article 4 is in this situation as this Court has held it, it could be another situation is nonjusticiable.

Abe Fortas:

Then I have a little problem in going from the — this question of state power to the question federal power.

Leonard B. Boudin:

The Court of course in Baker against Carr was able clearly to distinguish the line of cases beginning with Luther against Borden involving the Republican form of Government and held that where specific rights were being denied.

In fact that it might also involve a derogation of the Republican form of Government and trusted to the political arm did not mean that the Court would indicate the rights involved there.

And so here we think where we have a First Amendment right clearly within the scope of the Court’s historic power to bend the case.

I — but know whether you had a question, Mr. Justice Harlan.

(Inaudible) as I understand it this man was excluded because he was a Negro.

Leonard B. Boudin:

I think — I can answer you, I think that its —

Obviously (Voice Overlap) —

Leonard B. Boudin:

— as far as this —

— this Court’s jurisdiction as (Voice Overlap) —

Leonard B. Boudin:

So far as this Court is concern, we are not arguing that that was the fact.

We are relying upon the First Amendment issues here.

I think that — I will not argue the bill of attainder issue but merely indicate to the Court that I think that under the Levitz-Watson Dodd case.

This is clearly a bill of attainder because one looks at the charges that were made against Mr. Bond at the kinds of questions that were put together.

At the results that follow, it is clearly a legislative determination of guilt of this loyalty of something approaching sedition of something approaching oppositions to the national interest which in the light of what has occurred up to now is clearly a permanent.

It would make no difference or would temperate permanent proscription from office.

This is a very different question from the question of judging the qualifications.

That is determining whether a man linked standard specifically set forth in the constitution at which the quasi judicial function familiar to the Court.

Here we have a legislative determination where there is no standard set forth in the legislation or constitution.

A trial, and no one who raise his extended record and sees the cross examination of Mr. Bond by his judges can doubt that he went through a real trial as to its political opinions and views and that he was found guilty and declared not once but three — that twice ineligible to serve in a legislature.

Potter Stewart:

He’s a — but he was reelected overwhelmingly last two (Voice Overlap) —

Leonard B. Boudin:

Reelected overwhelmingly last (Voice Overlap) —

Potter Stewart:

That doesn’t make this case moot in any way?

Leonard B. Boudin:

Oh, I think not.

I think the issue is — the continuing efforts of the legislature which we can anticipate are going to be unchanged —

Potter Stewart:

But we don’t know that yet.

Leonard B. Boudin:

We don’t, but we know that they have taken — that they have announced that he is ineligible for office, that is, they originally announced that they reiterated the second time.

Because when Mr. Bond was elected a second time, the rule — the committee of the legislature held a hearing in which in essence they said to him, will you recant?

And he said no, I stand on the same position and they said, “ineligible”.

Abe Fortas:

Does he have a claim for payment of salary?

Leonard B. Boudin:

Yes, there is in this case also a stipulation providing in the event a judgment will be rendered in favor of Mr. Bond he would be entitled to a salary which was specified.

Potter Stewart:

Mr. Boudin, when does the legislature elect refused to present itself to take (Inaudible)?

Leonard B. Boudin:

On January 11, I think — on January 11 of this coming year, the new legislature to which he has been elected will set —

Potter Stewart:

Did I understand Mr. Boudin that you think of this and submit that this is quite a different case from the one that might be presented if Mr. Bond or anybody else were expelled from a legislature for violation of its — on a legislature rather strict if you will rules of decorum and courtesy as to manner of speech and manner of association and so on.

Leonard B. Boudin:

I think that problem is really a different one.

Potter Stewart:

Now why?

Leonard B. Boudin:

It’s a different one because the legislature has a right to handle its own proceedings and to be sure that somebody doesn’t interfere with them or the — doesn’t engage in misconduct in the course of those proceedings.

Now I recognize — and this is — and the protection of that right is indicated by of course the two-third vote which is historically applicable to that kind of situation.

I turn (Voice Overlap) —

Potter Stewart:

Two-thirds vote required to expel somebody?

Leonard B. Boudin:

Two-third vote required to expel.

I do not however concede that if the legislature attempted to expel one for public statement of his opinions, whether it was on state issues or via on federal issues that that could — the expulsion could be sustained (Voice Overlap) —

Potter Stewart:

Well, I have in mind cases at the federal level like — at least were not expulsion cases but they were discipline cases of — by the United States Senate of the late Senator McCarthy and before that of his predecessors under Hiram Bingham of the Connecticut who was censured by the Senate for exercising what he might call his constitutional right of association for bringing of — well obvious under the floor of the Senate and Senator McCarthy, I supposed was censured for the exercise of what he might consider his freedom of speech under the First Amendment.

And I suppose in an extreme enough case — national or state legislature could — and would have historic power to expel the member for gross violation of its ground rules.

Would you question that even if it involves simply a speech?

Leonard B. Boudin:

Well.

Potter Stewart:

But if it were of vulgar or —

Leonard B. Boudin:

I would —

Potter Stewart:

— a fancy speech in repeated violation of its rules as to how the legislature was to do business.

Leonard B. Boudin:

I should say Your Honor first that and I will — that in — all — the cases Your Honor has mentioned — I’m sorry, well, affinitive with the — with some of those cases it was far more than speech involved.

There were actions taken by late Senator McCarthy, subject to the Senate propagation.

Potter Stewart:

Well, now the case of Senator Hiram Bingham of Connecticut was his freedom of association.

Leonard B. Boudin:

And I would also question except under the broadest construction to bring (Inaudible) on the floor a violation of the rules of the legislative body to be an active association.

But I would say that those are hard of cases and the — I don’t want to try to solve or to attempt to solve a harder case involving a question whether what one is doing is that expression of speech or as of conduct.

I think we have a so much simpler case here of pure speech, and I think pure speech —

Potter Stewart:

Expression of opinion.

Leonard B. Boudin:

Pure expression of opinion which cannot conceivably prevent the problem which might be presented by these harder cases.

Potter Stewart:

Do you think that’s quite a different case from a case where the charge — where it was that he repeatedly violated the rule that all opinion inside the House should be addressed to the chair for example, rather than directly at another member.

Leonard B. Boudin:

I think there is a difference between the preparing with the proceedings of a legislative body and speaking to a — giving freedom of expression to his views in talking to a newspaper recorder.

If I may reserve a few minutes for rebuttal Mr. Chief Justice.

Earl Warren:

You may Mr. Boudin.

Attorney General Bolton.

Arthur K. Bolton:

Mr. Chief Justice, Justices of the Supreme Court of the United States.

As has been safely apparent from the discussion of the problem before this Court today is a great historical significance not because the Georgia legislature is the only legislative body which has ever refused to seat a member in judging his qualifications.

But because this is the first time insofar as we have been able to ascertain that the issues presented in this case have ever been before the Supreme Court.

Indeed historically, there seems to be a lack of precedent for this case to be here.

But I should concede in candor that in view of recent decisions of this Court, history alone does not control nor indeed should it control and without waiting or conceding any of the arguments raised in our brief, I will consign our argument to the basic constitutional questions raised and the basic constitutional rights of Mr. Bond which this Court may find it necessary to determine.

When the Julian Bond’s story broke the New York Times interviewed Louie Loreman who was one of the five socialist who were expelled by the New York Legislature in 1919.

It inquired why no court action had been taken by them at that time, said Mr. Loreman.

We regard the concept of separation of powers as far more important than own case.

If judges can decide who can seat in the legislature then they can decide who shouldn’t seat.

This would be a much greater offense to a Democratic Government than anything a stupid majority of legislators might do in an individual case.

So I think it will be readily agreed therefore that this is a first impression case before this Court.

And that is it may for the first time construe the power of a legislative body in determining qualification of its selected membership, it is of paramount importance.

The question concerning Mr. Bond’s election and his subsequent election except for the fact that he has not been refused a seat by the Second Legislature, it is merely the committee’s recommendation which will go to the General Assembly next January.

William J. Brennan, Jr.:

That is the newly elected assembly?

Arthur K. Bolton:

Yes sir.

He is not in dispute.

Mr. Bond has been (Voice Overlap) —

William J. Brennan, Jr.:

Does that mean this recent one go to the newly elected assembly that was — he was elected last year?

Arthur K. Bolton:

No sir, there has been no contest to his election on —

William J. Brennan, Jr.:

The second action you said was a committee recommendation.

Arthur K. Bolton:

Yes Your Honor.

William J. Brennan, Jr.:

And this — is that recommendation was to be acted upon by the legislator elected last Tuesday?

Arthur K. Bolton:

Yes sir.

William J. Brennan, Jr.:

This may or may not include Mr. Bond?

Arthur K. Bolton:

Yes sir, that’s right.

Earl Warren:

Well, has he been exuded for two of his terms or (Voice Overlap) —

Arthur K. Bolton:

He was excluded for the term upon which this suit is predicated.

Then —

Earl Warren:

Was this the first one?

Arthur K. Bolton:

Yes.

Then the governor in conformity with the law called a special election.

Earl Warren:

Yes.

Arthur K. Bolton:

Mr. Bond ran and was overwhelmingly reelected.

Earl Warren:

When was that?

Arthur K. Bolton:

That was this year March, the legislature was in recess, a special (Voice Overlap)

Earl Warren:

March of what year?

Arthur K. Bolton:

Sir?

Earl Warren:

March of what year?

Arthur K. Bolton:

March of 1966.

Earl Warren:

1966?

Arthur K. Bolton:

Yes sir.

The legislature was in recess, a committee convened and met and made a recommendation that he’d be not seated but it has not been acted on by the legislative which doesn’t —

William J. Brennan, Jr.:

Well Mr. Attorney General, I’m a little confused about this.

Isn’t that — that legislature is now out of office, isn’t it?

Arthur K. Bolton:

It will be —

William J. Brennan, Jr.:

Or will be on January —

Arthur K. Bolton:

Yes sir.

William J. Brennan, Jr.:

Well, what action can the legislature — the newly elected legislature take in respect of his being seated in the legislature that no longer exists.

Arthur K. Bolton:

Whatever it determines Your Honor, if I understand the reason that he ran was to be able to serve on committees during the recess of the legislature.

But actually as the — Your Honor points out, any recommendation of this committee would not be binding on the newly convened legislature.

William J. Brennan, Jr.:

Well I can’t even see what the newly convened legislature can now do about his being seated in the legislature which no longer exists.

Arthur K. Bolton:

They cannot.

William J. Brennan, Jr.:

Well then, is this recommendation then to — have any relation to his election last Tuesday?

Arthur K. Bolton:

You mean the recommendation of the legislature this year, this committee?

No sir, I don’t think it has anything to do with this.

William J. Brennan, Jr.:

Well I must say then I don’t understand what possible action the newly elected legislature can take in this recommendation.

Arthur K. Bolton:

The newly elected legislature, if the time — if his qualification to our challenge they may or may not be challenged.

But I think if that time would have to determine it for themselves.

Abe Fortas:

Did Mr. Bond show up after the special election and offered to take the oath of office?

Arthur K. Bolton:

I would presume yes sir that he did present himself.

Abe Fortas:

And permission was refused?

Arthur K. Bolton:

Yes sir.

Abe Fortas:

So that that is —

Arthur K. Bolton:

I think that —

Abe Fortas:

— official state action?

Arthur K. Bolton:

That is correct.

Abe Fortas:

So that as of now, with respect to Mr. Bond’s second election, that is the special election, we have a closed book.

Now we — that is to say in a sense that he offered to take the election — take the oath of office and the state refused to permit him to take the oath of office.

And so that stands the same footing as the first one.

Arthur K. Bolton:

I think you are correct Your Honor, yes sir.

We will therefore try to the deal is — briefly as possible in the time allotted us, those constitutional questions which we think may concern the Court in arriving at a decision.

Hugo L. Black:

What do you understand the word qualification to mean in your constitution?

Arthur K. Bolton:

I understand the word qualifications, may it please the Court, to mean the qualifications imposed in the Georgia constitution and also the qualification imposed by Article VI, Clause 3 of the United States Constitution.

Hugo L. Black:

Does either one of those includes a disqualification on account of views?

Arthur K. Bolton:

No sir.

The qualifications of the Georgia constitution, may it please the Court, opposed which are usually contained in state constitutions saying that he’d be a citizen of the United States 21 years of age, citizen of Georgia for two years and the rest of that — of the county from which elected of the district from which elected for one year and it has other provisions in the Georgia constitution.

Hugo L. Black:

And as if it would require a trial in order to determine the constitution?

Arthur K. Bolton:

Any in the Georgia constitution?

Hugo L. Black:

Yes, any qualification as it requires a trial.

Arthur K. Bolton:

Nothing except the qualification as contained in the Georgia constitution Your Honor that he’d be bound to support the constitution of the United States.

Hugo L. Black:

So that’s all?

Arthur K. Bolton:

Yes sir.

Hugo L. Black:

Anything about good character?

Arthur K. Bolton:

No sir.

Hugo L. Black:

So that you really have —

Arthur K. Bolton:

We have —

Hugo L. Black:

— very nominal qualification.

Arthur K. Bolton:

I would think that with the qualification of Article VI, Clause 3 of the Federal Constitution, we do have nominal qualifications.

Arthur K. Bolton:

Of course he can’t owe money to the State and there are some specific —

Hugo L. Black:

Did they say that?

Arthur K. Bolton:

Yes sir.

Hugo L. Black:

He can’t owe money to the State.

Arthur K. Bolton:

That’s right, cannot be indebted to the —

Hugo L. Black:

Well that — that’s not involved here?

Arthur K. Bolton:

That is not involved here, no sir.

Hugo L. Black:

Is there anyone that is involved here?

Arthur K. Bolton:

The Court please, the qualifications contained in the Federal Constitution, Article VI, Clause 3 which requires that a state legislator be bound to support the constitution of the United States because of a — the supremacy clause of the U.S. constitution, we think to be a paramount qualifications.

Hugo L. Black:

You don’t think do you that that was a — to be construed as meaning or the man swears he will never express any views hostiles to Government policy.

Arthur K. Bolton:

No sir, I think that it’d be construction of course, it’s up to this Court to construe that provision of the constitution.

But I think that that provision means and is a qualification that a person be bound to support the constitution of the United States.

It’s imposed on the Congress upon the legislative and executive branch and the judiciary of the several States in Article VI, Clause 3.

Hugo L. Black:

But of course the number of the judiciary are they — not the judiciary, the legislative body, do express their views, they have vigorously against policies of the Government?

Arthur K. Bolton:

Yes sir.

Hugo L. Black:

So that you can’t be taken to — forbid that, can they?

Arthur K. Bolton:

No sir, I don’t think it can be taken to forbid the expression of views.

But I think if a person which I will try to develop, I think if a challenge is unopposed that the legislature can hear it.

Hugo L. Black:

Legislature can what?

Arthur K. Bolton:

Can hear evidence for the purpose of determining qualifications.

Earl Warren:

As to mean whether the legislature agrees with the views —

Arthur K. Bolton:

Well I don’t —

Earl Warren:

— expressed.

Arthur K. Bolton:

The Court knows I can’t state that nearly because the legislature merely disagreed with the views of a member who was being seated that he could not be seated.

But I think that the legislature in a hearing to determine the qualifications under Article VI, Clause 3 of the United States Constitution that a member of a state legislature be bound to support the constitution of the United States can hear any relevant evidence which bears on his qualifications to be bound to support the constitution of the United States.

Byron R. White:

Yes, but there’s a question Mr. Attorney General as to what being bound to support means.

Arthur K. Bolton:

Yes sir and —

Byron R. White:

Would you say for a moment that a legislature — a legislator is being unfaithful to his oath if he says, “I think the First Amendment should be amended.

I don’t agree with it”.

Arthur K. Bolton:

No sir.

Byron R. White:

Do you think he is — did you think (Voice Overlap) —

Arthur K. Bolton:

Because his advocating that —

Byron R. White:

That because I think (Voice Overlap) —

Arthur K. Bolton:

He is advocating an amendment of the law within the framework of the constitution.

Byron R. White:

So you could disagree.

You can disagree with the policy stated in some provisions in the constitution and still support it then.

Arthur K. Bolton:

Yes sir.

I think the states will also along I think —

Byron R. White:

So that — if we are really we’re saying then that the — that Mr. Bond could state his views in opposition to policy, to the policy of the constitution or the policy of the law of the United States?

You concede that?

Arthur K. Bolton:

Yes I think Mr. Bond can state his views.

Byron R. White:

But you would say I suppose that if he said, “I will not obey the constitution”, that is a wholly different matter?

Arthur K. Bolton:

Yes sir.

I speak —

Byron R. White:

Do you suggest that that what’s he said?

Arthur K. Bolton:

I am not trying —

Byron R. White:

Well, not (Inaudible) —

Arthur K. Bolton:

Excuse me.

Byron R. White:

Do you suggest that that is what he said that he will not obey the constitution?

Arthur K. Bolton:

Yes sir, I think he advocated violation of the laws.

Byron R. White:

Although he himself denies that that’s what he said.

Earl Warren:

What language do you point to in this — in what he said to arrive at that opinion?

Arthur K. Bolton:

Mr. Bond stated as set out in the opinion that he would advocate it that those who violate — anyone violate the Selective Service Act for any reason which they saw fit.

Earl Warren:

But let’s see where it — just what he said that’s rather important.

Arthur K. Bolton:

Alright sir.

Earl Warren:

You know just what he said.

Arthur K. Bolton:

Record page 138.

Earl Warren:

138.

Arthur K. Bolton:

Yes sir.

May I read?

Earl Warren:

Yes, if you please.

Arthur K. Bolton:

During a taped interview with the representative of the media, Mr. Bond after endorsing the Student Nonviolent Coordinating Committee statement was asked why he endorsed it and his answer was as follows.

Why?

Endorse it — this, because I like to think of myself as a pacifist and one who opposes that war and any other war and eager and anxious to encourage people not to participate in it for any reason that they choose.

And secondly, I agree with the statement because of the reasons set forth in it.

Because I think it is so hypocritical for us to maintain that we are fighting for liberty in other places and we are not guaranteeing freedom to citizens inside the continental United States.

Further reading, may it please the Court.

When they asked if he thought his views were at variance with the duties that might be required of him as a representative in the House of Representatives of the State of Georgia, Mr. Bond replied, “Well I think the fact that the United States Government fights a war in Vietnam.

I don’t think that I as a second class citizen of the United States have a requirement to support that war.

I think my responsibility is to oppose things that I think are wrong, if they are in Vietnam or New York or Chicago or Atlanta or whatever”.

William J. Brennan, Jr.:

Is that all that you rely on?

Arthur K. Bolton:

Sir?

William J. Brennan, Jr.:

Is that all you rely on?

Arthur K. Bolton:

I could — I am sorry, that —

William J. Brennan, Jr.:

Is that all that you rely on to say that he advocated violation of the law and disobedience to the constitution?

Abe Fortas:

How about the statements —

Arthur K. Bolton:

That —

Abe Fortas:

— the SNCC statement on 137?

I suppose that’s closer to your point that the statement of the fact that we’re in sympathy within the support and then we’re unwilling to respond to the draft.

Arthur K. Bolton:

The — let me explain to the Court.

This entire statement — excuse me.

The entire statement of the Student Nonviolent Coordinating Committee was read into the record at the hearing.

Earl Warren:

He didn’t write that, did he?

Arthur K. Bolton:

No sir, he didn’t write it but he was — publicity and I don’t think he is — I think if the evidence is uncontradicted that he was a Student — I mean he was the publicity direct for the Student Nonviolent Coordinating Committee.

Byron R. White:

Well he said specifically that he endorsed it.

Abe Fortas:

A what?

Arthur K. Bolton:

Yes.

Byron R. White:

Agreed with it.

Arthur K. Bolton:

At the hearing, —

Byron R. White:

Yes.

Arthur K. Bolton:

— it was read to him —

Byron R. White:

There’s no issue that — what he — under — that he endorsed (Voice Overlap) —

Arthur K. Bolton:

He endorsed it and said he reaffirmed his endorsement of it at the hearing.

Earl Warren:

Yes, he stated his reasons why he endorsed it.

Arthur K. Bolton:

Yes.

That’s correct.

Tom C. Clark:

Would it be constitutional if Georgia or any other state put it in its constitution a provision that no one should be qualified to seat in the state legislature if they were opposed to the national foreign policy?

Arthur K. Bolton:

They were opposed to the national foreign policy.

I don’t think that this Court would hold that was constitutional, no sir.

Tom C. Clark:

What are the constitutional for the state put in this constitutional provision that nobody should be seated who is a pacifist?

Arthur K. Bolton:

Obviously sir, I think the same reason therewith.

Earl Warren:

To think what?

Arthur K. Bolton:

I think the same reasoning would apply there.

Potter Stewart:

There was not?

Arthur K. Bolton:

Yes sir.

I’m sorry.

Tom C. Clark:

Or a socialist?

Arthur K. Bolton:

The same reason, yes sir.

It is our position, may it please the Court, that the qualifications imposed in the Georgia constitution, all the member of the Georgia — by the Georgia constitution.

I want to say, but there there’s another constitution imposed by the U.S. Constitution Article VI, Clause 3 which of course we joined issue and there’s not being a promissory oath that that is a qualification imposed by the framers of our constitution.

Now —

Hugo L. Black:

Before this?

Arthur K. Bolton:

— why?

Hugo L. Black:

(Inaudible)

Arthur K. Bolton:

The qualification that an elected representative be bound to support the constitution of the United States.

Hugo L. Black:

Be bound to say it?

Arthur K. Bolton:

I think, —

Hugo L. Black:

Bound to say (Voice Overlap) —

Arthur K. Bolton:

— he would be bound to say it and he would be, if he — please the Court, that that would be a qualification that he possessed at that time that he said.

Now, I agree that this issue has not been raised.

Arthur K. Bolton:

I’ve learned a great deal about the — I think our constitution in studying this facts in this case.

But may I suggest to the Court that one of the reasons this issue hasn’t been raised is because of the fact that certainly for the past hundred years, we have had orderly government.

We have had a government under the constitution in this country.

And one of my states, Georgia, was one that participated in the Civil War.

But it was only when those members of the legislature violated this oath.

Violated disqualification if you please the Court, that we had chaos in the country, that this is a fundamental point, a fundamental thing that the framers of the constitution wanted, put in to the constitution by the members of Congress, not only Congress but of the state legislators.

May I say in the state —

Byron R. White:

Mr. Attorney General, a while ago you said that the different with government policy and the policy of the constitution, with purpose is permissible that a man shouldn’t be excluded from the legislature for that reason, just for disagreement.

Arthur K. Bolton:

That’s right sir.

Byron R. White:

But that you have thought there was advocacy, a violation of the law (Voice Overlap) —

Arthur K. Bolton:

Yes sir.

Byron R. White:

— or of the constitution.

Now, what if the — in the hearing for — on Mr. Bond’s qualification, Mr. Bond says, “Well, I understand you think that I advocated breaking the law but I assure you I don’t — I didn’t advocate it so for as I know and I don’t advocate.

And if I did, I renounce what I said, I — all I mean is that I do not advocate breaking the laws”.

Now, did that occur or not?

Arthur K. Bolton:

No sir.

That line of questioning didn’t occur here.

Mr. Bond — I believe Mr. Bond did say that he didn’t encourage others to burn their draft card that he had his own draft card (Voice Overlap) —

Byron R. White:

Well, do you think that — do you think the legislature excluded him because they thought he advocated the breaking of the law and that they didn’t believe his disavowal?

Is that what you’re bringing up here that he should — this exclusion should be affirmed because Mr. Bond advocated disobedient to the federal constitution or the federal laws?

Is that it?

Arthur K. Bolton:

One of the reasons Your Honor.

We think that —

Byron R. White:

Well then — you have to then say the legislature found that he — didn’t believe him on his disavowal?

Arthur K. Bolton:

I would have to say that the legislature in hearing the evidence in judging his qualifications found that he would not qualify to be bound to support the constitution.

Byron R. White:

Well, he did say in so many words.

William J. Brennan, Jr.:

Well, I know but — I do not advocate that people should break laws.

Arthur K. Bolton:

Yes sir, he did say that.

That was evidence in his favor.

William J. Brennan, Jr.:

So then why isn’t Justice White’s question pertinent?

William J. Brennan, Jr.:

There must have been a finding if they didn’t believe that when he said it.

Arthur K. Bolton:

Well —

William J. Brennan, Jr.:

You’ve already said that that support to constitution doesn’t mean that I will not disagree.

Byron R. White:

You’ve already —

Arthur K. Bolton:

Of course.

Byron R. White:

I mean the — the gloss you put on that is that — what it means is that the man will not abide by the constitution, would disobey it.

Arthur K. Bolton:

That’s right.

Byron R. White:

Now he says, I don’t mean that.

I didn’t mean that and I don’t mean it.

Arthur K. Bolton:

I think that was for evidence for the House to consider.

Earl Warren:

General, you have told us that you’re relying on the section of the constitution which requires every state legislator to take the oath to support the constitution of the United States.

Now, is there anything in the constitution that gives a right to anyone to judge the sincerity of a legislator who is willing to take that oath?

Arthur K. Bolton:

No sir.

May I read the provision of the U.S. Constitution, its very short, Article VI, Clause 3.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executives and judicial officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification, a qualification to any Office or public trust under the United States.

Earl Warren:

My question —

Arthur K. Bolton:

Yes.

Earl Warren:

— to you is that do you — that section, if an elected officer is willing to and offers to take that oath, is there anything in the constitution of the United States that authorizes anyone under any circumstances, to pass upon his sincerity in taking that oath?

Arthur K. Bolton:

Not in the United States Constitution sir, except in that (Voice Overlap) —

Earl Warren:

And then I would like to know why — how you jump from that to the fact that the legislature of Georgia has a right to test the sincerity of this man in taking that oath?

Arthur K. Bolton:

Well, may it please the Court.

I have to state my position to that.

Earl Warren:

Certainly.

Arthur K. Bolton:

But we — of course this — he was — one of the allegation, one of the challenge unopposed stated that he was not qualified under this provision of the U.S. Constitution and —

Earl Warren:

Who said that?

Arthur K. Bolton:

One of the challenges to Mr. Bond’s being seated.

And the Georgia —

Earl Warren:

You mean, he judged that the — he passed judgment on Mr. Bond to the effect that Mr. Bond would not — was not sincere in taking that oath.

Arthur K. Bolton:

I think that would be a fair statement, yes sir.

Earl Warren:

Alright.

Arthur K. Bolton:

I think it would be.

But the provisions for the House to judge it — the Georgia House of course is not in the constitution.

That relates back to the Georgia constitution, the provision that the House shall be that sole judge of the qualification in election of its members.

Earl Warren:

But now what — you told us that there is nothing in the Georgia Constitution that directly confers with his taking the oath, have you not?

Arthur K. Bolton:

The provision of the Georgia Constitution itself which the oath proscribes in the constitution requires to a person to be bound to support the constitution of the State of Georgia and of the United States.

Earl Warren:

Well, I will — I asked you the same question then about the Georgia Constitution, is there anything in it that which authorizes anyone to pass upon the sincerity of a person who takes the oath as prescribed by the constitution?

Arthur K. Bolton:

Not in those words Your Honor.

Earl Warren:

Well then where — what do you refer to in the Georgia Constitution that authorizes — the legislature to pass upon the sincerity of this man in his willingness to take the oath?

Arthur K. Bolton:

So the only thing that I can assume — I hope we understand, the legislature acts independently.

The legislature found authority under the qualification provision of the Georgia Constitution, that they were sole judge of the qualifications of a member to that House.

I suppose he would say that the Georgia Constitution at least is construed by the federal court, the majority of the federal court here versus the Georgia law.

Arthur K. Bolton:

Oh, yes sir.

Have you got any state court decisions on this?

Arthur K. Bolton:

As to qualifications?

Yes.

Arthur K. Bolton:

We have no state court decisions as construed in this provision of the federal constitution.

Potter Stewart:

Well, I should suppose that we — you would go even further than my Brother Harlan suggest and say that the questions of Georgia law are none of the business of this Court and we have to assume that when the state legislature proceeded as it did, it was expressing what the law of Georgia is.

And the only questions for us is, is whether the action of that state legislature violated the United States Constitution.

Arthur K. Bolton:

Yes sir.

Potter Stewart:

Isn’t that —

Arthur K. Bolton:

I think that would be a fair statement.

Abe Fortas:

Don’t you also say that it’s not of the judiciary’s business any way.

I would think you do if it’s a political question.

Arthur K. Bolton:

Well, later on in my argument I —

Abe Fortas:

(Inaudible)

Arthur K. Bolton:

— get — touch on that issue as to the due process.

So it is our position that the federal constitution provides a minimum qualification, the only qualification there.

May I go back one moment because of course I digress — you might — the Court might say is, this is a — why, why does the U.S. Constitution, why is that important?

Well, why is a state legislature, why is that important?

We have 50 states and I’ve said in the state legislature and why is that an important position?

Arthur K. Bolton:

Well, may I just very briefly state that a state legislator doesn’t just make laws that affect the people in his district.

A state legislator makes laws which affect the people of the entire state of which he is a member without the record modes of transportation now.

A state legislator makes laws which affect the people of the entire nation.

But not only that and to have a constitutional form of government, there is a single member of a state legislature could theoretically be or could theoretically cares the deciding vote in — as to whether or not the United States Constitution itself, an amendment thereto was ratified.

So it is an important office.

Now when Mr. Bond — when the Student Nonviolent Coordinating Committee issued this statement on January the 6th, Mr. Bond made his statements on it and then the legislature of the House convened on January the 5th.

Mr. Bond was an elected representative which we maintain with all except the foul qualification that of being bound to support the constitution of the United States.

There is a necessity for free speech under the constitution.

I don’t think I need to repeat that to this Court.

It ensures the process of orderly government.

This Court has imposed limitations on free speech, the known line in cases of obscenity and in the advocacy of law of violation.

It is our position that Mr. Bond in adapting the statement of the Student Nonviolent Coordinating Committee and in his statements thereon advocated violation of the Selective Service Act.

And therefore his speech was not protected but even assuming that his speech was protected, we have to remember Mr. Bond’s position, he was not a citizen.

He was a — in a position of a public servant making comments reflecting upon his qualifications, the qualifications imposed by the Federal Constitution.

The Georgia House, under the Georgia Constitution is the sole judge of his qualification.

And we think that because Mr. Bond of his elective position, he had a great responsibility and obligation than that of an ordinary citizen and that was the qualification which he was to be bound to support the United States Constitution.

And therefore we say, that in this instance and under these circumstances, the Sixth Article, Article VI of the Constitution is of equal rank and dignity with the Bill of Rights of the First Amendment to the Constitution.

And that the legislature in acting as a judge of his qualifications was authorized to treat Article VI of the federal constitution as controlling insofar as determining his qualifications.

Abe Fortas:

Is there been any — to your knowledge, is there been any debate in the Georgia legislature about the war in Vietnam?

Is there any member of the Georgia legislature —

Arthur K. Bolton:

I’m certain there has been but I have no —

Abe Fortas:

Is there any member of the Georgia legislature who has ever expressed himself as opposed to our participation in that war to your knowledge?

Arthur K. Bolton:

I don’t — I do not know Your Honor.

I do not know possibly there has been.

Abe Fortas:

Because I understand your argument to comes peerlessly close perhaps I misunderstood you, it may come peerlessly close to suggesting that if a legislator suggest such views then he is not qualified to take his oath even if he’s subsequently reelected and getting — supporting with question of removal he is —

Arthur K. Bolton:

In —

Abe Fortas:

— subsequently reelected and presents himself to take his oath.

He is opposed to the war in Vietnam or that — that’d be grounds for refusing the — to allow him to take the oath.

Arthur K. Bolton:

In the abstract if I may, I certainly don’t intended it, conveyed of this Court, the impression that no one can have contrary views.

But I have to relate it back to Article VI of the constitution that —

Abe Fortas:

I understand that sir but don’t you have to help us a little bit my –because I understand your position, this case in principle is as if Mr. Bond set out here to take the oath and at the same time he said, “I am not going to observe the oath, I am not going to obey the constitution of the United States”.

That it seems to me is the principle that you’re presenting to us, right?

Arthur K. Bolton:

Yes sir.

Abe Fortas:

Now, don’t you have to tell us just where Mr. Bond made such a statement that you alleged to be contrary to the oath, as to where it is and what precisely you’re relying on?

You read — I know you referred the two passages but — and if those are all that you’re relying on, well, we ought to know that.

Arthur K. Bolton:

Well, I will cover that in — on the next page in just a moment —

Abe Fortas:

Alright.

Arthur K. Bolton:

— in the record that we have Your Honor.

We state that the Georgia House was the judge of Mr. Bond’s qualification.

It was sitting as a sole tribune or judicial body who were authorized to determine his qualifications.

We say however that the Court should protect Mr. Bond’s constitutional rights but should not substitute its judgment for the House in judging qualifications.

Now back to question Justice Fortas, this statement by the Student Nonviolent Coordinating Committee of course which I — I’m not going to read this to the Court because it’s of — about two pages long and my time is getting very close.

Potter Stewart:

That’s on page 137, that —

Arthur K. Bolton:

Yes.

Potter Stewart:

— statement to which you refer.

Right.

Arthur K. Bolton:

Mr. Bond was called before the House of committee and on page of 111 of the record, the statement would be found that Mr. Bond stated that he was eager and anxious to encourage people not to participate in the war in Vietnam for any reason that they choose.

Now, this was evidenced for the House to consider in judging Mr. Bond’s qualification.

He also said — the record page 41, “I do not advocate that people should break the law”.

That was evidenced in his favor but it was also evidence that the House could consider.

He said from the record on page 112, “I don’t think that I as a second class citizen of the United States have a requirement to support the law”.

This also was evidenced that the House could consider.

Byron R. White:

What is that statement mean to you?

He has no obligation to support the war.

Or does it mean that no obligation to agree with it?

Does that mean to you that he was not — that he would break the law in order no to support it?

Arthur K. Bolton:

Sir, I hate to answer you in this manner but I don’t think it’s important — is to what it means to me as what it could have meant to the people who were sitting as his judges at that time —

Abe Fortas:

Well, he has (Voice Overlap) —

Arthur K. Bolton:

— for his qualification.

Abe Fortas:

— to take the next sentence?

Byron R. White:

(Inaudible)

Arthur K. Bolton:

Sir?

Byron R. White:

Do you know what it meant to him?

Arthur K. Bolton:

No sir.

Abe Fortas:

They have to take that next sentence though Mr. Attorney General, don’t you on page 112 after saying, as second class citizen, I don’t think that I have a requirement to support that or he went on to say, “I think my responsibility is to oppose things that I think are wrong if they are in Vietnam or New York”.

Is that correct?

Arthur K. Bolton:

Yes sir, wherever —

Abe Fortas:

And so there is some ambiguity there —

Arthur K. Bolton:

There is —

Abe Fortas:

— as precisely with (Voice Overlap) —

Arthur K. Bolton:

I would concede that, yes Your Honor.

I can’t say to this Court —

Potter Stewart:

You’re not telling us that you think the — or are you, that you think the constitution imposes upon him a requirement to support the so-called war because as long as we’re talking about constitution there is not a war in Vietnam, Congress has not declared war.

Arthur K. Bolton:

Yes sir.

Potter Stewart:

Are you telling us that — with reference to what appears on page 112 that the United States Constitution imposes upon Julian Bond and on every state legislator and on every member of the United States Senate and House Representatives to support this “war” in Vietnam?

Arthur K. Bolton:

No sir, I don’t think that I could say that it’s imposed in all its citizen’s right to support the war in Vietnam.

Potter Stewart:

Or every legislator or — you’re differentiating legislators from citizens.

Arthur K. Bolton:

Yes I am.

Potter Stewart:

And I don’t understand why (Voice Overlap) —

Arthur K. Bolton:

I don’t say that that statement taken in and of itself, may it please the Court, would authorize it but I think that the legislature was a judge of his qualification.

Potter Stewart:

Well, he said here, I don’t think that I as a second class citizen of the United States have a requirement to support that war.

I supposed —

Arthur K. Bolton:

I think he as a —

Potter Stewart:

— as a second class or a first class or any other kind of a citizen, he — there’s no requirement to support that, our present foreign policy in Southeast Asia, is there?

Arthur K. Bolton:

No sir, I agree with the Court.

When the —

Earl Warren:

You agree with the Court but you think that the legislature did not and that therefore they have the right to exclude Mr. Bond?

Arthur K. Bolton:

Sir I think — if I can just summarize.

I think that the legislature was a judge of his qualification, a 184 members in the vote thought he wasn’t qualified, 12 members voted to seat him.

What the standard of review, I think that the lower court was correct in stating a rational basis was the standard of view — of review.

Arthur K. Bolton:

I don’t think we’re concern with whether or not another forum might have judged Bond differently but we are concerned with the fact, was there are any evidence upon which the Georgia House could form a rational basis for finding him disqualified under the United States Constitution.

Earl Warren:

But don’t we also have the problem of determining whether the House have the right to judge him on this issue?

Arthur K. Bolton:

I think —

Earl Warren:

Now that —

Arthur K. Bolton:

That is correct Your Honor.

Earl Warren:

Now — alright, what to — what is their authority for that?

Arthur K. Bolton:

Well Your Honor, we say that the provision of the constitution itself is a qualification, the federal constitution.

And that the House, the Georgia House of Representatives under the Georgia Constitution is a sole judge of the qualification of its members and if therefore the House had a right to judge of his qualification and was the only body that could judge of his qualification as contained in the United States Constitution.

Hugo L. Black:

You’ve said they had this sole right to judge of his qualification?

Arthur K. Bolton:

Yes sir.

Hugo L. Black:

Well —

Arthur K. Bolton:

We say that that is a qualification, may it please the Court.

Hugo L. Black:

Even though it’s the (Voice Overlap) —

Arthur K. Bolton:

I’m not trying to avoid the issue (Voice Overlap) —

Hugo L. Black:

Even though they imposed an unconstitutional condition?

Arthur K. Bolton:

Now, if they do it in an unconstitutional manner —

Hugo L. Black:

Do it in an unconstitutional manner, I suppose they —

Arthur K. Bolton:

If they —

Hugo L. Black:

They say that you are not qualified because of something about you that (Voice Overlap) —

Arthur K. Bolton:

Because they don’t like the way (Inaudible) your hair.

Hugo L. Black:

Yes, what about that?

Arthur K. Bolton:

Well, I don’t think it would be constitutional and I think this Court could so hold (Voice Overlap) —

Hugo L. Black:

(Inaudible) but supposed he said, I’m going to get the whole of this School Desegregation laws (Voice Overlap) —

Arthur K. Bolton:

I think it would — wouldn’t be — have a due process, excuse me.

Hugo L. Black:

I would supposed to all of these School Desegregation Laws, we shouldn’t obey them then and his right to speech on that, would that require —

Arthur K. Bolton:

I think part of it would be possible.

Hugo L. Black:

What?

Arthur K. Bolton:

That if he advocated that other people violate the law then it would be possible to someone to — and not choose and oppose the challenge to his qualifications.

Hugo L. Black:

Then they could put him out on that — they have been able —

Arthur K. Bolton:

After the legislature heard it, yes sir.

Hugo L. Black:

There hasn’t any other done it yet or were there?

Arthur K. Bolton:

No sir.

Earl Warren:

Well, General I —

Arthur K. Bolton:

I still (Inaudible) from the Governor’s brief that it is a fact.

Earl Warren:

I understood you to say that if they decided that he wasn’t entitled to take his seat because he parted his hair wrong that that would be for an unconstitutional reasons, would that give us jurisdiction to determine whether they have properly ejected him or not?

Arthur K. Bolton:

I think that under the decisions of this Court, that this Court in such an instance as that —

Earl Warren:

Could what?

Arthur K. Bolton:

Could take jurisdiction, yes under such instances as that.

Earl Warren:

Where is that dividing line between our jurisdiction and no jurisdiction in judging of the actions of the legislature in this regard?

Arthur K. Bolton:

Well sir as I understand the law would be determined as to whether or not a person’s constitutional rights had been violated.

Earl Warren:

Then we would have jurisdictions?

Arthur K. Bolton:

Yes sir, as I understand the decisions of this Court.

Earl Warren:

And if we thought that the legislature had no right to judge of the sincerity of the man in taking the oath, then we would have a right to say so.

Arthur K. Bolton:

I think Your Honor.

Earl Warren:

And nullify the action of the legislature.

Arthur K. Bolton:

Yes, I think so.

If I may just summarize briefly.

Earl Warren:

Yes.

Arthur K. Bolton:

We say that the qualification imposed in the constitution was judged by the Georgia House.

We don’t think Mr. Bond’s rights under the First Amendment were violated because we think that the speech — parts of the speech which he made could be reasonably interpreted as advocating violation of the Selective Service Act.

But even if he — it’d be determined to the speech of Mr. Bond would have been protected as an ordinary citizen, the qualification imposed by the United States Constitution has equaled dignity with the First Amendment and is not controlling and the House was authorized to determine his qualification.

We think that Mr. Bond was afforded due process.

His constitutional rights were protected as there was some evidence upon which the Georgia House could make its determination of his qualification.

Abe Fortas:

But Mr. Attorney General, as I understand your previous argument, the statement that now that Mr. Bond advocated violation of Selective Service Act, doesn’t seem to be supported by anything in the record.

Do you — with — what is your contention, that it is or is not (Voice Overlap)?

Arthur K. Bolton:

Well, it’s our contention Your Honor that when he said I — urged citizens to — excuse me, I have a reference to it right here to — he was eager and anxious — the record page on 111.

Eager and anxious — was he — eager and anxious to encourage people not to participate in it, the war, for any reason that they choose.

Abe Fortas:

Do you say that that is advocating violation of the Selective Service Act?

Arthur K. Bolton:

Yes sir.

Abe Fortas:

And that’s the provisional on which you’re relying?

Arthur K. Bolton:

Yes, we would on that, yes sir.

Earl Warren:

Mr. Boudin.

Leonard B. Boudin:

Thank you.

Mr. Moore will do the rebuttal Your Honor.

Earl Warren:

Very well.

Howard Moore, Jr.:

If it please the Court.

We’ll be extremely brief.

I’d like to call the Court’s attention to record page 116 in the following language of Mr. Bond.

Earl Warren:

116?

Howard Moore, Jr.:

Yes sir.

With respect to what he meant by his statement in his position.

He says, “I have suggested that congressionally outline alternatives to military draft to extend it to building democracy at home.

The posture of my life for the past five years has been calculated to give me a grip, the ability to participate the formulation of public policies.

The fact of my election to public office does not lessen my duty or desire to express my opinions even when they differ from those held by others”.

I think that statement is very significant, it was before the House of Representatives as to what Mr. Bond meant.

Additionally, with respect to our (Voice Overlap) —

Abe Fortas:

Or then he went on to say that I cannot personally participate in the war, no more.

Howard Moore, Jr.:

Yes sir, he reiterate it, his pacifist beliefs at that point.

Hugo L. Black:

He reiterated what?

Howard Moore, Jr.:

His pacifist beliefs, his own objections to war.

But with respect to others, he had in mind encouraging them to seek congressional alternatives to the draft and the Court is familiar with the fact that there are congressional alternatives to the draft, congressionally provided alternatives to the draft.

Hugo L. Black:

(Inaudible)

Potter Stewart:

There are bills proposed or there any (Voice Overlap) —

Howard Moore, Jr.:

The — and their right, our (Voice Overlap) —

Potter Stewart:

Our Selective Service law, a person doesn’t have a right to say, “Well, I’d rather in the Peace Corps if the Selective Service Act (Voice Overlap) —

Howard Moore, Jr.:

There is alternative service, the Peace Corps is one I think that this statement (Voice Overlap) —

Potter Stewart:

Not under present law, is there?

Howard Moore, Jr.:

Yes sir.

Potter Stewart:

That what it seems to me.

Howard Moore, Jr.:

Under the conscientious objective statute (Voice Overlap) —

Potter Stewart:

Oh yes.

Howard Moore, Jr.:

The other point —

Potter Stewart:

Well, what basis would Mr. Bond can — if he were drafted then saying, “I will not go”?

Howard Moore, Jr.:

His own beliefs would be the only basis.

He may have an out by selecting service into safe — for example the public health service as an alternative to military service or —

Potter Stewart:

Could you think he could refuse to go to war and still not break the law?

Howard Moore, Jr.:

Well he’d had to be convicted and that would be a different thing.

Does that —

Byron R. White:

Well, what I mean —

Tom C. Clark:

(Inaudible)

Byron R. White:

He could be — he could not go off to war and still be obeying the law?

Howard Moore, Jr.:

But he could select one of the alternative services.

Noncombatant military service or service in the forestry service or service in the public health or some other congressionally provided alternative to military draft.

Earl Warren:

Well Mr. Justice Clark just suggested, is a pacifist, he could claim this (Inaudible), wouldn’t he?

Howard Moore, Jr.:

Yes sir.

Earl Warren:

And that would solve that problem, wouldn’t it?

Howard Moore, Jr.:

That would be adequate, yes sir.

The other point (Voice Overlap) —

Hugo L. Black:

Did he indicate (Inaudible)?

Howard Moore, Jr.:

He did indicate that he was a pacifist.

Hugo L. Black:

No, but did he indicate anywhere that he would serve or thought he should say —

Howard Moore, Jr.:

That’s not indicated by the record.

Hugo L. Black:

And he in effect —

Howard Moore, Jr.:

No sir.

That he should serve and the question was not put to him as to whether or not he should serve.

He never — he’s never refused to serve.

He did indicate that he had a draft card and he did produced it — offered to produce the draft card at the legislative hearing.

Abe Fortas:

Well, he pretty much indicated that he would not participate in the war.

He said, “I cannot participate in war”.

Howard Moore, Jr.:

There’s no question about that.

Howard Moore, Jr.:

The other thing that I would like to —

William J. Brennan, Jr.:

Well, then wouldn’t he — in order not to — he wouldn’t participate in the war, he would have to have some other recognized excuses for not going.

On the conscientious objection that’s beyond a religious basis, doesn’t it?

Howard Moore, Jr.:

Not necessarily, not under the decision of this Court in the Siegel (ph) case but — perhaps it have —

William J. Brennan, Jr.:

Perhaps it has anything to do with religion?

Howard Moore, Jr.:

It would have to have some religious training and belief but not necessarily a belief in the Supreme Being.

If you could prove —

William J. Brennan, Jr.:

Still has to be on a religious basis?

Howard Moore, Jr.:

Some religious influence on the decision.

It appears from the decisions of a court.

Some religious influence that —

William J. Brennan, Jr.:

More than —

Howard Moore, Jr.:

— well, as to religious belief.

William J. Brennan, Jr.:

More than conscience?

Tom C. Clark:

But that does — didn’t the draft clause permit a registrant to say, “Well, I will serve in the public health service or the forestry service”, or these others?

Howard Moore, Jr.:

That’s my understanding of the law sir.

Earl Warren:

But as I understand his statement, it seems to me like the firm authorize a statement, he is against that law, he didn’t want to have anything to do with it.

That he doesn’t intend to have anything to do with the church.

It seems to me like that’s a potential he has that he — it’s a view he has.

Are you depending now on the ground that this statement can be construed in some fashion as meaning that he doesn’t want that law violated?

Howard Moore, Jr.:

I don’t quite understand the question but I’m not defending on that ground.

I’m defending on the ground that he has a right under the First Amendment to express those views and not could be excluded from the legislature.

Hugo L. Black:

I rather thought his statement sounded like he is proud of his views.

Howard Moore, Jr.:

Yes sir.

Hugo L. Black:

(Inaudible)

Howard Moore, Jr.:

If I may move on to the note which we’d like to conclude, is that the State, the respondents construe Article VI provision with respect to the oath to be synonymous with support of the Government or support of a particular administration.

The Article itself provide support of the constitution and that’s a very meaningful and such as to the distinction that one can’t support the constitution in good faith unconscientiously and not support the particular policies of a given administration.

And that dramatizes what I think has been an unconstitutional application of that provision in this particular case.

Thank you.