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6) A New Bill of Rights: The right to come and go, to speak or be silent, free form spying of secret political police


by Arthur Garfield Hays - 1942


THERE IS A DISPOSITION TODAY, AS in all times of stress, to take a negative attitude toward civil rights.   The argument it runs that all else must be subordinated to the main task of beating totalitarianism.  This assumes that we can do the job more effectively if, for the duration of the war, we give up or the government suppresses our civil rights. This ignores the fact that freedom is not only more civilized but that it is also more efficient than tyranny. It is not wholly a matter of chance that the most progressive and the most prosperous countries in the world are likewise the freest countries in the world. I venture to say that the principles which lead to this result apply in time of war as well as in times of peace.

The fact is that democracy works. Those who feel otherwise must answer the practical arguments which support the view that freedom is safer and wiser than repression:


1. Freedom encourages criticism. The worst effect of suppressing a few thousand extremists is that you discourage millions of reasonable men from expressing themselves.


2. Freedom puts dissenters and dissenting views in the limelight where they can most effectively be com-batted.


3. Freedom provides a safety valve for emotion.


4. Freedom avoids the witch hunt which comes when neighbors suspiciously watch one another and each man attempts to judge his fellows.


5. Freedom avoids the nervous strain and the deterioration of morale to which all people are subject when they do not know whether the morning knock on the door means the postman or the Gestapo.


6. Freedom indicates a healthy and vigorous body politic.


Many will approve in principle but . . . But what? "But these are dangerous times. This is a total war. Conditions have changed. Your view is unrealistic. German propaganda is clever, insinuating, all-pervading." In other words, "You can't trust democracy. You can't trust the American people." Thus spoke Hague when he kept "undesirables" out of Jersey City; thus spoke Smith when he kept them out of Kentucky and Don Chaffin when he kept them out of West Virginia. I have often said that in Germany they throw dissenters into concentration camps while in Jersey City they throw them into Hoboken.


In his momentous book, Free Speech in the United States, Zechariah Chafee, Jr. refers to the fear that our free institutions may leave us defenseless in the face of insidious enemy propaganda. "But," says he, "this amounts to wishing we had a different kind of Constitution." The framers of the Constitution preferred to run these risks rather than incur the opposite danger of having a government immune from criticism. It seems to be forgotten that the men who drafted the Bill of Rights had just been through a long war and one where national existence was also at stake.


Jeremiah Black in his argument in Ex parte Milli-gan (4 Wallace, 3, 75 (1866)) said:


In peaceable and quiet times our legal rights are in little danger o£ being overborne; but when the wave of power lashes itself into violence and rage, and goes surging up against the barriers which were made to confine it, then we need the whole strength of an unbroken constitution to save us . . .


That was the Copperhead case in which the Supreme Court held that there was no more "pernicious" doctrine than that the Constitution is suspended in time of war.


Does war make any difference? Of course! The background may throw light on the question of whether speech is that of incitement or of opinion. But that is, or should be, the limit of differentiation between peace and war.


S O FAR I HAVE WRITTEN IN GENERAL TERMS AND HAVE proposed a thesis to which few democrats would dissent in principle. When we come to specific cases, our emotions are aroused and we are likely to be uncomfortable if we oppose any acts of the government in pursuance of the war effort. And this in spite of die fact that today most of us are thoroughly ashamed of the prosecutions (or persecutions) in World War I.


Even before the war the issue arose as to the right to be silent. Children who were members of Jehovah's Witnesses, believing that all men are brothers and that no one should pay homage except to God, refused to salute the flag. The Supreme Court of the United States held constitutional school regulations under which a salute was required. No doubt flag salutes and oaths of loyalty will raise important issues during the war.

Today thirteen naturalized American citizens are undergoing their third month of detention at Camp McCoy in Sparta, Wisconsin. They were arrested by the FBI in Hawaii last December and turned over to the military authorities on suspicion of disloyalty. There were no specific charges against them and there have been no hearings.


A Presidential order provides for wholesale blanket evacuation of large Pacific Coast areas of aliens (refugees as well as others) and of citizens of Japanese ancestry—this to be done in the absence of martial law and by the military and without inquiry, hearing or judgment.


Naturalized citizens are threatened with loss of citi­zenship if after naturalization they say or do anything indicating lack of loyalty to the government. A Wall Street banker (naturalized) asked me the other day whether he was in jeopardy for having criticized the President. The few cases (chiefly of Bundists) where action is contemplated and where it may be justified on the ground of fraud in taking an oath of allegiance, are unimportant compared with the intimidation which results from such action.


Sedition charges based on opinion (and opinion alone) now make the headlines. William Dudley Pelley is no doubt a bad man. (Personally I am not grieved to read of his trouble, though it seems to me he belongs in a lunatic asylum rather than in jail.) Yet I hate to see his ravings dignified and publicized and I am fearful of the idea that a man may draw a twenty-year jail sentence for saying that "we have by every act and deed performable solicited war with the Axis." I am reminded that the New Masses proposes action against Colonel McCormick and the Chicago Tribune; that the Nation urged the suppression of Coughlin and Social Justice; that hosts of others would bring action against anyone who criticized the British, the Chinese, the Russians, any of our allies, and of course against those who criticize our administration or our military or naval command. "For," say they, "these are the methods of German propaganda."   If you doubt it, read Divide and Conquer.


Yet I know of nothing that would divide Americans more quickly than suppression and a witch hunt. The spirit, for which German aggression and brutality are largely responsible, with which the Japs were good enough to unify us with their dastardly attack on Pearl Harbor, should not be jeopardized. Our enemies are" neither so clever nor are we so stupid as many timid patriots believe.


If we care for a post-war America where the sixth freedom of the National Resources Planning Board will be a fact for all, we must be guided now by words which again come from Chafee's book:


Let us not in our anxiety to protect ourselves from foreign tyrants, imitate some o£ their worst acts, and sacrifice in the process oE national defense the very liberties we are defending.


*ARTHUR CARFIELO HAYS,  NEW  YORK  ATTORNEY,  HAS  FOUGHT  UN' STINTINGLY FOR CIVIL LIBERTIES.







Cite This Article as: Teachers College Record Volume 8 Number 70, 1942, p. 238-239
https://www.tcrecord.org ID Number: 14337, Date Accessed: 1/18/2022 6:40:35 PM

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