A CONTINUING DILEMMA
On July 4, 1861, President Abraham Lincoln addressed a special session of Congress. The Civil War had begun. He solemnly reminded his listeners of the message he himself had delivered in his inaugural address to the rebel states: "You can have no conflict without being yourselves the aggressors." Aggressors they surely became, he asserted to Congress, when Fort Sumter was attacked and fell. The President wondered aloud "whether a constitutional republic . . . can . . . maintain its territorial integrity . . . against its own domestic foes." He packaged the crux of his concern in the form of a memorable dilemma: "'Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its existence?'"
There are times, especially during the management of a crisis, when a constitutional government has to muster every ounce of its strength. In doing so, citizens' rights are frequently compromised. The internment of Japanese- and some German-Americans during World War II offers a notable case in point. Lincoln himself, as we know, has been ferociously criticized by scholars for suspending the writ of habeas corpus. This vehemence has been visited upon President George W. Bush as well.
Yet, as Lincoln was aware, there is a second horn to this woeful dilemma. A government which fails to respond in a swift, powerful, and decisive manner to a crisis may render itself "too weak to maintain its existence. . . ." The citizens of a constitutional republic are thus caught between the proverbial "rock and hard place." They are damned if they do and damned if they don't.
As you might expect, this continuing dilemma has been the subject of profound reflection through the years. Tensions ran high throughout the world in 1940 as Hitler was re-arming Germany. In America at that time, two children, Lillian and William Gobitis, who were Jehovah Witnesses, refused to pledge allegiance to and to salute the flag as part of a compulsory school ceremony in Minersville, Pennsylvania. They believed that this gesture of respect was forbidden by Scripture. The children, 12 and 10 years old respectively, were expelled from school.
The Gobitis case worked its way to the United States Supreme Court. Delivering the opinion of the Court, Justice Felix Frankfurter, left, invoked Lincoln's words and admitted that "[n]o mere textual reading or logical talisman can solve the dilemma [that the words pose]." The Justice also opined that the "ultimate foundation of a free society is the binding tie of cohesive sentiment." This sentiment, he noted, is "fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization." Frankfurter, along with the justices who joined him, did not believe that the federal judiciary was entitled to second-guess the Pennsylvania legislature, which had formally directed the flag-salute, and so they held for the Minersville School District.
Within three short years, the Gobitis decision was overruled by another Supreme Court blockbuster, West Virginia State Board of Education v. Barnette. Again, students of the Jehovah Witnesses' persuasion said "No" to saluting the flag. Mr. Justice William O. Douglas, right, writing for the majority, re-visited Lincoln's dilemma, and made the following observation: "It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school . . . . If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies."
It may be fair to observe that Justice Frankfurter was impaled by one horn of the dilemma, whereas Justice Douglas was transfixed by the other. If the controversy between them proves anything it is simply the brilliance of Lincoln's insight. He zeroed in on perhaps the quintessential question of constitutional government: how during desperate times can we preserve its ability to govern without sacrificing our freedoms in the process?
Fear now grips the body politic. If you don't believe it, attempt to buy a rifle or even a single box of ammunition at your local sporting goods store. We face problems the enormity of which we have never before seen -- in health care, manufacturing, international trade, immigration, education, gun control, world politics, and a host of other areas. There is little or no consensus among the electorate about how to solve them either. A Democratic Congress is busy spending trillions of dollars that we do not have. Dissent in many quarters is piercingly loud. Preserving the government, it is true, will require a strong arm on both domestic and foreign fronts. Such strength, if and when exhibited, will smack of authoritarianism, and may derail our freedom. Yet tolerating dissent as usual runs the risk of undermining the social cohesion necessary for survival during these perilous times.
Yes, our nation has survived monumental crises in the past. We did so thanks, in part, to a largely homogeneous culture and a people who were unified by values, language, vision and understanding. Much of that has changed. The culture is fragmented, our public faith is a point of controversy and vigorously debated, our political system is recognizably dysfunctional, and our financial coffers are abysmally bankrupt. What do you think the odds are for long-term constitutional survival? I myself am not sure.
May 20, 2009