Government in Time of War

WE MUST BE VIGILANT TO PRESERVE THE FUNDAMENTAL GUARANTEES

By ROSCOE POUND, Former Dean of Harvard Law School

Delivered at Boston University Founders' Day Legal Panel on March 12, 1941

Vital Speeches of the Day, Vol. VII, pp. 375-376.

STUDY of American legislation tends to make one skeptical about emergencies which require the overriding of constitutional guarantees. I like to think of a statute of my native state which, as I remember it, ran something like this: Be it enacted that the golden rod, Solidago serotina, shall be the State Flower of Nebraska, and, whereas an emergency exists, this act shall be in effect from and after its passage. So far from the emergency justifying the measure, it has been known to be the case that the proposed measure has been made to justify the emergency.

Let us remember what was originally behind censorship. In the struggle of politically organized society with kin-organized society and later with religious organization of society for the paramountcy in social control, the dignity of the political sovereign was a very important consideration. Criticism of public officials and discussion of public affairs was thought dangerous to the security of political institutions. The dignity of the political organization of society was of itself something to be guarded. Any infringement of it might bring government into less esteem and threaten its existence. In a democracy where the force of politically organized society is wielded by a majority, it is easy for a majority to feel that what it does has sufficient justification in its doing so; that every one should hold to the views for the moment of the ruling majority and profess its beliefs. Anything less, it is easily persuaded, is subversive of the paramount social organization. It is as easy for King Demos to feel that want of conformity to his will on any serious subject is dangerous sedition as it has been for King Rex to hold the same doctrine. When, however, we come to consider censorship in war or emergency from the standpoint of the relation of the reasons behind it to the scope to be allowed to it. I submit we must make a distinction. We must distinguish between censorship to prevent military information and other information useful to the enemy from reaching the enemy, on the one hand, from, on the other hand, censorship to prevent criticism or discussion of governmental acts and of past military operations and the general conduct of the war. The excuse for the latter is that such criticism and discussion encourages the enemy. But where a democracy is at war the enemy must know that a ruling majority is behind the war and can derive no real comfort from the critical publication of even a clamorous but politically powerless minority. It is not as if an autocrat, holding down a people with an iron hand, was waging war and any published dissent indicated he was losing his grip and faced with revolution at home. When armies were dependent upon volunteering, there was some excuse for assuming that criticism of the government or of its conduct of a war might operate to hold back enlistment. No such ground can be set up where armies are raised by conscription. James Russell Lowell's "BiglowPapers," published during the Mexican War, probably had no effect whatever on the prosecution of that war by the government. But such publications would be dealt with drastically if extreme militarists could have their way today.

In the summer of 1863, when Lee was moving on Pennsylvania, Morgan was preparing to invade Ohio, Rosecrans was stalled in middle Tennessee, and Johnston was collecting an army in Grant's rear behind Vicksburg, there was an emergency if our government ever encountered one. But General Burnside's order suspending the Chicago Times for "repeated expression of disloyal and incendiary sentiments" was at once revoked by President Lincoln. In the summer of 1864, after Cold Harbor, after the operations about Petersburg seemed to have reached a standstill, when Sherman seemed to be making little headway toward Atlanta, and Early was in the Shenandoah Valley, a great political party was allowed to hold a convention which in its platform pronounced the war a failure. Joel Parker at the Harvard Law School was allowed to attack the legality of important items of the administration's policy. Throughout the Civil War the Committee on the conduct of the war examined generals and witnesses as to military operations, and newspaper controversies went on as a resultónotably the controversy between Meade and Sickels as to the second day at Gettysburg and between the adversaries of Meade and his partisans as to the whole conduct of that battle. After Shiloh, during the long struggle to get a foothold back of Vicksburg, and after Cold Harbor, Grant was persistently attacked in the press. But the attacks were without effect on his imperturbable pursuit of his duty, and neither helped the South nor hindered the military operations of the North. I have never thought that our conduct of the last war was aided by the imprisonment of Mrs. O'Hare or that it was impeded by the excited query of an obscure journeyman cigar maker as to why we were aiding Czarist Russia.

It is worth while to consider whether, instead of relying upon our own experience, we have not, since 1917, been going on ideas taken from Continental Europe, seeking a coerced outward unity, and importing a censorship which belongs to and has grown out of the exigencies of a very different type of government from ours. The problem is to find some adjustment between the war powers of the government under the Constitution and the constitutional guarantee of free speech and a free press. To the extreme militarist who would abrogate all guarantees in time of war and set up a military absolutism in the supposed interest of efficiency, one must answer that military efficiency in a democracy is not endangered by things that threaten it under an autocracy. Even in time of peace the autocrat is sensitive about criticism and public discussion of his acts. Neither in peace nor in war, as was shown in our CivilWar, need a democracy fear criticism or discussion. What gives aid to the enemy is something very different, namely, information as to armaments, movements, plans, the whereabouts of troops and ships of war, and the like. As to these things undoubtedly there is another story and a rigid censorship may be necessary in any time of serious war.

Only an overwhelming necessity can justify the setting aside of one of the fundamental guarantees in our constitutional polity. All that I have seen urged for so doing proceeds on an assumption that American government cannot wage war and stand up under criticism. But our government has proved it can do so in the crisis of a great Civil War. Moreover, a democratic government presupposes free criticism and free discussion. If the people, and that means any of them, cannot be suffered to criticize and grumble and argue pending war, does it not follow that they ought not to be suffered to vote pending war? But in the Civil War we held a Congressional election in 1862, and a Presidential election in 1864 with no untoward results.

Cautions doling out to the press of news from the front is no doubt a necessity of effective conduct of war. Suppression of information as to plans and movements, movements of vessels, and the like, is clearly necessary. Here is the legitimate field of censorship in time of war. American experience contradicts the assumption that more than this is required in the nature of things or that the very exigencies of war demand more.

In a time of rise and establishment of absolutism all over the world, in a time when the bigness of everything and the economic unification of the land continually add to the power of the central as against the local government and increasingly concentrate power in the person of the chief executive, we must be vigilant to preserve the fundamental guarantees on which our federal government rests. This means, in practice that the press must be vigilant for us. Only if the press is free to perform this function in our polity can we be sure that wars to maintain democracy do not in result become wars to establish autocracy.