The Power of Democracy
IT CAN MEET ALL CONDITIONS
By FRANCIS BIDDLE, Attorney General of the United States
Delivered before the Annual Convention of the California State Bar Association Yosemite National Park, California, September 18, 1941
Vital Speeches of the Day, Vol. VIII, pp. 5-9
AS you well know, there have always been timid souls who doubted that democracy could be made to work when disaster threatened. Their voices have been heard in every great crisis, domestic or international, through which this country has passed during more than one hundredand fifty years of national life. History has been kind to them and most of their gloomy forecasts have been soon forgotten. At this moment their voices are raised again to express the familiar fear that the very measures essential to defend democracy may in the end prove to be democracy'sswiftly throughout the southern states. The measures which he took to preserve, protect, and defend the Constitution in that critical hour are familiar history. I need hardly remind you that it was as chief executive and commander in chief of the armed forces that President Lincoln, among other emergency measures, called out the militia, issued a call for volunteers, increased the army and navy, ordered the blockade of southern ports, and proclaimed the emancipation of the slaves. When strikes flamed into mob violence threatening paralysis of railroad traffic in Chicago in 1894, President Cleveland sent troops to restore order. To the contention that the measures taken were beyond the scope of executive power, the Supreme Court later replied: "There is no such impotency in the national government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws." Within recent months, here in this state and on the Atlantic seaboard, the same fundamental powers have been invoked to restore strike-bound plants to their necessary place in the program of national defense.
Throughout our history these great reserves of constitutional authority have been drawn upon with courage and vigor in the protection of American lives and property abroad. In 1798 President Adams authorized the arming of American merchantmen to resist the attacks which were being made upon our commerce by the French. In 1801 President Jefferson sent a squadron of frigates into the Mediterranean to protect our commerce against the Barbary raiders. In 1853 one Koszta, a Hungarian who had declared his intention to become a citizen of the United States, was seized in Smyrna by Austrian forces and confined on an Austrian vessel. The commander of an American warship in those waters demanded his release and enforced compliance by training his guns on the Austrian vessel. The commander was voted a gold medal by Congress; and the Supreme Court, in the case of Neagle, which I believe is regarded as a leading case in California, referred approvingly to the episode as "an attractive historical incident."
In the following year the United States Consul at Grey-town, Nicaragua, was attacked by a local mob. When appropriate reparation was not forthcoming, the commander of a United States warship bombarded the town. President Pierce referred to the action taken as the only alternative to "submissive acquiescence in national indignity"; and later, when the commander was sued for the value of property destroyed, Associate Justice Nelson, sitting on circuit, upheld what had been done in vigorous language. The duty to act, he declared, "must, of necessity, rest in the discretion of the President." "The great object and duty of government," he concluded, "is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving."
The significance of the record appears in the consistent pattern of national action. Bold executives and cautious executives, presidents avowedly sympathetic with the Hamiltonian philosophy and presidents professing a more guarded conception of their powers, have kept the oath as the ever changing stream of circumstance has challenged them to add present decision to the unfolding page of history. Within the memory of many here present, President McKinley sent naval vessels and a military force of five thousand men to the Far East to cooperate with other powers in suppressing disorders which had resulted from the Boxer rebellion. It was nearly a half century earlier that President Buchanan one of the most cautious of our executives, when the right was asserted to search American vessels in the Gulf of Mexico, had ordered the dispatch of a naval force with instructions "to protect all vessels of the United States on the high seas from search or detention by the vessels of any other nation." In the same consistent determination to safe guard our heritage, we are today cooperating with friendly powers in the Pacific and are fortifying new bases and reinforcing the far flung patrol which guards the vital highways of the Atlantic. Long experience in the democratic way of life has taught us patience; but neither contriving faction within nor hostile force without should ever mistake patience for impotence. In all earnestness, to those here or abroad who may be confused by the swift march of events, I commend the revealing record of our constitutional experience.
My third article of faith is in liberty under law as it has come down to us, conserved and strengthened, through a thousand years of Anglo-American institutional history. I need hardly remind this audience of the unique vitality of the rule of law wherever the Common Law has become firmly established. Nor is it necessary to stress the well known circumstance that our civil liberties have their roots in and are part and parcel of this venerable heritage. As the Supreme Court has observed, our Bill of Rights was "not intended to lay down any novel principle of Government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors."
Our heritage of liberty under law is guaranteed in terms in our Constitution. It has acquired a richer meaning and a more enduring substance in our constitutional experience. We should remember, however, that all this was possible because we were coheirs to the Common Law inheritance; and faint hearts may be fortified once more in recalling the turbulent centuries in which that heritage has been formed and toughened. It is no made-to-order credo of the passing moment which attaches our people so firmly to freedom of religion when such freedom is brutally denied in many lands; to freedom of speech and the press when elsewhere terror stifles utterance and the press has survived only as a servile agent of unscrupulous power; to freedom from unreasonable searches and seizures when a continent languishes under the dread hand of the secret police; to trial by jury, with its ancient safeguards; when uncounted thousands are rushed to the concentration camp or the firing squad after proceedings which make a mockery of justice; or to due process of law when the ideas and the ideals of justice which are implicit in that phrase have been violently repudiated over wide reaches of the earth. These things are a part of us, they belong to our way of life, and they will endure so long as we continue to believe in them, and have the will to defend them.
A government with ample power to defend the liberties of its people is a strong government. A government dedicated to the protection of those liberties is a just government. In asserting that our American form of government has traditionally been both strong and just, I would neither minimize the difficulties which confront us nor ignore the dangers to which we are peculiarly vulnerable. When revolutionary forces sweep over the earth, sparing no means and knowing no honor; when there can be no true peace for people selectedfor the sinister softening which precedes destruction; when those who wage total war take pride in the repudiation of conventional restraints upon the brutal incidents of armed conflict, the way of the strong and the just government is a hard one. Abroad, it must resist every aggression, however subtle or insidious, while continuing to deserve the confidence and friendship of the distracted peoples of less fortunate countries. At home, it must deal firmly yet fairly with those miserable saboteurs who make a mask of the very liberties which they are seeking to destroy. That America will achieve these things in ample measure, with whatever strength the emergency may require and without impairment of our essential liberties, I have no doubt.
In support of this confidence, I invite you to recall for the moment something of our experience with liberty under law in war time. It is of course axiomatic that no liberty can be absolute. Some things permissible in ordinary times cannot be safely tolerated in a time of grave peril. Thus Mr. Justice Holmes reminded us, in one of the cases arising under the First Amendment during the World War, that "when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any Constitutional right." Yet in another of the cases in this group, the same great Justice declared that "we do not lose our right to condemn either measures or men because the Country is at war."
In other cases arising out of the same war time emergency, the Supreme Court returned frequently to the theme that the "war power of the United States, like its other powers . . . is subject to applicable Constitutional limitations"; and, in denouncing an indictment under one of the war time statutes as violative of the Fifth and Sixth Amendments, the Court gave emphatic approval to the proposition that "the mere status of war did not of its own force suspend or limit the effect of the Constitution, but only caused limitations, which the Constitution made applicable as the necessary and appropriate result of the status of war, to become operative." It was in the midst of the World War that Attorney General Gregory reported that the Department of Justice was proceeding upon "the general principle that the constitutional right of free speech, free assembly and petition exist in war times as in peace time and that the right of discussion of governmental policy and the right of political agitation are most fundamental rights in a democracy."
Whatever contempt we may feel for the misguided malcontents who assert liberties only to destroy them, we need have no fear that government founded upon the processes and principles of our Common Law will cease to be just because the emergency compels it to be strong. I commend to you the homely wisdom of President Lincoln, who wrote on June 12, 1863: "I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it could be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good for a well one. Nor am I quite able to appreciate the danger, apprehended by the meeting, that the American people will by means of military arrests during the rebellion lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury and habeas corpus throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life."
In a more tranquil future, students of government will spell out the contrast between the functioning of free government in time of peril and the techniques which enabled Europe's dictators to strut their little hour. There are obvious differences of underlying principle which they will surely stress. They will have something to say, certainly, of the toughness which free institutions had developed in centuries of sacrifice and struggle. They will point out how free peoples achieved essential unity under Constitutional government, rather than personal dictate. They will see significance in the rugged persistence of orderly legal processes in democratic countries, as contrasted with the procedures of hypnosis or terror. They will emphasize the innate vitality of governments conceived in a passion for human liberty, yet strong enough to defend their heritage, as distinguished from regimes born in liberty's negation. They will recall a period in which two philosophies of life were in irreconcilable conflict, one exalting the dignity and worth of the human individual, another concerned only with the all-powerful state. Finally, they will record free government triumphant because it was founded ultimately upon the consent of the governed, because of its vast reserves of strength and its immeasurable capacities for self renewal, and because its legions wore the uniform of the common man.