Finally, the record of the past in which all battles are decided and many pains forgotten whereas the most distinguished characters, actions, and works stand out more clearly and in a more final form than they did in their own time, may lull us into a false security and indolence in view of the pains we have to suffer, the decisions we have to make, the actions we have to accomplish, without yet knowing the outcome.
— PAUL OSKAR KRISTELLER: The Classics and Renaissance Thought. [qtd. by Chafee]Zechariah Chafee, who we saw in a recent book on Justice Holmes' Abrams dissent, knew a bit about that. He was a leading scholar/promoter of the liberal view of free speech in the age of repression back in Holmes' era and was still around when McCarthy came to town. The quote introduces a collection that looks to the historical origins of constitutional rights, but with a bit less humility, it applies well to Chafee (related to the politicians and somewhat similarly of the old school New England Republican school of that name) himself.
I have a book that collects Chafee's lectures on "three human rights in the Constitution" (legislative freedom of debate, barrier to bills of attainder and the freedom of movement (quoted in Kent v. Dulles; the whole thing is available in the above link) as well as a second boo, The Loyalty of Free Men for which he provides an introduction. This book is by Alan Barth, who in his time also had a reputation for promoting civil liberties, here -- in 1951 -- in effect dissenting from the McCarthy Era as it barely had begun as well a passing denunciation of the "basic stupidity" (or some such statement) of Japanese internment.
Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.
-- Justice HolmesProf. Chafee cites this early statement of a recurring theme of Holmes, but even when judicial restraint is appropriate, he does so to remind us that "liberties and welfare" must be protected by "the people" and their representatives. For instance, he argues that just because the Speech and Debate Clause provides broad discretion to legislators, even to say things that might be deemed slander elsewhere, this doesn't mean they should be left off the hook. Maybe, if we thought litigation was the only way to protect the rights of others. But, here Congress is given the power and responsibility of self-regulation -- including expulsion.
The ultimate responsibility of liberty comes in various forms, which is something to remember as one reads Barth's book, which provides a basic instruction book of freedom in a perilous time. Concern for loyalty campaigns, academic freedom, free expression of scientific and other things deemed sensitive, punishment by publicity and the perils of the growing power of the FBI (including surveillance*) has applications for today. Liberty and due process for Barth was not only essential for basic freedom, it had pragmatic value. So it was in 1951, so it is today.
I will now add some more discussion of Barth's book. One impressive chapter takes the time to fairly express the motivation of those who joined the Communist Party, being sure to reaffirm the party proper is a bunch of reprobates and colleges would be within their rights to not hire (putting aside later questions of tenure or removal) communists since one has to be pretty misguided to seriously be part of such a party, at least after the 1930s. Also, especially by the time of the writing, the party is just too small in America to be a threat. It really is silly for let's say Hoover, who is deemed a reasonable sought overall, to take at face value, e.g., their allegations that for every one party member, ten are in the wings. They in effect exaggerated their membership, especially with fellow travelers and such techniques as groups with most "names" merely on the letterhead.
Still, especially given the state of affairs in the early 1930s and the ability of Russia to mislead regarding their own totalitarian tactics, it was understandable some joined the party. Various reasons were give, such as their social gatherings, personal guilty of some for their good fortune, moral confusion, the idealistic ends they supported (such as racial equality) and overall their basically religious revival nature. The party had a creed, code of conduct, ritual and even the priesthood of sorts of a church with the evangelistic drive of those that sought converts in early Christianity. The "crusading religion" theme is also reflected by the beliefs of some that going against the party was really an act of heresy. Such an approach can also be applied to other political movements, down to the Tea Party. One need not support them to say this.
The historical distaste in English history of test oaths was an important theme and an argument made in response to oaths demanded after our own Civil War was cited. One folksy example made concerned a Quaker who told his dog, Tray, that he would not kill his loyal friend. But, he did give the dog a bad name and let Tray go ... "somebody else did kill Tray." And, putting a person in prison or making something a crime is not the only way to punish. When one's livelihood, perhaps one's long career, is at risk because of rumor or bad words, is this not penal? Is this not as much of a deterrent at times then a criminal sentence?
An early use of Godwin's law, much closer to the Nazis, is also cited. The fact that the FBI is not the Gestapo, nor generally has a malevolent purpose does not mean its actions are wrong or problematic. Insert appropriate quote from Brandeis' Olmstead dissent. Also, it is noted that cops generally are not seen as heroic figures -- seems a lawyer, newspaperman or other amateur solves the crimes in popular fiction. But, the FBI is somewhat of an exception here. Today, people often similarly distrust the police in various respects, except when they do not.
In the chapter on the importance of open discussion of matters of science, it is noted that the public needs to understand the basics to be informed about public policy questions. They need not be experts in nuclear physics here. The same general thing applies to other matters, so enough with the humble pie "I'm not a lawyer" preface. Washington was not a lawyer. Also, in respect to the use of the nuclear bomb (or even killing a burglar), the basic principle that even if a serious act is right or rational does not mean one will have no guilt about it, will not second guess. This is only human given the stakes. And, the hubris of the idea of a "preventive war," and the trivialization of potentially nuking a few Soviet cities was noted. Finally, balance was deemed necessary -- total openness of nuclear secrets is not demanded to not overdo the secrecy overall.**
Chafee in his introduction says Barth's book is important for at least two reasons -- it is a "fresh and persuasive presentation of the strongest arguments for determined maintenance of freedom of thought in a self-governing country like ours." Others have done that, but it's useful to provide it in the language of the current era, using immediate examples. Barth does this with various quotable statements and examples. Second, he "tells us what has been going on." He is a "sort of war correspondent," the war here on our civil liberties. You know, like blogs today.
Chafee has a bit of that in the book cited too, if not quite as smooth in its prose. One good line -- "History should be a jailer to enlighten us, not a jailer to shut us up." The Constitution "is the skeleton of a living nation," the words "for meeting the needs of our time," even if the history (as his account shows) is useful to know and understand. To finish the metaphor: "All of the Constitution grows while the life of a great community changes." A "living Constitution" is no epithet to him.
The "Americanists" of today, good intentions or no, who are disloyal to our basic values would not likely be a surprise to either of these two distinguished characters of our past. "Political discussion has been debased ... by shrill" people today as well, the "accusations of disloyalty" of only somewhat different sorts -- we even have McCarthy's double in Ted Cruz. This basic lack of maturity includes those who apparently think park closings are the most important aspect to the current governmental shutdown. Current voices, latter day Barths and Chafees, provide some light, but they will do in a pinch as well.
And, a special thanks to libraries and used book sellers from which I can get such items, even the ability to download Chafee's book for me not a great alternative to having them in my hands.
---
* The book cites a 1930s federal law that limits the power to divulge information, even if obtained by governmental wiretap to investigate and prosecute crimes. Given the actual text of the Fourth Amendment, it is suggested, if not stated crystal clearly, that wiretapping per se would be unreasonable. This seems unlikely today, but on principle it sounds sensible -- by nature, a wiretap is a "general warrant" that vacuums up everything, not very "particular" (to allude to the 4A) to what it picks up.
** The tendency of certain classified or otherwise secret material, including files on certain people deemed security risks in some fashion, to be leaked was also addressed. This was deemed unfortunate, but total openness here was not demanded. How the author would react to current data dumps such as Wikileaks or Snowden is an interesting question.
No comments:
Post a Comment
Thanks for your .02!