Must America Change Its Theory of Civil Liberties?


By DR. DONALD MEIKLEJOHN, Associate Professor in Philosophy, College of William and Mary;

formerly member of faculty, Dartmouth College

Delivered before the Institute of Public Affairs, University of Virginia, June 21, 1940

Vital Speeches of the Day, Vol. VI, pp. 720-724

QUESTIONS of theory, in contrast with those of practical policy, enjoy in general a certain immunity from the pressures of immediate circumstances. A theory or a principle is supposed to be what remains constant and unswerving as the practice that fulfils it bends and turns to meet the needs of each new situation. A social theory such as the American Constitution is conceived as constituting the background and support for our changes in policy, as a permanent chorus calling the shifting efforts and fortunes of the individual actions on the stage of American life. And within the Constitution the status of the civil liberties—of speech, and press, and assembly—may seem similarly assured of permanent status.

There come times, however, when not only detail of policy but the general structure of social theory is called into question. Taken as a complex system of a number of social purposes, it may seem over-ambitious in its inclusiveness or over-delicate in the adjustment it hopes to achieve between these. In particular, a social theory such as ours may come to appear over-willing to temper its provision for national security by concessions to local autonomy or to individual self-development. And in such a situation we must face the question: Must we not change our theory, as well as our practice of government? A situation of this sort is upon us today, and I want, following my title, to consider this question of change with respect to our theory of the civil liberties.

The present situation confronts us with the question of theory because many people are coming to feel the civil liberties as at once our most precious possession and greatest weakness. We are coming to feel ourselves set off in sharp contrast to—maybe, destined to ultimate conflict with— theories of the state which deny the civil liberties and appear to gain by so doing. The gain may be momentary—and merely military but it is very real. We see our way of life— the free way as we call it—threatened by its very freedom; we see, more immediately, nations which have also treasured (at least in some degree) the civil liberties, caught far behind their enemies in effectiveness and decisiveness of action. So we, who are dedicated to a strong Union are inevitably asking ourselves whether in the present the civil liberties must be let go. At the same time, we cannot forget that in so far as we do that we take on the complexion of the social theories we resist. If we change, we give up American freedom— and if we don't change, we stand the risk of giving up America. This is, I think, the face the present situation offers to the majority of puzzled Americans today.

Now in general, though by no means unanimously, the American community seems to me to be leaning to the view that we must change our theory of civil liberties, that we must restrain speech and other forms of expression to bring them into line with the main demand for national security. "If we must choose," runs the general view, "between America itself and a free America, we'll save America first and then work back as we may to American freedom." Theurgency of the situation is such that the civil liberties may have to be entirely put aside.

This position is, I think, very widely held at present— although very notably not by many officials in the Federal Government, including the Department of Justice. And with this position I should like this morning to record a complete disagreement. We do not need, I think, to stop being free in order to be strong. We need not acknowledge the separation and the opposition of the national strength and the civil liberties. We do need, I think, to concede that American theory on civil liberties has not always been clear. There are notions in it which have tended to justify the idea that civil freedom and national power are essentially opposed. But running through our social theory has persisted a strain which has asserted, not opposition but mutual support and assistance. This is, as I shall try to show, the permanently valid element in America's theory of civil liberties. If this can be maintained, it must follow that in the present emergency we must not change but must rather promote as arduously as we may the theory and the practice of civil freedom.

America must not change—must not give up—its theory of civil liberties. What is that theory? Where do we find a clear and consistent statement of it? Where, in particular, do we find it stated in a way that shows it as at once inseparable from our deepest values and continuous with the rest of our conception of the national well-being? There are two historic formulations which must surely be considered here—the natural rights statement of Thomas Jefferson and the public utility statement of the late Justice Holmes. Neither will, I think, completely answer our quest, but each offers considerations which cannot be ignored.

The Jefferson formulation of civil liberties goes back to the natural rights philosophy of John Locke. "Consider," he wrote, "a small community of men living under laws of their own making. How shall rights and duties be assigned —which belong to individuals and which to the state? Clearly, individuals have the right to carry on what they can do for themselves, as the whole group properly administers what requires joint activity. Now the capacity to think and to speak is an individual capacity. This has been by God fashioned and bestowed upon man, and so thought and speech are to be left strictly to individuals, to develop and express as they see fit." This is the theme of the revolutionary declarations—this appeal beyond any social authority to establish the sacredness of individual rights. And as we attempt to formulate our theory of the civil liberties, it is certain that we must take account very seriously of this original American Declaration of the Rights of individual Man.

But taking the natural rights statement seriously inevitably takes us beyond it. Taking seriously the business of speech and thought and civil association carries us very rapidly to awareness of their essentially social character. Whether bestowed by God or not they arise from human association and depend upon that for their exercise. Exceptas communication among individuals they are empty. In no complete sense are thinking and speaking to be numbered among the activities which individuals can carry on by themselves. We cannot, accordingly, regard as a final statement of our theory of civil liberties one that asserts them as rights inhering in the nature of individuals.

A second difficulty with the natural rights statement—and one that bears immediately on our present problem—is the discontinuity it entails between the various demands which social policy must meet. It asserts individual rights in terms which many liberal justices of the Supreme Court have considered too conclusive and intractable to admit of the sensitive balance required in social judgment. Such judgment, as Holmes and Brandeis have argued, is always weighing of different demands within a common medium, rather than a flat assertion or denial of an inalienable right. A similar attack on such rights is advanced by Zechariah Chafee in his "Freedom of Speech." "If you define the situation in terms of rights," he says, "the agitator asserts his constitutional right to speak, the government asserts its constitutional right to wage war. * * * The result is a deadlock." If the matter is stated in terms of rights of individuals, we have a hopeless cleavage between civil liberties on the one hand and the claims of government on the other.

These objections to the natural rights position are, I think, conclusive against it as a full statement of our theory of civil liberties. The office it assigns to those liberties is too narrow and involves irreconcilable conflict with other social purposes. Yet its merits are not to be denied. Whatever we put in its place must take account of the value of individual protest and of being decisive and firm in statement. In neither of these is a complete theory to be found, but to such a complete theory both are essential.

I turn accordingly to the second account of the civil liberties which has been current in American thought—to what I shall call the public utility account of them. It is not surprising, after the difficulties of the earlier view, to find this second one taking its basis in social rather than individual values. To society's well-being, it is argued, the discovery of truth is of very great importance. And to the discovery of truth freedom of discussion and assembly are indispensable as means. The civil liberties are here upheld in virtue of their utility—their conduciveness to the general welfare. This is the view held, as I understand them, by Holmes and Brandeis and developed in great detail by Chafee in his "Freedom of Speech."

I am going to follow briefly along the argument of Chafee's book and to criticize as well as applaud its argument. I should like at the start, however, to urge the book upon all Americans as required reading in the light of the present situation. Written in 1920, at the height of the repressive activities following the last war, it is a stunning rebuke to the agencies, whether popular or judicial, which rushed to discard American traditions of civil freedom. With painstaking detail Mr. Chafee relates the abridgment of free speech in American war-time policy and in the postwar sedition and anarchy laws, the deportation of aliens, the expulsion of Socialists from New York's legislature, and the post-war restrictions on teaching. With his underlying statement there is as I see it, much issue to be taken, but the practical lessons he teaches are of immense value.

The statement which Chafee advances, following Justice Holmes, is that the civil liberties are to be protected because they are the only means by which the truth can be secured. Only by unrestrained exchange of ideas and opinions in themarket-place of discussion can that winnowing and sifting occur which is the condition of a true conclusion.

And as such soundness of social viewpoint is of great importance to society's well-being, so on the ground of the latter the civil liberties must be assured. The basis is thus made social rather than individual. And again, as the pursuit of truth is, though very important, not the only element in social well-being, that pursuit may be limited and checked if there is a clear and present danger to other social values. The public welfare is here taken as a collection of values of which the free search for truth is one; and this must be allowed full scope except as it offers serious and immediate threat to the attainment of others.

The first consideration in this view is, as I have said, the social well-being, and accordingly we are at once impelled to ask whether Mr. Chafee takes adequate account of the claims of individual freedom. There is indeed no doubt that he attempts very carefully to do this. The concrete explanation of his statement takes him through the leading cases arising in American courts under the Espionage Act of 1917 and its more stringent supplement, the so-called Sedition Act of 1918. Through these cases he is concerned to distinguish between the Holmes-Brandeis interpretation of public utility and the very loose construction put upon it by most American courts during and after the war. The loose construction, which he attacks very vigorously, saw the civil liberties as completely subordinate to the demand to national security. It amounted to the assertion that speech having any tendency, immediate or remote, to damage the national strength, should be put down. The relation of civil liberties to the national welfare was accordingly, Chafee contends, so conceived as to deny to the former any real importance. For the notion of a "bad tendency" is so indefinite that under it any and all restrictions on speech were justified, to a degree not paralleled in Anglo-Saxon history. In times of stress, it could be argued that any divergence from the accepted national policy was a bad tendency and the record of the 2,000 cases under the Espionage and Sedition Acts amply bears that out.

In contrast with this vagueness and consequent illiberality of the bad tendency criterion, says Chafee, stand the test of clear and present danger as phrased by Justices Holmes and Brandeis. This defined in terms too sharp and clear to be ignored the conditions under which speech and press must be protected. There are no inalienable rights to these—they must be balanced against the other purposes of government. But they must really be weighed—they must count. Only if there is a "clear and present danger that they will bring about those substantive evils which Congress has a right to prevent" can they be restrained. Thus there may be a limit to vocal or published opposition to the recruiting service— if it seriously and immediately threatens the nation's wartime effort. But statements lacking such proximate connection with national dangers must be allowed opportunity to contribute to forming a valid and many-sided public opinion.

The public utility statement, as defined in connection with the test of clear and present danger, is accordingly held by Chafee to afford genuine protection as well as justification for the civil liberties. "It does not permit the procedure," he would claim, "which Justice Stone recently attacked, of oppressing helpless political minorities in the name of a vaguely defined public good." Chafee's argument is indeed strong and compelling, yet I question whether he has made his point. His statement seems to me blurred where it should be clear and abstract where it should be concrete. What is more, it cannot, as I see it, carry through its own argument.

The central thesis of the public utility view is that truthon social matters is very valuable to society and that only by unlimited discussion can truth have its proper chance in the competition of ideas. "Who ever knew," runs Milton's question, "truth put to the worse in a free and open encounter?" But this is hardly more than a bad analogy with a questionable economic axiom. Is there such a natural Ricardian balance of competing opinions in the market-place of discussion that from it issues automatically a full attainment of truth? Can a totally unregulated bargaining in ideas produce the desired end any more certainly than its faltering economic counterpart? Aren't large combinations and honeyed inducements at work incessantly on the public mind in variously subtle forms of force. Is the encounter—can it be—free and open? I mean here not to offer a remedy but only to attack the Chafee statement in terms of its own premises. And I find it very difficult to defend unlimited discussion simply on the ground that it is the only way to all the truth.

In the second place, the "truth" of which the public utility view speaks is certainly in the main of a rather special variety. The opinions which are involved in the civil liberties are not in the main assertions of fact such as those concerning the motion of the sun or the evolution of species. These may be involved and to these the Chafee view seems properly to apply. But it is more often truth in the making that is at stakes—an opinion urging itself as a candidate to become the basis of social policy. In other words, the issue in political controversy is not, as a rule, the suppression of the search for abstract truth, but the checking of efforts to swing public opinion in one direction or another. Such truth is not externally related to social well-being as a means to it —it hangs on the balance of the conflict in that, as the conflict is a practical one, either side can in a very real sense, make itself true. The real issue is thus whether one side or the other or both are to be permitted that opportunity.

There is, finally, an objection to the Chafee view which concerns its application as well as its general principle. This is, that it does prove very hard to apply with real decisiveness. In contrast with the stubbornness of the natural rights it offers only the precept to wait and see if a clear and present danger is upon us. Nor are these terms made fully precise. How clear the danger must be, how near, how serious, just what it is that is being endangered: on none of these is the statement fully complete, and this is no doubt in part why we do find Chafee taking sharp issue on occasion with Justice Holmes, notably in the case of Eugene Debs. Granted the very great service that Chafee has done in distinguishing the danger-test from that of remote bad tendency, the fact remains that the danger-test itself leaves very equivocal the status of the civil liberties. They must, we are told, weigh very heavily in relation to the other purposes of government —but the inclination of the balance is not more exactly revealed.

With this I bring to a close the negative part of this paper, the discussion of the strains in our theory of civil liberty which seem to be unacceptable. Now I must concede that these two statements are the ones that have received the most explicit attention in American thought. The early statement is too uncompromising in its individualism, the later too indefinite in its general formulation and too external and abstract in its relation of the civil liberties to society's well-being. Accordingly, we may well ask, mustn't America indeed change its theory of civil liberties, quite independently of the needs of the present situation? If the available statements of that theory won't do, must not the theory itself be given up? Conversely, if we are determined not to give it up, can we find, in less explicit and official a form, yet another statement of the civil liberties which has really been effective in molding our democratic way of life?

You will recall that I defined our problem at the beginning of this paper as that of finding real continuity between the national welfare and the civil liberties. The other statements considered both appear to me to fail in that search. Natural rights are a defiant assertion against state authority; the public utility position has been in very large measure a protest against natural rights. And in this business of denial and counter-denial the positive connection between the civil liberties and our national strength has very largely failed of recognition.

The connection has not, however, ceased to exist. And it is revealed very clearly when an occasion such as the present awakens us to the sense of a common peril, a common urgency. What we find, in our present troubled state, is a resolution that we shall not relinquish our procedure of determining American policy by what Americans want—by what is the common sense of American opinion upon American problems. I want therefore to offer as the true statement of America's theory of civil liberties the defining of them as conditions or ways of forming the public mind, the public opinion, of America. They are the procedures by which—in which we become aware of common interests and formulate common policy. They are the rules governing the coming of society to a decision. Correlatively, they do not apply, except secondarily, to the carrying out of decisions by society —their concern is with opinions, with advocacy, and not with actions. And in so far as speech and thought are elements in the formation of national policy they must, I think, be entirely free.

The one demand we are all feeling is that we as a nation achieve strength and decisiveness. And this has, I think, essential connection with the civil liberties as thus defined. For a community cannot achieve strength except as its decisions express the opinions, the wills, of all its members. When, in hysterical fright, or excess of caution, it cuts off any of its members from active association in the discussion that goes to form the common mind, it deprives itself of potential strength and also wastes itself in activities of repression. When, on the other hand, it admits to public debate any and all who would contribute to the joint decision it achieves a scope and balance of attitude that is neither upset by danger nor overcome by novelty. It has then behind it the united effort of all who participate. It has within itself the resourcefulness that comes from the variety of its members and the plasticity and toughness that arise in the resolution of their differences. To the forming of such a public mind the preservation of the civil liberties, equally, for all, is indispensable.

It is indispensable, not so much because it may approximate the truth that Chafee speaks of, but because it preserves to the whole community the interplay of majority and dissenting members. To deny civil liberty to any person is to be in the most fundamental sense uncivil to him—to deprive him of free participation in the common will. To shut up the anti-war or anti-conscription speaker is to deprive society of the chance to hear him quite as much as to take from him the right to speak.

I can't help remembering that Max Lerner is to speak to you tonight and that among his most pointed denials in his recent writing is his attack on the notion of a general will— a general mind. His argument is in effect to point out how often we Americans are in conflict with one another. But he fails, I think, to take account of Americans' capacity to settle their differences in terms of a common procedure and to actin unity once a decision has been reached. And in the reaching of a single decision and acting on it we have all that is required for the notion of a common mind. There is a single program and a single activity, though any number of men may participate. In that sense it seems to me clear that America has—or is—a common will. As an actor in its own right it does have a faculty of decision analogous with that of an individual. And in further analogy with an individual it has a procedure to follow if it is to keep its mind informed and steady and fully aware of itself and its world.

I am sure that many will greet this statement with suspicion, if not as a devious Greek scroll adorning one of the many Fifth Columns round and about. It may seem like that elevation of the state above the individual which commencement orators up and down the land have been denouncing as the essence of totalitarianism. But I think that the statement is genuinely that of the Bill of Rights. There we have set it down that Congress shall pass no law abridging freedom of press or assembly or speech. These are protected without qualification, in contrast, very specifically, with property. But they are not asserted to be natural or inalienable rights. In the last analysis, the Constitution leaves it up to the federal government—to Congress and to the Supreme Court—to determine what does abridge these freedoms. In this sense the state is and must be "prior" to the individual. The trouble with totalitarianism is not this elevation of the state but its conception of the state as the rigid and doctrinaire expression of an elite minority. And the democratic state can and does, in the words of Justice Cardozo, effect, even as religion does, "the submergence of self in the pursuit of an ideal, the readiness to spend oneself without measure * * * for something intuitively apprehended as great and noble." And so I think it fully in accord with American tradition to offer this account of the civil liberties as forms of participation in a common intellectual process.

A second objection which is generally raised to so intellectual a statement is that it puts the business of public discussion on too lofty and rational a plane and leaves it unrelated to action. It appears concerned merely with talking for talking's sake. This is a common complaint against college professors and is in very large measure justified. We do enjoy thinking and talking for the fun of it, and very delightful fun it is, too. We want it, for ourselves and for our students. But we surely can't make fundamental sense of it if we can't see it finally taking form in activity which we actively pursue. We can't talk unless there is something to talk about, a common problem to consider, a common solution to be achieved. Talk arises from action, leads to action, and out the other side. Talk is a leaning toward action, a trying out in advance of the trial balloons of thought of the various participants in the discussion. As Justice Holmes once said in a classic dissent, "Every idea is an incitement" to action. Talk makes sense only as it leads to undertaking by the whole group of the common policy which they have all been engaged in formulating.

Conversely, this statement is concerned to protect only speech and discussion, in distinction from action. More exactly, it is concerned only with that discussion which genuinely plays into the reasoned forming of public policy—immediate and passionate incitement to riot does not fall within its terms. For such incitement is action just as surely as the bloody violence that follows upon it. And so, equally, is the doctrinaire marshalling of armed or semi-military organizations to reflect without question the commands of a foreign or a domestic leader.

The classic illustration of the qualifications on free speech is that of Justice Holmes in the Schenck case. "The most stringent protection of free speech would not," he says, "protect a man in falsely shouting fire in a crowded theater, and causing a panic." Holmes uses this in terms of the test of clear and present danger. But it seems to me clear that the shouting would be equally reprehensible if it were true— what is really essential in the situation is such ordered discussion as will most effectively meet the demands of the situation. The paramount concern is not the truth or falsity of the fire-cry, but rather the inclusion of that announcement in an orderly procedure for getting the people out. Utterances that excite or terrify cannot fall within the protection of freedom of speech.

Nor is this conception without backing in the opinions of American judges. The view of Learned Hand, in the Masses case during the last war, distinguished sharply between "agitation, legitimate as such" and "direct incitement to violent resistance." The distinction is not, indeed, between speech that urges action and speech that is merely descriptive, or predictive, or "academic." Rather, it is between the communicating of an idea or point of view to another mind and the direct stimulating of the other man to action. If the listener acts on his own volition, the speaker is not responsible even though he supplied ideas that played a part in that volition—as Chafee says, "A speaker is guilty of solicitation or incitement to crime only if he would have been indictable for the crime itself, had it been committed, either as accessory or principal." And that this would meet the demand for definiteness is affirmed in Chafee's assertion that "the tests of criminal attempt and incitement are well settled."

Here, then, we do have a formulation of civil liberties which is continuous with the assertion of national effectiveness and which is, within its terms, as definite and peremptory as the declaration of natural rights. I cannot go on as I should like to indicate its application to specific procedures in time of war or peace. But I do want briefly to suggest its implications for the part the government should play with respect to civil liberty. We often think of government as obligated mainly to refrain from checking that liberty, or with hindering other hindrances to it. Those are of course very important obligations, and under them we need to be eternally vigilant against over-hasty wartime legislation or, for example, mob compulsion of official tokens of patriotic expression. On those topics the representative of the Department of Justice can speak with far more authority than can I. What is further needed—and this is most important—is positive promotion by government of full and free participation by all in open discussion. This carries with it, of course, immense responsibilities in the field of social and economic policy. "Men don't talk much, sitting by the roadside" after being driven off their land, as Archibald MacLeish has very vividly said; they don't talk well if they are pursued by economic insecurity or by the sense that society is as a whole against them. To promote the civil liberties means to so reduce the strains and pressures in the economic system so that deliberation on it can really occur. More narrowly, such promotion means the securing and the protection of all shades of opinion. It means the bringing to the open forum of all opinion and especially those which dissent from the accepted national line. If we believe in democracy, it is not this open discussion we have to fear, whether by pacifists or communists or fascists. They must be heard—and it is only as they are not heard that they can really threaten us. There aretimes and topics, notably those of war, which may occasion an abbreviating or shortening of discussion as the need for immediate action requires it. As a community, we cannot insist upon an indefinite extension of the reflective process when the time for discussion is past. But if the matter is put this way, it still remains true that it is the process of

thoughtful activity by the community as a whole that is the significant thing. Action to preserve the country's being has meaning only as it preserves the country as a thoughtful and deliberative human enterprise. And a theory of civil liberties which sees them as essential elements in that enterprise cannot and must not be changed.