Mr. Justice CLARK, with whom Mr. Justice BURTON joins, dissenting.
The Court today has denied the State of New Hampshire the right to investigate the extent of 'subversive activities' within its boundaries in the manner chosen by its legislature. Unfortunately there is no opinion for the Court, for those who reverse are divided and they do so on entirely different grounds. Four of my Brothers join in what I shall call the principal opinion. They hold that the appointment of the Attorney General to act as a committee for the legislature results in a separation of its power to investigate from its 'responsibility to direct the use of that power' and thereby 'causes a deprivation of the constitutional rights of individuals and a denial of due process * * *.' This theory was not raised by the parties and is, indeed, a novel one.
My Brothers FRANKFURTER and HARLAN do not agree with this opinion because they conclude, as do I, that the internal affairs of the New Hampshire State Government are of no concern to us. See Dreyer v. People of State of Illinois, 1902, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79. They do join in the reversal, however, on the ground that Sweezy's rights under theFirst Amendment have been violated. I agree with neither opinion.
The principal opinion finds that 'The Attorney General has been given such a sweeping and uncertain mandate that it is his decision which picks out the subjects that will be pursued, what witnesses will be summoned and what questions will be asked.' The New Hampshire Act clearly indicates that it was the legislature that determined the general subject matter of the investigation, subversive activities; the legislature's committee, the Attorney General, properly decided what witnesses should be called and what questions should be asked. My Brothrs surely would not have the legislature as a whole make these decisions. But they conclude, nevertheless, that it cannot be said that the legislature 'asked the Attorney General to gather the kind of facts comprised in the subjects upon which petitioner was interrogated.' It follows, says this opinion, that there is no 'assurance that the questions petitioner refused to answer fall into a category of matters upon which the legislature wanted to be informed * * *.' But New Hampshire's Supreme Court has construed the state statute. It has declared the purpose to be to investigate 'subversive' activities within the State; it has approved the use of the 'one-man' technique; it has said the questions were all relevant to the legislative purpose. In effect the state court says the Attorney General was 'directed' to inquire as he did. Furthermore, the legislature renewed the Act in the same language twice in the year following Sweezy's interrogation. N.H.Laws 1955, c. 197. In ratifying the Attorney General's action it used these words: 'The investigation * * * provided for by chapter 307 of the Laws of 1953, as continued by a resolution approved January 13, 1955, is hereby continued in full force and effect, in form, manner and authority as therein provided * * *.' (Emphasis added.) We are bound by the state court findings. We have no right to strike down the state action unless we find not only that there has been a deprivation of Sweezy's constitutional rights, but that the interest in protecting those rights is greater than the State's interest in uncovering subversive activities within its confines. The majority has made no such findings.
The short of it is that the Court blocks New Hampshire's effort to enforce its law. I had thought that in Common-wealth of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, we had left open for legitimate state control any subversive activity leveled against the interest of the State. I for one intended to suspend state action only in the field of subversion against the Nation and thus avoid a race to the court-house door between federal and state prosecutors. Cases concerning subversive activities against the National Government have such interstate ramifications that individual state action might effectively destroy a prosecution on the national level. I thought we had left open a wide field for state action, but implicit in the opinions today is a contrary conclusion. They destroy the fact-finding power of the State in this field and I dissent from this wide sweep of their coverage.
