Dear Editor
DEAR EDITOR The New Leader welcomes comment and criticism on any of its features, but letters should not exceed 300 words. JUSTICE BLACK Dr. Sidney Hook's review of Irving Dillard's collection...
...It is unlikely that any Justice of the Supreme Court has been right all of the time...
...I wonder what opinions in what case Keyserling regards as having turned back the tides of political terror in this country...
...Among them are his views that the freedoms on which a self-governing democracy rests include speech that "incites to action legal or illegal," and that the First Amendment legally does, and should, forbid any punishment for libel, slander or defamation—-"absolutely none so far as I am concerned"—irrespective of their consequences...
...Keyserling's characterization of the last 25 years a fantastic exaggeration...
...When the future historian appraises these currents as well as the swimmer, he will, I think, look upon Mr...
...Keyserling's attitude then toward this kind of constitutional fetishism which conceals the fact that private, and hence rationally unchecked preferences, are being read into a document whose authors could not have possibly foreseen some of the conflicts of rights and interests which have arisen in our day...
...The man really believed it...
...for him, the horrors of Soviet history are an aberration which all true Communists must join in condemning...
...The thrust of his article seeks to fortify the contention of the report that "it is the private sector, operating with the cooperation of a vital and democratic labor movement and enlightened management on the basis of essential government services and sensible policies, which will make the greatest contribution to rapid economic growth and overall development...
...In Jordan, for example, the U.S...
...Barry S. Augenbraun...
...Washington, D.C...
...About 60 percent will go to six countries, the other two being Nigeria and Turkey...
...On what experience does Justice Black rest his dogma that the exercise of speech can never affect a man's right to a fair trial...
...Ritner, viewing the Jordanian program in an economic development context, says that the money has been wasted...
...Clearly, none of our aid programs in Asia, Africa, or South Africa is going to produce results as speedily or dramatically or durably as was the case in Western Europe...
...Having lived through a real reign of terror in 1919-1920, I find Mr...
...Has the program reacted by stepping up radically the scale and variety of aid to India...
...Unhappily, the requirements of Brazil, Nigeria...
...this is a new authority authorized just two years ago and for which the criteria are quite strict...
...Hook may ask what I mean by "right...
...How is the program, in general or with any particular recipient, responding to the latest views on the effects of overpopulation on economic development...
...I feel I must take issue with Marvin Kalb's assessment of him in your May 27 issue...
...Justice Black ("'Lord Monboddo' and the Supreme Court"), in your May 13 issue, seems to me filled with the very error which the reviewer ascribes to the Justice...
...Keyserling...
...Keyserling seems to ignore, that illogic or inconsistency is always a sign of some error or confusion...
...which he condemned in other Justices during the '30s...
...The report goes on to praise AID'S investment guaranty program and to recommend its expansion, although it professes "serious doubts as to the wisdom of guaranties against commercial risk...
...Where have we heard sentiments like that expressed before...
...I do not think I am far in that respect from the Holy Scriptures...
...Washington, D.C...
...This reflects the trend to concentration of effort that committee members and numerous critics of foreign aid programs have advocated for some time...
...A Justice who has served more than a quarter century on the Supreme Court cannot be indicted so unequivocally and in my view so unjustly as Dr...
...This, I think, explains the President's decision to impanel the group of distinguished citizens who comprised the Clay Committee and produced this stimulating and useful report...
...Whatever "balancing" was necessary was done for him a long time ago: "I believe . . . that the Framers themselves did this balancing when they wrote the Constitution and Bill of Rights...
...Keyserling...
...Justice Black has been on the side which the historians of the future will regard as having been in step, under the proper constitutional duties of the Supreme Court, with the throbbing needs of our times —and this is close to the only way in which a Justice of the Supreme Court can be "right...
...Ritner, I fear, tends to generalize about a subject whose complexity defies generalizations...
...Vietnam, India, Jordan and Colombia are each quite different...
...Keyserling has not by so much as a word impugned the validity of my analysis of the unwisdom and irresponsibility of the absolutist views to which Black has given expression both in his opiniions and in his essays...
...YEVTUSHENKO Although I only met Yevtushenko once, for something under two hours...
...provides about $40 million annually in direct budgetary support...
...In fact, they are better on the whole than they have been in the past even though they are far from being what they should be...
...Would the cause of abolition have been better served had the Union been destroyed...
...For a substantial period of years, the courage and vision needed for adequate protest against these invasions were sorely lacking in the Congress, the Executive Branch, some courts, some legislatures, the press, and among our leading citizens...
...Taking account of them, we applaud Lincoln for having said at a particular juncture that he would be glad to save the Union by keeping it half slave and half free, if that were the only way...
...Let the aid administrators tell the people and Congress the hard facts as well as the experimental policies they must concoct to meet those facts, however difficult and complex these are...
...Keyserling's criterion of what makes a Justice "right" or "a giant...
...His reply was long and disjointed, broken by sobs: "Oh...
...McCarthy's demagogy was not defeated by Justice Black but by Congress and the good sense of the American people...
...But Justice Black scornfully refuses to do any "balancing" whatsoever—whether of rights or interests...
...The aid program is beset with a number of problems and shortcomings...
...Keyserling, for whose views on economic questions I have high regard, has sent his communication to the wrong address...
...Justice Black's decisions, both when speaking for the Court and when speaking in dissent, will demonstarte that perhaps no Justice in the Court's history, faced with suca a variety of crucial issues, has been more nearly right so much of the time...
...It is one thing to speak of a "vital and democratic labor movement and enlightened management," together with "essential government services and sensible policies," but quite another to develop them...
...They must stop reeling off the same old sermons, laced with the newest discreet evasions...
...But aid proponents don't seem to realize that it is they themselves who are their own worst enemies...
...Justice Black, slow down for a while and ponder the distinction between logic and reason...
...The fears of Chief Justice Stone concerning Justice Black's role on the Bench have, alas, proved to be only too prophetic...
...But nowhere is this "absolutism" more abundantly apparent than when Dr...
...Is the effort going into the Alianza proportionate to the urgency and gravity of the challenge...
...A paragraph of last year's Foreign Relations Committee report to the Senate on the aid bill contained this paragraph: "It is presently estimated that half of the development loan funds that will be obligated next year will go to four countries— India, Pakistan, Brazil, and Argentina...
...I have an idea there are some absolutes...
...John J. Sparkman U.S...
...Does the program reflect the most sophisticated current ideas about capital formation, which have dramatically modified the attitudes of such a liberal economist as J. K. Galbraith...
...Justice Holmes, whom Dr...
...In some countries, they are developing...
...He is politically immature, and the commissars are quite right in their criticism of him: Although he has responded with honesty and force to the obvious inequities in his own society, he has never (until recently, at least) allowed himself to think that these inequities might reflect a basic flaw in the ideals of that society...
...He put the Union first for a number of reasons, among others because he believed that its preservation gave ultimately the best prospects of emancipation...
...Example: "Intellectually, one must comment, this piecemeal approach will not attract the all-knowing foreign-aid bureaucrat, who loves to fly from Addis Ababa to Ceylon to Vientiane in his Government airplane, planning almost on the scale of the Ford Foundation...
...Some passages read like a cross between a Fourth of July oration and an election speech bemoaning the fate of the Republic-—done to death by the other Justices...
...Justice Black are not "intelligent...
...Never mind what experience shows...
...Ritner is rehearsing the argument that our various aid programs should be unified by a single, coherent underlying policy...
...Justice Black's service to our people and our country is to be found, not in abstract logical deductions from some things he has said, but rather in the whole body and practical purposes and results of his work as a circumspect functioning jurist in the context of his times...
...There are "political considerations" attached to every grant of aid...
...No intelligent man is opposed to American foreign aid, if for no other reason than that in present circumstances circulation of funds in the international economy would grow dangerously sluggish without it...
...The political consideration is overriding, and if Mr...
...I submit that the average foreign aid bureaucrat, far from encouraging grandiose projects in places not ready for them, must instead often discourage prestige-seeking governments from diverting resources away from useful piecemeal projects to high dams and steel mills...
...The respectable, resigned obeisance to foreign aid must be supplanted by an analytical and vigorous rationale if the program is to thrive...
...Leon H. Keyserling Sidney Hook replies: Mr...
...Ritner tends to create straw men...
...Some of our aid programs serve very clear political objectives...
...Keyserling in implying that Justice Black really does not mean them, that they should not be taken as responsible utterances...
...further my article "The Pragmatism of Abraham Lincoln," NL, March 18, 1957...
...My review-article was devoted to Justice Black's philosophy of law...
...This is a reasoned defense of a general principle in the light of the relevant consequences of its application not only to the case at hand but to the class of cases involved, a judgment continuous with the ideals of freedom and sensitive to the needs and dangers of the present and emerging future...
...Eloquence, imagination and the fervor of one's absolutes are sufficient...
...One does not have to know much constitutional law or have legal training to write some of these opinions...
...Its justification rests on the difficulty of attracting equity investment into many of the less developed countries, due to chronic instability and strong nationalistic currents...
...In the one case liberalism is replaced by a rhetorical ritualism, in the other by a Machtspruch under the slogans of progress...
...Some of these imagined "decisions" are so ridiculous that Dr...
...But I would suggest that in each case the private sector has a limit to what it can absorb, in some cases a rather low limit...
...Compared to the Palmer Red raids, deportations, organized mob violence, lynchings and near-lynchings, the events Keyserling refers to were pieces of foolishness and stupidity...
...An institution like, say...
...What I find most lacking in Justice Black's opinions, even in the rare instances when I agree with their upshot, is what seems to me to be most important in constitutional judicial judgment...
...He cites the need for "visible results," as were quickly achieved in the Marshall Plan days...
...I mean simply that Mr...
...Ritner's words), we cannot afford to ignore the rest of the world...
...I believe that U.S...
...in others, I am confident that they will develop...
...a bank must possess a coherent corporate policy, but part of that policy is tailoring the bank's facilities to each individual client...
...There have been—and will continue to be—periods of little progress in many countries, periods of slippage, false starts and other difficulties...
...THE CLAY REPORT I am writing in regard to Peter Ritner's interesting article on the so-called Clay Report ("The Battle of Clay's Cliches") in the April 15 issue...
...Whether Mr...
...In the nature of the case, therefore, the judicial judgment involves the mediation of interests, and the balancing of right against right in relation to the whole structure of rights...
...Then they will be harassed no more by Clay Committees...
...It is high time that the considerable number who, in recent years, have been enjoying their incontinent field days in re Mr...
...When these qualities appear in the opinions of a judge we do not need to wait for the judgment of the future...
...The past 15 years have been crowded with experience...
...Seldom was there a time of greater need for a counterforce to exert itself, and never was there a more appropriate place for this counterforce to be exerted than on that Court which, short of the people at large, is the ultimate guardian of our liberties under our constitutional system...
...But there is no room to discuss each case...
...India has shown a surprising and exciting strength...
...and it would be a perversion of Lincoln's position to say that he adhered to the view that a nation which remained permanently half slave would be in accord with his philosophy of life and law...
...I loved him . . . Those were terrible times . . . They are behind us now . . ." He broke off in tears...
...The manifest truth is that Justice Black stands by his words and their implications...
...Finally, I do not share Mr...
...If it is the historians of the future who will judge Justice Black to be right, who will judge whether they are right...
...Hook ends his review with the absolutist statement that those "liberals" who stand with Mr...
...But under different circumstances, this would have been too strong ("absolutist") a statement...
...Keyserling to quote that famous sentence from the opening page of Justice Holmes' Common Law: "The life of the law has not been logic: it has been experience...
...Concentration of aid is laudable and necessary, but I suggest that in "promoting these few huge pivotal states into self-modernizing spirals" (Mr...
...The same goes for Indonesia...
...Yevtushenko was asked, at a meeting in England I attended, how he could say (in his poem, "Talk") that courage was not necessary, simple integrity was enough—when we all knew the price Pasternak had paid for such "simple integrity...
...I agree strongly with the general proposition that the private sector should be expanded, encouraged and supported in the countries that we are concerned with...
...As I understand liberalism from Jefferson and Lincoln to Dewey, from Holmes and Cardozo to Learned Hand and Frankfurter, it has meant the primacy of the values of individual freedom in the cluster of values which define the good life, and the centrality of intelligence in extending, applying and mediating freedom in human experience...
...In Mr...
...However, our aid programs have inspired progress in every part of the world—substantial progress in a number of the less developed countries...
...We will also make mistakes...
...My own feeling is that the effectiveness of our aid programs will rest as much upon the patience of our people as upon the imagination and talent of the administrators...
...Ritner advocates concentration of aid: "To air a pet theory of my own, a very good case can be made for spending the vast bulk of American aid money in only three of four crucial countries: India in Asia, Brazil in Latin America, perhaps Nigeria in Africa...
...For him the Constitution has decided that speech never constitutes a clear and present danger to anything, or if it does, it is always privileged...
...Sidney Hook's review of Irving Dillard's collection of the opinions of Mr...
...But the growth of institutions, as we have seen, is slow...
...After making the extraordinarily dubious statement that "the implications of Black's articulated philosophy are so terrifying that if it were to prevail, the entire structure of human freedom would be more seriously undermined than if the legislative measures he deplores were multiplied one thousand times over," Dr...
...Just as the private sectors of various economies have limits on their absorptive capacities, so do the economies themselves...
...strike against them...
...But an objective and thorough analysis of Mr...
...Hook's intellectual gifts, content to play this logical game...
...Yevtushenko sincerely believes in Communism as a way of life...
...That they lead to bizarre and sometimes incoherent conclusions indicates that he has the courage of his confusions, not that I am an "absolutist" or merely playing "a logical game...
...but my chief criticism has been directed precisely against the absence of reason or intelligence in the positions he has taken...
...Senator Sparkman charges me with a "fleeting acquaintance" of the aid program —though perhaps no Senator is very well placed to see things in natural perspective— yet I have had more than close enough acquaintance of it to know that lack of candor is one of its most prominent and paralyzing characteristics...
...On the other hand...
...Justice Black as one of the righteous giants in the history of the Court, unless in the interim the malevolent currents which threatened us during an important part of Justice Black's tenure should swell to such heights that they permanently sweep away our commitment to what we now most value in the American history and experience...
...That is why he is now a tragic figure...
...I suggest this is at least equally true of his article...
...There is nothing more absolutist than to pass judgment that the statements of a man in high office are too "absolutist" (i.e., too strong or sweeping) without taking account of these considerations...
...Hook, for whom I have high regard on many scores, charges Justice Black with the sin of "absolutism...
...Ritner has not convinced me that he has had more than a fleeting acquaintance with them...
...On the basis of the predictions made by Justices Black and Douglas, our civil liberties should today be non-existent because of the "black shadow of fear" they see settling everywhere...
...If he will but complete reading the paragraph in which this sentence appears, he will discover that Holmes is here identifying logic with the syllogism and not, as so many have mistaken him to mean, the processes of intellectual search and inquiry which are the life blood of common sense and scientific method...
...Ritner and other critics to concede any measure of credit or success to aid programs that have commenced since Marshall Plan days...
...How odd of Mr...
...Cambridge...
...It should not be blamed on him that he kept his head when far too many others were losing theirs...
...Justice Black has at times expressed himself too strongly and with too few defensive reservations, and thus made himself genuinely vulnerable to some merited criticism, depends mainly upon the force and speed of the malevolent currents against which he has had to swim...
...The Emancipation Proclamation was actually a measure designed to save the Union (cf...
...Ritner's comments, as in others, I detect overtones of impatience...
...This defies not only experience but common sense...
...The refernce by Keyserling to Lincoln is particularly malapropos...
...Hook so properly admires, said that "a page of history is worth a volume of logic," that "the life of the law has not been logic: it has been experience," and that "a word is but the skin of a living thought, varying in color and content according to the time and circumstance in which it is used...
...Did we have to wai* for the judgment of the future to tell us that Holmes was a giant...
...and Britain, which also contributes to this purpose) has made a political decision that Jordan's continued existence is necessary to the peace of the Middle East...
...For example: "The aid program must whittle down its objectives to an overall operation which can be practically administered, in a close and efficient way, by an American governmental agency, no better than any other agencies . . ." If I understand this language, Mr...
...A pragmatist is well aware of the distinction between "logic" on the one hand, and reason or intelligence or common sense, on the other...
...If I were discussing the specific legal opinions of Justice Black my judgment would differ sharply from that of Mr...
...And so on...
...Hook attempts through his logical exercise...
...Senator Sparkman is reading these views into my article, where they don't belong...
...What makes a Justice great as distinct from a political leader are qualities of mind—depth of insight, objectivity and balance, logical mastery, relevant erudition, awareness of social change, sensitiveness to the individual case, skepticism of large abstractions, slogans and formulas, the knowledge that he is not God or his representative or even a Platonic guardian, wisdom about the springs of human action, compassion, a sense of humor and a sense of the tragic...
...Ritner opposes the aid program in Jordan he must do so on these grounds...
...Again, the underdeveloped world simply cannot be treated like Western Europe...
...Justice Black is so far from basing his legal judgments on experience, that he has dismissed tout court Holmes' "clear and present danger" doctrine in all its formulations...
...but does the program, or Senator Sparkman, tell us whether something permanent or provisional has been achieved in the case of Jordan—and if provisional, how provisional...
...Mass...
...Thus, the gauge of Mr...
...Finally, I object to the unwillingness of Mr...
...The U.S...
...He has repeated them in the face of criticism...
...Lincoln meant what he said at the time he said it...
...Is this not true...
...As we learn more about this unique experiment, I am confident we will make more progress...
...His chief objection to the Clay Report is that it "parades cliches" in its writing...
...I must confess that I find no case, or set of cases, in which Justice Black's opinions strike as clear a blow for our basic freedoms as those he expressed in Korematsu v. U.S...
...Hook starts with a general statement of the Justice's "articulated philosophy," and then proceeds by a chain of absolutist logic to deduce what the Justice might decide in a series of supposititious cases...
...How has the program made use of this...
...It never occurred to me to think or write that there is anything very similar in the needs of today's underdeveloped countries to those of the original Marshall Plan countries, that Americans should demand prompt and conspicuous results from aid programs, or that the current program has accomplished nothing at all...
...During his more than a quarter century on the Supreme Court, we have experienced in this country, at least sporadically, some of the most intemperate and dangerous invasions of our civil rights and liberties in our history...
...aid has helped to avert a number of crises, enabled some countries to preserve their independence, started others on the path of economic and social development, and still others away from the pre-development to the development stage...
...To regard Yevtushenko as an opportunist—a phony rebel, carefully contriving a middle way between officialdom and mass appeal—is to miss the true pathos of the man's position...
...It is these prejudices (or values) which I hold seriously at fault, for they lead Mr...
...The Emancipation Proclamation, under different circumstances, proved that...
...History, we know, seldom reveals its alternatives...
...These invasions have been projected in some Congressional committees, on the floor of the Senate and the House, within the Executive structure of the Federal Government, in some courts, and importantly elsewhere (including some state legislatures...
...In this case, the strict criteria by which we judge most economic assistance programs are not directly relevant...
...Keyserling, I suggest, in appealing to the future to sustain his judgment of Justice Black, is appealing to those whom he expects to share his prejudices...
...I knew Pasternak...
...an earlier article, "Justice Black's Illogic," NL, December 2, 1959...
...I believe I pay him more intellectual respect and courtesy in taking his words seriously than does Mr...
...So far as a "single, coherent underlying policy" goes I don't see the Senator's point...
...This would, indeed, be excellent counsel, if the countires that receive our aid were enough alike politically, culturally, socially and economically so as to call forth such a policy...
...Where conflicting values exist in the field of individual liberties protected by the Constitution, that document settles the conflict...
...What saddens me is to observe this decay in the principles of liberalism illustrated alike in the absolution of Justice Black and the subjective relativism of Mr...
...Justice Black has been the greatest single voice of this counterforce...
...And what was Mr...
...If the life of the law is experience, it must perforce consist in the assessment of consequences of proposed measures, and "the balancing" of conflicting rights, duties, interests, responsibilities, securities and privileges which are affected by these consequences...
...Indeed, there has been no great President, Justice or Senator since the formation of the Union who could not spuriously be made to look bad by someone of Dr...
...The philosopher Dr...
...Instead, I find in Black's opinions dogmatic pronouncement, a cavalier disregard of relevant fact, a noble rhetoric about freedom in the abstract whose repetition becomes tiresome, an extremism of utterance, and an irresponsibility of prediction more appropriate to the hustings than to the highest Court in the land...
...I have never criticized Justice Black for his logic but for his lack of it (cf...
...Senator from Alabama Peter Ritner replies: Foreign aid tends to be the touchstone of of "responsible progressivism," or something of the sort, and as such has become so loaded an issue that it is difficut to get people to understand what you want to say about it...
...Keyserling to condone in the case of Justice Black an attitude of dogmatism, literalism, absolutism and, where alleged absolutes are concerned, a proud indifference to "the throbbing needs of our time...
...Hook himself is constrained to imply that Justice Black would not reach these results if actually confronted with these supposititious cases...
...He knows that logic or consistency is never a sufficient condition of truth, but he also knows what Mr...
...The general outcry against the aid program seems somewhat more shrill than in the recent past...
...Jordan would collapse without this support...
...Where's the conflict...
Vol. 46 • June 1963 • No. 12
