Evil Counsels

Tonight’s topic — what is it again? It’d be great to tee off on the National Abortion Rights Action League’s misguided and idiotic TV ad against John Roberts, Bush’s nominee for the Supreme Court. Politics aside, if you can’t beat someone with the real record of their deeds and opinions, your fallback position really shouldn’t be to lie and distort and fabricate. Leave that to the pros on the other side.

But no, that’s not the topic. I could hold forth on Schwarzenegger, our very own blockhead Führer; he provides lots and lots of bile ‘n’ outrage material. And then there’s Bush: Every soldier’s mom’s best friend.

I have something more abstract on my mind. Here it is: Whitney v. California, decided by the Supreme Court in 1927. The case concerned a young woman from Oakland, convicted under a state law that outlawed “criminal syndicalism”; in practice, that meant the Communist Party and similar organizations were simply illegal, and having anything to do with them could be a felony. Miss Whitney, as the court’s opinion refers to her, was found guilty for doing no more than attending a party convention; that’s because the party in question advocated the overthrow of the capitalist system. The Supreme Court upheld her conviction on technical grounds; the majority opinion also held that the law was an acceptable exercise of state power to address a public danger and did not restrain the rights of free speech, assembly, and association.

Justice Louis Brandeis wrote a concurring opinion. He acknowledged in passing his acceptance of the technical grounds for upholding Whitney’s conviction. But his real purpose was to attack the law and the intolerance of free speech it reflected. It’s a ringing articulation of the importance of unrestrained debate in a democracy, and it’s widely celebrated as such. Check Google for “Whitney v. California,” and you’ll come up with about 9,000 hits. The U.S. State Department includes the case background and the Brandeis concurrence in its list of “basic readings on democracy.” I wonder how many people in Bush’s cabinet or the Congress have read it.

The opinion might be hard to digest in an age where some consider even soundbites on serious subject a little too weighty for some audiences to handle, But, in the context of Supreme Court writing, Brandeis is succinct and crisp. In current parlance, the whole concurrence is a highlight reel. Just one passage:

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones.”

I never intended to come back to John Roberts and that abortion-rights ad. But there it is: “The freedom to think as you will and speak as you think.” What that means today is blasting away at your foes without fine attention to details like how all the facts, if you have any, might fit together. There’s not enough respect for, or faith in, the other side of what Brandeis suggests: “The fitting remedy for evil counsels is good ones.”

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