Earl Warren, former Chief Justice
October 21, 1970
The alternative is chaos
This is a thrilling experience for me to be at your University for a number of reasons, not the least of which is the fact that this series of lectures is named for my long-time friend, Governor Alf Landon, with whom I labored decades ago in the vineyards of politics. But our trails have not crossed often in recent years because I have been immured in the Supreme Court for the past 17 years where constant attendance is a matter of necessity. But I have always retained my admiration for his integrity, his wisdom, and his down-to-earth philosophy of life and politics throughout the years. I am happy to be with him today in these inspirational surroundings.
I like universities, and I have always liked university life — in my day, through the intervening years, and today, in spite of the vicissitudes of the moment. I am happy to be in this free market place of ideas. This forum appeals to me particularly because, in visiting with students, one is where the action is. It is where the criticism of my generation largely and properly, I think, comes from. It is the proper place from which such criticism should emanate because these students and young people of our day are to be the residuary legatees of both the benefits and the burdens which are being left to them. They are the ones who are to live with both, and they must reappraise the values of life and reorder priorities for the society of their day.
In talking to them, I only wish I could approach my discussion with the same assurance of finality as a scientist or a technologist would approach subjects within his competence. However, neither my age, my temperament, nor my preoccupation in life would permit me to do so.
The older we become the less certain we are of our own conclusions. As has been so well stated by Justice Oliver Wendell Holmes, and I quote him, "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — ..." In my experience, I, too, have seen many fighting faiths upset; and I also believe firmly in the free trade of ideas.
My preoccupation throughout a long lifetime has been with pragmatic affairs which cannot be evaluated through scientific analysis or reduced to scientific conclusions. Thirty-six years of my adult life were devoted to the field of politics and governmental administration; the last 16 years to the judicial process. Neither politics nor the judicial process are or can become an exact science because they deal with the vagaries of human nature and the actions of human beings.
Politics have been broadly defined as the art of the possible, and that is a fair description. The complexities of our society, and the cross currents of economic and social interests are involved in almost every political act. The ideal is rarely, if ever, achieved. Although sometimes proposed, the ideal gives way to practicality on the theory that a half loaf is better than none. In the last analysis, it becomes a matter of bargaining between competing interests until a concensus is achieved or the entire proposal is abandoned. Too often the latter is the result, and no progress is made. The effect of these eventualities is to bring into play a myriad of devices, either for advancing proposals or for stifling them. Some are helpful; some are destructive. Some are designed for the sole purpose of avoiding responsibility.
A Lesson In Avoidance
Illustrative of this point, I was told a story by an old-time state senator from one of your neighboring states concerning a little town in his district. He said that the affairs in the town were so deadly that there was nothing to be discussed or argued about except one thing, namely, whether the town should or should not have a new church, there being only one there at the time. But whenever the proposal was made for a new church, the argument divided the town into warring factions, and the longer it continued the more bitter it became. Customers boycotted businesses; the children fought in school; and the women of the community ostracized each other from social gatherings.
The Board of Deacons of the church, of course, was in the very center of this storm, and all of the members, except one, suffered the afflictions of the rest of the community. The lone member of the Board who was untouched by the controversy was a man of business, and had been on the Board for many years. Finally, he concluded that he would retire from his position, but he asked the Board to elect his son to succeed him. This was done.
However, in a very short time the younger man was in the center of the controversy. His children came home from school with black eyes; his wife was not invited to church parties; and his business was boycotted. Finally, at the end of his wits, he went to his father and said, "Dad, I am in deep trouble. You got me into this trouble, and you must help me to get out of it." The old gentleman asked what the trouble was, and when the son told him, he said, "Oh, don't worry about that, my boy. I will tell you how you can avoid all those difficulties. Whenever there is a proposal to build a new church, you vote for the new church, but whenever a site is proposed, no matter where it is, you vote against the site. Then you will be out of trouble."
The story ended there, but I suppose that one might add that the young man followed his father's advice, and lived happily with his family ever after without assuming responsibility either for building or not building the new church. I add this because I have experienced the reenactment of this story hundreds of times in politics. People will often say to controversial proposals they wish to avoid deciding, "Oh, I agree with the principle, but I cannot agree with the proposed remedy."
Giving Judicial Meaning Not Easy
We even encounter this in the judicial process. There, in interpreting the often ambiguous or even contradictory laws of the legislative branch of the Government, the courts are required to divine from the legislative history, consisting of proposals, counter proposals, desultory argument, explanation of votes, etc., what judicial meaning should be given to the statute. Then, according to the meaning ascribed to it, it must be checked with some broad, general language in the Constitution to see if it conforms. When that has been done, the interpretation must be applied to the facts as developed in a courtroom, usually controverted and often not precise, in order to arrive at a final decision. And, of course, in the process, the foibles of the judge must also be accommodated. Few solutions could be less scientific than this. But in the judiciary we can only do our best under the circumstances.
But most of our problems of today stem from human relationships, and their solution must be achieved through human reactions. In more than a half century of experience in dealing with such problems, I have naturally, and almost of necessity, formed some conclusions, both as to the importance of the major problems and of the priorities which should be accorded them.
Many of them have been developing since the birth of our nation, and largely because our advances of recent years in science and technology have been so rapid that all of them are surfacing at about the same time. Certainly, they are all plaguing us today. It is not easy to assign relative importance to them, but I suppose that most people would agree today — not a few years ago but only recently — that warfare and particularly the undeclared war in Indochina is one of the most pressing. However, being something of an optimist, I am persuaded that because most people are so minded our participation in the Asiatic war will end in the foreseeable future — not speedily enough to satisfy all of us, but that it will end. We will then be free to focus our attention, our money, and our energy on taking care of the many domestic needs which have been starved during the 25 years we have been almost constantly engaged in warfare.
Rehabilitate Our Resources
In the rapid development of our country from ocean to ocean, and with the burgeoning of our population from four million to more than two hundred million, we have neglected to protect our natural resources, until deterioration of the environment of land, sea, and air is said to be approaching a question of the survival of plant, animal, and even human life. But I believe that with the public realization of the danger involved, and particularly realization on the part of the young people of our nation, we will have the capacity to turn the tide and rehabilitate our air, our water, and our soil. As a layman, and again as an optimist, I believe that the scientists who have made it possible for us to fly to the moon, to transplant human organs from one body to another, and to transmit vision as well as sound instantaneously throughout the world, will be able to find solutions, provided there is a national commitment to that objective and a dedication of the forces of science to it comparable to that which took us to the moon.
Also, during these same years of development, we have forgotten to preserve some of our human values, and have failed in our obligation to protect the health of our people until we now find, to our distress, that among the developed nations of the world we stand thirteenth in infant mortality; seventh in the percentage of mothers who die in childbirth; eighteenth in life expectancy for males; eleventh in life expectancy for females; and sixteenth in the death rate for middle-aged males.
Educational System In Trouble
Although we have developed a great system of both elementary and higher educational institutions, we are in trouble with the system at the present time. We do not appear to be satisfying the students, the faculties, the administrators, or the public. However, with as many people as we have dedicated to that cause, I have no doubt that it, too, will soon reoccupy its rightful place in the sun where truth can be freely pursued in peaceful surroundings with the cooperation of all who have a thirst for knowledge.
Poverty also can be wiped out in a country which is renowned for having the most affluent society in recorded history. It is difficult to believe that in a bountiful country such as ours, where the Government pays farmers not to plant staples of life and where a portion of an overabundant crop is required to be left on the tree, vine, or ground to rot, that one out of seven of our people, as has been widely reported recently, should go to bed hungry every night. Certainly, if our agricultural scientists and the industry of our farmers can make our land that productive, our technologists and the Government can distribute crops in a way to prevent hunger and avoid waste.
But the one thing that has the badge of insolubility on it is the problem of how we are to live together in harmony and mutual respect. We have boasted for almost 200 years that we are a plural society wherein we achieve unity through diversity and accommodate diversity through unity.
The Greatest Problem
But again the sins of former years are upon us, and it is my belief that the question of whether we can permanently have such a society is the greatest problem before the American people today. We started wrong, of course, by tolerating the cruel institution of human slavery which was in direct contradiction of the noble phrase in our Declaration of Independence to the effect —
"... that all Men are Created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness ..."
It took almost a hundred years for us to absolve ourselves from the curse of slavery through the Thirteenth, Fourteenth, and Fifteenth Amendments to our Constitution after a bloody fratricidal war in which one out of every ten young Americans of military age gave their lives. And I believe that Kansans are, or at least should be, more aware of that than any other state in the Union because during that Civil War, Kansas had the highest percentage of casualties of any state in the Union. That ultimately was not the end of our problems, and today, after a hundred more years of our national life, we are still paying the price for that slavery.
We have in the nation today about 22 million Negroes who still bear vestiges of that badge of slavery, and they are still struggling to be out of the class of inferior citizenship. The emotions engendered by hundreds of years of discrimination and cruelties have welled up in them to the point of deep bitterness.
Demanding Rights And Privileges
They are, for the first time in our history, demanding en mass the rights and privileges of citizenship which have been denied them for so many years — the right to live where they desire; the right to a decent education without discrimination; the right to vote; the right to participate freely in their government; and the right to be treated in accordance with human dignity. The violence implicit in these denials, as exemplified all along the line by lynchings and other unlawful injuries to them, has now provoked counter violence in many quarters, and the time has come when the nation must restore good will and cooperation regardless of race or color if we are to be a healthy nation.
Because of the indignities which have been showered on them, like indignities, if not in degree, have been put on others within our borders who also do not have the same pigment in their skins as do the majority of us. There are a half million American Indians who also are chafing openly about their ill treatment through the centuries. We have a million and a half Asiatics and several millions of the ancestry of our Latin American neighbors living largely in the southwestern part of our nation, and they, too, have felt many of the indignities which were so prevalent against the Negroes because indignity to one person brushes off on another as well. Together — possibly 30 million — they constitute a large percentage of our total population, and are becoming more divided from the vast majority day by day.
The results of these disaffections have come to plague us in a myriad of ways. Without education, without training in keeping with automation and advanced technology of all kinds, they have been deprived of a livelihood, and at the present time are largely mired down in the slums of our great cities. In the cotton industry in the southern states alone, 900,000 illiterate cotton pickers have been displaced by recent cotton picking machines, and they, with their families aggregating between two and one half or three million people, were thrown out of their livelihood. This number does not take into consideration a similar loss of employment in the important cotton-growing States of Arizona and California, nor does it take into consideration the loss of employment in the western states because of the mechanical fruit, nut, and field crop pickers which work was done by the same people, most of them illiterate.
An Army Of Unemployed
Other millions of illiterate and untrained people, largely black, have lost their jobs through other kinds of automation, and are in a similar predicament. Together they constitute an enormous army of the unemployed. Without education or mechanical or technological skills, and there being no other employment in the rural areas where they have always lived, millions have moved to the cities in desperation to find places in the industrial world.
Degradation Is Rampant
Without skills or the education to learn them speedily, and without even hospitable treatment in their newly found home, they drift into the already congested slums where unemployment is out of all proportion, where housing is deplorable, and where degradation of every kind is rampant. There they stay as if they were imprisoned. With rare exception, there is no place for them to go except from one slum to another. They wait from month to month, therefore, for a relief check, completely frustrated and eventually become embittered.
They are looked down upon by people in affluent circumstances who flee from them to the suburbs and leave them a people apart from the mainstream of American life. These slums contaminate every city where they exist, and weaken them in the same manner as a diseased lung, a diseased heart, or a diseased liver weakens the human body. And cities can die as do human beings. History is replete with examples, but as someone has said, our problem is that the only thing we learn from history is that we do not learn. All of us must recognize the plight of our great cities and the problems they have in maintaining a viable society. Poverty, crime, degradation, and complete frustration are the result of these great mistakes of the past.
Slum Dwellers Mostly Minority Groups
All of the slum dwellers, of course, are not black or yellow or tan, but a fast growing majority of them are. About ten million of our people were born in a foreign country, and the vast majority of them are white. On the other hand, millions of them were poor and often landed in a slum when they arrived in this country. They, too, suffered the indignities of slum life, but if they were literate and white they could more easily work their way out of their sordid surroundings. However, many of them are still there under conditions that belie the invitation on the Statue of Liberty at the entrance to the harbor of New York where eighteen million immigrants have thrilled and even cried as they entered our country.
That invitation reads —
"... Give me your tired, your poor, Your huddled masses yearning to breathe free. The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me. I lift my lamp beside the golden door!"
The hard core of all slums is made up of those unfortunates who have been discriminated against all their lives. It is difficult for those of us who have always been able to enjoy our freedoms to understand the feelings of those who have never had them, but who are now at long last determined to have them. This is not an unaccountable phenomenon. From 1941 to 1945, we fought a war, according to the solemn promises of our Government and her allies, to assure the four freedoms for all people throughout the world. American white and black boys fought and died, side by side, in that war, and in Korea, as they are now doing in Vietnam.
Only a few weeks ago in one of our southern states, a soldier who was killed in action in Vietnam was denied the right of burial in a cemetery with other soldiers who were killed in action merely because he was black.
And the tragedy of his death in greater intensity was visited upon his parents. And only a few years before that a North American Indian was denied burial in a northern state for a similar reason, even though he had died in battle in Korea. And it seems to me that those who live together in life, and certainly those who are joined together for the preservation of our nation should at least be entitled to be buried in the same burial ground regardless of color, race, or creed.
Is it unrealistic or premature for them to now demand equal rights under the law?
There can be no other answer to our problem than to wipe out the discrimination for which we have now become so notorious, and to treat everyone in the nation with the consideration that we have always demanded and received for the majority of our people. Nothing else, it seems to me, will restore amnity to our country; nothing else will bring harmony to our educational system, to our cities, and the political life of the nation.
I suppose I am particularly sensitive to this situation because during the years when I was active on the Supreme Court, and when these minority groups were coming to us to achieve their constitutional rights, many people would say to me, "I agree with you that there should be no discrimination and that everybody should be treated equally under the laws, but don't you think that we are moving too fast? The Negroes have improved their situation in the United States more in the last hundred years than they have in any other part of the world." Now, this was said, not in anger, but as an escape from responsibility, very much like the old deacon in the building of the church. However, the question assumed that the Supreme Court had the right to ration freedoms, and that it should go slow enough so as not to offend anyone in doing so. Of course, no such power exists for the courts either in law or morals.
Either all rights of citizenship belong to the minorities in our country or they are entitled to none, as was said of them in the Dred Scott decision which precipitated the Civil War. The plain words of the Constitution now answer that question.
Bitterness Born From Discrimination
When the basis of problems is bitterness, the solution is impossible until the bitterness is removed. The bitterness in this situation is born of the discrimination of centuries, and can only be removed by elimination of that cause.
It, therefore, seems clear to me that if we are ever to have a placid nation again at least during the lifetimes of our children and their children, it will be necessary for us to set aside our prejudices on account of race or color, and be willing to live in a plural society where American citizenship means, in fact as well as in precept, that all men are created equal, and as such are entitled to Life, Liberty, and the pursuit of Happiness.
There is only one other alternative, and that alternative is — chaos.