Americans enjoyed personal freedom and, generally, the nineteenth century was marked by a high degree of mutual trust. Or, one might also say, the nineteenth century was marked by a high degree of mutual trust and therefore Americans enjoyed personal freedom. When people trust one another, there can be personal freedom; when people do not trust one an other, there is not likely to be personal freedom; when there is good reason not to trust one another, there should not be unlimited personal freedom. (Berns 1956 17)
(….) [D]uring the period of the first World War, and for a few years thereafter, not all Americans were trusted by the community. However unjustified this distrust, it is a fact that many of the distrusted were jailed and two were put to death; it was at this time that Congress made its first law abridging the freedom of speech and press since the Alien and Sedition Acts, and made it in the face of a First Amendment that absolutely forbids Congress to make such laws. And it was at this time that the Supreme Court laid down the “clear and present danger” principle, designed to permit Congress to send people to jail despite the words of the First Amendment. Many people protested — in Justice Holmes’ words, “There was a lot of jaw about free speech” — but the federal government never lost a case. In fact, the federal government, despite its increasing demands for loyalty in speech and deed, was destined never to lose a case. (Berns 1956, 17)
In fact, one of the best treatments of American politics, and an inquiry that began in wonder — de Tocqueville’s Democracy in America — recognizes a dimension to the political problem that illustrate, what cannot be recognized, let alone understood, in terms of the conflict between the state and the individual:
There is, and I cannot repeat it too often, there is here matter for profound reflection to those who look on freedom of thought as a holy thing and who hate not only the despot, but despotism. For myself, when I feel the hand of power lie heavy on my brow, I care but little to know who oppresses me; and I am not the more disposed to pass beneath the yoke because it is held out to me by the arms of a million men. (Berns 1956, 19)
We must certainly guard against tyrants in the older sense (but no reasonable man today believes that this is the danger we face), but it would be foolhardy to be defenseless against other dangers.
(….) [F]or it would permit wicked men the freedom to undermine the virtue of citizens (those of you who are familiar with Winters v. New York will know what I mean), while preventing the government from promoting the virtue of citizens, a primary task of government according to an older view. That it is not the role of government to habituate citizens to virtue is expressed in the words of Justice Jackson, writing for the Court in the second flag salute case:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . .
The idea expressed here is certainly the orthodox American view on the subject; any other view would permit a deprivation of political and religious freedom in the name of someone’s view of orthodoxy; any other view would seem to violate the First Amendment.
It was on the basis of the definition of loyalty as patriotism that certain Germans, later designated as war criminals, committed the most hideous crimes, while their prosecution at Nuremberg was based on the proposition that there is a cause beyond Fatherland to which a man should be loyal. At Nuremberg this cause was said to be humanity. Loyalty as blind patriotism is obviously not enough; the reasonable man will insist that his country be worthy of his loyalty by representing a cause with which he can agree. (Berns 1956, 21)
Justice Douglas said:
Full and free discussion has . . . been the first article of our faith. We have founded our political system on it. It has been the safe guard of every religious, political, philosophical, economic, and racial group amongst us. . . . This has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality. . . . We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world.
A reasonable man would withhold his loyalty from a Marxist regime even if Marxism became the popular doctrine in a fair market-place competition; he would behave in a similar fashion if McCarthysim became the popular doctrine and McCarthy were elected President. It would be no comfort to him if McCarthy were elected in a free and honest election; in fact, it would be a source of more discomfort than if he seized power, because the possibility of a change for the better would be more remote.
The conclusion is that just as loyalty cannot be defined as patriotism, neither can freedom be the cause to which we pledge our allegiance. In fact, loyalty can be defined reasonably only in terms of moral principle.
As with so many other problems, this problem of loyalty was stated most clearly by Aristotle in the third book of the Politics. Here, in the context of examining the nature of the polis, he is forced to raise various questions concerning the citizen, one of which is, as everyone knows, whether the “goodness of a good man is the same as that of a good citizen.” Aristotle answers, not necessarily; the goodness of a good man is the same as that of a good citizen only in a good society. The good citizen of Nazi Germany, Himmler, is a bad man. The good Englishman, Churchill, is a good man.
It is obvious then that disloyalty is so far from being an evil thing in itself that it becomes a moral necessity at times; conversely, loyalty is so far from being a good thing in itself that it is an indication of moral depravity at certain times and places.
It is equally obvious that that principle to which one gives his loyalty, that cause, cannot be the fatherland — loyalty cannot be patriotism — but must be something which makes the fatherland what it is, something which gives the fatherland its character. For Aristotle this was the regime, sometimes translated as constitution; and this discussion of citizenship occurs in the context of a discussion of the various kinds of regimes, or constitutions, which are seen to differ from one another by the goals they pursue, or we may say, by the principles by which they are guided. Citizenship is relative to the regime; the good man is a good citizen in a good regime.
In Aristotle’s terms, the just regime must possess virtue.
Loyalty is seen to be related to the regime, to the way of life of a country, and the difference between regimes is a moral difference: the good citizen of a bad regime, Himmler, is a bad man. Thus the question of loyalty is a moral question not to be avoided by an unthinking waving of the flag, on the one hand, or by denying the existence of a regime with a purpose on the other.
The problem of freedom and loyalty cannot be severed from the political problem. The political problem is how to get consent to wise political decisions or wise leadership, leaders in Hamilton’s words, with the “wisdom to discern and the virtue to pursue the common good.” In a democracy this means how to educate, how to form the character of citizens so that they will give their consent to wise leadership and withhold it from bigots and demagogues…. For if the citizens vote for bigots and demagogues, there will be no free speech: we can be certain that demagogues will censor. To avoid demagogues and the totalitarianism of society that de Tocqueville feared, it may be necessary to censor — it will certainly be necessary for the law to promote virtue, to train citizens in virtuous ways, to foster loyalty to moral principle.
They do not consider the possibility that freedom unguided by moral principle may lead to the destruction of everything that makes American citizenship a possession valued by good men and loyalty to America a virtuous commitment.
My argument may be summarized as follows. Loyalty to a bad regime is an indication of moral depravity — the case of Himmler and Nazi Germany. Loyalty to one’s country is justified only if one’s country deserves that loyalty: loyalty in itself is not a virtue. In order that a country deserve the loyalty of a good man, it is necessary that it promote virtue, which necessarily means that it must limit freedom. Freedom cannot be defined as license. Such a limiting of freedom is justified if it is done in the name of moral principle. The problem is complicated by the fact that the man loyal to moral principle, de Tocqueville for example, requires personal freedom to resist the demands of the Fatherland as Fatherland and the demands of society as society. Such a man knows that the absence of official censorship does not guarantee a solution to the problem of freedom.
The libertarian conception of freedom as the greatest good grants to freedom the place once occupied by virtue; whereas the purpose of the law was once to promote virtue as a precondition for the attainment of the good social order, the social order in which freedom is both possible and desirable, it now became the protection of freedom, a guarantee of natural rights — rights possessed by everyone, including Eugene Dennis, the Communist, Murray Winters, the purveyor of corrupt magazines, and Arthur Terminiello, the foul-mouthed vilifier of the innocent. As I said in the beginning, such an approach to the problem of freedom and loyalty is blind to decisive aspects of the political situation.