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The Supreme Court and Civil Liberties
By Isidor Feinstein
February 6, 1937
Vol. 144, No. 6, P. 151-153
This year we celebrate the 150th anniversary of the signing of the Constitution. The Bill of Rights will figure in after-dinner speeches, and newspapers will repeat the noble phrases that have come from the Supreme Court in defense of civil liberties. Few will mention that these phrases come almost entirely from dissenting opinions and that the Bill of Rightsunder the expert manipulation of the federal courtshas never been what it was thought to be. The Constitution is 150 years old, but the decision in De Jonge vs. Oregon handed down on January 4 happens to be the first in all that time in which the constitutional guaranty of free speech, press, and assembly was applied by the Supreme Court in a case involving a radical. That the court has alwaysor almost alwaysbeen ready to defend the liberties of conservatives will remain of merely academic importance until police begin beating up members of the Union League for criticizing the government. A decision setting aside the conviction of a Communist, De Jonge, under the Oregon criminal-syndicalism law is genuinely a victory for civil liberties.
Even this victory may be overestimated. De Jonge was arrested at a meeting called by the Communist Party in Portland, Oregon, to protest against the illegal raids made by the police in their effort to break the longshoremen's strike in 1934. He was sentenced to seven years in jail for "criminal syndicalism." Despite the capacity of the judicial mind to befog the simplest issue when fog is advantageous, De Jonge's conviction could hardly be regarded as other than a clever invasion of fundamental liberties. It is indicative of how far we have drifted that we are so pleasantly surprised when the court begins to recognize the obvious.
I say "begins" to recognize. A law that provides the police with any excuse for breaking up meetings of this kindand the history of criminal-syndicalism cases since the war shows that this was no exceptional occurrenceis a menace to freedom. It is comparable to a law which would enable the police to make a practice of confiscating automobiles on the excuse that they were trying to prevent fatal accidents. Would the court order a seized automobile returned but leave standing the law which permitted its confiscation? The court does not exercise forbearance in dealing with property rights. In the Schechter case, though it was only called upon to decide the constitutionality of federal supervision as applied to the purely intrastate poultry business, the effect of its decision was to void the NRA in its entirety and to lay down principles which would seem to bar federal wage, hour, and trade-practice regulation in any business. The court is more circumspect where fundamental liberties are concerned. It did not hold the Oregon statute unconstitutional. It merely set aside this particular application of it. "We hold," the court said, "that the Oregon statute as applied to the particular charge as defined by the state court is repugnant to the due-process clause. . . ." Would the court were as cautious in dealing with social legislation!
The De Jonge decision may even have drawbacks. Liberal decisions have often been won in the past at the expense of establishing restrictive principles which bear evil fruit in later cases. The Supreme Court in this case decided only that no man could be found guilty of criminal syndicalism merely for participating in a meeting held under Communist auspices. The court goes on to tell what offenses De Jonge might have been convicted of: ". . . while the defendant was a member of the Communist Party, he was not indicted for participating in its organization. or for joining it, or for soliciting members, or for distributing its literature.' De Jonge's case was "remanded for further proceedings not inconsistent with this opinion." Do these words mean that if De Jonge were now to be indicted and convicted of joining the Communist Party, or recruiting members for it, or distributing its literature, the court would be ready to uphold the conviction? Some price must have been paid for the acquiescence of Sutherland, McReynolds, Butler, and Van Devanter in this opinion. Has the court laid the basis for greater restrictions than ever on civil liberties under our state criminal-syndicalism and anarchy laws?
Nor is it pleasant to find what seems to be an implied acceptance of the idea of surveillance over the exercise of the rights of speech and assembly. In dealing with property rights the court has held that freedom is the rule and restraint is the exception. In the matter of fundamental liberties it has been he heldthough the principle has been more honored in the breachthat only an overt act or clear and imminent danger justifies limitations on the exercise of free speech, press, or assembly. The court in one part of this decision speaks a new language. "The broad reach of the statute as thus applied," the court says, "is plain. While defendant was a member of the Communist Party, that membership was not necessary to conviction on such a charge. A like fate might have attended any speaker, although not a member, who 'assisted in the conduct' of the meeting. However innocuous the object of the meeting, however lawful the subjects and tenor of the addresses, however reasonable and timely the discussion, all those assisting in the conduct of the meeting would be subject to imprisonment as felons if the meeting were held by the Communist Party." And if all those who participated were adjudged Communists and if the object were not "innocuous" and the discussion were not in the court's opinion "timely" or "reasonable" and the "tenor" of the addresses were to be considered unlawful, what then?
Past experience underscores the necessity for vigilance. The Bill of Rights is prominent in the official portrait of the court, but plays an inglorious role in its actual history. The federal courts were enthusiastic in their enforcement of the Sedition Act under Adams. The Supreme Court was ineffective in its one puny gesture of protest against Lincoln's suspension of habeas corpus, and with it of all basic rights, during the Civil War. The court helped to forge new instruments of repression in its interpretation of the immigration laws. It was ready to find excuse in far-fetched analogies for the use and abuse of the Espionage Act during the World War. It has consistently upheld criminal-syndicalism laws, product of the post-war red scares. The De Jonge case and its predecessors disclose the wide gap between myth and fact even in a civilized community. Our legal soothsayers have succeeded in portraying as a tribune of the people a governmental organ whose most consistent and conspicuous function has been the adaptation of our basic law to the needs of corporate enterprise. Not a few timid liberals still fear curtailment of the court's swollen powers lest it be unable to protect us from fascism. In their visions they see Justices Sutherland, Butler, McReynolds, Van Devanter, and Roberts manning legal barricades in defense of Messrs. Norman Thomas and Earl Browder. This is pure fancy.
Even Justice Holmes (in the war-time Schenck case) drew from the illegality of advocating murder and the wickedness of shouting "fire" in a crowded theater constitutional non sequiturs that place powerful instruments in the hands of those who may some day seek to regiment the American people. No construction has been too broad when property rights were before the court. It has been ready to enlarge on the Constitution and to invoke the divine order of things to legalize some of the greatest steals in our history, notably in the Yazoo frauds and the Crédit Mobilier scandal. But it looked the other way when the Chicago anarchists were hung, Debs was jailed, Mooney framed, and Sacco and Vanzetti sent to the chair. It will cut through all procedural difficulties and overturn well-established precedents to review both law and fact when a utility company appeals from a rate-cut order, but it falls back on extremes of legal punctilio when human lives and basic liberties are at stake, especially those of radicals, that is, of those who most need protection. Far from being a bulwark against fascism, the court may serve a double function in its rise. If the court continues to hamstring Congress and state legislatures, it will play directly into the hands of the fascist demagogue who sneers at the "inefficiency" of democratic processes. If fascism comes and the court should, by some miracle, seek to block it, Der Duce will not play Alphonse and Gaston with the court. On the other hand, a fascist regime will find material in past court decisions to provide itself with legal, nay, "constitutional," justification; even in two decisions handed down by liberal justices.
The Fifth Amendment guarantees due process and trial by jury, but in the Ju Toy case Justice Holmes held that this did not give the right of appeal from an administrative order barring a man from this country, even though a lower federal court had decided that the man was a citizen of the United States. The decision, providing as it does the basis for arbitrary administrative action, would be a blessing to the director of a concentration camp. Justice Brandeis's decision in the Dorchy case may yetthough he himself was innocent of any such intentionprovide the basis for serious restrictions on the right to strike. And the criminal-syndicalism cases, notably the conviction of the Socialist editor, Gitlow, will make easier the process of finally suppressing free speech, press, and assembly. I have a sneaking suspicion that when der Tag comes, if it does, the "liberal" De Jonge decision will have its uses, too.