Anti-McCarthyism and the Right to “Fair and Just Treatment” in State Constitutions

Abstract

At the height of McCarthyism and the Second Red Scare, executive and legislative entities used their sprawling investigatory powers to launch ideologically motivated crusades against disfavored minorities. Simultaneously, federal and state legislatures enacted constitutionally questionable acts to regulate the Communist Party and other "subversive" actors. While public opinion ultimately shifted away from these approaches, they were largely unconstrained by federal and state constitutions. Indeed, in several states, efforts to define "subversives" and punish "subversive" conduct resulted in discrete constitutional amendments, most of which remain on the books today.

Yet in two states—Alaska and Michigan—state constitutional convention delegates were so intent on preventing future abuses of power that they entrenched specific protections in their constitutions. At Alaska's 1955-56 constitutional convention, the delegates added a constitutional protection guaranteeing the right to "fair and just treatment" in the course of executive and legislative investigations. Delegates to Michigan's constitutional convention in 1961-62 adopted a virtually identical provision. Despite robust discussion at both conventions as to the meaning of these provisions, and the ambition with which they could be interpreted in the modern era, they have largely remained dormant. Only on rare occasions has either provision been activated to curtail government conduct.

In this article, included in the Kansas Law Review's issue from its 2025 Symposium, "State Constitutions in Times of Federal Uncertainty," I lay out the history of how state constitutions responded to McCarthyism during (and after) the Second Red Scare. I outline several of the amendments that codified approaches similar to those taken by the perpetrators of the Second Red Scare, and then recount the drafting and development of Alaska's and Michigan's constitutional protections against such conduct. I survey the (limited) caselaw interpreting these provisions, and conclude by arguing that these provisions can, and should, have a much broader reach.

Keywords: state constitutions, state constitutional law, constitutional law, due process, rights and liberties