Konigsberg v. State Bar of California, 336 U.S. 36 (1961)

Argued December 14, 1960, decided April 24, 1961, by a vote of five to four, Justice Harlan delivered the opinion for the Court, with Justice Black, Chief Justice Warren, Douglas, and Brennan dissenting. The Court held that Konigsberg’s application for admission to the State Bar, denied because of his refusal to answer questions surrounding his connection to the Communist Party, did not violate the Fourteenth Amendment. The decision signifies the remnants of McCarthyism and the Court’s refusal to connect free speech and association to the Fourteenth Amendment.

Under California law, the California Committee of Bar Examiners certifies those able to practice law in the State of California. The State Supreme Court may review any applicant’s qualifications. In hearings by the Committee, Konigsberg refused to answer any questions pertaining to his membership in the Communist Party, not on the ground of self-incrimination, but on the ground that such questions were beyond the purview of the Committee’s authority and infringed rights of free thought, association, and expression assured him under the State and Federal Constitutions. Konigsberg was denied admission to practice.

Justice Harlan argued that the Fourteenth Amendment’s protection against arbitrary state action does not forbid a State from denying admission to a bar applicant so long as he refuses to provide unprivileged answers to questions having a substantial relevance to his qualifications. Harlan went on to explain that it was the responsibility of the State of California to determine whether an applicant for license to practice law might be interested in the violent overthrow of the government.

Justice Black, Chief Justice Warren, Douglas, and Brennan dissented. Black’s dissent argued that the majority decision was now asking Konigsberg to defend himself against unsubstantiated accusations. Konigsberg’s attempt to connect his First Amendment free speech issues with the protections of the Fourteenth Amendment was persuasive to Black. Black wrote, ‘‘Nothing in this record shows that Konigsberg has ever been guilty of any conduct that threatens our safety. Quite the contrary, the record indicates that we are fortunate to have men like him in this country for it shows that Konigsberg is a man of firm convictions who has stood up and supported this country’s freedom in peace and in war. The writings that the record shows he has published constitute vehement protests against the idea of overthrowing this Government by force. No witness could be found throughout the long years of this inquisition who could say, or even who would say, that Konigsberg has ever raised his voice or his hand against his country. He is, therefore, but another victim of the prevailing fashion of destroying men for the views it is suspected they might entertain.’’

AARON R. S. LORENZ