Educator Attacks Chafee-Sutherland Doctrine

One year ago, two noted Law School professor sent a letter to the CRIMSON which exerted powerful impact on the thinking of American educators regarding testimony before Congressional committees investigating Communism.

In the now-famous Chafee-Sutherland letter, the authors urged reluctant witnesses to cooperate completely with Congressional committees, even when such cooperation was distasteful, as a matter of legal and ethical principle. They decried stubborn use of the Fifth Amendment as an excuse for silence.

An internationally respected educator for a half century, Alexander Meiklejohn, now steps forward to deny the soundness of their logic. Mciklejohn, a former teacher of Chafee at Brown University, questions the Constitutional right of committees to vindictively inflict punishment on witnesses and insists that in this climate of repression and usurpation of authority citizens not only have the right but the obligation to maintain testimonial silence as they see fit.

"Committee methods, which seek, by threats and pressures, to secure confession of unpopular beliefs and associations, are identical, in their own legislative field, with those of the 'third degree,' in the criminal field," he maintains, and pledges himself to the fight to legitimately "abolish" investigations which use such tactics.

The Chafee-Sutherland letter states in part. "The witness is not the ultimate judge of the tendency of an answer to incriminate him. . . A judge must decide when the witness has gone far enough to demonstrate his peril." Meiklejohn points out that in a criminal procedure, the defendant is the "ultimate judge as to whether or not he shall testify." He then asks the question: "On what grounds do they assign to a Congressional Committee an authority over an accused person which, in criminal proceedings, is denied to every agency charged with the administration of justice?"

Meiklejohn alludes to the influence that the Chafee-Sutherland doctrine had on the Association of American University's unanimous statement on "The Rights and Responsibilities of Universities and their Faculties" and reproachfully comments on that statement: "Their renunciation of the obligations of intellectual leadership which they owe to the nation, their desertion, in time of trial, of scholars and teachers whom, through years of association, they had found worthy of trust, is one of the most disastrous actions in the history of American education."

Meiklejohn's full academic career includes an eleven-year stay as Dean of Brown University, twelve years as President of Amherst College, and professorial tours at the University of Wisconsin, Dartmouth College, and St. John's College. He has written widely on philosophy, metaphysics and education and one of his best known works is called, "Free Speech and its Relationship to Self-Government."

The text of his letter follows in full:

On January 13, 1953, you published a letter from Professors Chafee and Sutherland of the Harvard Law School which discussed "the use and the limitations of the privilege against self-incrimination contained in the Fifth Amendment," "No person. . . shall be compelled in any criminal case to be a witness against himself. . ." The letter argued from the accepted principle that the privilege of "testimonial silence" which is granted in criminal proceedings at all levels, is also granted in Congressional investigations. On that basis it generously undertook to give advice, legal and non-legal, to citizens who may be subpoenaed to testify in such investigations.

I am not personally acquainted with Mr. Sutherland But, more than fifty years ago, when Zechariah Chafee Jr. was a brilliant undergraduate at Brown University, I was his Dean. Through the ensuing years, I have followed his career with warm admiration and gratitude. But now, speaking as one who might be called to appear before a "committee," I find myself doubting the wisdom of the advice which he gives.

1.

The Legal Side

For the sake of clarity we should, I think, have before us a specimen of the "investigations" to which we American citizens are now being subjected. To that end, I quote an Associated Press dispatch of September 18. It reads as follows.--

"Edward Rothschild, Government Printing Office bookbinder, refused to say whether he was a Communist, stole a secret code, or engaged in espionage. He was suspended from his job within an hour.

"Rothschild was summoned before the Senate Investigations Sub-committee to face what Chairman Joseph McCarthy (Rep.-Wis.) said were 'some of the most serious charges ever made against a Government official'."

Confronted with a long list of specific questions about Communism and stealing secret papers sent to the Government's big printing plant for printing. Rothschild invoked the Constitution's Fifth Amendment. He said replies might tend to incriminate him.

Turning to Roy Cohn, the sub-committee counsel sitting by his side, Mr. McCarthy issued these instructions:

"Mr. Counsel, will you call the head of the Government Printing Office and tell him of this testimony? I assume he will be suspended. I can't conceive of his being allowed to go back to the Government Printing Office and allowed to handle secret material."

David Schine, a subcommittee staff member, hustled to a telephone booth in the corner of the big hearing room in the Senate Office Building. It wasn't long before McCarthy told reporters word had come back from Philip L. Cole, deputy public printer, that Rothschild had been suspended immediately without pay.

This example of committee procedure is, I presume, somewhat extreme in its ruthlessness. And yet, in principle, it may be taken as representative. Senator McCarthy, sitting as a one-man committee was, to use his own word, making "accusations" against Mr. Rothschild whom, ostensibly, he was asking for co- operation in an investigation. He was citing evidence of guilt and threatening punishment for it. And, indirectly at least, he was getting his judgment executed. In a word, he was treating Mr. Rothschild, not as a witness but as a culprit; he was requiring of him, not evidence, but a confession.

To any person, thus dealt with, the letter offers legal advice. And what it advises is submissive obedience, as follows.--

"The witness is not the ultimate judge of the tendency of an answer to incriminate him. He can be required, on pain of contempt punishment, to disclose enough to show a real possibility that an answer to the question will tend, rightly or wrongly, to convict him of a crime. Manifestly, this is a delicate business. The witness must not be required to prove his guilt in demonstrating the incriminating character of the answer sought. A judge must decide when the witness has gone far enough to demonstrate his peril."

That statment, as it stands, seems strangely at odds with our usual criminal procedures, whether those of the police, or of Grand Juries, or of a Court of Justice. It is true that a man standing trial on accusation of crime must await the decision of a judge as to whether or not he will answer questions asked by the prosecution? It is true that persons other than the accused may be summoned as "witnesses," to give evidence for or against him. And these witnesses are, with respect to their testimony, subject to that final authority of the judge of which the letter speaks. But, in a court of justice, is the "defendant" under the same authority? Presumably, he, too, is capable of being a "witness." He may have information which prosecution and judge and jury could use for the making of a just decision. May he, then, be summoned to the witness stand and, at the discretion of the judge, be required to "tell what he knows"? Surely not! "Defendants" are not, in that sense, "witnesses." In our criminal procedure, no the provision that a suspect or a defendant himself, with such advice as he may take from his lawyer, is the "ultimate judge" as to whether or not he shall testify. And at this point, it must be noted, he does not enter a plea to the Court. He makes a decision.

Here, then, is the question which I wish to ask the writers of the Crimson letter. On what grounds do they assign to a Congressional Committee an authority over an accused person which, in criminal proceedings, is denied to every principal seems more firmly fixed than agency charged with the administration of Justice?

3

One of the most confusing features of the letter is the characterization which it gives of the motives of its client. The argument of the letter begins as follows.--

"The underlying principle to remember in considering the subject is the duty of the citizen to cooperate in government. He has no option to say, 'I do not approve of this Grand Jury or that Congressional Committee; I dislike its members and its objectives; therefore, I will not tell what I know'."

A person who would thus base a protest upon personal disagreement with, or dislike of, officials is, obviously, not appealing to the Fifth Amendment or to any other section of the Constitution. He has no legal case at all.

I offer myself as a teacher who, if called upon to testify about his political beliefs or associations, would refuse to testify.

In my own case, as in many others, that refusal would claim justification from the Fifth, as well as from the First Amendment. It would, however, have no reference to a danger of self-incrimination. It would express a citizen's concern (I) for the general welfare and safety of the nation and (2) for the integrity of the Constitution.

First, so far as our national welfare and safety are involved, I am convinced that the actions of the committees are both futile and self-defeating. They are, also, tragically destructive of our national morale at home, and of the esteem and confidence of our friends abroad. They are, in fact, of use only to our enemies. As an American citizen, therefore, I must do everything I legitimately can to bring about their abolition.

Second, the investigations under com- pulsion, in so far as they inquire into political beliefs and associations, contravene the First and Fifth Amendments, as well as the intent of the Constitution as a whole. As one who has pledged, and who gives unqualified loyalty to that Constitution. I must, therefore, do everything in my power to bring about the abolition of those investigations.

For the explaining of this second reason, a brief listing of three supporting considerations may be useful.

1. No one can question the authority of Congress to "investigate." But, under the Constution, that power is a limited one, and the avowed activity of the committees as they seek to "drive" specified persons out of industry or out of the government service, is a direct legislative usurpation of executive and judicial functions.

2. The committee methods, which seek, by threats and pressures, to secure confession of unpopular beliefs and associations, are identical, in their own legislative field, with those of the "third degree," in the criminal field, as that practice was defined in 1931 by the Report of the President's National Commission on Law Observance and Enforcement. In section 11 of that report, which studied Lawlessness in Law Enforcement, and for which Mr. Chafee had some responsibility as legal consultant, the practice is defined as follows.--

"The phrase 'third degree' as employed in this report is used to mean the employment of methods which inflict suffering, physical or mental, upon a person in order to obtain from that person information about a crime."

As we here apply the same principle of condemnation to legislative and to criminal investigations it should, perhaps, be noted that, while police officers who use the "third degree" find it advisable to do their illegal work in secret, the Congressional inquisitors flaunt their tortures before the public eye and ear as they try, in the words of the Report, "to win applause by producing a victim when popular clamor demands the solution of a crime."

3. We Americans, I am sure, are facing a bitter crisis. If we are to preserve, or to restore, the integrity of free and just institutions, we must recognize that these congressional committees, in the political field, are practically identical, in purpose and method, with the Ecclesiastical Courts which, in the religious field, England abolished three centuries ago. That abolition, the Report tells us, was England's first decisive step, preceding the reforms of the Civil Courts, along the long road toward political and religious freedom. The retrogressive action of an irresponsible Congress has, within a few years, taken us far back into the past. The damage has been quickly done. One hopes that, by decisive action of Courts and People, it may be quickly undone.

As we now turn away from the legal phase of the letter, it should be noted that the justification of the question I am asking does not depend upon the validity of the "reasons" which are given for my refusal to testify. They may be ill-founded. But all that is needed to justify my question is assurance that, at present, I find them true and cogent and, further, that they are offered as basis for a claim, not against self-incrimination, but for unqualified testimonial silence.

4.

Non-Legal Side

The non-legal advice of the letter discusses what it calls "a principle of wisdom and good citizenship." In this field persons act and, hence, must be advised, not as individuals protecting their own "rights" and "privileges," but as citizens seeking to do their "duty" to their country.

The advice given may be found in two statements. The first of these, already quoted, reads.--

"The underlying principle to remember in considering the subject is the duty of the citizen to cooperate in government."

The second says.--

"It is not only a legal requirement but also a principle of wisdom and good citizenship for an individual called before a court, grand jury, or a legislative committee, to answer questions frankly and honestly. The constitutional privilege to keep silent is an exception to the legal obligation to testify, but even when the legal privilege is available, there are times when it is best not exercised."

The logical relevance of this second statement I find very hard to determine. What guidance does one draw from a general principle which, at the specific point in question, is recognized as outlawed by the Constitution? And further, when we are talking about "wisdom and good citizenship," the matter at issue is not a "legal privilege" but a "moral duty." And, that being true, there are no "times when it is best not exercised."

5.

But the other demand that every citizen shall, in every relevant situation, "cooperate in government" cannot, in the same way, be set aside. In some sense, that duty is laid upon every one of us. But in what sense? Does it mean that our only duty is to obey the laws and submit, without question, to the authority of our agents who govern us? That suggestion, which would be valid in a despotic society, is intolerable where men, as we say, "govern themselves." If it were true what is the purpose of those "checks and balances" by which each of the separate branches of our government holds powers which no other branch may invade? A refusal to obey a specific Congressional demand for information is not, in itself, a refusal to cooperate in government. The President of the United States has, on occasion, denied to Congress information from his files. So, too, have the Departments of State, Justice, and War. Have they, then, failed in their duty? Certainly not, if Congress, in seeking the information, was usurping powers not granted to it by the Constitution. In that situation, the duty of cooperation requires the denial of the illegitimate demand, rather than submission to it. And, in a free society, that duty is laid upon the citizens as directly and inescapably as upon their representatives. Unless men are willing, when emergency come, to do that duty, whatever the cost to themselves, the entire structure of free institutions falls to the ground.

6.

The letter seems to me to fail of its purpose of advising citizens about their duty to the nation chiefly because it ignores the two-sidedness of the institutions of political self-government. Free men, it is true, are subjects of the laws. But, in a far more important aspect, they are also masters of them, responsible for them. As subjects, we have "privileges." But, as masters, we have "duties." The letter speaks much of our privileges. But it seems to me to ignore our Constitutional states as the ultimate rulers of the nation. It, therefore, leaves out of account the duties which we assume when we undertake to govern ourselves.

In 1662, by action of the Ecclesiastical Courts of England, nearly two thousand rectors and vicars, one-fifth of the total number, were expelled from their parishes on the ground that their refusal to renounce heresy rendered them "unfit for office." In the years which followed, they suffered penury and misery. But, by holding their ground, they, and others with them, so aroused the conscience of England that the Ecclesiastical Courts were abolished--three hundred years ago! Today, in the United States, teachers and others, on grounds of political heresy, are likewise being declared "unfit for office." How shall the conscience of the United States be likewise aroused? Perhaps it cannot be. But, in any case, if the issue is thrust upon him, it is a man's duty to defend the Constitution, no matter what it may cost him.

7.

Because of the deservedly high repute of its writers, the Chafee-Sutherland letter has had, I think, more popular influence upon current discussions of Congressional investigations "than any other public statement. If, then, that influence has been misleading, the issue here discussed is, for practical purposes, an exceedingly serious one. For example, there is a clear and direct relation of dependence between the letter and the Statement on "The Rights and Responsibilities of Universities and their Faculties," issued unanimously by the Association of American Universities, on March 30, 1953. I do not, for a moment, question the good intentions of the forty- three Presidents who signed that document. And yet their renunciation of the obligations of intellectual leadership which they owe to the nation, their desertion, in time of trial, of scholars and teachers whom, through years of association, they had found worthy of trust, is one of the most disastrous actions in the history of American education. What the letter really means can be most clearly seen in the sanction which it gives to actions such as this. And what those actions mean is revealed by the rising tide of political and social repression which now threatens the foundations of our national life.ZECHARIAH CHAFEE