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There is a perfect example of where the Court, considering all the policies, declares what is the real meaning of the Constitution and the acts of Congress.
That is not to suggest in the remotest, and I did not then suggest and I would not now say, that the Supreme Court has the right to substitute itself for Congress in declaring national policy.
Senator WATKINS. It has been said, I know some of the critics have said you have gone so far as to say the Supreme Court can actually legislate.
Mr. SOBELOFF. I have never said that. On the contrary, let me say, I have said the opposite.
Senator WATKINS. Go ahead. I was going to ask another question, but I would rather have you answer that first.
Mr. SOBELOFF. Well, reference has been made here to a speech that I delivered at the Ninth National Conference on Citizenship here in Washington at the Statler Hotel in September 1954. Judge Parker was the presiding officer of that conference, and present were six members of the Supreme Court of the United States, and many other judges and lawyers, and about a thousand other people-hardly a place for me to voice an heretical doctrine.
I said the very same thing that I said before the fourth circuit, and I gave recognition to the fact that judges have no right to disregard the separation of powers. I said the very opposite of what is attributed to me.
Let me read you a paragraph:
"The rule of the majority' "I was speaking now about freedom; the title of the address is "Who Guards Our Freedoms?"
The rule of the majority is itself subordinate to the overriding restrictions of the Constitution so that a majority shall not oppress a minority. The Constitutional Convention went one step further. It ordained a separation and distribution of the Federal powers among the several departments of Government so that each would to a degree restrain the others and none could become so powerful as to threaten the people's liberties. This feature of our Government, though it concerns structure, is an essential check against abuse of power. The principle it embodies is currently under active public discussion and appropriately has been made a theme of this conference. It is one that needs to be continuously reaffirmed and revitalized.
And I go on to discuss how, in the totalitarian governments, they disregard the separation of powers, and I attribute many of the woes and oppressions under that form of government to that disregard.
So I say implicit in everything that I have ever said is a recognition that the courts have their function, but it is a limited function as the courts have always recognized. I have never suggested that courts are the legislative branch of the Government or that they can, to suit themselves, legislate.
Senator WATKINS. As I get it from your statement on this quotation I just read to you, you are reciting what has actually happenedMr. SOBELOFF. Exactly.
Senator WATKINS (continuing). In the Supreme Court over the years.
Mr. SOBELOFF. Exactly.
Senator WATKINS. That in determining some of these questions, they are in effect determining national policy with respect to thatMr. SOBELOFF. When the Court, for example
Senator WATKINS (continuing). Within the framework, of course, of the Constitution.
(The speech Who Guards Our Freedoms? is as follows:)
WHO GUARDS OUR FREEDOMS?
The Honorable Simon E. Sobeloff, Solicitor General of the United States
Solicitor General SOBELOFF. I think I can say with all genuineness that it is going to be a tough assignment to follow what we have just heard.
The presentation that Mr. McNees made not only raises a question, it points to the answer.
It is fitting that this annual Conference on Citizenship is held in connection with the anniversary of the adoption of our national Constitution.
Our purpose in meeting here is an important one and is basically twofold. We are here to renew our vows of fealty to the great heritage which our Constitution embodies, and to counsel together on the means of securing its blessings for ourselves and our posterity.
This conference owes its existence to the joint efforts of two great American interests the concern for public education, represented in an unofficial body, the National Education Association, and the concern for the orderly and just administration of Government, represented by the highest law-enforcement officer of the Nation. The union of these two expresses in large measure the faith that the American people have in their Government and in themselves.
A friend to whom I mentioned that I had been honored with your invitation to speak from this platform asked, "Is this another conference where people get together to say the same things year after year?" The question, though perhaps asked facetiously, raised a point that merits serious consideration. I answered his question with a series of questions: "You ate breakfast yesterday; yet you wanted breakfast again this morning. Why? You bathed and shaved yesterday, and the day before, and yet you did the same this morning and will repeat the performance tomorrow and for many tomorrows. Why? You played golf last weekend, yet you plan to play again this weekend. Why?
The answer is that living is to a large extent a repetitive process. Mankind gets so weary of routine that we tend to forget that some of the most solid satisfactions of life come from acts that are done again and again in the normal course of living, and our needs are not satisfied by a single act. We are not like the Chinese philosopher, who while visiting this country was invited to see a horse race and is reported to have declined, saying that he did not care to go because it was already well established that one horse can run faster than another. This man could not have been serious, and was probably slyly pulling someone's leg. We all derive enjoyment and stimulation from hearing old songs, attending familiar operas, rereading favorite books, and looking at well-beloved pictures; yes, and watching horse races.
However, this may be, we know that learning and teaching involve constant repetition. One of the leading students of our western social and political institutions, Crane Brinton, professor of history at Harvard, has often remarked that politics is not a cumulative science, that is, that most of the important lessons of statecraft have to be relearned by each succeeding generation.
In a sense this is very discouraging, for it reminds us what high tuition fees mankind has been called upon to pay again and again in the series of repetitions that constitute human experience. However, the idea has its hopeful side: It offers assurance that the problems of our day, baffling and frustrating as they seem, are in their essence not new but have occurred in one form or another in earlier times; yet mankind has managed somehow, albeit at enormous cost, to meet and overcome them..
It is one of the most impressive facts of American history that the men who met at Philadelphia to write a constitution were among the more conservative members of their respective communities; yet from such parentage sprang one of the most liberal documents of government ever penned. Moreover, in 1787 there was no universal suffrage and the Constitution was ratified in the States not by vote of the general population but by delegates selected by voters who themselves were limited to the propertied classes. Nevertheless, to make the Constitution acceptable, these same people exacted a promise for a series of amendments which would specifically guarantee the rights of individuals and reserve rights to the States.
Historically, there has persisted in this Nation a continuous and unflagging concern with these rights of local governments and of the individual, and their vindication has been a major preoccupation of both Federal and State courts. Full appreciation of our Bill of Rights cannot be expected from one who is unacquainted with the long and painful history which gave it birth. Its provisions are not abstractions spun from the brains of political theorists, but stem from vivid experience of the founders of our Nation with excesses committed in English criminal prosecutions and other oppressions.
What distinguishes the Constitution we venerate from other documents of state? Lofty ideas of government were not newly discovered at Philadelphia. Philosophers through the ages had formulated them, and rulers had occasionally honored them in practice. But nowhere and at no time had they been gathered together and comprehensively embodied in the basic law of a nation with the aim of protecting it by every known device against despotism. Nowhere do we find so careful an enumeration of limitations upon government, recognizing that the citizen has rights which government itself may not invade, and that the law is above the officers of government as well as the governed.
The rule of the majority is itself subordinated to the overriding restrictions of the Constitution so that a majority shall not oppress a minority. The Constitutional Convention went one step further. It ordained a separation and distribution of the Federal powers among the several departments of Government so that each would to a degree restrain the others and none could become so powerful as to threaten the peoples' liberties. This feature of our Government, though it concerns structure, is an essential check against abuse of power. The principle it embodies is currently under active public discussion and appropriately has been made a theme of this conference. It is one that needs to be continuously reaffirmed and revitalized.
The barbarism which flared in Germany for a decade or more, and now the violence and wretchedness in Russia and the satellite countries behind the Iron Curtain, are daily reminders of the degradations and calamities that come inevitably from unbridled power. The Constitution's framers knew that all power-even in the hands of good men-tends to become unbridled and arbitrary. Nothing influenced the architects of our Nation so powerfully as the determination to check and limit power and subordinate it to law. The idea is embodied in the words which appear above the entrance to the Supreme Court: "Equal Justice Under Law." These words summarize a prime objective of civilized society-the achievement of justice through rational, dispassionate, even-handed application of law. That is not something rigidly mechanical but rests upon deep comprehension of the human and moral values involved judg
There are implanted in the nature of man both a deep passion for freedom and a fear of it. When hard pressed, economically or psychologically, men can, as we have seen, become confused and deluded. They then may forget the lessons of history and think of their liberties as less desirable than their security. They may even welcome submission to despotism in their flight from the uncertainties and dangers of freedom-for there are alarming uncertainties, and treacherous dangers. After all, in the long history of man, freedom has been his possession for a comparatively short time. The understanding of freedom requires a maturity which not all have achieved. The psychology of slavery is not easily extirpated. This strange ambivalence in human nature-the desire for freedom and the dread of it, the yearning for freedom and the flight from its burdens and obligation-is played upon by men who lust for power.
Liberty, as has often been pointed out, is not something that we can win once and for all time, and having won it sit back and rest and enjoy it. It is like a vineyard that needs to be cultivated and constantly tended. If neglected, it can become overrun by noxious weeds, and there is always danger from the little forces who spoil the vines, the vines that have tender grapes.
The function of educational institutions in our form of government is the serious one of training citizens, native and foreign-born, in their youth and in their adult years too, to understand both freedom and slavery, and to prize freedom so that they will use independence with full realization of their community responsibilitiees. In this task the free press, radio and television are auxiliaries of school and college.
A lesson that must be taught again and again and yet again is that subversion and tyranny do not suddenly engulf a nation. Tyranny does not present itself in its true form, for if it did it would have little chance of succeeding. It insinuates itself gradually, proceeding from small beginnings, and not at first
against the powerful but against the weak and the despised. The practices of despotism must be resisted and checked early before they become established. The constitutional protections asserted by a Communist or a gangster today may tomorrow be the necessary shield of an honest and responsible man. This is not to say that we should be soft-headed in dealing with treason; but it is important not to confuse honest dissent with disloyalty. We must strive to the utmost to overcome and prevent misuse of constitutional rights by unworthy persons without, however, losing faith in those rights. If we tolerate usages destructive of freedom, if we put men in fear so that they dare not exercise the rights of free men, we cannot be sure that the process will stop with the first victims. These may be persons who richly deserve their fate, but the circle tends to widen and include others indiscriminately. One of the sagest of the Founding Fathers, Benjamin Franklin, said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." National security and the preservation of individual rights-these two-can and must be achieved together. The goal is to survive as a nation, and as a nation of freemen. We cannot hope to have freedom if a foreign tyranny overwhelms us; and it is equally certain that we shall not have freedom if we destroy it ourselves. If in our pursuit of evildoers we ourselves pull down the edifice of freedom, wherein is our triumph?
Mr. Justice Jackson, when he was Attorney General said: "Now some persons tell us that at last we are caught in a dilemma; that if we preserve our liberties we leave ourselves vulnerable to those who would take them from us; that we must choose between freedom and safety. Such persons misunderstand the meaning of freedom. Their dilemma is an imaginary one and comes of our superficial knowledge of the history of our liberties and the meaning with which generations of statesmen and jurists have endowed them. They regard liberty as a luxury which they would hang onto as long as possible; but if necessary they would give up some of it to obtain greater safety. Only those who regard liberty as a luxury could see it as a weakness, and fear for their safety. I prefer to regard liberty as a power and as the basic source of strength without which men cannot survive. Liberty is not a luxury to be enjoyed, or a theory to be defended; it is a weapon to be used."
We hear today many strident and impatient voices. There are those who cite instances in American life where we have failed to live up to our lofty traditions. Of course, we have not been perfect, and it is not possible to achieve perfection in a single bound, or perhaps ever. Democracy is an unfolding process, not a static condition. It is an ideal toward which human beings with all their weaknesses and limitation strive. Mr. Justice Frankfurter expresses the idea for us. "Democracy," he says, "is a beckoning goal, not a safe harbor. * * * It is an unremitting endeavor, never a final achievement."
On the campus of the University of Chicago, Chief Justice Warren a few days ago dedicated the American Bar Center as an instrument of American lawyers for research looking to the improvement and development of the law and legal institutions. As spokesman for the American bar, the Chief Justice uttered a sentiment shared by all Americans who love freedom: "We are determined," he said, "to create the climate essential to the constant improvement of the text of our law and its application to the affairs of people."
The climate to which he referred must be found in the hearts of the people themselves. The Chief Justice formulated his ideal, which is the common ideal of good Americans, in these words: "Every political concept is under scrutiny. Our American system like all others is on trial both at home and abroad. The way it works; the manner in which it solves the problems of our day; the extent to which we maintain the spirit of our Constitution with its Bill of Rights, will in the long run do more to make it both secure and the object of adulation than the number of hydrogen bombs we stockpile."
Let us not forget that the climate of freedom, mentioned by the Chief Justice, relates not alone to political operations. It is not to be measured in court decrees merely. Equally important ingredients of this climate, determining whether it shall be benign or otherwise, are the attitudes of people in their everyday life, in their relations with their neighbors. When we appraise the climate of freedom it is pertinent to inquire-what examples do people set for their children in the treatment of those who differ from them in religion or race or culture? Do they in practice set up categories in citizenship that draw false distinctions between native and foreign born, in violation of the spirit of our Constitution which recognizes no second-class citizens? How far do people treat others with justice and consideration in private dealings? And generally, are they willing to accord to
others the right and the opportunity to be fully what they are without fear of coercion of molestation if they avail themselves of their legally acknowledged freedoms?
In his inaugural address, President Eisenhower spoke these simple but magnificent words: "Whatever America hopes to bring to pass in the world must first come to pass in the heart of America."
No thinking person can deny the gravity of the times; no feeling person can fail to be concerned. Patriotic Americans cannot be complacent. In the course of our national history we have sometimes faltered, yet we have always returned to our ideals. Soberly considered, it is to be doubted if anything in modern experience goes to the extreme of the alien and sedition laws of a century and a half ago; but freedom survived because these restrictive measures, ill conceived shortcuts to security, found no response in the true heart of America. Similarly, I am convinced that departures in our immigration laws from the traditional role of America as a haven for the oppressed will before too long be corrected, as the President has urged. While recognizing the good motivations of those who enacted the present laws, I respectfully submit that these provisions are working unnecessary hardships without compensating advantage to the Nation. They go far beyond the needs of security or economic protection. When realization of this enters the heart of America the American conscience will bring about a restoration of the wiser and more beneficent policies of an earlier day. These policies were not only more generous and humane, but they served the highest interests of the Nation. People of diverse antecedents who were afforded the opportunity responded by adding their genius and talents, their labors, and devotion to the common store, to the enrichment of the cultural pluralism which is both a source and a distinguishing mark of America's greatness. These things, too, have a bearing on the climate of freedom.
We may well ask ourselves, in this time of peril, who guards our freedom? Standing guard over our freedoms is no part-time job, to be pursued intermittently. If the dikes are allowed to fall into disrepair and the sea enters, the devastation cannot be averted by resolving suddenly to man the dikes again. There is no such thing as arranging a temporary dictatorship. The thoughtless persons who speak of averting national dangers by surrendering some of our liberties to save the rest are suffering from a fatal illusion. Once a country yields to such allurements and takes the deadly plunge it can no more count on reversing the process than a man who has jumped out of the window can change his mind and hope to halt his descent and be restored to his former safety.
Who guards our freedoms? The patriotic men whom we specially honor tonight have suffered wounds for the preservation of our cherished freedoms. These citizen-soldiers were selected for far heavier sacrifices than other citizens are called upon to make. In every generation on many farflung fields thousands like them, young men and women too, have freely given themselves to defend and preserve our Nation and its liberties. We glory in their gallantry; such as these ennoble a nation.
We cannot, however, rely solely on their sacrifices to shield the Nation's freedoms. The rest of us have as citizens correlative duties which are inevitable and inevasible. The roles of the soldier and the citizen are interrelated and mutually dependent.
Who guards our freedoms? Not the courts alone; in this area their function, which I hold in reverence, is the limited one of deciding what is constitutionally permissible. Strive as they may to square law with justice, by and large theirs is not the duty or the right to censor the wisdom of the policies made by Congress or legislatures, or even in many instances the acts of administrators. Although the courts have on numerous important occasions made historic contributions to freedom's cause, informed laymen as well as lawyers know that courts are not empowered to set aside every law of which they disapprove, even when they feel that it may lead to injustice. Not everything that is unwise or unfair is necessarily unconstitutional. We may, and often do, chafe when courts decline to exceed the limits assigned them, but experience with so-called people's courts in certain other lands, where judges are released from the restraints of law and are free to follow arbitrary notions of justice, should provide ample warning of the dangers of confusing the legislative function with that of adjudication.
Nor should we expect Congress alone to be the guardian of liberty; nor may we look to the officers of the Executive as its sure guardians; nor are all officers of government together the sufficient protectors of our freedoms. No automatic assurance of freedom and justice is to be found in any government