John Q. Barrett: "Deep Throat," Justice Jackson and Suicide Pacts





John Barrett, From his Jackson List (6-15-05):

[Mr. Barrett is the editor of the memoirs of of Supreme Court Justice Robert Jackson.]

After “Deep Throat” was identified definitively two weeks ago, I read for the first time former senior FBI official W. Mark Felt’s previously little-noticed memoir, The FBI Pyramid from the Inside (New York: G.P. Putnam’s Sons, 1979). Felt’s book, which he published while awaiting federal trial for conspiring to violate civil rights by approving illegal house searches, is a spirited defense of the FBI and J. Edgar Hoover.

I was interested, and amused, to read in the book Felt’s categorical denials (see pp. 225-26, 249; cf. p. 259) that he had been Bob Woodward’s Watergate source. It also—of course—caught my eye that Felt began his very first chapter with this header:

“We must not turn the Bill of Rights into a suicide pact.

—Mr. Justice Robert H. Jackson
United States Supreme Court 1941-54”

Justice Jackson famously expressed that idea—although he did not use exactly those words—in his dissenting opinion in Terminiello v. Chicago. In that landmark free speech case, Jackson dissented from the Supreme Court majority’s decision to reverse on First Amendment grounds the criminal conviction for breach of peace of a notorious public figure (a priest, actually) whose speech in a Chicago auditorium had provoked riot conditions both inside and outside the hall. Jackson’s famous “suicide pact” line comes from the conclusion of his dissent:

“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.”

Terminiello, 337 U.S. 1, 37 (1949) (Jackson, J., joined by Burton, J., dissenting).

In his 1979 book, Felt associated Jackson’s “suicide pact” idea with Felt’s own argument that FBI leadership, including himself, had been correct to authorize “black bag jobs”—surreptitious, warrantless FBI entries of private homes to search for useful information—as it investigated the Weather Underground, including some members who had been charged with serious crimes and were fugitives from justice.

In 1980, John W. Nields was the lead federal prosecutor who won Felt’s and his co-defendant’s criminal convictions for authorizing these FBI break-ins. In an op/ed piece in last Sunday’s Washington Post, Nields turned to a powerful—and, given Felt’s quotation of Jackson, an ironically relevant—source to explain the fundamental illegality of such government conduct:

“In late 1972 and early 1973, during the same period when he was investigating the Watergate break-in, Felt authorized FBI agents in New York and New Jersey to break into and search the homes of friends or relatives of fugitives associated with the Weather Underground, a radical, violent antiwar organization. These friends and relatives were innocent of any wrongdoing. There was no probable cause to conduct the searches. There was no search warrant authorizing them. And they were clearly illegal.

… The Fourth Amendment provides that "the right of the people to be secure in their . . . houses [and] papers . . . from unreasonable searches shall not be violated." As the [Felt] trial progressed, it sank in that the Fourth Amendment was not the creation of ivory-tower intellectuals. It was an expression of our deepest instincts. Many of the agents who entered into and searched the people's homes testified at the trial. Their testimony was profoundly disquieting. While they were inside people's houses, they clearly felt more like burglars than law enforcers. As former attorney general and Supreme Court justice Robert Jackson wrote of the Fourth Amendment shortly after serving as chief prosecutor at Nuremberg: ‘These, I protest, are not mere second-class rights, but belong in the catalogue of indispensable freedoms.’”

(Nields’s full June 12, 2005 op/ed piece, “The Contradictions of Deep Throat,” is available on the web at http://www.washingtonpost.com/wp-dyn/content/article/2005/06/10/AR2005061001712.html.)

Nields was quoting from Justice Jackson’s dissenting opinion in another 1949 Supreme Court case, Brinegar v. United States. Jackson there disagreed with the Court majority’s conclusion that federal agents had probable cause to stop and search what turned out to be a bootlegger’s car as he used it to haul booze from a wet state into a dry one. Jackson, drawing an explicit connection back to his own experience three years earlier as chief United States prosecutor of Nazi war criminals at Nuremberg, wrote in Brinegar as follows:

“Fourth Amendment freedoms … I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights [—i.e., the German people just after their years under Hitler—] to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.”

338 U.S. 160, 180-81 (Jackson, J., joined by Frankfurter and Murphy, JJ., dissenting).

In their Jackson-quoting, Felt’s book and Nields’s op/ed piece each demonstrate the contemporary—and, because of the timeless topics he addressed regularly, the permanent—relevance, and also the beauty, of Justice Jackson’s words. But although each writer chose a favorite Jackson line to bolster his own rhetoric, only Nields picked Jackson words that actually, in context and directly, pertain to and thus help to make his point. Felt (or perhaps his ghostwriter Ralph de Toledano), by contrast, seems to have grabbed a fine Jackson phrase—“suicide pact”—(from Bartlett’s?) without thinking very much about whether it in fact pertained to the kind of Constitution-violating with which Mr. Felt had been charged.

Nields’s Jackson-quoting essay, juxtaposed with Felt’s Jackson-quoting book, teaches something that is cautionary and important: government officials would do well, before they glibly recite Jackson’s eloquent caution against “suicide pacts” to explain away or justify any and every violation of a constitutional protection, to learn about and reflect on the specific contexts in which Jackson did, and the many in which he did not, find that caution to be applicable.

To Jackson, Terminiello was, on its unique and compelling facts, the case where reflexive, absolutist legal protection of a speaker whose actions produced genuine breach of peace made no constitutional sense. Less than two months later, by contrast, Jackson saw in Brinegar a case of routine government lawbreaking. It was in the latter context that Jackson penned his more generally applicable point—he voted and explained in Brinegar, as he did generally, that it is fundamentally American, and not at all suicidal, for a court to enforce the Constitution itself.


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kenneth j bernstein - 6/18/2005

at a recent event at which she received an ward from the Creativity Foundation and the Smithsonian, Justice Sandra Day O'Connor, in response to a question I had asked, noted that Jackson was one of the finest writers the Court has seen, and coincidentally, was the last Justice who had not attended law school. She wondered if there were a connection.

Felt (and others) who make reference to the suicide pact ignore the totality of the jurisdpruedence Jackson produced. Perhaps the best example would be his incredible opinion in the 1943 W Virginia Board of Education v Barnette, in which the Court by a 6-3 vote overturned a precedent estlbaished in 1940 in Gobitis v Miner4sville that had allowed the expulsion of the jehovah's Witnesses because they would not recite the Pledge of Allegiance. The total opinion is well worth reading, and may be found at http://www.tourolaw.edu/patch/WVir/ Let me offer the stirring conclusion to Jackson's opinion, which makes clear his approach on restrictions of individual liberties. I find it particularly appropriate in a day where spokemesn for the Presdient (Ari Fleischer) have argued that Americans need to watch what they say, and where an Attorney General (a role Jackson had also held) named Ashcroft has all but implied that disagreeing with the president or criticizing his actions was approaching treasonous activity. Note particularly the famous words in the punetultimate paragraph of what I quote:
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National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
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