Commentary Magazine


Liberty and "Due Process"

To the Editor:

In “Libertarian Precepts and Subversive Realities” (January 1955), Mr. Alan F. Westin says that he is making a criticism of the “application” of civil liberties principles that he does not question. But if that is really so, then what was the point of his article? Surely Mr. Westin does not believe that the injustices and absurdities of the loyalty-security program would have been any less if the imaginary liberal he conjures up had not attacked Dies and McCarthy or supported Hiss and Lattimore. What success, for instance, did the American. Civil Liberties Union (which never supported Hiss, and only to a limited extent Lattimore) have when, in 1947, it urged that this program be restricted to really sensitive positions (as has been all along the case in England)? And no recognition of the right of an employer privately to question an employee (which has not been challenged) would have mitigated the effect of the “Fifth Amendment Communist” slogan reiterated by the junior Senator from Wisconsin.

The truth of the matter is that defeats in the field of civil liberties are inevitable in times like these. And Mr. Westin in no way indicates how they could have been averted. The real issue is whether the true libertarian will let his principles bow with the wind in the vain hope of not so often seeming defeated. . . .

It may be true, as Mr. Westin suggests, that libertarians place too much reliance on the courts. That has been so largely because they have found more effective allies in the courts than in other agencies of government and because a court fight is an effective organ for public education. But to describe this “court-seeking psychology” as a “flight from responsibility” and as the cause of the “security-firsters” taking over is a complete misreading of history. Recourse to the courts has never been a first step. It has always followed (and by many years) the action already taken by those indifferent or antagonistic to liberty.

Perhaps the true meaning of Mr. Westin’s approach is to be seen in his criticism of the libertarians’ concern with procedure, with “due process.” That is always the point of attack of those impatient to get things done. In the long run it will prove more important to preserve fair procedures than to convict a dozen Coplons. (As a matter of fact, reasonably decent police work would have insured her conviction anyway.) And it is not lack of understanding of the “revolutionary” character of our times that underlies this attitude. The world has witnessed countless revolutionary times. Always attempts to restrict liberty have been justified on the plea of the necessity of those times. Always a few men have withstood those pressures. They have been remembered: Lilburn, Voltaire, Peter Zenger, Tom Paine—in our day an Arthur Garfield Hays. . . .

Osmond K. Fraenkel
New York City

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