Subversive Activity

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SUBVERSIVE ACTIVITY

Activity is "subversive" if it is directed toward the overthrow of the existing form of government by force or other unlawful means. Subversive activity comprises sedition, insurrection, and sabotage, as well as other unlawful acts committed with the requisite intent. Although individuals may engage in subversive activity, concerted or organized subversion is more common and excites more public concern. Active, purposive membership in subversive organizations—such as the Communist party, the American Nazi party, or the Ku Klux Klan—is a federal crime, and between 1950 and 1974 the attorney general ' slist was maintained as an official catalog of such groups.

In twentieth-century America, the suppression of subversion has been controversial where the "activity" has seemed to consist primarily of subversive advocacy. But the controversy should not obscure the fact that there is such a thing as subversive activity and that the survival of constitutional government requires that such activity be controlled.

The critical distinction is not between words and deeds, speech and action. Even the staunchest defenders of civil liberties agree that incitement to unlawful conduct may be punished by law, at least when the speaker has the intention and capability of inducing his hearers to engage in insurrection, riot, or disobedience of law. Some forms of subversive activity—for example, the attack on the House of Representatives by Puerto Rican nationalists in 1954—are extreme forms of symbolic speech, known in revolutionary jargon as "propaganda of the deed." The political goal toward which it is aimed is precisely what distinguishes subversive activity.

Because the government of the United States is one of limited and enumerated powers, its authority to define and punish subversive activities as crimes is not entirely clear. Treason is defined in Article III, section 2, of the Constitution, and as the same section limits the range of punishment for treason, it implies the power of Congress to prescribe punishment within the permitted range. The Constitution does not define any lesser degree of subversive activity, nor does it expressly grant to Congress the power to define and punish such crimes. Instead, the power must be an implied power incidental to the power to punish treason or else necessary and proper for the carrying out of one or more of the enumerated powers.

In the absence of statutes against insurrection or rebellion, the perpetrators of fries ' rebellion and the whiskey rebellion were tried for treason. The prosecutors argued that an armed rising to prevent the execution of federal law—the normal definition of insurrection—was at least a constructive treason as the common law had understood the term. Similarly, when aaron burr assembled an armed force in the Western territories, for purposes that are still not entirely clear, the only federal offense for which he could be tried was treason. But a charge of treason seems manifestly to have been inappropriate in each of these cases.

On the other hand, the alien and sedition acts, enacted when the country was on the brink of war with France, generously defined offenses against the United States. Although section 2, defining seditious libel, is more famous, section 1 of the Sedition Act proscribed certain subversive activities: combination or conspiracy to impede the operation of law or to intimidate government officials, procuring or counseling riot or insurrection—whether or not the activity was successful. The espionage act of 1917, enacted while the country was fighting World War I, treated as criminal any attempt to procure draft evasion or to interfere with military recruitment while the Sedition Act of 1918 proscribed all advocacy of revolution, however remote the prospect of success.

In the latter half of the twentieth century, the phenomenon of political terrorism raised new problems. Frequently directed from outside the United States, terrorist activity, like the extreme forms of subversive activity, employs politically motivated violence. Although the aim of terrorism may not be the overthrow of the American government, terrorism shares with the more extreme forms of subversive activity the substitution of violence for public deliberation and constitutional government.

Dennis J. Mahoney
(1986)