Originally published in The Vidette-Messenger of Porter County on November 4, 1975.
Courses By Newspaper
‘People Possess Absolute Sovereignty’
(EDITOR’S NOTE: This is the 10th in a series of 18 articles written for the nation's Bicentennial and exploring themes of American Issues Forum. In this article of American Issues Forum. In this article, first of four dealing with “certain unalienable rights,” Alan Barth discusses the importance of free speech and assembly to free society and limits that have, in fact, been imposed on exercise of these basic freedoms. Courses By Newspaper was developed by University of California Extension, San Diego, and funded by grant from National Endowment for Humanities.)
By ALAN BARTH
On a summer day in 1963, thousands of Americans from every part of the nation gathered on the long Mall leading up to the Lincoln Memorial. They sang “Glory, Glory, Hallelujah” and demanded fulfillment of the promise for which Lincoln lived and died. In unison they chanted, “We shall overcome…”
But it was to the Congress of the United States at the other end of the Mall, not to the symbol of Lincoln, that this living petition was addressed. The demonstrators were exercising two of the fundamental rights guaranteed by the First Amendment to the Constitution 一 the right to assemble peaceably and petition for a redress of grievances. Their object was the passage of a comprehensive civil rights bill designed to assure first-class citizenship to black men and women. Early in the following year, Congress transformed the bill into the law of the land.
The rights of free speech and assembly are not always exercised so decorously, nor are they always recognized as rights by the police and others in authority. On May Day of 1971 another great throng of Americans, most of them students and other young persons, assembled in the Capital to protest against continuance of the war in Vietnam. Thirteen thousand of them were arrested and imprisoned 一 indiscriminately, illegally, and often brutally 一 in the largest mass arrest in American history. On September 4, 1974, however, a United States District Court declared all arrest records stemming from this May-day demonstration should be destroyed.
The freedoms of speech and assembly assured by the First Amendment (together with freedom of the press, to be discussed in the next article) are the considerations essential to the theory of self-government embodied in the United States Constitution. As James Madison put it, “the people, not the government, possess the absolute sovereignty.”
Essential Difference
The First Amendment, according to Madison, who is generally credited with having drafted it, constituted the “essential difference between the British Government and the American Constitution.” In England, after the civil wars of the 1640s, absolute sovereignty was transferred from the monarch to Parliament, not to the people. And, in theory at least, the will of Parliament was supreme. No fundamental written charter enumerated and limited the powers of Parliament as the American Bill of Rights limited the powers of the United States Congress.
In authoritarian countries where ultimate power resides in a party, an oligarchy or a dictator, freedom of expression hardly exists at all. Rulers are rarely hospitable to criticism or challenge. Lacking these correctives, they may, through error of judgment, plunge a nation into catastrophe 一 as Adolf Hitler, in hardly more than a decade, plunged his thousand-year Reich.
In a democracy, however, where popular sovereignty prevails, freedom of expression is the dynamo of the political process. The men who wrote the First Amendment believed that it was less risky to permit the expression of ideas 一 even of ideas considered dangerous and disloyal 一 than to enforce silence. They believed that national unity grew out of resolved conflict, not conformity. In the long run, they believed, the most efficient government was the one constantly obliged to justify its actions and to meet the challenge of competing proposals.
Freedom of assembly or association 一 freedom to join hands with like-minded fellow citizens for the advancement of common purposes 一 is an inseparable consort of free expression. Men are best able to make themselves heard in a large community if they speak in unison.
Alexis de Tocqueville, that astute French critic of the American system in its early years, remarked. “The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow-creatures, of acting in common with them.” And he offered another canny observation about the usefulness of this freedom: “In countries where associations are free, secret societies are unknown. In America, there are numerous factions, but no conspiracies.”
The eminent jurist, Judge Learned Hand, summed up the idea very simply: “The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”
The wisdom of the choice may be measured by the frequency with which we have seen dissenting opinions eventually prevail and minority views become the opinion of the majority. American intervention in Vietnam, for example, opposed in its early stages by no more than a vociferous minor fraction of the country, is now overwhelmingly looked upon as a monumental national blunder. Time and advancing knowledge and changes in the conditions of life produce unforeseeable alterations in fashion, in morals, in social values, even in political convictions; yesterday’s heresy may well become tomorrow’s orthodoxy.
Limits Of Free Speech
The theory of free speech and assembly has not always been honored in practice in the United States. It is sovereign to recall that the First Amendment had hardly been ratified before the Alien and Sedition Acts of 1798 were adopted by a Congress fearful that the radical ideas of the French Revolution would subvert a young Republic conceived and brought to birth in revolution.
The prevailing test for the limits of free speech is what has come to be known as “the clear and present danger” standard formulated by Supreme Court Justice Oliver Wendel Holmes, Jr., in 1919 (Schenck v. United States). “The question in every case,” he wrote, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree?”
Justice Holmes argued eloquently in subsequent dissenting opinions for a liberal and tolerant application of this standard to protect “the expression of opinions that we loathe and believe to fraught with death, unless they so imminently threaten immediate interference with the lawful and the pressing purposes of the law that an immediate check is required to save the country.” And his great associate Justice Louis D. Brandeis reminded Americans in memorable words that the authors of the Constitution regarded free speech not as a mere luxury to be enjoyed only in untroubled times but as a source of strength urgently needed in times of great national strain.
But in the years following the second world war these pleas were powerless against a widespread fear that subversive ideas from overseas 一 this time from the Russian Revolution 一 would sap the loyalty of Americans to their own institutions and their own country. So, again, Congress adopted measures seriously restricting free speech and assembly.
Congressional investigating committees staged what amounted to virtual trials of persons for expressing “subversive” opinions or associating with those suspected of harboring them. They punished people by publicity for offenses not punishable by law.
The most blatant, if not the worst, of these inquisitorial bodies was the Senate subcommittee headed by Senator Joseph McCarthy, who conducted it as a kind of private, roving kangaroo court. He brought a new word, “McCarthyism,” into the language, making it a synonym for overbearing political persecution, until, at last, he was censured by the Senate in 1954 for affronting its dignity. And in more recent days, as we have lately learned, the government carried on a pervasive and intimidating surveillance of anyone suspected of political nonconformity.
Freedom of speech and assembly have been buffeted from the left as well as from the right. University students, who might be presumed to know better, have undermined civil liberty by shouting down the expression of any ideas with which they disagree. The real boundaries of free speech have been left, therefore, in limbo; and no one can define them today with any certainty.
Does America truly want free trade in ideas? Do Americans possess sufficient tolerance to grant a hearing to ideas “they loathe and believe to be fraught with death”? Do the most unpopular ideas deserve a hearing? Upon the answer to these questions depends the shape of future freedom in America.
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Courses by Newspaper distributed by National Newspaper Association. Views expressed in this series of articles are those of authors only and do not necessarily reflect views of National Endowment for Humanities. University of California, distributing agency, or The Vidette-Messenger.
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NEXT WEEK: Alan Barth will explore the issue of freedom of the press.
