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No. 69 "The Duty of the Lawyer in the Present Crisis: Some Observations on the Attempt by New Deal Spokesmen to Curtail Freedom of Speech as Exercised by the National Lawyers Committee of the American Liberty League" Speech of James M. Beck, Member of the National Lawyers Committee, October 16, 1935. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_69 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 69 "The Duty of the Lawyer in the Present Crisis: Some Observations on the Attempt by New Deal Spokesmen to Curtail Freedom of Speech as Exercised by the National Lawyers Committee of the American Liberty League" Speech of James M. Beck, Member of the National Lawyers Committee, October 16, 1935. American Liberty League. American Liberty League. Washington, D.C. 1935. This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 1 of the TEI in Libraries Guidelines. Digital page images are linked to the text file. Pamphlets Available * Copies of the following pamphlets and other League literature may be obtained upon application to the League's national headquarters: Statement of Principles and Purposes American Liberty League Its Platform • An Analysis of the President's Bndget Message Economic Security Inflation The Thirty Hour Week The Holding Company Bill Price Control The Labor Relations Bill Extension of the NRA The Farmers* Home Bill The TVA Amendments The New Deal, Its Unsound Theories and Irreconcilable Policies Speech by Ralph M. Shaw How to Meet the Issue Speech by William E. Borah The Supreme Court and the New Deal An Open Letter to the President By Dr. Neil Carothers The Revised AAA Amendments The President's Tax Program The American Bar The Trustee of American Institutions Speech by Albert C. Ritchie Two Amazing Years Speech by Nicholas Roosevelt Fabian Socialism in the New Deal Speech by Demarest Lloyd The People's Money Speech by Dr. Walter E. The Principles of Constitutional Democracy and the New Deal Speech by R. E. Desvernine The Blessings of Stability -Speech by James W. Wadsworth Recovery by Statute Speech by Dr. Neil Carothers Expanding Bureaucracy The Imperilment of Democracy- Speech by Fitz-gerald Hall Lawmaking by Executive Order The Test of Citizenship Speech by Dean Carl W. Ackerman Today's Lessons for Tomorrow Speech by Captain William H. Stayton New Deal Laws in Federal Courts Potato Control "Breathing Spells" Speech by Jouett Shouse The National Labor Relations Act Summary of Conclusions from report of the National Lawyers Committee Consumers and the AAA Straws Which Tell ★ AMERICAN LIBERTY LEAGUE NATIONAL PRESS BUILDING WASHINGTON, D. C. ★ ★ The Duty of the Lawyer in the Present Crisis ★ ★ ★ Some Observations on the Attempt by New Deal Spokesmen to Curtail Freedom of Speech as Exercised by the National Lawyers Committee of the American Liberty League Speech of JAMES M. BECK Member of the National Lawyers Committee and of the National Advisory Council of the American Liberty League over the National Broadcasting System, October 16, 1935. AMERICAN LIBERTY LEAGUE National Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 69 October, 1935 National Lawyers Committee RAOUL E. DESVERNINE, Chairman 15 Broad Street, New York City William T. Alden........................Chicago, 111. Edwin G. Baetjer.....................Baltimore, Md. Harold Beacom...........................Chicago, 111. Charles A. Beardslev..................Oakland, Calif. James M. Beck......................Washington, D. C. Lewis Benson.........................Huron, S. Dak. William Beye............................Chicago, 111. Rush C. Butler..........................Chicago, 111. Georce L. Buist......................Charleston, S. C. Louis G. Caldwell..................Washington, D. C. James C. Collins....................Providence, R. I. Frederic R. Coudert, Jr.................New York City John W. Davis.........................New York City Charles I. Dawson.....................Louisville, Ky. Rorert G. Dodce........................Boston, Mass. Malcolm Donald........................Boston, Mass. Joseph B. Ely...........................Boston, Mass. Earle W. Evans.........................Wichita, Kan. Glenn J. Fairrrook.....................Seattle, Wash. Francis P. Fleming..................Jacksonville, Fla. Charles R. Fowler.................Minneapolis, Minn. Harold J. Gallagher...................New York City Thomas J. Guthrie..................Des Moines, Iowa Charles H. Hamill.......................Chicago, 111. J. Henry Harrison......................Newark, N. J. John J. Heard..........................Pittsburgh, Pa. Alfred A. Hampson..................Portland, Oregon William M. Hendren.............Winston-Salem, N. C. Frank J. Hogan....................Washington, D. C. Forney Johnston...................Birmingham, Ala. D. J. Kenefick...........................Buffalo, N. Y. Merritt Lane...........................Newark, N. J. Victor Leovy.........................New Orleans, La. Karl D. Loos.......................Washington, D. C. Henry McAllister......................Denver, Colo. Robert H. McCarter....................Newark, N. J. Harrison B. McGraw..................Cleveland, Ohio Frederick McKenney................Washington, D. C. Charles G. Middleton..................Louisville, Ky. Warren E. Moise..........................Atlanta, Ga. Charles E. Morgan, 3d...............Philadelphia, Pa. Gurney E. Newlin.................Los Angeles, Calif. J. Van Dyke Norman..................Louisville, Ky. Giles J. Patterson...................Jacksonville, Fla. Rodert J. Peaslee......................Concord, N. H. Joseph M. Proskauer..................New York City David A. Reed..........................Pittsburgh, Pa. Earl F. Reed...........................Pittsburgh, Pa. James A. Reed........................Kansas City, Mo. George Roberts........................New York City Ralph M. Shaw...........................Chicago, 111. Ethan A. H. Shepley....................St. Louis, Mo. Hal H. Smith...........................Detroit, Mich. Frederick H. Stinchfield...........Minneapolis, Minn. Josiah Stryker.........................Newark, N. J. Thomas F. Veach.....................Cleveland, Ohio Georce W. Wickersham................New York City E. Randolph Williams.................Richmond, Va. The Duty of the Lawyer in the Present Crisis ★ My Fellow Citizens: ' "When a lawyer is called to the Bar, he takes in open court a solemn oath that he will support, maintain and defend the Constitution. While such defense is the duty of every American, whether he takes a formal oath or not, yet as the judicial interpretation of the Constitution can only arise in litigated cases, it is the peculiar duty of the lawyer to advise his clients, and if need be the general public, as to whether some newly enacted legislation is or is not a violation of the Constitution. His right to express an opinion is indeed a part of the right of free speech, guaranteed by that Constitution, but he has a peculiar responsibility, for the citizen cannot effectively assert his constitutional rights in a court of justice unless he is advised by a competent lawyer that his rights have been violated. All this would seem too obvious to require statement were it not for the fact that the lawyer's right has recently been challenged by high officials who pretend to believe that when Congress passes a law which is plainly in excess . of its authority, the lawyer must remain silent, and that if he ventures to suggest that the law is a nullity, he is guilty of lese majeste. This is I the rule in Russia, Germany and Italy, but it is not, as yet, the rule in free America, where, thank God, the Constitution still guarantees the right of free speech. To show that the question is not purely of academic interest, let me refer to the facts which make this discussion of a lawyer's right and duty opportune. The American Liberty League, composed of patriotic Americans of both political parties and affiliated with neither, and whose sole objective is to preserve the Constitution of the United States, recently appointed a committee of lawyers to examine new legislation and consider whether any new law is within the power of the Federal Government. This vital question so essential to the preservation of our form of government was the sole concern of the Committee. The economic wisdom of the law was not a factor in the inquiry. That question had been determined by the Congress. This Committee is broadly representative of the entire country and is composed of members of both political parties. Of the fifty-nine members who compose it, twenty-seven are from the eastern states, eleven from the southern states, seventeen from the mid-western states, and four from the Pacific states. Many of these lawyers are of the first rank in their respective communities. Two considerations give value to their opinion. The first is that they agreed to serve as a public service and without any compensation. The second is that they were not asked to write a brief for or against any law, whose constitutionality they were to. consider, but were to express their deliberate judgment as to whether the Congress was authorized by the Constitution to pass such a law. THE recent National Labor Relations Act, approved by the President on July 5, 1935, was, under these circumstances, submitted to this distinguished body of lawyers. In a very careful report of 127 printed pages, they expressed their deliberate opinion that the law was unconstitutional. They cited the pertinent and authoritative decisions of the Supreme Court, upon which their conclusion was necessarily based. No other conclusion could be reached in view of the very recent and authoritative interpretation of the Supreme Court in the Schechter Case. When this report was published, it was greeted with a storm of criticism by responsible members of the Administration. Indeed an attempt was made to destroy its effect by anticipation, by suggesting that many of the lawyers | who composed the Committee were the at-\ torneys for industrial corporations. This is probably the fact, but the innuendo that be-f cause a lawyer represents a corporation he could not express an honest opinion upon the validity of a statute is a gross insult to the entire legal profession. Would it not have been wiser and more dignified for the "New Deal" spokesmen to show in what respect the Committee's conclusion was unsound? Abuse is never argument. This treatment of a dignified expression of opinion by American lawyers is but another illustration of the intolerance with which the present administration has received any criticism, even though it were respectful in expression and constructive in character. This is the more surprising, for at the beginning of this administration the President publicly stated that he would welcome criticism, but since then any criticism has had a very different reception. For example, when I ventured, on the floor of the House of Representatives, and in other public addresses, to suggest that the t NRA law was unconstitutional, and would be declared so by the Supreme Court, I and other lawyers, who expressed this opinion, were i, visited by the vitriolic denunciation of the emi- nent Administrator of that law. We were told that any criticism of the NRA was a "dead cat," and that critics were "torn torn talkers, witch dancers, hob-goblin seers, grouches, vicious enemies, assassins, traitors, social Neander-thalers, corporals of disaster." Such were only a few of General Johnson's widely broadcasted expressions. Nor was he alone in administration circles in such a method of argument. Respectful criticisms of New Deal measures have been received, even by our smiling and kindly President, as the work of "Tories" and "reactionaries." Why all this feeling about questions of constitutional power? If this and other New Deal measures are destined, like the Cheshire Cat in Alice in Wonderland, to fade into the outer darkness of judicial condemnation, yet, as with the Cheshire Cat, let at least the smile remain visible. Why scowl instead of smile? Those of use who have ventured to question the constitutionality of New Deal measures are rendering a service, not merely to the people, but to the administration as well. We should have thanks and not abuse. Had our warnings as to the unconstitutionality of the NRA been heeded, there would have been a saving of one hundred million dollars. This refined method of argument by abuse has never disturbed any of us who felt constrained to question the constitutionality of many New Deal measures, because this has been the fate of the profession time out of mind. The lawyer is, in the nature of his profession, a conservative force, and is constantly called upon to defend the individual against the tyranny of the majority. In the teeth of a passing but frenzied public opinion, the lawyer is often called upon to stand with his client between an arbitrary power and its victim. If he respects the noblest ideal of his profession, he will be indifferent to the passing passion of the hour or the hatred of any particular class. His spirit should be that of a great English judge, who, when interrupted by a wave of applause in the courtroom, quickly stopped, and sternly said, "The administration of justice is in great danger when the applause of a court is agreeable to a judge's ear." When the lawyer is defending the rights of an individual against unlawful government measures, he can say, as did Lord Mansfield, "I wish popularity, but it is that popularity which follows, not that which is run after; it is that popularity which sooner or later never fails to do justice to the pursuit of noble ends by noble means." The lawyer has a peculiar responsibility to the Constitution of his country. It was the American lawyer who precipitated the Revolution and thus created us a nation by his efforts for unwritten constitutional principles of liberty. "No taxation without representation" was a lawyer's phrase. The Federal Constitution itself was largely the work of American lawyers, and its development by application to the ever-changing conditions of a progressive people has again been largely the work of American lawyers. If, therefore, in this or any administration, a Congress, demoralized by the delirium of emergency or inspired by class passion, passes laws which nullify the Constitution, then it is not only the privilege but the duty of the lawyer to say so. In the matter now under consideration, the chief criticism of our Lawyers Committee has been that we are attempting to anticipate the decision of the courts. Our report has been characterized by a leading member of the President's cabinet as an "impertinence." We have been contemptuously referred to as "fifty-seven varieties of associate justices." Would it not i have been better for Secretary Ickes, himself a ( lawyer, to explain in what respect the Committee's conclusions are incorrect? It was even suggested that our report was an attempt to influence the courts. What nonsense! To suggest that the opinion of a lawyer as to the validity of new legislation is an attempt improperly to influence the court is an insult both to the court and the bar. When in Holy Writ the Centurion ordered the great Apostle to the Gentiles to be scourged to compel him to testify, St. Paul said, "Is it lawful for you to scourge a man that is a Roman and uncon- detuned?" The great Apostle would be surprised to know that this assertion of his right as a Roman citizen was an attempt to influence the court. If Congresses and Presidents were the sole judge of their powers, our Constitution would be little more than a scrap of paper. It wisely imposed upon the judiciary the power and the duty to interpret finally and authoritatively the Constitution, but this great duty, vital to our form of government, can only be performed in litigated cases. In other words, until there is a case in court, which requires an interpretation of the Constitution, the courts can do nothing. Hence, the duty of the lawyer as a sentinel of the Constitution, to speak out when the Constitution is violated. We justly praise John Marshall for his inestimable service in interpreting the Constitution, but before the great Chief Justice could express any opinion lawyers like Patrick Henry, Madison, Hamilton, Webster, Pinkney, Wirt, Clay and Binney and others of potent achievement first advised a client as to his rights and then defended those rights as the client's advocate. This is all that the Lawyers Committee of the American Liberty League has done. Its members did not seek the responsibility but they did not avoid it. They have expressed, and will continue to express their judgment from time to time as to the validity of legislation, and if and when any American citizen, however humble, is without means to defend his constitutional rights in a court of justice, one or more of these lawyers will, without any compensation from any source, defend the rights of the individual, and in this way carry out, in the most effective way, their oath to support, maintain and defend the Constitution. 1 HEBE is even a broader aspect to this matter than that which I have suggested. Even the Supreme Court cannot fully protect the Constitution from destruction. Its power to do so is limited to questions which arise in litigated cases, but there are many laws which have no sanction in the Constitution and which never reach the courts because no one brings a test case. For this reason the preservation of the Constitution must largely depend upon the people themselves. Chief Justice Marshall himself indicated that there were many controversies in which the Court could not act and in which the final appeal must be to an enlightened public opinion. Many constitutional questions can only be determined by a struggle at the polling booth, between those who believe in the Constitution and those who disbelieve in it. The old saying is everlastingly true: "Eternal vigilance is the price of liberty." Throughout our history the greatest struggles to preserve the Constitution have not been in the courts but in the halls of Congress, and upon the public platform. Indeed one weakness in the present crisis is the exclusive dependence upon the judiciary to preserve the Constitution. This is the battle of the people, and they require and are entitled to the best expert judgment as to the true meaning of the Constitution. In his Farewell Address, Washington solemnly warned his and all succeeding generations of Americans that the Constitution could be more easily "undermined" than "directly overthrown." We must defeat the sappers and miners of the New Deal, who are insidiously undermining the very foundations of the Constitution. A.LL this should be too obvious for statement. I speak for my colleagues of this Committee when I say that we are indifferent either to the censure or the praise of these office-holding critics. "With malice toward none, hut with firmness in the right," we will continue, as and when occasion demands, to express our opinion and if called upon, to defend the constitutional rights of Americans. They are not subjects, but citizens. If these New Deal laws cannot stand the calm and respectful inquiry as to their validity, then they should never have been passed at all. It is a new idea in the life of our nation that any citizen, whether he be a lawyer or not, is not entitled to express his opinion upon any public question and especially one that concerns the integrity of the Constitution.