Tag Archives: Robert Jackson

“It Is Not the Function of Our Government to Keep the Citizen from Falling into Error”

26 Wednesday Mar 2014

Posted by in Political Philosophy

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Robert Jackson

“Progress generally begins in skepticism about accepted truths. Intellectual freedom means the right to reexamine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all… The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored. […]

I think that, under our system, it is time enough for the law to lay hold of the citizen when he acts illegally, or in some rare circumstances when his thoughts are given illegal utterance. I think we must let his mind alone.”

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A section from Justice Robert Jackson’s decision in American Communications Association v. Douds (1950).

Robert Jackson, who in addition to serving as Chief Justice of the Supreme Court also oversaw the Nuremberg Tribunal, never earned his Juris Doctor. Incredibly, he dropped out of Albany law school after only two semesters.

More from the Court:

  • Robert Jackson’s solemn, powerful opening to the Nuremberg tribunals
  • Justice Louis Brandeis explains why a government’s contempt for law is contagious
  • Brandeis describes the resilience of the American founders

Robert Jackson at Nuremberg

Above: Jackson opens Nuremberg, November, 1945.

A Government’s Contempt for Law Is Contagious

31 Friday Jan 2014

Posted by in Political Philosophy

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Justice Louis Brandeis

“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding…

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

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Justice Louis Brandeis, dissenting in his opinion for Olmstead v. United States in 1928.

For this case, which was decided over 85-years-ago, the Supreme Court deliberated whether the wiretapping of private telephone conversations — which was initiated by federal agents — could produce evidence that was legally admissible. The Supreme Court eventually ruled, in a 5-4 decision, that such wiretapping was not a violation of either the Fourth or Fifth Amendment, and thereby was not an encroachment on the defendant’s rights.

I agree with Justice Brandeis’s dissent here. And, happily, so did the Supreme Court — albeit not until four decades later, when they overturned Olmstead with their decision in Katz v. United States in 1967.

In thinking about this underlying but essential truth — that the government, like citizens, is not be allowed to break the law — I’m drawn to a juxtaposition that’s latent in the now popular story of Marcus Luttrell. When their lives were put on the line, when they were at their most vulnerable and had an easy but morally dubious way out, they refused to commit a war crime. Instead they abided by the rules of combat, knowing that such a choice would very likely lead to their demise.

Contrast this with the tough-talkers who were in Washington at that time. Bush, Cheney, and co., themselves so allergic to combat when their names were called, shredded not only domestic law (including habeas corpus, arguably the most important legal instrument we’ve got), but also international rules and norms, including the Geneva Conventions and the precedents set at the Nuremberg Tribunal.

 

More Brandeis:

Louis Brandeis

Those Who Won Our Independence

More Security State:

Surveillance Cameras

Bridling the Surveillance State

More International Law:

Der Hauptanklagevertreter

Robert Jackson Opens the Nuremberg Tribunal

Robert Jackson Opens the Nuremberg Trials

28 Wednesday Aug 2013

Posted by in History, Politics, War

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Der Hauptanklagevertreter

Robert H. Jackson
Chief of Counsel for the United States
Nuremberg, Germany
November 21, 1945

“May it please Your Honors:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason…

In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world.

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.”

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An excerpt from Robert H. Jackson, the chief United States prosecutor as he opened the Nuremberg trials on November 21, 1945. This first and particularly visible trial was decribed by British barrister Norman Birkett as, “the greatest trial in history.” Read more about Jackson in Mission at Nuremberg: An American Army Chaplain and the Trial of the Nazis.

Jackson was also United States Attorney General and Associate Justice of the U.S. Supreme Court from 1941-1954, despite never having graduated from law school (he attended Albany Law School for one year before dropping out).

In a recent interview, Justice Antonin Scalia was asked which modern member of the Supreme Court he admired most. His immediate answer was Jackson, whom he said he admired for his ideological originalism (the Constitution is not a “living” document), his staunch defense of due process protections, and his literary technique — his ability to powerfully communicate as a master stylist. And you can see that unyielding force and consummate style above.

“We [the Supreme Court] are not final because we are infallible, but we are infallible only because we are final.”

– Robert Jackson, writing in Brown v. Allen, February 9th, 1953

Robert Jackson