Westin, Alan F.

English

Yale Law School Legal Scholarship Repository

THE YALE LAW JOURNAL
of securities is entitled to have. As previously indicated, the second specific
suggestion has been incorporated in the definition of "public offering" at
least since 1935.
Undoubtedly, direct placement needs more research and more first-hand
investigation. Professor Corey has been a pioneer, setting up targets for cri-
ticism, and establishing landmarks for others to embellish.
MYER FELDMANt
CIVIL LIBERTIES UNDER ATTACK. By Henry Steele Commager, Robert K.
Carr, Zechariah Chafee Jr., Walter Gellhorn, Curtis Bok, and James P.
Baxter III. Edited by Clair Wilcox. William J. Cooper Foundation
Lectures, Swarthmore College. Philadelphia: University of Pennsylvania
Press, 1951. Pp. 155. $3.50.
PROFESSOR Paul Freund of the Harvard Law School once remarked that
the charge against the Joint Anti-Fascist Refugee Committee (placed on the
Attorney General's list of subversive organizations) seemed to be that they
were "prematurely anti-fascist." In the same vein, many books in recent years
which have protested against infringements upon civil liberties have seemed
to lack popular response because they were "premature" protests--protests
against restrictions which had not percolated down far enough into the
national system to cause widespread concern. With the publication of Alan
Barth's The Loyalty of Free Men, Walter Gellhorn's Security, Loyalty and
Science, and now, six lectures gathered in Civil Liberties Under Attack, the
time seems to have become "mature" for re-examining our civil freedoms,
1951 edition.
The issuance of this book is reminiscent of May, 1920, in the period of the
notorious Palmer Raids and the anti-radical terror which followed World
War One. Then, twelve of America's most distinguished attorneys-essen-
tially conservative men like Roscoe Pound, Felix Frankfurter, Ernst Freund,
Zechariah Chafee Jr. and Francis Fisher Kane-issued a report to the Ameri-
can people on the illegal practices of the U.S. Department of Justice, as a
response of conscience to the severe restrictions upon civil liberties then cur-
rent.1 In this volume, six nationally prominent, essentially conservative writers
have again assembled to report on the status of our liberties.
Although dealing with separate topics, two conclusions are presented by
each of these authors: first, that restrictions upon civil freedoms in the United
tAttorney, Securities and Exchange Commission. The views expressed in this review
are those of the writer, and are not to be construed as those of the Securities and Ex-
change ,Commission or any other member of its Staff.
1. To the American People, Report Upon the Illegal Practices of the United States
Department of Justice, Washington, D.C. (National Popular Government League, May,
1920).
[Vol. 61
REVIEWS
States today are frighteningly widespread and involve the interests of the
overwhelming majority of American citizens, and secondly, that we are reach-
ing a decisive point at which our most traditional notions of free inquiry,
human dignity and social progress are either to be reaffirmed or else radi-
cally altered, and perhaps substantially lost.
Professor Henry Steele Commager in "The Pragmatic Necessity for Free-
dom" uses his crystal prose to examine the basic rationale upon which our
traditional notions of freedom lie. Realizing that the legal approach or the
natural-rights-of-man analysis both have certain weaknesses, Professor Com-
mager submits that the conclusive case for freedom of dissent lies in realizing
"the practical consequences of conduct which denies or fetters freedom." He
sees these as threefold. First, that we are being forced to an official standard
of orthodoxy which creates-through the censorship of public opinion-a
climate in which the nation is denied the independent thought and original
analysis it desperately needs. Second, that "first rate men and women will not
and cannot work under conditions fixed by those who are afraid of ideas."
Such conditions force loyal individuals who have self-respect and are intel-
lectually honest to seek other work or to turn to antiquarian research, thus
depriving us of needed talents without making our institutions any safer. The
third consequence is that our society becomes one governed by fear-fear to
inquire, fear to teach, fear to join, fear to read, and fear to defend traditional
freedoms.
Professor Commager illustrates this by citing the effects upon our society
of the House Un-American Activities Committee attack on the Lawyers Guild,
the banning of Professor Mark Van Doren's books from the Jersey City
public school libraries, the University of California loyalty oath, Senator
McCarthy's blasts at the State Department and the growing movement of
guilt by association. His standards are dearly stated when he writes: "It is,
you see, with the practical consequences to our society of the limitations on
freedom that we are concerned. We do not protect freedom in order to
indulge error. We protect freedom in order to discover truth. We do not
maintain freedom in order to permit eccentricity to flourish; we maintain
freedom in order that society may profit from criticism, even eccentric criti-
cism. We do not encourage dissent for sentimental reasons; we encourage
dissent because we cannot live without it."
In the second selection, Professor Robert K. Carr examines "Progress in
Civil Rights" in a refutation of five "fallacies" which "mark the arguments
of those who are opposed to moving in the directions recommended by the
Civil Rights Committee and the President." Professor Carr brings to this
long needed systematic treatment a moderate yet uncompromising analysis
and a wide factual reservoir gained from his position as Executive Secretary
of President Truman's Committee on Civil Rights.
His technique may be observed in a precis of his argument against the first
"fallacy," that we should improve civil rights conditions by private action,
1952]
THE YALE LAW JOURNAL
not by laws. Pointing out that this is not a question of choosing between law
and private action but of utilizing both, Professor Carr reminds us that
"organized societies have traditionally coped with the anti-social acts of in-
dividuals in their midst through laws enforced by government," citing
sanctions against murder, kidnapping, arson and burglary. He urges that
deprivations of civil rights should be treated in similar fashion: "If one man
willfully and deliberately interferes with another man's right to vote, why
should not he be punished under law?" Thus, even though in the broader
sense, "it may be impossible to change human nature by lair... human be-
havior is subject to social control by law," and though law may not destroy
the practice it seeks to control, it is a creative force in deterring such a prac-
tice. Noting that seventeen states and the District of Columbia have laws
providing for the compulsory segregation of the races, Professor Carr con-
cludes that "the ruling classes in these states have been unwilling to let the
issue of segregation be determined on a private, voluntary basis... The choice
is not between 'law' and 'private, voluntary action;' the choice is between
'good law' and 'bad law'--between a moral law and an evil law."
In similar fashion, Professor Carr treats the four remaining arguments:
that we are making adequate progress without law; that if we are to have
governmental action it should be confined to state and local levels; that we
must not try to move too fast in securing civil rights; and that Negroes are
satisfied and indeed prefer segregation. Closing on a note of immediacy, Pro-
fessor Carr writes: "If democracy is to hold its own with communism in this
appeal for the respect and loyalty of the peoples of Asia, Africa and even
South America, we cannot delay much longer in making it clear to the world
that American democracy does not involve racial discrimination or inter-
ference with civil rights along racial lines."
Under "Investigations of Radicalism and Laws Against Subversion," Pro-
fessor Zechariah Chafee Jr. rejects the notion that American radicalism is
foreign or Kremlin controlled, or to be viewed in the McCarran Act, Smith
Act attitude. He classifies United States communists as "American problem
children" and suggests that "Instead of tearing ourselves to pieces with fears
of what a vague mob with a hated label may do to us in the future, it will be
wise to look at them as individual men and women, here and now." To re-
claim these Americans, Professor Chafee urges that we break down our ap-
proach toward radicals into component parts-use our existing legislation
and investigation powers against those who are in fact trained spies "without
behaving as if the meeting at Peekskill to listen to Paul Robeson was an over-
seas session of the Politburo," and leave the remaining problems of radicalism
to be dealt with within the broader framework of our free institutions. Using
this breakdown approach, Professor Chafee goes on to criticize the attitude,
the technique and the enabling law under which the present attack upon civil
freedoms is being waged-namely, the development of an "American party
line" of thought control; the current indecencies of Congressional investigat-
[Vol. 61
REVIEWS
ing committees; and the potpourri of controls called the McCarran Act. His
discussion of each of these three areas is a skillful interweaving of historical
guides, penetrating analysis and probing questions.
At his best in the section dealing with legislative committees where he sug-
gests a practical system of reform to be put into law, Professor Chafee is in
the entire essay a man afraid of only one thing-that we may so shackle our-
selves with a national self-hatred and controls that we will be unable to bring
our power of freedom to bear upon the problems of the future.
In the fourth area, "Security, Secrecy and the Advancement of Science"
the loyalty program receives a restrained but equally lethal treatment at the
hands of Professor Walter Gellhorn. The professor writes that "almost with
a single voice, American scientists assert that we are overdoing our secrecy."
Looking to the security program in practice, Professor Gellhorn finds that
scientific advance is being impeded; that clearance indignities are diverting
loyal scientists from government service and depressing the morale of those
who remain; that not "one single case of espionage" has been produced by
the loyalty program, and that the program has achieved one major result: "It
has thrown the weight of the government of the United States behind the
dangerous theory that entertaining an unsound opinion or advocating an
abhorrent idea is itself an offense against society."
Thus, in Professor Gellhorn's view, "The program should be abandoned as
a mistaken approach to a real problem," leaving the Federal Bureau of In-
vestigation to detect spies. He suggests a sane security procedure, without
guilt by association, to guard our scientific data. This conception would leave
science free for the essential interchange of discoveries for the general welfare
while retaining a check on the military researches which should be kept secret.
The keynote to the problem for Professor Gellhorn, as with Professors Com-
mager and Chafee, is a reasoned self-confidence: "The answer to fear, as J.
Robert Oppenheimer has well said. cannot always lie in dissipating its causes
or in yielding to it. Sometimes it lies, simply enough, in courage."
Judge Curtis Bok's deceptive essay, "Censorship and the Arts" brings to
mind Schopenhauer's warning that "any book that is at all important ought
to be at once read through twice." At first reading, Judge Bok seems to
have contributed a light resume of legal censorship since 1501 when the
modern principle was established by Pope Alexander VI; a rich sampling
of the treatment given art, music and literature by United States censors;
and a few delicately choice phrases (". .. the whole question of legal censor-
ship comes down to whether we have faith in people or whether we fear they
won't have the courage and moral stamina of our convictions."). This puckish,
Franklin P. Adams approach is only the coverlet for a penetrating analysis,
however; a delightful contrast to the somewhat heavy tone which rings
through the collection generally. By innuendo, a perceptive phrasing of issues
and a professed inability to find a "pat answer," Judge Bok drives home in
a disarming, effective style the need for a standard of orthodoxy flexible
19521
THE YALE LAW JOURNAL
enough to accommodate shifts in truth, opinion and taste, and the need that
our society realize that "The odd thing about truth is that it keeps changing
its clothes."
The discussion of "Freedom in Education" by Williams College President
James P. Baxter III, fails to strike at the heart of its subject as deeply as
do most of the other analyses. Excellent in his outlining of the value of free
inquiry to our society, the dangers of book control, lecture control and asso-
ciations control upon the discovery of truth and the necessity for protected
faculty self-expression, President Baxter loses speed somewhat when it comes
to a program for the university system in the cold war crisis. He portrays
well the scholar's responsibility for examination and dissemination of truth
as the basis for the freedom afforded him. He decides that the minimum com-
mitment of the communist party member renders him unable to meet this
quest for objective truth, and concludes that there is no place for the com-
munist party member on the campus faculty. But, President Baxter offers no
compelling solution to the problem of eliminating the communist party teacher
while preventing the smear campaigns and intellectual inquisitions which lie
so vigorously deplores. His solution of suspending the "avowed" communist,
paying him his salary for the period his appointment has to run, or even until
his retirement age, if necessary, is far from realistic. Would President Baxter
draw the line of discharge at open party members or would he allow a board
to decide who is a member of the communist party if the professor was not
considerate enough to declare himself publicly? If so, what formula of iden-
tification would President Baxter install; party card, membership in
"Communist-front" organizations, ideas in class or books? What then
would become of all the arguments against guilt by association, teacher's
oaths, and stifling atmospheres which make up the main thrust of the
article? President Baxter almost suggests that any attempt to inquire into
the political loyalty of faculty members should not be tolerated, but the in-
jection of a vigorous attack upon communist scholarship and his insistence
that the communist be ejected from the university leaves this vital question
clouded. In his failure to come squarely to grips with the focal point of the
current problem, President Baxter leaves his readers with a somewhat in-
conclusive contribution.
Considered as a whole, it will be difficult for the reader to find a book with
as much constructive thought and lucid writing as this short 150 page collec-
tion provides. One may agree or disagree with any of the specific correctives
offered by these authors, but their portrayals of eroded civil freedoms cannot
help but transmit a feeling of urgency for protective action. And beyond its
general appeal, there is a special significance to lawyers in this work. It is
not accidental that of the six lecturers, three are professors of law and one is
a judge. This is a call to conscience for the American legal profession, an
invitation for the Bar to meet the present shrinkage of civil freedoms by as-
suming the leading role as defenders of our constitutional heritage. Already,
(Vol. 61
REVIEWS
the general inaction of the American bar has been commented upon. Phillip
L. Graham, publisher of the Washington Post, stated in a public address that
the legal profession had failed to meet its obligation to support individual
freedom and act as "America's ministers of justice." He said that "By and
large, the attitudes of the bar have indicated silent acquiesence in, and even
occasionally affirmative support for, innovations affecting personal freedom
that would have raised the collective hairs of this association straight on end
not many years ago."2
The bar has always had two historical roles to choose between: the in-
difference to civil freedoms which led to wholesale distrust of layers during
the American Revolution, the Jacksonian period and the latter part of the
19th century; or the defense of individual liberty which marked the John
Peter Zenger sedition trial in 1735,3 the New York City Bar Association's
opposition to the Lusk Committee in the 1920's 4 and the 1947 Letter to
President Truman from twenty-two faculty members of the Yale Law School
protesting the promulgation of the loyalty order.0
As Professor Commager phrased it, "Each generation has to vindicate these
freedoms anew, and for itself." Four members of our profession have reported
the ragged status of our freedoms, and it is now up to the bar as a whole to
lead the march to the mending shop.
ALAN FURMAN WSTIN-J
EFFECTS OF TAXATION ON EXECUTIVEs. By Thomas H. Sanders. Boston:
Division of Research, Graduate School of Business Administration, Harvard
Unversity, 1951. Pp. xiii, 229. $3.25.
EF ECTs OF TAXATION ON EXECUTIVE COMPENSATION AND RETIREMENT
PLANS. By Challis A. Hall, Jr. Boston: Division of Research. Graduate
School of Business Administration, Harvard University, 1951. Pp. xv,
365. $4.25.
UNTIL recently, the effects of taxation on personal initiative and corporate
decisions have been largely matters for speculation. Some writers have con-
sistently predicted dire consequences to the economy from any hoisting of
tax rates. Others have asserted that tax changes would not have significant
2. N.Y. Times, Nov. 17, 1951, p. 8, col 8.
3. 17 How. St Tr. 675 (1735).
4. Statement of Special Committee of Association of Bar of City of New York,
Reports, Vol 21, 1920. The statement was directed to the legislature of the state of New
York and was signed by Charles Evans Hughes, Morgan J. O'Brien, Louis Marshall,
Joseph M1. Proskauer and Ogden L. Mills.
5. N.Y. Herald Tribune, Nov. 27, 1947, p. 1, col. 6.
tiMember of the District of Columbia Bar.
1952]


Commager, Carr, Chafee, Gellhorn, Bok, Baxter: Civil Liberties Under Attack

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Commager, Carr, Chafee, Gellhorn, Bok, Baxter: Civil Liberties Under Attack

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