The Charlotte News
Wednesday, June 18, 1941
Site Ed. Note: "Experiment", regarding the hiring of African-American police officers, was not the first advocacy of such a practice to appear in the column, albeit sometimes tempered by the expression that it would not work as a panacea for the high murder and violence rates in Charlotte, usually at the time the highest per capita in the country for murder among cities with at least 100,000 population. "Negro Officers", December 18, 1940, "A Remedy?", January 19, 1941, and "Cure for Crime", January 30, 1941, for instance, had also favored such employment. The column, especially the pieces by Cash as exemplified by the by-lined "While Maflo Piddles", October 22, 1937, and "First Again", March 5, 1940, also recognized that the high rate of violence was not explained in Charlotte simply by the high percentage of black population or by slums, regularly questioned why Charlotte was so violent, without ever reaching any firm answer other than the general police and prosecutorial blasé tolerance for murder, especially black on black murder. (Incidentally, while obviously today's piece was not by Cash, we suspect that "Negro Officers" was, "A Remedy?", more akin to today's, likely not, and "Cure for Crime", either his or a joint effort with Dowd. (And pardon our dictation error we let slip five years ago when putting forth "A Remedy?" The dictation software routinely prints "council" as "counsel" and we usually catch it. Despite our counseling the counsel of our council to watch it, that one got by.))
Had we known last Friday that Raymond Clapper's column of this date would emcompass a good bit of our research on the Roosevelt-appointed membership of the Supreme Court, it might have saved us some time in re-checking our earlier research on the same issue. But we didn't, and so we shall chalk it up to maintaining our brain in more than idlesse.
Mr. Clapper's piece, while offering praise to the elevation of Republican Harlan Stone to Chief Justice, affording balance to an otherwise lopsided Democrat-appointed Court, emphasizes that the government at this point was, in all three branches, representative of a shift in the electorate's thinking, to reposit the bulk of power with the executive while maintaining the other two branches as essentially, not so much in their intended role as checks and balances, but little more than rubber stamps.
And, certainly at the time, on face, it may have seemed so; and even to those, such as Mr. Clapper, who generally supported the Administration's views, especially on the pre-eminent issue of the day, dwarfing all others, the war.
But was Clapper's suggestion of this supreme presidential power well taken? And, if there was any part of truth in the assertion, was it not justified to provide the President with such power in the times which faced the country? times brought about either by the economic upheavals occurring during the watch of the opposing party or from foreign dictatorships coming into existence prior to or contemporaneous with the Roosevelt Administration and neither created nor stimulated by prior Democratic administrations, an unprecedented time and one which we have not seen since--a time of world war which threatened the very continued viability in fact of the United States as a democratic entity? which threatened the viability of democracy and freedom everywhere? a war stimulated finally by the period of world upheaval and the worldwide economic depression which had preceded it by a decade and more abroad?
It was not merely the slow creep of post-war Communism, which threatened at most in fits and starts and in contained hot spots, albeit not without threat to freedom certainly within those contained areas, over which the United States and NATO or OAS allies had legitimate concern, especially Eastern Europe.
It was neither mere terrorism, state-sponsored or not, in the modern sense, which in its worst manifestations does not have within its possession either military wherewithal competitive with even the conventional military forces of the United States or effective tools of propaganda outside its sphere of religious influence; such terrorism, being intermixed with fanatical religious beliefs, is transparently subject to rejection by the broad masses of people in the West--unlike Nazism and Fascism which appealed to great numbers of people as either some calophantic calomel for their ills attributed to too much freedom for some, or as an effective restraint to the steady creep of Communism into the free world.
Parenthetically, we offer again that the inextricably intertwined religious component of modern terrorism offers the best argument for our own system of separation of church and state, an anti-model, Q.E.D., of government by which anyone who prides themselves on being a strict Fundamentalist Christian, decrying the concept of separation of church and state, that we are a "Christian country", founded as such, even proclaiming, as some do, that the Establishment Clause does not exist in the First Amendment or does not mean what it plainly says, might take example as to where and to what such fanatical notions lead. We are not a "Christian country" any more than Charles Lindbergh invented the airplane or Father Coughlin was representative of Catholicism in the 1930's. If we were, the words of the First Amendment would so state it as the official religion of the country and that all other religious views were to be merely tolerated as some privilege--as some people indeed appear to believe. It neither says that nor has ever been interpreted by the Supreme Court to say that--any Supreme Court, whether one generally considered conservative or one considered liberal. The concept is ludicrous and should be put to bed once and for all as tantamount to fascism and modern terrorism, antithetical to our views of democracy and freedom of religion which are not properly represented by mere tolerance of different views. Indeed, when push comes to shove, as with most societies through history, the majority view tends to be very intolerant of the minority view--which is the very reason for these freedoms being specifically expressed by the Founders, not as privilege by a tolerant parent, or by license of a condescending king, but rather by inherent right. We have the right not to attend church, without being ostracized by Neanderthals attributing to the non-attendee heathen tendencies, stirring witch stews in the cellar at midnight; we have the right to believe in anything we want and not to be ostracized, humiliated, or otherwise singled out for our differences; we have the right to wear green hair, spiked up high like in a Mohawk, tattoos on our forehead proclaiming the most obscene or heretical thoughts imaginable, without the least social response, ostracism, or harassment--and, by equal measures, we have the right to be Christian without harassment, the right to be humble without harassment, the right to be quiet without harassment, the right not to wear tattoos without harassment, the right to be generally sanguine or not and believe essentially whatever we wish, as long as by so doing we do not impinge by action on the rights of others to do likewise. But we digress.
We think first that the hold on power attributed to FDR was not quite so great as Mr. Clapper suggests, though certainly substantial by contrast to presidents since. Congress, for starters, while nominally comprised of a super-majority of Democrats, was by no means a uniform and unified Democratic Party voting en bloc. There were numerous Democratic isolationists, some staunchly anti-New Dealers. And some of the isolationists, such as Robert Rice Reynolds, wielded great power because of seniority, managed to avoid the purge of anti-Roosevelt Democrats by being faithful to the New Deal. There were Southern segregationist Senators who were poles apart from their Northern and Midwestern and Western counterparts on issues involving race. Filibusters and retaining matters in committee, denying hearing in committee, have always been effective tools by which a minority could, if not effectively govern affirmatively, certainly practice obstructionism of the majority interests. And such tactics among these various splinter groups within the Democratic Party, aligning with Republicans on various issues, were used often during the time before Pearl Harbor, both to block aid to Great Britain until early 1941, by which time it was nearly too late, and to avoid and defeat such prickly measures among domestic issues, not pushed by the Administration for being too divisive, as the anti-lynching bills. Congress, being comprised of 535 elected Representatives and Senators, is as diverse typically as the country, and in a time before television and its tendency to create more uniform thinking on a given issue more quickly than the print press or radio ever has, the Congress of the day reflected that ample diversity of opinion, and regardless of party affiliation.
Moreover, as we have pointed out, even among the appointees to the Supreme Court, all New Dealers in one sense, not all, notably Robert Jackson, were liberals in the traditional sense of that term as applied to constitutional interpretation. (In truth, when one boils down the term "liberal" as used by many in our society, essentially anathema maranatha, meaning that if one is not purely fascist in his or her thinking, they are deemed "liberal", few, if any, lawyers, let alone judges, could be deemed anything but liberal under such a broad rubric. If, as some also mean, these judges who they see as liberal do not go down the line for some form of government other than the one we have, who instead support the most rudimentary concepts embodied in the Constitution, then should there be any lawyers or judges who view matters otherwise, they, being in violation of their oaths to uphold the Constitution, should be roundly subject to criticism and, in the worst cases, removal, for it.
In any event, the Court in the final analysis as appointed by Roosevelt was not so liberal, and certainly not so uniform, as presupposed by Mr. Clapper. Witness the Korematsu decision of 1944 which had traditional liberals like William O. Douglas and Hugo Black upholding the executive order in spring, 1942 to intern Japanese-Americans living in certain prohibited areas on the Pacific coast, too near military facilities, as a proper exercise of the emergency war powers of the President.
But perhaps we misunderstand Mr. Clapper's statement; perhaps he is simply saying that once they were New Dealers, they were always to be New Dealers, and so their upholding such an exceutive order contrary to their ordinary tendencies would be the very proof of that fealty.
But, just as with the fact that the Korematsu majority also included Chief Justice Stone, that latter notion is disputed by the composition of the dissent which found three strange bedfellows, liberal Frank Murphy, conservative Robert Jackson, both in order having been the previous two Attorney Generals serving under Roosevelt, and the lone Republican left with no FDR appointment to his name, Owen Roberts.
And, of course, in reality, it is the fact that no President appoints judges who are diametrically opposed to the views of the Administration. There is a difference between appointing to the bench political hacks, smalltime party rustlers of the cattle who are nothing but political climbers from the moment they leave law school, as payoff for party loyalty, people who can barely think through a logical thought or express one, let alone provide any semblance of justice and fairness to anyone other than the loyal of the party, and appointing judges who, if in their private lives lean toward views sympathetic to a given administration's views and policies, will nevertheless take their roles as judges seriously, realizing they are the courts of last resort for the citizens and therefore the last bulwark and checks against despotism or executive or legislative power run amuck. It is these latter jurists who will be unmistakable on the bench as they will consistently defer, despite the criticisms trumpeted by Neanderthal groups or conservative media commentary, to the rights granted by the Constitution, those granted expressly in the Bill of Rights, and those unexpressed, as reserved in the Ninth and Tenth Amendments, granted silently by not being expressly denied to the people or granted otherwise to the executive or legislative branches of either the Federal government or the states.
Such was the type of character attributed by Mr. Clapper to Chief Justice Stone, and, we believe, characterized also the other justices appointed by FDR. Few presidents can claim such a record of appointments; no president, save Washington who appointed eleven, comes close to what Roosevelt accomplished in single-handedly revolutionizing the Court's make-up.
But, the question then arises as to whether it was a good thing or bad thing vis à vis the Constitution, the only arbiter by which we may judge--that is, if we are to assume that we live in a representative democracy where the concepts of fiat and royal edict or as damnable as dictatorship and fascism. The answer over time regarding the FDR-appointed justices' performances in such light, should one study it, is that they were resoundingly stellar ones, upholding the freedoms of the individual under the Constitution, with few exceptions, against any form of government or private attempts to usurp or limit them, and in a time of darkness for the country when freedoms were threatened daily by little political bosses within their private fiefdoms and Southern segregationists bent on imposing tyrannical will, not dissimilar to Nazism, for the sake of re-election by a mentally disturbed majority electorate.
Every time someone complains about Miranda warnings, for example--which, while deemed a product of the Eisenhower-influenced "Warren Court", came in fact from a five-member majority which included Hugo Black and William O. Douglas, together with Eisenhower-appointed Warren and William Brennan, and Johnson-appointed Abe Fortas--, set them straight: the decision was for all of us and did not come about from some bunch of wild-eyed liberals or exclusively Democrat-appointed justices. The dissent, in fact, in that decision was equally diverse, comprised of Truman-appointed Thomas Clark, Eisenhower-appointed John Harlan, both usually on the side of civil liberties, especially in cases which arose from within the civil rights movement, Eisenhower-appointed Potter Stewart, and Kennedy-appointed Byron White--note bene: two Republicans, two Democrats, two usually liberal, at least on civil rights, two more conservative.
Thus remind such a cavalier caviler against "60's liberalism" or the "Warren Court" that it is not a technicality to have this and other such rights, but a protection for everyone, to insure against police brutality and tactics which prevailed often enough at the police station in the pre-Miranda days, if not actual beating to extract unreliable confessions, at least coercive tactics, especially against scared and callow youth or those infirm of mind; that these warnings are designed to protect the innocent who happen to be accused falsely; and that they might also wind up shielding some of the guilty from prosecution is a price we pay for insuring freedom to all. Ditto for the other extension of rights attributed to a mix of the New Deal justices with the Warren Court members over the period from 1940 through the early 1970's.
In any event, the potential horror of a seeming dictatorship, which some of the isolationists and Nazi propagandists in the country sought to promote at the time, though certainly not the object of Mr. Clapper or his editorial of this date, was never a danger under FDR. No historian with any credibility has ever accused him of abuse of power. Even the much-taunted Court-Packing Plan, his worst political debacle, had its reasons. The concentration of power in his hands was granted by the people, not usurped or stolen or the result of demagogic lies or brainwashing; and in a time of the worst economic depression in the country's history, brought on by a series of three successive Republican administrations which had practiced laissez-faire economics to the near destruction of the very psyche of the country, followed on then by the war, arising in large part because of the very same societal stresses multiplied abroad. While the rich played in the 1920's, the poor barely scraped by, until the depression brought down the house of cards and with it the authoritarian grip of the latter-day robber barons who selected and put forth the Republican puppets, Harding, Coolidge and Hoover--the do-nothings, "let be, let us see" types against whom the Davidson psychology professor carped yesterday. We are tempted to call them dunces, but they weren't and we won't. They were, however, men who were manipulated by vain impulses and thrust into positions which they had no ability to acquire through their native talents or personal qualities, placed before the public by the captains of industry interested in manipulation of the vox populi for accumulation of private wealth. And it worked for awhile of course until the depression hit the middle class and nearly broke the country in two between 1929 and 1932.
It was out of this morass of abuse of power, corrupting government by encouraging influence peddling in the process, all of which had begun in the latter thirty years of the nineteenth century, that the country, desperate finally for change at the depth of the depression in 1932, with as much as 40% of the work force unemployed, elected FDR and gradually insisted upon giving him, not a blank check for power over them, but by a proven daily course of active and responsive government service to the people, a respect for that dedicated service and reciprocation by virtually unprecedented support for broadening his powers to the full extent the Constitution allowed, and, in some instances, more.
First and foremost, to achieve and maintain that respect, he never lied to the American people. He never told them things to scare them into war--which he could have without stretching the facts, based on Einstein's letter to him of August 2, 1939--, such as that Hitler was at work on a doomsday weapon the likes of which had never been known to the world and which carried the potential of a greater destructive force than anything ever imagined by even the cleverest of science fiction writers. In an age where people became disturbed over a radio broadcast such as "War of the Worlds" on Halloween night, 1938, he could have scared the American people into relatively easy compliance with participation earlier in the war. Whether it would have been a better thing or a worse thing to have done so, no one can truly say. But the point is that he did not lie to the people or engage in war-mongering by such scare tactics, and the great majority of the people respected him for it--enough to elect him four times to the highest office in the land. That was the source of his power, respect for his word and respect for his service, an entrusting of confidence in someone who the people believed competent to continue to do the job honestly and competently, even if some mistakes and pratfalls befell him along the way. It was not merely the cheapness of politics and grasping for power which has so often ruined presidents, governors and legislators. It was not the lie. Those gaudy baubles shine but for a short time until the people catch on.
We finally take note of this sentence in the Clapper piece: "In twilight-zone cases, Justice Stone held that if the Constitution did not specifically stand in the way, the judgment of Congress should prevail, regardless of what he personally might think of the wisdom of a given measure." Setting aside the obviously prophetic reference to the 1960's, 15 to 20 years after the death of Stone, and thus in itself twilight-zonic, the standard expressed is one to which every justice and every judge should aspire, and not just with respect to legislation passed by Congress of course, but with regard to individual rights and liberties as well; if it were consistently so in practice, the country would be by far better off for it, and, undoubtedly, the number of cases sought for hearing before the Supreme Court or any appellate courts would dissipate substantially, and the respect for the judiciary generally, at one of its lowest ebbs in the history of the country--and for good reason--, would increase dramatically.
It is not the job of a judge to substitute for royalty in this country and lord over us as some grand referee who decides matters subjectively and then finds a rule to fit the decision; it is his or her role to interpret the law equably and fairly and with deference to individuals as against corporate or political interests who have wealth and power to spread around to curry favor. It is the judge's role to resist such corrupting influence, either offered directly or indirectly. The rule, in other words, is pari passu, not parti pris.
Otherwise, we are doomed as a democracy, doomed to enslavement, doomed to admit that all of the lives of the Allies lost in World War II, fighting against just that sort of enslavement, went for nothing.
"For the Ladies" in the column today is every bit as shocking as Installment 15 of Out of the Night is silkily sensual, as in the latter Jan details his love affair with a Belgian woman he dubbed "Firelet", in between his sending Party propaganda sheets to Saigon to cuittle Conchin-China, later more or less the geographical equivalent of South Vietnam, to Communism. We shall say no more; caveat emptor.
In any event, Popeye didn't deserve that.
Incidentally, whether the Classic case was one of those twilight-zone cases, we don't know. But, strictly speaking, since it didn't involve Congress, we guess not.
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