31
WHAT GOOD IS LIBERTY IF YOU CAN'T GET IT?
WHAT GOOD IS LIBERTY IF YOU CAN'T GET IT?
CIVIL LIBERTIES TODAY—FOR
BETTER OR FOR WORSE?
BETTER OR FOR WORSE?
Boss Hague of Jersey City is inadvertently, and with growing unwillingness, the force behind an encouraging revival of the fight for civil liberties in America. He is so crude that he has offended the most conservative people in the country—one federal District Court has enjoined him from further violating the liberties of the people, and the decision has been affirmed by the United States Circuit Court of Appeals sitting in Philadelphia. But since this chapter needs a happy ending, let's take the hard problems first, and use the Boss to wind it up.
Our inquiry here is into civil liberties in this country today and their chances for the future. In the chapter just before this I tried to make it plain that without economic liberty, there is no liberty at all.
We all want to associate with whom we please and to assemble for religious worship according to the dictates of our consciences or for any other lawful purpose. We want no blue-coats or Brown Shirts or private thugs entering our meetings or homes, beating us up or treating us in an arbitrary manner.
But if we are too poor to own any newspapers, radio stations, movie studios and theaters; if we are too poor to finance political campaigns to elect our representatives to school and university boards—too poor, in other words, to have access to any of the exceedingly expensive molders of public opinion, then our system of majority rule becomes in time almost meaningless. Economic liberty, I must repeat, is the basic issue.
Nevertheless, we do have in America constitutional liberty guaranteed to all alike—to rich and poor, Jew and Gentile, reactionary and radical, Seventh Day Adventist, Protestant or Catholic, the stupid or the bright—everybody. "The right to express unpopular opinions and to hold unpopular meetings is of the essence of American liberty." [Brief of the Special Committee on the Bill of Rights, of the American Bar Association, as friends of the Court, in Frank Hague vs. C. I. O., American Civil Liberties Union and others, October, 1938. In the Federal Circuit Court of Appeals, Philadelphia.]
Since the Supreme Court has held time after time that the Bill of Rights does not protect one if his rights are violated by a state or its subdivisions, the states and localities have obliged by committing widespread violation of the rights and liberties of their citizens from the day the Constitution was signed, to date. There have been denials of right of trial by jury, habeas corpus, the right of free speech, press and assembly; there have been "deportations" by cities and states, as well as illegal beatings and third degrees. The rights of citizens have gone either wholly or partially unprotected by either the state or the federal Courts.
Yet the Fourteenth Amendment, as we have already seen, was used to build up property rights under the due process clause. Although the people, when they adopted the Amendment, thought they were protecting the civil rights of persons only, corporations got the rights instead, and the Supreme Court has decided several times that "Trial by jury has never been affirmed to be a necessary requisite of due process of law." [Maxwell vs. Dow, 176 N. S. 581 (1900).] (To this, Mr. Justice Stone made powerful dissent: "It would seem that the protection of private property is of more consequence than the protection of life and liberty of the citizen.") Hence it is possible for an American citizen to be sent to the penitentiary for a term of years without jury and with no relief from the Supreme Court of the United States.
As I have tried to emphasize several times before, the Supreme Court has never recognized the Bill of Rights as applying to actions by states or individuals; it is only in the last few years that the Bill of Rights has even got favorable mention. Also I have placed emphasis on the fact that the Fourteenth Amendment was used to protect property, and that the recent protection of civil rights has been under this Amendment, not the Bill of Rights.
Under the due process clause of the Fourteenth Amendment, the Court has squarely protected the right of free speech and press when violated by a state. Freedom of assembly it likewise affirmed in the same manner as against states, in the famous De Jonge case [De Jonge vs. Oregon, 299 U. S. 353, 57 Sup. Ct. 255.], although it did not make the right as clear as the right of free speech and press.
First of all, we must be able to get into court when our rights our violated. For that we've got to have additional legislation by Congress. In state cases it is now very difficult, and often quite impossible even, to get started in the federal Courts, much less ever get to the Supreme Court of the United States.
Let me explain this.
Recently a woman was charged under Georgia law with distributing circulars issued by "Jehovah's Witnesses" (a religious sect). Under an ordinance she was given her choice of a sentence of fifty days in jail or a fine of fifty dollars. The case reached the Supreme Court on appeal, and the Court—citing the old pre-Revolutionary abandonment of the "printer's Licence Law" in England, and by saying that it was in violation of the due process clause of the Fourteenth Amendment—held that she had been deprived of liberty of press. The Georgia law was not held unconstitutional because of the violation of the American Bill of Rights, or because religious liberty had been violated.
That means that if the woman in Georgia had not been convicted according to a Georgia law, but had been unofficially beaten up by the police, mobbed, and denied her liberties, THERE WOULD HAVE BEEN NO PROTECTION THROUGH THE FEDERAL COURTS because it would have been held a mere local crime and not the action of the state itself. It is possible that the Court will change this when it hands down a decision in the Hague case, because the Circuit Court of Appeals enjoined individual officials acting beside any law, from searches and seizures; violations of freedom of speech, press, assembly; deportations and the like. But it is certain that citizens are not now protected by federal law from violations of constitutional liberties by mobs.
Since jurisdictional questions are very complicated and long, I shall not discuss them here. But I believe that the key to the protection of civil rights is a protective federal statute, or a statute which provides access to the federal courts. Since the High Court's recent extension of liberty, we should make it possible for one deprived of liberties to get into court. Otherwise the great principles of liberty will be of no value, since over ninety-five percent of police actions are by state and local officers. It is in these ninety-five percent of the cases that we are deprived of our liberties, and that is wehre the protection is needed.
Congress, it seems to me, should pursue two courses:
First: Congress should enact a law for the protection of free speech, press, religion, and the right of assembly and petition, under the Fourteenth Amendment, and also either directly or indirectly under the Bill of Rights, although the latter is not recognized by the Court as protecting the citizen against invasion by the states.
Since religious liberty is not now blanketed in, one might ask why this should be included. I simply believe the Supreme Court will be willing to step forward and blanket in religious liberty. Also, the Court would no doubt strengthen the other liberties included in the First Amendment, which have already been recognized under the Fourteenth Amendment. The statute to be enacted would provide for immediate injunction in federal courts if the liberties mentioned were being violated; penalties could be fixed.
Second: Congress should enact a law with teeth requiring all state officers to be bound by an oath to support the Constitution of the United States and the rights just enumerated above. There is a law now requiring an oath, but it means nothing, and no attention is paid to it. The law should be so written as to force the officers actually to observe the oath in practice.
Par of Article VI of the Constitution reads:
Many lawyers say statutes are unnecessary, because the officers of the states are already bound by the Constitution. But Congress has made no effort to compel observance of this rule in practice.
I have inquired of hundreds of people over the country concerning their attitude toward the federal protection of liberties. Only a small majority favor the idea. Some oppose it because they don't want the rights of minorities in their localities protected—of Negroes in the South, of migratory and industrial workers in some states, of racial minorities in others. They don't want any "federal meddling"—a pre-Civil War idea. I was surprised to hear several labor lawyers say that if there were "federal interference," it would mean bringing out federal troops to settle strikes.
I can see no danger of breaking down local self-government by protecting our rights under the Constitution. The legislation should, of course, be carefully drawn in order not to create violent opposition. That is the reason that the bill should include only the simple protection of speech, press, religious worship, petition and assembly.
People can get together on at least that much. Those holding unpopular religious or political views can be certain of protection against state officials as well as federal officers, for such officials will be bound by the Constitution. Only if the various rights are not protected by the state officers will the federal officials offer protection, and then probably only under court order. People of various beliefs, victims of actual or imagined wrongs, can assemble and express themselves. They can petition, print papers and pamphlets without interference. This seems to me to be a minimum of ordinary justice.
And now about Boss Hague, still, in 1939, the Mayor of Jersey City, New Jersey.
In 1937-38 he prohibited free speech, assemblage, deported people out of his domain, and otherwise violated American liberties through the use of his police. Among those suffering deprivations were the CIO and other unions, the American Civil Liberty Union, and various individuals. On constitutional and statutory grounds, the aggrieved parties got into court, Morris Ernst, the prominent New York lawyer, directed and led their fight. Although it is not relevant to the case, it is worth while to notice that Ernst is Jewish, and that in the protection of constitutional democracy and civil and religious liberties, Jews have always taken a large and leading part. At any rate, Morris Ernst deserves a large share of the credit for winning the case in the federal District Court.
Then Hague was stupid enough to appeal to the United States Circuit Court of Appeals in Philadelphia.
The American Bar Association, probably the most conservative organization in America, joined in on the side of the CIO and the Civil Liberties Union in the protection of civil liberties. It had never, as far as I can find out, done such a thing before. Most of its members had been too busy having state laws declared unconstitutional under the Fourteenth Amendment and attending to their heavy corporate duties. Their stand showed an attitude far in advance of that of the fifty-eight reactionary lawyers, most of them members of the American Bar Association, who had "declared" the National Labor Relations Act, "unconstitutional."
Better late than never. The American Bar Association is welcomed as a friend of liberty—and I hereby dedicate this chapter to the organization upon condition that not less than one dozen of its fifty thousand members read the chapters on the Supreme Court, the Fourteenth Amendment, and Monopoly.
Those who drew up the Association's brief found little authority for protection of liberty by the Supreme Court—little because there has been (before 1925) ever so little. In fact, they frequently refer to the "modern doctrine of the Supreme Court" (with reference to protection of liberties). They vigorously assert "right of assembly . . . lies at the foundation of our system of government ... and ... suppression of discussion leads directly to tyranny and loss of other rights." They then add that recent experience proves the necessity of a "constant process of open debate if free government is to function effectively in a democracy," adding that democracy can function only by means of free discussion.
It is pleasing to know that this extrememly conservative organization has, after some sixty years of other activities, interested itself in preserving the Bill of Rights and the liberties of the poeple under the Fourteenth Amendment.
What the Supreme Court is going to do—is in the lap of the gods, I started to say. But if the Court continues what the Bar Association calls its modern trend—a trend created by public opinion—it will give its protection. To cinch it, all we need is still more public opinion in the support of liberties. The main purpose of protective legislation is to enable a person to get into a federal court when his liberties are violated, and once there, to provide a procedure that is simple and not costly.
One thing is certain: this is no plea for liberals, progressives or "radicals," any more than for conservatives. It is for all Americans. For indeed, if Mayor Hague of Jersey can deport a man because he belongs to a labor union, Mayor McLevy of Bridgeport, or Mayor Hoan of Milwaukee, both Socialists, can deport a conservative because he belongs to a chamber of commerce or social club.
Thus as a matter of common sense, all the people, no matter what their viewpoint and no matter what their economic status, should insist upon the preservation of civil liberties. This is practical. It is sensible. It is, as a matter of fact, fair play, a means of protecting orderly government. It is one of the foundation stones of the American system—of our living constitution.
Our inquiry here is into civil liberties in this country today and their chances for the future. In the chapter just before this I tried to make it plain that without economic liberty, there is no liberty at all.
We all want to associate with whom we please and to assemble for religious worship according to the dictates of our consciences or for any other lawful purpose. We want no blue-coats or Brown Shirts or private thugs entering our meetings or homes, beating us up or treating us in an arbitrary manner.
But if we are too poor to own any newspapers, radio stations, movie studios and theaters; if we are too poor to finance political campaigns to elect our representatives to school and university boards—too poor, in other words, to have access to any of the exceedingly expensive molders of public opinion, then our system of majority rule becomes in time almost meaningless. Economic liberty, I must repeat, is the basic issue.
Nevertheless, we do have in America constitutional liberty guaranteed to all alike—to rich and poor, Jew and Gentile, reactionary and radical, Seventh Day Adventist, Protestant or Catholic, the stupid or the bright—everybody. "The right to express unpopular opinions and to hold unpopular meetings is of the essence of American liberty." [Brief of the Special Committee on the Bill of Rights, of the American Bar Association, as friends of the Court, in Frank Hague vs. C. I. O., American Civil Liberties Union and others, October, 1938. In the Federal Circuit Court of Appeals, Philadelphia.]
Since the Supreme Court has held time after time that the Bill of Rights does not protect one if his rights are violated by a state or its subdivisions, the states and localities have obliged by committing widespread violation of the rights and liberties of their citizens from the day the Constitution was signed, to date. There have been denials of right of trial by jury, habeas corpus, the right of free speech, press and assembly; there have been "deportations" by cities and states, as well as illegal beatings and third degrees. The rights of citizens have gone either wholly or partially unprotected by either the state or the federal Courts.
Yet the Fourteenth Amendment, as we have already seen, was used to build up property rights under the due process clause. Although the people, when they adopted the Amendment, thought they were protecting the civil rights of persons only, corporations got the rights instead, and the Supreme Court has decided several times that "Trial by jury has never been affirmed to be a necessary requisite of due process of law." [Maxwell vs. Dow, 176 N. S. 581 (1900).] (To this, Mr. Justice Stone made powerful dissent: "It would seem that the protection of private property is of more consequence than the protection of life and liberty of the citizen.") Hence it is possible for an American citizen to be sent to the penitentiary for a term of years without jury and with no relief from the Supreme Court of the United States.
As I have tried to emphasize several times before, the Supreme Court has never recognized the Bill of Rights as applying to actions by states or individuals; it is only in the last few years that the Bill of Rights has even got favorable mention. Also I have placed emphasis on the fact that the Fourteenth Amendment was used to protect property, and that the recent protection of civil rights has been under this Amendment, not the Bill of Rights.
Under the due process clause of the Fourteenth Amendment, the Court has squarely protected the right of free speech and press when violated by a state. Freedom of assembly it likewise affirmed in the same manner as against states, in the famous De Jonge case [De Jonge vs. Oregon, 299 U. S. 353, 57 Sup. Ct. 255.], although it did not make the right as clear as the right of free speech and press.
Although these rights are only a very few of the liberties we think we have, the Court's decisions marked a tremendous advance in liberty and human rights in America. They must be followed up in order that civil liberties may be expanded. The Bill of Rights must be eventually blanketed in our Constitution as against the state governments as well as the federal government.
First of all, we must be able to get into court when our rights our violated. For that we've got to have additional legislation by Congress. In state cases it is now very difficult, and often quite impossible even, to get started in the federal Courts, much less ever get to the Supreme Court of the United States.
Let me explain this.
Recently a woman was charged under Georgia law with distributing circulars issued by "Jehovah's Witnesses" (a religious sect). Under an ordinance she was given her choice of a sentence of fifty days in jail or a fine of fifty dollars. The case reached the Supreme Court on appeal, and the Court—citing the old pre-Revolutionary abandonment of the "printer's Licence Law" in England, and by saying that it was in violation of the due process clause of the Fourteenth Amendment—held that she had been deprived of liberty of press. The Georgia law was not held unconstitutional because of the violation of the American Bill of Rights, or because religious liberty had been violated.
That means that if the woman in Georgia had not been convicted according to a Georgia law, but had been unofficially beaten up by the police, mobbed, and denied her liberties, THERE WOULD HAVE BEEN NO PROTECTION THROUGH THE FEDERAL COURTS because it would have been held a mere local crime and not the action of the state itself. It is possible that the Court will change this when it hands down a decision in the Hague case, because the Circuit Court of Appeals enjoined individual officials acting beside any law, from searches and seizures; violations of freedom of speech, press, assembly; deportations and the like. But it is certain that citizens are not now protected by federal law from violations of constitutional liberties by mobs.
Since jurisdictional questions are very complicated and long, I shall not discuss them here. But I believe that the key to the protection of civil rights is a protective federal statute, or a statute which provides access to the federal courts. Since the High Court's recent extension of liberty, we should make it possible for one deprived of liberties to get into court. Otherwise the great principles of liberty will be of no value, since over ninety-five percent of police actions are by state and local officers. It is in these ninety-five percent of the cases that we are deprived of our liberties, and that is wehre the protection is needed.
Congress, it seems to me, should pursue two courses:
First: Congress should enact a law for the protection of free speech, press, religion, and the right of assembly and petition, under the Fourteenth Amendment, and also either directly or indirectly under the Bill of Rights, although the latter is not recognized by the Court as protecting the citizen against invasion by the states.
Since religious liberty is not now blanketed in, one might ask why this should be included. I simply believe the Supreme Court will be willing to step forward and blanket in religious liberty. Also, the Court would no doubt strengthen the other liberties included in the First Amendment, which have already been recognized under the Fourteenth Amendment. The statute to be enacted would provide for immediate injunction in federal courts if the liberties mentioned were being violated; penalties could be fixed.
Second: Congress should enact a law with teeth requiring all state officers to be bound by an oath to support the Constitution of the United States and the rights just enumerated above. There is a law now requiring an oath, but it means nothing, and no attention is paid to it. The law should be so written as to force the officers actually to observe the oath in practice.
Par of Article VI of the Constitution reads:
". . . the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or affirmation, to support this Constitution; . . ."
Many lawyers say statutes are unnecessary, because the officers of the states are already bound by the Constitution. But Congress has made no effort to compel observance of this rule in practice.
However, these methods will be worthless unless backed by the unified public opinion of the American people.
I have inquired of hundreds of people over the country concerning their attitude toward the federal protection of liberties. Only a small majority favor the idea. Some oppose it because they don't want the rights of minorities in their localities protected—of Negroes in the South, of migratory and industrial workers in some states, of racial minorities in others. They don't want any "federal meddling"—a pre-Civil War idea. I was surprised to hear several labor lawyers say that if there were "federal interference," it would mean bringing out federal troops to settle strikes.
I can see no danger of breaking down local self-government by protecting our rights under the Constitution. The legislation should, of course, be carefully drawn in order not to create violent opposition. That is the reason that the bill should include only the simple protection of speech, press, religious worship, petition and assembly.
People can get together on at least that much. Those holding unpopular religious or political views can be certain of protection against state officials as well as federal officers, for such officials will be bound by the Constitution. Only if the various rights are not protected by the state officers will the federal officials offer protection, and then probably only under court order. People of various beliefs, victims of actual or imagined wrongs, can assemble and express themselves. They can petition, print papers and pamphlets without interference. This seems to me to be a minimum of ordinary justice.
And now about Boss Hague, still, in 1939, the Mayor of Jersey City, New Jersey.
In 1937-38 he prohibited free speech, assemblage, deported people out of his domain, and otherwise violated American liberties through the use of his police. Among those suffering deprivations were the CIO and other unions, the American Civil Liberty Union, and various individuals. On constitutional and statutory grounds, the aggrieved parties got into court, Morris Ernst, the prominent New York lawyer, directed and led their fight. Although it is not relevant to the case, it is worth while to notice that Ernst is Jewish, and that in the protection of constitutional democracy and civil and religious liberties, Jews have always taken a large and leading part. At any rate, Morris Ernst deserves a large share of the credit for winning the case in the federal District Court.
Then Hague was stupid enough to appeal to the United States Circuit Court of Appeals in Philadelphia.
The American Bar Association, probably the most conservative organization in America, joined in on the side of the CIO and the Civil Liberties Union in the protection of civil liberties. It had never, as far as I can find out, done such a thing before. Most of its members had been too busy having state laws declared unconstitutional under the Fourteenth Amendment and attending to their heavy corporate duties. Their stand showed an attitude far in advance of that of the fifty-eight reactionary lawyers, most of them members of the American Bar Association, who had "declared" the National Labor Relations Act, "unconstitutional."
Better late than never. The American Bar Association is welcomed as a friend of liberty—and I hereby dedicate this chapter to the organization upon condition that not less than one dozen of its fifty thousand members read the chapters on the Supreme Court, the Fourteenth Amendment, and Monopoly.
Those who drew up the Association's brief found little authority for protection of liberty by the Supreme Court—little because there has been (before 1925) ever so little. In fact, they frequently refer to the "modern doctrine of the Supreme Court" (with reference to protection of liberties). They vigorously assert "right of assembly . . . lies at the foundation of our system of government ... and ... suppression of discussion leads directly to tyranny and loss of other rights." They then add that recent experience proves the necessity of a "constant process of open debate if free government is to function effectively in a democracy," adding that democracy can function only by means of free discussion.
It is pleasing to know that this extrememly conservative organization has, after some sixty years of other activities, interested itself in preserving the Bill of Rights and the liberties of the poeple under the Fourteenth Amendment.
What the Supreme Court is going to do—is in the lap of the gods, I started to say. But if the Court continues what the Bar Association calls its modern trend—a trend created by public opinion—it will give its protection. To cinch it, all we need is still more public opinion in the support of liberties. The main purpose of protective legislation is to enable a person to get into a federal court when his liberties are violated, and once there, to provide a procedure that is simple and not costly.
One thing is certain: this is no plea for liberals, progressives or "radicals," any more than for conservatives. It is for all Americans. For indeed, if Mayor Hague of Jersey can deport a man because he belongs to a labor union, Mayor McLevy of Bridgeport, or Mayor Hoan of Milwaukee, both Socialists, can deport a conservative because he belongs to a chamber of commerce or social club.
Thus as a matter of common sense, all the people, no matter what their viewpoint and no matter what their economic status, should insist upon the preservation of civil liberties. This is practical. It is sensible. It is, as a matter of fact, fair play, a means of protecting orderly government. It is one of the foundation stones of the American system—of our living constitution.
