Constitutional Rights in Times of National Crisis: An Historical Perspective

(A talk prepared by Prof. John E. Semonche for the Constitutional Rights and Responsibilities Section Annual Meeting on February 15, 2002, part of a CLE Program Entitled "Freedom and Security in 21st Century America: Are Our Individual Liberties at Risk?")

We Americans are more rights conscious and liberty oriented than the citizens of any other nation, past or present. This simple fact is what has helped define us as a people. Lacking a common heritage, a common religion, or a common nationality, the country is a continuing experiment in whether a nation without such traditional bonds of unity could survive. We staked our future on the appeal of an open society in which diversity and difference were not only tolerated but actually encouraged. The Declaration of Independence, which heralded the birth of this new nation, justified government on the sole basis that it was needed to secure the inalienable rights of the people.

Government was legitimated by the consent of a people who were expected to be vigilant in the protection of individual rights. For after all, a threat to one person’s rights posed a threat to all. In practice, however, assiduous defense of one’s own rights did not translate into the assiduous defense of the rights of others. Although the government has never lacked critics reminding present wielders of power of their responsibility to protect rather than threaten individual rights, the sad fact remains that such concern, especially during times of perceived crisis, remains an acquired taste, a taste savored by the few, not the many. The many have generally been quite willing to trade rights for assurances of greater security, paying little heed to Benjamin Franklin’s centuries old admonition: "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

To gain some perspective on our present situation and explain why this is so we need to do more than cite the traditional instances of such past trade offs. We will march by you the Sedition Acts of 1798 and 1918, the military trials and denial of habeas corpus relief during the Civil War, the massive relocation and internment of the Japanese and Japanese-Americans during World War II, and the guilt by accusation of the McCarthy era. However, such a parade does not advance an understanding of why, when the protections of the individual seem most needed, they are so readily sacrificed. Such a highlight reel also gives the erroneous impression that such episodes are exceptional and are confined to times of war. Actually, they tend to be much more common than is generally recognized and much less necessary than their perpetrators claim. In fact, the late Justice William J. Brennan, Jr. in a speech to law students in Jerusalem in 1987, which I have included in your materials, said the following: Claimed security threats are "often overblown and factually unfounded" and "so baseless that they would be comical were it not for the serious hardship that they caused during the times of crisis." Brennan sees the solution to the problem in the development of a jurisprudence that would aid policymakers facing such situations. In addition to underestimating the number of such episodes in the nation’s history, the former justice assumes that the policymakers and their constituents make unfortunate decisions because of ignorance and a lack of guidelines when, in fact, they know quite well what they are doing and why.

In the hope of advancing such understanding, let us look historically at a number of things: the Constitution and the protections it seeks to provide; an American, if not human, tendency to stereotype groups of people, and, finally, a less than whole-hearted acceptance of the limitations imposed on democratic majorities in behalf of individual rights with special emphasis on the free speech and free press guarantees.

As originally drafted the Constitution contained no bill of rights. During the contest over its ratification, the Constitution’s supporters claimed that, since it established a government of delegated powers, the federal government had no authority to invade the rights of the individual. Opponents were unsatisfied, arguing that, in exercising the powers that were delegated, the new government might indeed choose means that threatened individual rights. The result was the addition to the fundamental law of a series of amendments we collectively call the Bill of Rights. At the top of the list was an amendment that sought to forbid Congress from passing legislation that interfered with one’s free exercise of religion or that abridged free speech, a free press, the right to assemble and, finally, the right to petition the government. This First Amendment would continually be cited as embodying the essence of the liberty that was most essential for the survival of this American experiment in nation building. Most significant of the remaining individual protections in the Bill of Rights were those that sought to protect the individual from arbitrary governmental action: people were to be secure in their homes from unreasonable searches and seizures; they could not be convicted by forcing them to confess or by repeated trials; and they could not be deprived of life, liberty or property without due process of law. They had the right to be informed of the crime for which they had been charged, followed by a speedy jury trial in which they would have the assistance of counsel.

Although all governmental officials take an oath to abide by the Constitution, its provisions are not self-executing--a fact that places great importance on just who occupies the policy-making offices during times of actual or perceived crisis. However, under our system of government, as it evolved, there was recourse for individuals to challenge a decision because it conflicted with the constitutional protection of their rights. That recourse was to the courts, which, from their very inception under the Constitution, accepted a responsibility to adjudicate claims that the government had acted contrary to a fundamental law that protected individual rights. This provision for an independent judiciary seemed to solve a problem that had long bedeviled political thinkers, which was how are those who govern held to their obligation to abide by the restrictions placed upon them. As Thomas Jefferson was contending with his fellow Virginian, James Madison, over the usefulness of adding a bill of rights to the Constitution, he felt that these paper guarantees might be made effective by a strong judiciary. Relatively recent American history has seen the U. S. Supreme Court fulfilling much of Jefferson’s expectation. I say much of it because, as we shall see, the Court has not resisted pressures to conform to the policy decisions of the other governmental branches during times of perceived crisis. In fact, the present Chief Justice William Rehnquist, in a recent book on civil liberties in wartime, cautioned his readers not to expect any more protection from either the present Court or future Courts when responding to announced threats to national security. He wrote: "It is neither desirable nor is it remotely likely that civil liberty will occupy as favored position in wartime as it does in peacetime. . . . The laws will not be silent in time of war, but they will speak with a somewhat different voice."

To expect more is to misperceive the nature of our government, which, in fact, does depend upon the consent of the governed. Judicial decisions are obeyed because the American people believe in a rule of law and, except in very unusual circumstances, have little sympathy for defiance of it. Just take a look at the electoral mess of the recent presidential election. When the Court spoke, people obeyed whether they agreed with the decision or not. So, in the final analysis, the protection of civil liberties rests upon the commitment of the American people to their fundamental law. The only realistic hope, then, is that more and more people will acquire that special taste for civil liberties.

Next, we have to acknowledge that Americans, since the very beginnings of their history, have tended to stereotype groups of people. We are told that initially there seemed to be little distinction between black slaves and white indentured servants; both were held for a period of time to the service of others. Before long, however, a distinction arose. That distinction was racial and with it came the tendency to speak generally in rather derogatory terms of blacks; they were lazy, especially fit for physical work in hot climates, and needful of paternal guidance. How else could a people committed to the equality of persons justify chattel slavery? But blacks were only the first to be racially stereotyped. Chinese workers were eagerly sought for work in building the transcontinental railroads; they were seen as docile and uncomplaining laborers. But when that work was done, they were the first racial group to be excluded from the welcoming arms of the immigrant nation. They could never be Americans; they clung to their foreign traditions and language; no melting pot was hot enough to boil away their foreign traits. These feelings, so strong on the country’s west coast, embraced other Asiatic peoples as well, including the Japanese. Just as the Chinese, the Japanese would be excluded from the naturalization process, but what about the children of such aliens born in the United States. In 1898 the Supreme Court said such children were by the terms of the citizenship clause in the Fourteenth Amendment citizens of the United States. When the forces of the Empire of Japan attacked Hawaii in December 1941, over 120,000 people of Japanese ancestry lived on the West Coast, two-thirds of whom were American citizens by birth. Their citizenship did not prevent them being herded with Japanese aliens into internment camps for the duration of the conflict known as World War II. Their only crime was their national origin

Women were relegated to an inferior place not only under the common law but also within the stereotype of "a woman’s place." Women were confined to an orbit of domestic existence. As they ventured away from the protection of father or husband and sought an independent existence, they were confined to women’s work. The Creator had made the sexes different and assigned them the roles they were to fill. Today certain religious fundamentalists date the spiritual decline of American society from the point at which these "God-given roles" were rejected.

Having alluded to stereotyping on the basis of race and sex, what remains is ethnicity and religion, a powerful combination with present-day ramifications. The first ethnic group to feel the weight of discrimination in the United States was the Irish, driven from their homes by the potato famine in Ireland in the 1840s. The Irish were uniformly characterized as dirty and lazy; help wanted signs often carried the notation "No Irish Need Apply." Furthermore, they were Roman Catholic in what was largely a Protestant nation. Would they be educable in an American democratic tradition, or would they be lackeys of the Pope? This discrimination against the Irish seems strange to us today, for within a generation or two the Irish had assimilated quite well indeed. But by then there were new strangers on the shore.

The so-called new immigration from the 1880s until the outbreak of World War I came not from northern European climes that had furnished the majority of earlier immigrants but rather from southern and eastern Europe. These Russians, Greeks, Italians, Slavs, Poles, and other largely agricultural peoples would man the new American industrial machine. Again the cry was heard that these people were resistant to the American melting pot; they were so unlike their northern neighbors and again possessed of values that upset the Protestant cultural arbiters of the nation. These new immigrants were largely Roman Catholic; the fact that some were Jews was no better. As with much of this ethnic prejudice, one is at a loss to figure the relative importance of nationality and of religion. But whatever the ratio, the prejudice and stereotyping was clear. Italians were either mobsters or bootblacks; Jews became money changers and were subject to quotas in the nation’s educational institutions as well as other places.

Recent influxes of immigrants from Asiatic countries in the wake of the Vietnam war caused some consternation, but relatively little in comparison to the worry about migration from Latin America. Will America change; how can the English language be preserved from the Spanish onslaught? And more Roman Catholics.

It certainly should come as no surprise that Moslems are now being subject to some of the same stereotyping that other nationalities and religions have endured in the nation’s history.

Finally, we need to come to grips with the problems of living in conformity with our beliefs in free speech and a free press. Those who take unpopular positions have often been vilified. Take a look at how the Chancellor of the University of North Carolina here in Chapel Hill came in for criticism for allowing the expression of differing viewpoints on how the nation should respond to the terrorist attacks of September 11th. (One can only wonder what strange views some people must have about the function of an institution of higher education.)

To preserve liberty by trampling upon it has never made any sense. And we need to be especially careful when the forces of government and popular majorities unite in attempting to suppress dissenting speech, when government officials, who rarely showed much appreciation for civil liberties at any time, deride the concern. For instance, one can surely hear echoes of the Vietnam war controversy in Attorney General Ashcroft’s words before a Senate Committee: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve."

Taking away the civil liberties of some to protect us all seems like a reasonable trade off to many, but the threat is much greater not only in the long run but the short run as well. For what such a campaign does, through its inhibition of free discussion, is impinge upon the rights of far more persons than those under specific governmental scrutiny. As an example, take the recent case of the publisher and president of the Sacramento Bee, Janis Besler Heaphy, who had been invited to address the December graduates of the California State University at Sacramento. When she cautioned her audience about the present threat to civil liberties she was booed, heckled and eventually shouted down and could not finish her eight-minute speech. The tyranny of the mob is no less to be feared than the tyranny of the dictator.

In many ways the United States entered the family of nations as a dissenter, taking issue with both the Church of England and the British government. And every reform in our nation’s history has come from a challenge to the status quo--most often in terms of a need to reduce the gap between what we say we believe and what we, in fact, do. Such dissent most often takes the form of speech. This wide-reaching free speech that characterizes our society has been challenged recently by feminists campaigning against pornography, by sensitive souls seeking to make political correctness an orthodoxy, and by conservatives seeking to preserve the nation’s symbols from attack. Why the attack on free speech should concern us all is because the protection of free speech protects the diversity that lies at the very foundation of this nation. A nation that demands conformity cannot tolerate free speech.

A brief recap of major historical episodes may be helpful to survey how the challenges of the past have been met. The first challenge came during the undeclared naval war between France and the United States beginning in 1798. Federalists in Congress took the opportunity to pass a series of acts, the most notorious of which was the Sedition Act that sought to punish a person for "publishing any false, scandalous and malicious writing . . . against the government of the United States, or either house of the Congress . . ., or the President with the intent to defame" them. This legislation was aimed at the Jeffersonian opposition and resulted in the conviction of ten Republican editors and printers. The courts refused to rule on the law’s constitutionality, and it expired by its own terms with the end of John Adams’s administration in March 1801.

The Alien and Sedition Acts of 1798 were challenged by resolutions by the Kentucky and Virginia legislatures, written respectively by Thomas Jefferson and James Madison. Although neither Virginia nor Kentucky received support from other states, the result of the controversy was to widen the permissible arena for political speech.

The next episode concerned the House of Representatives short-circuiting the people’s right to petition their government for a redress of their grievances. This was done by a "gag rule," in existence from 1836 to 1844 that provided that petitions relating to slavery be placed upon the table and not discussed. Although former President John Quincy Adams was eventually successful in getting the "gag rule" rescinded, abolitionist literature was banned from the South by restrictions on such deliveries by the United States Postal Service. To protect the peculiar institution of slavery, the Southern states suppressed considerable speech with the help of a compliant Congress.

During the Civil War, the Lincoln administration suspended the writ of habeas corpus, established military courts to try civilians, and suppressed seditious speech and the press. Despite this most serious and real crisis in the nation’s history, despite the arrest of certain newspaper editors and publishers and despite notations such as "treasonable language," "Southern sympathizer," "disloyalty," and "threatening Unionists" next to prisoners’ names, such arrests simply for speech either in written or oral terms were "exceptional." Well might the present administration go back to the Civil War to find precedents for indefinite detention without charge and military tribunals, but the actions of September 11th hardly compare to the massiveness of a war in which the nation was torn apart as rival armies took the field.

Despite Chief Justice Roger Taney’s attempt to halt Lincoln’s constitutionally questionable actions, the Supreme Court stayed out of the fray until the result on the battlefield had been achieved. For instance, during the course of the war the Court refused to take a case from a military court on the basis that it had no jurisdiction to review the work of such a tribunal. In 1866, with the war safely won, the Court did unanimously decide that the trial of a civilian, in a loyal state where the civil courts were open for business, violated the defendant’s Sixth Amendment right to a jury trial. The Court acknowledged that it was operating from the luxury of the postwar situation and could address the judicial issue freed from concerns of national security. Finding such military trials of civilians in loyal states unconstitutional, the Court said "that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation." The opinion was criticized at the time and subsequently for its lack of sensitivity to the problems of a civil war. Four members of the Court, though not dissenting from the result, did contend that Congressional authorization for such trials might well justify them constitutionally. This post-Civil War Court did not address the fundamental constitutional issues involved in Congressional Reconstruction of the South, but it did invalidate both state and federal loyalty oaths on grounds that they were equivalent to bills of attainder, which were forbidden by the Constitution.

Out of all the crisis situations in American history the Civil War was the most acute. Still, elections were held, and opposing points of view were expressed. Although Reconstruction would continue some repression of civil liberties, it would also spawn three constitutional amendments that would, in the long run, nationalize civil liberties. Resistance to reading the Thirteenth Amendment’s elimination of slavery as a requirement for equal rights for all citizens led to the proposal and ratification of two subsequent amendments, the most important of which was the Fourteenth. This amendment made U.S. citizens of the former slaves and virtually all those subsequently born in the United States. Because of the failure of the former Confederate state governments to treat all their citizens equally, new limitations in behalf of civil liberties and civil rights were placed upon all states in the Union. States could not deny any citizen the privileges and immunities of U.S. citizenship and could not deny any person life, liberty or property without due process of law or the equal protection of the laws. Notice that the protection of civil liberties and rights covers all persons, including aliens. The Fifteenth Amendment prevented states from discriminating on the basis of race, color, or previous condition of servitude in the conference of suffrage.

Reconstruction would end but racial discrimination would not. Jim Crow laws separated the races and other ways, including poll taxes and literacy tests, were found to extinguish voting by blacks in the South. The first Reconstruction would have to be followed by a second one before its aims would be realized.

As the United States rapidly industrialized in the post-Civil War world and enshrined capitalism and middle class values, cultural arbiters, worried about the New Immigration, sought to stifle the speech of those whose ideas challenged the present order. Anarchists wanted to bring down government; labor unionists either challenged the capitalistic order or wanted a greater share of the pie, social noncomformists were advocating free love, and others simply wanted to discuss birth control. The "conservative classes--business, political, religious, educational--banded together to impose their views of a properly ordered society" upon all.

When the Great War began in Europe in the summer of 1914 President Woodrow Wilson declared the nation’s neutrality. A people deeply divided in its sentiments could best be served by insisting upon the country’s rights as a neutral nation. Both sides violated the nation’s neutrality, but Wilson saw in the German use of the submarine a doomsday weapon whose utilization must be curtailed. Responding to American threats Germany complied until early 1917 when its leaders concluded that unrestricted use of the submarine could win the war before any real American effort in behalf of the Allied cause could be mounted. Wilson then was forced to lead a nation with deeply divided loyalties into war. A Committee on Public Information was formed to propagandize the Allied cause; its work was successful enough to inspire vigilantes to pursue not only opponents of the war effort, but also lukewarm supporters in the effort to cleanse the nation of things German, including music and food.

As part of this mobilization effort an Espionage Act was passed in 1917; section three sought to punish those who provided false reports intended to interfere with the war effort, those who sought to cause insubordination in the military, and those who sought to obstruct the draft or enlistment in the armed forces. An amendment to the legislation, known as the Sedition Act, was passed in 1918. It considerably expanded section three of the original act, punishing the obstruction of the sale of war bonds or of loans to the Allies, the curtailment of the production of war materials, the opposition or resistance to the effort of the United States or the support of the enemy by word or act. If this was not enough to stifle any criticism of the war effort, the new addition sought to punish any person who "shall willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States." It gave the Postmaster General authority to deny the use of the mails to publications that he deemed to be in violation of the act. Indeed, free speech was suspended during the war, as the prominent Socialist candidate for president, Eugene V. Debs, among others, quickly discovered. (The repression was so pervasive that it led to the founding of the American Civil Liberties Union.)

As could well be expected, the United States Supreme Court did not address the free speech issue until the guns of war had been silenced. In Schenck v. United States, Oliver Wendell Holmes, Jr., writing for a unanimous Court, for the first time contended with the First Amendment’s free speech clause. Holmes, a relativist, had no difficulty in saying that the First Amendment did not ban all restrictions on speech. One had, he continued, to look at the context in which the speech is made. What may be said with impunity during a time of peace could be punished during crisis times. He drew the analogy with the cry of fire in a theatre. The word fire in that context could well lead to a mad dash for the exits, which, in turn, could well be expected to injure some people. Where there was a clear and present danger, some restriction was constitutionally permitted. What was involved in the case were pamphlets distributed by socialists urging resistance to the draft. No evidence was produced that the draft was in any way hindered by the distribution of the pamphlets, but the Court found that the intent of the distributors to cause some disruption was sufficient to justify a conviction under the Espionage Act.

All the wartime prosecutions were upheld by the Court, though beginning with Abrams v. United States a somewhat chastened Holmes joined his colleague Louis D. Brandeis in dissent to embrace a broader view of the First Amendment’s protections.

The end of the war roughly coincided with the Bolshevik success in Russia, and postwar America suffered through the first of two red scares. Suspected communists, often anarchists, were rounded up, confined and then deported. When bombs addressed to a number of public figures, including Holmes, were discovered in the mail, the nation appeared to be under siege. Attorney-General A. Mitchell Palmer sought to ride this public fear to the White House. As he explained the danger facing the nation:

Like a prairie-fire, the blaze of revolution was sweeping over every

American institution of law and order a year ago. It was eating its way

into the homes of American workmen, its sharp tongues of revolutionary

heat were licking the altars of the churches, leaping into the belfry of the

school bell, crawling into the sacred corners of American homes, seeking

to replace marriage vows with libertine laws, burning up the foundations

of society.

The Palmer raids of late 1919 and early 1920 led to the arrest of some 10,000 persons, including many citizens. The people arrested simply because of a suspicion that they were radicals were denied their civil liberties on such a wholesale basis that was so well publicized that denunciation of the raids became popular. Even a horse cart loaded with dynamite exploding at the intersections of Wall and Broad Streets, instantly killing 30 people and injuring hundreds in September 1920, failed to revive Palmer’s campaign. Predictions of future disaster did not materialize and religious, legal, and political leaders expressed horror at the Justice Department’s actions. Palmer was eventually condemned for abusing his authority.

This episode is especially instructive because it shows what happens when the public sidesteps government-manufactured predictions of doom in what appears to be a crisis situation and responds instead to the reasoned words of critics. As earlier indicated, the protection of our civil liberties in the final analysis rests with the American people’s commitment to them. This relatively positive response to the first red scare unfortunately provided no precedent for the public reaction to a second red scare.

The Great Depression of the 1930s led many observers to question the capitalistic system and see potential in alternatives, such as the Soviet experiment with communism. Worries about subversion of the American political and economic system led Congress in 1940 to pass the Smith Act, which sought to punish "Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing the government." Directed against domestic communists, the Smith Act was all but forgotten when Germany invaded the Soviet Union in June 1941, making a potential ally of the communist state should war between the United States and Germany commence. After the Japanese attacked Pearl Harbor on December 7, 1941, Germany, under the terms of its treaty with Japan, declared war on the United States, now then allied with the Soviet Union in a war against Adolph Hitler’s Germany.

The attack on Pearl Harbor did focus domestic attention on the Japanese and Japanese-Americans, most of whom were on the west coast. There, an anti-Oriental feeling had long percolated, and now that hostility was clearly directed toward those of Japanese ancestry. If Imperial Japan could wreak so much damage in Hawaii, was the West Coast safe, especially when so many people of that heritage were ensconced in strategic locations on the coast. Should this potential threat be removed? An answer of yes by military and government officials began the most horrendous episode of civil liberty deprivation in American history, a conclusion borne out not only by the apology of those people directly involved in setting and executing the policies but by a formal national apology joined with reparations for the survivors of the episode. Citing the impossible task of making individual determinations of loyalty in such a dangerous situation, the military convinced the Roosevelt administration to exclude the people of Japanese ancestry, over 120,000, two thirds of whom were citizens by birth, from designated areas of the west coast that were now labeled military areas. They quickly had to terminate their employment and dispose of their property. By executive order, they were put under a curfew, forced to report to staging areas, and then shipped to interior camps. Except for those who enlisted in the army, most of the others were kept there for the duration of the war. Their ancestry made them suspect, and since the military claimed that the disloyal could not be separated from the loyal before great damage to the nation’s war effort might be done, they were all treated as potentially disloyal.

How could such a blatant violation of civil liberties occur in a nation supposedly dedicated to the proposition that government exists to protect just such liberties? Unlike in prior times, the Supreme Court did address the constitutionality of these actions in three decisions, one in 1943 and two in December 1944. Never, however, did the Court consider the whole matter of forcible relocation. In the first case it limited itself to the issue of the curfew, and in the second case to the issue of excluding persons from a designated military zone. The Court majority essentially concluded that it could not second guess the claim of military necessity that occasioned the exclusion. The final case simply held that where a person had been found to be loyal to the United States, there was no authority to continue her confinement.

That something awful had been done was soon recognized. In 1948 Congress passed the Evacuation Claims Act that gave internees the right to file claims for lost or damaged property as a result of the program. Only $31,000,000 was paid under the program, about ten cents on the dollar.

A new generation of Japanese-Americans with some allies rejected an older generations reticence and passivity and campaigned for further redress. A Congressional committee issued a report in 1980 entitled "Personal Justice Denied," which blamed race prejudice, wartime hysteria and a failure of political leadership for the debacle. The committee also uncovered the fact that the military, which had steadfastly insisted that the presence of this population posed a real and immediate threat, had withheld information that showed that there had been not one single act of espionage tied to the Japanese and Japanese Americans living on the west coast.

This finding led to the filing of a writ of corum nobis in the cases in which Japanese-Americans had been convicted. Such a writ is unusual in that it seeks to overturn a conviction because of the misconduct of the government in its prosecution of the defendanats. The writ was granted in all instances.

The final episode in this long story came in late in 1988 when Congress passed a law providing for a formal apology and reparations in the amount of $20,000. for each survivor of the camp experience. Records indicate payment has been made to 82,000 people.

Although World War II saw no revival of prosecutions for dissenting speech (Some would say because the attack on Pearl Harbor united the American people in a way that Wilson would have envied), the postwar world did produce in the United States a second installment of the red scare. The defeat of Germany and Japan did not usher in a period of peace as the United States and the Soviet Union, which had emerged from the war as the predominant military powers, found peacetime cooperation much more elusive than the wartime variety. Characterizing the struggle as one between democracy and communism or freedom and slavery, the American people were told that they had to be prepared for a different type of conflict--one of indefinite duration, a cold war. Politicians and others looked for scapegoats to blame for the present situation; the government must be infiltrated by spies and people sympathetic to Soviet communism, an assertion that catapulted the career of Senator Joseph McCarthy. They had to be rooted out and their influence eliminated. The Truman administration instituted loyalty checks of federal employees, many of whom were fired as "security risks," without ever being able to discover the charge and the evidence against them. Congressional hearings of the movie industry were followed by other hearings in which witness after witness was called before committees and asked to "name names" of their associates who had been attracted to communism. Accusations of guilt were too often accepted as proof of guilt. The administration had done its propagandistic work well, for the people were convinced that communism was the menace and that too great a concern for individual rights might make the nation vulnerable to defeat. The Smith Act was invoked to convict the leaders of the Communist Party of America, as the Supreme Court modified the clear and present danger test to accommodate what was clearly only advocacy. Seven years later, a less intimidated Court concluded that simple advocacy was insufficient to sustain a conviction under the Smith Act.

And here we come to a fundamental disparity in the way in which our freedom is to be defended. On the one side, often with the full resources of the government at their disposal, are those who argue that fire must be met with fire and that liberty is best defended by using all resources and not being overly sensitive to civil liberties. On the other side are those who believe that to use such tactics is contrary to the very freedom we say we wish to defend. The two sides do little to dent the firm convictions of the other.

Dissent, during the Vietnam conflict, was criticized as aiding the enemy until that dissent began to spread to middle America. When President Lyndon Johnson saw the CBS news anchor, Walter Cronkite, question the reasons we were in Vietnam, he realized that his presidency had been irreparably damaged. In his memoir, Cronkite sought to cope with the argument that criticism of the government was unpatriotic, instead suggesting the following: Perhaps patriotism should be defined "as having the courage to speak and act on those principles one thinks are best for the country, whether they are in accordance with the wishes of the government or not."

Until we, as a people, believe that free speech and other individual rights are worth defending we are doomed to repeat these all too frequent episodes of their suppression. They stain our national honor and leave us vulnerable to a charge of hypocrisy.