Legislative Control of Political Extremism in European Democracies I

Legislative Control of Political Extremism in European Democracies I
Author(s): Karl Loewenstein

Source: Columbia Law Review, Vol. 38, No. 4 (Apr., 1938), pp. 591-622
Published by: Columbia Law Review Association, Inc.
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LEGISLATIVE CONTROL OF POLITICAL
EXTREMISM IN EUROPEAN DEMOCRACIES I
INTRODUCTORY OBSERVATIONS
The term "subversive activities" in this article will refer to all

overt or covert acts of persons who advocate or practice doctrines which
aim to overthrow the existing political order under the implied or ad-
mitted presupposition that to achieve their end, violence may have to be
utilized. Mere non-conformity with the fundamental principles of
government and political philosophy embodied in the constitution will
not be considered as making a political movement subversive if con-
version of the majority of the people to its tenets is to be attained
solely by submitting, the desired political change to the ballot through
the medium of lawful propaganda within the existing laws.'
Legislative measures designed to protect the existing form of con-
stitutional government and to repress activities considered as subversive
are by no means unknown in this country. During the Revolution sev-
eral states enacted Anti-Loyalist laws.2 And more than a hundred
years after the notorious Alien and Sedition Acts of 1798, Congress
passed the scarcely less drastic Espionage Act of 1918 which was in-
tended to control public opinion opposed to the war.3 The prospective
immigrant is under an obligation to pledge himself, on affidavit, that he
is not only willing to abide by the laws and the constitution of the
United States, but that he is not an advocate of the violent overthrow
of the American government.4 The much discussed Teachers Oath
laws, passed by several states in recent years, make a similar require-
ment, its purpose being to protect the educational institutions from what
is deemed subversive influences.5 During the years after the war, when
' Compare the definition "crime to advocate or promote overthrow of the gov-
ernment of the United States by force or violence" in the so called Kramer bill
H. R. 4313, 74 Cong. 1st Sess. (1935) and similarly in H. R. 6427, 74 Cong. 1st
Sess. (1935).
2 See Thompson, Anti-loyalist Legislation Durintg the AmTlerican Revolutions
(1908) 3 ILL. L. REV. 81, 147.
'The Espionage Act, 40 STAT. 217 (1917), 50 U. S. C. ? 31 (1934), as amended,
40 STAT. 553 (1918) c. 75, ? 1, sustained in Schenck v. United States, 249 U. S. 47
(1919); Frohwerk v. United States, 249 U. S. 204 (1919) ; Debs v. United States,
249 U. S. 211 (1919); see also Z. CHAFEE, FREEDOM OF THE PRESS (1920) 91.
War time sedition acts were passed also by several states [see id. at 113 ff.; Gil-
bert v. Minnesota, 254 U. S. 325 (1920)].
'U. S. Code, title 8, ? 137 c; also ? 137 g.
5 See Gardner and Post, The Contstitutional Questions Raised by the Flag
Salute antd Teachers Oath Acts in Massachusetts (1936) 16 B. U. L. REV., 803-844.
See also Pierce v. Society of Sisters of Holy Names, 263 U. S. 510 (1925).
592 COLUMBIA LAW REVIEW
the Ku-Klux-Klan movement became a widespread nuisance, the states

primarily affected by the lawlessness of the hooded knights resorted to
"de-masking" laws6 which, in due course, helped to check illegal
practices. Before, during and after the War, not a few states enacted
specific legislation intended to combat criminal syndicalism, anarchism
and sabotage in order to defend the commonly accepted forms of po-
litical government and private property against radicalism.7 In sev-
eral states statutes were enacted to exclude the Communist party from
the municipal ballot,8 while similar laws are under advisement in other
states.
In most of these instances the primary object of the particular leg-
islation is that of safeguarding the existing system of republican gov-
ernment as established by the Constitution.9 The maintenance of the
democratic structure of government is nowhere specifically protected
although the overthrow of democracy is by no means incompatible
with the nominal preservation of the republican form.
Legislative measures of this kind aim, in the first place, at the dis-
semination of unlawful propaganda and at illegal acts represented in
communist, anarchist, syndicalist or other radical socialist doctrines.
Comparatively little attention, however, has been paid until recently to
similarly subversive or destructive tendencies entertained by radical
movements of the "right" which are directed against the existing form
of popular government. Such activities may be qualified here, as a mat-
ter of convenience of terminology, as "fascist" although they may differ,
for the time being, in character from fascism or National Socialism as
6 Examples of Acts against disguised rioters and law breakers: Tex. Laws
1925, c. 63; Ariz. Laws 1923, c. 78; Calif. Laws 1923, c. 153; Ill. Laws 1923, p.
318; Iowa Laws 1923, c. 211; La. Laws 1924, c. 3, 4; Minn. Laws 1923, c. 160;
N. M. Laws 1923, c. 4; N. D. Laws 1923, c. 240; Okla. Laws 1923, c. 2; Ala. Laws
1927, c. 520; S. C. Laws 1928, no. 656; Mich. Laws 1923, no. 276.
'See e.g., N. Y. Penal Law, ?? 160, 161; Gitlow v. New York, 268 U. S. 652
(1925) ; Calif. Penal Code (1933) ? 403a; Stromberg v. California, 283 U. S. 359
(1931). See also D. F. Callahan, Criminal Syndicalism and Sabotage, (1922) 14
MONTHLY LABOR REVIEW, 803-812; 14 CONGRESSIONAL DIGEST (October, 1935) 235;
People v. Immonen, 271 Mich. 384 (1935) ; (1935) 6 Detroit L. REV. 43-47 (Red
flag laws). As illustrations of state acts directed against criminal sabotage see
e.g.: Conn. Acts 1923, No. 173; Md. Ann Code (1935) Art. 27, ? 116, 117 (Act of
1917 amended in 1929) ; R. I. Acts and Resolves 1927, ch. 1043; New York,
Cahill's Consolidated laws, ch. 41, ? 1435 (act of 1918).
'E.g. in Arkansas, Delaware, Indiana, Tennessee. See on this subject in gen-
eral R. G. SWING, FORERUNNERS OF AMERICAN FASCISM (1935) 161 and for the
pattern of such bills, id. at 162. See also, as a pertinent illustration, the Califor-
nian draft bill (A. B. 107), quoted by H. Arthur Steiner, Fascism in Amzerica?
(1935) 29 AM. POL. SCIENCE REv. 826, n. 20. See 19 JOURNAL OF COMPARATIVE
LEGISLATION (1937) 189.
9 See U. S. CONST. Art. IV, ? 4. For a definition of the "Republican Form of
Government", see Pacific States Telephone and Telegraph Co. v. Oregon, 223 U. S.
118 (1912); Luther v. Borden, 7 How. 1 (U. S. 1849). See also Finkelstein,
Further Notes on Judicial Self-Limitation (1925) 39 HARV. L. REV. 233-234.
LEGISLATIVE CONTROL IN DEMOCRACIES 593
it is thought of in contemporary Europe. Recently, the cases of the

"Black Legion" in Michigan were dealt with under the Michigan' crim-
inal syndicalism statute which was thus applied against lawlessness
singularly tainted by fascist ingredients and the native brand of patriotic
terrorism redolent of the defunct Ku-Klux-Klan. Investigations by Con-
gress as well as by state legislatures were instituted in order to reveal
what has been branded as "un-American activities," and in 1935 the
State of New Jersey passed a statute designed to prevent the customary
propaganda techniques of incipient National Socialist movements which
consist in inciting to and advocating of "hatred, violence or hostility
against any group of persons residing or being in the State, by reason
of race, color, religion or manner of worship."'10
But while at present no serious threat exists that "authoritarian"
(fascist or National Socialist) doctrines will penetrate into public opin-
ion,11 or is recognized as serious enough to warrant legislative action
in this country, an altogether different situation faces European democ-
racies. The war of doctrines between fascism and communism and be-
tween fascism and democracy is in full swing. Since dictatorial states
have eradicated completely, at least on the surface, divergence from offi-
cial political opinion, the countries which have remained faithful to
democracy serve as battle ground for local fascist or National Socialist
movements which aim at replacing the democratic form of government
with an "authoritarian" regime modelled on the pattern of Italy, Ger-
many, or one of the minor satellites of European fascism. Simultane-
ously, democratic countries are exposed to relentless propaganda from
outside which advocates the overthrow of democratic government openly
or secretly and in violation of international comity. For accomplishing
this purpose the fascist movements developed a particular emotional
technique of exploiting the existing democratic institutions and constitu-
tional rights for the avowed end of undermining and ultimately de-
stroying democracy.
Clearly realizing the dangerous situation resulting from mere ac-
quiescence or from the treacherous belief that, in the long run, the in-
herent superiority of democratic values will assert itself over fascist
"Dickstein Bill, H. R., 5839 74 Cong. 1st Sess. (1935) (intended to prevent
aliens from promoting or disseminating propaganda instigated from foreign
sources); see Hearings before the Special Conmmittee on Un-American activities
in the United States (1934-35). See also the copiously documented article by
H. A. Steiner, op. cit. supraz note 8. N. J. Laws 1935, c. 151 (approved April 8,
1935). See also Joint Resolution no. 7 (1933) (resolution protesting against the
treatment of Jewish nationals by the Nazi government of Germany. Approved
March 29, 1933).
"F. C. Hanighan, Foreign Political Movements in the United States, (1937)
FOREIGN AFFAIRS, 1.
594 COLUIMBIA LAW REVIEW
ideology, the democratic states of Europe were prompted, particularly

since the successful overthrow of democracy in Germany by Hitler, to
protect, by elaborate legislative devices, the democratic form of govern-
ment and its institutions against subversive activities of both communist
and fascist parties. It took considerable time until the extremist tech-
nique was matched by legislation appropriate to balance the emotional
appeal of fascism operating under the cover of the constitutional guar-
antees of the democratic system. The specific difficulties in drafting,
and applying such defensive measures against subversive movements
and parties arose mainly from the fact that, in not a few democracies,
restriction on the guarantee of the constitutional rights of freedom of
political opinion, speech, assembly and association was deemed inconsist-
ent with the very foundation of democracy.
This survey lays no claim to anything approaching exhaustiveness
of a subject which ramifies into constitutional as well as criminal and
administrative law. Since constitutional structure and legal technique
differ in every country, emphasis is placed on the comparative aspect
of the problem of legislative protection against subversive movements,
and constitutional lawyers versed in the law of a particular country will
not fail to discover that many points of importance are omitted.12 On
the whole, however, the material investigated reveals not a few surpris-
ingly common features of legislation in the various countries to the
effect that, while the elaborateness of the measures enacted varies from
one country to another, they present such a degree of uniformity in
defensive legislation that a comprehensive study is justified.13 The survey
'The original source material consists of statutes and enactments in languages

with which even a European constitutional lawyer is usually not familiar. Transla-
tions into English, French or German are comparatively rare and not always re-
liable. Some good material in French was found in the Anniiuaire de l'Instituit In-
terntationial de Droit Puiblic, quoted hereafter as ANNUAIRE (published yearly since
1929, by Les Presses Universitaires, Paris).
'To the knowledge of the author, the subject of legislative control of political
extremism in European democracies has never been treated comprehensively from
the legal viewpoint. The only study, to the author's knowledge, of some of the
problems treated here is a Swedish governinent publication of 1935, issued by the
Swedish Department of Justice, under the title: BETANKANDE MED FORSLAG
ANGAENDE LATGARDER M1OT STATSFIENTLIG VERKSAMKET; it contains much valuable
Scandinavian material which was collected by a parliamentary committee appointed
to investigate anti-state activities in Sweden. This publication is referred to in this
article as REPORT. In addition, two papers containing special contributions by
members of the committee were published as annexes to tlhe protocols of the
Swedish Riksdag (n: 156 [1934], n: 264 [1934]). These documents emphasize
the administration of existing laws and deal with matters de lege ferenda in
Sweden although they also mention occasionally the comparative law on the subject.
On the socio-political aspects of the problem of democratic resistance against
infiltration by the fascist technique of propaganda see K. Loewenstein, Militant
Demvocracy and. Fuindaenfiztal Rights, 31 ANr. POL. SCIENCE REVIEW (1937), p
638.
covers mainly statutory provisions enacted in the following countries:

Sweden, Denmark, Norway and Finland; England and France; Belgium
and the Netherlands; Switzerland and Czechoslovakia. In addition, the
Baltic states of Lithuania, Latvia and Estonia, in spite of their, at
present, semi-authoritarian character, are occasionally mentioned. Al-
though the study deals mainly with legislation actually in force at
present in the different European democracies, it seems appropriate to
advert incidentally also to the legislation of the German republic prior
to the seizure of power by National Socialism. Such reference is par-
ticularly illuminating in a negative way because, in Germany, legislative
defense against rising National Socialism was undertaken halfheartedly,
belatedly and in an incoherent and inconsistent manner.'4 Moreover,
it seems that the lesson of the failure of the German republic was not
entirely lost on the other democracies. Although there is little evidence
that anti-fascist legislation in foreign countries was followed by the
particular liome Offices with more than casual attention, because, until
very recently, each democracy believed in its specific immunity from
radical infection, the striking similarity of defensive measures cannot
but have resulted partly from the experiences as observed in other de-
mocracies. In the main, however, uniformity of the fascist technique
was responsible for identity of legislative defense in the countries un-
der attack.
Another point of importance needs clarification here: European
legislation for combating subversive activities deals without visible dis-
crimination, at least nominally, with parties and movements dangerous
to the existing state both on the left and on the right. Repressive meas-
ures against communism and radical socialism, however, are always
"4 To discuss why the Weimar republic failed to set up an effective legislative
barrier against National Socialism would be clearly beyond the scope of this ar-
ticle. One of the reasons was the lack of realistic awareness of the specific tech-
nique employed by a subversive movement which paid studious lip service to "le-
gality" while preparing for the ultimate seizure of power by force. Furthermore,
German jurists were fatally entangled in the legalistic dogma that a democracy
should treat political opinions, even inimical to the state, without discrimination.
Last, but not least, frequently men in the political, administrative and judicial key-
positions connived at a movement that ought to be encouraged because of its mani-
fest "patriotism." A separate discussion of the downfall of the German Republic
with a legal and sociological orientation is badly needed and would be of consid-
erable value to other democracies under similar predicament.
Such an investigation should utilize inter alia the periodical published by the
Association of Republican judges, DIE JUSTIZ, vols. I-VIII which is a mine of in-
formation of how many of German legislators and magistrates helped the National
Socialists into the saddle by applying deliberately different yardsticks of justice
in dealing with subversive acts committed by the right and by the left. An im-
portant source is also K. LU4DECKE, I KNEW HITLER, (1937), containing a vivid
description, by a National Socialist, of the deliberate technique employed by the
National Socialists in undermining the democratic institutions of the Weimar re-
public.
596 COLUMBIA LAW REV'IEW
more in favor with the bourgeois element adhering to the tenets of

private capitalism which is dominant in the European type of post-war
democracy. Obviously the capitalistic mentality of the majority of the
people in all European democracies, as reflected by parliaments and
courts, reacts more readily against communism and its kindred than
against fascist organizations disguised as patriotic and anti-socialist
movements. This article is primarily concerned with legislative and
administrative measures directed against subversive activities of fascist
or National Socialist complexion, although it should be borne in mind
that all enactments passed could be used and, indeed, are used also
against communism and left wing radicalism. As a rule, the European
legislator carefully refrains from officially discriminating between sub-
versive activities undertaken by the right or by the left. Thus, at least
formally, the democratic principle of equality before the law is main-
tained.
(1) Rebellion, sedition and coup d'etat.

Fascist technique does no longer aim overtly at acts of rebellion or
sedition in the form of an open coup d'etat. Abundant experience is
available that the authorities are able to deal with such revolutionary
attempts to overthrow forcibly the existing government by using effec-
tively the regular forces of the police and, eventually, the army, pro-
vided that they remain loyal. With the potential exception of the cur-
rent rebellion in Spain the numerous recent efforts of leftist or rightist
revolutionaries in democratic states to seize power by coup de force
("Putsch") have failed.'5 On the other hand, successful revolutions in
countries now fascist demonstrate beyond doubt that a revolutionary
coup d' etat succeeds only when the democratic fortress has been un-
dermined internally and at least parts of the regular forces of the police
and army are secretly conniving or sympathising with the rebellion.
When this final phase of internal disintegration, perhaps intensified by
the promise or threat of foreign intervention, has been reached, neither
the criminal code nor extraordinary legislation is adequate to avert the
breakdown of the existing legal order. Revolutionary situations are
inaccessible to normalization by legal methods.
When subversive activities are spreading on so wide a scale that
the normal means for maintaining public order and for the existing
1 Kapp-putsch (1920) and Hitler-putsch (1923) in Germany; Gayda-putsch

(1926) in Czechoslovakia; Mantsilla-uprising in Finland (1931); Larka-putsch in
Estonia (1934); rebellion of Venizelos in Greece (1934); Valdemaras-putsch in
Lithuania (1934) ; "red" rebellions in Bavaria (1919) and in Hungary (1919)
occupation of factories in Italy (1920) ; Nazi revolution and Socialist uprising in
Austria (1934) and many more.
form of government are no longer deemed sufficient, the

to extraordinary means and establish a state of siege. Almost all demo-
cratic states are equipped with this legal expedient.16 Its use is condi-
tional, however, on a showing that the state is in imminent danger of
war or internal rebellion. The effect of the proclamation of the state
of siege or war is a transfer of the executive powers from the civil to
the military authorities, resulting usually in incisive restrictions on the
constitutional rights and liberties.
In this connection the events in Finland after 1929 are of particular
interest. Ordinance powers assigned to the President of the Republic
under the Constitution of 1919 proved to be wholly insufficient for
coping with an acute internal crisis arising from political dissensions
among the people. Only by extra-constitutional pressure of the na-
16 See, e.g.: France: Laws of August 9, 1849 and of April 3, 1878 Art. 1, ? 1.
The condition for the establishment of the state of siege is, besides war, an immi-
nent danger arising from internal rebellion. See also JOSEPH-BARTHELEMY AND
PAUL DUEZ, TRAITA DU DROIT CONSTITUTIONNEL (1933) 759. The Netherlands:
Constitution ("GRONDWET") of November 30, 1887, Art. 189. Den1111ark: Constitu-
tion (GJENNEMSETE GRUNDLOV) of June 5, 1915, Art. 25. Norway: The Constitu-
tion of May 17, 1814. Art. 17 provides, in the place of specific regulations, for
provisional decrees of the King which, however, must remain within the limits set
by the Constitution. Latvia: Constitution of February 15, 1922, Art. 62. Switzer-
land: Federal Constitution of May 29, 1874, Art. 102, alinea 9. In England the
Emergency Powers Act of 1920 (10 & 11 GEO. V, c. 55) makes exceptional pro-
visions for the protection of the community in case of emergencies, that is if "action
is taken or threatened by any persons or body of persons of such nature and of such
extensive scale as to be calculated . . . to deprive the community or any substantial
portion of the community, of the essentials of life." The Act was applied only
once, in 1926, in connection with the general strike. No specific act for the state of
siege exists in Belgium where the King may act on the basis of his military prerog-
ative in order to deal with an emergency situation. These powers were applied for
the first time in 1932 in connection with riots in the Borinage mining distrct.
The most comprehensive and elaborate provisions exist in Czechoslovakia:
Law of April 14, 1920 (nr. 200); see also Fritz Sander, Das tschecloslovakische
Verfassungsrecht in den Jahren 1929-1935 (1936) 23 JAHRBUCH DES OFFENTLICHEN
RECHTS, 292, and Act for the defense of the state of May 13, 1936 (nr. 131). On
this important bill see infra p. 607.
Very elaborate regulations of the state of siege are also contained in the Spanish
constitution of December 9, 1931, Art. 42 and the Act for the maintenance of
public order of July 28, 1933, (Gaceta de Madrid nr. 211, p. 681). See also Hans
Gmelin, Die Enttwicklung des Verfassungsrechts in Spanien von 1913-1932 (1933-34)
21 JAHRBUCH DES OFFENTLICHEN RECHTS 410.
Germanty: Under the Bismarck Constitution of April 18, 1871, Art. 68, the
Kaiser as head of the executive was empowered to declare "the existence of the
state of siege". Since a federal statute as envisaged in Art. 68 was never passed,
in Prussia a previous act concerning the state of siege of June 4, 1851, remained
in force until 1919. Bavaria: Act concerning the state of war of November 5.
1912. (GuVB1. 1912, p. 1161.) The Constitution of Weimar of August 11, 1919
assigned, by Article 48, one of its most notorious provisions, to the President of the
Reich (and under specific conditions of emergency to the governments of the
Lii nder) the power "to take all measures necessary for the restoration of public
safety and order". For details on the operation of Art. 48 which was the pivotal
point of governmental powers prior to the Nazi-regime, see GERHARD ANSCHU0TZ,
DIE VERFASSUNG DES DEUTSCHEN REICHS (4th ed. 1933) 275.
Further details on the state of siege see REPORT at 330.
tionalistic Lapuan-movement, in fact a semi-fascist organization, could

more powers be conferred upon the executive.17 On September 26,
1930, the act on the state of war, one of the so-called "anti-Communist"
acts, was passed. The statute provides for the proclamation of the state
of war (siege) by the President of the Republic in case of war or in-
ternal revolt.'8 Those suspected of incitement to rebellion or sedition, or
possessing war material and arms, are subject to arrest even without
other legal justification."9 If an association is deemed subversive to
such an extent that it endangers the defense of the state or the public
safety, its activities may be restricted or suspended for the period of the
state of war by order of the Council of Ministers (government).20
Furthermore, the constitutional act of November 18, 1930,21 the second
of the anti-Communist laws, empowers the President of the Republic,
in case the state is threatened by an immediate danger (from within or
otherwise) and where order cannot be maintained by the normal meth-
ods of constitutional government, to pass, by decree, all measures deemed
appropriate for meeting the danger and for restoring public order.
While these statutes, supplemented by other legislation directed against
subversive activities and against the misuse of constitutional rights for
unlawful purposes, were first used for outlawing the Communist party,
the energetic President Svinhufvud soon afterwards applied the same
legislative devices to suppress the victorious Lapuan-movement when it
attempted to seize power by armed rebellion in the so-called Mantsilla-
uprising (December 1931-March 1932). Hereafter, the fascist party
has been no less outlawed than the communists. Thus Finland, by im-
17 See R. Erich, Die Verfassungsentwicklung in Finlanid bis Ende 1931,

(1932) 20 JAHRBUCH DES OFFENTLICHEN RECHTS 320; REPORT, p. 259; A. W. Gra-
ham in R. S. BUELL, NEW GOVERNMENTS IN EUROPE (1934) 261. See also K. Loe-
wenstein, op. cit. supra note 14 at 638.
The reform could be accomplished only by constitutional amendment. Since
art. 67 of the organic law on the Chamber of Deputies of January 13, 1928 [see
French translation in 3 F. R. and P. DAREsTE-DELPECH-LAFERRIERE, LES CON-
STITUTIONS MODERNES, (1931) 131] prescribed for constitutional amendments a vote
of two-thirds of the members of the Riksdag the necessary majority was unobtain-
able at the time because of the violent opposition of the strong Socialist party re-
enforced by the Communists. Intimidation on the part of the Lapuans succeeded in
the elimination, at the general elections of 1930, of the Communist deputies. There-
after the new Riksdag passed the constitutional amendments. (See 2 DARESTE,
supra at 129.) The French text of the so-called "anti-Communist" acts is found
in 3 DARESTE, supra at 297, 300.
'Article 1.
1Article 5.
'Article 8.
' French text see 2 DARESTE, op. cit. supra note 17 at 299. The Act was
qualified as "urgent" by five sixths of the total number of the members of the
Riksdag (see law of January 13, 1928, Art. 67, alinea 2). The Act was to expire
on December 31, 1935 and was subsequently not renewed by the Riksdag although
the government desired its continuation.
partial application of the laws against subversive parties of the left and
of the right, was able to keep aloof from both communism and fascism.
The election of the Agrarian leader, Mr. Kallio, to the presidency of the
republic (February, 1937), proved that the country has joined the
family of Scandinavian democracies.
(2) Treason and trcasonablc acts.
All states possess, in the criminal code or otherwise, the indispen-

sable means for protecting their territorial integrity and legally consti-
tuted form of government against high treasonl, treason against the
state, and similar felonies of rebellious or seditious character, in par-
ticular against treason or sedition committed by overt act or by incite-
ment to such acts through word, writing or otherwise.
Treason directed against the constitution or the internal structure
of the particular state is usually distinguished from high treason by
which the external relations of the state to other states are endangered
or gravely affected. Seditious acts may be treasonable and vice versa.
The less precise Anglo-Saxon terminology differentiates between treason
proper and sedition, the latter being an offence against the Crown or the
government not capital and not amounting to treason.22 When wide-
spread rebellion or sedition develops into a danger to the state, a state of
siege may be proclaimed. But the powers of the regular agencies of the
state such as the police, the public prosecutor and the courts are usually
adequate to cope with treasonable or seditious attempts to disturb public
order when such attempts are undertaken by individuals or even by
groups of individuals. Although felonies of this kind may endanger
public peace, as a rule they do not affect the political structure of the
state as a whole. In the present struggle, however, between democracies
and dictatorial states the borderline between treasonable conspiracy of
a political party hostile to the existing form of government, on the one
hand, and high treason in favor of and supported by foreign govern-
ments, on the other hand, is extremely difficult to draw.
Space forbids giving here even a bare outline of such legislation in
democracies.23 In many states the existing provisions of the criminal
22As to statutory regulations see: Unlawful Assemblies Act 1799 (as

amended by 57 GEO. III, C. 19); Seditions Meeting Act 1817 (57 GEo. III c.
19); Criminal Libel Act 1819 (60 GEO. 3 and 1 GEO. IV, c. 8) ; see WHARTON LAW
LEXICON (13th ed. 1925) 778. For treason-felony see Treason-Felony Act 1848
(11 & 12 VIcT.. c. 12).
' Illustrations: Germany before 1933: Criminal Code, ?? 80-86 (high treason,
i.e. Hochverrat) ; ?? 87-92 (treason in favor of foreign states, i.e. Landesverrat) -
? 128 (secret societies, i.e. Geheimbfindelei) ; ? 129 (participation in an association
hostile to the state). See also the abundant material in M. LIEPMANN, KOM-
MIUNISTENPROZESSE (1928). By ordinance of the President of the Reich of Oc-
codes, obviously drafted for normal times, proved to be inadequate in

coping with the increasing tension caused by conflicting political ide-
ologies or by the geographical location of a country bordering upon a
fascist or National Socialist state. Thus, frequently in recent years, the
penal laws were sharpened in order to combat treasonable activities of
dissident or subversive parties or groups, as in France,24 the Nether-
lands,25 Belgium,26 Finland,27 Czechoslovakia28 and Lithuania.29 Sup-
plementary reference as to the specific protection of the democratic in-
stitutions against subversive activities will be found in the following
sections of this article.
(3) Suppression of subversive parties and associations.

When in former periods of political unrest, revolutionary move-
ments took great care to operate in secrecy against the state, particu-
larly when Liberalism under the impulses of the French revolutionary
ideals rose against absolute monarchy, many states passed repressive leg-
islation against underground activities of the so-called "secret societies".
In some countries such legislative residues of a by-gone political tech-
tober 6, 1931 ". . . zur Bekampfung politischer Ausschreitungen" (RGB. I 537,

on p. 566) part VII, ?? 1 ff. the provisions of ? 86 of the criminal code (acts com-
mitted in preparation of high treason) were considerably sharpened. See further
?? 110, 111, 49a of criminal code. Sweden.: Straflag, c. 3; c. 8, ?? 1-14. Denmnark:
Penal Code, ?? 111, 136. Finland: Criminal Code, c. 15, ? 8 and the new ? 4a of
ch. 11 (inserted by law of January 23, 1931, nr. 14); the latter provision pun-
ishes also one who praises, by word or writing or otherwise, treasonable acts com-
mitted by others. Norwzeay: Constitution, Art. 100 (liberty of press is not to be
misused for treasonable acts) ; see further Penal code, ?? 104, 94, 98, 140. Szeitzer-
land: Articles 45, 48, 52bis of Federal Penal Act of February 4, 1853 (A. S. III, p.
404). France: Law on the freedom of the press of July 29, 1881, articles 23 and
24; a special statute was passed in 1894 against anarchist activities: "loi tendant
a reprimer les menees anarchistes" of July 28, 1894 (COLL. COMPLETE DES LOIS
1894, p. 152).
See also REPORT, P. 103, 109.
24Act of January 10, 1936 "tendent a modifier l'article 24 . . . de la loi sur la
liberte de presse du 29 juillet 1881 (Journal Officiel of January 12, 1936, p. 552)
which punishes those who directly incite theft, murder, pillage or arson or one
of the crimes enumerated in articles 309-311 of the Penal Code.
5 See articles 92-96, 45, 79, 131-132 of the Criminal Code as amended by laws
of 1920 and 1934 (law of July 29, 1934 ["Wet houdende nadcre voorzieningen ter
bescherming van de openbare orde"]; STAATSBLAD, p. 504; also in LUTTENBERGS
COLLECTION (1934) Part I, p. 516. On this law see infra p. 617.
' See Code Penal, art. 66. See further: law on the press of 1831; law of
1891 for the suppression of incitement to sedition and the most recent law of July
17, 1934 (Moniteur Belge of July 27, 1934, p. 4,115) "relative aux crimes et
delits contre la sur6t6 exterieure de l'Etat."
27 See the law of January 23, 1931 (nr. 14), quoted snprra in note 23.
a See e.g.. Law on the protection of the Republic of March 19, 1923, (nr. 50),
with various subsequent amendments, and the Act on the Defense of the State of
May 13, 1936, (nr. 131). For details see infra p. 607.
29Law for the security of nation and state of February 8, 1934 (OFF. BULLETIN
nr. 437; see text in ANNUAIRE (1936) p. 313); art. 5 (illegal negotiations with
foreign authorities and foreign parties) ; art. 15 (provoking of insurrection).
nique continue in force.30 In the postwar period, when revolutionary

activities were directed against the liberal-democratic state and, by simi-
lar methods wormed their way into the political life of the nations, some
states found it expedient to renew legislation against secret groups and
associations advocating subversive principles.3'
But in view of the change in technique of modern extremist move-
ments, such legislative provisions are a blunt and ineffective weapon.
Fascism in particular, far from operating in secrecy, aims openly at ob.-
taining the mass basis of a political party for political action. Its emo-
tional appeal is primarily addressed to the masses of the voters and reck-
ons with a mass response, thus adjusting adroitly the tenets of the ac-
tive minority-elite to the democratic conditions of a mass society. Once
the stage of mass appeal has been reached, the element of secrecy is
discarded as utterly useless. To attract public attention, to exert a
quantitative pressure upon the authorities and the public mind are the
fundamental objectives of fascist propaganda. The most effective
method for gaining political power consists in building up an intrinsi-
30Illustrations: Great Britain: Unlawful Oath Act 1797 (37 GEO. III, c. 123)
and 1812 (52 GEO. III, c. 104); Seditious Meetings Act 1817 (57 GEO. III, c. 79).
The Unlawful Societies Acts 1799 (37 GEO. III, defines, in section 25, as unlawful
"any society or club the members of which subscribe to any text or declaration not
required or authorized by law." See also sections 2, 3, 5, 6 of same Act. Prose-
cutions under the Unlawful Societies Act are still possible. See Luby v. War-
wickshire Miners' Association [1912] 2 Ch. 371. See, on the whole subject,
JOSEPH BAKER, THE LAW OF POLITICAL UNIFORMIS, PUBLIC MEETINGS AND PRIVATE
ARMIES (1937) 106.
France, by a law of 1798, went even further and prohibited all political asso-
ciations. This situation became permanent for a century through art. 291 of
the Code Penal, which made associations of more than twenty members depend-
ent on an administrative authorization to be previously obtained. See also law of
April 10, 1834 directed against the practice of breaking up political associations
into smaller units of less than twenty members and thus evading the legal re-
strictions. As late as 1901 the law of July 1, on the freedom of association, re-
stored the full freedom of political association. See 2 A. ESMEIN AND H. NEZARD,
ELEMENTS DU DROIT CONSTITUTIONNEL FRAN AIS ET ETRANGER (1921) 580. A re-
cent illustration of a secret society intended for revolutionary purposes is the case
of the "Cagoulards" ("the hooded ones") discovered in November, 1937.
Gernwny (before 1933): Criminal Code of May 15, 1871, ? 128 (membership
of and participation in secret societies); ? 129 (participation in unlawful associa-
tions hostile to the state). These provisions, which were not repealed by the
Third Reich, trace their ancestry, by intermediary of the Prussian Criminal Code
of April 14, 1851, directly to the Prussian Edict of 1798 (see LIEPMANN, op. cit.
supra note 23 at 51) enacted when the "Jacobins" served as the "red menace
scare" to terror-stricken monarchical Europe, as Communism serves today as a
pretext for frightening the bourgeois classes in liberal democracies.
"Examples: Germany: Law for the protection of the Republic of July 22,
1922 (RGB.I, 525), ? 7, aliena 4 (forbidding membership in a secret or subversive
society, association or group which "aims at undermining the constitutionally es-
tablished republican form of the Reich or the Lander") ; Czechoslovakia; Law on
the protection of the Republic of March 19, 1923 (nr. 50), ? 17 (forbidding the es-
tablishment of or the participation in a secret society aiming at undermining the
constitutional form of the state) Lithuania: Law of February 8, 1934, art. 21;
see also the Finnish law of January 23, 1931 (nr. 14), articles 1 and 2.
602 COLUMBIA LAW REVIEWV
cally revolutionary movement as a regular and normal political party of

the largest possible dimensions. Needless to say, no subversive party
advertises its revolutionary aims; on the contrary, it pays lip service to
the laws and the constitution by pretending that it competes with the
other legitimate political parties for power in the state only by legal
means.
Confronted by this novel and unprecedented technique, the demo-
cratic state was caught by a basic dilemma for which the doctrines under-
lying the liberal institutions of democracy offered no solution. How
could the democratic state restrict or curb the political action of a politi-
cal party, which, albeit its ultimately subversive aims, studiously re-
frained from openly proclaiming its revolutionary intentions? Yet it
was just such a shrewd exploitation, by propaganda and organizing pres-
sure, of these legalistic inhibitions and obsessions of the republican
authorities, blinded by the formalistic notion of mechanical equality be-
fore the law, which paved Hitler's way to "legal" power. The National
Socialist party in Germany once for all has set the pattern of the "legal"
conquest of the democratic state, after the premature revolutionary
"putsch" of 1923 had collapsed under the volleys of the resolute military
authorities. Herr Hitler's tactical genius found the appropriate solu-
tion by instilling his revolutionary aims into the German Republic under
the guise of a regular political party, while it conformed to the law, at
least outwardly. The exaggerated legalism of republican government
and courts was unable to deny the National Socialist movement the
democratic institutions lest they would violate the fundamental prin-
ciples of political equality.32
Although the guileless defenders of the freedom of political opinliOn in Ger-

many were, as a rule, unaware of the dangerous situation until it was too late,
they might have justified their suicidal indulgence towards the National Socialist
wolf under the democratic clothing by referring to an historical parallel of the
immediate past. The special legislation passed by Bismarck against the rising So-
cialist movement, the famous anti-Socialist Act of October 21, 1878 (RGB.351)
(Gesetz gegen die gemeingefahrlichen Bestrebungen der Sozialdemokratie), ex-
pired only on September 30, 1890 (see Law of March 18, 1888, RGB. 190). The
act outlawed the Social Democratic party altogether and threatened any continua-
tion of its activities in any form whatever by severe sanctions including penal
servitude. Although the crudely drafted statute treated the Social Democrats more
as a subversive association than as a political party, is contained most of the
features of the modern legislation against subversive parties and may still be
studied with profit. See on the anti-Socialist Act: REPORT, p. 268 and
W. KULEMANN, DIE SOZIALDEMOKRATIE UND IHRE BEKAMPFUNG (1890) ; LIEP-
MANN, op. cit. sufra note 23 at 70. After the law was repealed in 1890, the So-
cial Democrats staged a triumphant comeback. While the Socialist party prior to
the proscription had polled only 493,000 votes, they increased the vote at the first
elections after the readmission as a political party to 1,487,000 votes, thus demon-
strating that a political movement, based on a compelling idea, cannot be suppressed
by force. Although the Social Democratic party did not participate in the govern-
ment after 1930, it is beyond doubt that they were reluctant to support a policy of
outlawing a political party since their own political history had sufficiently proved
the futility of political suppression by legislative methods.
The downfall of the German Republic, however, became in fact a

warning to not a few of the other democracies. Nor was the lesson of
the dictatorial states in outlawing all political parties except the govern-
ment party33 lost entirely upon the remaining constitutional govern-
ments. At present, there is not a single democratic state in which some
legislative action has not been taken against political groups, associations
or parties deemed inimical to the existing democratic government.
For the obvious reason of maintaining, at least nominally, the doc-
trine of equality before the law, democratic governments shied at open
discrimination by singling out any particular political party for outright
proscription. Usually, a party is banned, only on the basis of a general
legislative authorization, if it entertains activities deemed subversive.
The ban is directed not against a specific party but against any party
which falls under the definition of the law. While the statute outlines,
in general terms, what constitutes a subversive party or subversive ac-
tivities or subversive aims, the actual act of suppressing or outlawing the
subversive party is left to the decision of the administrative authorities
or the government, which is subject, in some cases, to a limited degree
of judicial control. Thus, not even the anti-Communist laws of Fin-
land in 1930-31 went so far as to name specifically the Communists al-
though nobody failed to realize that the statute was aimed at the Third
International alone.34 A more indirect, yet none the less drastic, meth-
od which was applied for paralyzing the political activity of a party
deemed subversive was that of excluding, by law, any sympathizers of
subversive parties from eligibility to the national and municipal repre-
sentative bodies, as in Finland,35 Estonia36 and Lithuania.37 Fascism
"Compare the appropriate legislation in the one-party dictatorships of Italy;

Germany; Russia; Austria; Portugal; Bulgaria; Greece; Turkey; Spain under
Franco; Brazil; and Rumania. Since 1937 in Poland a movement toward the one-
party-state also seems under way. The other authoritarian countries may be char-
acterized as states where the multiple parties are more or less under government
control, such as Hungary, the authoritarian Kingdom of Yugoslavia and the au-
thoritarian republics in the Baltics, namely Lithuania, Latvia and Estonia. See
K. Loewenstein, Militant Democracy and Fundamental Rights, op. cit. suipra note
13 at 417. While in all these countries the Communists are invariably prohibited,
some of them outlaw also the Fascists on the right, as in the Baltic states, Hun-
gary, Yugoslavia and unsuccessfully, in Rumania. The latter country has, in the
meantime, become a one-party Fascist state (Jan. 1938).
3 See supra, p. 598 and the statutes discussed in notes 17-21.
S By Constitutional Act of November 18, 1930 (modifying Art. 7 of the or-
ganic statute on the Chamber of Deputies of January 13, 1928) the eligibility to
the Riksdag was excluded for any person being a member or having acted in favor
of "a political party, association or organization which, by its activities, envisages the
overthrow, by violent means, of the political system or the social order of Finland"
(see text of the statute in 3 DARESTE, op. cit. supra note 17 at 299). The Laws of
July 30/31, 1930 provided, by applying the same criteria, for the exclusion of sub-
versive parties from the municipal elections (for the text of the anti-communist
laws see ANNUAIRE (1932) 596). It was this abstract and general formulation
and Communism are thus practically, though not nominally, outlaws

in all Baltic countries.
Only in isolated instances the democratic state, in open violation of
the democratic principle of political equality, resorted to an outright and
direct proscription of specifically named political parties. Without un-
duly pressing the illustrations offered by Austria38 which, prior to the
"octroyed" constitution of 1934 was converted from a democratic into
an authoritarian state, or of Chile and Nicaragua,39 we may refer here to
Switzerland. After an abortive attempt, by the Federal draft proposal, of
1936, of singling out as subversive only the Communist party, the doubt-
ful fame of having openly proscribed a particular political party, namely
the Communists, belongs to the Cantons of Neufchatel and Geneva in
of the laws which enabled the government to proscribe shortly afterwards the
fascist Lapuan movement.
" See decree of October 2, 1936 concerning the election for the National As-
sembly which, after the result of the referendum in February 1936, was summoned
to pass a new constitution on democratic lines, thus ending the authoritarian inter-
lude. Ineligible are persons "who alone or jointly with others have attempted to
overthrow, by force, the constitution or the social order of Estonia, or who have
displayed activities designed to foster such aims, or who have lent themselves to
propaganda implying the denial of the independence of Estonia". These provi-
sions excluded automatically both Communists and Fascists and imposed, inci-
dentally, caution upon the moderate Socialists. On the tug-of-war between the
fascist organizations and the constitutional government in Estonia and Latvia see
the well-informed though much biased article of E. Tatarin-Tharnheyden, Au-
toritdre Regierungen in. Lettland und Estland und deren v3ikische Politik (1935)
26 JAHRBUCH DES OFFENTLICHEN RECHTS 257. This author admits (on p. 312)
that the efforts of the fascist organizations to seize power in the state, were
thwarted by the precautionery legislative measures of the government which pre-
vented them from building up a military body against the constituted authorities.
See also the Estonian Law for the protection of the existing order of the state of
February 12, 1925 (for the Swedish text see Bihang till Riksdagens protokol nr.
156/1934, p. 19). On constitutional changes in Estonia see J. S. Roucek (1936)
30 AM. POL. SCIENCE REVIEW, 556, and K. Loewenstein, op. cit. sutpra note 13, at
639.
37 See law of February 8, 1934 (nr. 437) (French text in ANNUAIRE [1936]
313). See also Article 1, nr. 3 and Article 2, nr. 1 of the law for the election of
the diet (Seimas) of May 9, 1936. French text in ANNUAIRE (1937) 413 ff.
38 The government of Dollfuss proscribed, by specific ordinances, first the Com-
munist party (ordinance of May 26, 1933, BGB., nr. 200), by ordinance of June 19,
1933 (BGB., nr. 240) the National Socialist Party together with other local Nazi
groups ("Steyrischer Heimatschutz") and finally, by ordinance of February 12,
1934 (BGB., nr. 78) the Socialist party. For texts see ANNUAIRE (1934) 193 and
ANNUAIRE (1936), 108. It should be borne in mind, however, that Austria, after
the "octroyed" constitution of 1934, can no longer be classified as a constitutional
democracy.
3 The Public Order Act of 1937 outlawed the Communist party (reported in
the London Times of January 14, 1937, p. 11). On the law "for the internal order
of the state" approved by the Congress of Chile in Feb. 1937, see, in general, G.
lzquierro in ANNUAIRE (1937) 177.
On Jan. 25, 1938, the Congress of Nicaragua passed a law forbidding the dis-
semination of fascist comment or other foreign political philosophies, thus outlaw-
ing political parties based on such philosophies. See N. Y. Times, Jan. 26, 1938,
at 11.
1937,40 which were followed by other cantons such as Vaud, Schwyz

Uri and Unterwalden. An anti-Communist bill was also passed recently
in the second largest Canadian Province of Quebec by the conservative
government of Duplessis. This so-called "padlock-bill" empowers the pro-
vincial government to "padlock" any premises41 which have been, or
4 After disturbances in connection with a public meeting of the semi-fascist

"Front" during which a prominent member of the Front movement had died of a
heart attack, the Grand Council (Grossrat) of Neufchatel passed, on February 23,
1937, by 55 bourgeois against 34 Socialist votes, a law against the Communist
party. The Communist party and affiliated organizations are prohibited (Art. 1).
No Communist propaganda is permissible (Art. 2). Public office is incompatible
with membership in the Communist party (Art. 3). Finally, Art. 6, in restoring
nominally the equality before the law, makes the statute applicable to the anarchist
party and to all other movements which aim at overthrowing the democratic form
of government by force. The statute was subject to a referendum by the people
voted, on April 25, 1937 by an impressive majority (17, 401 :8, 469) in favor of the
bill. Likewise, in April 1937, the bourgeois majority of the Council of Geneva whose
population was seemingly aroused by what has been called the Socialist misrule of
M. Nicole, passed the constitutional law "interdisant l'activites communistes a
Geneve" which was confirmed by referendum, held on June 13, 1937, by 18,337:
12,092 votes. On the same day, the law "punissant la reconstitution des associa-
tions communistes" was upheld by 18,412: 11,988 votes. 40,040 citizens were al-
lowed to vote. The acts were subject to a formal approval (Gezwrdhrleistung) by
the Federal Council (Bundesrat) which, however, overruled the allegation of un-
constitutionality based on interference with the individual rights of free speech and
association under the Federal constitution. In addition, members of the commu-
nist parties lodged a "constitutional complaint" (staatsrechtliche Beschwerde)
against both cantonal statutes before the Federal Supreme Court, based on viola-
tions of articles 4 (equality before the law), 55 (freedom of press) and 56 (free-
dom of association). The appeal was rejected by decision of December 3, 1937
(see Basler Nationalzeitung of December 5, 1937, nr. 565). From the outset it
was not expected that these efforts would succeed since, at the present time, a
wave of resentment against communism which, incidentally, is almost negligible in
Switzerland, is sweeping over the country. Be it noted that this decision of the
Federal Council precludes judicial review of the Federal Tribunal. Similar anti-
communist laws were passed, or were initiated, in other Swiss cantons, e.g. Uri,
Unterwalden, Vaud, Valais, Zuirich. Since in the canton of Fribourg communistic
activities are already prohibited for a number of years communism is outlawed at
present in all Catholic cantons of Switzerland. In some of the conservative farmer
cantons such as Schwyz and Uri communistic parties have not even existed. See
Basler Nationalzeitung of January 31, 1938 (nr. 51) for further details concerning
the surprisingly scanty figures of participation in the popular votes confirming the
statutes. The texts of the statutes of Neufchatel of February 23, 1937 and of
Geneva of April 7, 1937 will be found in Inforingtions constitutionelles et par-
lementaires nr. 12/1937 (p. 221-224), and of the statute of the canton of Schwyz
of November 4, 1937 ibidem, nr. 17/1937 (p. 335 f.). It may be added here, that in
Switzerland, during these recent years, deep inroads have been made into traditional
liberalism and even constitutional rights, particularly through usurpation or legis-
lative powers by the Federal Council. See Z. Giacometti, Verfassungsrecht und
Verfassungspraxis, FESTGABE FUR FRITZ FLEINER (1937) 45.
' This provision has curiously enough a precedent (which, however, applies
to any subversive party or movement) in the German provision (enacted before
Hitler) of the 3rd. Ordinance of the President of the Reich.... Zur Bekamp-
fung politischer Ausschreitungen" of October 6, 1931 (RGB. I 537, on p. 567)
Part VII ? 7 (padlocking of depots or points of concentration ["Sammelstdtten"]
of activities dangerous to the state). On the practical application of the "Pad-
lock-bill" and incipient fascism in Quebec in general see the informing articles by
Duncan Aikeman in the New York Post, February 1.937, and by David Martin,
Fascismii. Comes to Qutebec, CURRENT HISTORY (November 1937) 69 et seq.
may in the future, be used for Communist purposes; any policeman, on

the instructions of the Attorney General, may also confiscate news-
papers, periodicals or printed matter containing Communist doctrines or
propaganda. Such material when imported from other provinces may
be seized at the border. The constitutionality of the act which avoids
a legal definition of Communism is open to grave legal objections on
the grounds of ultra zires as an interference with Dominion criminal
law and was challenged before the Supreme Court of Canada.42 On
the other hand, a similar move for proscribing the Communist party,
was rejected, in June, 1937, in the Grand Duchy of Luxemburg by pop-
ular ref erendum.43
In most countries the statutes against subversive parties were rather
vaguely phrased and the general criterion for defining the subversive
character of a party, organization, group or movement has been the
explicit or implicit intention of leaders, members or sympathizers to
aim at or to attempt, the overthrow or change of the existing form of
democratic government by force. Such a sweeping statutory definition
has permitted broad powers for suspending, dissolving or proscribing
subversive parties. Conspicuous illustrations of this have been besides
Finland, Czechoslovakia44 and France.
42See New York Times of November 11, 1937, p. 1. Communism was pre-
viously outlawed in the Dominion by section 96 of the Canadian Criminal Code
which was later repealed.
4 After the Diet had passed, on April 25, 1937, the appropriate statute, a
referendum had to be held (see law of May 12, 1937, Memorial of the Grand
Duchy of Luxembourg, nr. 36/1937) on June 8, 1937. To the surprise of many
and to the embarrassment of the government, the voters rejected, by 62,151: 50,010
votes, the forcible disbandment of the communist party and other organizations
classed as extremist and threatening to change the constitution by violence. As a
consequence of the popular verdict, the government resigned.
'The transformation of the Czechoslovakian republic from a liberal democ-
racy into an authoritarian or "disciplined" democracy is outlined by K. Loewenstein,
op. cit. supra note 13 at 641. The process illustrates more than any other recent
constitutional development in Europe, the present transitory stage of post-war
democracy which is characterized by the shifting of power from the legislative
to the executive agencies while maintaining, to the largest possible degree, the indis-
pensable control and responsibility of the government to the parliament. The
momentous evolution has attracted deservedly wide attention among constitutional
lawyers and political scientists in Europe although very little on this topic has been
published in this country. The author has prepared a study on this subject under
the title: The Myth of the Balanlce betwcteen Legislative antd Execiutive Power.
The vast literature reflects clearly the conflict which at present dominates European
constitutional theory and practice, namely that between strict adherence to the notions
of constitutional legality as enshrined in the post-war constitutions, alnd the aware-
ness that these democratic instruments, created for normal times, are no longer rec-
oncilable to the actual exigencies in states torn by the war of doctrines and under
pressure resulting from the disequilibrium of world economics.
As to literature on recent constitutional developments in Czechoslovakia see:
Fritz Sander, Das tschechoslovakische Verfassungsrecht is den Jahren 1929-1935
(1936) 23 JAHRBUCH DES OFFENTLICHEN RECHTS 262 if; see also the collectioll of
constitutional documents by idem, SANDER, DIE POLITISCIIE GESETZGEBUNG DER
The Czechoslovakian law of October 25, 1933, "concerning suspen-

sion of activities and dissolution of political parties",45 should be un-
derstood in the light of the ethnical composition of the Czechoslovakian
state which, besides the numerically and politically dominating Czech
elements, contains a large minority (amounting to more than one fourth
of the total population) of German speaking Bohemians ("Sudetendeut-
sche") located closely to the borders of National Socialist Germany,
and, in addition, considerable splinters of Slovaks, Magyars, and Poles.
The statute declares in general terms, what constitutes the subver-
sive aims of associations or parties liable to suspension or dissolution,
but avoids defining the specific activities by which these aims may be
reaehed in the individual case. Suspension, which may be only for a
limited period, is the milder of the two possible forms of repression. A
party or association is liable to suspension or dissolution if, by its ac-
tivities, "the independence, the constitutional unity, the integrity, the
democratic-republican form, or the security of the Czechoslovakian Re-
public is gravely endangered".46 While so pragmatic a definition of the
proscribed aims is preferred to a more specific and a less flexible de-
scription of what constitutes in particular a political activity inimical to
the state-this latter course is adopted by the equivalent French act of
1936-the statute is very specific as to the persons affected by the law.
The act applies "not only to a political party regularly organized, but to
any kind of political group, association or movement".47 This careful
enumeration of all possible political combinations corresponds to the
actual experience, since subversive parties, without conforming officially
to the statutory requirements for political parties,48 disguise themselves
under the harmless cloak of athletics' clubs or of singing or recrea-
tional associations. Warned by previous experience in other countries
that prohibited parties carry on their activities under cover of a new
TSCIIECHOSLOVAKISCHEN REPUBLIK IN DEN JAHREN 1932-1934 (1935) ; SANDER,
DAS STAATSVERTEIDIGUNGSGESETZ UND DIE VERFASSUNGSURKUNDE DER TSCHECHO-
SLOVTAKISCHEN REPUDLIK (1937) ; M. H. Beuve-MWry, Les nouvelles tenldances du
droit public tchechoslovaque (1936) 2 ANNALES DE L'INSTITUT DU DROIT COMPARE
98.
4 Gesetz vom 25. Oktober 1933 (nr. 201) betreffend die Einstellung der
Tatigkeit und die Aufl6sung politischer Parteien (promulgated on October 31,
1933). As to literature on this act see e.g.: Sander,. op. cit. supra note 44 (Jahr-
buch) at 295; P. Hartmann, Das Gesetz gegen. politische Parteien (1933) 15 PRAGER
ARCHIV FUR GESETZGEBUNG IJND RECHTSPRECHIUNG 1133; F. Adler, Verfassungs-
rechtliche Beinerkuntgen zurm Gesetz iiber die Einstellung und Aufl.lsung politischer
Parteient (1934) 14 Prager Juristische Zeitschrift nr. 12, p. 383; B. Mirkine-Guetze-
vitch (1935) 6 POLITICAL QUARTERLY 265.
Paragraph 1.
Paragraph 20.
4 See P. HARTMANN, DIE RECHTSSTELLUNG DER POLITISCHEN PARTEIEN IN DER
TSCHECHOSLOVAKISCHEN REPUBLIK (1921) 157; F. Adler, Die Rechtsstellung der
politischen Parteienl irn modernen Staat (1933) 22 Zeitschrift fiir Politik 177.
organization, the statute strikes at all attempts to reconstitute the dis-

solved party under another name or in another form whatever.49
The main criterion for determining whether the dissolved party
continues in disguise is participation of the leading men of the old or-
ganization in the activities of the new. The statute also defines compre-
hensively what constitutes membership in an association deemed subver-
sive.50 Members are not only those enrolled in the registers of the party
but also those who belonged to or sympathized with the party during
the last six months prior to the decree of dissolution.5' One who is not
an enrolled member is considered a sympathizer if he efficiently sup-
ports the party, approves publicly of its destructive aims or has sup-
ported or approved them during the preceding six months, has been a
candidate for the party or has been proposed by it for any public
function.
The statute of 1933, while outwardly not discriminating against
any specific political opinion, was used forthwith and retroactively for
the suppression of the German Nationalist and National Socialist par-
ties of Bohemia which, after Hitler's advent to power in Germany,
had spread subversive propaganda among the Sudetic Germans. The
German National Socialist Party was dissolved by the government on
November 12, 1933. A very complicated legal situation arose due to the
fact that the dissident German opposition parties had been suppressed
prior to the law of October 25, 1933 by administrative order,52 the le-
gality of which was by no means beyond dispute.53 The ambiguity of the
Paragraph 1, alinea 2.
Paragraph 20, alinea 2.
5'The Finnish Constitutional Act of November 18, 1930 (referred to siupra in
note 21) while defining the character of membership and of sympathizing attitude in
terms similar to the Czechoslovakian law, extends the period to three years. Com-
munism had existed in Finland since the very inception of the new state.
5 Dissolution by administrative order was based on ?? 28, alinea 2, 36 of the
former (Austrian) law on associations of October 15, 1867 (RGB. nr. 134), still
in force in Czechoslovakia in 1933. See SANDER, op. cit. supra note 44, at 303. The
subversive character of the National Socialist Party had been amply evidenced by
the findings against leaders and promoters in the so-called "Peoples Sport" trials;
see decisions of the Court of Cassation of July 1, 1933 and October 7, 1933 (for
details see SANDER supra at 304-305) in which the indicted members of the party
were convicted of violations of the law of 1923 for the protection of the Republic.
5 While Art. 103, alinea 1 of the Constitutional Charter of the Republic of
February 20, 1920 guarantees freedom of assembly and association subject to the
provisions of the (ordinary) laws, alinea 3 explicitly forbids the dissolution of an
association "unless it acts in violation of the criminal law or contrary to public
peace and order." Felonious acts of individual members, so it was argued by coun-
sel for the dissolved parties, did not imply, "guilt by mere association" of the entire
party. In conformity with traditional practice, the courts (prior to the decision of
the Supreme Administrative Tribunal of October 26, 1935 [see SANDER, op. cit.
sutpra note 44, at 307, 313] ) had exempted political parties from the operation of the
law on associations.
legal situation was enough provocation for the enactment of a statute

which was unmistakably directed against the subversive German op-
position parties. Under the new statute, the dissolution of the Ger-
man National Socialist Party was sustained first by the Mandate
Senate of the Supreme Administrative Tribunal when called upon to de-
clare forfeited the parliamentary mandates of the deputies of the dis-
solved party in accordance with the law,54 and also, after longdrawn
proceedings, on appeal against the dissolution decree proper issued by
the government.55 The second opposition party coming under the law,
the German National Party, was also banned at first only by administra-
tive order.56 In order to legalize administrative measures previously
taken the law of October 25, 1933, was subsequently amended.57 On
April 25, 1935, however, the prohibition of the German National Party
was revoked in order to allow the official participation of the party in
the ensuing general elections of May, 1935.
While the law of 1933 thus affected only the German opposition
parties and among them only the National Socialists permanently, the
Czech Communists and Czech Fascists, adjusted themselves to the legal
requirements by changing their by-laws and constitution as well as their
actual political tactics.58 On the other hand, in view of the strict law of
1933, the German opposition was compelled to forsake revolutionary
activities, at least for the time being, and to reorganize its followers as an
ordinary political party, which eluded the provisions forbidding recon-
stitution of a dissolved party. Legislative enactments could not prevent
the united opposition, under the able leadership of Herr Konrad
Henlein, from gaining at the polls of the general election of May 19,
1935, as the Sudetic German Party the support of no less than 67% of
the German speaking population of the country. But although the new
party remained in parliamentary opposition to the government coalition,
'Paragraph 17. See decision of November 25, 1933 (see SANDER, op. cit.
supra note 44, at 307). See infra pp. 611-612.
5 Decision of October 26, 1935.
ii Administrative decree of the district authority of Bohemian-Leipa of October
25, 1933; see SANDER, op. cit. supra note 44, at 311. On appeal the dissolution was
confirmed, at first, on April 16, 1934, by the Central Administrative Board in
Prague, and subsequently by the Supreme Administrative Tribunal. Decisions of
February 13, 1934 and October 25, 1935.
5 Paragraph 22, alinea 2 (by law of December 22, 1934 [nr. 269]).
'At the general election of May 19, 1935 the National Union of Fascist (a
Czech group) polled only 167,000 votes or 2.04% of the total while the Communists
obtained 849,000 votes or 10.32%o. Communism is more or less "domesticated" in
Czechoslovakia, mainly because of the Agrarian reforms wisely carried out by the
government by which the large estates were divided among the peasants while the
owners received adequate indemnities. A similarly deliberate execution of the pro-
gram of the Spanish Constitution of 1931 would have forestalled, to all expectations,
agrarian Communism in Spain.
6310 COLUMBIA LAW REVIEWY
political hostility was carried on by studiously legal methods. Credit

must be given to the law of 1933 for having prevented the revolutionary
tactics of the Sudetic German Party, and thus preserving the internal
peace and stability in the country despite the barrage of propaganda di-
rected against Czechoslovakia from Germany.58a
All unbiased observers agree that the mere existence of the statute,
together with the government determined to apply it for the maintenance
of the democratic structure of the country, has barred the Henlein party
from carrying on subversive methods of propaganda and actions which
ultimately could not but lead to civil war as in Spain. Obviously, how-
ever, the supreme test for legislative control of fascism in Czechoslo-
vakia had not yet come.59
In France, the law of January 10, 1936 "on fighting groups and
private militias"60 empowers the President of the Republic "en Conseil
des Ministres", that is the government, to dissolve "associations" and
"groupentents de fait" which aim at interferring with the integrity of
the national territory,6' or which aim, by use of force, at endangering
68a The author was informed in the summer of 1937, by the officials of the Min-
istry of Justice in Prague, that scarcely any prosecutions under the statute were in-
stituted, its mere existence being sufficient to prevent violations.
9 The provision of the act of October 25, 1933 concerning suspension and dis-
solution of political parties and of substitute parties (? 1) and of associations and
similar organizations (? 3, alinea 3, ? 15, alinea 1) expired on December 31, 1934
(? 23, alinea 2 of the law). By the law of December 20, 1934 (nr. 269) the
authorizations of the government were continued to December 31, 1935. See
SANDER, op. cit. supra note 44, at 299. Further extension of the transitory provi
of the statute encountered strong parliamentary obstacles and only by the laws of
May 13, 1936 (nr. 132) and of December 18, 1936 (nr. 317) was the governmental
authorization concerning the dissolution of political parties and substitute parties
continued to December 31, 1937. Suspension alone is no longer permissible. See
SANDER, supra at 315. Actual prohibitions of unlawful parties would have lapsed by
January 1, 1937 (? 2 of the law of May 13, 1936). In December 1937 the law was
again prolonged,for another year. In its original form, the last mentioned bill was
intended to tighten the restrictions on subversive parties, in this case on Herr
Henleins dissident Sudetic German Party. One clause makes it permissible to dis-
solve the party if illegal acts are committed by subgroups or even individual party
members, although the party as such may have not been guilty of conspiracy in
such acts. The bill was passed, however, without these new clauses inserted be-
cause the government feared they would be resented by Germany. See New York
Times of December 15th and 16th, 1937.
Some of the legislative intentions of the law of October 25, 1933 were made
permanent, in the meantime, by the important law on the use of flags, symbols and
escutcheons of October 21, 1936 (nr. 269).
? Loi sur les groups du combat et les milices privees (Journal Off. of January
12, 1936, p. 522) article 1, alinea 3. On the events leading to the passing of the
law (riots between the Croix de Feu and Socialists in Limoges on November 16,
1935) and the rather stormy parliamentary debates see Karl Braunias, Staatskrise
und Staatsreform in Frankreich, (1936) 23 JAHRBUCH DES OFFENTLICHEN RECHTS
119.
' This provision aims mainly at the Alsatian autonomist movement which,
presumably under National Socialist propaganda, skillfully exploits the anti-Com-
munist prepossessions of the Catholic farmers and advocates more or less dis-
creetly the establishment of an autonomous Alsace.
("attenter") the republican form of government.62 Here, also, the

definition of precisely what constitutes a seditious or subversive activity
is capable of an elastic interpretation. The illegality of an association's
activity is apparently to be inferred from its aims.
In France, as in Czechoslovakia, the judiciary determine the legality
of the decree of dissolution, but not the political advisability of the dis-
solution proper. In France, the Council of State (Conseil d'Etat) is to
decide, on appeal, without delay ("d'urgence") whether the dissolution
decree is to be revoked or to be confirmed.63 Similarly, in Czechoslo-
vakia, the political decision as to whether a party is to be suspended or
dissolved is left to the discretion of the government alone.64 Due proc-
ess under the rule of law, however, is guaranteed by a judicial procedure
in which the legality of the dissolution decree is reviewed in so far as
the actual findings leading to dissolution are such as to justify the sub-
versive character of the association.65 Appeal lies to the Supreme Ad-
ministrative Tribunal ("Oberverwaltungsgericht") in accordance with
the general laws protecting due process.66 Moreover, a particular situation
envisaged by the law of 1933 calls for a final decision of the court. Mem-
bers of a dissolved (but not of a suspended) party who were elected to
the legislative assemblies on the party ticket prior to the dissolution, lose
automatically, by virtue of the dissolution, their parliamentary mandate
and are considered as having resigned ex officio.67 Until the next gen-
l See already the decree of October 23, 1935 "portant modification a la loi du
her juillet 1901 relative au contrat d'association." (Journal Off. of October 24,
1935, p. 11, 204) which declared illegal an association "fondee sur une cause ou en
vue d'un objet illicite, contraire aux lois, aux bonnes moeurs ou qui auront pour
but de porter atteinte a l'integrite du territoire ou a la forme republicaine du gov-
ernement." Art. 2 provides for a decision of the Civil Tribunal on the dissolution.
Simultaneously, localities used by unlawful associations are to be closed. See
similar provisions in Quebec and Germany before 1933, referred to in note 41, supra.
Restrictions of the right of assembly are permissible against members of dissolved
associations. The decree failed, however, to achieve its purpose because political
parties in Europe are usually not organized as private associations and hence they
are not subject to the common law on associations.
3 Art. 1, alinea 2 of the law of January 10, 1936. During the parliamentary
debates the parties of the right raised objections against the power of dissolution
conferred upon the government and proposed to transfer it to the ordinary courts,
a device which, at least in the Weimar Republic had more or less defeated the aims
of the law.
' Law of October 25, 1933, ? 1, alinea 1.
'See, however, the grave objections raised by Hartmann, op. cit. supra note
45, at 1254 and by Sander, op. cit. supra note 44 (Jahrbuch), at 300.
According to ? 2 of the (Austrian) law on the Administrative Tribunal of
1875 (RGB. nr. 36) which is still valid for Czechoslovakia, appeal lies to the
Supreme Administrative Tribunal in any case in which a person contends to be
curtailed in his rights by an allegedly illegal decision or order of an administrative
authority. In this sense the acts of the government and its subordinate agents en-
forcing the law of 1933 are subject to judicial control.
' ? 16. The same article of the law decrees that, in consequence of the order
dissolving the party, all its members are automatically deprived of their functions
eral elections the vacancies are not to be filled.68 A specific procedure of

the so-called "Mandate Senate" of the Supreme Administrative Tribunal
(dealing normally with problems of contested elections), has been set
up, to decide which members of the dissolved party who are at the same
time members of the House of Representatives or of the Senate are to be
deprived of their parliamentary mandates.69 In exercising this more or
less formal function the Tribunal is not entitled, however, to test the
advisability of the dissolution order itself which remains a purely
political act at the discretion of the government.
Appeals to the Administrative Courts by the leaders of the dissolved
German parties in Czechoslovakia against the dissolution orders were
rejected in due course.70 Likewise in France, when the cabinet of M.
Sarraut had disbanded several of the more aggressive "Ligues" of Roy-
alist character71 the dissolution order was sustained by the Conseil
d'Etat.72
French legislation, too, was unable to ferret out associations of in-
as elected or appointed members of local and municipal Councils and of professional

organizations of public character, and that they have to resign from all public func-
tions and institutions whatever. On similar proposals concerning the exclusion of
members of subversive parties from the political bodies in The Netherlands see
infra p. 617.
' This provision is clearly unconstitutional in view of Articles 8 and 13 of the
Constitution which prescribe a fixed number of three hundred members of the
Chamber of Deputies and of one hundred and fifty members of the Senate. Any
statutory provision affecting this situation ought to be carried only by constitu-
tional amendment, that is by three fifths of all members of both houses (Art. 33).
See SANDER, op. cit. supra note 44, at 302. In addition, the fact that the number of
deputies is fixed by the Constitution involves complicated political problems when
the parliamentary position of a government habitually operating on the basis of
parliamentary coalitions is upset through the reduction in the number of representa-
tives without subsequent elections.
9?17.
70 See the decisions referred to supra in notes 54, 55, 56.
71 The "Ligues" dissolved on February 16, 1936 were the following: Ligue
d'Action FranCaise; Federation Nationale des Camelots du Roi; Federation Na-
tionale des Etudiants d'Action FranCaise.
72 Arrete re Pujo et autres of April 4, 1936 [see 53 REVUE DU DROIT PUBLIC
(1936) at 284]. In this very interesting decision which compares favorably with
similar decisions of republican German courts (see infra note 91) the Conseil d'Etat
held that the question whether an association is to be dissolved belongs exclusively
to the political discretion of the government and is, therefore, beyond judicial con-
trol. "Le Cowseil d'Etat ne participe pas a F'action gouvernementale." The Court in-
vestigated, however, whether the appellant "Ligues" aimed at affecting the republican
form of the State. By a subtle and, as it seems, rather dangerous distinction be-
tween a political group which pursues the aim of overthrowing the republican
form of government, on the one hand, and a group which only favors such an aim;
on the other hand, the Court comes to the conclusion that, in view of program and
activities of the dissolved "Ligues", the law of January 10, 1936 i's applicable. Yet
the Court states explicitly that neither the actual use of force nor the continuation
of subversive activities after the enactment of the new law are necessary grounds
for dissolution. "II suffit que le groupement ait pour 1'objet de preoparer l'insurrec-
tion." The appeal was rejected.
cipient, if not admitted, fascist pattern. Although the law of January

10, 1936 took precautions to make unlawful the reconstitution of a dis-
solved association under a different name or in a different form, several
political groups anticipating dissolution took a warning from the action
of the government against the Royalist "Ligues," and organized them-
selves as regular political parties, thus following the example of the
dissolved German parties of Czechoslovakia. As was to be expected,
the government of the Common Front, after the victory at the elections
in April/May 1936, dissolved all quasi-fascist organizations.73 Shortly
before the dissolution decree was issued the most important among
them, the Croix de Feu under Colonel de la Rocque, had been trans-
formed into a regular political party, the Parti Social FranCais, wh
M. Jacques Doriot, the Ci-devant communistic Mayor of Saint Deni
whom many consider as the coming "Hitler" of France, gathered his
followers in the cadres of the newly founded Parti Populaire Franfcais.
Although duly suspected of being nothing else but a camouflaged con-
tinuation of an outlawed "Ligue" the Parti Social FranCais, by out-
wardly conforming to the requirements of the law and by abstaining
from manifestly subversive activities,74 was at first evidently able to
satisfy the judicial authorities that it did no longer aim at the over-
throw of the republican form of government and hence could not be
classified as a subversive movement. The new party held in the mean-
time an official party congress and was even permitted to run candidates
for the senatorial elections in October 1937, incidentally, without ob-
taining a single seat. But the bloody Clichy riots in March, 1937 had
cast anew legitimate doubt on the lawful purposes of the party and
proceedings instituted against M. de la Rocque and other leaders of the
party under the law of January 6, 193675 ended finally, in December,
1937, with the conviction of the accused for continuation of a dissolved
unlawful association.76 Whether the cabinet will bring itself to an
'Decrees of June 18, 1936, affecting the Croix de Feu; the Parti National
Populaire (formerly Jeunesses Patriotes) Parti National Corporatif Republicain
(formerly Solidarite' FranCaise), Parti FranCiste. Change of name did not pre-
vent the dissolution. The text of the decree disbanding the Croix de Feu is found
in 3 W. E. RAPPARD, W. S. SHARP and others, SOURCEBOOK ON EUROPEAN Gov-
ERNMENTS (1937) 161. The Conseil d'Etat, on appeal of one of the dissolved parties
confirmed the dissolution order as in conformity with the statute (arree of November
27, 1936, re Parti National Populaire).
" The tacticians of the former Croix de Feu have adopted a new technique by
calling meetings on private premises which are not forbidden under the present
laws.
7 See London Times, April 6, 1937.
' Decision of the 13th Correctional Court of December 22, 1937 (reported in
Basler Nationalzeitung, December 23, 1937, nr. 597 and London Times, December
23, 1937, p. 9). The decision is characteristic of the leniency displayed by the
energetic action which would stamp out the smoldering fire of fascist
unrest, is at least open to grave doubt. At any rate, although legisla-
tion against subversive movements was unable to drive fascism from
the French political scene, because it had become too widespread and
too well organized, the legislative measures undertaken have thus far
contributed their share to the maintenance of public peace and order.
In Switzerland, where the bulk of the nation is still thoroughly im-
bued with liberal ideas, there has been, until recently, a particular re-
luctance to part with the unrestricted exercise of constitutional rights
within the traditional limits of the law; hence efforts to deal effectively
with political parties deemed subversive were, for a long time, far from
successful. Federal and cantonal bills designed to curb the activities
of subversive parties by abridging fundamental rights encountered the
hostility not only of the semi-fascist National "Fronts" and of the Com-
munists as the organizations primarily affected, but also of the So-
cialist and of large sections of the liberal-democratic bourgeoisie. The
comprehensive Federal Public Order Bill of October 13, 193477 had
contained a rather narrow and casuistic definition of a subversive,
and therefore unlawful, party or organization. One of the objectives
of the law was to prohibit the formation and maintenance of, and mem-
bership in, an association which entertains the purpose of, or actually
enfolds activities for impeding measures of the constituted authorities,
or which aims at preventing the enforcement of statutes by unlawful
means, or which aims at usurping powers which are ordinarily within
the jurisdiction of the public authorities. The law intended to paralyze
the specific technique employed by revolutionary organizations called
magistrature towards revolutionary movements of the right, thus following the ill-
fated precedents of the judges in republican Germany. M. de ia Rocque, Ybarnegaray
and other leaders received mild fines which, however, are not to be collected be-
cause of the amnesty law of July 12, 1937. The findings of the magistrate revealed
that the French Social Party had retained the hierarchical military organization of
the dissolved Croix de Feu which had already covered the entire country by a cob-
web of subdivisions. "Flying columns" of party members formed a special party
police of great mobility, and the party was efficiently organized on strictly military
lines. The decision of the court, against which appeal was announced, does not
imply ipso iure the dissolution of the party which has to be decreed by the gov-
ernment.
' Bundesgesetz zum Schutz der affentlichen Ordnung of October 13, 1934, ? 6.
In the Swiss Confederation, all (federal) laws, after having been passed by the
parliament (Federal Assembly) have to be submitted to popular referendum at the
request of 30,000 active citizens or of eight cantons (Art. 89 alinea 2 of the Fed-
eral Constitution of May 29, 1874). The referendum may be dispensed with if the
Federal Council declares the bill as of "urgent character" ("dringlich"). In recent
years, the Federal Council, according to most competent observers, has greatly mis-
used this power by enacting laws in the form of an "urgent Federal Resolution"
which properly should have been submitted to popular referendum. On this and
similar developments which reveal clearly "authoritarian" tendencies in the Swiss
democracy, see Z. Giacometti, op. cit. supra note 40, at 46.
"civil mobilizations", which consists in establishing a legality of own

right, exercised by party organs in competition with the constituted au-
thorities of the state. The bill was rejected, however, by federal ref-
erendum on March 10/11, 1935 by 468,168: 415, 964 votes.78 In De-
cember, 1936, the Federal Council revived the plan by submitting to the
Federal Parliament the draft of a new Public Order Act,79 which evi-
dently tried to utilize the legislative experiences of other democracies,
but went much further. The bill indicted explicitly the Communist
party as dangerous to the existing state, making participation in com-
munist activities a felony. The publication of the resolution of the
Federal Council, which was declared "urgent" in order to avoid even-
tual rejection by referendum, as in former instances, aroused widespread
resentment, particularly because the Communist party was singled out
for proscription,m while the equally subversive fascist "Fronts" were
not mentioned. In addition, the proposal, apart from many otherwise
useful provisions against violation of public order by subversive parties,
virtually immunized the army even from reasonable criticism. The
Council of Cantons (Stdindderat) eliminated from the bill the obnoxious
discrimination against one political party and also drastically amended
the provisions for the special protection of the army.8' Yet when the
draft reached the National Council (Nationalrat) it became clear that
even the mitigated form had incurred public disfavor to such an extent
that a majority in the National Council for carrying the bill was scarcely
obtainable, particularly since the government was unwilling to forego
the "urgent" character of the bill. Finally, the proposal was shelved
to the Greek calends. It is contended that the new penal code of the
Swiss Confederation is to contain some of the more important features
of the ill-fated Public Order Bill thus giving permanency to its main
78 A similar definition of a subversive party contained in ? 2 of the law of the

Canton of Zirich "for the protection of the constitutional order" was equally re-
jected by referendum on May 11, 1935.
9fBundesbeschluss iiber den Schutz der 6ffentlichen Ordnung und Sicherheit
of December 6, 1936. For details see Basler Nationalzeitung nr. 571 and 572 of
December 8, 1936.
80 The Resolution of the Federal Council against Communist activities in Swit-
zerland of November 3, 1936 (Gesetzsammlung 1936, p. 819) had already taken
ample precautions against subversive activities of the left radicals. Art. 1 allows
confiscation of communist propaganda material imported from abroad or printed
in Switzerland; Art. 2 prohibits all political activities of the organization Rote
Hilfe. Art. 3 prohibits training courses serving for Communist propaganda and
teaching Communist tactics; Art. 4 gives power to the Cantonal authorities to
prohibit communist meetings and demonstrations if disturbance of public peace is
likely to occur.
81 On the incisive revisions passed by the Council of Cantons ("Stinderat")
see Basler Nationalzeitung nr. 93 of February 26, 1937, and nr. 114 of March 10,
1937.
objectives. But although the new penal code has in the meantime been
accepted by the Federal Parliament, (in September, 1937), it is by no
means certain that the people will ratify it by referendum. For the
time being, Switzerland, in spite of repeated efforts to enact appropriate
legislation, is less protected against subversive movements of the right
than any other European democracy,82 a fact which according to more
than a few observers may be linked to the noticeable retreat from demo-
cratic fundamentalism83 of the country which takes pride in being the
oldest and most stable democracy of the world.84
A somewhat different yet none the less effective method for ex-
cluding members of subversive parties from further participation in
parliamentary life has been proposed in the Netherlands by the consti-
tutional amendment of April, 1937.85 No provisions exist in that coun-
try for outlawing subversive parties proper, but according to the con-
stitutional amendment, they may be deprived of their representation in
both houses of the parliament, and in provincial and communal assem-
blies,86 by what may be called a process of self-defense of the representa-
tive bodies. During the exercise of the representative function, any
member who expresses political opinions aimed at changing the existing
constitutional order by illegal means or methods may be excluded from
the mandate by vote of two thirds of the chamber of which he is a mem-
ber. A special statute is to be enacted which determines the legal process
for the forfeiture of the mandate and its consequences. In the act amend-
ing the constitution, however, it is stipulated that the member thus ex-
cluded loses the salary during the period of exclusion and that the vacancy
is not to be filled until the next elections. These measures were based on
82 Only in the canton of Ticino which in view of its vicinity to Fascist Italy is
particularly exposed to fascist infiltration was a Public Order Act passed in 1934
prohibiting subversive associations aiming at usurping official functions of the au-
thorities. (Legge concernante provvedimenti straordinari per la tutela dell' ordine
publico of January 25, 1934.)
3 On the cantonal anti-communist legislation see supra, p. 604-605.
' It should be noted, however, that a popular initiative against the freemasons,
sponsored by the "fronts" and the Catholics, was heavily defeated by federal refer-
endum on November 28, 1937 (by 514,984: 233,869 votes). It was proved, during
the campaign against the proposal, that the German Propaganda Ministry, at
least indirectly, had played an active role in the promotion of the plan which, if
successful, would have been an irreparable damage to the freedom of public opinion
and association in Switzerland. As a countermove the Liberal party of the can-
ton of Zurich initiated a supplement to the cantonal criminal code concerning
treasonable relations with foreign countries or parties.
' Act of April 9, 1937 (nr. 306),-one of seven laws amending the constitu-
tion,-? 2 (amending Art. 86).
' See act of April 9, 1937 (nr. 306), ?? 3, 5 and 6 by which the provisions con-
cerning the loss of the parliamentary mandate are made applicable to the other
political representative assemblies (dealt with in Articles 92, 128, 143 of the Con-
stitution) .
the sound assumption that they would put an effective brake on the
activities of parties fundamentally opposed to the existing form of demo-
cratic and constitutional government because a Verson elected on the
ticket of a party deemed subversive cannot propagate the subversive
aims in parliament lest he risks exclusion; while, on the other hand, if he
abstains from anti-democratic activities and exercises his mandate in
conformity with the principles of democracy, he can scarcely be con-
sidered as an efficient and useful spokesman of his party.87 The con-
stitutional amendment is to be applied impartially to all types of ex-
tremism.
These proposals, however, failed to reach the statute book. Ac-
cording to the constitution of the Netherlands, constitutional amend-
ments, when accepted by both houses of the parliament, became law
only when ratified by a two-thirds majority of both chambers after
general elections.88 At the elections of May 26, 1937 the Dutch Na-
tional Socialists, under the leadership of Mijnheer Mussert, were
heavily defeated ;89 the set-back resulted in due course in the thorough
disintegration of the party itself. In view of the apparently decreased
danger of fascism in Holland the mandatory two-thirds majority for the
amendment was unobtainable in the new chamber and, on October 20,
1937 a combination of Liberal-Democrats, Socialists, Communists and
National Socialists rejected the bill by 100: 60 votes. Thus once more
fundamentalist scruples prevented the enactment of a measure which,
if applied, would have been an effective self-defense of parliamentarism
against its uncompromising enemies.90
Reference should also be made to the legal situation in Germany
prior to the Hitler regime, and to Spain before the rebellion of the
generals in July 1936. Legally and psychologically it seemed impossi-
ble in these democracies to ban political parties merely because of their
political aims even though they were admittedly and patently directed
against the republican and democratic structure of the state. While in
' See also act of April 9, 1937 (nr. 308), ? 10 (amendment to Art. 98 of the
Constitution) which limits parliamentary immunities in so far as there is no longer
inviolability of representatives for seditious acts or for betrayal of state secrets.
' Articles 197-199 of the Constitution.
8 The National Socialist party polled only 171,000 votes (or 4.21% of the
total vote) as against 295,000 (or, 7.94%) at the elections for the Provincial
Councils in 1936.
' The legal aspect of excluding anti-democratic parties inimical to the existing
constitutional order of the state from participation in public life in the Netherlands
is competently discussed by G. VAN DEN BERGH, DE DEMOCRATISCHE STAAT EN DE
NIET-DEMOCRATISCHE PARTYEN (1936). To the present writer's knowledge this is
the only European contribution to the problem of militant democracy reaching
similar conclusions as K. Loewenstein, op. cit. supra note 14.
Germany both the police and the courts relentlessly suppressed the ac-
tivities of the Communists who were, at least by indirection, declared
inimical to the state, by applying the ordinary criminal law of high
treason and the extraordinary remedies provided for by special legisla-
tion intended for the protection of the Republic,91 similar action was
never taken against the National Socialist Party. After the "putsch" in
1923 the leaders were sentenced to mild terms of "honorary custody" in
a fortress, but soon released; the party, prohibited for a short while, was
soon flourishing again. In Spain, the Constitutional Tribunal, imme-
diately before the outbreak of the revolution, though sufficient legal
means existed for proscribing the Fascist Falange,92 found it appropri-
ate to deny their subversive character. The results of such legalistic
leniency both in Germany and Spain are historical facts.
As to the legal and political consequences resulting from dissolu-
tion of a subversive association, sanctions, as a rule, are threatened only
if the prohibited activity is unlawfully continued or if the party is re-
constituted.93 In case of unlawful continuance of a dissolved organiza-
tion the entire property which serves for the perpetration of its unlaw-
ful ends, such as arms, uniforms, and other material, and, in addition,
all other movable or immovable property owned by the unlawful as-
sociation, may be confiscated.94 The rather mild French law entails no
further detriments for those persons who previously participated in an
association declared illegal. Contrariwise, the Czechoslovakian law of
October 25, 1933 cuts deeply into the political and eventually the private
'On this subject see the brilliant treatise of M. LIEPMANN, KoMMUNISTEN-

PROZESSE; EIN RECHTSGUTACHTEN (1928) one of the most compelling scholarly
indictments against the partiality displayed by public prosecutor's and courts in dis-
criminating between Communists and other equally subversive parties. The main
legal tools for suppressing Communism were ? 7, alinea 4 of the law on the pro-
tection of the Republic of July 21, 1922 (RGB. 1, 585) and ? 128 of the Criminal
Code which forbids "membership in an association the aims of which are to
prevent or weaken administrative measures or the enforcement of laws by illegal
means". See the similar definition of subversive parties by Swiss legislation supra
p. 604. See also R. FRANK, DAS STRAFGESETZBUCHI FUR DAS DEUTSCHE REICH
(1931) 321, and 13 Reichsgericht, Criminal Decisions 273; 16, ibidemn, 294, and the
substantiated objections by LIEPMANN, supra at 63.
' Compare the Spanish law for the protection of the Republic (modelled on
similar statutes of Germany and Czechoslovakia) of October 21, 1931 [Ley de-
clarando actos de aggression los que se indican; see German translation in 3
BRUNS, ZEITSCHRIFTr FUR AUSLANDISCHES OFFENTLICHES RECHT (1932), Part II, p.
413 ff. and Gmelin, op.. cit. supra note 16, at 434].
9 For example in France according to the law of January 10, 1936.
94 Similarly the British Public Order Act 1936 (1 ED. VIII and 1 GEO. VI c. 6)
in sect. 3 provides for liquidation and eventually forfeiture to the Crown of all
property held for a military organization of a political party according to sect. 2.
The Austrian Ordinance of August 19, 1933, (BGB. nr. 368) also provided for
confiscation of the property of political parties.
LEGISLATIVE COINTROL IAT DEMOCRACIES 619
life of former participants in a suspended or dissolved association even

if no attempt at reconstitution is proved. After suspension or dissolu-
tion, it is unlawful for the party as such and for former members
thereof to carry on any activity whatever by which the unlawful pur-
poses might be said to be continued. Especially prohibited are the wear-
ing or exhibition of any symbols or emblems indicating allegiance to
the unlawful organization, the organizing of and participating in demon-
strations or assemblies, even in the veiled form of personal invitations
extended to selected persons,95 the canvassing of adherents, soliciting or
collecting of funds, or any support of, or active sympathy with the
aims of the dissolved party.96 The ban also affects affiliated organiza-
tions of any kind whatever, such as commercial or economic enterprises
or recreational or cultural organizations promoting directly or indirectly
the aims of the unlawful association.97 Furthermore, it is unlawful to
issue press news or printed matter of any kind.98 Former members
of dissolved associations may be subjected to incisive restrictions of
their personal freedom, such as denial of the secrecy of correspondence,
censorship for wires, expulsion from or confinement to certain localities
for definite periods, and even to surveillance by the police if the situa-
tion demands it.99 All these measures may be taken if and as long as
the administrative authorities think fit. Attention has been called pre-
viously100 to the political consequence of dissolution, in that members of
proscribed parties who exercise representative functions in public bodies
e.g. in the parliament or other representative bodies, are automatically
deprived of office or function. When new elections are held the name
of the dissolved or suspended party cannot be used; former public func-
tionaries or representatives are ineligible to all political offices by elec-
tion or appointment during a period of three years following the dis-
'Law of October 25, 1933, ? 4. Private meetings of unlawful associations are
not forbidden in France.
9?2, loc. cit.
9 After the putsch of November 9, 1923, the National Socialist Workers Party
was, of course, dissolved and its property (some 170,000 marks) was confiscated.
When the party was reconstituted, in 1925, the legal form of an ordinary associa-
tion under civil law (?? 21 ff. of the civil code) for once was utilized not for the
political party itself, but for a holding company of its property. This legal device
meant to provide that, when in future the political party would be outlawed, its
property would remain unaffected by the ban because held by a "neutral" asso-
ciation of private law. Herr Hitler made himself chairman of the political party
and the private holding company, thus disposing of its property at his discretion.
For details see R. BONNARD, LE DROIT ET L'ETAT NATIONAL SOCIALISTE (1936)
111 ff. Subsequent legislation in other democracies (Czechoslovakia, France, Fin-
land, England) extended the ban to all affiliated organizations in order to avoid
legalistic blunders committed in Germany.
t ?? 5, 6, loc. cit.
9 ? 7, loc. cit.
'0 See supra p. 611.
solution or suspension order.'0' Obviously, similar drastic provision if

inserted in the French law of 1936 would have prevented the reconstruc-
tion of the dissolved Croix de Feu as a political party under the same
leaders and with the same organization. Finally, just as in the French
law of 1936, the entire property whether owned by the association it-
self or by intermediaries, is confiscated for liquidation, and, in case
of dissolution, the remainder, after the winding-up procedure, escheats
to the state.
Envisaged under traditional Anglo-Saxon concepts of constitu-
tional liberalism, it must be frankly admitted that such measures of
legislative control of political extremism as foreshadowed in Czechoslo-
vakia are hardly in conformity with customary standards of equality
before the law. On the other hand, one must realize that Czechoslo-
vakia, maliciously styled a "seasonal" state by its neighbors waiting for
disintegration, at present is at war against fascism boring from within
and threatening the national unity of the state from abroad. And dur-
ing war even in constitutional states, constitutional guarantees of civil
rights are suspended.'02 For a country in the political and geographic
position of Czechoslovakia no other choice but vigorous self-defense
was open against movements threatening the very existence of the state.
But in spite of substantiated objections which constitutional lawyers,
still entangled in outmoded concepts of liberal normalcy have raised
against the constitutionality of the law of 1933 from the viewpoints of
due process and equality before the law, the constitutionality of the
Act of 1933 which could be challenged before the Supreme Constitu-
tional Tribunal103 was never tested by that court.104 No such rule ex-
101 ?? 11, 18, loc. cit. See the corresponding provisions of the Finnish laws of
July 31, and November 18, 1930 (supra notes 17, 21).
'1 See for France e.g. P. RENOUVIN, The FORMS OF WAR GOVERNMENT IN
FRANCE (1927). For comparative material of extraordinary methods of govern-
ment in wartime see TITUS ONISOR, LES DECRETS-LOIS ET LE DROIT DE CIRCONSTANCE
AU COURS DE LA GUERRE MONDIALE (1935). H. TINGSTEN, LES PLEINS POUVOIRS
(1934).
" Act of February 20, 1920 (nr. 121) preliminary to the Constitutional Char-
ter of the Czechoslovakian Republic, Articles 1, 2. In addition, see law of March 9,
1920 (nr. 162) on the organization of the Supreme Constitutional Tribunal.
" The Supreme Administrative Tribunal, in sustaining the dissolution of the
National Socialist party on October 25, 1935 (SANDER, op. cit. supra note 44, at
307 ff.) rejected the plea of unconstitutionality of the law of October 25, 1933 be-
cause of lack of jurisdiction, but it intimated that it would set in motion proceed-
ings for constitutional review before the Supreme Constitutional Tribunal. Evi-
dently, however, nothing was done because the members of the Constitutional
Tribunal were not reappointed after expiration of their term in 1931. SANDER,
supra at 263 concludes correctly that at present no judicial review exists in Czecho-
slovakia. On the Czechoslovakian practice of constitutional review see also S. B.
Jacoby, Delegationt of Powers and Judicial Review (1936) 36 COLUMBIA LAW
REV. 895.
ists as in this country where any private party affected by a statute may
contest its validity in a private lawsuit. Only the parliamentary bodies,
that is Chamber of Deputies, Senate and Subcarpathian Diet, and, in ad-
dition, the two highest courts (the Court of Cassation and the Supreme
Administrative Tribunal) and the Election Court ("Wahlgericht") may
bring the issue of constitutionality of a statute before the Supreme Con-
stitutional Tribunal. Since, for the time being, these political and jurid-
ical key-positions are held by men intent upon the preservation of demo-
cratic institutions, it is not likely that they will allow a law clearly
intended for the protection of democracy against its enemies to be frus-
trated by legalistic proceedings.
Although the Henlein party scrupulously kept within the bounds of
the law of 1933, the President and the government were by no means
blind to the dangers arising from the fact that a strong dissident mi-
nority, geographically and ethnically unified as it is, has organized itself
in opposition to the state even if it is barred, by virtue of the law, from
becoming a military organization in competition with the monopoly of
armed force of the state. The answer of the government to the in-
creasingly perilous situation was finally the act for the Defense of the
State of May 13, 1936.105 Although this statute is unique in any demo-
cratic state, a detailed description is beyond the scope of this article.
The gist of its two hundred and one articles is the most elaborate, cir-
cumspect and comprehensive preparation existing in non-dictatorial state
for the ultimate emergency of war. Totalitarian war is anticipated by
totalitarian peace. All possible obstacles are removed which, by pre-
vious laws and even the Constitution, may obstruct the concentration
of the entire resources of the community and its inhabitants in the hands
of the government bent upon preservation of its existence. The statute
lays plans both for the case of actual war and for preparedness for the
coming war. In addition, the Defense Act also envisages an emergency
situation not actually caused by war or impending war, but "by internal
events within the state or on its borders which endanger, in a high
degree, the integrity of the state, the republican-democratic form, the
105 Gesetz iiber die Verteidigung des Staats, Slg. nr. 131. The law is one of the
most important post-war acts in Europe and well deserves a special discussion in
this country. See the commentary on the law by E. EHRLICH (1936); SANDER,
op. cit. suprca note 44 (Jahrbuch) at 325; SANDER, DAS STAATSVERTEIDIGUNGS-
GESETZ UND DIE VERFASSUNGSURKUNDE DER TSCHECHOSLOVAKISCHEN REPUBLIK
(1937). H. Kier, Das tschechoslovakische Staotsverteidigungsgesetz, (1936) 6
ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT. R. Steiner, Der str-
frechtliche Gehalt des Staatsverteidigungsgesetzes, (1937) 18 JURISTENZEITUNG
FUR DAS GEBrET DER TSCHECHOSLOVAKEI at 36.
622 COLUMWBIA LAW REVIEW
constitution or public peace and order".106 Under such conditions, most

of the provisions of the act proclaiming the "state of military prepared-
ness in case of war" may be invoked. This regulation aims clearly at the
eventuality of an extended rebellion of the German or Magyar sections
of the population, whether by a spontaneous uprising or an insurrection
instigated and supported by Germany or another neighboring country.
In such an emergency, the government constitutes itself as the "Su-
preme Defense Council", equipped with almost unchallengeable powers
for controlling the entire life of the country for the sake of what in the
Third Reich is called "military economy". The statute may briefly be
characterized as a permanent moblizing order establishing the state of
siege. Undeniably the result is that the Constitution of 1920, intended
for the normalcy of lasting peace, is superseded by an entirely new con-
stitution107 investing the government with dictatorial powers. Although
they are unprecedented in any democracy they are fully warranted under
the viewpoint of the end justifying the means. Seen under a more
fundamental angle, the Czechoslovakian Defense Act marks the tran-
sition from the liberal pattern of democracy, prevailing in post-war
Europe, to the new type of "disciplined" or even authoritarian consti-
tutionalism in which the balance of power definitely has shifted from the
multiple party legislative to the government endowed with quasi-dicta-
-torial powers. Similar developments are clearly noticeable in other
democratic countries, such as Belgium, England and Switzerland.108
(To be contcluded)
KARL LOEWENSTEIN
AMHERST COLLEGE
'1 ? 139. On ? 139 see SANDER, op. cit. sispra note 44, at 337, 340 fif.; EHRLICH,
op. cit. supra note 105, at 263.
107 For legal objections against the constitutionality of the Defense Act see Fr.
Sander, Verfassusngsrechtliche Benierkunigen zum Staa,tsverteidigungsgesetz, (1936)
17 Juristenzeitung fur das Gebiet der tschechoslovakischen Republik 109; Sander,
op. cit. swpra note 44 (Jahrbuch) at 337; Kier, op. cit. stupra note 105, at 803.
108On this subject in general see an article prepared by the author under the
title: The Myth of the Balance between Legislative and Executive Power to be
published in the near future.
* This article includes developments to January 1, 1938.

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Legislative Control of Political Extremism in European Democracies I

Author(s): Karl Loewenstein

The term "subversive activities" in this article will refer to all

the Ku-Klux-Klan movement became a widespread nuisance, the states

it is thought of in contemporary Europe. Recently, the cases of the

ideology, the democratic states of Europe were prompted, particularly

'The original source material consists of statutes and enactments in languages

covers mainly statutory provisions enacted in the following countries:

more in favor with the bourgeois element adhering to the tenets of

(1) Rebellion, sedition and coup d'etat.

1 Kapp-putsch (1920) and Hitler-putsch (1923) in Germany; Gayda-putsch

form of government are no longer deemed sufficient, the

tionalistic Lapuan-movement, in fact a semi-fascist organization, could

17 See R. Erich, Die Verfassungsentwicklung in Finlanid bis Ende 1931,

(2) Treason and trcasonablc acts.

All states possess, in the criminal code or otherwise, the indispen-

22As to statutory regulations see: Unlawful Assemblies Act 1799 (as

codes, obviously drafted for normal times, proved to be inadequate in

(3) Suppression of subversive parties and associations.

tober 6, 1931 ". . . zur Bekampfung politischer Ausschreitungen" (RGB. I 537,

nique continue in force.30 In the postwar period, when revolutionary

cally revolutionary movement as a regular and normal political party of

Although the guileless defenders of the freedom of political opinliOn in Ger-

The downfall of the German Republic, however, became in fact a

"Compare the appropriate legislation in the one-party dictatorships of Italy;

and Communism are thus practically, though not nominally, outlaws

1937,40 which were followed by other cantons such as Vaud, Schwyz

4 After disturbances in connection with a public meeting of the semi-fascist

may in the future, be used for Communist purposes; any policeman, on

The Czechoslovakian law of October 25, 1933, "concerning suspen-

organization, the statute strikes at all attempts to reconstitute the dis-

legal situation was enough provocation for the enactment of a statute

political hostility was carried on by studiously legal methods. Credit

("attenter") the republican form of government.62 Here, also, the

eral elections the vacancies are not to be filled.68 A specific procedure of

as elected or appointed members of local and municipal Councils and of professional

cipient, if not admitted, fascist pattern. Although the law of January

"civil mobilizations", which consists in establishing a legality of own

78 A similar definition of a subversive party contained in ? 2 of the law of the

'On this subject see the brilliant treatise of M. LIEPMANN, KoMMUNISTEN-

life of former participants in a suspended or dissolved association even

solution or suspension order.'0' Obviously, similar drastic provision if

constitution or public peace and order".106 Under such conditions, most

* This article includes developments to January 1, 1938.

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