Peters v. Hobby , 75 S. Ct. 790 ( 1955 )

Mr. Justice Douglas,

concurring.

With all deference, I do not think we can avoid the constitutional issue in this case.

The most that can be said is that the terms of the Executive Order are ambiguous. The construction urged by the Attorney General is buttressed by a history of administrative practice, with case after case being reviewed by the Board in the precise manner of this one. The question of construction of the Executive Order was so well settled that neither the Government nor Dr. Peters suggested the absence of authority in the Review Board to take jurisdiction of this case on its own motion. I agree that it had such authority. It, therefore, becomes necessary for me to reach the constitutional issue.

Dr. Peters was condemned by faceless informers, some of whom were not known even to the Board that condemned him. Some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr. Peters. So far as we or the Board know, they may be psychopaths or venal people, like Titus Oates, who revel in being informers. They may bear old grudges. Under cross-examination their stories might disappear like bubbles. Their whispered confidences might turn out to be yarns conceived by twisted minds or by people who, though sincere, have poor faculties of observation and memory.

Confrontation and cross-examination under oath are essential, if the American ideal of due process is to remain a vital force in our public life. We deal here with the reputation of men and their right to work — things more precious than property itself. We have here a system where government with all its power and authority condemns a man to a suspect class and the outer darkness, without the rudiments of a fair trial. The practice of using faceless informers has apparently spread through a vast domain. It is used not only to get rid of employees in the Government, but also employees who work for private firms having contracts with the Government.¹ It has touched countless hundreds of men and women and ruined many. It is an un-American practice which we should condemn. It deprives men of “liberty” within the meaning of the Fifth Amendment, for one of man’s most precious liberties is his right to work. When a man is deprived of that “liberty” without a fair trial, he is denied due process. If he were condemned by Congress and made ineligible for government employment, he would suffer a bill of attainder, outlawed by the Constitution. See United States v. Lovett, 328 U. S. 303. An administrative agency — the creature of Congress — certainly cannot exercise powers that Congress itself is barred from asserting. See the opinion of Mr. Justice Black in Anti-Fascist Committee v. McGrath, 341 U. S. 123, 144-146.²

Those who see the force of this position counter by saying that the Government’s sources of information must be protected, if the campaign against subversives is to be successful. The answer is plain. If the sources of information need protection, they should be kept secret. But once they are used to destroy a man’s reputation and deprive him of his “liberty,” they must be put to the test of due process of law. The use of faceless informers is wholly at war with that concept. When we relax our standards- to accommodate the faceless informer, we violate our basic constitutional guarantees and ape the tactics of those whom we despise.

1 Berle, The 20th Century Capitalist Revolution (1954), pp. 92-93, traces the impact of the loyalty program on employees of corporations having contracts with the Government:

“To begin, let us deal with a situation in which a powerful corporation is under a contract duty to the United States government, or some agency of it, to fire or decline to hire individuals designated to them as possible security risks. In practice they mean that a man who may have been employed for years, being suspect for some reason, is designated to the appropriate authorities [of the corporation]. Things then happen to him rapidly. All he knows is that he is called into the office one day and told that he is discharged — or at best transferred to some far less desirable job. If the ban is complete, and he lives in any of the cities in which the corporation is a preponderant employer, the consequences are extreme. The main avenue of employment is closed to him. He must move into some other city and find some other job if he can. Since the same ban will probably follow him into any other plant engaged in defense orders, the going is rough. If he is a young man, he winds up in some recognizably marginal job, such as dishwashing or unskilled labor. If he is a man in middle life, he may end on the industrial scrap heap. Probably he never discovers exactly what hit him. The personnel people of the corporations do not confide to him their reasons for action.”

2 See Berle, op. cit. supra, p. 98.