search
top

On Justice Jackson’s Famous Quote

The Brady folks really need to give up their reliance on ignorance to get their point across, especially when that forum allows for comments, and their claims can be easily debunked. A good example of this is the case they bring up here:

To the contrary, as U.S. Supreme Court Justice Robert Jackson wrote 60 years ago, the Constitution is not a “suicide pact”:

No liberty is made more secure by holding that its abuses are inseparable from its enjoyment…The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact….

Justice Jackson wrote this in a First Amendment case. Yet while many may disagree over how to apply his principle to questions of free speech, the issue should be clear when it comes to access to firearms.

Speech is used to express ideas. Firearms are used to kill over 30,000 Americans every year and wound another 80,000.

So because surely the constitution is not a suicide pact in a First Amendment context, than it surely isn’t one in a Second Amendment context, right? That means we can just ignore all that nasty stuff like due process. The problem is Terminiello was a case of a man being charged with a “Breach of Peace” for giving a speech. The Chicago ordinance banned speech which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance,” and was ruled unconstitutional by the Court. The Court wisely held that we couldn’t really exist as a society where no one could speak for fear of sparking anger and dispute:

Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, […] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Jackson was a dissenting justice, who spoke at great length as to the despicable nature of Terminiello’s speech, and indeed it was despicable. But that cannot be a factor in whether or not we suppress speech. Jackson’s actual quote, not the one cherry picked by Brady, goes as follows:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Practical wisdom, like people being afraid of make speeches that might stir controversy, or stir disorder, for fear that the government will come down on them. Imagine trying to speak on any controversial and emotional topic with this kind of standard? Fortunately, we should be happy that the majority view in this case came down on the side of liberty. I’m not surprised to see the Brady folks come down on the other side.

One Response to “On Justice Jackson’s Famous Quote”

  1. anon says:

    Here was my favorite part of Justice Jackson’s dissent. If I thought for a second that Paul Helmke bothered to read the comments at HuffPo I’d cross post it there.

    “Invocation of constitutional liberties as part of the strategy for overthrowing them presents a dilemma to a free people which may not be soluble by constitutional logic alone.

    But I would not be understood as suggesting that the United States can or should meet this dilemma by suppression of free, open and public speaking on the part of any group or ideology. Suppression has never been a successful permanent policy; any surface serenity that it creates is a false security, while conspiratorial forces go underground. My confidence in American institutions and in the sound sense of the American people is such that if with a stroke of the pen I could silence every fascist and communist speaker, I would not do it.”

top