Posted by Eugene Volokh:
Justice Robert Jackson on Inauguration Eve:
Prof. John Q. Barrett passed along a speech by Robert Jackson -- then
Attorney General, soon to be a Supreme Court Justice. According to
Prof. Barrett, "Jackson wrote (as he always did) his own speech for
the occasion, but when the big night came he could not attend due to
illness. His friend and colleague, Solicitor General Francis Biddle,
instead delivered Jackson's speech at Washington's Mayflower Hotel to
a crowd of more than 1,500 guests, including the 531 electors, Cabinet
members, Members of Congress and State Governors."
Here's an excerpt; there are parts I may disagree with, but it struck
me as thoughtful and eloquent enough to be worth passing along:
It is with diffidence and humility that I greet the ultimate
constitutional power in the Republic, the Presidential electors.
Presidential electors belong to a land of constitutional
make-believe, rather than to the world of practical politics. At
law, it is you only - not the people - who can elect a President.
At law you can choose as President any native-born citizen,
thirty-five years of age and fourteen years a resident of the
United States. Legally, you electors were the only candidates last
November. Those presumptuous fellows who were doing all the talking
had no legal standing at all, and never could have any except by
your leave.
With this vast grant of constitutional power, electors have chosen
to become merely the faithful proxies of the people. The last time
that an elector broke away and voted for anyone other than his
party nominee was way back, I believe before 1800. A disappointed
partisan is said to have expressed the sentiment: "I chose him to
act, not to think." His doctrine has now become unwritten law.
Presidential electors are about the only officials known to man who
have not magnified their offices and reached for more power than
the law gives them. They should be preserved if only for this
example of self-denial. But there is another reason for keeping
them. The electoral system is the alibi and chief consolation of a
defeated candidate. He can enjoy the sensation of being a
near-President by contemplating that a shift of a few votes in
strategic states would have turned defeat to victory. And the
winner can point out that an equally trifling change the other way
would have made his election unanimous. . . .
In these times when all democracy is on trial, it is a welcome sign
of your faith and courage that the subject which is assigned to me
is "A Progressive Democracy." That is not a defensive title, and it
has no defeatist note in it. It rings with hope and challenge. It
is only a progressive democracy that can withstand the pressure of
the anti-democratic forces which are making a drive for a "new
social order" in the world. Hitlerism in fact derives its greatest
incentive and consolation from a belief that our democracy has
become stagnant, decayed, and degenerated into what Hitler calls a
"plutocracy of the money bags." It is on such assumptions that he
wars on democracy and promises what he asserts is a better way of
life. It is not easy to translate these abstract generalities into
terms that admit of a genuine comparison with our own democratic
achievements. . . .
[W]e Americans are too often forgetful of the strides made on our
soil, in a stumbling way, perhaps, but with a sure direction toward
a more just order. In our early days the fight was made and
peacefully won to abolish the law of primogeniture by which all
property descended to the first-born male. Then our constitutional
Bill of Rights summed up and established the most advanced
doctrines of human liberty of the eighteenth century. But we did
not stop. We moved on to abolish imprisonment for debt -- which
reform many said would undermine the whole structure of property,
but it didn't.
Then we gradually abolished property qualifications for voting and
for holding office and extended the franchise to women. We moved
into the field of free education for classes to whom it had never
before been available and adopted compensation for industrial
accidents and regulation of property used in utility services. Now,
under the administration of President Roosevelt, we have brought to
reality plans for compensation during forced unemployment, support
for dependent old age, wider programs of training for youth, vast
projects for new housing, for betterment of farm opportunity, for
protection of labor by real collective bargaining, and for higher
standards of living and protection against depression.
Of course progress is slow. Of course it is accompanied by what at
times seems an unnecessary amount of strife and resistance. But the
strife under our system is one of conflicting arguments, not
conflicting armies; its weapons are reason, not force. And no
regime of dictators or monarchs can show so long, so consistent, or
so successful a record of gains by the humble and concessions by
the powerful as our democratic system has accomplished in peace and
order.
It is not wise so to overstate our case for democracy as to
discredit it. We have not, of course, nor has any other nation or
system, eliminated all injustice, oppression, and discrimination.
We have not yet brought to the individual the degree of security
and plenty that science and technology make possible. We have not
yet full protection against the cycles and caprices of our economic
system.
As you know, I have never hesitated to criticize our existing laws
and practice or to strive for their modernization and improvement.
I believe in reforming to save. Wise repairs are necessary to
protect our structure. But let us not in our criticism overlook the
fact that nowhere in the world can comparable opportunity for men
be found nor comparable dignity and power in citizenship be seen.
When we look at what others have accomplished we may feel our own
country to be quite exemplary. It is only when we compare our
existing situation with our boundless possibilities, that we are
critical.
Progressive democracy is the genius of our people. We have become
both great and free by holding both to liberty and to order. We
cannot retreat if we would. The instinct that submits its
grievances and hopes to public opinion, the sportsmanship that
accepts the results of elections is bred in our blood and bone.
No course in our opinion is more fatal for any cause than to resort
to violence, to excessive pressures, or to means outside the law. I
know of no shorter path to oblivion for any American than even to
hesitate in his acceptance of a verdict of the people. In these
things is our greatness, our security, and our peace. . . .
So, tonight I toast "A Progressive Democracy," not in a partisan
sense, though I am proud that my party and the party of my fathers
has contributed more to it than any other. I toast a progressive
democracy rather as the genius and achievement of our people. It is
not perfection and it has not brought perfection. Indeed, that
ideal will probably always retreat as we approach it. I toast
democracy not alone for what it is, but chiefly for what it may
become; not merely for what it has done, but also for what it makes
possible for us and our children to do.
Its road to the future leads through discussion, reasoning,
persuasion, experiment, trial and error. Progressive democracy does
not lead through violence, revolts, or armed coercion. It leaves
our destiny with no limitations except those which our own minds
impose and no pitfalls except those that might be dug by a failing
faith.
It is our heritage and our hope -- and we mean to keep it.
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