The "Climate of Opinion"
BILL OF RIGHTS MUST BE PROTECTED
By PEIRSON M. HALL, U. S. District Court Judge, Los Angeles, Calif.
Delivered before Los Angeles Bar Ass'n., December 15, 1943
Vital Speeches of the Day, Vol. X, pp. 204-207.
IT is a familiar rule of statutory construction that when construing an Act of Congress the circumstances preceding and surrounding its passage may be examined to give meaning to the law.
The "Climate of Opinion" as the Supreme Court recently called it, shall be examined.
This is a day of war. Its necessities press heavily upon us. It has created a multitude of laws, regulations and agencies. Many of these agencies urge with ardor and persistence that the "Climate of Opinion" of today—the necessities of war—require almost imperative obedience to their regulations and approval of their acts and conduct.
To assist us in measuring those regulations and acts against the Constitution and Bill of Rights it may be helpful to examine the dangers, necessities, anxieties, and fears and problems—the "Climate of Opinion"—at the time of the proposal and adoption of the Bill of Rights.
To do this it is necessary to see the country at the conclusion of the revolution. I do not mean that the antecedent events had nothing to do with the creation of the Bill of Rights. But what we are concerned with now is the state of mind of the peoples of the thirteen colonies when the bill of rights was proposed.
Beginning then, at the end of the Revolution, we find New York occupied by an army of 30,000, equivalent to or is excess of the entire civil population, and most of the sea-coast towns of the United States occupied by the enemy-much in the same fashion that Japan now occupies the seacoast towns of China: The enemy had engaged in indiscriminate plundering—sacking and burning many of the sea-coast villages and countryside from Maine to the Carolina. Crops, animals and food supplies had been confiscated or destroyed. The whole coastal region of South Carolina had been burned. They had fought a war not against a distant enemy—but against an invader. An invader with a large segment of public sentiment—the 5th columnist of that day—supporting and assisting him. In New York alone, the British recruited an army of almost 25,000.
Only 15 men remained to transact the business of the Continental Congress which had issued almost half a billion dollars in paper currency, and none of it was any good. The Continental armies had returned to their homes penniless, and ragged, to be faced with debt and ridicule.
Washington Was "Broke"
Between the time of the conclusion of the Revolution and the meeting of the first congress in March, 1789 in New York City, the situation had not improved. In fact it had got worse. Washington, reputed to be one of the richest men in the country had to borrow 600 pounds for the journey to New York to assume the office of President. Shay's rebellion had found its genesis in the effort to prevent the courts from sitting, in order that no judgments for debt might be rendered. There were only three banks functioning in the country, and their paper was of limited and local circulation. Each of the States were confronted with large unfunded debts. The Union operating under the articles of confederation, not only had no credit, but the paper money issued was of less than no value. Credit was exchanged between New York and Philadelphia by way of London, the only coinage was the copper cent. There were no industries: no public or private financing to encourage the ambitious or the hopeful. Commerce was at a standstill. There was no mining—no massive steel or iron or aluminum, or magnesium or coal or automobile or oil or chemical industries.
The government was without arms or munitions; and there were no factories to make them. The Army had diminished to a total of 672 officers and men and there was no Navy.
Europe with its Armies, its population and its resources stood within less travel time from New York than from New York to Richmond, and was a greater constant threat by virtue of this disparity of wealth and power than it could possibly be today. London was a city of 30 times the size of New York which then had a population of 30,000, about the size of Southgate. There were only six cities in the country in excess of 8,000 population—Philadelphia, the Metropolis with 45,000 followed in turn by New York, Boston, Charleston, Baltimore and Salem. Europe not only had no confidence in or enthusiasm for the new government, but with Florida and the Mississippi Valley possessed by Spain, the countries of Europe were encouraging the depredations of hordes of Indians against the colonies.
There was no money in the federal treasury, and if there had been any taxes, there was no machinery for collecting them. There was no judiciary, no court system, and no means for enforcing a federal law.
No U. S. Employees
Almost every other new government in history, whether started as a result of a revolution or conquest has had the advantages of calling on professional functionaries and clerks to administer the government. But here there were none. There was probably a total of a dozen government employees but they-had not been paid and there was no money to pay them. North Carolina and Rhode Island had not ratified the constitutions. Vermont had been treating with London for recognition as an independent State. A secession movement was gaining headway in the west. The President of Congress sounded out Prince Henry of Prussia whether he would accept an American throne.
There was no backing of any organized opinion; there was no method for quick dissemination of government policy; there were no conferences, no front porch speeches, no radios, no commentators, no fireside chats. There were no skilled persons to call upon to help in administering the government.
There was no tradition, and no precedent to guide or warn them. In searching history for examples to support the arguments in favor of the Constitution the authors of the Federalist were compelled to reach back 2,000 years to the Achean League and Lycean Confederacy, Greek Democracies, for any comparable government structure from which to draw examples.
Most of the States had adopted their constitutions. They were jealous of their prerogatives as newly created nations. Upon inquiry, a person would not respond that he was a citizen of the United States, but would reply that he was a citizen of Pennsylvania, of New York, or Massachusetts, etc. Threats or armed conflict were brewing, especially over the vast areas of new land which lay to the west. There was no authority to carry out treaties that had been made with England and France. Generally, there was disorder, confusion, debt, despair and lawlessness.
In tribute to the dismal picture, Washington, no stranger to despair and hardship, setting out from Mount Vernon in April 1789, wrote:
"My movements to the chair of government will be accompanied by feelings not unlike those of a culprit, who is going to the place of his execution; so unwilling am I, in the evening of life nearly consumed in public cares, to quit a peaceful abode for an ocean of difficulties, without that competency of political skill, abilities, and inclination, which are necessary to manage the helm. I am sensible that I am embarking the voice of the people, and a good name of my own, on this voyage; but what returns will be made for them, heaven alone can foretell. Integrity and firmness are all I can promise. These, be the voyage long or short, shall never forsake me, although I may be deserted by all men."
Needs of a Nation
All this setting testifies to the necessity for a central government with power: the need for authority to make these incipient thirteen nations into one nation, the need for a national army; the need to establish themselves among the scorning nations of the earth, with an international credit; to regulate commerce as it concerned more States than one. As Hamilton put it, a central government of power was "essential to the security of the people of America against foreign danger; essential to their security against contentions and wars among the different States; essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very foundation*. In a word, essential to the happiness of the people of America."
Bill of Rights Is Born
Without such power there could be no union, but in the face of that overwhelming necessity for power, and undismayed by the danger of delay, following the lead of Massachusetts and Virginia, Congress on the 25th day of September, 1789, four days before the close of its first session, when there was still no money in the treasury, and no scheme or means devised for creating any national credit, nevertheless made their choice and proposed to the various States the resolution containing 12 amendments, the last 10 of which were approved by the States and have become our Bill of Rights.
In the previous 25 years there had been great and important movements and events in American history. But certainly none that exceeded in influence upon mankind, the act of Congress in proposing and of the States on adopting the Bill of Rights; thereby Congress and the people chose to place principle above power as a fundamental precept: If being free instead of being secure meant war—they chose to be free, they were not afraid of war; they knew that hate and force and fear and ignorance are the inevitable handmaidens of tyranny and that to serve liberty there must be guarantees in that basic code that as between the individual and his government, there must mutually be love—decent respect— instead of hate, faith instead of fear, reason instead of force and truth instead of ignorance.
Great Truths Defy Definition
I have lately seen and read many expressions endeavoring to define liberty; to describe freedom. But somehow or another, as I read these statements, they seem inadequate. I have wondered why. It is because the deepest truths for the most part, refuse to be written, and the dearest things defy definition. Thus it is with liberty and freedom. The scope and sweep of their spiritual inward sense of equality and uplift cannot be compressed into the concepts of any one mind, however great, or be catalogued and listed by the words of any one person's vocabulary, however learned. The settings and surroundings and circumstances of each individual, or nation, or people, whose liberty is concerned, change, not only from one generation to another, but with the trappings of modern civilization from year to year, and now, almost from day to day. To categorize or recite and name all the rights which make up our liberty and freedom, it would be necessary to comprehend the consumate exper-
ience of mankind and to possess withal that fluency of tongue which would touch universal understanding; to feel the physical pains of ail of freedom's martyrs, and know the travail of spirit of the bewildered millions who have died with naught but a vain hope of freedom; to know the history of all religion and all government and the original of all races and their customs and appetites. Because all these things enter into a complete understanding of liberty.
Such is the nature of liberty that it means something different to each person at different times and under different circumstances.
The entire scheme of government in our Constitution permits a constant testing of the liberties of the individual. Its whole system and all its declarations in the Bill of Rights are based on the concept that the world belongs to the living; that there is and shall be preserved the right to repeal or change any law, even the Constitution, if in reason, after free discussion it cannot win conviction in the minds of each new generation.
It is the virtue of our fundamental law that it is worded in generalities and leaves to each individual the privilege of asserting his rights from day to day, and provides a forum—a public forum—for their determination under rules of reason, each of which in turn is being tested again and again every day in the crucible of the courts.
Cement of Constitution
Thus the Bill of Rights is not only the guarantee of individual liberties, but it is the strength, the cement of the Constitution itself. Who cares to predict we would have a democratic form of government today if we had had no Bill of Rights—no due process—search and seizure—jury trial—religious liberty or free speech clauses to restrain for 154 years the appetite which power in government always creates for more power.
John Marshall said our Constitution is a document intended to endure for ages and to meet all the crisis of human affairs. Thus in the Constitution we find the Bill of Rights set out in the broadest and most general language.
I have here a book, entitled "Gateway to Citizenship." There is impressed on the front the great seal of the department of justice. It was printed in the government printing office, in the city of Washington, District of Columbia, 1943, under the auspices of the United States Department of Justice. It is said that its purpose is to assist the members of the bench and bar, the staff of the immigration and naturalization service, and other interested workers in their efforts to dignify and emphasize the significance of citizenship. In the fly leaf is the "Excerpt from Message to the Congress, January 6, 1941" the title of which is "The Four Freedoms." But I have failed to find any single quotation from the Constitution of the United States or the Bill of Rights. There are many excerpts from speeches and quotations from codes and articles as to what America means, what the States are, natural heritage, creeds, codes, oaths, pledges, charters, many of them are beautiful and inspired, but none approaching in fundamental depth of understanding or comprehensive strength of declaration the majestic cadences of the Bill of Rights.
Text of Bill of Rights
It would be a poor tribute, indeed, to the Bill of Rights, if at a meeting of lawyers, we did not read the text.
I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
II. A well-regulated militia, being necessary to the security of a free State; the right of the people to keep and bear arms, shall not be infringed.
III. No soldier shall, in time of Peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
And in recognition of their own inability to comprehend all circumstances where liberty might be challenged, they provided by IX and by X.
IX. The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the State respectively, or to the people.
There are 28 freedoms mentioned there. We have abandoned none of them. These were some of the inalienable rights which the Declaration of Independence asserts belong to each of us as necessary to secure our life, our liberty, our equality, and our pursuit of happiness. If the ten commandments provide a standard of conduct for a virtuous individual—then the 10 amendments which make our Bill of Rights are the ten commandments for a virtuous government.
With these 28 freedoms it necessarily results that there shall be the survival of the fittest idea and not merely the survival of the strongest or most scheming men. It is implicit in the philosophies of all absolutisms that they are afraid of democracy because they suppress the right to speak of it or discuss it freely. We on the other hand, with freedom of thought, and freedom of speech have no fear of the consequences of a comparison by a free mind of our democracy with any form of government. By freedom of speech all ideas must stand trial in the court of public opinion.
Is it not reasonable that the founding fathers, who incidentally were historians, conscious of the indolence which isincipient in every happy people, conceived that freedom of speech, for instance, would compel us to constantly examine and re-examine our own government and rights as a result of listening to the arguments on behalf of other systems?
We have not been lacking for such mental irritants. For the past 20 years, with a noticeable increase in the last three, there have been many who, without even a healthy sniff of life as it is really lived in America in an air of cosmic profundity and with a spirit of frustration and envy, have ridiculed and abused as Babbits, or brigands, or yokels all those who really built America. They have cried that with no more free land the "uncultured" people of America have lost their capacity to be free and to govern themselves. Well, they are simply unacquainted with the American scene—they have been untouched by the spirit and will, not only of the American pioneer, but of the Sergeant Yorks, the Colin Kellys, the Butch O'Hares, the Henry Fords and Donald Nelsons of America. Perhaps these critical "Intelligentsia" are the product of one of 82 per cent of the institutions of so-called "Higher Learning" which have not recently required the study of U. S. history for the undergraduate degree.
Pioneer Courage and Vision
Looking then at the Bill of Rights in its "Climate of Opinion" written, declared, and adopted by the men who had not only fought an 8 years war, but who had afterwards undergone six years of misery, confusion, failure, debt, disappointment and hardship we see their keen knowledge of the necessity for a central government of power: we realize that they placed a premium on character and not on cunning; we grasp the fact of the consummate courage which it took in the face of the whole dismal picture to nevertheless declare the supremacy of the rights of man. I wonder if we shouldn't feel just a little bit ashamed today that some of us now and then think it necessary to suspend these rights in order to exercise the power of national government whether to win a war, or otherwise? It is not a confession of indolence that while standing in the midst of the unbelievable physical might of this nation there should be some who believe that we cannot fight this war without destroying the very things we fight to preserve.
There should be none among us who lack the ability to perceive that among the world's systems of government ours is still the "Best Hope of Mankind" as Jefferson and Webster and Lincoln said it was.
Must Guard "Bill"
To you as lawyers, now falls the resolve that the Bill of Rights shall not be destroyed by either direct attack or by blissfully ignoring it, or disdainfully by-passing it.
In the face of the magnificent boldness of those men who wrote into our fundamental law these rights of man as a standing challenge to all other philosophies of government which would deny them, should we not cast out the slightest apprehension about meeting any foe, at the same time preserving among ourselves those fundamental principles so that mankind can continue to walk the earth upright and unashamed and in the image of his Creator.