MARCH 10, 1966
Law And Survival
AN ADDRESS BY Mr. Justice W. O. Douglas,
ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES
CHAIRMAN The President,
Lt. Col. E. A. Royce, E.D.
Reverend Sir, Mr. Justice, Mr. Consul General, honoured guests, gentlemen
Since our recent difficulties with a well-known acceptance company, some of our American friends have been a bit critical of our behaviour in the financial field. In fact, there is a story going around about a grizzled old banker who is being interviewed on his successful career. "How did you get started in the banking business?" he was asked. To which he replied "It was quite simple, one day I put up a sign saying 'Bank'. A fellow came in and gave me one hundred dollars and then another came by with two hundred dollars and, sir, by that time my confidence had reached such a point I put in fifty dollars of my own money."
Bacon, in one of his excellent essays, said "Judges ought to remember that their office is to interpret law and not to make law or give law." The Supreme Court of the United States of America did not exist, of course, in Bacon's time and was indeed not constituted until some years after the American Revolution. However, in 1787 it was concluded that a Supreme Judicial Tribunal was required and Article 3 Section 1 of the Constitution provides "The judicial power of the United States will be vested in one Supreme Court and in such Inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and Inferior Courts, shall hold their offices during good behaviour and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." It is interesting to note that although this Article gave the Supreme Court a status independent of the will of Congress, the Constitution did not prescribe the size of the court nor does it spell out the exact scope of jurisdiction in so far as appeals are concerned-the Supreme Court is, therefore, subject in important respects to Congressional action.
The size of the Supreme Court has varied--it began in 1789 with a chief justice and five associate justices. By 1863 it had grown to ten and later it was reduced to seven and in 1869 it was increased to the present figure of nine. Tenure is during good behaviour and subject to expulsion by conviction in impeachment. The record over the years shows only one case of impeachment-Samuel Chase, who was acquitted in 1805.
All appointments to the Supreme Court are made by the President with the advice and consent of the Senate. Over the years, nine nominations have been rejected by the Senate. Some conflict between the law making bodies and the Supreme Court is inevitable since one of its basic functions is the exercise of power to decide whether Acts of Congress or of the State Legislature are unconstitutional and no other body, of course, exists which can discharge this important duty.
It has been said that the principal problems of the Supreme Court have arisen over the question of interpreting the Constitution in the light of a changing world and perhaps the most famous case in history and one which illustrates the point in question was the Dred Scott case in 1856. Scott was a Missouri slave who sued for his freedom. Several states were involved-some slave and some freeand the issue was complicated by the times. However, on 6th March, 1857, Scott was declared out of court on the grounds that a slave could not be a citizen of the United States or have any standing in Federal Courts. The Chief Justice at the time said one of the constitutional functions of Congress was the protection of property and since slaves were property as defined by the Constitution, Congress, and presumably the Supreme Court, was bound to protect not to prohibit slavery. It could be said that no decision in history cost more to reverse-when the American Civil War ended, more than 4,000,000 men had been in arms and half a million Americans had died. Years later, the famous Justice Charles Evans Hughes characterized the Dred Scott case as "a self-inflicted wound for the Supreme Court" but the important point is that the Supreme Court has changed with the years and is still changing, not only with the times but often in intelligent anticipation of them.
Senator Carter Glass, speaking some years ago, had this to say: "The men George Washington selected for chief justice and associates were not only persons of eminence in the profession of the law but in character and literally incapable of going on the Bench to submit obediently to executive decrees."
I shall now introduce a man who represents the qualities that have brought the Supreme Court to its present eminence.
Our distinguished speaker today, although born in Maine, spent many years on the west coast in the State of Washington. He graduated from Columbia Law School in New York in 1925 and was a member of the faculty of that excellent school for four years. Later--from 1928-1936--he was a member of the faculty of the Yale Law School. About this time he conducted various studies in bankruptcy for the United States Department of Commerce, the Yale Institute of Human Relations and the National Commission of Law Observance and Enforcement. He was a Commissioner of the Securities and Exchange Commission and later Chairman of that Body from 1937-1939 when he took his seat in the Supreme Court of the United States as an Associate Justice.
This illustrious jurist is equally distinguished as an author and explorer. He is not only thoroughly familiar with our own continent but has travelled in most other countries of the world as the titles of his books indicate--Strange Lands and Friendly People, Beyond the High Himalayas, North from Malaya, Russian Journey, West of the Indus to name only a few dealing with foreign travel, while closer to home his works include My Wilderness, The Pacific West and last of all, A Wilderness Bill of Rights which he produced only last year. Vitally involved with the decisions of the Supreme Court which more and more shape the way of life in the United States of America, he nevertheless makes time to keep in touch with the outdoors of which he is so fond. A first-class woodsman, he knows the wilderness and loves what he knows. It might well be said that no man in the United States of America today is doing more to preserve unspoiled for posterity those regions of the United States not yet polluted by civilization or desecrated wantonly by those who care nothing for the future provided they may ravish the land for a quick profit today.
I have the honour to present to you a judge who has reached the highest pinnacle to which an American member of his profession may aspire, an explorer, an author, a naturalist and a man--Mr. Justice William O. Douglas, Associate Justice of the Supreme Court of the United States of America.
MR. JUSTICE DOUGLAS:
The people the world over are very much concerned with the dangers of nuclear war. The ability of man to reduce the earth to radio-active rubble has reached the consciousness of everyone and has generated vast anxieties.
Our problem, therefore, is one of the prevention of war, or if war starts, the prevention of escalation.
The risk of nuclear war increases with the passing of the years because stresses and strains cause tensions to mount, and to some, it is an easy, simple remedy merely to drop a bomb on one's neighbour and thereby "solve" its major problem. As the nuclear club increases in size and as the world tensions increase, the risks will continue to mount. We are indeed foolish to think that our generation is better than those who preceded us. There have been high-minded men throughout history. Yet every generation so far has produced rascals, some of whom have wrought vast destruction. It is too awful to contemplate what would have happened if Hitler had had the atomic bomb in his arsenal. But we have not seen the last of the Hitlers. That particular crop seems indeed to be flourishing these days.
The Cold War has largely incapacitated us for dealing with basic world problems. It has kept the largest country in the world out of the United Nations. I refer to the Peking regime that commands the loyalties of 700 million people. The Cold War for years isolated the West from Soviet Russia and set back by many years the vast co-operative undertakings that are necessary if the world is to build a regime of law. Any serious talk about disarmament is largely futile unless all the major powers are at the conference table. The Peking regime is one of the major powers and yet it is labelled an outlaw. Steps toward disarmament must therefore be very meagre and halting.
Yet if we are to survive, there must be an end to wars. For most people it may be inconceivable to think of a world without war, because war has written some of the largest, most stirring chapters in our history. Wars get caught up with national pride, national enthusiasm, feelings of loyalty, deep passions, and are propelled by almost uncontrollable forces. Yet people at one time thought very deeply about slavery and thought it was man's destiny to live in a slave-ridden world. That was the view on this continent, even 100 years ago. But slavery has pretty well been abolished and in time, if we survive, war will be too.
This does not mean that armed might will disappear. Man is by nature a predatory, aggressive being. He is capable of infinite mischief. Any political unit of any continent of this planet shows the conflicts of which people are capable; and each one has policemen, militia, sheriffs, and rangers to deal with them. The nations of the world will always need police forces and policing, because the quarrels between states will be often real and ominous. In other words, a demilitarized world will not and cannot eliminate the infinite power struggles inherent in the nature of man. But what it can do is eliminate the war system that today takes the awful risk of reducing the world to radio-active ashes. The problem is how to find alternatives to the use of armed force.
The United Nations is part of the mechanism that we need. It has a legislative body, an executive arm, numerous and effective administrative agencies, and a judicial branch. Each of these is somewhat in embryonic form, when we place them against the standard of world government envisioned by Lord Tennyson's "The Parliament of Man." But the foundation for supra-national organization is present, the problem being how to get the nations of the world to use it.
We start with the International Court of Justice, an institution of distinction but largely without work. The reasons are the crippling amendments that have been adopted restricting the various nations' adherence to the Court. Typical of these is what's known in the United States as the Connolly Amendment which in practical effect is an acceptance of the jurisdiction of the Court in such cases as the United States is agreeable. The principle of reciprocity gives the same defence to any nation sued by the United States. The result is that this Court, which should have at least several hundred cases a year to adjudicate, has less than a handful-perhaps one or two or sometimes three.
Though the mediation, conciliation, and arbitration facilities of the U.N. are considerable, they are not greatly used. We of the West are delinquent in this respect as are those in the communist bloc. Russia undertook to handle Hungary on her own; India, Goa; and the United States, Viet Nam. We must build different patterns for international conduct. The machinery is there to make other solutions available. If we of the West undertake to police the world against communist uprisings, the communist bloc with the same prerogatives can police the world against democratic revolutions. That would in the end produce a lawless world regime that would increase greatly the chances of a nuclear war.
Khrushchev on January 1, 1964, proposed that all boundary disputes be submitted to international adjudication. I often wondered why he was not taken up on that proposition. Down my way they called it propaganda. But how can we be sure? If we took an international consensus that all boundary disputes should be settled by mediation, conciliation, or arbitration, we would have set one large, substantial block in the edifice of international law. Our search must be for a consensus of such items, piece-by-piece, so that the structure of a Rule of Law at the international level may become complete.
The U.N. is not the cure-all. It cannot handle all the differences and disputes between its member states. Much needs to be done at the regional level. In this hemisphere, OAS is embryonic and largely without substance except as a meeting place and a clearing house for ideas. It has no court though one is sorely needed. It has no real legislative and executive functions.
SEATO in the Pacific is largely the white man's last attempt to build a bastion in Asia. It has depreciated largely to a treaty between the United States and Thailand. It was ill-advised from the start because it created the impression that the white man would save Asia, when in truth the only power that can save Asia is a power from within Asia itself.
Great statesmanship is needed in Asia to build the proper kind of organization that can bring a Rule of Law and stability to the area. Asia is today largely a supplier of raw materials to the industrial plants of the Western world. It is the "drawer of water and hewer of wood," having pretty much the same relationship to the West as Yugoslavia had to Russia in the 1940's when she made her historic break from Soviet orbit. Today Asia (like Yugoslavia in the 1940's) desires independence and a vast industrial development.
She needs a common market. She needs an Asian entity that will provide a large measure of common defence. She has difficult and staggering problems to solve. Now that the atomic bomb has reached Asia those problems cannot be left to strictly military solutions.
We of the West are often confronted with similarly gargantuan problems on this hemisphere. Some think we can combat revolution by arming and financing modern fascist regimes. But this cannot be done for long. The function of life is change, and change has long been over-due in the countries to the south of us. Only three have had their basic revolutions-Mexico, Bolivia, and Cuba. There are good and excellent democratic beginnings in some countries but there is also the hard core of the feudal system remaining in many of them.
What we of this hemisphere must propose and work out is a vast common market for all of our members. The tendency in Latin America is for the miserable people of the back country to escape to the cities. Palatial cities are now literally ringed with slums created by these refugees. Vast internal developments must take place for the reversal of that trend-the return of the people from the cities to the country with modern agriculture, small industries, healthy communities, and the like. In Bolivia one can get a glimmer of the things that can be done where the Civic Action Programme has resettled many of the occupants of the alitplano to the lowlands which are now pretty well freed of malaria and yellow fever. Vast planning is needed in this hemisphere if we are to avoid the disaster of what might be called the anarchy of the proletariat. The problem is increasingly important because of the birth rate. Due to public health, babies do not die and life is extended. As a result of all this, the standard of living in Latin America is probably lower than it was 30 to 50 years ago, in spite of all the advances that have been made.
Revolutions are needed-not necessarily in the sense of 1789--not in the sense of blood and thunder--but revolutions in the whole approach to the problem of modernizing and developing these ancient feudal countries. I emphasize the common market in this respect because trade and commerce are very important sinews of stable societies. Without them law may not have a very robust framework for operation. In terms of law and survival these regional common markets are critical.
We are, I think, closer to a break-through in these regards than ever before. Change is in the air the world over and the leaders more and more recognize its importance. Positive action by the leading powers can, I think, produce some near miracles. A Rule of Law requires a consensus and there are limits to which a consensus can go. There can be no consensus on a surrender of our liberties. There can be no consensus that would establish a Western military outpost in Viet Nam or a communist military outpost in Mexico. But there are several kinds that are immediately practical. First is a consensus which provides procedural devices for keeping conflicts from triggering the nuclear holocaust. Ground rules must be provided that bring an issue to the conference table rather than to the battlefield. We of the West have such a device in the labour-management field. We need a like remedy in the international field.
The years 1963 and 1964 produced four rather significant landmarks in this effort. The Treaty Power was used to produce the Nuclear Test Ban Agreement. The Executive Agreement was used to establish the so-called "hot-line" between the Kremlin and the White House. A consensus was reached between the United States and Soviet Russia on ways and means of preventing the spread of nuclear weapons to outer space. A cutback in the production of weapons-grade fissionable material was also reached.
There are other urgent needs for a consensus with the Soviet bloc. One is a non-proliferation treaty governing nuclear bombs, as proposed by Senator Robert F. Kennedy and Senator John O. Pastore. Another is the creation of nuclear free zones in the world. A third is the extension of the Test Ban Agreement to underground tests. A fourth is a cutback of all nuclear weapons.
A second kind of consensus that is needed is one among like-minded nations to settle all controversies by law such as is done between Canada and the United States. That must become the universal pattern. That means opening the doors of the International Court of Justice to its fullest extent. It means the use of conciliation, mediation, and arbitration, rather than arms, to settle difference even between the largest of the powers. A third kind of consensus that is needed is one that will bring into the U.N. all the countries of the world so that the institutions of the U.N. may be more readily available for settlement of all issues that threaten world peace.
What I have described would provide a bare skeleton of a Rule of Law. But if the nuclear holocaust is to be avoided, the pattern produced by even a ten-year regime under a Rule of Law would lead to the greatest sense of security mankind has known.
There are many cleavages in the world. The communist and democratic differences represent only part of them. There is feudalism that still fastens itself on large parts of Latin America. On all the continents there are underdeveloped nations seeking to become developed and some developed nations that would rather keep the backward ones as suppliers of raw materials. Overriding all these cleavages are racial differences. Common ground is, therefore, often difficult to find and maintain.
We often curse the sovereign state as the villain responsible for our woes. But the critical, initial problem is not whether U.N. decisions can be enforced. It is whether the conference table, rather than troop movements, is used. The Western world, Soviet Russia, and China, while enshrining different concepts of freedom and justice have gone far to organize men of infinite variety into co-operative activities. Apart from the weapon system, the world as it exists is probably better today by most standards than it was at any previous time. As the real inutility of the weapon system becomes apparent and its burdens persist, more rational means will be found to abandon it.
The world today is sharply divided into two opposed military camps, each believing it has the keys to happiness, each believing it is the harbinger of the future. Any accession of superior force by one nation immediately causes the opponent to acquire an equal or superior force. This has never produced peace-only war. The balance of power in the armament race is, therefore, never frozen. Neither polarized force can be destroyed without nuclear war. In practical reality the problem is not one of coexistence, but one of coevolution. Each side must have that chance or the people will perish under radio-active bombs.
Thanks of this meeting were expressed by R. Bredin Stapells, Q.C.