United Public Workers V. Mitchell - Assessment

Assessment

United Public Workers v. Mitchell was the last time the Supreme Court expansively applied the doctrine of privilege. The Supreme Court largely rejected the doctrine in Wieman v. Updegraff, 344 U.S. 183 (1952), and a number of high court decisions in areas such as nonpartisan speech, due process, search and seizure, the right to marry, the right to bear children, equal protection, education, and receipt of public benefits over the next two decades continued to undermine the concept. Although the Supreme Court later reaffirmed United Public Workers v. Mitchell in 1973 in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973), it did so narrowly on the grounds that permitting public employees to engage in political activity was dangerous.

United Public Workers v. Mitchell is one of only seven Supreme Court decisions which addressed the Ninth or Tenth amendments prior to 1965. It is the only one to do so in a substantive way.

Legal commentators have taken issues with the decision's characterization of the Ninth and Tenth amendments. One scholar has characterized the two amendments as a way to "reserve sovereign power rather than recogniz any particular individual right", and as a means of emphasizing that the federal government's powers were enumerated, specific, and limited. This perspective leads to a criticism of United Public Workers v. Mitchell for seeing the amendments as subordinate to the enumerated powers in the Constitution. Another legal scholar has criticized Justice Reed's conception of the Ninth and Tenth amendments as "dubious" because: 1) It equates the meaning of the Ninth with the Tenth (which is clearly incorrect); 2) It leaves the two amendments completely subordinate to all enumerated powers and therefore meaningless; 3) It creates a situation where the Ninth Amendment interprets the Tenth Amendment, strengthening the Tenth Amendment and eviscerating Justice Reed's conclusion that the two amendments are subordinate.

It may also be that the decision is in direct conflict with the intent of the Founding Fathers. In 1841, Secretary of State Daniel Webster, in a directive to heads of the federal agencies condemning the use of civil servants to political advantage, warned:

It is not intended that any officer shall be restrained in the free and proper expression and maintenance of his opinions respecting public men or public measures, or in the exercise to the fullest degree of the constitutional right of suffrage. But persons employed under the Government and paid for their services out of the public Treasury are not expected to take an active or officious part in attempts to influence the minds or votes of others, such conduct being deemed inconsistent with the spirit of the Constitution and the duties of public agents acting under it; and the President is resolved, so far as depends upon him, that while the exercise of the elective franchise by the people shall be free from undue influences of official station and authority, opinion shall also be free among the officers and agents of the Government.

One legal scholar has concluded that congressional debate in 1791 supports Webster's opinion, not the decision by Justice Reed in United Public Workers.