A Clearer Voice?

The U.S., in trying to fill its role of world leadership, has had some trouble deciding just what is the standard to which the nations should repair. Freedom is part of the summons, but political freedom has different meanings in different circumstances, and it depends, in idea and in practice, upon political order.

In many critical areas of the world there is not enough order to make political freedom by itself a program with any strong attraction to the masses of men. Every year the free world sees more clearly that the appeal of Communism is not so much to the belly as to man's appetite for order--an end to contradiction and chaos, a renewed sense of purpose, coherence and consistency. It is the U.S. thesis that the Communist promise of order is false. Although the Communists in action have supplied much evidence to support the case against them, the U.S. argument, in terms of practical world politics, is far from victorious.

The chief political expression of order is public law. Through its share in the Western and especially the English tradition, through the contributions of John Marshall, Joseph Story and other American jurists, the U.S. might be able to speak of law in a language so universal that any man anywhere could apply it to himself. Unhappily, the voice of the U.S. has, on this point, a recently acquired impediment.

The Restricted Ticket. After long immunity, the U.S. courts began in the 1920s to feel the weakening of deeper values on which the law's standards depended. The brilliant spearhead of the attack was Justice Oliver Wendell Holmes. He explicitly denied a premise upon which all law had been built when he said: "I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or a grain of sand." Baboons and grains of sand do not seem to feel the need of order.

The movement of which Holmes was a symbol changed the courts--not that many judges went as far or spoke as persuasively as Holmes, but the weakening of order as a goal and a method affected legal decisions and philosophy. Precedent had less authority, and principle, of which precedent is an illustration, became remote. In 1944, Justice Owen J. Roberts complained in a dissent: "The instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only."

In any given case, nobody has a very informed guess about what the present Supreme Court will do. It has no fixed left, center or right. It is not moving, forward or back or even in well-defined circles. Assuredly, it is not standing still. It wanders unguided over the infinite and orderless sands of fact.

A Significant Time. The death of Chief Justice Vinson, faithful servant of the Republic as legislator, administrator and judge, does not remove from the scene a great jurist. But it does create a vacancy at a significant time. The philosophic drive against fixed values and principles has lost confidence and the legal drive for fragmentation is also losing momentum. Partly as a result of the struggle with Communism, there is a present demand for a return to objective standards of right and wrong.

A strong Chief Justice, progressive enough to understand the inevitability of change, conservative enough to understand the need for continuity of principle, might help to restore to U.S. law the tension between these poles which constitutes order. True, a Chief Justice has only one vote. Yet Holmes, who was never Chief Justice, had only one when he led the drive in the other direction.

If the U.S. has a message to the world about order and freedom, it will say it better if it restores to its own law an emphasis upon coherence and consistency.

In applying principles to particular cases, the nations, like judges, will always find plenty to disagree about. But the re-establishment of common principles may make the difference between disagreement and international chaos.

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