The "Communist Question" Cases Reconsidered

This paper focuses on the American Bar Association's (ABA) and state bar associations’ responses to communism in the 1950’s and beyond. In particular, it re-examines the actions the bar took against communist ideology in the era of “McCarthyism.” The dominant historical narrative is that the ABA and state bar associations were merely swept up in the national hysteria of McCarthyism, and this explains the actions the bar took against communists in this period. However, the “communist question” could still pose problems for prospective bar applicants well after the hysteria of McCarthyism had passed. This paper provides a unique perspective by showing that cases both before and after the McCarthy era utilized the same types of arguments employed against communists. Viewed as a whole, the “communist question” cases are part of a larger phenomenon that has manifested itself in a variety of political contexts: the bar’s belief that it owes special duties to the larger legal system and thus must police its membership for certain political beliefs incompatible with the constitutional order. This belief is the primary reason we see the bar continue to inquire about “subversive” political beliefs long after interest in asking such questions had faded elsewhere. Moreover, this paper demonstrates—for the first time—how other activities of the bar in the 1950's provide insight into both the motivations of the bar in later admission cases, and the intellectual foundation of the argument that communists and other “subversive” political ideologies should be excluded. Finally, this paper argues that the “communist question” cases have continuing, and underappreciated, relevance to the more recent debate over whether white supremacists should be excluded from the bar.