Wednesday, February 02, 2005
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is a dander that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.the obvious weakness to the argument -- which was posed in 1949 by justice robert jackson in a dissent to an opinion which freed a fascist whose hateful speech had incited civil disorder -- is its possible application.
Jackson had just been a prosecutor in Nuremberg. And he was fearful that the kind of fascistic acts he had just prosecuted might become commonplace in the United States. He worried about an American version of the Weimar complex: If we do not crack down on Hitlerian types, he thought, our fate may be like that of Germany in 1933.i find it ironic that jackson's usage is now turned on its head to justify the further headlong american descent into plebiscitarianism, fear, militarism and dictatorship -- a current which was already well underway in america at jackson's writing and informed his thought. jackson was initially a new dealer, a liberal and what might today be misrepresented as a "judicial activist" (despite his testimony to the incompatibility of judicial legislation and representative government), who firmly believed that the principles of the republic and their fair application must be above the capricious will of the people. he worked for roosevelt assiduously -- even as fdr ploughed under the old republic of divided powers and began the elevation of the presidency to its current exalted, imperial air as the vehicle of the will of the masses.
but something of this changed in 1945-6, where his impassioned philosophical disdain of conservatism confronted the tragic consequences of plebiscitarianism unchecked. the man who wrote in 1943:
Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. ... If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein...soon found himself with new perspective.
Jackson was brilliant at Nuremberg -- notwithstanding some critics, such as Sir John Wheeler Bennett -- yet he returned from the trials a different man: the one liberal judicial activist, who had often sided with Black, Douglas, Murphy and Rutledge, had become profoundly cautious, a markedly narrow interpreter of the Bill of Rights, especially in criminal justice cases. He now more often than not sided with the Frankfurter wing of the Court, which took a generally restrictive stand in matters affecting national security and state criminal-justice procedures. This intriguing metamorphosis may well have resulted from his Nuremberg experiences -- his first hand perception of the melancholy events resulting in the destruction of the Weimar Republic and the rise of Nazism. It was his conclusive judgment that one of the major contributory factors was the failure of the Weimar government to crack down on radical dissenters and extremist groups -- which is why he exhorted his colleagues in his famous Terminiello dissent in 1949 that they beware lest they "convert the constitutional Bill of Rights into a suicide pact."jackson, it seems to me, was a modern man. and as a modern man, he was frequently inconsistent and often irrational -- especially under the duress of uncertainty. he was a man who believed that constitutional principles were above the people's vote, but worked for the diminution of the power of both congress and the court vis-a-vis the crisis presidency of roosevelt. he was a man who stood up for the freedom of the masses as individuals to act as they please, but came back from the trauma of postwar germany ready to jail men for their subversive words.
very rarely has the state ever really been so acutely threatened with its existence as it arguably was in jackson's heyday -- indeed, i can think of no such instance since. but the paranoia that becomes widespread among human beings in times of uncertainty, trauma and crisis such as makes that threat seem apparent often does arise. red scares, missile crises and other moments of belligerence and fear can by the power of panic in the imagination make the world appear to be at its end unless the most drastic and destructive actions are quickly taken without consideration.
today is certainly one of those times.
it seems to me telling that the notion of civil rights being dangerous did not arise until 1949. for most of american history prior, it was franklin's maxim that seemed most sensible:
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.but the english tradition of measured empiricism and calculated risk has, since the utilitarians, been slowly moved aside. the expression of and capitulation to emotion, under the influence of the romantic impulse, has taken on far greater acceptance than would ever have been considered appropriate in franklin's time. it takes great personal discipline and a social commitment to civility to learn from in order to educate oneself to put aside fear for what is reasoned to be the greater good even in calm and peaceful times. but much of that commitment, along with social commitment generally, has eroded under the assault of individual emancipation.
jackson, like many of us today, let his principles and reason, weakened by individualism, become subject to his fear.
the "suicide pact" has since been used by in an entirely different way -- not as an expression of the possible weakness of the constitution, but as an affirmation of its strength and the merit of our faith in it -- indeed, as a rejoinder to men who express jackson's 1949 opinion, denying the possibility of its conversion to a destructive avenue.
this opinion seems too willfully naive. but its sensible deployment is certainly as a rebuttal against hysterics ready to repeal the bill of rights at the first sign of trouble.
Consider, also, the 1999 opinion in Edmond v. Goldsmith by Richard Posner - the prolific author who doubles as Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, in Chicago. There, Judge Posner declared an Indiana "routine roadblock" provision unconstitutional. As he explained, it violated the Fourth Amendment prohibition against unreasonable searches and seizures.if the question is one of urgency in which evidence is determinant, then we have little need of constitutional travesties like the patriot act. september 11, with the perspective of time, looks increasingly like the very rare event is likely was. nations like israel, spain and britain have faced longstanding confrontations with well-financed terrorism and have seen exceedingly few events that rise to such a level.
The case was simple: The precedents forbade routine searches aimed at producing evidence of criminal activity, and the "routine roadblock" statute plainly fit the bill. However efficient or reasonable it might be for the Indiana police to conduct their routine roadblock searches, past decisions held that this tactic, under the Constitution, was off limits.
Posner was quick to add that in a real emergency, public safety might require the opposite decision: "The Constitution is not a suicide pact," he emphasized. But he also added, "no such urgency has been shown here." Like Judge Baer, Posner subscribes to the judicial inversion of the phrase - using it as a sop to those with security fears, rather than as a reason to curtail liberty.
is such an occurrence something we should abandon our open society in response to -- because we fear the wisdom of locke is a death pact? i think obviously not.
but such is the lack of restraint in the expression of fear in the individualist west that measured empirical response no longer seems sufficient. it is inadequate to seek bin laden with international police. such rational action is not proportionate to the raging fear that his actions unleashed. and the institutional inertia that was once placed to restrain us when we could not restrain ourselves -- the barriers the constitution attempted erect -- have been cut down by men very much like robert jackson.