Civil Liberties: The Crucial Issue

Most Modern Constitutions contain promises of things that government must do for people. Our Constitution, an 18th Century product, guarantees no one such benefits as an education, social security or the right to work. It is not a welfare-state document. To the contrary, it specifies in some detail what government may not do to the individual. In other words, it was designed to take government off the backs of people and majorities off the backs of minorities.

It stakes out boundaries that no executive, no legislature, no judiciary may violate. The "law and order" advocates never seem to understand that simple constitutional principle. An example will illustrate what I mean. The First Amendment says that government may not abridge the free exercise of religion. Suppose a city enacts an ordinance that provides that no minister may deliver a sermon without first obtaining a permit from the Department of Safety. To exact a license before the citizen may exercise a constitutional right is to abridge that right. No minister worth his salt would knuckle under. If he defied the ordinance, he would be acting in the best American tradition. If he were prosecuted, the unconstitutionality of the ordinance would be a complete defense. The person who concludes that a law is unconstitutional and defies it runs the risk, of course, that he guessed wrong. Yet his punishment is not thereby compounded. Law and order is the guiding star of totalitarians, not of free men.

This principle of civil disobedience can be appreciated only if the antecedents of our Constitution and Bill of Rights are understood.

The ideas of freedom, liberty and sovereignty of the individual reflected in the two documents come from a long stream of history. The ideas of political freedom trace at least as far back as the Athenian model. But the political freedom of classical Greece did not guarantee private freedom, which was first emphasized by the Romans through the development of natural law. The church added the tradition of a divine order and a set of precepts based on the integrity of the individual before God; the Reformation gave the individual a choice of religio-political orders. The divine right of kings--one form of the social contract--was successfully challenged by the end of the 17th Century. Rousseau's Social Contract was a frontal assault.

But the single thinker who had the most direct impact on the framers of the Constitution was John Locke. Locke taught that morality, religion and politics should conform to God's will as revealed in the essential nature of man. God gave man reason and conscience as natural guides to distinguish between good and bad; and they were not to be restrained by an established church or by a king or a dynasty. Isaac Newton, who in 1687 published Principia, his great work, seemed to abolish mystery from the world and enable a rational mind to uncover the secrets of nature and nature's God. This parallel thought gave wings to Locke, who wrote:

Men being ... all free, equal and independent, no one can be put out of his estate, and subjected to the political power of another, without his consent. The only way whereby any one divests himself of his liberty and puts on the bonds of civil society is by agreeing with other men to join and unite into a community, for their comfortable, safe and peaceable living one amongst another, in a secure enjoyment of their properties and a greater security against any that are not of it ... When any number of men have so consented to make one community or government, they are thereby presently incorporated and make one body politic, wherein the majority have a right to act and conclude the rest.

These ideas were well known to our Colonists through the church as well as through Locke, Newton and many other writers. God, nature and reason were the foundations of politics and government; they were extolled in the Declaration of Independence and further distilled in constitutional precepts.

The foregoing is but an outline of the history of ideas behind the Constitution. They were translated into the body of Anglo-American law in a series of crucial test cases over a period of at least 400 years.

The political counterpart of heresy in the 16th Century was treason. The law of England allowed a man to be tried for treason if he "doth compass or imagine the death" of the king. This was called "constructive treason," for the accused did not have to lift his hand against the king to be guilty; all he need do was wish the king were dead. As a result, treason is narrowly defined in our Constitution: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies ... " and the proof required is very strict. That clause is the product of the philosophy of Madison and Jefferson. Madison wanted treason narrowly defined, because history showed that "newfangled and artificial treasons" were the "great engines" by which partisan factions "wreaked their alternate malignity on each other." Jefferson had the like view, pointing out that the definitions of treason often failed to distinguish between "acts against government" and "acts against the oppressions of the government." Madison and Jefferson are strangers to our law-and-order school, whose spokesmen go so far these days as to call dissent to our Vietnam policy "treason."

In the 17th Century, it was the practice to force citizens to make loans to the British crown, failing which the citizen would be jailed and languish there without bail. Thomas Darnel met that fate in 1627. From his prison, he applied for a writ of habeas corpus, the conventional way in those days of testing the legality of a confinement. The case was argued before judges who were appointees of the king, serving at his pleasure. They ruled that they were required to "walk in the steps of our forefathers," that the word of the king was sufficient to hold a man, saying, "We trust him in great matters." This case resulted in the Petition of Right of 1628, which led to vesting in Parliament, rather than in the king, the authority to levy taxes; and it also established the prisoner's right to bail.

The legislative branch was also a source of oppression. A bill of attainder is an act of the legislature punishing individuals or members of a group without a judicial trial. Its vice is that it condemns a person by legislative fiat without the benefit of a trial having all the safeguards of due process of law. English history, as well as our own history between 1776 and 1787, is replete with instances where the legislature, by its own fiat, subjected men to penalties and punishments. The Constitution abolishes bills of attainder outright, both at the state and at the Federal level.

The foregoing are merely examples of how the sovereignty of the individual was, historically speaking, jeopardized by acts of all branches of Government--the Executive, the Legislative and the Judicial.

The fear of our forefathers was also a fear of the majority of the people who from time to time might crush a minority that did not conform to the dominant religious creed or who in other ways were ideological strays.

One episode that occurred in this nation just before the 1787 Philadelphia Convention is illustrative. Times were hard in 1786. A post-War depression had hit the country. The state legislatures were swept by agrarian influences. Debtors wanted relief. There was no strong central government. Only Congress, under the feeble Articles of Confederation, had national authority, and it was not in a position to act decisively.

Up at Northampton, Massachusetts, in August 1786, Daniel Shays moved into action. His armed group seized the courthouse in order to put an end to legal proceedings for the collection of debts. The example at Northampton was followed in other parts of the state, about 2000 armed men joining Shays. Courts were paralyzed. In September, Shays' men moved on Springfield and overawed the court with their claims that their leaders should not be indicted and that there should be a moratorium on the collection of debts. They also insisted that the militia be disbanded. The stakes were high, because at Springfield there was a Federal arsenal filled with artillery, guns and ammunition, which Shays planned to take. The decisive engagement took place on January 25, 1787, the Shays group being routed by militia equipped with Federal cannon.

Shays' Rebellion gave impetus not only to a strong central Government but also to checks and restraints on populism. The mercantile, financial and large landed interests were getting tired of talk of the rights of man; they were becoming concerned with the protection of their property. Too much democracy in the state governments, it was argued, was bringing bad times on the country. Massachusetts, New Hampshire and Rhode Island were said to be disintegrating. General Henry Knox, in the mood of our modern law-and-order men, wrote Washington from Massachusetts in the fall of 1786: "This dreadful situation, for which our Government has made no adequate provision, has alarmed every man of principle and property in New England."

Though Shays' Rebellion was shortly put down, the populist or agrarian forces remained in control of some state legislatures and repudiation of debts remained a threat. Majorities in state legislatures ruled without restraint. The commercial, financial and landed interests moved to Philadelphia for the Constitutional Convention in an antidemocratic mood. A republican form of government emerged that, to use the words of Madison, was designed "to protect the minority of the opulent against the majority." This majority, Madison said on another occasion, might well be the landless proletariat.

Numerous barriers were written into the Constitution designed to thwart the will of majorities. As Charles A. Beard said in his monumental work An Economic Interpretation of the Constitution of the United States, those who campaigned for ratification of the Constitution made "their most cogent arguments" to the owners of property "anxious to find a foil against the attacks of leveling democracy."

While the House was to be elected for a short term by the people, Senators (until the 17th Amendment) were selected by the state legislatures; and the President was picked for a fixed term by electors chosen by the people. Thus, a measure of assurance was granted that majority groups would not be able to unite against the minority propertied interests. Moreover, amendment of the Constitution was made laborious: Two thirds of both the Senate and the House were to propose amendments; three fourths of the states were to ratify them. A final check or balance was an independent judiciary named by the President, approved by the Senate and serving for life.

The "minority of the opulent" were also protected when it came to the Bill of Rights, as in the provisions in the Fifth Amendment that "private property" could not be taken for a "public purpose" without payment of "just compensation."

But the Bill of Rights went much, much further. It was concerned with all minorities, not only the minority of the opulent. Government was taken off the backs of all people and the individual was made sovereign when it came to making speeches and publishing papers, tracts and books. Those domains had "no trespassing" signs that government must heed.

Great battles have raged over those guarantees. Peaceful and orderly opposition to the Government--even by Communists--is, of course, constitutionally protected. Chief Justice Charles Evans Hughes said: "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the republic, is a fundamental principle of our constitutional system."

American law also honors protests, whether they are in the form of letters to the editor, picketing, marches on the statehouse or rallies to whip up action. As already noted, police historically have arrested dissenters for "disorderly conduct" and "breach of the peace," often using these devices to suppress an unpopular minority. But such charges are no longer permissible at either the state or Federal level, though the law-and-order men often try to use "vagrancy" or other misdemeanors to suppress dissent or to promote racism.

Government is also constrained against interfering with one's free exercise of religion. A man can worship how and where he pleases. Government at times has preferred one religion over another, giving it privileges as respects marriages, baptisms and the like, and even putting some prelates on the public payroll. The Bill of Rights bans this practice by prohibiting the "establishment" of any religion by the Government.

It was the pride of British tradition that a man's home was his castle. Even the king could not enter without legal process. On this side of the Atlantic, British officers had ransacked homes (and offices as well) under search warrants that were good for all time and for all kinds of evidence. This led to the Fourth Amendment, which, in general, requires an officer making a search to have a warrant issued by a judge on a showing of probable cause that a crime has been committed. And the warrant must describe with particularity the scope of the search and the articles or person to be seized. Modern technology has developed electronic devices that can record what goes on in the sanctuary of a home without entering the home in any conventional sense. They, too, have now been included within the Fourth Amendment. Yet the law-and-order propagandists would brush aside (continued on page 120)Civil Liberties(continued from page 94) the Fourth Amendment and use any short cut to convict any unpopular person.

The much misunderstood self-incrimination clause of the Fifth Amendment had a similar history: "No person ... shall be compelled in any criminal case to be a witness against himself." At one time in England, the oath that one takes to tell the truth was used against the accused with devastating effect. If he refused to take the oath, he was held in contempt and punished. If he took the oath and then refused to answer a question, the refusal was taken as a confession of the thing charged in the question. Thus were men compelled to testify against themselves.

A widely heralded defiance of this practice was that of John Lilburne, who was charged with sending scandalous books into England. He refused to be examined under oath, saying that the oath was "both against the law of God and the law of the land." He announced that he would never take it, "though I be pulled to pieces by wild horses." Lilburne was held in contempt, publicly whipped, fined and placed in solitary confinement. That was in 1638. On February 13, 1645, the House of Lords set aside that judgment as "against the liberty of the subject and law of the land and Magna Charta." And in 1648, Lilburne was granted damages for his imprisonment.

The idea spread to this country. The Puritans who came here knew of the detested oath that Lilburne refused to take. They, too, had been its victims. The Body of Liberties, adopted in 1641 by Massachusetts, afforded protection against self-incrimination either through torture or through the oath. The highhanded practices of the royal governors who believed in law and order and who sought to compel citizens to accuse themselves of crimes also whipped up sentiment for the immunity. A majority of the colonists, therefore, as part of their programs for independence, adopted bills of rights that included the immunity against self-incrimination. Later, it was written into the Fifth Amendment and into most state constitutions.

The immunity has been broadly interpreted. It extends to all manner of proceedings in which testimony is taken, including legislative committees. It was early held by the Supreme Court to give immunity from testifying not only to acts or events that themselves constitute a crime or that are elements of a crime but also to things that "will tend to criminate him" or subject him to fines, penalties or forfeitures. As Chief Justice John Marshall put it at the beginning, immunity protects the witness from supplying any "link" in a chain of testimony that would convict him. Yet in spite of this long history, the law-and-order propagandists denounce the decisions that forbid the police from using coercion to obtain confessions from people in custody.

The protection against double jeopardy, the right to counsel, the right to confront the person who accuses one, the guarantee against cruel and unusual punishment--these all have a similar specific and detailed history of abuse by government. Each reflects a clear and calculated design to prevent government from meddling with individual lives.

The law-and-order people say that "criminals" and "Communists" deserve no such protection. But the Constitution draws no line between the good and the bad, the popular and the unpopular. The word is "person," which, of course, includes "aliens." Every person is under the umbrella of the Constitution and the Bill of Rights. The Bill of Rights purposely makes it difficult for police, prosecutors, investigating committees, judges and even juries to convict anyone. We know that the net that often closes around an accused man is a flimsy one. Circumstantial evidence often implicates the innocent as well as the guilty. Some countries have the inquisitorial system, in which the criminal case is normally made out from the lips of the accused. But our system is different; it is accusatorial. Those who make the charge must prove it. They carry the burden. The sovereignty of the individual is honored by a presumption of innocence.

• • •

The principle of equality entered our constitutional system with the Civil War amendments, which banned discrimination based on race, creed, color or poverty. So today we stand for both liberty and equality. The Russians who protested the 1966 Ukrainian trials came out strong for liberty: "The highest saturation of material goods, without free thought and will," creates "a great prison in which the food rations of prisoners are increased." Whatever continent one visits, he finds man asserting his sovereignty--and usually receiving punishment for doing so. There are few places in the world where man can think and speak as he chooses and walk with his chin held high. Yet in spite of our commitment to both, we are confronted with tremendous internal discontent. Some are in rebellion only to obtain control over existing institutions so that they may use them for their own special or selfish ends. But most of the discontent, I think, comes from individuals who clamor for sovereign rights--not rights expressed in laws but rights expressed in jobs and in other dignified positions in our society. We face civil disobedience on a massive scale.

Civil disobedience, though at times abused, has an honored place in our traditions. Some people refuse to pay taxes because the money raised is for a purpose they disapprove. That is not a permissible course of conduct; for, by and large, the legislative branch has carte blanche to prepare budgets and levy taxes. It would paralyze government to let each taxpayer exercise the sovereign right to pay or not to pay, depending on whether he approves of the social, economic or political program of those in power. The same is true, in general, of most other laws imposed on the citizen, whether it be observing a speed law or obeying a zoning ordinance or a littering regulation.

Gandhi's much-publicized civil disobedience was quite different. It expressed a universal principle. Gandhi had no political remedy to right a wrong. Disobedience of the law embodying the wrong was his only recourse. Colonial India, like Colonial America, was under a foreign yoke. Regulations were often imposed from overseas or taxes exacted by the fiat of the colonial ruler. The subject had to submit or else. "Taxation without representation" was one of the complaints of both Sam Adams and Mahatma Gandhi. Our Declaration of Independence stated the philosophy--all men are created equal; they are endowed by their Creator with certain "inalienable rights." Governments derive their just powers from "the consent of the governed"; and whenever a form of government becomes "destructive to those ends, it is the right of the people to alter or abolish it." Thus, the right of revolution is deep in our heritage. Nat Turner did not get the benefit of our Declaration of Independence. But he moved to the measure of its philosophy. These days, some people are caught in a pot of glue and have no chance to escape through use of a political remedy. Civil disobedience, therefore, evolves into revolution and is used as a means of escape.

Revolution is therefore basic in the rights of man. Where problems and oppression pile high and citizens are denied all recourse to political remedies, only revolution is left. Sometimes revolution with violence is the only remedy. Violence often erupts these days in Latin America and Southeast Asia, where feudal and military regimes hold people in a vise, making it impossible for them to be freed from oppression by the political processes. In some nations, a trade-union organizer is considered an enemy and is shot. So is a person who tries to organize the peasants into cooperatives. In those extreme situations, there is no machinery for change except violence.

We have had civil disobedience accompanied by violence, the bloodiest one (concluded on page 223)Civil Liberties(continued from page 120) being the Civil War. Prior to that, there was the widespread rebellion under John Adams against the Alien and Sedition Acts, which made it a crime to utter any false or malicious statement about the nation, the President or Congress. The Virginia and Kentucky Resolutions called them a "nullity," because--by reason of the First Amendment--Congress may pass no law abridging freedom of speech or press. Those laws expired under Jefferson and for years the country reimbursed the victims for the wrongs done.

The Embargo Act was a self-blockade, in the sense that it forbade the departure of any ships from American ports to foreign countries. Jefferson tried in vain to enforce it, and it was repealed in 1809.

In World War One, there were about 300,000 draft dodgers, in spite of the fact that Congress passed a declaration of war.

Some of those episodes were accompanied by violence and many people were fined or imprisoned for their misdeeds. During those crises, the majority clamored for conformity. The minority, impatient at the existence of laws they deemed unjust, took matters into their own hands and did not wait until the power to correct the abuse at the polls could be exercised.

Today the dissenters, both black and white, claim that the changes needed to admit the lower fourth of our people into an honored place in our society are being thwarted. There is a growing feeling that the existing political parties are not likely instruments of change. The colleges' and universities' administrations, in general, walk more and more to the measure of traditional thought and have lost their revolutionary influence. The Cold War flourishes, diminishing our overseas potential and making the military the most potent force in our lives and in our economy. The puritan ethic--hard work and industry will guarantee success--is not valid in a system of private enterprise that is less and less dependent on labor. For many, the only recourse for employment is in the public sector; yet blueprints for an expanding public sector are hardly ever in public view. Racial discrimination takes an awful toll, as partially evidenced by the fact that the average annual income of whites who go to work at the end of the eighth grade tends to be higher than the average annual income of blacks who go on to college and enter the professions.

The crises these days are compounded because the real dissenters from the principle of equality in our laws and in the Constitution are often the establishment itself--sometimes a municipal, county or state government; sometimes slumlords allied with corrupt local machines; sometimes finance companies or great corporations or even labor unions. That is to say, these existing institutions often ask minorities to conform to practices and customs that are unconstitutional. People are apt to overlook the fact that those who make such a request are the offenders, not the vociferous minorities who demand their rights.

Rebellion by members of the establishment against full equality cannot be met with apathy and inaction, for that is the stuff out of which violent revolutions are made. Blacks and whites must join hands in momentous programs of political action. Those who put law and order above liberty and equality are architects of a new fascism that would muzzle all dissenters and pay the individuals in our lower strata to remain poor, obedient and subservient.

Unprecedented civic action is needed. When my friend Luis Muñoz Marin first ran for governor of Puerto Rico, he actually drafted and had printed and circulated the precise laws he would have enacted when elected. He was elected and the laws were passed. Those who march need specific proposals in their hands--proposals to put an end to a particular injustice. India, when dealing with the explosive problem of the untouchables, required about 15 percent of all matriculating students and about 15 percent of all government employees to be drawn from those ranks. While the maximum age for taking examinations for government service was generally 24 years, it was increased to 27 years in the case of the untouchables. And this once-abhorred group also has a certain minimum number of seats reserved for it in the national parliament and in the state legislatures.

We need to think in terms as specific as those in dealing with our own minorities, whether black or white. No one today is on the side lines. We are all caught up in a tremendous revolutionary movement. It starts with a demand for equality in educational and employment opportunities. It extends to a removal from our laws of all bias against the poor. It embraces a host of other specifics that will, if faced frankly and adopted, make a viable and decent society out of our multiracial, multi religious, multi-ideological communities--and both preserve the sovereignty and honor the dignity of each and every individual.