BRANDEIS, J., dissenting.

254 U.S.

free to advise his fellows not to enter the Army or the Navy as he was free to recommend their enlistment. The Government had exacted from American citizens no service except the prompt payment of taxes. Although war had been declared such was still the policy and the law of the United States when Minnesota enacted the statute here in question.

The Minnesota statute was, when enacted, inconsistent with the law of the United States, because at that time Congress still permitted free discussion of these governmental functions. Later, and before Gilbert spoke the words complained of, the Federal Espionage Law was enacted, but the Minnesota statute was also inconsistent with it. The federal act did not prohibit the teaching of any doctrine; it prohibited only certain tangible obstructions to the conduct of the existing war with the German Empire committed with criminal intent. It was so understood and administered by the Department of Justice.1 Under the Minnesota law, teaching or advice that men

wants to know about the Army. If the real facts are not strong enough to win him, you don't want him anyway." Recruiters Handbook, United States Army, p. 16.

1 "The general policy of the Attorney General (Mr. Gregory) toward free speech has been well understood and adhered to by his subordinates with a good deal of consistency. From the outset, recognizing that free expression of public opinion is the life of the nation, we have endeavored to impress on our subordinates the necessity of keeping within the limits of policy established by Congress and bearing in mind at all times the constitutional guarantees. Repeatedly their attention has been called to the fact that expression of private or public opinion relating to matters of governmental policy or of political character must not be confused with wilful attempts to interfere with our conduct of the war. At all times we have had before us the dangers which follow attempts to restrain public discussion and so far as instructions issued by the Attorney General have been concerned, they have consistently and at all times emphasized this general policy." John Lord O'Brian, "Civil Liberty in War Time," Report of New York State Bar Association, vol. 42, p. 308.


BRANDEIS, J., dissenting.

should not enlist is made punishable although the jury should find (1) that the teaching or advocacy proved wholly futile and no obstruction resulted; (2) that there was no intent to obstruct; and the court, taking judicial notice of facts, should rule (3) that, when the words were written or spoken, the United States was at peace with all the world. That this conflict was not merely a technical one but a cause of real embarrassment and danger to the Federal Government, we learn from one of the officials entrusted with the administration of the Espionage Act:

"In the State of Minnesota because of what was claimed to be either inadequate federal law or inadequate federal administration, state laws of a sweeping character were passed and enforced with severity. Whether justified or not in adopting this policy of repression, the result of its adoption increased discontent and the most serious cases of alleged interference with civil liberty were reported to the federal government from that state." 1

In Johnson v. Maryland, ante, 51, this court held that the power of Congress to establish post roads precluded the State from requiring of a post-office employee using the state highway in the transportation of mail the customary evidence of competency to drive a motor truck, although the danger to public safety was obvious and it did not appear that the Federal Government had undertaken to deal with the matter by statute or regulation. The prohibition of state action rests, as the court pointed out there, "not upon any consideration of degree but upon the entire absence of power on the part of the States to touch the instrumentalities of the United States." As exclusive power over enlistments in the Army and the Navy of the United States and the responsibility for the conduct of war is vested by the Federal Constitution in Congress,

1 Report of New York Bar Association, vol. 42, p. 296.

BRANDEIS, J., dissenting.

254 U. S.

legislation by a State on this subject is necessarily void unless authorized by Congress. It is so when Congress makes no regulation, because by omitting to make regulations Congress signifies its intention that, in this respect, the action of the citizen shall be untrammelled. This would be true, even if the subject in question were one over which Congress and the States have concurrent power. For where Congress has occupied a field theretofore open also to state legislation, it necessarily excludes all such. Southern Ry. Co. v. Reid, 222 U. S. 424; Chicago, Rock Island & Pacific Ry. Co. v. Hardwick Farmers Elevator Co., 226 U. S. 426. Here Congress not only had exclusive power to act on the subject; it had exercised that power directly by the Espionage Law before Gilbert spoke the words for which he was sentenced. The provisions of the Minnesota statute and its title preclude a contention that its purpose was to prevent breaches of the peace. Compare Ex parte Meckel, 220 S. W. Rep. (Tex.) 81. But neither the fact that it was a police regulation, New York Central R. R. Co. v. Winfield, 244 U. S. 147, nor the fact that it was legislation in aid of congressional action would, if true, save the statute. For "when the United States has exercised its exclusive powers so far as to take possession of the field, the States can no more supplement its requirements than they can annul them." Pennsylvania R. R. Co. v. Public Service Commission, 250 U. S. 566, 569; Northern Pacific Ry. Co. v. Washington, 222 U. S. 370. The exclusiveness of the power of the Federal Government with which this state legislation interferes springs from the very roots of political sovereignty. The States may not punish treason against the United States, People v. Lynch, 11 Johns. (N. Y.) 549; Ex parte Quarrier, 2 W. Va. 569; although indirectly acts of treason may affect them vitally. No more may they arrogate to themselves authority to punish the teaching of pacifism which the legislature of Minnesota appears

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to have put into that category. Compare Schaefer v. United States, 251 U. S. 466, 494, note.

As the Minnesota statute is in my opinion invalid because it interferes with federal functions and with the right of a citizen of the United States to discuss them, I see no occasion to consider whether it violates also the Fourteenth Amendment. But I have difficulty in believing that the liberty guaranteed by the Constitution, which has been held to protect against state denial the right of an employer to discriminate against a workman because he is a member of a trade union, Coppage v. Kansas, 236 U. S. 1, the right of a business man to conduct a private employment agency, Adams v. Tanner, 244 U. S. 590, or to contract outside the State for insurance of his property, Allgeyer v. Louisiana, 165 U. S. 578, 589, although the legislature deems it inimical to the public welfare, does not include liberty to teach, either in the privacy of the home or publicly, the doctrine of pacifism; so long, at least, as Congress has not declared that the public safety demands its suppression. I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.




No. 95. Argued November 17, 1920.-Decided December 13, 1920.

Whether a homestead right can be initiated by filing an application while the land is reserved to give opportunity for lieu selections by a State, under the Act of 1894, 28 Stat. 394, is a question involving a

Opinion of the Court.

254 U.S.

construction of that statute which the Secretary of the Interior must decide in determining between such applicant and one who was in possession and made application when the period for state selection expired; and mandamus will not lie to control the Secretary's decision. P. 347.

48 App. D. C. 279, affirmed.

THE case is stated in the opinion.

Mr. Patrick H. Loughran for plaintiff in error.

Mr. Assistant Attorney General Nebeker, with whom Mr. H. L. Underwood, Special Assistant to the Attorney General, was on the brief, for defendant in error.

MR. JUSTICE MCKENNA delivered the opinion of the


This case involves the consideration of a mandamus brought by plaintiff in error, hereinafter called relator, against the Secretary of the Interior.

The proceedings were instituted in the Supreme Court of the District of Columbia by petition and its essential allegations stated narratively are as follows:

The lands in question are within a township which was reserved under an act passed August 18, 1894, c. 301, 28 Stat. 394, from adverse appropriation by settlement or otherwise except under rights found to exist of prior inception, for a period to extend from the application for survey until the expiration of sixty days from the date of the filing of the township plat of the survey in the proper district land office.

The plat of the survey was filed in the proper district land office May 17, 1915. During the sixty-day period, nor since, the described land has not been selected by the State. On June 5, 1915, the relator settled on the land and on July 17, 1915, was still actually residing thereon

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