The analogy between Justice Tom Clark’s discussion of loyalty review and the dilemma of mainland workers participating in politics in Taiwan

◎ Facao Sixiang Media

"There may be a reasonable correlation between past loyalty and present and future trust."

"Past conduct may well relate to present fitness. Past loyalty may have a reasonable relationship to present and future trust."

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In 1951, U.S. Supreme Court Justice Tom C. Clark wrote this in his decision in the Garner v. Board of Public Works case, "There may be a reasonable correlation between past loyalty and present and even future trust." (One man studio, taken from the post) In 1951, U.S. Supreme Court Justice Tom C. Clark wrote this passage in the judgment of Garner v. Board of Public Works. This sentence accurately outlines the intuitive logic of democratic countries conducting "loyalty reviews" of public power holders when facing external security threats. However, this seemingly reasonable legal judgment also reveals the eternal tug of war between "national security" and "basic human rights" in the constitutional system.

Loyalty review under the Cold War between the United States and the Soviet Union

In the early 1950s, the Cold War between the United States and the Soviet Union heated up, and the Red Scare swept across the United States. The city of Los Angeles passed an ordinance forcing all city employees to swear an oath of allegiance and issue an oath stating that they have never joined the Communist Party or a radical organization that advocates overthrowing the government. Anyone who refuses to sign will be fired. This provision immediately faced challenges as unconstitutional, accused of infringing on freedom of speech and association.

Justice Clark, a former attorney general who personally compiled the "list of subversive organizations," sided with the city in his decision. He argued that the government, as an employer, has the right to establish basic thresholds for civil servants' competency and loyalty. Since public office involves the exercise of public power and public trust, it is constitutionally reasonable to examine the "past political loyalty" of public officials.

However, just one decision later, Clark drew a red line in the 1952 case of Wieman v. Updegraff: If the law adopts a "one-size-fits-all" approach to exclude all innocent participants, it will violate due process of law. Clark is well aware that trust reviews in the name of national security can easily turn into political cleansing that violates human rights if they lack the principle of proportionality.

The dilemma of Taiwan’s mainland workers participating in politics today

Spanning half a century and the Pacific Ocean, when contemporary Taiwan discusses the qualifications of foreign spouses (especially mainland spouses) to participate in politics and serve in public offices, the judiciary and public opinion are also trapped in the exact same discourse structure.

The arguments held by those who support strict restrictions almost exactly echo Clark's famous saying in the Garner case: Taiwan faces serious geopolitical and military threats, legislators and political officials hold state secrets and budgetary power, and the country has legitimate reasons to require single and unreserved allegiance from those participating in politics. Therefore, past nationality, growth background and connection to the country of origin are regarded as substantial indicators for assessing "whether one can be trusted now and in the future."

From the perspective of human rights and the constitutional system, national security pursues the certainty of "zero risk", while human rights protection requires "presumption of innocence" and individual dignity. It is often difficult to achieve both in nature. When Taiwan is building a defensive line of defense for democracy at the cusp of the storm, how to avoid turning legitimate national security concerns into full-scale identity discrimination and provide due process and remedy possibilities in the system has always been the most serious issue to test the maturity of the island's constitutional government.

Justice Clark's famous quote was never a blank check granting the state unlimited powers of censorship, but a mirror that reflected the fragility of democracy.

Justice Tom Clark's brief file (organized from Wiki)

Former U.S. Justice Tom Clark. (Taken from Wikipedia) Tom Clark (Thomas Campbell Clark) participated in World War I and served as the U.S. Attorney General from 1945 to 1949. In 1949, he was nominated as a Supreme Court Justice by former U.S. President Truman. He remained until 1967 when his son Ramsey Clark was appointed Attorney General. Justice Clark chose to retire to avoid conflicts of interest.

This article is reprinted with permission from the words of the Justice in "Fa Cao" [Rock from Another Mountain] | Tom Clark: "There may be a reasonable correlation between loyalty in the past and trust in the present and even the future."