The Power Of Democracy - 1941

September 18, 1941 - FRANCIS BIDDLE, Attorney General of the United States

In the speech titled "The Power of Democracy" delivered by Francis Biddle, the Attorney General of the United States, in September 1941, Biddle addresses the California State Bar Association to counter the fears of "timid souls" who doubt the ability of American democracy to withstand a crisis without undermining its core principles. The speech asserts that the U.S. Constitution provides ample powers across the legislative and executive branches to effectively manage any national emergency, drawing upon historical examples to demonstrate the consistent use of broad executive authority, especially in times of war or peril. Ultimately, Biddle expresses profound confidence in the enduring strength of liberty under law and the constitutional framework to guide the nation through challenging times while remaining a just government.

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The original speech text is provided below:

The Power of Democracy

IT CAN MEET ALL CONDITIONS

By FRANCIS BIDDLE, Attorney General of the United States

Delivered before the Annual Convention of the California State Bar Association

Yosemite National Park, California, September 18, 1941

As you well know, there have always been timid souls

who doubted that democracy could be made to work

disaster threatened. Their voices have been

heard in every great crisis, domestic or international, through

which this country has passed during more than one hundred

and fifty years of national life. History has been kind to

them and most of their gloomy forecasts have been soon

forgotten. At this moment their voices are raised again to

express the familiar fear that the very measures essential

to defend democracy may in the end prove to be democracy's

undoing. If there are those among them who do not be-

lieve sincerely in democratic processes, I can only regret

that they are not placed elsewhere in associations more con-

genial to the political paganism which they profess. My

present concern is for the sincere believers who are troubled

by the discordant counsels of these tumultuous times. With-

out minimizing our dangers, I would seek to fortify their

faith, for ultimately the vitality of democracy must depend

upon the faith of those who would conserve and strengthen

its essential principles. For myself, I hold firmly to that

faith in free institutions which is implicit in the theme of

this Convention. I am confident that the same vitality of

free government which has brought our nation through one

hundred fifty years to its present stature will enable it in

the future as in the past to

meet with Triumph and Disaster

And treat those two imposters just the same.

It will come as no surprise to this audience that my first

article of faith is in the Constitution of the United States.

Among their many virtues the draftsmen of this great in-

strument were masters of a brevity which could be em-

bracing without dissipation in vague generality. The word

"emergency" is nowhere used in the Constitution, yet it is

elemental law that there are ample powers in the several

departments of our national government to cope with any

crisis. As former Chief Justice Hughes observed, when ad-

dressing the American Bar Association in 1917, "the framers

of the Constitution did not contrive an imposing spectacle

of impotency... Self-preservation is the first law of national

life and the Constitution itself provides the necessary powers

in order to defend and preserve the United States."

Whatever doubts may have emerged at one time or another

in our history, no lawyer today questions the adequacy of the

national legislative power. It is significant that the enumera-

tion of legislative powers granted to the Congress begins

with the power "to lay and collect taxes... to pay the debts

and provide for the common defense and general welfare

of the United States." The enumeration includes the power

to declare war, to raise and support armies, to provide and

maintain a navy, and to provide for calling forth the militia.

to execute the laws of the Union, suppress insurrections and

repel invasions. Speaking through the late Mr. Justice

Cardozo, the Supreme Court has reminded us that the con-

cept of the general welfare is not static but is equal to any

emergency. In Justice Cardozo's own words: "Needs that

were narrow or parochial a century ago may be interwoven

in our day with the well-being of the Nation. What is

critical or urgent changes with the times."

It has never been seriously questioned that the efficacy of

emergency legislative power depends upon an assurance of

prompt and vigorous execution. In recognition of this ele-

mental principle, the Congress throughout our history has

repeatedly delegated broad emergency powers to the execu-

tive. Thus, in the first volume of our national statutes, we

find the President authorized to call forth the militia when-

ever the United States shall be invaded or in imminent dan-

ger of invasion. In sustaining this statute and holding that

the President's decision as to the existence of an emergency

must be conclusive, the Supreme Court stated tersely some

elemental principles concerning free government and its

defense. Mr. Justice Story said: "It is no answer that such

a power may be abused, for there is no power which is not

susceptible of abuse. The remedy for this . . . if it should

occur, is to be found in the Constitution itself." And again:

"One of the best means to repel invasions is to provide the

requisite force for action, before the invader himself has

reached the soil."

Having in mind the part which the executive must always

be called upon to take in time of crisis, it is further tribute

to the wisdom of those who framed our Constitution that

there need never be serious doubt as to the adequacy of na-

tional executive power. Article II begins with the terse

statement that "the executive power shall be vested in a

President of the United States of America." It requires an

oath or affirmation that he will "faithfully execute the office"

and that he will, to the best of his ability, "preserve, pro-

tect and defend the Constitution of the United States." It

provides that he shall be Commander in Chief of the armed

forces of the United States. It makes of the President, as

Marshall declared in his famous argument in the House of

Representatives on March 7, 1800, "the sole organ of the

nation in its external relations." And finally, in the same

terse but dynamic style, it admonishes the President to "take

care that the laws be faithfully executed." I am here speak-

ing of powers which stem directly from the Constitution,

without benefit of legislative interposition, and which con-

stitute the basic charter of the President's responsibility for

the defense of the Nation in time of grave national peril.

In what is undoubtedly one of the major crises of our his-

tory, when the pressure of events must force many vital

decisions and when charges of usurpation or dictatorial

action are too lightly made, it is essential that we return

from time to time to the fundamental charter of our liberties.

My second article of faith is in the Constitutional history

of the United States. The record of great issues met and

resolved by democratic processes is one which inspires an

enduring confidence. If those timid Americans who are now

saying that it cannot be done, or that if it is done it will

prove our undoing, will only look at the record with an

open mind, their misgivings may be speedily dissipated. How,

or why, or under what tragic circumstances, other less for-

tunate peoples may have surrendered to cruel tyranny while

still in the kindergarten of democratic experience is of no

immediate relevance. Vitally relevant are the venerable

roots of our own sacred liberties, the soil in which they have

been traditionally nurtured, and the toughness which they

have developed in resisting adversity. In the cavalcade of

our one hundred and fifty years, we may observe the sequence

of minor and major crises the response of democratic states-

manship to each succeeding challenge. We may witness the

tempo of national decision accelerated to cope with situa-

tions which have not permitted delay, and retarded to re-

store the utmost of patience in deliveration when storm

clouds passed. Who has read American history and doubted

that the passion for liberty under law has emerged more

insistent after each period of stress! Who has really shared

the American way of life yet denied the conviction that

the ultimate responses of a free people are wiser and more

humane than the dictates of a despot benevolent or otherwise!

In noting the adequacy of national legislative powers and

reminding you of the necessity for assurance of prompt and

vigorous execution of all emergency laws, I have already

called attention to the legislative practice of making broad

grants of power to the President to meet emergencies. The

necessity for this practice is sufficiently confirmed by its con-

sistent use throughout our national history and its wisdom

is demonstrated in our long and varied experience with ad-

ministration under such legislative grants. Contrary to the

somewhat naive assumption which seems to prevail in some

quarters, this is neither a new nor a dangerous practice.

From the very beginning, Congress has repeatedly granted

the President extraordinary powers with which to meet ex-

traordinary situations. In some instances the grant of power

has been ephemeral, designed to meet an immediate but tem-

porary need. In others it has passed into the body of our

national jurisprudence where it constitutes a reserve of

legislative preparedness for the emergencies of national

defense.

Among emergencies arising from crises primarily internal

or domestic, the Pennsylvania rebellion of 1792 was one of

the earliest occasions for resort to this type of legislation. On

that occasion Congress promptly empowered the President

to call out the militia of the states to enforce the laws

"whenever the laws of the United States shall be opposed

or the execution thereof obstructed." In 1861, as is well

known, new precedents were established for similar dele-

gations of broad emergency powers. Included among our

national statutes in force at the present time are many such

laws, deriving from different periods in our history, con-

ceived to safeguard against emergencies of various kinds,

and granting powers in the broadest terms. With your in-

dulgence, I propose to refer to a few examples, quoting

briefly from the statutory definition of executive discretion

in each instance.

The executive may waive or modify the monthly appor-

tionment of appropriations for governmental departments

"upon the happening of some extraordinary emergency or

unusual circumstance which could not be anticipated at the

time of making such apportionment"; may take action with

respect to credit expansion when "an economic emergency

requires an expansion of credit"; may regulate or prohibit

certain transaction in foreign exchange or with respect to the

currency "during time of war or during any other period

of national emergency"; may regulate the transaction of

business by the Federal Reserve Banks "during such emer-

gency period as the President .. by proclamation may

prescribe"; and may suspend trading in securities when "the

public interest so requires." By proclaiming an emergency,

the President may make it unlawful to transfer American

ships to foreign ownership and authorize the Maritime Com-

mission to requisition American ships. In time of war or

threatened war, the President's broad powers over trans-

portation, industry, and communication are writ large in our

national legislation and are well understood among mem-

bers of our profession.

In emergencies arising from crises primarily external or

international, Congress has always met or anticipated the

event with the broadest grants of power and with few de-

partures from an approved pattern of legislative action. Since

the President, as the Senate Committee on Foreign Rela-

tions long ago observed, is "the constitutional representative

of the United States with regard to foreign nations," the

implementing of a foreign policy, whether in emergency or in

due course, could hardly be accomplished otherwise. From

the earliest enactments concerned with our foreign relations,

in the turbulent years which followed the French Revolu-

tion, to the recent Lend-Lease statute, there has been an

uninterrupted progress of consistent practice. Under the

terms of the Lend-Lease Act, "the President may .. when

he deems it in the interest of national defense" authorize

the manufacture or procurement of any defense article "for

the government of any country whose defense the President

deems vital to the defense of the United States." The terms

and conditions of aid are to be "those which the President

deems satisfactory" and the benefit to the United States may

be payment, repayment in kind, "or any other direct or in-

direct benefit which the President deems satisfactory." I

refrain from burdening you with samplings from the years

intervening between 1789 and 1941.

The wisdom of such action may always be debated when

the occasion arises, but its propriety and validity under our

form of government is no longer doubted. In 1936, in sus-

taining a criminal prosecution for violation of the Joint

Resolution of Congress authorizing the President to embargo

the sale of arms to belligerents in the Chaco war, the

Supreme Court reviewed the practice at length and affirmed

its constitutional validity in the case presented in no uncer-

tain terms. Speaking for the Court, Mr. Justice Sutherland

said: "As a member of the family of nations, the right and

power of the United States in that field are equal to the

right and power of the other members of the international

family. In this vast external realm, with its important, com-

plicated, delicate and manifold problems, the President alone

has the power to speak or listen as a representative of the

nation. The principles which justify such legislation find

overwhelming support in the unbroken legislative practice

which has prevailed almost from the inception of the national

government to the present day."

Needless to say, the summation of all grants of emergency

power, both internal and external, occurs in war time, for

modern war is an economic and social struggle as well as a

conflict of arms, and the concentration of responsibility must

perforce be correspondingly extended. Before the World

War ended our executive was exercising, among other

powers, the power to take over manufacturing plants, to

operate transportation systems, to fix charter rates for ship-

ping, to license the distribution of food and fuel, to fix the

prices of coal and coke, to control imports and exports, and

to redistribute the functions of the executive departments

of government as circumstances might require. In the light

of World War experience, our legislative preparedness for

war has been supplemented and strengthened. The power

to apprehend and detain alien enemies derives from legisla-

tion first enacted in 1798, the power to control transporta-

tion priorities from an enactment of 1920, the power to com-

mandeer manufacturing plants from a statute of 1916 as

well as from a statute of 1940, the power to suspend trad-

ing in securities from a statute of 1934. More recently our

legislative preparedness has been supplemented at vital points.

Today, insofar as legislation can effectively anticipate the

requirements of a war time emergency, the nation is better

prepared than ever before in its history.

In reviewing some aspects of our constitutional history, I

have dwelt chiefly, up to this point, upon legislative practice

in meeting our anticipating emergencies. It remains to say

something of the executive powers which stem directly from

the Constitution. I have reminded you that executive power

is vested in the President; that he is sworn to preserve, pro-

tect, and defend the Constitution; that he is made Com-

mander in Chief of the armed forces and our sole spokes-

man in foreign relations; and that he is responsible for the

faithful execution of the laws. Traditionally, every presi-

dent of the United States, from the first to the present,

has preferred to discharge his constitutional duties within a

pattern formulated in appropriate legislative action. Tra-

ditionally, every president of the United States, from the

first to the present, has been prepared to use his constitu-

tional powers when the nation or its citizens were endangered

in circumstances requiring prompt and vigorous action. There

have been differences of opinion with respect to action taken,

both before and after the event; but over the years the wis-

dom of the framers of our organic law has been repeatedly

confirmed. If you were to press me for a distillation of

principle from the full harvest of our national experience, I

would suggest that the magnitude of the threatened disaster

is the measure of the President's power and duty to take

steps necessary to avert it.

When Abraham Lincoln took the oath of office, the

Congress was not in session and rebellion was spreading

swiftly throughout the southern states. The measures which

he took to preserve, protect, and defend the Constitution in

that critical hour are familiar history. I need hardly re-

mind you that it was as chief executive and commander in

chief of the armed forces that President Lincoln, among

other emergency measures, called out the militia, issued a

call for volunteers, increased the army and navy, ordered the

blockade of southern ports, and proclaimed the emancipation

of the slaves. When strikes flamed into mob violence threat-

ening paralysis of railroad traffic in Chicago in 1894, Presi-

dent Cleveland sent troops to restore order. To the con-

tention that the measures taken were beyond the scope of

executive power, the Supreme Court later replied: "There

is no such impotency in the national government. The entire

strength of the nation may be used to enforce in any part

of the land the full and free exercise of all national powers

and the security of all rights entrusted by the Constitution

to its care. The strong arm of the national government may

be put forth to brush away all obstructions to the freedom

of interstate commerce or the transportation of the mails.

If the emergency arises, the army of the Nation, and all its

militia, are at the service of the Nation to compel obedience

to its laws." Within recent months, here in this state and

on the Atlantic seaboard, the same fundamental powers have

been invoked to restore strike-bound plants to their neces-

sary place in the program of national defense.

Throughout our history these great reserves of constitu-

tional authority have been drawn upon with courage and

vigor in the protection of American lives and property

abroad. In 1798 President Adams authorized the arming of

American merchantmen to resist the attacks which were

being made upon our commerce by the French. In 1801

President Jefferson sent a squadron of frigates into the

Mediterranean to protect our commerce against the Barbary

raiders. In 1853 one Koszta, a Hungarian who had de-

clared his intention to become a citizen of the United

States, was seized in Smyrna by Austrian forces and con-

fined on an Austrian vessel. The commander of an Ameri-

can warship in those waters demanded his release and en-

forced compliance by training his guns on the Austrian

vessel. The commander was voted a gold medal by Congress;

and the Supreme Court, in the case of Neagle, which I be-

lieve is regarded as a leading case in California, referred

approvingly to the episode as "an attractive historical

incident."

In the following year the United States Consul at Grey-

town, Nicaragua, was attacked by a local mob. When ap-

propriate reparation was not forthcoming, the commander of

a United States warship bombarded the town. President Pierce

referred to the action taken as the only alternative to "sub-

missive acquiescence in national indignity"; and later, when

the commander was sued for the value of property destroyed,

Associate Justice Nelson, sitting on circuit, upheld what had

been done in vigorous language. The duty to act, he de-

clared, "must, of necessity, rest in the discretion of the

President." "The great object and duty of government," he

concluded, "is the protection of the lives, liberty, and prop-

erty of the people composing it, whether abroad or at home;

and any government failing in the accomplishment of the

object, or the performance of the duty, is not worth

preserving."

The significance of the record appears in the consistent

pattern of national action. Bold executives and cautious

executives, presidents avowedly sympathetic with the Hamil-

tonian philosophy and presidents professing a more guarded

conception of their powers, have kept the oath as the ever

changing stream of circumstance has challenged them to add

present decision to the unfolding page of history. Within the

memory of many here present, President McKinley sent

naval vessels and a military force of five thousand men to

the Far East to cooperate with other powers in suppressing

disorders which had resulted from the Boxer rebellion. It

was nearly a half century earlier that President Buchanan,

one of the most cautious of our executives, when the right

was asserted to search American vessels in the Gulf of

Mexico, had ordered the dispatch of a naval force with in-

structions "to protect all vessels of the United States on

the high seas from search or detention by the vessels of any

other nation." In the same consistent determination to safe-

guard our heritage, we are today cooperating with friendly

powers in the Pacific and are fortifying new bases and re-

inforcing the far flung patrol which guards the vital high-

ways of the Atlantic. Long experience in the democratic

way of life has taught us patience; but neither contriving

faction within nor hostile force without should ever mis-

take patience for impotence. In all earnestness, to those here

or abroad who may be confused by the swift march of events,

I commend the revealing record of our constitutional

experience.

My third article of faith is in liberty under law as it has

come down to us, conserved and strengthened, through a

thousand years of Anglo-American institutional history. I

need hardly remind this audience of the unique vitality of

the rule of law wherever the Common Law has become

firmly established. Nor is it necessary to stress the well

known circumstance that our civil liberties have their roots

in and are part and parcel of this venerable heritage. As

the Supreme Court has observed, our Bill of Rights was

"not intended to lay down any novel principle of Govern-

ment, but simply to embody certain guaranties and im-

munities which we had inherited from our English ancestors."

Our heritage of liberty under law is guaranteed in terms

in our Constitution. It has acquired a richer meaning and a

more enduring substance in our constitutional experience.

We should remember, however, that all this was possible be-

cause we were coheirs to the Common Law inheritance; and

faint hearts may be fortified once more in recalling the

turbulent centuries in which that heritage has been formed

and toughened. It is no made-to-order credo of the passing

moment which attaches our people so firmly to freedom of

religion when such freedom is brutally denied in many lands;

to freedom of speech and the press when elsewhere terror

stifles utterance and the press has survived only as a servile

agent of unscrupulous power; to freedom from unreasonable

searches and seizures when a continent languishes under the

dread hand of the secret police; to trial by jury, with its

ancient safeguards; when uncounted thousands are rushed

to the concentration camp or the firing squad after pro-

ceedings which make a mockery of justice; or to due process

of law when the ideas and the ideals of justice which are

implicit in that phrase have been violently repudiated over

wide reaches of the earth. These things are a part of us,

they belong to our way of life, and they will endure so long

as we continue to believe in them, and have the will to

defend them.

A government with ample power to defend the liberties of

its people is a strong government. A government dedicated

to the protection of those liberties is a just government. In

asserting that our American form of government has tra-

ditionally been both strong and just, I would neither mini-

mize the difficulties which confront us nor ignore the dangers

to which we are peculiarly vulnerable. When revolutionary

forces sweep over the earth, sparing no means and knowing

no honor; when there can be no true peace for people selected

for the sinister softening which precedes destruction; when

those who wage total war take pride in the repudiation of

conventional restraints upon the brutal incidents of armed

conflict, the way of the strong and the just government is a

hard one. Abroad, it must resist every aggression, however

subtle or insidious, while continuing to deserve the confidence

and friendship of the distracted peoples of less fortunate

countries. At home, it must deal firmly yet fairly with those

miserable saboteurs who make a mask of the very liberties

which they are seeking to destroy. That America will achieve

these things in ample measure, with whatever strength the

emergency may require and without impairment of our es-

sential liberties, I have no doubt.

In support of this confidence, I invite you to recall for

the moment something of our experience with liberty under

law in war time. It is of course axiomatic that no liberty

can be absolute. Some things permissible in ordinary times

cannot be safely tolerated in a time of grave peril. Thus

Mr. Justice Holmes reminded us, in one of the cases arising

under the First Amendment during the World War, that

"when a nation is at war many things that might be said in

time of peace are such a hindrance to its effort that their

utterance will not be endured so long as men fight and that

no Court could regard them as protected by any Constitu-

tional right." Yet in another of the cases in this group, the

same great Justice declared that "we do not lose our right to

condemn either measures or men because the Country is at

war."

In other cases arising out of the same war time emergency,

the Supreme Court returned frequently to the theme that the

'war power of the United States, like its other powers.

is subject to applicable Constitutional limitations”; and, in

denouncing an indictment under one of the war time statutes

as violative of the Fifth and Sixth Amendments, the Court

gave emphatic approval to the proposition that "the mere

status of war did not of its own force suspend or limit the

effect of the Constitution, but only caused limitations, which

the Constitution made applicable as the necessary and ap-

propriate result of the status of war, to become operative."

It was in the midst of the World War that Attorney General

Gregory reported that the Department of Justice was pro-

ceeding upon "the general principle that the constitutional

right of free speech, free assembly and petition exist in war

times as in peace time and that the right of discussion of

governmental policy and the right of political agitation are

most fundamental rights in a democracy."

Whatever contempt we may feel for the misguided mal-

contents who assert liberties only to destroy them, we need

have no fear that government founded upon the processes

and principles of our Common Law will cease to be just

because the emergency compels it to be strong. I commend

to you the homely wisdom of President Lincoln, who wrote

on June 12, 1863: "I can no more be persuaded that the

Government can constitutionally take no strong measures in

time of rebellion, because it could be shown that the same

could not be lawfully taken in time of peace, than I can

be persuaded that a particular drug is not good medicine

for a sick man, because it can be shown to not be good for

a well one. Nor am I quite able to appreciate the danger,

apprehended by the meeting, that the American people will

by means of military arrests during the rebellion lose the

right of public discussion, the liberty of speech and the press,

the law of evidence, trial by jury and habeas corpus through-

out the indefinite peaceful future which I trust lies before

them, any more than I am able to believe that a man could

contract so strong an appetite for emetics during temporary

illness as to persist in feeding upon them during the re-

mainder of his healthful life."

In a more tranquil future, students of government will

spell out the contrast between the functioning of free gov-

ernment in time of peril and the techniques which enabled

Europe's dictators to strut their little hour. There are ob-

vious differences of underlying principle which they will

surely stress. They will have something to say, certainly, of

the toughness which free institutions had developed in cen-

turies of sacrifice and struggle. They will point out how

free peoples achieved essential unity under Constitutional

government, rather than personal dictate. They will see sig-

nificance in the rugged persistence of orderly legal processes

in democratic countries, as contrasted with the procedures of

hypnosis or terror. They will emphasize the innate vitality

of governments conceived in a passion for human liberty,

yet strong enough to defend their heritage, as distinguished

from regimes born in liberty's negation. They will recall

a period in which two philosophies of life were in irrecon-

cilable conflict, one exalting the dignity and worth of the

human individual, another concerned only with the all-

powerful state. Finally, they will record free government

triumphant because it was founded ultimately upon the con-

sent of the governed, because of its vast reserves of strength

and its immeasurable capacities for self renewal, and because

its legions wore the uniform of the common man.