Civil Liberty in Time of National Defense


By DR. ROBERT E. CUSHMAN, Department of Government, Cornell University

Delivered before the G-E Farm Forum and broadcast from WGY, Schenectady, N. Y., November 14, 1941

Vital Speeches of the Day, Vol. VIII, pp. 142-143.

FOR a century and a half Americans have clung to a deep-rooted faith in democracy. Today democracy throughout the world is standing with its back to the wall, fighting for its life. We have stopped the parlor and classroom discussions of two or three years ago as to whether democratic governments can be made as efficient as dictatorial governments. The question we face now is whether democratic governments can survive. Can Great Britain and America defeat the forces of Hitlerism? And if they can, will they still be democracies? Or can success in this life and death struggle be won only by policies and methods so brutal and ruthless that democracy as we now know it becomes one of the casualties of war. Can we beat Germany without destroying the civil liberties of our people which are part of the democratic tradition? In the dark days of the Civil War Lincoln faced the same problem: "It has long been a grave question," he said, "whether any government, not too strong for the liberties of its people, can be strong enough to maintain its existence in great emergencies." This is the dilemma which democracy faces.

Now there are many ways of describing or defining democracy, but there are two main planks in the platform upon which our American constitutional democracy rests. The first plank is that the will of the people must prevail in government. This means that public policy and its administration is determined either by the democratic device of majority votes, or by representatives placed in office by majority votes. The second plank is that popular majorities, or officers chosen by them, no matter how overwhelming these majorities may be, shall not suppress or invade certain fundamental civil liberties which belong to all the people, including members of the minority. Chief among these civil liberties are freedom of religion, freedom of speech, freedom of press and freedom of assembly.

No thoughtful person can doubt that freedom of speech, freedom of press and freedom of assembly are vital to democracy itself—they are part of its very blood stream. Only by free public discussion and free public criticism can the people be steadily sure that the will of the majority still prevails. Anyone who is inclined to feel that in times of national danger criticism of the government must be ruthlessly suppressed, should remember that two years ago it was the rising wave of popular criticism in Great Britain which overwhelmed the shuffling and indecisive leadership of Neville Chamberlain, and placed Winston Churchill in power. But while our constitutional democracy thus protects and, to maintain its integrity must protect, the civil liberties of the people, we must keep in mind that these civil liberties, freedom of speech, press, and assembly, are not absolute. They are limited by the rights of others and by the demands of national security. The rights of minorities do not rise above those of the majority. An outvoted minority may demand the right of orderly public criticism of public officers and public policy, but it enjoys no right of obstruction, no privilege of undermining the accepted policy of the government by conspiracy, sabotage, incitement to resistance or disobedience to law. Submission by the minority to majority decisions is as vital a part of the democratic process as is the protection accorded by the majority to the civil liberties of those who have been outvoted.

This delicate balance of majority and minority rights in a democratic nation calls for constant and thoughtful compromise and adjustment. In time of national danger it becomes increasingly difficult to maintain a decent respect for freedom of speech, freedom of press, and freedom of assembly. We face today, and we shall probably face in greater measure tomorrow, two serious dangers to these fundamental civil liberties. One of these dangers arises from the fact that thenational security in a crisis like this makes necessary a curbing of freedom of speech, press, and assembly which would be indefensible in times of peace. The framing of these restrictions and the enforcement of them must be confided to our national public officials, and there is constant danger that they may go too far. The second danger is that popular hysteria will demand of the government unreasonable restrictions of civil liberty. There is much less danger that arrogant public officers will tyrannically override the liberties of a protesting people, than that an intolerant public opinion will not only permit but demand the complete suppression of minority rights.

I believe that these dangers to our civil liberties, dangers to our American democracy, are very real. I am not sure that they are escapable. But those who believe in the democratic way of life will agree that with all our intelligence we should try to escape them and, if we cannot escape them, to minimize them. As my contribution to the problem I submit the following program of principles and action.

First: There must be common agreement that dangers to the public security will call for heavy sacrifices from the citizen, and that some of these will take the form of restrictions upon the scope of his civil liberties. This is one of the inescapable costs of war or the threat of war. These sacrifices should be cheerfully made and we must clearly recognize the right of the nation to demand them.

Second: The government must be neither soft-handed nor soft-hearted in dealing with spies, traitors, saboteurs, obstructionists, or those who in any way seek to block or impede our national defense effort. Our laws must be made adequate to deal with these enemies of the state, and these laws must be sternly and fairly enforced.

Third: Laws which restrict freedom of speech, press, or assembly in the interests of public safety, together with the enforcement of such laws by executive and judicial officers, should carefully preserve the right of free public criticism of public policy and public officials. This right of free criticism—which is not to be confused with obstruction or incitement to disobedience—is essential to the preservation of fundamental civil liberty. It is also essential to the protection of the public security against unwise policies and official incompetence.

Fourth: Whatever restrictions upon civil liberties are demanded by the national safety must be formulated and enforced by the officers of government, not by the amateur efforts of private citizens. Just as we seek to abolish the evils of lynching, so should we seek to put off business and self-appointed zealots, who, by waving the flag of Americanism, seek to save the country by invading the civil liberties of their neighbors. If our liberties must be curtailed, let it be by the regular and orderly processes of the law. Officials whose duties require them in any way to limit the traditional civil liberties of the people must be held to the strictest accountability. We cannot safely allow the job to fall into the hands of private persons, who, no matter how patriotic they may claim they are, cannot be held to any accountability.

Fifth: The government itself should steadily emphasize by word and by deed its intention to give our civil liberties the maximum of protection. It should lend no encouragement to those seeking to undermine them. The President and the Attorney General have repeatedly pledged the protection of civil liberty. A Civil Liberties Unit has been set up in the Department of Justice for the express purpose of giving the Federal government's help to those whose civil rights are unlawfully infringed. This unit should be strengthened and enlarged so that its important work may be more effectively done. Congress itself might well create a Joint Standing Committee on Civil Liberties so that it may keep itself informed on problems relating to civil liberty and thus be better equipped to deal with those problems by legislation.

Finally: The individual citizen should strive to cultivate in his own mind a thoughtful tolerance for the opinion of those who disagree with him, even in a time of public danger. If he is intelligent he must realize that not all people can be made to see and feel alike and that it would not be a good idea if they could. Upon such a widespread spirit of tolerance rests the ultimate fate of our civil liberties and our democracy. Public officers are in the last analysis our agents and we are ourselves responsible for the instructions express and implied under which they work. The crisis which we face calls for all the self-discipline which a great nation can muster if we are to keep from throwing away in the thick of the fight the very things for which we are fighting.