The Georgetown Law JournalReview of:
Free Speech in Its Relation to Self-Government—by Alexander Meiklejohn. Harper and Brothers, New York, N. Y., 1948. Pp. xiv, 107. $2.00.
It is always most interesting to watch a first-class teacher in action. When his lesson bears on a concept that is fundamental to democracy but elusive in itself and likewise controversial, the interest is heightened. And when he brings to the discussion both the skills of a trained logician and a high sense of the intellectual responsibilities of citizenship, one is quite caught up in his holding of "class." This is the spectacle afforded by the present book. It has a further fascination that I almost hesitate to mention, lest I seem to undermine my sincere eulogies. The teacherlogician-citizen here is not a metaphysician, and his thought admittedly does not anchor itself in ultimate transcendental values; in consequence (and this was my own experience in reading him) there is about his theory a curious air of unreality. I 4p not wish the comparison to be disrespectful, but I confess I had the sensation of assisting at a sort of dialectical rope-trick. The performer was most agile and the rope itself most substantial, but the whole thing seemed to hang in the air.
Dr. Meiklejohn's immediate concern is with the various attempts to "thrust back Communist belief" (p. 46) by the suppressive activities of the FBI, by the Un-American Activities Committee, by the Department of Justice and its Immigration Service, by the President's Loyalty Order, etc. His position is that "all these are false in theory and therefore disastrous in practice" as so many contraventions of the right of free speech. The outline of his argument is simple: The essence of the American political system is "self-government"; "the principle of the freedom of speech springs from the necessities of the program of self-government"; by the same token it is an absolute principle, if understood of the right of "public speech" in distinction from "private speech"; therefore it admits no exceptions, no invasions by governmental authority; in particular, the doctrine of "clear and present danger" actually "annuls the most significant purpose of the First Amendment" (p. .29).
The first lecture, "The Rulers and the Ruled," sets out the concept of self-government as the basic norm of interpretation of the guarantee of free speech. The second, "Clear and Present Danger," attacks the famous Holmesian doctrine. And the third, "American Individualism and the Constitution," seeks the philosophical root of this false doctrine; it also contains the author's own philosophy, if only in suggestive outline. A concluding chapter, "Reflections," indicates further lines of inquiry into the meaning and applications of the principle of free speech.
The whole argument is tight, not without involutions, developed only sparingly. Hence I hesitate to summarize it. On Dr. Meiklejohn's own admission, the essential premise, the concept of self-government, is particularly difficult: "And the crux of the difficulty lies in the fact that in such a society [as ours] the governors and the governed are not two distinct groups of persons. There is only one group—the self-governing people. Rulers and ruled are the same individuals. We, the People, are our own masters, our own subjects" (p. 6). Dr. Meiklejohn solves the difficulty in terms of the "basic agreement" on which, to his mind, the whole concept of American political freedom rests. The agreement contains a two fold element: "We, the People, acting together, either directly or through our representatives, make and administer law. We, the People, acting in groups or separately, are subject to the law" (p. 11). Moreover, it seems that we are subject to the law precisely because we have made it: "No man is called on to obey a law unless he himself, equally with his fellows, has shared in making it" (p. 10). We are therefore governed, bound to obey; on the other hand, it is we who govern ourselves, and our obligation to obey is ultimately self-imposed. This is the meaning of government by consent.
I suspect that it is this part of the author's thought that will cause most difficulty. The basic intuition is sound enough that the public order, which is the state, is the result of the consensual cooperation of its members, ever renewed in a daily plebiscite; that government is not above the order but in it, in vital union with, the willing consent of the people; that the relationship of governors and governed is not established by force or compulsion. The American system is indeed the most daring historical realization of the medieval principle that the community is the source of law, and the most effective institutionalization of the maxim of Edward I in his famous summons of the bishops to the Parliament of 1295: "Quod omnes tangit, ab omnibus approbetur," or of Papinian's dictum, repeated by Bracton, that "lex est communis rei publicae sponsio," the common engagement of the republic. Moreover, no other political system has gone so far in erecting safeguards of liberty by adding to the ancient principle of the legal limitation of government the modern principle of the political responsibility of government. And it is the institution of free speech which, together with a free electoral system, is the agency for enforcing this responsibility. In a word, the United States is a unique experiment in constitutionalism. I do not pretend to be an expert in the matter, but I gather that there has never been complete agreement about all the implications of the experiment. Naturally enough. We have attempted a unique solution to the ancient problem of ruler sovereignty vs. popular sovereignty, or authority vs. freedom in society. But the solution is as unstable as the position of the problem is variable; and even with the limits of general agreement the fundamental conflict persists, as witness the controversy between Jefferson and Marshall.
At all events, Dr. Meiklejohn essays his own interpretation of the American experiment. Unfortunately he is brief, and one is left to guess at the ultimate assumptions of his thought. On the face of it, it looks like an 'attempt to read Rousseauism into the American Constitution—to solve the central problem of politics by the Rousseauistic trick of the identification of the government and the governed. To this is apparently added a solution of the moral problem of authority in terms of the Kantian principle that all submission to heteronomous law or will is somehow necessarily violative of freedom. I call Rousseauism a "trick," because I do not think that the identification he postulates will stand up either under a sociological analysis of political society—any political society—as it is, or under an ethical analysis of political society as it ought to be. And as for the Kantian principle, it is philosophically untenable. However, the immediate question would be whether Dr. Meiklejohn actually gives an account of what happened in 1776 and 1787 and of the ideas that guided the happening. For my part, I do not think so. The question precisely is whether the Founding Fathers' idea of "government by consent" is actually Dr. Mieklejohn's idea of "self-government." I say, I do not think so. And unfortunately Dr. Meiklejohn's limits of space forbade him a full development of his thesis, that might persuade one to the contrary.
There is, of course, a[n] hypothesis in which the problem of authority will logically be solved, or dismissed, by some form of identification of the government with the governed. One must come to some such identification if one denies that there are objective norms and ideas and common values that have to be realized by the cooperative endeavor of rulers and ruled, and that are therefore the ultimate measure both of the reasonableness of the obedience of the ruled and of the rightfulness of the commands of the ruler. After making this denial, if one wants to keep the citizen free, one must somehow arrange that he obey only himself; otherwise there is no way to rescue him from the tyranny of the arbitrary heteronomous will of "those in power." It seems that Dr. Meiklejohn actually does make this denial, or at least that he logically ought to. He instances with apparent approval Holmes's well-known scepticism with regard to the inherent personal dignity of man; consequently he ought to deny that there is an order of human ends that imposes itself on the human and political conscience as imperatively necessary, apart from any antecedent free consent to strive for these ends. In the absence of such an order of ends, sovereign at once over ruler and ruled, there is no logical way to safeguard what Dr. Meiklejohn conceives to be the essential dignity of man, his political freedom, save by an appeal to illimitable popular sovereignty, against the dangers of unlimited ruler sovereignty. However, this appeal itself is dangerous, in fact disastrous, as the history of Continental political theory and practice in the nineteenth century amply attests. The rex sulutus a lege is hardly a worse enemy of human freedom than the populus solutus a lege.
Dr. Mieklejohn is not unaware of this fact. In fact, no one could be unaware of the eternal problem: "Quis custodiet custodes?" However, I do not see that he gives an answer. True, in his last chapter he enlarges upon the concept of the common good and its general content—unity, justice, tranquillity, defense, welfare, equality, liberty. However, this development is not brought to bear on the problem broached in the first chapter—the concept of "self-government" and the contents of the pact on which the American plan of government rests. In terms of the familiar distinction, he regards the pact simply as pactum subjectionis, the consensual will to an organization of political authority, the establishment of particular kind of constitutional government. He does not deal with the pactum unionis, the will to a common life in ' a body politic, whose ends are accepted, not created, by the contracting wills; this is the will to form a state, an order of peace and justice, whose contents are not purely formal or procedural but substantive and material. However, the two pacts that respectively form the state and organize a government are inseparable. And to divorce them is fatal to any balanced theory of any political institution, perhaps especially that of free speech.
It is misleading to say: "All other purposes, whether individual or social, can find their legitimate scope and meaning only as they conform to the one basic purpose that the citizens of this nation shall make and obey their own laws, shall be at once their own subjects and their own masters" (p. 15). As it stands, this statement subordinates the exigencies of the common good to the exigencies of a mode of government, which to me is political nonsense. In particular, it seems to beg the whole question of free speech. The question precisely is whether the exigencies of the common good of the state can ever justify in principle restrictions on the workings of a political institution, free speech, which is simply an exigence of a form of constitutional government whose whole raison d' etre is the common good, and whose whole purpose is to seek the common good by emphasizing the joint political responsibility of rulers and ruled to the common good.
By a manner of happy inconsequence, Dr. Meiklejohn does not rest his case for unlimited freedom of "public speech" on the petitio principii involved in his theory of the Constitution and the pact on which it is based. As a matter of fact, his special theory of self-government is not ntegral to his case; I wonder why he wished to cause difficulty by bringing it in. It would be sufficient to lay it down that a constitutional system in which the people are to share in power requires for its working in a mature society the institutions of freedom of opinion, of speech, of the press, of association, since these are the congruous means for the vindication of the rights and interests whose organized and harmonious totality constitute the common good. Actually, Dr. Meiklejohn uses his theory simply to establish the "right to hear," or better, the public need to have expressed all the views that are relevant to the public interest. (This is the theory of Horack and others—a good theory, provided it is not made exclusive, and entails no concessions to the idea that the individual exists for society.) However, this theory does not substantiate the view that freedom of speech must be an absolute, unlimited.
When the chips are down, i.e., when the crucial issue comes up, whether (in Holmes's words) there are certain "substantive evils" which Congress has the right to prevent by inhibiting free speech, Dr. Meiklejohn does not appeal to the principle of self-government or to the "need to hear" theory, but to a political decision with regard to the exigencies of the common good that was reached after weighing the evils involved in the alternatives—suppression or unlimited freedom. "In the judgment of the Constitution," he says, "some preventions are more evil than are the evils from which they would save us" (p.48); the abridgment of freedom of speech, in order to prevent evils, would be a greater evil. And again: "We have measured the dangers and the values of the suppression of the freedom of public inquiry and debate. And, on the basis of that measurement, having regard for the public safety, we have decided that the destruction of freedom is always unwise, that freedom is always expedient. The conviction recorded by that decision is not a sentimental vagary about the 'natural rights' of individuals. It is a reasoned and sober judgment as to the best available method of guarding the public safety" (p. 65; cf. p. 68). This makes good sense. The only question is whether the American people actually have made any such absolute and sweeping decision, and recorded it in the Constitution (understanding, as one must, that "the Constitution" means not merely the written document but also its surrounding literature of interpretation—judicial decisions, practical construction in legislation, etc).
In this regard Dr. Meiklejohn is not convincing. His ultimate argument to show that the American people have made this absolute decision is the following: We have decided to be self-governing; but any abridgement of free speech leads to "the breakdown of self-government" (p. 68); therefore it is wrong, as being incompatible with our basic decision. But this seems to me a bad argument. First, the leap to the dreadful consequence is dialectically as well as politically unwarranted. Secondly, the argument seems to involve Dr. Meiklejohn in the petitio principii which one thought he had avoided—that of postulating unlimited free speech as an immediate exigence of a program of self-government, thus absolutizing a political institution at (it may be) the expense of the common good which that institution is supposed to serve. Nor is it any good to say that unlimited free speech is of the very essence of the common good and therefore absolute; for that is the precise question under dispute. And the possible subsumption—that unlimited free speech is of the essence of self-government, which is of the essence of the common good—seems to me only to widen the circle, not break out of it.
I confess I am troubled by this absolutizing of a political institution (it is being done today also in regard of another political institution—separation of Church and State). Antecedently one supposes that the value of any political institution is relative, functional to a higher good, personal or social. One supposes too that the workings of political institutions are subject to the dictates of political prudence, precisely because they are means to ends. But Dr. Meiklejohn's theory seems to leave no room for political prudence; he wants his political principle absolutized and all the cases settled a priori. In a judicial or legislative policy of making exceptions to the rule of unlimited free speech he would see, as its basic vice, some distrust of the civic intelligence and man's power to govern himself (p. 68). But may one not see in his absolutism a distrust of our capacities for political prudence—our ability to settle individual cases justly, on their merits? Obviously, any doctrine of exception (like Holmes's clear, present and serious danger doctrine, or even Brandeis' theory of emergency) is liable to abuse. And popular hysteria may sway legislative or even judicial judgment. But must we believe in the inevitability of abuse or of hysteria, and for this reason fly to some absolutisms?
In all this I have been concerned simply with Dr. Meiklejohn's argument, not with the problem of free speech itself. As he himself says of Holmes, "one is uneasily aware of the dangers of his rhetorical skill," and of his dialectical keenness. But I confess I found his argument more seductive than valid, more stimulating than convincing. He criticises the "philosophic weakness" in Holmes's legal theory, on grounds that "it gives no adequate account of the deeper social ends and ideas upon which the legal procedure depends for life and meaning" (p. 74). I should have to criticise his own political theory, on grounds that the political process also depends for life and meaning on ideas and on personal and social ends of which he gives no adequate account. This is why I said in the beginning that his argument seems to be suspended in the air. There is no space to deal further with its details—for instance, with the pivotal distinction between "private speech" which is subject to restriction, and "public speech" which is not; I find it difficult to understand this distinction and its application, save in terms of a theory—which I should reject but which I expect Dr. Meiklejohn rather favors—that the state is The Whole.
Let me in conclusion merely indicate one other detail that contributes to the impression that his theory moves somewhat in a void—I mean his failure to come to grips with the precise nature, scope, extent, bearing and imminence of the contemporary Communist threat to human freedom, personal and social, as this threat is relevant to the problem of the First Amendment's guarantees. It is, I think, superficial to canonize as "Americanism" (p. 46) Holmes's dictum: "If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." This view is, of course, entirely logical in the context of Holmes's sceptical relativism in regard of truth and his secularism in regard to human values. But I for one do not believe secularism and sceptical relativism are the American philosophy of life, the premises from which we are derive the meaning of our political institutions. If they were, our fundamental rights and liberties would be mere formalities, empty forms whose endangering one could view with indifference. As it is, these rights and liberties have inherent substance in that they rest on clearly discoverable convictions in the order of absolute truth. They presuppose a material moral homogeneity in our people that is the dynamic of our free society. And it is the philosophical and religious bases of this moral homogeneity that Communism tends to subvert, and not alone a certain set of political forms or economic institutions. I should consider it indisputable that government has a function in regard of the protection of this moral homogeneity. Admittedly, the function is difficult to define; and to discharge it in a manner that is just and compatible with loyalty to the basic American method of persuasion is a task requiring the highest political prudence. This said, it remains true that nothing is gained by a failure to measure the problem in its full dimensions.
I fear I have done poor justice to a valuable book by a thinker of high seriousness and competence. I would therefore make up by an utterly sincere recommendation of the book to every thoughtful American. Its insights and in particular its powerful challenge to our thinking make it indispensable.
John Courtney Murray, S. J.