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  Justice Jackson’s distillations from German experience do not impress me; they embody commonly current misconceptions. The German people did not succumb to Hitlerism because there was too much freedom in their laws but because there was too little freedom in their hearts. The Weimar Republic could be energetic enough in dealing with the Left. There as elsewhere it was demonstrated that it is the Left rather than the Right which ultimately bears the impact of these shoddy rationalizations about turning the Bill of Rights into a suicide pact. This is the panic of faltering spirits.

  The choice the Court had to make was difficult because the dangers either way are real enough. But you cannot have freedom without the risk of its abuse. The men who wrote the Bill of Rights were willing to take their chances on freedom. This willingness to take risk, whether in theology, science, or monetary investment, is the prime characteristic of the whole period of human history which encompasses the Reformation, capitalism, and rationalism in one great burst of human energy. The world has seen any number of closed systems, from the ancient Roman Catholic to the modern Communist, which sought to eliminate risk by relying on revelation of one kind or another, and on this basis justified inquisition and purge. But everything we know from the past teaches us that suppression in the long run provides an illusory security, and this is why, though a socialist, I am also a libertarian.

  Almost every generation in American history has had to face what appeared to be a menace of so frightening an order as to justify the limitation of basic liberties—the Francophiles in the days of the Alien and Sedition Laws, the abolitionists, the anarchists, the Socialists in the days of Debs; fascists, anti-Semites, and Communists in our own time. Each for various people seemed to provide compelling arguments for suppression, but we managed to get through before and will, I hope, again without abandoning basic freedoms. To do so would be to create for ourselves the very conditions we fear.

  I am, I suppose, exactly what Terminiello in his harangues meant by an “atheistic, communistic, zionistic Jew.” I would not demean myself or my people by denying him the right to say it. I do not hold the liberties I enjoy as an American in so little esteem that I am prepared to run from them like a rabbit because someone else uses them to say what I suppose ought to disturb me deeply. It does not disturb me.

  I do not think the danger from fascist ideas on the Right can be met by imprisonment any more than can the danger from revolutionary ideas on the Left. All history testifies to the contrary. The judges of the minority who would have permitted some measure of suppression in my protection are not men whose championship I care to have. In too many recent cases I have seen how current anti-Red hysteria has kept them from doing the humane, the just and rightful thing.

  I learned in Israel what men here once learned at Lexington—not to scare easily. If there is a growth of unemployment and mass misery, it will be exploited by the Right as well as the Left, and anti-Semitism will grow like any other fungus on the muck of despair. This gutter paranoia can only be prevented by fighting the conditions in which it can breed, and for that fight we need more and not less freedom of discussion, even though it be at the price of a few Terminiellos.

  Quis Custodiet Custodem?

  In January 1953, as Dwight D. Eisenhower prepared to take office, Senator Joseph McCarthy of Wisconsin was just beginning his reign of fear in Washington. Having been named chairman of the Senate’s Government Operations Committee as well as of its Permanent Investigations Subcommittee, he was preparing to use his subpoena powers to terrorize thousands of suspected Communists and other “subversives.” I. F. Stone was among the first to recognize the danger to American liberties posed by McCarthy. In this early dispatch, he traces some of the senator’s financial history, suggesting the dubious character of the nation’s self-proclaimed watchdog.

  . . .

  January 17, 1953

  THE ROMANS HAD A SAYING, “Quis custodiet custodem?”—Who will watch the watchman? The wry question applies patly to the case of Joe McCarthy. The Senator who is now the chairman of the Senate’s key watchdog committee is the Senator who most needs watching. The report made on McCarthy by the Senate subcommittee on privileges and elections is a monument to the ineptitude of gentlemen in dealing with a brawler who pays no attention to the rules, Queensberry or otherwise. The report, spottily covered in the nation’s newspapers despite a very full account sent out (to its credit) by the Associated Press, is the first official full-length portrait of the most brazen operator to appear in the United States Senate since the days of Huey Long.

  The new document is the third Senate report which has found McCarthy mixed up in funny business on which action by law enforcement agencies has been asked. A subcommittee of the Senate Armed Services Committee reporting in October, 1949, called for investigation by the Justice and Defense Departments into the campaign to save the Malmédy slayers. McCarthy figured in this as an advocate of strict Anglo-Saxon due process for the SS men who killed 350 unarmed American prisoners and 150 Belgian civilians in the Battle of the Bulge. Nothing happened. The Rules Committee in August, 1951, suggested state and federal inquiry into the financial irregularities and defamatory tactics of the campaign in which McCarthy helped defeat Millard Tydings for re-election to the Senate the year before. Again nothing happened. It is now the honor of the Senate, not McCarthy, which is going down for the third time.

  McCarthy cannot complain that he got less than the due process due him. Six times the subcommittee invited him to appear and rebut the charges bravely made by former Senator Benton, six times McCarthy failed to show up. The subcommittee lacked the nerve to subpoena him.

  The picture drawn by the new report is of a man who cannot resist speculation on margin. His activities in and out of the market since 1942 are those of a born gambler. A series of financial difficulties were eased by some odd transactions of which the $10,000 he received from Lustron for a housing pamphlet is the best known. Newly brought to light in this report is the $20,000 note signed for McCarthy by the Washington representative of Pepsi-Cola at a time when the Senator’s bank account in Wisconsin was overextended. Pepsi-Cola was then lobbying for decontrol of sugar and McCarthy was chairman of a Senate subcommittee—on sugar!

  McCarthy’s financial accounts are hectic. From January 1, 1948, to November 12, 1952, he deposited $172,000 in one Washington bank; his administrative assistant and alter ego, Ray Kiermas, deposited $96,000. Of these amounts almost $60,000 deposited by McCarthy and almost $45,000 deposited by Kiermas “has not been identified as to source.” The Senator’s most successful speculation was his flier in anticommunism. Contributions flowed in after his famous attack on the State Department, February 9, 1950. In the months which followed more than $20,000 was deposited by him in a special account used for donations to help him fight communism. “However,” the report says dryly, “no connection could be established between many of the disbursements from this account and any possible anti-Communist campaign.” In one case traced by the committee, McCarthy deposited a $10,000 loan to fight communism in a special account, and then withdrew it three weeks later to pass on to a friend for a speculation in soybeans.

  Outgoing Democrats and incoming Republicans will live equally to regret that they did not cut McCarthy down to size when they had the chance. With his congenital cheek and the enormous powers conferred upon him by his key Senate chairmanship, McCarthy promises to become Eisenhower’s chief headache. McCarthy is in a position to smear any government official who fails to do his bidding. With much daring and few scruples, McCarthy can make himself the most powerful single figure in Congress and terrorize the new Administration. All those mumblings and rumblings about how Communists are “already infiltrating” the Republicans are indicative.

  Einstein, Oxnam, and the Inquisition

  By mid-1953, the distinguished scientist Albert Einstein had become alarmed over the rising power of Joseph McCarthy and was actively seeking an opportunity to voice a protest against it. The opportunit
y came when a New York City schoolteacher named William Frauenglass wrote to Einstein after having been fired for refusing to disclose his political beliefs before the Senate. Einstein’s reply made headlines: “Every intellectual who is called before the committees ought to refuse to testify. . . . If enough people are ready to take this grave step, they will be successful. If not, then the intellectuals deserve nothing better than the slavery which is intended for them.” Stone contrasts Einstein’s stance with what he viewed as the equivocal response offered by G. Bromley Oxnam, a liberal Methodist Bishop also facing scrutiny by the Senate.

  . . .

  June 20, 1953

  THE BACKGROUND AGAINST WHICH Einstein has issued his call for civil disobedience of the witch hunters is encouraging. There are signs of a growing revulsion against congressional inquisition. McCarthy has had the guidance of Father Edmund A. Walsh at Washington’s ancient Jesuit university, Georgetown. But at its sister institution in the capital, Catholic University, the principal address at the commencement exercises last week was devoted to warning the graduates against the hysteria fomented by congressional investigating committees. The Archbishop of Washington, the Most Reverend Patrick A. O’Boyle, presided and “some politicians” were criticized for their readiness to “seize upon any issue, real or spurious, to boost their fame and publicity.”

  There were similar warnings from as unexpected a source at Radcliffe. There the commencement speaker was Senator Stuart Symington, a businessman and a right-wing Democrat from Missouri, himself a member of the Senate Government Operations Committee over which McCarthy presides. Symington has distinguished himself on the committee in the past by asking witnesses some remarkably inane questions about whether they believe in God. Just what their private theological opinions had to do with government operations, the committee’s field of authority, has never been explained. But at Radcliffe, Symington executed a quick metamorphosis and turned up as a liberal to warn that the recklessness of the Red hunters could easily turn into “a new reign of terror.” Symington’s sudden conversion on the road to Cambridge, Massachusetts, was gratifying, though important chiefly as a weather indicator. Symington wants to be President, and is prepared to move left or right with the prevailing winds. Eisenhower’s own gratifying remarks at Dartmouth will help turn those winds against the witch hunt.

  In this ripening situation, with public opinion slowly being aroused, Einstein’s proposal for civil disobedience of the congressional inquisitors has the merit of getting down to rock-bottom. What McCarthy, Jenner and Velde are doing is wrong. It is therefore wrong to submit to them. They are poisoning the air of America and making people in all walks of life fearful of expressing opinions which may be a little “controversial.” It is in this way that they are beginning to impose thought control.

  The First Amendment says Congress “shall make no law respecting an establishment of religion.” This means that it can establish no standard of orthodoxy. Can it inquire into beliefs it may not regulate? There are many Catholics and not a few Protestants who believe that heterodox opinions on certain fundamental religious dogmas create a political danger for the state by leading directly to “subversive” political views. But this connection of political danger with theological error is hardly new. The Pilgrim Fathers fled from just such inquisition in the England of their time and the provision against an Established Church was intended to prevent the development of similar practices here.

  A characteristic of the American system is the denial of absolute powers to the government or any of its coordinate branches. No one would argue that Congress may pass a law taking a man’s property without compensation or his life without trial. But the notion has grown up that the congressional power of investigation, unlike all other governmental powers, is virtually unlimited. The recent Rumely decision was only the latest in a series of Supreme Court opinions which have held to the contrary, though the court has yet to apply the same protection to the privacy of men’s minds that it has in the past to the privacy of their moneyed accounts.

  The witch hunt abuses of our time find their support in two fallacies which have nothing to do with the legitimate exercise of the congressional power of investigation. One is that while Congress has no power to regulate opinion it has a right to expose, disgrace and pillory holders of opinions it regards as dangerous, subversive, heretical or un-American. The other is that which permits a committee of Congress to act as a roving grand jury for the discovery and punishment of individual crimes.

  A section of the Fifth Amendment to which amazingly little attention has been paid in the current controversy over congressional investigation says, “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” The purpose was to protect accused persons from having to stand the shame of public accusation and the expense of trial until a grand jury in secret session had determined that there was enough substance in any charge to warrant publicity and trial.

  Ever since Martin Dies and John Rankin these congressional committees have announced their determination to act as a peculiar new type of “grand jury,” operating in public and more than content to leave the stigma of serious crime by hit-or-miss questioning of the sort that has been well termed a “fishing expedition.” Congressman Keating referred to this type of abuse in a thoughtful speech last month to the San Francisco Bar Association. Keating said that an area which “should be scrupulously avoided” by congressional committees “is the domain of law enforcement officers and the criminal courts.” Keating pointed out that “Only in the case of impeachment does Congress have the right to determine whether a particular individual has committed a specific crime against society.” None of the procedural reform proposals now in Congress would prevent investigating committees from acting as quasi grand juries or as pillories for holders of unpopular opinions.

  The New York Times, objecting to civil disobedience of the witch hunters, says, “Two wrongs never did add up to one right.” The old chestnut, in this sense, is quite untrue. Gandhi made two “wrongs” add up to one right by refusing to pay the British salt tax. Long before Gandhi, an earlier generation of Americans made two wrongs add up to one right by dumping that tea in Boston harbor rather than pay the British tax upon it. The white folk of the North who refused to obey the Fugitive Slave Law were adding the “wrong” of civil disobedience to the wrong of slavery, and these ultimately added up to the right of emancipation. Even more in point is the fact that our privilege against self-incrimination derives in large part from the civil disobedience of John Lilburne, who refused to testify before Star Chamber in 1637 when accused of importing heretical works from Holland and asked to identify his collaborators. The evil of compulsory testimony from which the Pilgrims fled to this country was eradicated by his bravery in refusing to testify at the expense of going to jail for contempt.

  The need for such fundamental defiance is illustrated by the objections advanced against it. “One cannot start,” the New York Times said, “from the premise that congressional committees have no right to question teachers and scientists or to seek out subversives wherever they can find them; what is profoundly wrong is the way some of them have been exercising it.” The fact is that one cannot start from any other premise without making defeat inevitable. To accept ideological interrogation is to make nonconformist views of any kind hazardous. To permit Congress to seek out something as vague, undefined and undefinable as “subversion” or “un-Americanism” is to acquiesce in a heresy hunt that must inhibit free discussion in America. One man’s “subversion” is another man’s progress; all change subverts the old in preparing the way for the new. “Un-American” is an epithet, not a legal standard.

  The New York Times says “it is one thing to fight the investigations because of the manner of their procedure and another to oppose the right of investigation, which has always been one of the fundamentals of our governmental system.” Investigations have been fundame
ntal but the kind of investigations utilized in this witch hunt are something new in American life. The first congressional committee of this kind was the Hamilton Fish investigation in 1930, the Red-hunt precursor of the Un-American Activities Committee. The idea that a committee of Congress could interrogate Americans on their political beliefs is a revolutionary excrescence not a fundamental of American government in the past.

  One need only compare Einstein’s approach with Bishop Oxnam’s to see how right the great physicist is. One cannot at one and the same time object to investigation of the churches by the House Un-American Activities Committee and the Senate Internal Security Subcommittee and at the same time insist on a hearing before them as the good Bishop has done. To ask for a hearing is to acquiesce in the committee’s power, to establish a precedent by which other clergymen may be hauled into the pillory. To defend oneself, as the Bishop did in that famous point-by-point rejoinder the Washington Post published last April 5, is to cut the ground out from under any principled objection to the inquisition. To plead that one is not “subversive” by the standards of the committee or of that ex parte blacklist drawn up by the Attorney General is to accept their right to establish a standard of orthodoxy and heresy in American political and religious thinking.