Thoughts on economics and liberty

Justice Hugo Black’s James Madison Lecture: Asserting ABSOLUTE freedom of speech

I came across this lecture which I think is worth making note of, in full. It was published in the New York University Law Review, Vol. 35, April 1960. Note particularly its insistence on absolute freedom of speech (i.e. no LAW to abridge speech). Note clearly the INTENT of Madison, whose original draft of the First Amendment is cited in this talk. I'll annotate in the coming weeks. But please note the key annotations regarding freedom of speech.



I am honored to be the first speaker in your new annual series of James Madison lectures. The title of the series suggested the title of my talk: The Bill of Rights. Madison lived in the stirring times between 1750 and 1836, during which the Colonies declared, fought for, and won their independence from England. They then set up a new national government dedicated to Liberty and Justice. Madison's, role in creating that government was such a major one that he has since been generally referred to as the Father of our Constitution. He was a most influential member of the Philadelphia Convention that submitted the Constitution to the people of the states; he alone kept a comprehensive report of the daily proceedings of the Convention; he was an active member of the Virginia Convention that adopted the Constitution after a bitter fight; finally, as a member of the First Congress, he offered and sponsored through that body proposals that became the first ten amendments, generally thought of as our Bill of Rights. For these and many other reasons, Madison's words are an authentic source to help us understand the Constitution and its Bill of Rights. In the course of my discussion I shall have occasion to refer to some of the many things Madison said about the meaning of the Constitution and the first ten amendments. In doing so, I shall refer to statements made by him during the Bill of Rights debates as reported in the Annals of Congress. There has been doubt cast upon the accuracy of the reports of Congressional debates and transactions in the Annals. I am assured by Mr. Irving Brant, the eminent biographer of Madison, that Madison's discussions of the Bill of Rights as reported in the Annals are shown to be correct by Madison's own manuscripts on file in the Library of Congress.(3)

What is a bill of rights? In the popular sense it is any document setting forth the liberties of the people. I prefer to think of our Bill of Rights as including all provisions of the original Constitution and Amendments that protect individual liberty by barring government from acting in a particular area or from acting except under certain prescribed procedures. I have in mind such clauses in the body of the Constitution itself as those which safeguard the right of habeas corpus, forbid bills of attainder and ex post facto laws, guarantee trial by jury, and strictly define treason and limit the way it can be tried and punished. I would certainly add to this list the last constitutional prohibition in Article Six that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

I shall speak to you about the Bill of Rights only as it bears on powers of the Federal Government. Originally, the first ten amendments were not intended to apply to the states but, as the Supreme Court held in 1833 in Barron v. Baltimore,(4) were adopted to quiet fears extensively entertained that the powers of the big new national government "might be exercised in a manner dangerous to liberty." I believe that by virtue of the Fourteenth Amendment, the first ten amendments are now applicable to the state, a view I stated in Adamson v. California.(5) I adhere to that view. In this talk, however, I want to discuss only the extent to which the Bill of Rights limits the Federal Government.

In applying the Bill of Rights to the Federal Government there is today a sharp difference of views as to how far its provisions should be held to limit the lawmaking power of Congress. How this difference is finally resolved will, in my judgment, have far-reaching consequences upon our liberties. I shall first summarize what those different views are.

Some people regard the prohibitions of the Constitution, even its most unequivocal commands, as mere admonitions which Congress need not always observe. This viewpoint finds many different verbal expressions. For example, it is sometimes said that Congress may abridge a constitutional right if there is a clear and present danger that the free exercise of the right will bring about a substantive evil that Congress has authority to prevent. Or it is said that a right may be abridged where its exercise would cause so much injury to the public that this injury would outweigh the injury to the individual who is deprived of the right. Again, it is sometimes said that the Bill of Rights' guarantees must "compete" for survival against general powers expressly granted to Congress and that the individual's right must, if outweighed by the public interest, be subordinated to the Government's competing interest in denying the right. All of these formulations, and more with which you are doubtless familiar, rest, at least in part, on the premise that there are no, "absolute" prohibitions in the Constitution, and that all constitutional problems are questions of reasonableness, proximity, and degree. This view comes close to the English doctrine of legislative omnipotence, qualified only by the possibility of a judicial veto if the Supreme Court finds that a congressional choice between "competing" policies has no reasonable basis.

I cannot accept this approach to the Bill of Rights. It is my belief that there are "absolutes" in our Bill of Rights, and that they were put then on purpose by men who knew what words meant, and meant their prohibitions to be "absolutes." The whole history and background of the Constitution and Bill of Rights, as I understand it, belies the assumption or conclusion that our ultimate constitutional freedoms are no more than our English ancestors had when they came to this new land to get new freedoms. The historical and practical purposes of a Bill of Rights, the very use of a written constitution, indigenous to America, the language the Framers used, the kind of three-department government they took pains to set up, all point to the creation of a government which was denied all power to do some things under any and all circumstances, and all power to do other things except precisely in the manner prescribed. In this talk I will state some of the reasons why I hold this view. In doing so, however, I shall not attempt to discuss the wholly different and complex problem of the marginal scope of each individual amendment as applied to the particular facts of particular cases. For example, there is a question as to whether the First Amendment was intended to protect speech that courts find "obscene." I shall not stress this or similar differences of construction, nor shall I add anything to the views I expressed in the recent case of Smith v. California.(6) I am primarily discussing here whether liberties admittedly covered by the Bill of Rights can nevertheless be abridged on the ground that a superior public interest justifies the abridgment. I think the Bill of Rights made its safeguards superior.

Today most Americans seem to have forgotten the ancient evils which forced their ancestors to flee to this new country and to form a government stripped of old powers used to oppress them. But the Americans who supported the Revolution and the adoption of our Constitution knew firsthand the dangers of tyrannical governments. They were familiar with the long existing practice of English persecutions of people wholly because of their religious or political beliefs. They knew that many accused of such offenses had stood, helpless to defend themselves, before biased legislators and judges.

John Lilburne, a Puritan dissenter, is a conspicuous example.(7) He found out the hard way that a citizen of England could not get a court and jury trial under English law if Parliament wanted to try and punish him in some kind of summary and unfair method of its own. Time and time again, when his religious or political activities resulted in criminal charges against him, he had demanded jury trials under the "law of the land" but had been refused. Due to "trials" either by Parliament, its legislative committees, or courts subservient to the King or to Parliament, against all of which he vigorously protested as contrary to "due process" or "the law of the land," Lilburne, had been whipped, put in the pillory, sent to prison, heavily fined and banished from England, all its islands and dominions, under penalty of death should he return. This last sentence was imposed by a simple Act of Parliament without any semblance of a trial. Upon his defiant return he was arrested and subjected to an unfair trial for his life. His chief defense was that the Parliamentary conviction was a nullity, as a denial of "due process of law," which he claimed was guaranteed under Magna Charta, the 1628 Petition of Right, and statutes passed to carry them out. He also challenged the power of Parliament to enact bills of attainder on the same grounds—due process of law. Lilburne repeatedly and vehemently contended that he was entitled to notice, an indictment, and court trial by jury under the known laws of England; that he had a right to be represented by counsel, that he had a right to have witnesses summoned in his behalf and be confronted by. the witnesses against him; that he could not be compelled to testify against himself. When Lilburne finally secured a jury, it courageously acquitted him, after which the jury itself was severely punished by the court.

Prompted largely by the desire to save Englishmen from such legislative mockeries of fair trials, Lilburne and others strongly advocated adoption of an "Agreement of the People" which contained most of the provisions of our present Bill of Rights. That Agreement would have done away with Parliamentary omnipotence. Lilburne pointed out that the basic defect of Magna Charta and statutes complementing it was that they were not binding on Parliament since "that which is done by one Parliament, as a Parliament, may be undone by the next Parliament: but an Agreement of the People begun and ended amongst the People can never come justly within the Parliament's cognizance to destroy."(8) The proposed "Agreement of the People," Lilburne argued, could be changed only by the people and would bind Parliament as the supreme "law of the land." This same idea was picked up before the adoption of our Federal Constitution by Massachusetts and New Hampshire, which adopted their constitutions only after popular referendums. Our Federal Constitution is largely attributable to the same current of thinking.

Unfortunately, our own colonial history also provided ample reasons for people to be afraid to vest too much power in the national government. There had been bills of attainder here; women had been convicted and sentenced to death as "witches"; Quakers, Baptists, and various Protestant sects had been persecuted from time to time. Roger Williams left Massachusetts to breathe the free air of new Rhode Island. Catholics were barred from holding office in many places. Test oaths were required in some of the colonies to bar any but "Christians" from holding office. In New England Quakers suffered death for their faith. Baptists were sent to jail in Virginia for preaching, which caused Madison, while a very young man, to deplore what he called that "diabolical hell-conceived principle of persecution."(9)

In the light of history, therefore, it is not surprising that when our Constitution was adopted without specific provisions to safeguard, cherished individual rights from invasion by the legislative, at well as the executive and judicial departments of the National Government, a loud and irresistible clamor went up throughout the country. These protests were so strong that the Constitution was ratified by the very narrowest of votes in some of the states. It has been said, and I think correctly, that had there been no general agreement that a supplementary Bill of Rights would be adopted as soon as possible after Congress met, the Constitution would not have been ratified. It seems clear that this widespread demand for a Bill of Rights was due to a common fear of political and religious persecution should the national legislative power be left unrestrained as it was in England.

The form of government which was ordained and established in 1789 contains certain unique features which reflected the Framers' fear of arbitrary government and which clearly indicate an intention absolutely to limit what Congress could do. The first of these features is that our Constitution is written in a single document. Such constitutions are familiar today and it is not always remembered that our country was the first to have one. Certainly one purpose of a written constitution is to define and therefore more specifically limit government powers. An all-powerful government that can act as it pleases wants no such constitution-unless to fool the people. England had no written constitution and this once proved a source of tyranny, as our ancestors well knew. Jefferson said about this departure from the English type of government: "Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction."(10)

A second unique feature of our Government is a Constitution supreme over the legislature. In England, statutes, Magna Charta, and later declarations of rights had for centuries limited the power of the King, but they did not limit the power of Parliament. Although commonly referred to as a constitution, they were never the "supreme law of the land" in the way in which our Constitution is, much to the regret of statesmen like Pitt the elder. Parliament could change this English "Constitution"; Congress cannot change ours. Ours can only be changed by amendments ratified by three-fourths of the states. It was one of the great achievements of our Constitution that it ended legislative omnipotence here and placed all departments and agencies of government under one supreme law.

A third feature of our Government expressly designed to limit its powers was the division of authority into three coordinate branches, none of which was to have supremacy over the others. This separation of powers with the checks and balances which each branch was given over the others was designed to prevent any branch, including the legislative, from infringing individual liberties safeguarded by the Constitution.

Finally, our Constitution was the first to provide a really independent judiciary. Moreover, as the Supreme Court held in Marbury v. Madison,(11) correctly I believe, this judiciary has the power to hold legislative enactments void that are repugnant to the Constitution and the Bill of Rights. In this country the judiciary was made independent because it has, I believe, the primary responsibility and duty of giving force and effect to constitutional liberties and limitations upon the executive and legislative branches. Judges in England were not always independent and they could not hold Parliamentary acts void. Consequently, English courts could not be counted on to protect the liberties of the people against invasion by the Parliament, as many unfortunate Englishmen found out, such as Sir Walter Raleigh, who was executed as the result of an unfair trial, and a lawyer named William Prynne, whose ears were first cut off by court order and who subsequently, by another court order, had his remaining ear stumps gouged out while he was on a pillory. Prynne's offenses were writing books and pamphlets.

All of the unique features of our Constitution show an underlying purpose to create a new kind of limited government. Central all of the Framers of the Bill of Rights was the idea that since government, particularly the national government newly created, is a powerful institution, its officials-all of them-must be compelled to exercise their powers within strictly defined boundaries. As Madison told Congress, the Bill of Rights' limitations point, "sometimes against the abuse of the Executive power, sometimes against the Legislative, and in some cases against the community itself; or, in other words, against the majority in favor of the minority."(12) Madison also explained that his proposed amendments were intended "to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode."(13) In the light of this purpose let us now turn to the language of the first ten amendments to consider whether their provisions were written as mere admonitions to Congress or as absolute commands, proceeding for convenience from the last to the first.

The last two Amendments, the Ninth and Tenth, are general in character, but both emphasize the limited nature of the Federal Government. Number Ten restricts federal power to what the Constitution delegates to the central government, reserving all other powers to the states or to the people. Number Nine attempts to make certain that enumeration of some rights must "not be construed to deny or disparage others retained by the people." The use of the words, "the people," in both these Amendments strongly emphasizes the desire of the Framers, to protect individual liberty.

The Seventh Amendment states that "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . . " This language clearly requires that jury trials must be afforded in the type of cases the Amendment describes. The Amendment goes on in equally unequivocal words to command that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

Amendments Five, Six, and Eight relate chiefly to the procedures that government must follow when bringing its powers to bear against any person with a view to depriving him of his life, liberty, or property.

The Eighth Amendment forbids "excessive bail," "excessive fines," or the infliction of "cruel or unusual punishments." This is one of the less precise provisions. The courts are required to determine the meaning of such general terms as "excessive" and "unusual." But surely that does not mean that admittedly "excessive bail," "excessive fines," or "cruel punishments" could be justified on the ground of a "competing" public interest in carrying out some generally granted power like that given Congress to regulate commerce.

Amendment Six provides that in a criminal prosecution an accused shall have a "speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and have the Assistance of Counsel for his defence." All of these requirements are cast in terms both definite and absolute. Trial by jury was also guaranteed in the original Constitution. The additions here, doubtless prompted by English trials of Americans away from their homes, are that a trial must be "speedy and public," "by an impartial jury," and in a district which "shall have been previously ascertained by law." If there is any one thing that is certain it is that the Framers intended both in the original Constitution and in the Sixth Amendment that persons charged with crime by the Federal Government have a right to be tried by jury. Suppose juries began acquitting people Congress thought should be convicted. Could Congress then provide some other form of trial, say by an administrative agency, or the military, where convictions could be more readily and certainly obtained, if it thought the safety of the nation so required? How about secret trials? By partial juries? Can it be that these are not absolute prohibitions?

The Sixth Amendment requires notice of the cause of an accusation, confrontation by witnesses, compulsory process and assistance of counsel. The experience of centuries has demonstrated the value of these procedures to one on trial for crime. And this Amendment purports to guarantee them by clear language. But if there are no absolutes in the Bill of Rights, these guarantees too can be taken away by Congress on findings that a competing public interest requires that defendants be tried without notice, without witnesses, without confrontation, and without counsel.

The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Most of these Fifth Amendment prohibitions are both definite and unequivocal. There has been much controversy about the meaning of "due process of law." Whatever its meaning, however, there can be no doubt that it must be granted. Moreover, few doubt that it has an historical meaning which denies Government. the right to take away life, liberty, or property without trials properly conducted according to the Constitution and laws validly made in accordance with it. This, at least, was the meaning of "due process of law" when used in Magna Charta and other old English Statutes where it was referred to as "the law of the land."

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The use of the word "unreasonable" in this Amendment means, of course, that not all searches and seizures are prohibited. Only those which are unreasonable are unlawful. There may be much difference of opinion about whether a particular search or seizure is unreasonable and therefore forbidden by this Amendment. But if it is unreasonable, it is absolutely prohibited.

Likewise, the provision which forbids warrants for arrest, search or seizure without "probable cause" is itself an absolute prohibition.

The Third Amendment provides that:.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Americans had recently suffered from the quartering of British troops in their homes, and so this Amendment is written in language that apparently no one has ever thought could be violated on the basis of an overweighing public interest.

Amendment Two provides that:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute.

This brings us to the First Amendment. It reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The phrase "Congress shall make no law" is composed of plain words, easily understood. The Framers knew this. The language used by Madison in his proposal was different, but no less emphatic and unequivocal. That proposal is worth reading:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.(14)

Neither as offered nor as adopted is the language of this Amendment anything less than absolute. Madison was emphatic about this. He told the Congress that under it "The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government . . . ."(15) Emphasis added in all quotations.) Some years later Madison wrote that "it would seem scarcely possible to doubt that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood, and that the amendment was intended as a positive and absolute reservation of it."(16) With reference to the positive nature of the First Amendment's command against infringement of religious liberty, Madison later said that "there is not a shadow of right in the general government to intermeddle with religion,"(17) and that "this subject is, for the honor of America, perfectly free and unshackled. The government has no jurisdiction over it."(18)

To my way of thinking, at least, the history and language of the Constitution and the Bill of Rights, which I have discussed with you, make it plain that one of the primary purposes of the Constitution with its amendments was to withdraw from the Government all power to act in certain areas–whatever the scope of those areas may be. If I am right in this then there is, at least in those areas, no justification whatever for "balancing" a particular right against some expressly granted power of Congress. If the Constitution withdraws from Government all power over subject matter in an area, such as religion, speech, press, assembly, and petition, there is nothing over which authority may be exerted.

The Framers were well aware that the individual rights they sought to protect might be easily nullified if subordinated to the general powers granted to Congress. One of the reasons for adoption of the Bill of Rights was to prevent just that. Specifically the people feared that the "necessary and proper" clause could be used to project the generally granted Congressional powers into the protected areas of individual rights. One need only read the debates in the various states to find out that this is true. But if these debates leave any doubt, Mr. Madison's words to Congress should remove it. In speaking of the "necessary and proper" clause and its possible effect on freedom of religion he said, as reported in the Annals of Congress:

Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.(19)

It seems obvious to me that Congress, in exercising its general powers, is expressly forbidden to use means prohibited by the Bill of Rights. Whatever else the phrase "necessary and proper" may mean, it must be that Congress may only adopt such means to carry out its powers as are "proper," that is, not specifically prohibited.

It has also been argued that since freedom of speech, press, and religion in England were narrow freedoms at best, and since there were many English laws infringing those freedoms, our First Amendment should not be thought to bar similar infringements by Congress. Again one needs only to look to the debates in Congress over the First Amendment to find that the First Amendment cannot be treated as a mere codification of English law. Mr. Madison made a clear explanation to Congress that it was the purpose of the First Amendment to grant greater protection than England afforded its citizens. He said:

In the declaration of rights which that country has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States.(20)

It was the desire to give the people of America greater protection against the powerful Federal Government than the English had had against their government that caused the Framers to put these freedoms of expression, again in the words of Madison, "beyond the reach of this Government."

When closely analyzed the idea that there can be no "absolute" constitutional guarantees in the Bill of Rights is frightening to contemplate even as to individual safeguards in the original Constitution. Take, for instance, the last clause in Article Six that "no religious Test shall ever be required" for a person to hold office in the United States. Suppose Congress should find that some religious sect was dangerous because of its foreign affiliations. Such was the belief on which English test oaths rested for a long time and some of the states had test oaths on that assumption at the time, and after, our Constitution was adopted in 1789. Could Congress, or the Supreme Court, or both, put this precious privilege to be free from test oaths on scales, find it outweighed by some other public interest, and therefore make United States officials and employees swear they did not and never had belonged to or associated with a particular religious group suspected of disloyalty? Can Congress, in the name of overbalancing necessity, suspend habeas corpus in peacetime? Are there circumstances under which Congress could, after nothing more than a legislative bill of attainder, take away a man's life, liberty, or property? Hostility of the Framers toward bills of attainder was so great that they took the unusual step of barring such legislative punishments by the States as well as the Federal Government. They wanted to remove any possibility of such proceedings anywhere in this country. This is not strange in view of the fact that they were much closer than we are to the great Act of Attainder by the Irish Parliament, in 1688, which condemned between two and three thousand men, women, and children to exile or death without anything that even resembled a trial.(21)

Perhaps I can show you the consequences of the balancing approach to the Bill of Rights liberties by a practical demonstration of how it might work. The last clause of the Fifth Amendment is "nor shall private property be taken for public use, without just compensation." On its face this command looks absolute, but if one believes that it should be weighed against the powers granted to Congress, there might be some circumstances in which this right would have to give way, just as there are some circumstances in which it is said the right of freedom of religion, speech, press, assembly and petition can be balanced away. Let us see how the balancing concept would apply to the just compensation provision of the Bill of Rights in the following wholly imaginary judicial opinion of Judge X:

"This case presents an important question of constitutional law. The United States is engaged in a stupendous national defense undertaking which requires the acquisition of much valuable land throughout the country. The plaintiff here owns 500 acres of land. The location of the land gives it a peculiarly strategic value for carrying out the defense program. Due to the great national emergency that exists, Congress concluded that the United States could not afford at this time to pay compensation for the lands which it needed to acquire. For this reason an act was passed authorizing seizure without compensation of all the lands required for the defense establishment.

"In reaching a judgment on this case, I cannot shut my eyes to the fact that the United States is in a desperate condition at this time. Nor can I, under established canons of constitutional construction, invalidate a Congressional enactment if there are any rational grounds upon which Congress could have passed it. I think there are such grounds here. Highly important among the powers granted Congress by the Constitution are the powers to declare war, maintain a navy, and raise and support armies. This, of course, means the power to Conduct war successfully. To make sure that Congress is not unduly restricted in the exercise of these constitutional powers, the Constitution also gives Congress power to make all laws 'necessary and proper to carry into execution the foregoing powers . . . .' This 'necessary and proper' clause applies to the powers to make war and support armies as it does to all the other granted powers.

"Plaintiff contends, however, that the Fifth Amendment's provision about compensation is so absolute a command that Congress is wholly without authority to violate it, however great this nation's emergency and peril may be. I must reject this contention. We must never forget that it is a constitution we are expounding. And a constitution, unlike ordinary statutes, must endure for ages; it must be adapted to changing conditions and the needs of changing communities. Without such capacity for change, our Constitution would soon be outmoded and become a dead letter. Therefore its words must never be read as rigid absolutes. The Bill of Rights' commands, no more than any others, can stay the hands of Congress from doing that which the general welfare imperatively demands. When two great constitutional provisions like these conflict-as here the power to make war conflicts with the requirements for just compensation-it becomes the duty of courts to weigh the constitutional right of an individual to compensation against the power of Congress to wage a successful war.

"While the question is not without doubt, I have no hesitation in finding the challenged Congressional act valid. Driven by the absolute necessity to protect the nation from foreign aggression, the national debt has risen to billions of dollars. The Government's credit is such that interest rates have soared. Under these circumstances, Congress was rationally entitled to find that if it paid for all the lands it needs it might bankrupt the nation and render it helpless in its hour of greatest need. Weighing as I must the loss the individual will suffer because he has to surrender his land to the nation without compensation against the great public interest in conducting war, I hold the act valid. A decree will be entered accordingly."

Of course, I would not decide this case this way nor do I think any other judge would so decide it today. My reason for refusing this approach would be that I think the Fifth Amendment's command is absolute and not to be overcome without constitutional amendment even in times of grave emergency. But I think this wholly fictitious opinion fairly illustrates the possibilities of the balancing approach, not only as to the just compensation clause, but as to other provisions of the Bill of Rights as well. The great danger of the judiciary balancing process is that in times of emergency and stress it gives Government the power to do what it thinks necessary to protect itself, regardless of the rights of individuals. If the need is great, the right of Government can always be said to outweigh the rights of the individual. If "balancing" is accepted as the test, it would be hard for any conscientious judge to hold otherwise in times of dire need. And laws adopted in times of dire need are often very hasty and oppressive laws, especially when, as often happens, they are carried over and accepted as normal. Furthermore, the balancing approach to basic individual liberties assumes to legislators and judges more power than either the Framers or I myself believe should be entrusted, without limitation, to any man or any group of men.

It seems to me that the "balancing" approach also disregards all of the unique features of our Constitution which I described earlier. In reality this approach returns us to the state of legislative supremacy which existed in England and which the Framers were so determined to change once and for all. On the one hand, it denies the judiciary its constitutional power to measure acts of Congress by the standards set down in the Bill of Rights. On the other hand, though apparently reducing judicial powers by saying that acts of Congress may be held unconstitutional only when they are found to have no rational legislative basis, this approach really gives the Court, along with Congress, a greater power, that of overriding the plain commands of the Bill of Rights on a finding of weighty public interest. In effect, it changes the direction of our form of government from a government of limited powers to a government in which Congress may do anything that Courts believe to be "reasonable."

Of course the decision to provide a constitutional safeguard for a particular right, such as the fair trial requirements of the Fifth and Sixth Amendments and the right of free speech protection of the First, involves a balancing of conflicting interests. Strict procedures may release guilty men; protecting speech and press may involve dangers to a particular government. I believe, however, that the Framers themselves did this balancing when they wrote the Constitution and the Bill of Rights. They appreciated the risks involved and they decided that certain rights should be guaranteed regardless of these risks. Courts have neither the right nor the power to review this original decision of the Framers and to attempt to make a different evaluation of the importance of the rights granted in the Constitution. Where conflicting values exist in the field of individual liberties protected by the Constitution, that document settles the conflict, and its policy should not be changed without constitutional amendments by the people in the manner provided by the people.

Misuse of government power, particularly in times of stress, has brought suffering to humanity in all ages about which we have authentic history. Some of the world's noblest and finest men have suffered ignominy and death for no crime-unless unorthodoxy is a crime. Even enlightened Athens had its victims such as Socrates. Because of the same kind of bigotry, Jesus, the great Dissenter, was put to death on a wooden cross. The flames of inquisitions all over the world have warned that men endowed with unlimited government power, even earnest men, consecrated to a cause, are dangerous.

For my own part, I believe that our Constitution, with its absolute guarantees of individual rights, is the best hope for the aspirations of freedom which men share everywhere. I cannot agree with those who think of the Bill of Rights as an 18th Century straitjacket, unsuited for this age. It is old but not all old things are bad. The evils it guards against are not only old, they are with us now, they exist today. Almost any morning you open your daily paper you can see where some person somewhere in the world is on trial or has just been convicted of supposed disloyalty to a new group controlling the government which has set out to purge its suspected enemies and all those who had dared to be against its successful march to power. Nearly always you see that these political heretics are being tried by military tribunals or some other summary and sure method for disposition of the accused. Now and then we even see the convicted victims as they march to their execution.

Experience all over the world has demonstrated, I fear, that the distance between stable, orderly government and one that has been taken over by force is not so great as we have assumed. Our own free system to live and progress has to have intelligent citizens, citizens who cannot only think and speak and write to influence people, but citizens who are free to do that without fear of governmental censorship or reprisal.

The provisions of the Bill of Rights that safeguard fair legal procedures came about largely to protect the weak and the oppressed from punishment by the strong and the powerful who wanted to stifle the voices of discontent raised in protest against oppression and injustice in public affairs. Nothing that I have read in the Congressional debates on the Bill of Rights indicates that there was any belief that the First Amendment contained any qualifications. The only arguments that tended to look in this direction at all were those that said "that all paper barriers against the power of the community are too weak to be worthy of attention."(22) Suggestions were also made in and out of Congress that a Bill of Rights would be a futile gesture since there would be no way to enforce the safeguards for freedom it provided. Mr. Madison answered this argument in these words:

If they [the Bill of Rights amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against any assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.(23)

I fail to see how courts can escape this sacred trust.

Since the earliest days philosophers have dreamed of a country where the mind and spirit of man would be free; where there would be no limits to inquiry; where men would be free to explore the unknown and to challenge the most deeply rooted beliefs and principles. Our First Amendment was a bold effort to adopt this principle-to establish a country with no legal restrictions of any kind upon the subjects people could investigate, discuss and deny. The Framers knew, better perhaps than we do today, the risks they were taking. They knew that free speech might be the friend of change and revolution. But they also knew that it is always the deadliest enemy of tyranny. With this knowledge they still believed that the ultimate happiness and security of a nation lies in its ability to explore, to change, to grow and ceaselessly to adapt itself to new knowledge born of inquiry free from any kind of governmental control over the mind and spirit of man. Loyalty comes from love of good government, not fear of a bad one.

The First Amendment is truly the heart of the Bill of Rights. The Framers balanced its freedoms of religion, speech, press, assembly and petition against the needs of a powerful central government, and decided that in those freedoms lies this nation's only true security. They were not afraid for men to be free. We should not be. We should be as confident as Jefferson was when he said in his First Inaugural Address:

If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.(24)

1. Reprinted from New York University Law Review, Vol. 35, April 1960.

2. Hugo Black is Associate Justice of the Supreme Court. This article was delivered as the first James Madison Lecture at the New York University School of Law on February 17, 1960. Reprinted from NEW YORK UNIVERSITY LAW REVIEW, Vol. 35, April, 1960.

3. See also Brant, The Madison Heritage, 35, N.Y.U.L. Rev. 882 (1960).

4. 32 U.S. (7 Pet.) 242, 249 (1833).

5. 332 U.S. 46, 71-72 (1947) (dissenting opinion).

6. 361 U.S. 147, 155 (1959) (concurring opinion).

7. See The Trial of John Lilburn and John Wharton (Star Chamber 1637) in 3 How. St. Tr. 1315 (1816).

8. Leveller Manifestoes of the Puritan Revolution 423 (Wolfe ed. 1944).

9. 1 Rives, History of the Life and Times of James Madison 44 (1859).

10. 4 Jefferson, Writings 506 (Washington Ed. 1859).

11. 5 U.S. (1 Branch) 137 (1803).

12. 1 Annals of Cong. 437 (1789).

13. Ibid

14. 1 Annal of Cong. 434 (1789).

15. 1 Annals of Cong. 738 (1789).

16. 6 Madison, Writings 391 (Hunt ed. 1906).

17. 5 Madison, Writings 176 (Hunt ed. 1904).

18. Id. At 132.

19. 1 Annuals of Cong. 730 (1789) (Emphasis added.)

20. 1 Annals of Cong. 436 (1789).

21. See Joint Anti-Fascist Refugee Comm. V. McGrath, 341 U.S. 123, 146-49 (1951) (appendix to concurring opinion of Black, J.).

22. 1 Annals of Cong. 437 (1789).

23. 1 Annals of Cong. 439 (1789).

24. 8 Jefferson, Writings 2-3 (Washington ed. 1859).


Please follow and like us:
Pin Share

Sanjeev Sabhlok

View more posts from this author
Social media & sharing icons powered by UltimatelySocial