"The Dilemma to a Free People":
Justice Robert Jackson, Walter Bagehot,
and the Creation of a Conservative
Jurisprudence

PATRICK SCHMIDT

Even today, the U.S. Supreme Court's decision in Terminiello v. City of Chicago (1949) strikes students of constitutional law as a vexing factual situation. The problems the case posed for the High Court are all the more daunting considering its historical context, directly following the nation's confrontation with Nazism and standing on the cusp of the Cold War against Communism. In the broader view, most observers would locate the decision within the ascendance of liberal protection for free speech rights occurring over the second half of the twentieth century. But progressive accounts should not be allowed to mask the contemporary momentousness for the justices hearing the case. Indeed, in this constitutional conflict over the speech of a rabble-rousing priest was lodged a sober question about the polity's health at that time and the preferred response to the nation's need.	1
The Supreme Court decided to dispose of the case on the relatively minor issue of the trial judge's charge to the jury--without discussing the doctrinal and philosophical riddles involved in balancing free speech and public order. This suggests the majority's unwillingness or inability to step wholeheartedly into the fray. The choice also robbed Terminiello 's weight as legal precedent and a first-order landmark of political judgment. By advancing the conservative alternative to the majority's contrived result, however, the dissenting opinion of Justice Robert Jackson helped to expose the fundamental importance of the case and is still regarded as memorable in its own right. 1 It is an opinion that is problematic, however, both as a solution to the dilemma he identified and as a stepping stone in the life of Justice Jackson, whose thought appeared to evolve from his experience as a prosecutor in the Nuremberg war trials.	2
Drawing on archival records, this article reveals the underpinnings of Justice Robert Jackson's Terminiello dissent in the writings of Walter Bagehot, the noted British thinker of the nineteenth century. 2 While Terminiello itself is an interesting case for legal scholars and constitutional historians, Jackson's notes on Bagehot also provide a remarkable blueprint as to how a vocabulary and set of ideas enabled one Supreme Court justice to understand the problems of his era in terms of his particular experiences and intellectual commitments. Thus, the case suggests one way that jurists, when "thinking through" decisions, may seek out and be influenced by ideas and language from beyond the confines of the judicial process. Part One of this article presents an account of Terminiello and its resolution by the Court and reveals the perplexing issues it presented. Part Two provides a brief description of Bagehot's political thought, so that Part Three can expose and elaborate on the connection between his arguments and those of Jackson. Though Justice Jackson explicitly used Bagehot's writings as a guide to his opinion in Terminiello, I note the difficulties in Jackson's interpretation of Bagehot. In the conclusion, I consider the implications of this case for Justice Jackson and the judicial mind.	3
I. Terminiello v. Chicago: The Limits of Constitutional Logic
Right-wing extremists such as Gerald L. K. Smith reached the height of popularity during the Depression, and the emergence of a Soviet threat, as well as a loyal following of anti-Semitic Americans, enabled them to command large audiences through the 1940s. Opposition grew in both government and public quarters, but mass demonstrations and picketing against agitators only gave them greater publicity, a fact that opponents were slow to recognize.3 The clash outside Chicago's West End Women's Club on February 7, 1946, was typical of the social struggle. It also illustrated perfectly the constitutional quandaries of the "hecklers' veto." Gerald Smith's sympathizers had received postcard notifications of an evening rally featuring Father Arthur Terminiello, the proclaimed "Father Coughlin of the South," who would deliver an address titled, "Christ or Chaos--Christian Nationalism or World Communism--Which?" Recipients of the card were given a number of tickets for the event. Others knew of the occasion. On the night of the meeting a crowd of two hundred to five hundred assembled outside the hall, probably including members of the American Jewish Congress, labor unions, and the Communist Party. Bearing banners, they formed a picket line and attempted to block entry to the auditorium. Though unsuccessful in that goal, the crowd created havoc; despite police escorts, some followers of Smith had their clothes torn trying to enter the auditorium. Trial and media accounts of the rally vary, but the violence grew as the meeting began inside the auditorium. The surging crowd partially forced open the auditorium door. Twenty-eight windows were broken, forty boys rushed the police and knocked them down, ice picks and bricks were thrown at the building and the police, numerous injuries were reported, and nineteen people were arrested.4	4
The riot could be heard outside as Terminiello took the stage to describe a conspiratorial threat to Christian America from Russia, Communism, the New Deal, Eleanor Roosevelt, and Zionism. Taken as a whole, his controversial message was rambling, though not without vitriolic moments. The transcript (excerpted at length in Justice Jackson's dissent) suggests that Terminiello extemporized parts, particularly when discussing the protest outside, and at one moment when a rock came through a window. Terminiello directed those remarks to "that howling mob outside" and exclaimed his "contempt. . . for the slimy scum" that had slipped into the auditorium. No consensus exists as to the reaction of the audience. At trial, some witnesses testified that the audience was quite agitated, while others reported relatively little response. (By reports, the audience included many elderly persons.) The audience cheered and some people reportedly reacted angrily and shouted "Kill the Jews" and "Jews, niggers and Catholics would have to be gotten rid of." As the violence continued after the meeting, Ira J. Latimer, head of the Chicago Civil Liberties Committee (which the media labeled a Communist front) met a municipal judge who had attended because he was "curious." Disappointed by the ineffective efforts by police to control the riot, they walked to the local police station, met another judge, found a clerk and bailiff, and at 11:30 p.m. issued warrants for the arrest of Terminiello and two meeting sponsors. They were charged with "creating unrest" under the city law reading: "All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to cause a breach of the peace. . . shall be deemed guilty of disorderly conduct. . . ."5 In what was reportedly one of the longest jury trials of its time, Father Terminiello was found guilty and fined one hundred dollars.	5
The case rose through two intermediate courts of appeal to the U.S. Supreme Court. Briefs on behalf of Terminiello condensed the case to three issues: the conviction violated his right to free speech and assembly because, without evidence that his speech had affected the protesters, the prosecution must have involved a subjective test of content; the law was effectively a prior restraint on future meetings and speeches; and, similar to the first argument, there was no "clear and present danger" caused by his speech. Lawyers for the city made one claim in response: there is no constitutional guarantee for speech that has a tendency to breach the peace. They maintained that Terminiello's utterances, such as "scum" and "communistic Jews," were "fighting words" that, by their very articulation, "inflict injury and tend to incite an immediate breach of the peace."6 The American Civil Liberties Union joined Terminiello's cause as amicus curiae, citing law professor Zechariah Chafee for the notion that the government has an affirmative duty to protect a speaker who is threatened by mob rule. The American Jewish Congress filed as amicus curiae in opposition to argue that, in addition to Terminiello's incitement of the crowd, the use of the words "slimy scum" to address those who had gained access to the assembly was sufficient for conviction.7	6
The arguments presented to the Court were framed by a decades-long battle over the limits to government regulation of free speech. Two doctrinal currents flowed through the justices' discussion and resolution of the case. The first rose out of Chaplinsky v. New Hampshire (1942), in which the Supreme Court advanced a two-tiered approach to speech whereby some categories of speech would be unprotected per se. This was particularly relevant to Terminiello because Chaplinsky established the class of "fighting words," as used by the City of Chicago in their briefs. The second strain, the older "clear and present danger" test, offered a framework for balancing the government's interest in order and self-preservation against freedom of expression. As expounded by Justice Oliver Wendell Holmes in Schenck v. U.S. (1919), a court must ask "whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress [or the State or City] has a right to prevent." 8 Subsequent landmark decisions not only extended First Amendment guarantees to the states and municipalities but stiffened the standards of the test as well. Yet sharp disagreements about the meaning and limits of the test remained uncomfortably close to the surface.	7
The justices met in conference following oral arguments on February 1, 1949. We have a partial record of their discussion in the form of notes made by some of the justices. The initial vote produced a five-to-four majority sustaining Terminiello's conviction, a majority that included Justice William O. Douglas, now remembered as one of the Court's great liberals. Justice Harold Burton's copious notes recorded Douglas's initial reaction in this way: "inclined to affirm. . . in the setting of the speech it was close to shouting 'fire ' in the theatre. . . A match in a forest. . . speech plus." 9 The invocation of "shouting fire in the theatre" recalled Justice Holmes's analogy from Schenck, in which Holmes first articulated the clear and present danger standard while nevertheless sustaining a criminal conviction for publication of anti-conscription literature. Justice Frank Murphy similarly recorded Douglas's view that Terminiello's speech, if not actually action, was clear provocation. Murphy noted Douglas's comments as: "I affirm. The setting is throwing a lighted match in an explosive situation." 10 Between the February 1949 vote on the merits and final vote in May 1949, Justice Douglas changed his mind, and thus the result, and began work on a majority opinion overturning Terminiello's conviction. Douglas's colleagues knew well his tendency to switch his vote, 11 though we do not know what triggered this change of heart.	8
But we do know how he justified the change. Even at the first conference the justices discussed the trial judge's charge to the jury, which defined "breach of the peace" as any misbehavior that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or. . . molests the inhabitants in the enjoyment of peace and quiet by arousing alarm." A majority may have agreed that this was unconstitutionally broad, but the petitioner did not make this argument in his appeal, and the lawyers may have declined to make that argument when questioned at oral argument.12 Without the issue before the Court, and without the benefit of adversarial arguments on the issue, some justices may have felt obliged to avoid exercising review. For others--including Douglas--the cause of substantive justice overwhelmed procedural niceties. Justice Douglas homed in on the charge's overbreadth, and his most poetic language concerned the general importance of free speech. Remarkable in light of his recent conversion in the case, he famously penned, a "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea."13 Justice Douglas declined to rule whether or not Terminiello's epithets were "fighting words." It was enough to know that the jury may have convicted him for merely "inviting dispute" through his speech. Seizing the moment, Douglas sidestepped the concrete problems facing local authorities and the opportunity to advance libertarian free-speech principles on which future courts could build. This was a minimalist opinion and, despite its eloquence, was barely a point worth making, given the difficulty of the broader issues that Justice Jackson and later commentators would expose.14	9
Although Douglas was willing to affirm the conviction only briefly, Justice Felix Frankfurter harbored no doubts, as Justice Murphy recorded his comments: "To say that a state cannot say that this kind of speech cannot be made--well that is the limit. 3 Cts [trial court and two Illinois courts of appeal] stood together in support of this--Affirm because to do otherwise is do anything to incite riot."15 Justice Burton's notes relate Frankfurter's warning about the procedural issue, as well: "To note as error something not excepted to. . . and dismissed at trial would be an extreme error." The Court "should not note an error that wasn't ever raised." Even before Douglas defected, the coalition to sustain the conviction was not strong. Chief Justice Fred Vinson did not view the substantive question as strongly as Frankfurter. By the accounts of both Burton and Murphy, Vinson sustained the conviction only on the basis of the procedural issue. "If the charge was here--would reverse--but the charge is not here," Justice Burton noted him as saying.16 Justice Murphy recorded the chief justice's desire to dismiss the case as improvidently granted.17 Vinson earlier had voted (with Burton) to deny certiorari and he based his dissent on the procedural issue, without agreeing with dissents by Justices Frankfurter, Jackson, and Burton.	10
It was an indecisive Court. Justice Stanley Reed may have captured the turmoil when he described his decision to reverse the conviction. As recorded by Justice Murphy, Reed said, "I am at sea. No objection or exception. . . below on charge. But it is [a] criminal case with heat to it. The record is unsatisfactory. This was disorderly conduct. If we come to Free Speech he said nothing that led to incite and I would reverse."18 His imagery captures succinctly the multiple issues and distinctions on which rational minds could disagree: a problematic record, a distasteful petitioner, a tenuous speech-riot connection, and the imperatives of the First Amendment. As intriguing as these issues are, if a majority had remained to sustain the conviction because of the procedural issues, the case might well be forgotten. Yet among the dissenters, there was one who could not resist the substantive questions.	11
Justice Robert Jackson's dissent differed from Douglas's opinion by most measures, including length, and is based on a traditional conservative idea: that liberty is not opposed to order, but requires it. But Jackson should not be pigeonholed too quickly as an unshakeable conservative. 19 After all, as solicitor general and attorney general he had ardently defended President Roosevelt's New Deal and "court packing" plan, once warning against pressures toward conservatism "which only the most alert Justices will sense and only the most hardy will overcome." 20 As a justice, he advanced sweeping expansions of national power to regulate the economy and, using language as eloquent as Douglas's Terminiello dicta, he pioneered strict "clear and present danger" standards for freedom of worship in order to repulse a compulsory flag salute and pledge targeted at Jehovah's Witnesses. 21 That background seems far distant from this impassioned dissent, which a contemporary critic called "a lengthy conglomeration of good and bad law; of garbled history; of bad politics; and above all, most unusually vehement." 22 Some commentators viewed his Terminiello opinion as a milestone marking the profound changes wrought by his experience as prosecutor at the Nuremberg trials. 23 By these accounts and Jackson's own reflections, the lessons he drew from Nuremberg included learning how well-organized extremist groups can manipulate politics and public opinion to secure power and that nations must fight to maintain the conditions essential for freedom. Alternatively, Terminiello may simply reflect strains of pragmatism long present in Jackson's thought. 24 However consistent his jurisprudence may appear over time, in the turbulent currents of the postwar era he appeared to be searching for new foundations to help him come to terms with his Nuremberg experience and the nation's problems in a dark hour.	12
Jackson's attention to the context of Terminiello's speech dominates the dissent, overshadowing his brief discussion of the Court's free speech doctrine. From the start, his focus was on the specific needs of local police and tribunals. "The local court that tried Terminiello was not indulging in theory. It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two."25 A long recital of the facts, including Terminiello's trial testimony, helped him establish the setting. The dissenter repeated long excerpts from Terminiello's speech, as if the words would justify their own repression. Whereas the majority made the trial judge's charge to the jury appear as an affront to American liberty, Jackson thought it merely stated "in effect, that if this particular speech added fuel to the situation already so inflamed as to threaten to get beyond police control, it could be punished as inducing a breach of peace."	13
The entangled legal and factual problems suggest why both he and Douglas avoided probing the doctrinal issues rigorously. The central legal problem was that the appeal arose exclusively on the fighting words issue but was decided under the clear and present danger test--grounds the justices themselves injected without oral argument or prior consideration by courts below and that were expressly disclaimed by defendant's counsel. Douglas did not specify the legal standards of the clear and present danger test or apply them to the particular facts. The central factual problem was the presence of two "audiences": the sympathetic crowd inside and the unsympathetic crowd outside. Moreover, the most immediate and obvious harm to society, a riot in the street outside, apparently bore little connection to anything Father Terminiello uttered that night. Jackson's reporting of the event shows that the priest inherited a situation in which violence was well under way outside the hall. Bricks and stones had already cascaded through the windows before the orator rose that night. Facing these complications, Jackson concluded that Terminiello's conviction and $100 fine passed constitutional muster under either legal standard, without specifying which one he preferred. Thus, as the noted legal scholar Harry Kalven concluded: "Although [Jackson] makes it abundantly clear that on these facts he would permit the police to arrest the speaker, he never quite tells us what the correct rule or principle should be."26	14
Jackson's first doctrinal gesture was to the clear and present danger test. In the continuing struggle over the meaning of this test, a major constitutional issue of the era was whether officials could punish speech that merely had a "bad tendency" toward illegal action or only utterance that threatened grave harm without time for counter-speech.27 Although Terminiello's case was a significant extension of the First Amendment to political speech, both Douglas and Jackson left the running battle over standards implicit here. As doctrine stood in 1949, it was unnecessary for Jackson to show that Terminiello intended to incite the crowd, only that he had knowingly given a provocative speech in an inflamed environment. Still, some causal connection between speech and action was essential.	15
A vexing factor was that Father Terminiello spoke with a forked tongue. A hand-edited transcript of the speech in Jackson's papers shows that the justice struggled with the fact that the priest alternated between provocative attacks on "Communistic Zionist Jews" and pacific pieties suggesting Christ's message of turning the other cheek. For example, Jackson repeated Terminiello's tirade against the protesters outside: "Those mobs are chanting; that is the caveman's chant. They were trained to do it. They were training this afternoon. They are being led; there will be violence. " 28 Yet in his next breath he warned: "That is why I say to you, men, don't do it. Walk out of here dignified. The police will protect you. Put the women on the inside, where there will be no hurt to them. Just walk; don't stop to argue." Shortly after, the rhythm resumed (and Jackson emphasized): "We are not going to be tolerant any longer. We are strong enough. We are not going to be tolerant of their smears any longer. We are going to stand up and dare them to smear us." 29 Then again, Father Terminiello next called for unity among Christians, courage, and loyalty by all believers in God, ending with the mandate to "go out and found in this nation a Christian new order for America." Taken as a whole, some measure of doubt surrounded Terminiello's culpability, at least for the immediate riot. The full context, however, convinced Justice Jackson that the danger was "clear, present and immediate."	16
Similarly, Jackson supported the conviction under the "fighting words" doctrine of Chaplinsky. He compared Chaplinsky's epithets to a policeman ("racketeer" and "damned fascist") with Terminiello's ("slimy scum," "snakes," and "bedbugs"), concluding that in a context of violence the priest's invective was worse. Jackson also quoted from Cantwell v. Connecticut (1940) for support, but this still left unclear whether the invectives there were offensive because they "exhort others to physical attack upon those belonging to another sect" 30 or that they were "hurled at an already inflamed mob of his adversaries." The evidence that listeners yelled "kill the Jews" and "dirty kikes" in response to the anti-Semitic stories met the former condition but not the latter. Protesters outside, unable to hear the speech, could not have been provoked by it. Jackson attempted to link the two by noting that some opponents had slipped into the hall, but police removal of one member of the audience for calling Terminiello a "God damned liar" suggests that police had control inside the auditorium.	17
Whatever his preferences as to rival legal doctrines, Jackson resolved them by elevating the stakes to enduring issues of liberty and authority and the Supreme Court's role in resolving the clash. Although this local riot was a matter of serious concern, he saw it as an opening wedge to a greater evil. Aggravating Terminiello's specific provocations and ill-tempered words was his ideological posturing amid a social situation of great tension. Terminiello was a fascist ideologue doing battle with communists for control of the moderate majority. The case, Jackson argued, "was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe. This technique appeals not to reason but to fears and mob spirit; each is a show of force designed to bully adversaries and to overawe the indifferent." The war crimes prosecutor then quoted from Hitler's Mein Kampf to emphasize the means used by extremist groups of all stripes to entice otherwise unenthusiastic moderates into radicalism. The greatest danger was neither fighting nor threats of immediate violence but ideas that threatened to polarize debate, stifle free-ranging discussion, and create a polity unable to moderate itself.	18
Jackson emphasized his fear of the ideological conversion of seemingly helpless moderates, paralyzing the power of local government and bullying public authority into impotence. He wrote:	19
The present obstacle to mastery of the streets by either radical or reactionary mob movements is not the opposing minority. It is the authority of local governments which represent the free choice of democratic and law-abiding elements, of all shades of opinion but who, whatever their differences, submit to free elections which register the results of their free discussion.. . . Violent and noisy shows of strength discourage participation of moderates in discussions so fraught with violence and real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent and begin to think that the time has come when they must choose sides in a false and terrible dilemma such as was posed as being at hand by the call for the Terminiello meeting: "Christian Nationalism or World Communism--Which?"31
Jackson stressed the evolution of a democratic state and the forces that could transform it from an open, tolerant, community of exchange into an intolerant, savage, narrowly focused society. Terminiello's speech was punished legitimately as a clear and present danger, not because of its ideology or its "untruth." Nor could public officials "discriminate against him or the faction he represents." Choosing sides, Jackson acknowledged, would have transgressed the Constitution. Nonetheless, by defending repression based on the content of ideas in this context, he reached the dilemma posed by subversive advocacy in a free society. "Invocation of constitutional liberties as part of the strategy for overthrowing them presents a dilemma to a free people which may not be soluble by constitutional logic alone."	20
Having raised an enduring philosophical issue, Jackson condemned Douglas's dogmatic approach out of very practical concerns for the balance between national power and local needs. The majority's decision to invalidate the local court's decision touched on continuing debates over the court's ability to balance those interests, including: the incorporation of the Bill of Rights against state and local action, the expansion of the Fourteenth Amendment's Due Process clause, and the lack of affirmative judicial power to protect free speech. Prior cases had recognized the dependence of First Amendment privileges on order, but "these wholesome principles are abandoned today and in their place is substituted a dogma of absolute freedom for irresponsible and provocative utterance which almost completely sterilizes the power of local authorities to keep the peace as against this kind of tactics." City and state authorities who address problems "in light of local conditions" are best placed to judge when "the right of society to freedom from probable violence should prevail over the right of an individual to defy opposing opinion." Hecklers must not be able to veto any lawful speech by threatening violence, but cities need not endure speakers who disregard the context in which they speak. Further, "whether one may be the cause of mob violence by his own personification or advocacy of ideas which a crowd already fears and hates, is not solved merely by going through a transcript of the speech to pick out 'fighting words,'" Jackson wrote. "True judgment will be aided by observation of the individual defendant, as was possible for this jury and trial court but impossible for us." Whatever the apparent risk caused by Terminiello's speech in retrospect, the Supreme Court should be slow to intrude upon local decisions.	21
A classic dilemma--like the problem of extremist groups in a democracy--earns its "classic" label because all solutions are in some respect partial. As the dissenting justices highlighted, Justice Douglas's resolution manipulated the issues to advance a cause and ignored the difficult realities faced on the street. Jackson's reply, which also fashioned the facts to suit, would have sharply restrained the Court by giving great weight to the need for order. Though developments in subsequent decades tilted the law away from Jackson's deferential approach, in 1949 his was hardly a solo voice in drawing attention to the danger posed by extremist advocacy. Calls were made from liberal and moderate corners, as well as conservative ones. The same year, Arthur Schlesinger, Jr., wrote of the need to reclaim the middle way--the "vital center"--in order to preserve free society from both communism and totalitarianism. 32 At a time when Europe was attempting to escape from the politics of extremism and America was looking ahead to a long war against communism, Jackson was reflecting the wider search for a practical resolution to the dilemma. So enduring was the problem that Jackson recognized in Terminiello --a problem already recognized by Aristotle--that he might have found support in many places.	22
II. Walter Bagehot and the Rule of Law
In order to understand Jackson's practical solution to the dilemma, one cannot ignore his background as a Nuremberg prosecutor. While that experience pushed Jackson to consider new issues about democratic nations, we need to explore further to identify how he would adapt the European experience to American contexts. The road map he found appears to have helped him reflect on his experience and craft a set of partial prescriptions for society. Importantly, it was not Bagehot's specific views on free speech that are central to this account. Those views were only briefly sketched in a minor essay, and and there is no evidence that Jackson read it. Rather, Jackson's opinion closely paralleled the analytical approach and conclusions contained in Bagehot's longer effort in political theory. In this section, a brief outline of Bagehot's contribution to political theory lays the groundwork for and suggests connections between Jackson and Bagehot that are detailed in Part Three.	23
The easy prose and incisive thought of Walter Bagehot contrast sharply with the dense philosophy of his nineteenth-century contemporaries. Bagehot wrote widely in matters of economics, religion, and society and is memorialized by a weekly essay in The Economist magazine, which he edited. His political thought may be his lasting contribution, however, and his piercing, critical stance ensures that he cannot be easily labeled. His most general theories of politics are found in his collection of essays, Physics and Politics, originally printed in the Fortnightly Review between 1867 and 1872 before being published together in 1872. Not about physics per se, Bagehot's goal was to think about society with the same rigor as scientists examining the physical world, an aspiration that reveals his faith in science, his debt to Darwin, and the Victorian penchant for historical examination.	24
In Physics and Politics, Bagehot asked why some nations rise and others fall. He proposed national "character" as the underlying cause. "Within every particular nation the type or types of character then and there most attractive tend to prevail," he wrote, "and the most attractive, though with exceptions, is what we call the best character." 33 The evolution of simple societies into more advanced nations--from the "Age of Conflict" to the "Age of Discussion"--was traced to the development of national character. Human nature in savage societies is constantly irritable and active, Bagehot claimed, prone to violence and tending toward anarchy. Because tribes were engaged in a constant battle with disorder, the first task at hand was merely to build a nation. Bagehot identified the central expression of these nations' character as the rule of law. The rule of law meant no more than the power to secure obedience and bind people together. "What this rule is does not matter so much. A good rule is better than a bad one, but any rule is better than none," he argued. "How to get obedience of men is the hard problem; what you do with that obedience is less critical." 34 A static national character forms in the same way that individuals gain character: involuntary responses to social forces. Indeed, Bagehot's mild cynicism shines in his notion that the strongest part of human nature is the propensity of people to imitate what is immediately before them. Beliefs are accepted quickly; it requires more effort to suspend belief. The simple savage mind is especially prone to being conditioned by preexisting forces and the rule of the crowd. Thus, despotism and monarchy are leading forms of government, though these are not necessarily bad, Bagehot noted: "Great models for good and evil sometimes appear among men, who follow them either to improvement or degradation." 35 Indeed, the inherent tendency for people to be controlled allows for the establishment of government among unorganized masses.	25
Imitation is a conservative force, and the aggregated force of custom is the form of law that dominated early society. Intellectual consistency is the hallmark of the stable society; nonconformity, the most proscribed vice. The rule of law (read, custom) was conservative and allowed early societies to consolidate the gains made in the battle with anarchy. After gaining a sense of law, however, custom arrests development by imposing a law of status that steals from humans a desire to challenge their position in society. The monotony created by harsh sanctions and despotic government begins to hinder further political evolution. Despite custom's stultifying side effects, however, its quick removal from established nations can be devastating. Bagehot's stay in Napoleonic France proved to him that irritability in humans is unavoidable, and the removal of repression results in instability. Bagehot was concerned, then, with identifying how nations can foster a character that respects order by choice instead of custom. Tolerance is a precondition, it appears, because the Age of Discussion breaks down custom. To let oneself be guided by discussion of abstract ideas is to admit that there is no longer sacred authority and rules. A person must concede that the ideas of others may have merit even when opposite to one's own. The subjects open to debate in society must begin small and develop slowly; discussion helps to acclimate citizens to tolerance.	26
At the peak of evolution, a polity of discussion is the superior form of government. Why? Bagehot's politics were conservative, but he was a member of the Liberal party; he was interested in reform, but opposed radicalism. Most of all, he despised enthusiasm. Politics "left of center" progresses by adopting new programs that have been adequately tested and approved by the common people, while the extreme left introduces innovations without allowing them to filter through. Government by discussion strengthens "animated moderation" in citizens, restrains the zeal of activists, and restrains the "idiosyncratic mind" that is otherwise "violently disposed to extremes of opinion." Discussion demands that people ponder and consider, not decide and act. A commitment to deliberation is a bulwark against the instinct to activity. Bagehot was acutely aware of how difficult this was to achieve, not only in ancient societies, but "even in modern communities, where those [savage] propensities, too, have been weakened by ages of culture and repressed by ages of obedience, as soon as a vital topic for discussion is well started the keenest and most violent passions break forth."36	27
Bagehot's restrained but progressive moderation inspired his criticism of philosophy. Though abstract thought is an evolutionary advance, the human urge for incessant activity has resulted in the long systematization of all types of philosophy, most of which contradict each other enough to prevent any from being true. Bagehot praised the quality in a free people that tended away from philosophy: stupidity, the common sense that denied, or at least was highly doubtful of theoretical solutions. Practical problems required "bovine" answers from parliaments, such as those that the British Parliament could provide. The French, by contrast, tended to enthusiasm for supposedly fixed principles, though the excitement generated by these tended to harm civil liberties in the long run. Bagehot's approach to philosophy reflects his overall skeptical, even cynical ideas: that enthusiastic good intentions can rarely bring lasting progress, that human nature tends to the most banal, and that humans as political animals cannot avoid being herded by the shepherd that yells the loudest.	28
III. Jackson and Bagehot: Notes toward a Dissent
Justice Jackson's debt to Bagehot might have escaped all notice had he not left a testimonial trail in the form of early drafts of his opinion, especially his handwritten notes with the title scrawled at the top: "Ideas from Bagehot Physics & Politics Knopf New York 1948." 37 These notes offer rich insight into his Terminiello dissent because his summaries of Bagehot's ideas seem to have provoked broken thoughts about the case at hand, and then, as the notes continue, Jackson starts full sentences that form the basis of his opinion. Following the initial five pages, Jackson also left long passages of his handwritten draft, some pages of which have typed sections taped onto them. Jackson appears to have read Bagehot while thinking about Terminiello. Of course, there are important epistemological questions about the influence a book can have on its reader. As impressive as these notes are, Jackson's experience in postwar Europe undoubtedly shaped his beliefs much more fundamentally. Yet, a book can provide the language with which to articulate latent ideas; and more, it can suggest coherence and organization to unformed reflections and experiences.	29
The papers mention neither why Jackson started reading Bagehot (or rereading works he had read years earlier) nor what else he was reading at the time. But his first page of notes contains thoughts echoing Bagehot's essays, making clear that he was contemporaneously struggling with the case facts:	30
counter theory discussion--constant active conclusive often subjects on which opinion is optional and discussion admitted Law is more liberal than custom--custom more local impulse to action "walk into a well from looking at the stars" proverb Benefit world by relieving own feelings Government by popular discussion--parliamentary government exactly what do not want-- It fosters general intellectual tone--disposite to weight evidence One set of men persecuting another for opinion on subjects of which neither knew much atmosphere of intellectual inquiry violently disposed to extremes of opinion inquisitive originality quicken and enliven thought subject of discussion matter of principle Is root of change and progress discussion of subject presupposes free to choose in it no final authority settled it descent from sacred to profane [in margin] That is why intolerant of communism & fascism in discussion--settled will not have either Continuous free discussion great no subjects requires practice continuous tolerance38
If the similarities are not immediately apparent from the first page of notes, the proverb jotted down and later attributed to "common wisdom" makes explicit the flow of ideas between Bagehot and Jackson's work on the Terminiello opinion. Where Bagehot invoked it, the proverb praised modern science, nine-tenths of which "is the produce of men whom their contemporaries thought dreamers. . . who, as the proverb went, 'walked into a well from looking at the stars. . . .'" 39 Early in his dissent, Jackson adapted the aphorism to his own purpose of criticizing the philosophical dreaming of Douglas. "An old proverb warns us to take heed," Jackson warned in his opinion, "lest we 'walk into a well from looking at the stars.' To show why I think the Court is in danger of doing just that, I must bring these deliberations down to earth by a long recital of the facts." 40 This "old proverb" stirred Jackson's long-held pragmatism and so provided him with a natural segue into this case study of Bagehotian ideas.	31
The important task is to discern the less explicit debts that Jackson owed to Bagehot. By annotating Jackson's path through Physics and Politics, the first page of notes already establishes selected themes in Bagehot that he favored for his opinion, such as the importance of tolerance in free discussion. For Bagehot, consent to democratic rule demands acceptance of alternative ideas, as those ideas might be adopted by parliament over one's own preferences. For Jackson, in these notes, communists and fascists were inconsistent with the Age of Discussion per se, because individuals who advocate totalitarian ideologies have violated the fundamental premise that all participants must be tolerant of others' choices. He softened the approach in his opinion, allowing that the American system of laws protects peaceful advocacy in a polity of discussion, but worried that these mobs would transform discussion into a quasi-Nazi battle for "mastery of the streets." The United States had evolved considerably closer to an Age of Discussion, Jackson observed, for "religious, social and political topics that in other times or countries have not been open to lawful debate may be freely discussed here." 41 Yet, evolutionary progress can be lost if intemperate ideologues win converts and poison political dialogue. The New Deal justice's defense of free discussion unencumbered by settled minds suggests a possible understanding of Jackson's political goals in which he attempted to foster the progress and change that Bagehot predicted for evolving systems. Bagehot might have been describing Terminiello's case when he wrote that, "discussion, to be successful, requires tolerance. It fails wherever. . . any one who hears anything which he dislikes tries to howl it down. If we know that a nation is capable of enduring continuous discussion, we know that it is capable of practising with equanimity continuous tolerance." 42 Jackson's approval of Bagehot is apparent in the causal connection he saw between Terminiello's advocacy and the health of the political community.	32
The key question is why, given the ability of discussion to transform societal attitudes, Jackson allowed repression by local officials as the proper approach. Why did Jackson dissent from Douglas's libertarian solution of open discussion and increased police protection? Jackson thought that in order to empower democracy, government needed to keep discussion robust. Jackson's further notes reflect the particular challenges posed by the heckler's veto.	33
Certain lack of logic that one who has right to speak can be stopped by enemies demonstration. Not every opposition thus can impair right. Disperse mob easily--not require use machine guns to protect Terminiello. Should hate to think only power negative to withdraw police and leave to battle. In this case organized riot. Evidence Term[iniello] offered to show it not admitted. For my part organized society represents middle way. Its police must protect agitators both wings. Society under law--and will support in reasonable restraint.43
Jackson's notations took on a different tone in his opinion. On the groundwork of "reasonable restraints" to protect agitators--and of an overriding concern with fascism and communism--Jackson made an extraordinary Bagehotian claim: that the requirement of promoting an Age of Discussion may be more demanding than the protections of free speech. He worried that, "the law is more tolerant of discussion than are most individuals or communities."	34
Law is so indifferent to subjects of talk that I think of none that it should close to discussion.. . . Because a subject is legally arguable, however, does not mean that public sentiment will be patient of its advocacy at all times and in all manners. So it happens that, while peaceful advocacy of communism or fascism is tolerated by the law, both of these doctrines arouse passionate reactions. A great number of people do not agree that introduction to America of communism or fascism is even debatable. Hence many speeches, such as that of Terminiello, may be legally permissible but may nevertheless in some surroundings, be a menace to peace and order.44
Thus, given the reality of intolerance and the threat this posed to democracy, Jackson was prepared to allow government power to create and maintain the conditions of future progress. Ultimately, it seems, Jackson did not believe that the United States had reached the full Age of Discussion that Bagehot had described nearly a century earlier. Instead, the nation was struggling to understand the requirements of tolerance. Until the time that the necessary degree of tolerance could be guaranteed, the "heckler's veto" would in fact constrain. Jackson's speculations on the evolution of tolerance might have been Bagehot's own musings, as Jackson continued in a similar style:	35
As people grow in capacity for civilization and liberty their tolerance will grow, and they will endure, if not welcome, discussion even on topics as to which they are committed. They regard convictions as tentative and know that time and events will make their own terms with theories, by whomever and by whatever majorities they are held, and many will be proved wrong. But on our way to this idealistic state of tolerance the police have to deal with men as they are. The crowd mind is never tolerant of any idea which does not conform to its herd opinion. It does not want a tolerant effort at meeting of minds.45
Most similar to Bagehot's own sentiments is a deeply pessimistic view of human nature, further manifested in Jackson's warning that "if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care."46	36
What Justice Jackson lacked (at least there is no evidence of it) was a conception of the degree of restraint required by municipal authorities in a federal system. Neither his notes nor his opinion signal much willingness to constrain local power against provocative speech. His carefully measured statements are defensive, justifying this particular exercise of power in the context of "narrowly defined" limitations for extraordinary types of speech and warning against controls on substance. His soup of conspiracy and mass behavior theories obfuscates ultimate thoughts he may have had on the importance of tolerance in practice. Nor is there any reference to Bagehot's longer statement on the subject written two years later.47 In that lecture, Bagehot emphasized that nearly absolute toleration is the only way to arrive at truth; limiting discussion limits the corrective process. Instead of concurring with Justice Douglas's prescription of more speech, Jackson latched onto a concern with the persuasive capacity of totalitarian ideas, an excessively pessimistic judgment that compelled a restriction of the First Amendment privilege. Tolerance could become a slippery slope, Jackson thought, causing society to regress. Even worse, tolerance might block permanently the development of society, because legal tolerance never removes the threat to individual minds posed by demagogues.	37
Of course, even if Jackson had read Bagehot's further statement on tolerance, those brief and abstract ideas would not have provided a fixed guidepost any more than the text of the Bill of Rights or the view of its Framers do. On the one hand, Bagehot argued for extending tolerance even to those who write against tolerance but, on the other hand, he allowed an exception for self-preservation, because "no government was bound to permit a controversy which would annihilate itself."48 Using Bagehot's ideas as fit his needs, here Jackson tipped the scale by the emphasis he placed on human nature and a perceived great battle of ideologies--startling notions in light of his pragmatic opposition to the broad theory offered by Douglas. To place a case in its context, the justices of the Supreme Court must place the context into the broader framework of foundational beliefs. Justice Jackson asserted that violent reactions in this context overwhelmed his preference for the inclusion of ideas in public debate. That protest is flawed, not only because of the problematic facts of this case, but also because his notes reveal his belief that extremist ideologues prey on moderates and threaten the Age of Discussion. Jackson was unable to mount a persuasive argument that the restrictions he upheld were content-neutral because content-neutrality, he believed, would have risked immoderate politics and a return to anarchy. An evolutionary account of the importance of free speech relies on the types of general propositions and philosophical foundations that he sought to avoid.	38
An evolutionary path that was constantly threatening to regress under the weight of our savage and violent human nature could not be the foundation of an open community, particularly in the presence of totalitarian ideologies using mobs. Jackson not only adopted Bagehot's robe of moderate politics; he bore Bagehot's flame of cynical resignation regarding the masses of modern society. The rule of law serves as control so that the net liberty may be increased as society rises from anarchy. Jackson voted to manage liberty so that it might prosper amid order, a paradoxical result captured in his famous closing sentences: "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."49	39
IV. A Judge in an Age of Transition
Terminiello was an unquestionably important judgment when handed down in 1949, although constitutional law textbooks today discuss it only as a historical footnote or, perhaps, as a case study in constitutional dilemmas. Yet, Justice Jackson's dissent remains as a remarkable expression of a political philosophy dramatically impressed by a first-hand glimpse into Nazi terror and the continuing turmoil in postwar Europe. As simplifying devices of judicial biography, his Nuremberg tenure and the case's Cold War context loom large. Jackson was not alone in sensing dangers across the waters, however, nor is it clear that governmental restraint of speech was the inevitable solution for the problems he described. It could be argued that Justice Douglas's more philosophical solution of allowing more speech, not less--so that speech could counter speech--is the better prescription against totalitarianism in the American context. Thus, more than the specter of totalitarianism and Jackson's life experiences are necessary to understand the style and reasoning of his Terminiello opinion.	40
The political tides of the era understandably left the justices of the Supreme Court in need of moorings, just as other tumultuous eras of American history have encouraged appeals by legal thinkers to new ideas, language, aesthetic forms, and information. In some periods, the appropriation of concepts and forms may reflect shared commitments and ideals. For instance, lawyers in Revolutionary American viewed Cicero as a role model.50 Compared to the mutually understood and explicit classical references in Revolutionary lawyering, Jackson's personal and unattributed use of Bagehot suggests a form of intellectual influence more rarely exposed to view. Experiences had left an indelible mark on Jackson's intellect, but he needed further tools in order to turn them into words. Jackson's notes show how he used Bagehot to guide his evolving intellectual commitments, particularly by articulating the case's problem in terms suggested by Bagehot and by taking inspiration in Bagehot's analytical conclusions. In all eras, when legal minds appear to have reached out to other thinkers and authors, or appear to have been influenced by wider forces, the subtlety and playfulness of intellectual engagement must be heeded. As exemplified by Jackson's borrowing from Bagehot, the legal mind receives ideas selectively, processes them interactively, and uses them creatively.	41
Before joining the Court, Robert Jackson wrote about the importance of engaging new ideas when faced with difficult times. He criticized the judicial process for encouraging conservativeness by putting blinders on judges who already "have little time for supplementary reading." The process, he thought, "is utterly inadequate to educating an uninformed judge or to overcome old convictions or predilections, or to win a conversion to a new viewpoint." 51 Since Jackson plausibly could have avoided the fundamental problem in Terminiello, as Justices Vinson and Frankfurter had done in dissent and Justice Douglas had done for the majority, his dissent appears to have been an outlet for wisdom received through experience and molded through his own supplementary reading. His approach showed a continuity between Jackson's pre-Nuremberg writing and his postwar turn to Walter Bagehot: where constitutional logic failed, new avenues of insight would guide.	42
Patrick Schmidt is assistant professor of political science at Southern Methodist University and recently the John Adams Research Fellow, Centre for Socio-Legal Studies and Nuffield College, University of Oxford. He thanks J. Woodford Howard, Jr., David Danelski, David Yalof, Joel Grossman, Richard Flathman, Paul Martin, and the participants of a panel at the 1997 meeting of the New York State Political Science Association, where an earlier version of this article was presented. He also thanks the editor and anonymous reviewers for invaluable guidance. A debt is especially owed to the late Paul L. Murphy, to whom this article is dedicated. Notes 1 Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (New York: Harper and Row, 1988), 81. 2 This account draws on the papers of seven of the nine justices participating in this case. The Library of Congress Manuscript Division, Washington, D.C., maintains the papers of Justices Douglas, Rutledge, Black, Burton, and Jackson, plus a microfilm copy of Justice Frankfurter's papers (maintained at Harvard University). Justice Murphy's papers are at the Library of Congress and the Bentley Historical Collection of the University of Michigan. The two unexamined collections are those of Chief Justice Vinson and Justice Reed, both kept at the University of Kentucky. Early versions of Chief Vinson's narrow dissent were circulated among the justices and found in other collections. 3 Glen Jeansonne, Gerald L. K. Smith: Minister of Hate (New Haven: Yale University Press, 1988), 206-7. 4 Accounts of the evening provided to the court differed. Some reported a crowd of 1,500 persons assembled outside the hall. In addition to the facts recited by the U.S. Supreme Court, see the decisions of the Illinois Supreme Court, 400 Ill. 23, at 25, 79 N.E.2d 39 (1948); the appellate court for the Illinois third district, 332 Ill. App. 17, 26-27 (1947); "Clashes Mark Gerald Smith Rally; Seize 19," Chicago Tribune, Feb. 8, 1946, 10; and "Gerald Smith and 2 Others Post Bonds in Clash at Rally," Chicago Tribune, Feb. 9, 1946, 9. 5 Municipal Code of Chicago, sec. 193-1 (1939), quoted in Terminiello v. City of Chicago, 337 U.S. 1, 2 (1949), n. 1. 6 Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). 7 See Landmark Briefs of the Supreme Court of the United States, vol. 46 (Arlington: University Publications of America, 1975). 8 249 U.S. 47 at 52, quoted in Terminiello v. City of Chicago, 26, with brackets supplied by Justice Jackson. 9 Papers of Harold H. Burton, Manuscript Division, Library of Congress, Box 190, Case No. 272, Binder: "Argued Cases 1948 Term, No. 250 to No. 429," emphasis in original. 10 Papers of Frank Murphy, Bentley Historical Collections, University of Michigan, Box 74, Case No. 272, Folder 7S-31: "Supreme Court Case Files, 1948 Term, Misc." 11 Philip J. Cooper, Battles on the Bench: Conflict inside the Supreme Court (Lawrence: University Press of Kansas, 1995), 100. 12 The incident was a stepping stone in the debate over recording oral arguments. Justice Black sent a memorandum to the conference on April 8, 1949, questioning what was said at oral arguments. He wrote, "I did not understand the counsel for Terminiello either explicitly disclaimed or specifically waived any objection to that part of the court's charge made the basis of Justice Douglas's opinion. What I understood counsel to say was that he admitted that he had not excepted separately to this particular part of the court's charge. This case therefore again raises the question of whether we should have a stenographic report made of oral arguments." Papers of William O. Douglas, Manuscript Division, Library of Congress, Box 186, October Term 1948, Case No. 272. 13 Terminiello v. City of Chicago, 4. 14 Kalven, A Worthy Tradition, 83. 15 Murphy papers, Box 74, Case No. 272. 16 Burton papers, Box 190, Case No. 272. 17 Murphy papers, Box 74, Case No. 272. 18 Ibid. 19 "A Hard Man to Pigeonhole," Time (October 18, 1954), 24. 20 Robert H. Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics (New York: A. A. Knopf, 1941), vii. 21 See Wickard v. Filburn, 317 U.S. 111 (1942) and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). 22 Samuel Rosenwein, "The Supreme Court and Freedom of Speech--Terminiello v. City of Chicago, " Lawyers Guild Review 9(2) (1949): 70, 75. 23 Louis L. Jaffe, "Mr. Justice Jackson," Harvard Law Review 68 (1955): 982; Paul A. Freund, "Individual and Commonwealth in the Thought of Mr. Justice Jackson," Stanford Law Review 8 (1955): 17-19; Paul A. Freund, "Mr. Justice Jackson and Individual Rights," in Mr. Justice Jackson: Four Lectures in His Honor (New York: Columbia University Press, 1969), 29-56. 24 Jeffrey D. Hockett, "Justice Robert H. Jackson, the Supreme Court, and the Nuremberg Trial," in The Supreme Court Review, ed. Gerald Casper, Dennis J. Hutchinson, and David A. Strauss (Chicago: University of Chicago Press, 1990), 257-99; Jeffrey D. Hockett, New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson (Lanham: Rowman and Littlefield, 1996). 25 Terminiello v. City of Chicago, 13 (J. Jackson, dissenting). Except as noted, subsequent quotations in this section are from Jackson's dissent and the excerpts of Terminiello's speech included in it. 26 Kalven, A Worthy Tradition, 83. 27 See Gitlow v. New York, 268 U.S. 652 (1925) and Whitney v. California, 274 U.S. 357 at 372 (1927) (Justices Brandeis and Holmes, concurring). 28 Justice Jackson added the emphasis to the text of the speech. 29 In the next sentence--which Jackson did not include in his opinion--Terminiello changes the message: "We are not going to be tolerant any longer of their pagan eye for an eye philosophy," implying that Christians should not fight back. Jackson retained a marked-up copy of the speech from the trial record. "Testimony of Mabel Hall and Plaintiff's Exhibit 3," Papers of Robert H. Jackson, Manuscript Division, Library of Congress, Box 167, October Term 1950, Case No. 93, Feiner v. New York. At the time of this author's research, some materials pertaining to Terminiello v. City of Chicago were found with materials related to Feiner v. New York, 340 U.S. 315 (1951), a case involving similar issues. 30 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940), as quoted by Jackson. 31 Jackson here refers to the advertized title of the meeting. 32 Arthur M. Schlesinger, Jr., The Vital Center: The Politics of Freedom (Boston: Houghton Mifflin, 1949). See also, Benjamin Lippincott, Democracy's Dilemma: The Totalitarian Party in a Free Society (New York: The Ronald Press, 1965). 33 Walter Bagehot, Physics and Politics, in The Collected Works of Walter Bagehot, ed. Norman St. John-Stevas, (London: The Economist, [1872] 1974), 7: 42. 34 Ibid., 31. 35 Ibid., 73. 36 Ibid., 120. 37 Jackson Papers, Box 155, October Term 1948, Case No. 272, Terminiello v. City of Chicago. 38 Jackson Papers, Box 155, Case No. 272. 39 Bagehot, Physics and Politics, 123. 40 Terminiello v. City of Chicago, 14. 41 Ibid., 32-33. 42 Bagehot, Physics and Politics, 110. 43 Jackson Papers, Box 155, Case No. 272. 44 Terminiello v. City of Chicago, 32-33. 45 Ibid., 33. 46 Ibid., 36. 47 Bagehot, "The Metaphysical Basis of Toleration," in The Collected Works of Walter Bagehot, ed. Norman St. John-Stevas (London: The Economist, [1874] 1986), 14: 57-74. 48 Norman St. John-Stevas, Walter Bagehot: A Study of His Life and Thought Together with a Selection from His Political Writings (Bloomington: Indiana University Press, 1959), 59. 49 Terminiello v. City of Chicago, 33. Jackson owed a debt to another justice for part of this famous dicta. In his handwritten drafts, Jackson had the core idea that it would be "ignoble and disastrous improvidently to throw away those defenses which bulwark liberty." An intervening memo in his papers from an unnamed justice--possibly Justice Burton, who joined Jackson's opinion--clearly guided Jackson's choice of language. The second justice wrote:In the first draft I saw you had a statement somewhere that the state courts and law officers did not face a theory but a situation. I thought that could be elaborated on in a paragraph which might also provide the opportunity to show up the 'order vs. liberty' assumption which is shot through most of Douglas's work. The following is in no doubt inadequate but indicates the thought:This case affords a typical example of the difference between this Court's approach to many cases and that taken by state courts and law officers. That difference is the difference between theory and practice, between fiction and fact. This court apparently views order as the death knell of liberty--while state courts know that without order there is no liberty. The choice is not between order and liberty--it is between order with liberty, and anarchy without it. Liberty can live with law--but not without it; it cannot co-exist with anarchy. The theory and promise of anarchy is complete liberty of all from every restraint--in practice it provides liberty for none but the lawless. The fiction of anarchy is that it means freedom from compulsion--the fact is that it destroys freedom by compulsion. The weak have no rights facing the strong; the minority has no rights the majority cannot abolish, by force or otherwise; the individual is destroyed by the mob, or compelled to join it. When the Court strikes down order as a barrier to freedom, it looses forces which bid fair to destroy both. 50 Stephen Botein, "Cicero as Role Model for Early American Lawyers: A Case Study in Classical 'Influence,'" Classical Journal 73 (1978): 313-21. 51 Jackson, The Struggle for Judicial Supremacy, 301.

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