The Challenge to Our National Character


By FRANK MURPHY, Associate Justice of the Supreme Court of the United States, at St. Louis, Mo.

Before the Annual Banquet given by the Lawyers Association of Missouri in honor of the judges of the State and FederalCourts in that area, and broadcast over the Blue Network, January 23, 1942

Vital Speeches of the Day, Vol. VII, pp. 272-275.

FOR more than a century and a half, the Supreme Court of the United States has maintained unbroken its wholesome tradition of aloofness from the political affairs of the nation and of the world. The tradition springs from ancient soil. It reflects a hallowed ideal of the judicial calling in a free society—the ideal of scrupulous and untarnished impartiality.

It is no ordinary issue that persuades a member of the Court to depart from this tradition. It was no ordinary issue which induced members of the present Court, months before the shocking events at Pearl Harbor, to raise their voices publicly on non-judicial matters. They left the Bench and entered the public forum to address themselves to the gravest issue that can confront a democratic commonwealth. They spoke because they knew that if the tidal wave of tyranny engulfs this land, the Constitution, the Congress, the Court itself, and all they represent, will be swept away.

Today we face a struggle that overshadows all else. War in all its fury has been launched against the nation, and young men and old who were our neighbors and our kin are dying by the sword in order that the nation may live. Side by side with their brave Filipino brethren—who for the moment, at least, are carrying the brunt of the battle they are fighting in a savage, malaria-ridden jungle among all the cruelties of nature at its worst. It is a moment of crisis when tradition becomes unimportant and when the normal problems of our day seem banal. For we know that the civilization of which these traditions and problems are a part is threatened with extinction. That threat is the pervasive and common concern of all of us—President and press, judge and jury, the humble worker and the Man of God. From that threat no man, no institution, no calling may stand aloof.

To say that our civilization is threatened with death is not mere academic speculation. Hitler himself, in speaking of the conflict between the totalitarian and democratic worlds, has warned—that "One of these worlds must break asunder." It is, moreover, the only conclusion that may reasonably be drawn from the recent history of tortured and suffering Europe. There, before our eyes, lie the awful consequences of defeat. There in the tragic circle of conquered nations is irrefutable proof that the triumph of totalitarianism is synonymous with the extermination of the essentials of democracy.

Of the probable military consequences of a Nazi victory little need be said. It is clear that the Nazi method calls for not only the complete military paralysis of the conquered state but its reduction to the status of serfdom and a source of supply of the Nazi's own military Juggernaut. The hungry millions of France, Poland, the Netherlands, Belgium, Austria, Czechoslovakia—among other vanquished nations-know to their great bitter sorrow that this is so.

Economically, a Nazi victory could have only one consequence—the end of individual enterprise as we have known it in this land. The dearly-won rights of labor, the freedom of the individual to choose his calling and to advance by virtue of his God-given talents—these we know would vanish. Already we are having a grim and suggestive foretaste of what would come should the Nazis win. For war has long since compelled us to institute a measure of economic control by government in order that the nation might better resist the onslaught that has come. As long as the war continues, that control will not diminish but by necessity will increase. It will extend so far that we shall need vigorous and devoted public servants to safeguard our liberties. But I know that this unavoidable departure from our normal course will not dishearten the American people. It will only spur them to an earlier and greater victory.

I believe you will be interested in one indication of their reaction—of the capacity of indignation of our people—which came to my attention a few weeks ago. While in Detroit during the holidays, I was told by industrial leaders that after the attack on Pearl Harbor, efficiency in every department of their plants had increased from fifteen to forty percent.

As for religion, we have our warning from Adolf Hitler himself. According to "Mein Kampf", Christ—the compassionate Prince of Peace—brought to the world not the most beautiful influence ever known to humanity but—and here I quote—"the first instance of spiritual terrorism." Only by force and terrorism, the Nazi leader suggests, can the evil thus produced be eradicated. It was logically as well as candidly, therefore, that Dr. Rosenberg, the Nazi Philosopher, advised the Party Congress in 1936 in this manner: "The Catholic Church, and with it the Protestant Church in its present form, must disappear from the life of our people, is clearly evident to me, and I believe I can assert, also to our Fuehrer."

The heroic figure of Martin Niemoeller, serenely clinging to his faith in the confines of a concentration camp; the agonies of European Jewry; the well-documented reports of murder and pillage inflicted upon priests and churches in Germany and Poland; the Lutheran Bishops' ringing protests against the terrorism of the Storm Troopers in Norway; the castigation of the Nazis by the late Pope Pius XI as "the nullifiers and destroyers of the Christian west"—these things and many others are the clear and ominous writing on the wall. They are the outward manifestations of a threat to religion which far surpasses any other possible threat—for back of them is a brutal machine of conquest such as the world has never before seen. Religion in America could expect from the Nazi tyranny not peace, not tolerance, but relentlessly the sword.

Nor can we overlook the attack of Nazism upon the social institutions and moral standards of western civilization—an attack which not merely undermines the Christian ethic but strikes at principles that have ennobled men throughout the world, regardless of religious creed, since long distant ages. The precious institutions of home and marriage, woman's ancient estate as wife and mother, the happy freedom of the child to live a child's natural life—all these are secondary to the welfare of the Third Reich. All these must conform to the dictates and needs of a military tyranny which brooks no opposition. This, too, must be counted as part of the future if this battle is not won.

But to this gathering of lawyers, I would particularly stress the implications which totalitarian victory would have for our legal system and political institutions.

There was a time when Germany—whatever her political system—was known for her respect for law and order, for even-handed justice and judicial integrity. It was a respect for civilized conduct that is attested by German history for generations before the Nazi revolution.

But in this philosophy of the Germans—as in virtually all else in Germany—the revolution wrought a profound change. Nazism, with its tremendous military power and skill, its fanatical intolerance, its perverted intelligence and missionary zeal, whipped the German people into the frenzy which made possible the monstrous political system and new concept of law that now menaces civilized and progressive government all over the earth. It is a system nowhere more forcefully epitomized than in the incredible statement of Adolf Hitler to the Reichstag on July 13, 1934, in his apologia for the purge of Roehm, his one-time chief of staff, and his unhappy associates. These are the Fuehrer's words:

"If anyone faces me with reproach that we should have used the regular courts for trial, I can only answer: in that hour I was responsible for the fate of the German nation and therefore I myself was the German people's Supreme Tribunal."

The outlines of that system, as we see them in the reports of those who have watched its operation, are a grim caricature of the structure of justice which stood in Germany before Hitler. The brutal Gestapo, the ruthless muzzling of the press, the liquidation of thousands of political opponents, the conviction of innocents for their opinions and character, the repulsive differentiation between the "Aryan" witness and the one whose testimony is rendered infirm because of the accident of birth, the fraudulent court trials designed to destroy opponents, the elegant axeman in full dress later replaced by the guillotine, the perversion of the judicial process by judges hand-picked for their devotion to National Socialism—these are the symbols of the New Order in the Fatherland. These are now the pitiful possessions of a people who once told and retold with pride the famous story of Frederick

the Great: How the great ruler once commanded a humble citizen to sell to him a windmill which disturbed the monarch's leisure hours; how the mill owner refused, asserting that "In Berlin there are still judges"; and how the Supreme Court of Berlin—a court with honor and integrity—returned a verdict against the mighty head of the Kingdom.

What does all this mean to us? What meaning could a Nazi victory hold for a nation nurtured in the sacred concept of "Equal justice under law"—for all the cherished ideals and institutions that in the course of a century and a half have made the lives of Americans worth living?

It would mean the end of due process of law—a law that hears fully and fairly before it condemns, before a judge who is ever solicitous of the essential rights of the parties before him, and who constantly strives to attain that atmosphere of perfect impartiality which is so much to be desired.

It would mean the end of the right of trial by jury—the right, not the privilege, of trial by an impartial jury that is truly representative of the community and not the organ of any group or class. We think little of it in our daily lives; we accept it as we do the sunshine and the air we breathe; yet it is one of the greatest shields against the reach of arbitrary power.

It would mean the end of the prosecutor as we know him— the prosecutor whose position of public trust demands that he see that justice is done, not merely that convictions are obtained.

It would mean the end of the salutary rule of presumption of innocence.

It would mean the end of freedom not only to think one's thoughts but to express them "at will" and in one's home.

It would mean death to the liberty of man to follow his conscience in matters of religion, whether he subscribed to the teachings of Mohammed, hearkens to the great prophets of Israel, or turns his gaze in reverence to the Star of Bethlehem.

A Nazi victory would mean the end of the right of the press to raise its voice in the market place, sparing none from criticism—not Congress nor courts nor chief executive.

And it would spell extermination for the gracious, Christian principle that all men, irrespective of race or creed, are equal in the sight of God.

These are the things that represent America. They are the things that would perish first at the hands of a victorious Hitlerism.

When in all past history was there a greater challenge to the integrity and valor of a freedom-loving nation?

Tonight, in the far Pacific, the challenge is being met in battle. On land and sea and in the skies, men of the stamp of Colin Kelly are perpetuating the valiant traditions of Valley Forge, the Alamo, and the unforgettable Wake Island.

My thoughts go particularly to one vital theater of the war—the Philippine Archipelago. Perhaps I am touched deeply because in those beautiful islands I spent three of the happiest years of my public service, unmarred by a single unfriendly act or untoward incident of any kind. But I refer to them mainly for the reason as nowhere in the world is the meaning of this war so sharply etched as in the Philippines. For here was a democratic people coming into nationhood—a people that has shown a particular aptitude for self-government—attacked by a military autocracy with a record of harsh and unfriendly rule in every land it has conquered.

The American people have made many rich additions to the record of democracy. But no catalogue of these contributions could be complete without a reference to their unequalled endeavor to extend democracy to the Philippines. In all the flight of time, there is nothing to match this deed.

It is perhaps true that many of us did not fully recognizethis island nation for the jewel that she actually is. Too few have known of her great riches, her central location in the far Pacific; her breathtaking beauty; and the goodness of these only Christian people in the Orient. Too many of us were unaware of the magnificence of our charge until the war lords had begun their treacherous attack.

But this cannot detract from what we have done in this Pearl of the Orient. For in a world torn by conquest and aggression, the United States has stood in sharp contrast, steadfastly working to give to another people the blessings of liberty and independence—to aid a people in making of their native land a homeland in the truest sense. The American people have done this not out of self-interest, as some would have you believe, but out of a desire to make possible for another people the way of life which we ourselves have tried and found good.

We have given our pledge that on our own Independence Day in 1946, the Philippines will acquire complete independence. To that pledge we must be true. But to be evicted by a ruthless military machine, with our mission incomplete, would be a vastly different thing. That prospect we cannot tolerate.

We cannot tolerate it, first, because to the Filipinos a Japanese conquest could mean only servitude. Whatever virtues the Japanese may possess, they do not include the willingness or ability to deal in a humane fashion with the people who come under their control. In Korea, in China, in Manchuria, their record has been the same. For how can a nation lacking the slightest semblance of democratic rule at home be expected to extend self-government to others? In the Philippines the conflict would be irreconcilable if for no other reason than the intense devotion of the Filipinos to their Christian faith. That faith, I am confident, they will never relinquish.

We cannot tolerate this prospect, secondly, because only a nation forgetful of its heritage could abandon a people to enslavement on the very eve of their final liberation. Before the world and before ourselves we must make good our word.

The battle for the islands may be long and it will be cruelly hard. But the gallant and determined President of this nation has promised that it will be fought to a successful conclusion, and that our pledge to the fifteen million Filipinos whom we have befriended, and who have so warmly returned our friendship, will be redeemed. In that promise, beyond all doubt, the President expressed the resolute determination of the whole American people.

In addressing the Philippine Legislature for the last time as Governor-General, I concluded with an expression of faith and confidence. I should like now to re-read those words:

As in all good books of high adventure and romance, we close this chapter anticipating the next, confident that the Divine Author will bring the story to a fair ending in accordance with the faith and high purpose of its beginning.

There is now being written a bitter paragraph of bloodshed and valiant resistance to aggression. But my faith is unchanged that the people of the Philippines and the United States, fighting side by side with God's help, will presently write that happy ending to which we have long aspired.

It has often been pointed out that the war in is large measure a race of production. Beyond question this is true. And to the extent that it is true, I believe that we have no cause to fear. The nation which has amazed the world by its production of the materials of peace will, in good time, amaze it far more with its skill and speed in creating the weapons and materials of war.

But arms are only a part of the requirements of victory. Far more is asked of us—far more must be given than the

treasures of our soil and the fruits of our labor. We must put out as well the untold riches of the human spirit. Integrity, discipline, fortitude, respect for human dignity, unwearying devotion to the nation's interest—these are the things that in the end will win this war or any war. The fine, strong steel of victory must be not only in our guns and ships and aircraft—it must be also in our soldiers and sailors, and in the entire population.

If we were not aware of it before, the events of the past seven weeks should have convinced us all that in the Pacific we face a dangerous and hardy foe. Whatever else may be said of the Japanese, they are in a sense a Spartan people who know hardship as the companion of their daily lives. From the lowliest peasant to the ruler of the realm, they are a frugal, simple race-willing to live in modest quarters and to subsist on the plainest fare. From infancy they are schooled in suffering. They will endure with stoic calm the misery to which their war lords have so insanely led them.

The American people will measure up to this aggressor. There is no standard of human conduct and valor that this nation cannot equal and surpass, once its mind is set to the task. But we shall be guilty of a very grave error, indeed, if we belittle or underestimate the character and endurance of the Japanese.

In the history of ancient Greece, there is a chapter which America might profitably re-read. It is a tale of two commonwealths—one an oligarchy but of rugged character, the other a democracy grown wealthy and comfortable and fond of pleasure.

In the one city, which we know as Sparta, life was hard and disciplined. The rearing of the child had only one end—the welfare of the state. Indeed, no male children but the healthy and robust were permitted to live. Their schooling was mainly physical and military in character and was designed chiefly to train the young to obey commands, to endure hardships, and to conquer in battle. In the lives of these people, the so-called "cult of comfort" had no place. Perhaps nothing was more expressive of their rigorous code of living than the ordinance which provided that in the building of a house a Spartan might use no tools but the axe and the saw.

Of the other city, Athens, history tells a different story. Success in commerce and profitable wars had encouraged in the Athenians the "desire of pleasure and the habits of ostentation" which, in the words of the historian, "refine before they enervate." For some of them, we are told, "the attainment of their own ends became the paramount object of life, an object to be secured by secret murder and violent revolution."

The time came when the two states, once friendly allies, found themselves at odds. The bitterness deepened into war. In Athens, the deterioration of the public character had advanced so far that the once conquering nation was not equal to the iron men of Sparta. And in the end the Spartan despotism was fastened upon all the cities of the Athenian confederacy.

Our great task is to insure that neither in the outcome of this war nor in the spirit with which it is fought shall we be the Athenians.

A new spirit must enter this land. The simple heroism and fortitude latent in the American character must blossom into a fuller, more vigorous life. An epoch must be recreated—the epoch of America's birth, when men lived plainly yet nobly—when a rugged courage was the prerequisite of survival. The Spartan temper of the Pilgrim and pioneer must again pervade this nation.

No phase of our lives can escape the challenge. Halfway measures can not win a war.

On every man and woman there rests an obligation to turnto his particular job with a new and fiery zeal. Not grudgingly but joyfully, the best that we have in talents and energy must be given to the common effort. Whatever the national interest may require, this we must give without complaint.

In our homes, in commerce and industry, and in the pub-he service, a new spirit of frugality must guide us. There is no room in a nation at war for the comfortable vices of inefficiency and waste. There is a place only for the prudence and economy that become a people whose ancestry includes a Benjamin Franklin.

Particularly must we labor to modernize and improve the machinery of government. In all the strata of the public service, from the smallest municipality to the vast government of the Union, there must be a concerted effort to perfect procedures, methods, and organization. Wherever there is duplication, or waste, or outmoded methods, or sheer incompetence, these must be excised, regardless of the protests of vested interests. Not only must government be made more workable, but the ablest administrators must be sought to run it. Let it be said again and again—in every city hall, in every legislative chamber, in every executive office—that nothing can more competently give aid and comfort to the aggressor than the governmental incompetence of the aggressor's prey.

We must look to the health of our bodies, for on East and West alike we face enemies who have maid a cult of physical perfection. Our soldiers and sailors, the men who man our aircraft, must be tough and disciplined and resilient—the finest physical stock that America can produce. But more

than this, the civilian population, too, must build its stamina and powers of resistance.

Most vital of all is the health of mind and spirit and morals. On this all else depends. It is deep in the spirit of the people that our liberty has its roots. For victory in the end will go not to the side with the mightiest arms alone but to the side with the ascendancy in moral worth.

If that ascendancy is to be ours, we will never tolerate corruption or those who may wish to profit by this war. No longer will there be such profit. We will square our shoulders and shake off all that is indecent or suspect.

We will not countenance the weakening of our democracy at home. We will guard it, instead, against every encroachment, every outburst of intolerance, and all the attacks by propaganda that the enemy will launch.

And if we have the greatness of mind and soul to meet great events as the Fathers met them, we will not look upon comforts surrendered or long hours labored as something lost or sacrificed. We will count all this as something nobly gained, nobly given to the common cause of free men. And the act of giving to that cause we will hold as our greatest privilege.

We will muster every quality, every virtue and trait, that is lofty and fine in the American inheritance. We will stand erect in the sight of God and man—fearing no one, ready in body and spirit to meet whatever challenge may come, and confident that a people of our inherent worth and with our just cause will inevitably prevail.