Robert H. Jackson Center

Democracy Under Fire

This article originally appeared at 9 Law Soc’y J. 301 (1940). Reprinted by permission of the Social Law Library.

DEMOCRACY UNDER FIRE

By HON. ROBERT H. JACKSON
Attorney General of the United States

At a Meeting of The Law Society of Massachusetts, Boston City Club, Boston, Massachusetts, October 16, 1940.

The American people are a practical lot. I think they are more entertained than influenced by the high blood pressure of politicians, and they do not take seriously either their campaign professions of perfection or their prophesies of disaster.

The fact is that the American people know that their real problems and their deep worries are not political. By that I mean that they cannot vote their troubles in or vote them out. The morning after election the same problems will be on the desk of the Chief Executive. The whole group of problems, both domestic and foreign, presented by the combination of axis powers is not going to be washed away in a flood of votes for anybody, and the American people are not expecting them to be.

Also, the real problems of America are not to be settled by any debate over what Mr. Justice Holmes called "pernicious abstractions."

If there is a characteristic American philosophy, it is that of getting results. We have a democratic system in which most Americans believe, but if it becomes corrupt, cruel, or ineffective, the people will inevitably turn from it. We have a system of private enterprise in business, and we much prefer that private capital shall run our businesses, build our defenses, and employ our workmen. Yet in periods when private capital cannot or will not on reasonable terms do these things, the people turn to their government for T.V.A.'s, for big dams, for works to relieve unemployment, for pensions to provide for dependent old age and to meet other problems along the whole social and economic front where private effort fails or falters. A large part of the success of a government in maintaining the confidence of the masses of the people of this country can come only from following the traditional American system of adopting concrete remedies rather than becoming involved in a maze of controversy over theory.

It seems to me that in an era of world revolution the most important confidence that a government can have is the confidence of the masses of the people among whom social unrest might be a dangerous symptom. I believe that no government can gain or keep the confidence of the masses of the people by either following or fighting sterile ideologies.

It seems to me also that when a nation faces an encircling movement by a combination of powers dedicated to ends that threaten it the best asset it can have is the unquestioning support of the people who must be depended upon for production and protection.

It has been said that men who live differently think differently. Those who are busied with the task of working out an existence live first and only make their experiences up into a philosophy afterwards. A few men start with a philosophy which is usually a rationalization of their own interests and try to shape the world to meet it. Most persons advance a theory because it will do something for them.

The masses of the American people, for example, have been devoted to what they believe to be a democratic form of government, or what has at times been called a republican form of government, not because of any theoretical perfection but because, whatever the theories about it, they have found it a good government to live under. In other words, they were, and they are, for a democratic form of government because of their experience.

Lately, on the other hand, there has arisen in this country what appears to be a school of thought which denies that our government is or ought to be democratic. The sponsors of this school of thought likewise seem to base their philosophy upon experience. They too are creating a philosophy of government which will give them the things that they want. This school of thought seeks to tell the people of this country that they owe no debt to democracy for their well-being, and that their loyalties should no longer be to the works or faith of what we know as the democratic ideal. These are people who are satisfied with democracy as long as they and their interests are in control of it. But as soon as they see their control slipping they begin to urge a modification of democracy which will restore their control.

Let me give you a few instances.

Last February, General Van Horn Moseley, who has been exposed by the Dies Committee as having fascist leanings, said in a statement to the press that he was “doing all I can to get the word 'democracy’ out of literature." "A democracy," he asserted, "pulls everything and everyone down to the level of an average and that makes it Communism."

We might expect as much from one with fascist tendencies, but on another occasion, over a year ago, Mr. H. W. Prentis, Jr., who is President of the National Manufacturers Association, delivered an address to the Congress on Education for Democracy at Carnegie Hall in New York City in which he too assailed what he called "the pitfalls of democracy." Among the democratic institutions which Mr. Prentis attacked were the direct election of United States Senators, the primary, the initiative, the referendum and the recall, all of which he said were bringing us closer to the pitfalls of democracy. "Hope for the future of our republic," said Mr. Prentis, "does not lie in more and more democracy."

A year later, we find the same theme taken up by the Saturday Evening Post. In its issue of August 24,1940, the Saturday Evening Post editorially asserted that "this was not a democracy. The founders dreaded democracy almost as much as they feared despotism," and it named four steps by which it claimed we bad been moving toward becoming an unlimited democracy.

These steps were: First, universal suffrage, whereas in the beginning the right to vote was qualified by a property ownership requirement.

Second, the election of the President has become closer to a direct vote of the people instead of the President's being chosen by the electors.

Third, the election of Senators by direct popular vote instead of by vote of the state legislators.

Fourth, the graduated income tax.

Thus the Saturday Evening Post deplores these developments because they are steps in the direction of democracy.

This same attitude is to be found in a pamphlet issued by the self-styled League for Constitutional Government. This pamphlet proclaims that the "defenders of the American system of government must doubt the sincerity of those individuals who continue to refer to our government as a Democracy." That of course includes the candidates of both political parties. And they cite two "alien ideas" brought about during the Wilson Administration "which are responsible for many of our ills." "We refer to the income tax amendment and the creation of the government dominated Federal Reserve System, both of these alien ideas were brought to this country from other lands."

Another instance occurred at a meeting of the Union League Club of New York last September 19. The Union League Club, as you know, was organized during the Civil War to support the claims for freedom and citizenship of an enslaved and oppressed people-one of the longest single steps ever taken in the direction of democracy. At the meeting of September 19, however, the speaker was Merwin R. Hart, President of the so-called New York State Economic Council which is closely allied with the manufacturers associations. Merwin Hart is well known for pro-fascist leanings. In 1936 it was his proposal that every person who accepted any form of government help should be denied the right to vote. And now in 1940, before the Union League Club, Mr. Hart says that “it is time to brush aside this word 'democracy' with its connotations." That was the theme of his speech-that democracy is a danger to this country. Mr. Hart said he "suspected" it was through the influence of the Communist Internationale of 1935 that the word democracy "became substituted almost entirely for the word 'republic.'" Mr. Hart's contempt for democracy is made the more significant by the fact that he stated publicly that he had submitted his address in advance to the President of the Union League Club and had obtained his approval of it. It is easy to dispose of Mr. Hart's "suspicion" that the word "democracy" came into use here "through the influence of the Communist Internationale of 1935." For over a century the party of Andrew Jackson has carried the name "Democratic Party" as a short statement of its political creed. Even before that the word was well known as an epithet and it is said that Mrs. Washington did not like Jefferson and referred to him as a "friend of the filthy democrats." Mr. Hart would probably express his sentiments today more nearly by this quotation than by those he is using.

The fact is that both the words "Democrat" and "Republican" began their career under the displeasure of great ladies and the hostility of rich gentlemen. The Republicans have lived it down-the Democrats have held to their old enemies as well as to their old friends.

Historically the word "democracy" and the word "republic" have frequently been confused and often used as interchangeable terms. Madison stated the distinction as follows: "The true distinction between these forms . . . is, that in a democracy, the people meet and exercise the government in person; in a republic they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region."

But Madison had no idea that a republic would thereby fail to be governed by the public opinion of the masses of the people, for he said: "It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; . . . "

And Mr. Jefferson seems to have held the same view, for he said: "The further the departure from direct and constant control by the citizens, the less has the government of the ingredient of republicanism . . ." And again, "The full experiment of a government, democratical, but representative, was and still is reserved for us."

Alexander Hamilton does not support the claim that this country was not to be a democracy. In 1788 in his "Brief of Argument on the Constitution of the United States" Hamilton gave terse expression of his views as follows: "A republic, a word used in various senses, has been applied to aristocracies and monarchies. * * * Again, great confusion about the words democracy, aristocracy, monarchy. * * * Democracy in my sense, where the whole power of the government in the people. Whether exercised by themselves, or by their representatives, chosen by them either mediately or immediately and legally accountable to them. * * * Consequence, the proposed government a representative democracy. * * * Constitution revocable and alterable by the people. This representative democracy as far as is consistent with its genius has all the features of good government."

I suppose it is respectable in this City of Boston to quote John Adams to Massachusetts 1awyers. He used the word democracy as an equivalent of the people. He said "Democracy, nevertheless, must not be disgraced; democracy must not be despised. Democracy must be respected; democracy must be honored; democracy must be cherished; democracy must be an essential, an integral part of the sovereignty and have a control over the whole government, or moral liberty cannot exist, or any other liberty."

At another time, speaking of government, Adams wrote "Of all the varieties a democracy is the most natural, the most ancient, and the most fundamental and essential."

The complaint of these gentlemen, who now seek to discredit government by the people, is not new and is not against something new. They are spiritually and intellectually one with the group that opposed freedom and independence of the colonies from the king. They are at one with those who throughout our history have opposed giving the vote to men just as men and who have demanded property qualifications in voters. Mr. Hart proposed to take the franchise to vote away from any person who accepted any kind of relief. James Otis answered that argument by asserting that "if a man has but little property to protect and defend, yet his life and liberty are things of some importance." These are persons of the same type as those who called Andrew Jackson an enemy of law and order because he and his followers sought to abolish imprisonment for debt. They are the same type as those who fought the income tax and who now want wealth to escape its share of the burden of national defense, who think of defense in terms of opportunity for profits not in terms of burdens. They are the same type as those who throughout a century fought to have the public land of the United States sold to, land companies which could resell them to settlers at a profit. They are the same type as those who claimed that Andrew Jackson and Abraham Lincoln were enemies of business when they insisted that the government should distribute its lands directly to homesteaders. They are the type of person who applauded James Buchanan when he vetoed a bill to make lands available to homesteaders on easy terms upon the ground that to distribute the lands directly to them would encourage “foreign social theories." They are the same type of person who now wants the public power that is generated by reason of the flood control and navigation improvement projects distributed not to the public but to private power companies to resell at a profit. They are the same type of person who has opposed throughout our history social legislation and expenditures for the benefit of the masses of the people under the general welfare, clause of the Constitution.

I have not discussed fully the views of these modern protestors against democracy because I think that any distinction which is made between the two words "Republic" and "Democracy" is itself important. In the minds of the men who founded our two great political parties both the word "Democratic" and the word "Republican" meant government by consent of the governed, both were intended as an assurance of fidelity of the party to our ancient freedoms. It is too late for a controversy over the difference between two words that in common speech are synonyms and represent ideas which overlap even if they are not identical. The blunt fact is that many of the men who are agitating for a differentiation between these words are against popular government under either word or either form. I do not know what they hope to gain by discrediting the word "Democracy" which has a solid place in the affections of our people. The leaders of both of our political parties use the word with frequency and it is a part of the speech of people.

Democracy even in the world of today has different meanings in different contexts. To some it means only a form of government-one in which all citizens participate in the franchise and in which there is great respect for individual liberties including the liberty to the economically strong to exploit the economically weak. This we have pretty well achieved. We have democracy in the political field. It is this limited democracy that many mean who praise democracy and promise to support it.

But to others democracy has a deeper meaning. It goes beyond forms and becomes a thing of substance--a way of social life--something the citizen can feel not only on Election Day but throughout the troubled year. It tolerates no great extremes either of wealth or of poverty. It guarantees his economic opportunity, the right to share in fixing the conditions of his working and economic life, the right to have the protection of collective resources in his unemployed days and his old age. This kind of democracy is quite another matter. Many who talk eloquently of democracy have in mind only the political democracy of the 18th century. They do not want the industrial and economic democracy of the 20th century.

It is the upsurge of this real underlying democracy which began to be successful only a few years ago that stirs these new oppositions to democracy. These new bottles are filled with the old wine of caste, of economic exploitation, and of privilege. That is why the reversion to the old arguments against democracy is important today. They reflect the fundamental resolve of these groups not to accept democracy in its really vital modern sense.

The mischievous effect of this gathering of forces against freedom and democracy is apparent from the speech night before last of Mr. Lindbergh. It was significant that his only reference to democracy was a sneering reference to the effect that the public was being harangued about it. It was significant that his speech, so perfectly calculated to undermine confidence in American leadership, was delivered just on the eve of America's muster of its man-power for selective service. No speech, in its timing and its substance, could more perfectly have served the purpose of those who would weaken the morale of democracy and undermine the spirit of our defense effort.

We are witnessing the most ominous gathering of forces against freedom and democracy that has been seen in my time. Even though these enemies of democracy gain no foothold as a result of our elections, the drawing together of powerful groups making common cause under such common slogans is still an ominous development.

You, as American lawyers, know the price that has been paid throughout the ages for each gain in our march toward a democratic life. We have not yet reached the goal. One of our greatest contributions to this titanic struggle will be to win the battle for democracy here at home in our own hearts and minds so that, in the homely words of one of democracy's great leaders, "government of the people, for the people and by the people shall not perish from the earth."