Robert A. Taft: “Equal Justice under Law”

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I wish to speak of the heritage of the English-speaking peoples in the field of government, and their responsibility to carry on that heritage, and to extend its tried principles to the entire world as rapidly as that can be done. The very basis of the government of the United States, derived through the Colonies from principles of British government, was the liberty of the individual and the assurance to him of equal treatment and equal justice.…

I desire today to speak particularly of equal justice, because it is an essential of individual liberty. Unless there is law, and unless there is an impartial tribunal to administer that law, no man can be really free. Without them only force can determine controversy … and those who have not sufficient force cannot remain free. Without law and an appeal to a just and independent court to interpret that law, every man must be subject to the arbitrary discretion of his ruler or of some subordinate government official.

Over the portal of the great Supreme Court building in Washington are written the words “Equal Justice under Law.” The Declaration of Independence, the Constitution of the United States and every pronouncement of the founders of the Government stated the same principle in one form or another.…

Unfortunately, the philosophy of equal justice under law, and acceptance of decisions made in accordance with respected institutions, has steadily lost strength during recent years. It is utterly denied in totalitarian states. There the law and the courts are instruments of state policy. It is inconceivable to the people of such a state that a court would concern itself to be fair to those individuals who appear before it when the state has an adverse interest. Nor do they feel any need of being fair between one man and another. … The totalitarian idea has spread throughout many nations where, in the nineteenth century, the ideals of liberty and justice were accepted. Even in this country the theory that the state is finally responsible for every condition, and that every problem must be cured by giving the government arbitrary power to act, has been increasingly the philosophy of the twentieth century. It infects men who still profess complete adherence to individual liberty and individual justice, so that we find them willing to sacrifice both to accomplish some economic or social purpose. There is none of the burning devotion to liberty which characterized Patrick Henry and even the conservative leaders of the American Revolution.…

Of course the new philosophy has been promoted by two world wars, for war is a denial both of liberty and of justice. Inter arma leges silent. We all of us recognize that justice to the individual, vital as it is, must be subordinate to the tremendous necessity of preserving the nation itself. … In this war we have granted arbitrary war powers without appeal to the courts, and now the people have become so accustomed to such powers that the government proposes to continue war powers unimpaired to meet some supposed peace emergency. We hear constantly the fallacious argument, “If you would surrender these rights to win the war, is it not just as necessary to surrender them to win the peace?” Unless we desire to weaken for all time the ideals of justice and equality, it is absolutely essential that our program of reconversion and of progress abandon the philosophy of war, that it be worked out within the principles of justice.…

Even before the war we had drifted far from justice at home. Expediency has been the key to the legislation of recent years, and many of the existing bureaus administer the law without any belief in the principle that the government should be fair to every individual according to written law.…

When Government undertook to regulate the production of every farmer, telling him what he could sow and what he could reap, it had to set up an administrative machinery far beyond the capacity of any court to control. The enforcement of milk prices, production, and distribution by Federal milk boards has also been pursued without regard to any legal principle. Programs for general economic regulation are always inconsistent with justice because the detailed control of millions of individuals can only be carried through by giving arbitrary discretion to administrative boards. Such boards are always concerned with policy, but not with justice.…

I believe more strongly than I can say that if we would maintain progress and liberty in America, it is our responsibility to see not only that laws be rewritten to substitute law for arbitrary discretion, but that the whole attitude of the people be guided from now on by a deep devotion to law, impartiality and equal justice.…

Unfortunately, I believe we Americans have also in recent foreign policy been largely affected by principles of expediency and supposed necessity, and abandoned largely the principle of justice. We have drifted into the acceptance of the idea that the world is to be ruled by the power of the great nations and a police force established by them rather than by international law.

I felt very strongly that we should join the United Nations organization, but it was not because I approved the principles established in the Charter. Those who drafted the original Dumbarton Oaks proposals apparently had little knowledge of the heritage of the English-speaking peoples, for in those proposals there was no reference to justice and very little to liberty. At San Francisco a good many declarations were inserted emphasizing the importance of law and justice, but they were not permitted to interfere with the original setup of the Security Council. The Security Council is the very heart of the United Nations, the only body with power to Act. The Charter gives it the power to adopt any measure, economic or military, which it considers necessary to maintain or restore international peace and security. The heritage of the English-speaking peoples has always emphasized liberty over peace and justice over security. I believe that liberty and justice offer the only path to permanent peace and security.…

Only by pressure against a reluctant Administration did Congress agree to adhere to the decision of an impartial tribunal in the International Court of Justice. Such a willingness on the part of all nations, accepted by the public opinion of the world, is the basic essential of future peace. But the court and international law have been step-children to our government. Force, and a police force, similar to the police force within a nation, have been the keynotes, forgetting that national and local police are only incidental to the enforcement of an underlying law, that force without law is tyranny. This whole policy has been no accident. For years we have been accepting at home the theory that the people are too dumb to understand and that a benevolent executive must be given power to describe policy and administer policy according to his own prejudices in each individual case. Such a policy, in the world as at home, can lead only to tyranny, or to anarchy.

The Atlantic Charter professed a belief in liberty and justice for all nations, but at Teheran, at Yalta, at Moscow, we forgot law and justice. Nothing could be further from a rule of law than the making of secret agreements distributing the territory of the earth in accordance with power and expediency. We cannot excuse ourselves by declining territorial acquisition ourselves or subjecting ourselves to unreasonable and illogical restriction of our sovereignty over uninhabited Pacific Islands. We are just as much to blame if we acquiesce in unjustified acquisition of territory by others, such as the handing over of the Kuril Islands to Russia without trusteeship of any kind. Without a word of protest, we have agreed to the acquisition of Lithuania, Estonia and Latvia by the USSR against their will. There is little justice to the people of Poland in the boundaries assigned to them. The extending of justice throughout the world may be and is beyond our powers, but certainly we need not join in the principles by which force and national policy is permitted to dominate the world.…

I believe that most Americans [also] view with discomfort the war trials which have just been concluded in Germany and are proceeding in Japan. They violate that fundamental principle of American law that a man cannot be tried under an ex post facto statute. The hanging of the eleven men convicted at Nuremberg will be a blot on the American record which we shall long regret.…

In these trials we have accepted the Russian idea of the purpose of trials, government policy and not justice, having little relation to our Anglo-Saxon heritage. By clothing vengeance in the forms of legal procedure, we may discredit the whole idea of justice in Europe for years to come. In the last analysis, even at the end of a frightful war, we should view the future with more hope if even our enemies believed that we have treated them justly in trials, in the provision of relief and in the final disposal of territory. I pray that we do not repeat the procedure in Japan, where the justification on grounds of vengeance is much less than in Germany.…

War has always set back temporarily the ideals of the world. This time because of the tremendous scope of the war, the increased barbarism of its methods and the general prevalence of the doctrine of force and expediency even before the war, the effect today is even worse and the duration of the postwar period of disillusionment may be longer. As I see it, the English-speaking peoples have one great responsibility. That is to restore to the minds of men a devotion to equal justice under law.