What Liberties in Wartime?
Baldwin, Roger
What Liberties in Wartime? By Roger Baldwin ll/AR, of necessity, puts the severest of all " strains on the professional upholders of civil liberties. Their peace-time interpretations of freedom of...
...As it is, he declared, "that which might prove to a European state a mortal disease is here nothing worse than a teasing ailment...
...the character of the victims does not lend itself to widespread sympathy, * * * * THE contrast between civil liberty in World * War I and the present is sharp...
...Two w eeks ???1 The New Leader indicated some of its agreements and differences...
...for s political system-which will work in s crisis...
...THE President, it will be noticed, implies that he, and not Congress, is to decide which Congressional laws "interfere with the winning of the war...
...No such opposition .cow exists: the pacifists are aloof...
...I cannot agree with this reasoning...
...Walton Hamilton has criticized the Hszlitt constitution on the ground that it is replacing "the obsolete with Victorisn stuff...
...Now-it is not those of us who are proposing to reform the Constitution by constitutional means who are preaching a radical and dangerous dictnne...
...that he, and not Congress, is ultimately to decide what powers must be placed in his hands...
...And in his recently-published book, he has offered to contrive a model guaranteed to give satisfaction...
...It must wait for settlement until an election date comes around two, four or six years later...
...The President, on his side, cannot force Congress to adopt what he considers vital by dissolving Congress and appealing from its verdict to that of the country...
...The powers of the Federal government, and the powers of the President, need to be enormously expanded in wartime But they must be expanded by constitutione...
...But we do respect Mr...
...We cannot select or remove them at will, but only at fixed intervals...
...The existing Constitution must be revised...
...In recent months it has prohibited the dispatch abroad of any news or opinion which might be seized upon by Axis propagandists to cause dissension among the Allies...
...But the greatest single issue of civil rights yet developed by the war—the unprecedented Japanese evacuations—aroused very little public protest...
...Nothing in the Constitution gives the Federal government power to impose compulsory arbitration of labor disputes...
...There are pressures for a considerable extension of military power to remove "dangerous" persons from coastal zones...
...Hardly invoked at all in the early months of the war, the policy changed when a clamor arose for the suppression of native "Fascists...
...I do not complain: these are inevitably side issues in war-time to the average American...
...Their peace-time interpretations of freedom of speech, press and assembly are modified by new cautions couched in terms of "clear and present dangers"—the test laid down in World War I by the Supreme Court to uphold laws penalizing utterances and publications...
...Prosecutions and control were aimed at them...
...Reasonable men, of course, accept some restraints on liberties in time of war...
...no prominent personalities or publications are involved...
...Australia or Canada, is preferable to the rigidities and the divided responsibilities of our existing system...
...The impact of war has seen the Civil Liberties Union change some of its ideas, and Mr...
...Thus the cause of civil liberty in war-time is inseparable from the whole democratic struggle...
...Just "winning the war" is a stronger emotion than winning the war for democracy...
...It is only by agreeing by constitutional means to revise some of the antiquated machinery of our Constitution that we can preserve those constitutional liberties which are the heart and living spirit of it Fathers & Sons I THE advocates of constitutional peform [ * are many and distinguished...
...big business, special interests, and the labor movement, mach of which Hazlitt neglected...
...What they are saying is that our elaborate system of checks and balances is all right for peace but that it must be destroyed in war...
...THE chief instruments by .which the govern-ment curtails civil liberties at home in wartime are the Post Office censorship, with sweeping powers to bar from the mails and to revoke second-class mailing privileges...
...No other American citizens of enemy extraction were so singled out...
...I am simply making the point that they are not being adopted by constitutional means...
...All these powers have been exercised largely in response to what government agencies conceive to be public pressure...
...TPHERE^can be only one answer: the Ameri-* cab people...
...Nor have these liberals protested the censorship of the Post Office Department in barring without hearings publications alleged to be pro-Axis or anti-war...
...It is those who would preserve the present Constitution entirely in form while repudiating it in fact who are preaching a radical and dangerous doctrine...
...But under the existing Constitution, if the President and Congress disagree in a crisis, there is no way to consult the people...
...Imagine what the result would be if we chose our military leaders in the field on such a principle...
...THE established issues of civil liberty also continue in war-time, some even in more vigorous form, such as the demand of Negroes for equal rights, the ban on alleged "Communists" in government employment, the barring of the Communist Party from the ballot, the persecution of Jehovah's Witnesses for distributing literature and refusing to salute the flag, and incidental issues of the rights of labor, despite the truce...
...II such a dispute developes...
...read, speak and act...
...For the present, at least—it may not always be so—[America] sails upon a Summer sea...
...Nor ought we to consider it a good arrangement to be forced to get along during war with whatever political leaders happened to be already in power...
...and "no one acts under the full sense of direct accountability...
...Under our inflexible system no issue can be taken to the country when it is urgent and uppermost...
...The Office of Price Administration, the War Production Board, the War Labor Board, the office of Director Byrnes, have become little congresses issuing their own orders and "directives...
...For though a relentless drive has been undertaken against German-Americans associated with the Bund and other allegedly pro-Nazi agencies, almost no proceedings have been brought against Italians, among whom the support of Fascism was certainly as strong as of Nazism among the Germans...
...Everybody concedes the necessity of controlling communications abroad, of censoring military information at its source, of interning enemy aliens who may obstruct the conduct of the war...
...John Stuart Mill...
...The army constantly presses for more power, more regulation over civilian life...
...The cabinet form of government, however, does provide a way of referring questions to the people in a crisis...
...Virtually the only opposition worth noting is that chargeable to pro-Axis elements and sympathizers, or to native "Fascists...
...In tne first World War the liberal, radical arid pacifist forces constituted a formidable opposition...
...It is not those who are trying to reform, but those who are trying to petrify the Constitution who are more likely to bring about its destruction...
...If our leaders once get into the habit of assuming powers on their own declared need for them, withou...
...The executive's need for greater freedom of action in wartime is precisely one of the reasons why we need a more efficient and less rigid Constitution than the one we have...
...Suppose we elected our generals and admirals, like our Senators, for fixed periods of six years, and had no constitutional way of changing them in the menwhile, no matter how many battles they lost or how many lives were sacrificed by their neglect or incompetence...
...whatever the officials think necessary to curtail the liberties of some minority is beyond criticism...
...revocation of citizenship of naturalized Americans, and the new powers of the military to remove citizens or aliens held to be dangerous to military security in coastal zones...
...Responsibility is divided and lost even within Congress itself...
...Freedom« DOGER BALDWIN is a maverick in America's "honest left...
...1942...
...They are willing to acknowledge that some form of the parliamentary government, as exemplified in Britain...
...Even in a war fought for democracy it is extraordinarily difficult to arouse public interest in issues of civil liberty...
...But we may well be confronting larger issues...
...PeopleSvhose initial loyalty is to some other government and not their own, deserve no place in our government's employ, we feel...
...Now I am far from denying that in time of war the executive must be granted much wider powers than in peacetime...
...And they need the power to change the Executive himself if he shows himself unable to carry out the national will...
...They act, they say, - because of public demand for action...
...It will require distress and humility to concede in the democracies ¦ the equality we have so long denied to Negrios, to labor, to Orientals, and to the political Left...
...They do not profess that the prosecutions or revocations help win the war...
...They need the power to change at any time, if need be...
...who is to decide between them...
...Congress cannot force the resignation of the President, as the British can that of the Prime Minister, by voting a lack of confidence...
...The Fair Employment Practice Committee, created by Presidential order to attack all racial and religious discriminations, gets a poor press—save when it is involved in controversy...
...This preoccupation of the most articulate section of liberalism accounts for the surprising lack of protest .or resistance to measures of repression.' The Civil Liberties Union, which has contested virtually all the restraints on opinion aridl publication, and the extraordinary powers invoked, has found little support or cooperation, No great injustices have dramatized repression...
...But against alleged Nazi sympathizers every conceivable proceeding has been brought...
...Some of them are clearly substantiated, some technical, some doubtful...
...is that the nation does not know "how or where to fix responsibility for misfeasance or neglect...
...Roosevelt demanded that Congress repeal a section of the Price Control Law by October 1. "In the event," he declared, "that the Congress should fail to act and act adequately, I shall accept the responsibility, and I will act...
...The Department of Justice found so little evidence of hostile activity among Italian aliens that the restrictions upon them were removed...
...the second is the method of democracy...
...Now comes Henry Has-litt with a call for "s new Constitution now...
...He refuses in his Labor Day message even to indicate any definite limits to'the extent of these powers...
...We cannot make our political leaders accountable and responsible...
...But the blunt truth is that our existing Constitution cannot meet the demands that the American people are making upon it...
...It refused to do so...
...Manpower shortage is helping a liberal administration to redress one of the most tragic minority injustices in American history...
...Only the Civil Liberties Union and a few other agencies challenged the necessity for the evacuation...
...The same discrimination which prompted the evacuations last May also prompted a decision excluding Japanese Americans from service in the armed forces of the United States, though 5,000 of them were already in our military camps...
...This can easily be done if the Constitution itself can be easily and promptly amended by the submission of amendments to direct vote of the people...
...The government's proceedings agains^ the German and Italian "enemy alien" groups has been marked by a discrimination which evidently has its basis in politics...
...It is not a diversion from the war effort to seek to give the American people the power at all times to choose or change their leaders in war...
...It is tragic that the nearer we get to winning the war, the nearer we get to losing the peace...
...The democratic aims and conduct of the war are not served by trivial sedition prosecutions of alleged Fascist opinion, the bans on publications, nor military removals of "dangerous" persons from coastal zones...
...Baldwin in his article notes these changes...
...None have been prosecuted...
...As the casualty lists lengthen and war feelings rise higher, we may confront demands for sterner controls of dissent and criticism...
...The people know that it is safe to grant extremely wide executive power in wartime—provided that they m turn can control the Executive...
...Practically everybody would agree that persons acting in behalf of the enemy should not be permitted to air their views on the radio nor to distribute their propaganda...
...Should domestic Fascists, whose main propaganda—anti-Semitic, anti-Communist, and anti-labor—parallels that of the Axis, be silenced even where they have no connections with them...
...But it is now in more dangerous waters than ever before in its history...
...In World War I it was the forward-looking forces who were attacked, and their suppression aroused wide sympathy...
...Just recently the Post Office has extended its range by proceeding against the organ of the Socialist Workers Party, the "Militant," with a circulation by mail of only 1,500, on the apparent ground that it regards the war as imperialist...
...But Axis propagandists, of course, get the news anyhow despite the censorship: they have friends in the Spanish and French embassies...
...Though the facts may prove a harmless form of Fascist spirit among the Italians, the leniency shown them is evidently due to lack of pressure on the government, and to an effort to detach them—and indirectly Italy and Italians elsewhere—from Axis loyalties...
...I cannot tell what powers may have to be exercised in order to win this war...
...having to consult the majority of Congres« or without having to consult the people, how is the process of power concentration to be stopped or controlled...
...They know the victims are mostly crackpots without influence, but symbols and scapegoats are necessary to the morale of a war...
...The Department of Justice responded by invoking the law against "Social Justice" and lesser publications, by bringing a half dozen prosecutions for sedition against a few locally-known crackpots, and later by an extraordinary seditions conspiracy case against twenty-eight assorted pro-Nazis and domestic Fascists...
...It is they who must decide...
...prosecutions under the espionage, military disaffection and conspiracy statutes...
...The President and many of the agencies that he has appointed have simply walked outside of the Constitution...
...The New Leader does not find itself in full agreement with Mr...
...Yet 115,QUO people, of whom 75,000 were American citizens, were taken from their homes and* businesses^ held by the Army in temporary centers, arid then relocated in permanent camps outside the military zones...
...But they ask why a proposal radically to change our form of government, no matter how sound it may be on its own merits, should be put forward in war time...
...The result of this system, even in quiet times, as Bryce pointed out...
...means...
...Now if a President can, even in the case of a single law, either successfully threaten to suspend it himself, or force Congress to repeal it because of that threat, what becomes of the powers^ of Congress...
...Baldwin as one of America's distinguished fighters for civil rights, and his article on civil rights after one year of war merits close attention...
...Few voices have been raised in protest...
...MANY persons are willing to concur in this1 description of our existing form of government...
...But that it presented any "clear and present danger" no reasonable man would assert—not even the Post Office censors...
...Other students have felt that constitutional problems assume real importance only in the vital social context of war...
...But just where is the line to be drawn beyond that...
...The officials at Washington are on the whole liberals who do not relish prosecutions for utterances and publications—all except the Post Office censors, who appear to enjoy the job...
...If a President can carry out such a threat on one occasion, on the pies of averting "a disaster which would interfere with the winning of the war," what constitutional barrier would then stand in the way of his using the same plea for whatever other power he wished to exercise, for whatever other law of Congress he wished to suspend...
...The Office of Censorship, controlling communications abroad, is showing a spirit as insensitive to the cause of democracy as the Post Office...
...Yet Director Byrnes, at the President's request, has issued a directive forbidding any salaries after taxes of more than $25,000...
...But at present it is being done without constitutional authorization by those who want the new powers...
...Nothing in the Constitution gives the Federal government power to fix local rents...
...And in large part because it cannot meet these demands, it is simply being ignored...
...This process reached its climax up to the present time in the President's message to Congress on Labor Day...
...We should not think it a good system if the President were obliged to get along with whatever military leaders happened to be in command on the day when war broke out...
...If the President tries to set aside a congressional policy on the ground that "it interferes with the winning of th< war...
...And it is a much more disruptive arrangement for the voters to be compelled to retain leaders in whom they have lost confidence than to be able to change them, if necessary, for leaders in which they have confidence...
...We do not consider it a diversion from the war effort if the President relieves an Admiral Kimmel or an Admiral Ghormley and promotes an Admiral Halsey...
...a half century ago, James Brycc remarked that if America were in the perilous position of every European country its citizens could not indulge the easy optimism which made them tolerate the faults of their government...
...And as an extension of the principle in war-time, the Union recently concluded that persons acting in behalf of the enemy could, not enlist the Union's services unless their fundamental rights were being denied...
...If the President and Congress disagree, there is a deadlock...
...It makes a profound difference whether the executive assumes greater powers on his own declared need for them, or whether these powers are freely granted to him by the legislative body, or directly by the people themselves...
...But it is no less important that it be revised by constitutional means...
...In that document Mr...
...There is nc unmistakable way to learn their verdict...
...Neither can appeal from the verdict of the other* to that of the country...
...That makes sense to most reasonable folks, but it raises border-line and difficult questions to test who.is acting in behalf of the enemy and what are the fundamental rights...
...TTHOSE who object to any change whatever in the Constitution think of themselves as its defenders and preservers...
...Apparently, the action has allayed the clamor, for no cases have been brought in recent months...
...America sailed upon that Summer sea fifty years ago...
...Worse, a single committee chairman, chosen by seniority, can often block the expressed will of the House and prevent the Senate from expressing a will by his mere inaction...
...the radicals and liberals support the war...
...a Congress that thwarts the Executive's policies when the people approve those policies...
...few interned...
...The first is the method of dictatorship...
...Congress was urged by the President and twice by the Treasury to limit salaries to a maximum of $25,000 a year...
...He rarely finds himself in full agreement with any single group or philosophy, and conversely many persons are rarely in full agreement with Roger Baldwin's t h ? ? ? ughgoing views on civil liberties...
...Thus the Post Office revoked the second-class mailing privileges of a little publication in Idaho, the "Boise Valley Herald," with a circulation of five hundred in a town of 470 population—a pretty good record—just because it was anti-war...
...and only the Union contested the issue in a half dozen court cases...
...Whatever they may profess to the contrary, those who hold that we can or must ignore or abandon either all or part of the Constitution in time of war do not seriously believe in the Constitution as it stands at present...
...Our other censors have been tightening up, too...
...Hazlitt in the following article, offers constructive comments of his own...
...It is those who will not change the Constitution, though they recognize that it is inadequate, who are more likely to bring disruption in time of war...
...And they do not protest the arbitrary military orders to remove dangerous individuals from coastal zones...
...The Senate can block the overwhelming will of the House, though that will may reflect an equal sentiment in the country...
...James Bryce...
...Even the American Civil Liberties Union, which long looked doubtfully at that vague test, has finally adopted it as a yardstick for lack of a better—-recognizing that the old test of actual incitement to an illegal act had to be broadened in war-time...
...They reflect in part the more serious activities of pro-Nazis, and in part the pressure of hostile public opinion...
...There are even those who call themselves liberals who applauded the government's evacuation of the entire population of Japanese blood from the Pacific Coast to prevent disloyal elements from operating in the event of invasion...
...A New Constitution Now War Crisis Demands Revamped Democratic Structure By HENRY HAZUTT IN his "American Commonwealth...
...And these dangers emphasize, as never before, the terrible inadequacy of our system of government...
...The Post Office censorship affects far more people than the prosecutions of the Department of Justice, for it may by a single decision cut off information and opinion from thousands of readers...
...few naturalized Italians have been deprived of citizenship...
...sometimes quite without the authorization of Congress and sometimes even contrary to its wish...
...It is therefore a futile performance, dangerous to international democracy and serving only to strengthen the forces of reaction...
...For what they are saying, in effect, is that it is merely a fair-weather Constitution...
...I am not here discussing the merits of any of these policies...
...A few citizens whom the Department of Justice could not prosecute have been removed to safer zones by the military authorities on the West Coast just as a precaution...
...Reactionaries take heart for the old order at the prospect of victory...
...And as.-yet none much- affect the rights of the vast majority to hear, see...
...We cannot force them to cooperate with each other...
...There is the constant pressure of reaction on both the international and home fronts...
...For if Fascism triumphs, on the battlefield or at home, if the war system is not abolished, if world organization is not achieved, democratic liberties will inevitably perish...
...Scores of denaturalization cases, suspension of periodicals, prosecutions for conspiracy have marked the government's drive—all for opinions or propaganda...
...This war, he declares, "makes the use of executive power far more essential than in any previous war...
...A manpower draft run largely by military authority is seriously proposed...
...One such danger is pointed out in Jonathan Stout's Washington correspondence this week...
...Controversy has already been stirred...
...We think, for intance, the problem of Communists in the Government deserves fuller consideration...
...And those concessions are tied up with the whole direction of the war and peace aims of the United Nations...
...The general attitude is that the government is right...
...At any rate, democratic, representative government is facing great challenges, st home as well as abroad...
...Even the Department of Justice's own commendable efforts to protect the rights of Negroes and Jahovah's Witnesses get scant space in the press...
...So the chief appeal to civil liberties is now not made by the Left but by the Right, and naturally with vastly less public sympathy...
...A school of liberal politics thinks they should be — and it is inclusive enough to take in the Chicago Tribune, the New York Daily News and the Hearst Press...
...No Italian papers have been barred from the mails...
...Walter Bagehot...
...Congress can prevent the President from doing as he wishes but cannot make him do what it wishes...
...It applauds the Department of Justice prosecutions of professional anti-Semites and anti-Communists, despite the fact that they are all obvious crackpots with virtually rio following after Pearl Harbor...
...Woodrow Wilson, all have written on the weaknesses of the American political system as established by the Founding Fathers...
...The real Fascists in high places, the anti-democrats tied to the reactionary practices of big business, those who put their class interests above their country's— those are the forces threatening democratic liberties...
...they say, it will only divert the country from the essential task of winning the war, and disrupt us by internal dissensions...
...The courts will not undo what is done, but the cases contribute to neutralizing pressures on the side of being tough, and to the liberal solution now well established of releasing thousands of the Japanese to take up homes and work outside the military zones...
...Delays of that length today may prove disastrous...
...Congress may try to annul or set asid« a Presidential policy on the ground that it "interferes with the winning of the war...
...If we attempt to amend our constitution now...
Vol. 25 • December 1942 • No. 49
