Bedrock of Our Freedom
MASLOW, WILL
WRITERS and WRITING Bedrock of Our Freedom Fundamental Liberties of a Free People. Reviewed by Will Maslow By Milton R. Konvitz. Director, Department of Public Affairs, Cornell. 420 pp....
...Not the least of the virtues of Professor Konvitz's book is that it will help prepare the ground for that rollback...
...His preoccupation with court cases, as in his discussion of obscenity, results in a complete failure to analyze the greatest menace to free expression today: the pressure of private censorship groups, such as the National Organization for Decent Literature and its counterparts, on the timorous paperback, radio and TV industries...
...The First Amendment was originally intended to be binding only on the Federal establishment...
...But, in less than four years, the Supreme Court began to eat its words...
...Where tlie problem is one of perceptive analysis of a Supreme Court doctrine, Professor Konvitz is at his best...
...Since then, the Court has stubbornly refused to review cases challenging the constitutionality of compulsory Sunday blue laws and a New Jersey decision that reading the Lord's Prayer and the Old Testament in public school is a "non-sectarian" and permissible exercise...
...Invasion of free speech is now permitted on probability alone, as long as the evil against which the Government contends is sufficiently grave...
...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances...
...The section dealing with religious liberty is not only impeccable in its scholarship but penetrating in its insight and conclusions...
...And eight years later, in the McCollum "released time" decision, the Supreme Court announced by an 8-to-l vote that the First Amendment required (in Jefferson's phrase) "a wall of separation between church and state" and forbade laws "which aid one religion, aid all religions, or prefer one religion over another...
...Justice Douglas based his opinion in the Zorach case on the proposition that "we are a religious people whose institutions presuppose a Supreme Being...
...Last term, in the Yates case, it defined more rigorously the concept of "advocacy" of overthrow and of "organization" of any group committed to overthrow...
...He fails to set forth the historical background, the values for a free society of unlimited discussion, or the economic factors that today menace free speech and free press more than any malevolent law or administrative action...
...The rights of expression of the First Amendment are substantive or energetic rights, as distinguished from the procedural protections or passive rights spelled out in the other amendments...
...Since this book was written, the Supreme Court has given indication that it is prepared to retreat from the sweeping language in the Dennis case...
...Unfortunately, Professor Konvitz does not attempt the same type of analysis in his discussion of freedom of speech and expression...
...His book is divided into three parts: an absorbing, well-organized discussion of the principles of religious freedom and separation of church and state, an intensive and illuminating analysis of the "clear and present danger" doctrine and its downfall in the Supreme Court decision in the Dennis case, and a miscellaneous, disorganized collection of brief comments on various aspects of freedom of speech and press...
...It was not, however, until 1940 that the Supreme Court held squarely that religious freedom is included within the term "liberty...
...While the Supreme Court no longer maintains as it did in 1930 that "We are a Christian people," Mr...
...In 1952, by a 6-to-3 vote, the Court held in the Zorach case that "The First Amendment, however, does not say that in every and all respects there shall be a separation of church and state otherwise, the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly...
...Surprising, too, is Professor Konvitz's failure even to mention freedom of association, which, though not explicitly referred to in the First Amendment, is now recognized by the Supreme Court as a fundamental Constitutional right derived from the other freedoms in that amendment...
...Separation of church and state, as he points out, does not mean hostility to religion...
...is one of degree...
...American Jewish Congress Professor Konvitz's book is a lively legal and critical analysis of the 45 words in the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
...I prefer the recommendation of the late Zechariah Chafee, who would rely solely on the Conspiracy Act of 1861 (still law), which makes it a crime to conspire "to overthrow by force the Government of the United States or to oppose by force the authority thereof, or by force to prevent, hinder or delay the execution of any [Federal] law...
...He rightly regards the decision in the Dennis case as a Constitutional disaster...
...Professor Hook would thus scrap the Smith Act and instead proceed against Communists as agents of a foreign power...
...Companion decisions hint that a rollback of repression is under way...
...The "clear and present danger" rule has now so shrunk that the danger need be neither clear nor present...
...5.00...
...The problem, like many problems in constitutional law...
...But, as Sidney Hook argues, it is not the speech of Communist party members that make them dangerous but their links to Moscow...
...or abridging the freedom of speech, or of the press...
...The Fourteenth Amendment (adopted in 1868) forbade the state governments to "deprive any person of life, liberty or property, without due process of law...
...Professor Kon-vitz traces the slow progress from religious persecution to religious exclusion to religious toleration to religious freedom, culminating in the separation of church and state, an American invention and one of our great and distinctive contributions to fundamental freedoms...
...As he aptly points out, these guarantees, coupled with the writ of habeas corpus (protected by the original Constitution itself and not by any of its later amendments), constitute the bedrock of American freedom...
...on the contrary, although the churches may not occupy today the central position in our life that they held in 1789, a larger proportion of Americans are today religiously committed than at any time in our history...
Vol. 40 • December 1957 • No. 51
