Mr. Justice BLACK, dissenting.
For the reasons stated here and in the dissents of Mr. Justice DOUGLAS and Mr. Justice BRENNAN I agree with the District Court that the United States is depriving appellee, Ephram Nestor, of his statutory right to old-age benefits in violation of the United States Constitution.
Nestor came to this country from Bulgaria in 1913 and lived here continuously for 43 years, until July 1956. He was then deported from this country for having been a Communist from 1933 to 1939. At that time membership in the Communist Party as such was not illegal and was not even a statutory ground for deportation. From December 1936 to January 1955 Nestor and his employers made regular payments to the Government under the Federal Insurance Contributions Act, 26 U.S.C. §§ 3101-3125, 26 U.S.C.A. §§ 3101-3125. These funds went to a special federal old-age and survivors insurance trust fund under 49 Stat. 622, 53 Stat. 1362, as amended, 42 U.S.C. § 401, 42 U.S.C.A. § 401, in return for which Nestor, like millions of others, expected to receive payments when he reached the statutory age. In 1954, 15 years after Nestor had last been a Communist, and 18 years after he began to make payments into the old-age security fund, Congress passed a law providing, among other things, that any person who had been deported from this country because of past Communist membership under 66 Stat. 205, 8 U.S.C. § 1251(a)(6)(C), 8 U.S.C.A. § 1251(a) (6)(C), should be wholly cut off from any benefits of the fund to which he had contributed under the law. 68 Stat. 1083, 42 U.S.C. § 402(n), 42 U.S.C.A. § 402(n). After the Government deported Nestor in 1956 it notified his wife, who had remained in this country, that he was cut off and no further payments would be made to him. This action, it seems to me, takes Nestor's insurance without just compensation and in violation of the Due Process Clause of the Fifth Amendment. Moreover, it imposes an ex post facto law and bill of attainder by stamping him, without a court trial, as unworthy to receive that for which he has paid and which the Government promised to pay him. The fact that the Court is sustaining this action indicates the extent to which people are willing to go these days to overlook violations of the Constitution perpetrated against anyone who has ever even innocently belonged to the Communist Party.
In Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434, this Court unanimously held that Congress was without power to repudiate and abrogate in whole on in part its promises to pay amounts claimed by soldiers under the War Risk Insurance Act of 1917, §§ 400-405, 40 Stat. 409. This Court held that such a repudiation was inconsistent with the provision of the Fifth Amendment that 'No person shall be * * * deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' The Court today puts the Lynch case aside on the ground that 'It is hardly profitable to engage in conceptualizations regarding 'earned rights' and 'gratuities." From this sound premise the Court goes on to say that while 'The 'right' to Social Security benefits is in one sense 'earned," yet the Government's insurance scheme now before us rests not on the idea of the contributors to the fund earning something, but simply provides that they may 'justly call' upon the Government 'in their later years, for protection from 'the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near." These are nice words but they cannot conceal the fact that they simply tell the contributors to this insurance fund that despite their own and their employers' payments the Government, in paying the beneficiaries out of the fund, is merely giving them something for nothing and can stop doing so when it pleases. This, in my judgment, reveals a complete misunderstanding of the purpose Congress and the country had in passing that law. It was then generally agreed, as it is today, that it is not desirable that aged people think of the Government as giving them something for nothing. An excellent statement of this view, quoted by Mr. Justice DOUGLAS in another connection, was made by Senator George, the Chairman of the Finance Committee when the Social Security Act was passed, and one very familiar with the philosophy that brought it about:
'It comports better than any substitute we have discovered with the American concept that free men want to earn their security and not ask for doles-that what is due as a matter of earned right is far better than a gratuity. * *
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