July 23, 1970
Page 25551
IS FREEDOM DYING IN AMERICA?
Mr. MUSKIE. Mr. President, Look magazine for July 14 contains an article, written by the noted historian Henry Steele Commager, which is extremely relevant to the debate on the pending bill.
The article is entitled "Is Freedom Dying in America?" In it, the author discusses emerging threats to the freedoms and values enshrined in our Bill of Rights.
One particularly noteworthy passage reads as follows:
Let us turn then to practical and particular issues and ask, in each case, what are and will be the consequences of policies that repress freedom, discourage independence and impair justice in American society, and what are, and will be, the consequences of applying to politics and society those standards and habits of free inquiry that we apply as a matter of course to scientific inquiry?
Consider the erosion of due process of law – that complex of rules and safeguards built up over the centuries to make sure that every man will have a fair trial. Remember that it is designed not only for the protection of desperate characters charged with monstrous crimes; it is designed for every litigant. Nor is due process merely for the benefit of the accused. As Justice Robert H. Jackson said, "It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice. . . ."
And why is it necessary to guarantee a fair trial for all – for those accused of treason, for those who champion unpopular causes in a disorderly fashion, for those who assert their social and political rights against community prejudices, as well as for corporations, labor unions and churches? It is, of course, necessary so that justice will be done. Justice is the end, the aim, of government. It is implicitly the end of all governments; it is quite explicitly the end of the United States
Government, for it was "in order to . . . establish justice" that the Constitution was ordained.
Trials are held not in order to obtain convictions; they are held to find justice. And over the centuries, we have learned by experience that unless we conduct trials by rule and suffuse them with the spirit of fair play, justice will not be done. The argument that the scrupulous observance of technicalities of due process slows up or frustrates speedy convictions is, of course, correct, if all you want is convictions. But why not go all the way and restore the use of torture? That got confessions and convictions! Every argument in favor of abating due process in order to get convictions applies with equal force to the use of the third degree and the restoration of torture. It is important to remember that nation after nation abandoned torture (the Americans never had it) not merely because it was barbarous, but because, though it wrung confessions from its victims, it did not get justice. It implicated the innocent with the guilty, it outraged the moral sense of the community. Due process proved both more humane and infinitely more efficient.
Or consider the problem of wiretapping. That in many cases wiretapping "works" is clear enough, but so do other things prohibited by civilized society, such as torture or the invasion of the home.
But "electronic surveillance," said Justice William J. Brennan, Jr., "strikes deeper than at the ancient feeling that a man's home is his castle; it strikes at freedom of communication, a postulate of our kind of society . . . Freedom of speech is undermined where people fear to speak unconstrainedly in what they suppose to be the privacy of home or office."
I ask unanimous consent that the entire article be printed in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
IS FREEDOM DYING IN AMERICA?
"There are certain words,
Our own and others', we're used to – words we've used,
Heard, had to recite, forgotten,
Rubbed shiny in the pocket, left home for keepsakes,
Inherited, stuck away in the back-drawer,
In the locked trunk, at the back of the quiet mind.
Liberty, equality, fraternity,
To none will we sell, refuse or deny, right or justice.
We hold these truths to be self-evident.
I am merely saying – what if these words pass?
What if they pass and are gone and are no more...?
It took long to buy these words.
It took a long time to buy them and much pain."
– Stephen Vincent Benet.
"Those, who would give up essential liberty to purchase a little temporary safety," said Benjamin Franklin, two centuries ago, "deserve neither liberty nor safety."
Today we are busy doing what Franklin warned us against. Animated by impatience, anger and fear, we are giving up essential liberties, not for safety, but for the appearance of safety. We are corroding due process and the rule of law not for order, but for the semblance of order. We will find that when we have given up liberty, we will not have safety, and that when we have given up justice, we will not have order.
"We in this nation appear headed for a new period of repression," Mayor John V. Lindsay of New York recently warned us. We are in fact already in it.
Not since the days when Sen. Joseph McCarthy bestrode the political stage, fomenting suspicion and hatred, betraying the Bill of Rights, bringing Congress and the State Department into disrepute, have we experienced anything like the current offensive against the exercise of freedom in America. If repression is not yet as blatant or as flamboyant as it was during the McCarthy years, it is in many respects more pervasive and more formidable. For it comes to us now with official sanction and is imposed upon us by officials sworn to uphold the law: the Attorney General, the FBI, state and local officials, the police, and even judges. In Georgia and California, in Lamar, S.C., and Jackson, Miss., and Kent, Ohio, the attacks are overt and dramatic; on the higher levels of the national administration, it is a process of erosion, the erosion of what Thomas Jefferson called "the sacred soil of liberty." Those in high office do not openly proclaim their disillusionment with the principles of freedom, but they confess it by their conduct, while the people acquiesce in their own disinheritance by abandoning the "eternal vigilance" that is the price of liberty.
There is nothing more ominous than this popular indifference toward the loss of liberty, unless it is the failure to understand what is at stake. Two centuries ago, Edmund Burke said of Americans that they "snuff the approach of tyranny in every tainted breeze." Now, their senses are blunted.
The evidence of public opinion polls is persuasive that a substantial part of the American people no longer know or cherish the Bill of Rights. They are, it appears, quite prepared to silence criticism of governmental policies if such criticism is thought – by the Government – damaging to the national interest. They are prepared to censor newspaper and television reporting if such reports are considered – by the Government – damaging to the national interest! As those in authority inevitably think whatever policies they pursue, whatever laws they enforce, whatever wars they fight, are in the national interest, this attitude is a formula for the ending of all criticism, which is another way of saying for the ending of democracy.
Corruption of language is often a first sign of a deeper malaise of mind and spirit, and it is ominous that invasions of liberty are carried on, today, in the name of constitutionalism, and the impairment of due process, in the name of Law and Order. Here it takes the form of a challenge to the great principle of the separation of powers, and there to the equally great principle of the superiority of the civil to the military authority. Here it is the intimidation of the press and television by threats both subtle and blatant, there of resort to the odious doctrine of "intent" to punish antiwar demonstrators. Here it is the use of the dangerous weapon of censorship, overt and covert, to silence troublesome criticism, there the abuse of the power of punishment by contempt of court. The thrust is everywhere the same and so too the animus behind it: To equate dissent with lawlessness and nonconformity with treason. The purpose of those who are prepared to sweep aside our ancient guarantees of freedom is to blot out those great problems that glare upon us from every horizon, and pretend that if we refuse to acknowledge them, they will somehow go away. It is to argue that discontent is not an honest expression of genuine grievances but of willfulness, or perversity, or perhaps of the crime of being young, and that if it can only be stifled, we can restore harmony to our distracted society.
Men like Vice President Spiro T. Agnew simplistically equate opposition to official policies with effete intellectualism, and cater to the sullen suspicion of intellectuals, always latent in any society, to silence that opposition. Frightened people everywhere, alarmed by lawlessness and violence in their communities, and impatient with the notion that we cannot really end violence until we deal with its causes, call loudly for tougher laws, tougher cops and tougher courts or – as in big cities like New York or small towns like Lamar – simply take authority into their own hands and respond with vigilante tactics. Impatient people, persuaded that the law is too slow and too indulgent, and that order is imperiled by judicial insistence on due process, are prepared to sweep aside centuries of progress toward the rule of law in order to punish those they regard as enemies of society. Timid men who have no confidence in the processes of democracy or in the potentialities of education are ready to abandon for a police state the experiment that Lincoln called "the last best hope of earth."
The pattern of repression is, alas, all too familiar. Most ominous is the erosion of due process of law, perhaps the noblest concept in the long history of law and one so important that it can be equated with civilization, for it is the very synonym for justice. It is difficult to remember a period in our own history in which due process has achieved more victories in the courts and suffered more setbacks in the arena of politics and public opinion than in the last decade. While the Warren Court steadily enlarged the scope and strengthened the thrust of this historic concept, to make it an effective instrument for creating a more just society, the political and the law- enforcement agencies have displayed mounting antagonism to the principle itself and resistance to its application. The desegregation decision of 1954 has been sabotaged by both the Federal and local governments – a sabotage dramatized by the recent decision of the Justice Department to support tax exemption for private schools organized to frustrate desegregation.
There are many other examples. Pending legislation, including the Organized Crime Control Act of 1969, provides for "preventive detention" in seeming violation of the constitutional guarantee of presumption of innocence; limits the right of the accused to examine evidence illegally obtained; permits police to batter their way into a private house without notice (the no-knock provision); and provides sentences of up to 30 years for "dangerous special offenders." And the government itself, from local police to the Attorney General, persists in what Justice Holmes called the "dirty business" of wiretapping and bugging to obtain evidence for convictions, though this is a clear violation of the right of protection against self-incrimination.
Equally flagrant is the attack on First Amendment freedoms – freedom of speech, press, petition and assembly – an attack that takes the form of intimidation and harassment rather than of overt repudiation. The President and the Vice President have joined in a crusade designed to force great newspapers like the New York Times and the Washington Post to moderate their criticism of Administration policies, and to frighten the television networks into scaling down their coverage of events that the Government finds embarrassing; a position that rests on the curious principle that the real crime is not official misconduct but the portrayal of that misconduct. Mr. Agnew, indeed, has gone so far as to call on governors to drive the news purveyed by "bizarre extremists" from newspapers and television sets; it is an admonition that, if taken literally, would deny newspaper and TV coverage to Mr. Agnew himself. All this is coupled with widespread harassment of the young, directed superficially at little more than hairstyle, dress or manners – but directed in fact to their opinions, or perhaps to their youthfulness. And throughout the country, government officials are busy compiling dossiers on almost all citizens prominent enough to come to their attention.
Government itself is engaged increasingly in violating what President Dwight D. Eisenhower chose as the motto for the Columbia University bicentenary: "Man's right to knowledge and the free use thereof." The USIA proscribes books that criticize American foreign policy at the same time that it launches a positive program of celebrating the Nixon Administration and the conduct of the Vietnam war through films and a library of "safe" books selected by well-vetted experts.
The Federal Government spends millions of dollars presenting its version of history and politics to the American people. The Pentagon alone spends $47 million a year on public relations and maintains hundreds of lobbyists to deal with Congress, and the Defense Department floods schools and clubs and veterans organizations with films designed to win support for the war.
Meantime, the growing arrogance of the military and its eager intervention in areas long supposed to be exclusively civilian gravely threaten the principle of the superiority of the civil to the military power. Military considerations are advanced to justify the revival of the shabby practices of the McCarthy era – security clearances for civilians working in all establishments that have contracts with Defense – a category that includes laboratories, educational institutions and research organizations. What the standards are that may be expected to dictate security "clearance" is suggested by Vice President Agnew's proposals to "separate the [protest leaders] from our society – with no more regret than we should feel over discarding rotten apples from a barrel." That is, of course, precisely the philosophy that animated the Nazi. Military considerations, too, are permitted to dictate polices of secrecy that extend even to censorship of the Congressional Record, thus denying to congressmen, as to the American people, information they need to make decisions on foreign policy. Secrecy embraces, not unnaturally, facts about the conduct of the war; Attorney General Mitchell, it was reported, hoped to keep the Cambodian caper secret from Congress and the people until it was a fait accompli. So, too, the CIA, in theory merely an information-gathering agency, covers its far-flung operations in some 60 countries with a cloak of secrecy so thick that even Congress cannot penetrate it. The Army itself, entering the civilian arena, further endangers freedom of assembly and of speech by employing something like a thousand agents to mingle in student and other assemblies and report to the Army what they see and hear. This is, however, merely a tiny part of the some $3 billion that our Government spends every year in various types of espionage – more every year than the total cost of the Federal Government from its foundation in 1789 to the beginning of the Civil War in 1861!
It would be an exaggeration to say that the United States is a garrison state, but none to say that it is in danger of becoming one.
The purpose of this broad attack on American freedoms is to silence criticism of Government and of the war, and to encourage the attitude that the Government knows best and must be allowed a free hand, an attitude Americans have thought odious ever since the days of George III.
It is to brand the universities as a fountainhead of subversion and thus weaken them as a force in public life. It is to restore "balance" to the judiciary and thereby reverse some of the great achievements of the 16 years of the Warren Court and to reassure the Bourbons, North and South, who are alarmed at the spectacle of judicial liberalism. It is to return to a "strict" interpretation of the power of states over racial relations and civil liberties – a euphemism for the nullification of those liberties.
The philosophy behind all this, doubtless unconscious, is that government belongs to the President and the Vice President; that they are the masters, and the people, the subjects. A century ago, Walt Whitman warned of "the never-ending audacity of elected persons"; what would he say if he were living today? Do we need to proclaim once more the most elementary principle of our constitutional system: that in the United States, the people are the masters and all officials are servants – officials in the White House, in the Cabinet, in the Congress, in the state executive and legislative chambers; officials, too, in uniform, whether of the national guard or of the police?
Those who are responsible for the campaign to restrict freedom and hamstring the Bill of Rights delude themselves that if they can but have their way, they will return the country to stability and order. They are mistaken. They are mistaken not merely because they are in fact hostile to freedom, but because they don't understand the relation of freedom to the things they prize most – to security, to order, to law.
What is that relationship?
For 2,500 years, civilized men have yearned and struggled for freedom from tyranny – the tyranny of despotic government and superstition and ignorance. What explains this long devotion to the idea and practice of freedom? How does it happen that all Western societies so exalt freedom that they have come to equate it with civilization itself?
Freedom has won its exalted place in philosophy and policy quite simply because, over the centuries, we have come to see that it is a necessity; a necessity for justice, a necessity for progress, a necessity for survival.
How familiar the argument that we must learn to reconcile the rival claims of freedom and order.
But they do not really need to be reconciled; they were never at odds. They are not alternatives, they are two sides to the same coin, indissolubly welded together. The community – society or nation – has an interest in the rights of the individual because without the exercise of those rights, the community itself will decay and collapse. The individual has an interest in the stability of the community of which he is a part because without security, his rights are useless. No community can long prosper without nourishing the exercise of individual liberties for, as John Stuart Mill wrote a century ago. "A State which dwarfs its men, in order that they may be more docile instruments in its hands . . . will find that with small men no great thing can really be accomplished." And no individual can fulfill his genius without supporting the just authority of the state, for in a condition of anarchy, neither dignity nor freedom can prosper.
The function of freedom is not merely to protect and exalt the individual, vital as that is to the health of society. Put quite simply, we foster freedom in order to avoid error and discover truth; so far, we have found no other way to achieve this objective. So, too, with dissent. We do not indulge dissent for sentimental reasons; we encourage it because we have learned that we cannot live without it. A nation that silences dissent, whether by force, intimidation, the withholding of information or a foggy intellectual climate, invites disaster. A nation that penalizes criticism is left with passive acquiescence in error. A nation that discourages originality is left with minds that are unimaginative and dull. And with stunted minds, as with stunted men, no great thing can be accomplished.
It is for this reason that history celebrates not the victors who successfully silenced dissent but their victims who fought to speak the truth as they saw it. It is the bust of Socrates that stands in the schoolroom, not the busts of those who condemned him to death for "corrupting the youth." It is Savonarola we honor, not the Pope who had him burned there in the great Piazza in Florence. It is Tom Paine we honor, not the English judge who outlawed him for writing the Rights of Man.
Our own history, too, is one of rebellion against authority. We remember Roger Williams, who championed toleration, not John Cotton, who drove him from the Bay Colony; we celebrate Thomas Jefferson, whose motto was "Rebellion to tyrants is obedience to God," not Lord North; we read Henry Thoreau on civil disobedience, rather than those messages of President Polk that earned him the title "Polk the Mendacious"; it is John Brown's soul that goes marching on, not that of the judge who condemned him to death at Charles Town.
Why is this? It is not merely because of the nobility of character of these martyrs. Some were not particularly noble. It is because we can see now that they gave their lives to defend the interests of humanity, and that they, not those who punished them, were the true benefactors of humanity.
But it is not just the past that needed freedom for critics, nonconformists and dissenters. We, too, are assailed by problems that seem insoluble; we, too, need new ideas. Happily, ours is not a closed system – not yet, anyway. We have a long history of experimentation in politics, social relations and science. We experiment in astrophysics because we want to land on the moon; we experiment in biology because we want to find the secret of life; we experiment in medicine because we want to cure cancer; and in all of these areas, and a hundred others, we make progress. If we are to survive and flourish, we must approach politics, law and social institutions in the same spirit that we approach science. We know that we have not found final truth in physics or biology. Why do we suppose that we have found final truth in politics or law? And just as scientists welcome new truth wherever they find it, even in the most disreputable places, so statesmen, jurists and educators must be prepared to welcome new ideas and new truths from whatever sources they come, however alien their appearance, however revolutionary their implications.
"There can be no difference anywhere." said the philosopher William James, "that doesn't make a difference elsewhere – no difference in abstract truth that doesn't express itself in a difference in concrete fact...."
Let us turn then to practical and particular issues and ask, in each case, what are and will be the consequences of policies that repress freedom, discourage independence and impair justice in American society, and what are, and will be, the consequences of applying to politics and society those standards and habits of free inquiry that we apply as a matter of course to scientific inquiry?
Consider the erosion of due process of law – that complex of rules and safeguards built up over the centuries to make sure that every man will have a fair trial. Remember that it is designed not only for the protection of desperate characters charged with monstrous crimes; it is designed for every litigant. Nor is due process merely for the benefit of the accused. As Justice Robert H. Jackson said, "It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice. . .
And why is it necessary to guarantee a fair trial for all – for those accused of treason, for those who champion unpopular causes in a disorderly fashion, for those who assert their social and political rights against community prejudices, as well as for corporations, labor unions and churches? It is, of course, necessary so that justice will be done. Justice is the end, the aim, of government. It is implicitly the end of all governments; it is quite explicitly the end of the United States Government, for it was "in order to ... establish justice" that the Constitution was ordained.
Trials are held not in order to obtain convictions; they are held to find justice. And over the centuries, we have learned by experience that unless we conduct trials by rule and suffuse them with the spirit of fair play, justice will not be done. The argument that the scrupulous observance of technicalities of due process slows up or frustrates speedy convictions is, of course, correct, if all you want is convictions. But why not go all the way and restore the use of torture? That got confessions and convictions! Every argument in favor of abating due process in order to get convictions applies with equal force to the use of the third degree and the restoration of torture. It is important to remember that nation after nation abandoned torture (the Americans never had it), not merely because it was barbarous, but because, though it wrung confessions from its victims, it did not get justice. It implicated the innocent with the guilty, it outraged the moral sense of the community. Due process proved both more humane and infinitely more efficient.
Or consider the problem of wiretapping. That in many cases wiretapping "works" is clear enough, but so do other things prohibited by civilized society, such as torture or the invasion of the home. But "electronic surveillance," said Justice William J. Brennan, Jr., "strikes deeper than at the ancient feeling that a man's home is his castle; it strikes at freedom of communication, a postulate of our kind of society . . . . Freedom of speech is undermined where people fear to speak unconstrainedly in what they suppose to be the privacy of home or office."
Perhaps the most odious violation of justice is the maintenance of a double standard: one justice for blacks and another for whites, one for the rich and another for the poor, one for those who hold "radical" ideas, and another for those who are conservative and respectable. Yet we have daily before our eyes just such a double standard of justice. The "Chicago Seven," who crossed state lines with "intent" to stir up a riot, have received heavy jail sentences, but no convictions have been returned against the Chicago police who participated in that riot. Black Panthers are on trial for their lives for alleged murders, but policemen involved in wantonly attacking a Black Panther headquarters and killing two blacks have been punished by demotion.
Turn to the role and function of freedom in our society – freedom of speech and of the press – and the consequences of laying restrictions upon these freedoms. The consequence is, of course, that society will be deprived of the inestimable advantage of inquiry, criticism, exposure and dissent. If the press is not permitted to perform its traditional function of presenting the whole news, the American people will go uninformed. If television is dissuaded from showing controversial films, the people will be denied the opportunity to know what is going on. If teachers and scholars are discouraged from inquiring into the truth of history or politics or anthropology, future generations may never acquire those habits of intellectual independence essential to the working of democracy. An enlightened citizenry is necessary for self-government. If facts are withheld, or distorted, how can the people be enlightened, how can self-government work?
The real question in all this is what kind of society do we want? Do we want a police society where none are free of surveillance by their government? Or do we want a society where ordinary people can go about their business without the eye of Big Brother upon them?
The Founding Fathers feared secrecy in government not merely because it was a vote of no-confidence in the intelligence and virtue of the people but on the practical ground that all governments conceal their mistakes behind the shield of secrecy; that if they are permitted to get away with this in little things, they will do it in big things – like the Bay of Pigs or the invasion of Cambodia.
And if you interfere with academic freedom in order to silence criticism, or critics, you do not rid the university of subversion. It is not ideas that are subversive, it is the lack of ideas. What you do is to silence or get rid of those men who have ideas, leaving the institution to those who have no ideas, or have not the courage to express those that they have. Are such men as these what we want to direct the education of the young and advance the cause of learning?
The conclusive argument against secrecy in scientific research is that it will in the end give us bad science. First-rate scientists will not so gravely violate their integrity as to confine their findings to one government or one society, for the first loyalty of science is to scientific truth.
"The Sciences," said Edward Jenner of smallpox fame, "are never at war." We have only to consider the implications of secrecy in the realm of medicine: What would we think of doctors favoring secrecy in cancer research on the grounds of "national interest"?
The argument against proscribing books, which might normally be in our overseas libraries, because they are critical of Administration policies is not that it will hurt authors or publishers. No. It is quite simply that if the kind of people who believe in proscription are allowed to control our libraries, these will cease to be centers of learning and become the instruments of party. The argument against withholding visas from foreign scholars whose ideas may be considered subversive is not that this will inconvenience them. It is that we deny ourselves the benefit of what they have to say. Suppose President Andrew Jackson had denied entry to Alexis de Tocqueville on the ground that he was an aristocrat and might therefore be a subversive influence on our democracy? We would have lost the greatest book ever written about America.
There is one final consideration. Government, as Justice Louis D. Brandeis observed half a century ago, "is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." If government tries to solve its problems by resort to large-scale violence, its citizens will assume that violence is the normal way to solve problems. If government itself violates the law, it brings the law into contempt, and breeds anarchy. If government masks its operations, foreign and domestic, in a cloak of secrecy, it encourages the creation of a closed, not an open, society. If government shows itself impatient with due process, it must expect that its people will come to scorn the slow procedures of orderly debate and negotiation and turn to the easy solutions of force. If government embraces the principle that the end justifies the means, it radiates approval of a doctrine so odious that it will in the end destroy the whole of society. If government shows, by its habitual conduct, that it rejects the claims of freedom and of justice, freedom and justice will cease to be the ends of our society.
Eighty years ago, Lord Bryce wrote of the American people that "the masses of the people are wiser, fairer and more temperate in any matter to which they can be induced to bend their minds, than most European philosophers have believed possible for the masses of the people to be."
Is this still true? If the American people can indeed be persuaded to "bend their minds" to the great questions of the preservation of freedom, it may still prove true. If they cannot, we may be witnessing, even now, a dissolution of the fabric of freedom that may portend the dissolution of the Republic.