In 1941, President Franklin D. Roosevelt nominated Robert H. Jackson to serve as associate justice of the U.S. Supreme Court. Jackson had never gone to law school, but had climbed the legal ladder by learning the law through a legal apprenticeship. As such his head was not crammed with case law that he had to learn to regurgitate to please a law school that he had sufficiently interpreted in the manner acceptable to its professors.
Justice Jackson learned the law the same way Abraham Lincoln did, through observing it from the practice of preserving common justice for individuals.
As World War II was ending, President Harry S. Truman tapped Justice Jackson to be the American representative to determine a manner to hold the Nazi leaders who had committed atrocities against both Germans and non-Germans.Truman would also request that Justice Jackson represent the United States as chief prosecutor before the International Military Tribunal in Nuremberg, Germany.
The situation raised questions of grave importance concerning humanity, morality, the conduct of civilized nations, and whether and how the rule of law could apply to actions committed during a horrifically aggressive and destructive war.
Justice Jackson certainly viewed what had occurred as heinous crimes against humanity. Previous definitions of war crimes did not contemplate the commission of crimes by a leading power against its own citizens however. Jackson saw any role of prosecuting the German leaders for what had occurred under Nazism should be done in a completely common law manner where the case against the German leaders was not presented as a punishment of vindictive governments over an aggressive nation, but should be presented as a defense of the German people to have a right to prosecute crimes committed by its leaders against them.
Earlier in 1945, Justice Jackson had presented a major address at the American Society of International Law in Washington, D.C., in which he advocated that Nazi leaders who had been captured during the war should be given a fair trial. In his view, the impending victory that the Allies were about to secure to wrap up and many considered the most destructive war in human history (a view I don’t necessarily share), should be followed by a civilized proceeding where a court of law would judge the guilt or innocence of those accused of war crimes and crimes against humanity.
This position was not widely supported by the other allied nations who preferred using military court martial proceedings or simply summarily executing the Nazi leaders.
Justice Jackson’s views would end up prevailing after the nations involved conferred for two months during the summer of 1945 and finally reached a consensus. If anyone has seen the classic film, Judgment at Nuremberg, or read an account of the actual trial(s), Justice Jackson highlighted the common approach to justice that he had learned in the trenches of the American courtroom and presented his case against the Nazi leaders as crimes committed against the citizens of Germany, and against citizens of other states in their attempt of conquering those states.
Jackson changed the definition of a war crime in this prosecution, from that of being what one state does to another—the civil crime of invasion of territory, and to the victor goes the spoils of reclamation of justice against the losers—to the common crime of protecting the citizens who were victimized by the state.
While I cannot be expected to always believe Jackson’s conclusions were always necessarily the way I might prefer—the principles that Jackson perceived to underlie the common law were those that most closely resemble what the common law should be, from my perspective.
In Jackson’s view, Justice does not support the law that violates the state to arbitrarily deny Justice. But nor does it support extreme positions that violate the individual, or any communities of individuals from being harmed by any liberties granted to others.
Many have viewed Robert Jackson’s decisions as inconsistent. But that view misconstrues his understanding of common law. He denies all principles of liberty in which the state can never protect the liberties of some against another. Jackson would never agree that the principles of libelous speech does not apply across the board to all liberties and rights of individuals to not be imposed upon others, not just impositions of the state. While this can be most clearly seen in his decisions on the liberty of speech. It is why I find his dissent in Struthers quite remarkable.
The citizens asked the city council to issue an ordinance to protect them from intrusions of strangers knocking on their door. I would not have agreed upon the necessity of such an ordinance, per se, I would not see a Witness as an annoyance but an opportunity for debate. On the other hand I would very much like to be protected from annoying salespersons or intrusive phone calls. The citizens, however overwhelming wanted that protection. Jackson did not view it as a free speech at all, in what I described in an earlier post, but as some citizens being protected from the intrusions of being annoyed.
Today I would very much like to see an ordinance against throw-away phones. I would very much like to see ordinances that deny cookies or other methods that permit tracking of users. If websites were prevented from tracking, but could still charge a fee for access to a website if they so chose, then that should solve the issue as far as I am concerned.
And that is what the city of Struthers attempted to do in crafting an ordinance to grant the citizens the protection they desired from door knockers and still offer the opportunity to the Witnesses to deposit there literature. Like Jackson, I see no restriction on the freedom of speech, only on the manner in which the speech is conveyed—conveyed in a manner that is annoying or conveyed in manner that allows the recipient of the speech to choose if he wishes to hear it.
In other fields such as search and seizure, religious liberty etc. Jackson is usually perceived as being a strong proponent of such rights, but again he didn’t take an absolutist position. On the other hand, he saw no essential right of someone who wanted to worship publicly as being necessarily protected as long as they had the right to worship privately in ample facilities because the right to worship publicly can interfere with the right to choose not to hear another’s beliefs. And he certainly viewed castigating people for having differing views as a violation of one individual upon another.
We would see the court to move towards Jackson’s view in later decisions of the court on school prayer, state display of the ten commandments, etc.
Overall, I see a very consistent pattern in Jackson’s jurisprudence that the state cannot deny people’s liberties but those liberties do not extend to the point where they can create discomfort for others, at which point the state has an obligation to prevent contentions that might arise from those discomforts.
https://www.legal-tools.org/doc/45f18e/pdf/
https://www.imdb.com/title/tt0055031
Ken,
Do you have a favorite book comparing and contrasting common law versus civil law? This political year has whetted my appetite to get a mastery of the general principles of law, particularly constitutional law with respect to what can be done within the bounds of our current Constitution. I've been thinking particularly about what can be done to reform the Supreme Court that doesn't provide a tit-for-tat opportunity later for the MAGA fascists, like packing the Court, nor incur the onerous burden of a Constitutional amendment. I've been making iterations on a particular idea, and this is the latest version, which I submit for your critique:
The Constitution will sometime imply a power while failing to explicitly define the mechanism for its implementation, but the Congress, because of that implied language, would SEEM TO HAVE THE POWER to create an explicit implementation after the fact. The recent disgraceful Supreme Court nullification of the Constitution's Amendment 14, Section 3, to allow The Adjudged Seditionist Trump to remain a candidate was possible because of the failure of Congress to create the explicit implementation of this Constitutional passage.
The relevant text is the “The Necessary and Proper Clause” --Article I, Section 8, Clause 18: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The question seems to be whether "all other Powers vested by this Constitution" includes powers IMPLIED. Has American case law ever addressed this specific issue?
An instance of such an implied power that has not had its explicit implementation defined is in Article III, Section 1: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour". This implies a SEPARATE POWER OF REMOVAL from the "high crimes and misdemeanor" definition of impeachment. Thomas Jefferson attempted to remove Associate Justice Samuel Chase in 1804 on the grounds of blatant political partisanship in his judicial decisions. Since the implementation of the "good behavior" clause had not yet been explicitly legislated, his only means of attempting removal was the language of impeachment, and it failed. This seems to have been taken historically to set an iron-clad precedent that nullifies the implication that the "good behavior" clause provides a separate avenue for removal. But the power of Congress to LEGISLATE that explicit implementation, as far as I know, has never been challenged.
Perhaps the language of that explicit means of removal based on failure of "good behavior" might mirror the procedure for appointment. That would seem in some way to be the most "conservative" option. The President nominates a candidate for the court (both Supreme Court and inferior federal courts) and the Senate approves or disapproves. The mirror language would have the President "nominate?" a court member for removal for failing the "good behavior" requirement, and the Senate would approve or disapprove the removal with exactly the same requirement used to approve or disapprove appointment. If they were qualified to judge fitness for appointment, then after witnessing the Justice (or inferior federal judge) “in action”, they should be all the more qualified to judge fitness for removal.
Should the Congress enact this legislation and the Supreme Court rule it unconstitutional, I think it would be time for Congress to visit the Marbury Doctrine (derived from the Marbury v. Madison decision of 1803) which established Judicial Review. I would hope that in cases where the Supreme Court exercised Judicial Review IN THEIR OWN SELF-INTEREST (specifically, narrowing the means by which they could be removed from office) Congress would legislate this use of Judicial Review to be forbidden. Subsequent to that legislation, blatant partisanship would be grounds for removal: for failing the "good behavior" requirement.
An argument against this would be that a corrupt group in power (e.g., MAGA fascists) would use it to strip the Supreme Court and inferior federal courts of members they found oppositional to their goals. So perhaps the "good behavior" mechanism for removal would need to be more difficult. Or is the entire idea unworkable? Another possibility would be to explicitly add "good behavior" to the grounds for impeachment.