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  Wednesday October 1st, 2014    

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  (ARCHIVES)Back to Current
Gernander to speak on Kent’s landmark Supreme Court case (02/03/2013)
By Chris Rogers

In 1958, Rockwell Kent appeared before the U.S. Supreme Court. His case divided the court—and a split decision established the right to travel abroad as a fundamental American civil liberty. The case changed not only constitutional law but the course of American politics.

It was the McCarthy era, and fears of “the Red threat” colored American domestic policy. Kent was one of many Americans denied a passport to leave the United States on the grounds that he was a Communist sympathizer.

“It is a landmark case in constitutional law,” said Kent Gernander, Winona attorney and former president of the Minnesota State Bar Association. At the time, the case “was huge,” he said. “It was a blow to the State Department which had assumed all along that it had unreviewable power and full discretion.”

Gernander is presenting a lecture on Rockwell Kent’s historic passport case at 2 p.m. on Saturday, February 2, at the Minnesota Marine Art Museum in Winona as part of the Rockwell Kent Centennial Celebration. Gernander will present the lecture again at 9 a.m. on Saturday, February 9, at the Winona State University Alumni House.

“The principle that it established seems like such a forgone conclusion,” Gernander said. “But at the time it was very significant both for stating that principle, and for being a marker in the end of the Cold War mentality that caused government officials to think that in the name of combating this Communist threat that the liberty of citizens could be curtailed.”

In 1950, Rockwell Kent applied for a passport to travel to England. He was denied because he had violated the limitations of a previous passport to France by traveling to Sweden, were he took part in a declaration that the first country to use an atomic weapon would be guilty of a war crime.

Later, Kent applied again and then received a more pointed denial on the grounds that he was a Communist. The Passport Office based the denial on allegations that Kent was a member of the Communist Party and the Bookshop Association, that he wrote articles for “Social Work Today,” that he helped raise funds for a petition to defend Communist Party members’ rights, and that he helped raise bail for convicted Communist leaders.

Kent was no stranger to rocking the boat. While living in Winona, he helped organize the first threatened strike. Later, he was kicked out of Newfoundland by the Canadian government on suspicions that he was a German spy because he had a sign on his house that said: “German Bomb Factory.”

The Supreme Court voted five to four to overturn Kent’s passport denial. The four liberal-leaning judges on the court, including former Chief Justice William Douglas who wrote the decison, were part of the majority. “But the fifth vote was an improbable one,” Gernander said: the conservative former Justice Felix Frankfurter.

“There was a pretty strongly written dissent that probably got the facts better than Douglas’s decision as far as the history of passport decision,” Gernander said. Instead relying on past U.S. cases, the majority decision reached back to the Magna Carta of medieval England in its finding that the freedom to travel is a basic liberty.

Following the case, Kent received his passport and visited Moscow. Later in the famous artist’s life, negative reactions from American art museums over his Communist sympathies would lead Kent to donate much of his work to Russia.

“He found himself in the middle of the biggest political and social conflicts of two-thirds of the 20th century,” Gernander said of Kent. “He wasn’t one to be reticent or reluctant to get involved and confront what he thought was foolish and unjust.”

Looking back at Kent’s passport case may be oddly timely. When asked about the status of the right to travel today, Gernander said, “the disturbing parallel today is in the terrorist screening and no-fly lists that are being maintained. They are compiled from secret information from a whole variety of agencies, there isn’t any effective review, and there is no announcement of decision.”  

 

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