The draft of the Ruthenberg dissent was relentless in its demonstration that the Communist Party of America, as constituted in 1922, posed no “imminent danger that some evil might result from Ruthenberg’s assembling with [it].” More accurately, no such danger reasonably could have been inferred from the record as presented in the case. Drawing on that record and on matters of “judicial notice,” Brandeis declared:
“There is no suggestion of sabotage. In fact, the Party rejects as absurd the theory that the revolution can be accomplished by the direct seizure of industry without first overthrowing the capitalist state.”
“The predicted use of force in the final struggle by which the communist state is to be substituted in America for the capitalistic was in 1922 a remote contingency.”
“The Party had then less than six thousand members, scattered throughout the United States. Of these, all but five thousand were foreign born – persons apparently of small means and unfamiliar with the English language.”
“Even if all the resources, intellectual and financial, of the Russian Soviet Republic were to be devoted to propaganda here, the process of converting any substantial portion of the thirty million American workers to revolutionary views would necessarily be a slow one.”
“If the only evil apprehended was illegal violence in the final struggle, there could be no basis for a claim that mere assemblage with this society, although formed to advocate the noxious doctrine, would create imminent danger of the evil.”
“[W]hile the criminal state of mind was to be developed, the time was apparently not then deemed ripe for putting foul doctrines into practice, either as a means of preparation and education or otherwise.”
“There is not even a suggestion that Ruthenberg had, in any connection, committed, or attempted or conspired to commit, or had incited any other person to commit, any act of violence or terrorism.”
“[There was not] a particle of evidence [introduced] that these delegates, or any of the Party’s officers, had advocated resort in the near future to crime, sabotage, violence or other unlawful methods of terrorism as a means of preparation for accomplishing industrial or political reform, or for any other purpose, either in Michigan or elsewhere in the United States, or had attempted or conspired or threatened to resort, or had incited any other person to resort to such means of preparation.”
Little remained to be done save perhaps some last minute proofing by the clerks. Sanford and his colleagues had prevailed again, but at least this time Brandeis had raised a formidable lance in dissent. This dissent would be remembered much the same way that Holmes’ dissent in Abrams[111] would be remembered. Brandeis dissenting in Ruthenberg – it would in time become a familiar phrase in American law.
