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For release 7:30 p.m.
Central Daylight Time
Thursday, April 29, 1971
Remarks of J. L. Robertson
Vice Chairman of the Board of Governors
of the
Federal Reserve System
at
Banquet in Observance of Law Day, U. S. A.
sponsored by
The Southwestern Legal Foundation
at
The Hilton Inn
Dallas, Texas
April 29, 1971
A Malaise of Our Time
It is a pleasure for me to have an opportunity to
visit Dallas and the great state of Texas. But there is
something slightly incongruous about a central banker from
the east coming out to the state that is famous for that
fine law enforcement body, the Texas Rangers, to talk about
law and order. However, I suppose that if Texas can send
a lawyer, John Connally, to Washington to tell us how to
manage money, a money-man is entitled to come to Texas to
make a few remarks about the crisis in crime.
Actually there is much to be said for having our
problems examined by people whose vision is not limited
by overfamiliarity with the problem. The obvious is not
always as plain to one who is very close to a situation
as it is to an outsider. I am reminded of a story about
a bartender many years ago in my home town, Broken Bow,
Nebraska. An Englishman was visiting Broken Bow and he
dropped into the saloon for a drink. He witnessed what
seemed to him to be a very strange event. A man came in
and ordered a beer. After drinking it, he walked up the
wall, across the ceiling, down the other wall, and out the
door. The Englishman watched this with amazement, and af
ter the man had departed, he turned to the bartender and
said: "I say, wasn't that a bit unusual?" The bartender
replied: "It sure was. I have never seen him drink beer
before."
I must confess that I am not exactly a stranger in
your midst. vMy formal training was in the legal field, and
my lifelong career in government has given me a deep and
abiding interest in the role that law plays in our society.
There are many factors that have contributed to
man's upward progress. There is the spirit of scientific
discovery and invention. There is the spread of enlighten
ment and knowledge through education. There is the "taming"
of the human animal by the inculcation of religious and moral
sentiments that bring about internal self-control. All of
these are important, but none of them, singly or together,
could have produced the flowering of civilization without
the development and acceptance of the rule of law. The
orderly regulation of man's relations with his own family,
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his neighbors and all the other members of his society
through law has been a key element in social and material
progress throughout history. In this country we have been
extremely fortunate to have had a system of laws and gov
ernment that has given us security and stability while at
the same time affording maximum opportunity to exercise
our liberty to experiment and explore. We have had gov
ernment based on the consent of the governed, and that
has meant heavy reliance on respect for the law and will
ingness of the individual citizen to honor and uphold it.
I think this has been an important key to the great
ness that our nation achieved in a relatively short period
of time. There are those who now think that we may have
passed our peak of greatness and that we are entering into
a period of decline. There is one important piece of evi
dence that would support this view: a deterioration in
respect for the rule of law, which is becoming distress
ingly obvious.
Those of us who appreciate the importance of the
rule of law can understand the tremendous damage that is
being done to our social fabric, even though this goes
virtually unperceived by the ordinary observer. We know
that the poison of disrespect for law is cumulative in its
effects. We cut a corner here and another there, always
for a good reason, and after a time we find that we have
substantially reduced our power to control human behavior
by the force of law. As Professor Paul Freund counseled
us a few years ago, in another context: "...to jettison
principles of law because your aims are pure, or holy, or
patriotic, denudes you of defenses against those who are
just as certain of their rectitude." If the law may be
ignored for reasons we think good, others will claim the
equal right to ignore it for reasons they think good but
which we may consider totally bad. Each man becomes his
own judge and jury. Actions that would have been unthink
able in an earlier age, when law commanded respect, become
commonplace. And as William Pitt said: "Where law ends,
tyranny begins."
Let me cite a few recent illustrations of what I
see as symptoms of a potentially disastrous malaise of
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our time, a malaise that can afflict all members of so
ciety, including judges, legislators and public officials and usually they are not even aware of it.
In 1970 Congress decided that the voting age in
the United States should be lowered to eighteen. This is
a controversial question, but let us assume that the ob
jective was entirely laudable. The question is whether
the Congress had the power to force and freeze this change
in the voting requirements of all fifty states - whatever
their own laws might be - through its own simple statute.
The Constitution seemed clear on this point. The deter
mination of voter qualifications had been assigned to the
states, and the constitutional provision had long been re
spected by Congress and the courts. On three previous
occasions when it was desired to change the voter quali
fications nationally, the amendment route was taken; thus
constitutional amendments were passed to remove the bar
riers to voting for reasons of race, sex, and nonpayment
of poll taxes.
Congress ignored these precedents and chose to make
a sweeping change in voter qualifications by simple stat
ute. The plan was not to have this ratified by threefourths of the states, as the constitutional amending
process requires, but by a simple majority of the Supreme
Court. A quick court test was arranged, with the backers
of this procedure hoping that at least five justices would
go along with this Congressional assumption of a right that
had heretofore been universally recognized as a prerogative
of the states. The Supreme Court split down the middle in
the most literal sense. The deciding vote was cast by a
justice who decided, in a truly unique opinion, that Con
gress could set the qualifications for federal elections but
not for state elections. Since this was not a practical so
lution to the problem, Congress has now gone back to the
constitutional amendment procedure that it should have fol
lowed in the first place. Some may say that no harm was
done, but the fact is that we have seen a partially suc
cessful circumvention of the procedure laid down to protect
against Congressional majorities effecting fundamental
changes in our Constitution.
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I doubt that many members of Congress or the Supreme
Court who supported this end run around the Constitution
gave any thought to that passage in Washington's Farewell
Address in which the Father of our country said:
"If...in the opinion of the people, the
distribution or modification of the Constitu
tional powers be in any particular wrong, let
it be corrected by an amendment in the way which
the Constitution designates. But let there be
no change by usurpation; for though this, in one
instance may be the instrument of good, it is the
customary weapon by which free governments are
destroyed."
If the procedure followed in the case of the eighteen-year old vote is allowed to stand as a precedent,
what is to prevent our Constitution from being similarly
altered by legislative majorities in other cases? Noth
ing but the consciences of five justices of the Supreme
Court. This is an imperfect defense against constitu
tional usurpation. One could feel more certain of the
future of our constitutional safeguards if there had been
a loud public outcry against the circumvention of the
amendment process. I heard none.
The door was opened, if only by a crack, to the
abrogation of the power of the people, through their state
legislatures, to veto proposed changes in the Constitution.
This malaise is infectious. We are an impatient
people. We are a practical people. We see what looks like
a desirable objective, and we want it now. In the past we
have been restrained by those wise restraints built into our
legal system which served as a barrier to our natural im
petuosity. This worked only because we accepted the great
principle that the law must be observed. Deny that prin
ciple, and the barriers to impetuous action collapse.
I am sorry to say that the infection has spread so
widely that it has even invaded my own agency. In a re
cent case involving a matter of bank supervision, the Fed
eral Reserve Board was confronted with a dilemma. The
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Board wanted to permit banks to carry out what many think
to be a perfectly reasonable operation of collecting de
posits by armored cars. The difficulty was that the Su
preme Court, interpreting the federal statutes, has ruled
that such deposit-collecting cars were bank "branches".*
Thus, in states where the law restricted such operations
by banks, the federal statutory restrictions on branch
banking would seem clearly to apply to the use of armored
cars to gather deposits.
If the objective of facilitating the use of armored
cars to gather deposits was a good one, it should have been
achieved by seeking changes in the laws. But this would
take time, and besides it might not be possible to get the
laws changed. A simpler course was available. A legal in
terpretation was formulated which the majority of the Board
utilized to avoid following the Supreme Court's decision.
Thus, the corner was cut. The immediate objective was
achieved; but a precedent was established, a precedent
that in my view contributes to the cumulative undermining,
step by imperceptible step, of the rule of law on which
modern civilization has been built.
The public will not get very excited about the rul
ing of the Federal Reserve on armored cars, although the
principle involved is an important one. I would like to
cite another case which is a more likely candidate for
deep public concern.
Recently the Federal Communications Commission is
sued a notice advising broadcasters that they should make
themselves aware of music "tending to promote or glorify
the use of illegal drugs". The Commission did not actually
bar this music from the air, but it said that the airing of
songs that glorified illegal drugs by broadcasters would be
a factor that would be taken into account in the Commis
sion's consideration of applications for license renewals.
*First National Bank in Plant City v. Dickinson, 396 U.S.
122 (1969). In Jackson v. First National Bank of Gaines
ville, 430 F. 2d 1200 (1970), certiorari denied by the U.S.
Supreme Court March 1, 1971, the same principle was applied
even though the armored cars were owned and operated by a
subsidiary of the bank's holding company.
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One member of the Commission dissented from this
decision, charging that this was an effort to censor song
lyrics. Two days after the ruling was issued, this same
official, according to one press report, appeared on a
radio station in New Haven, Connecticut, and for a solid
half-hour played the very type of records his Commission
had asked the broadcasters to avoid.
The propriety of the action of this official in
openly flouting the decision of his own Commission is
questionable. It is one thing to criticize a law or a
ruling; it is quite a different thing to defy it. One of
the great reformers in law and government, Jeremy Bentham,
put it well when he said: "Under a government of laws,
what is the motto of a good citizen? To obey punctually,
to censure freely."
My purpose here is to focus your attention not so
much on the conduct of this official as upon the attitude another symptom of the malaise - that I believe to be re
sponsible for much of the shocking increase in crime and
lawlessness that this country has seen in the past decade.
I refer to the attitude that society must accept
the verbal or pictorial justification and even glorifi
cation of unlawful activities. It is the attitude that
society may bar the criminal acts themselves, but has no
right to bar incitement to commit such acts. The dissent
ing Commissioner said that the lyrics of songs that encour
age or glorify drug use are "irrelevant" and that artists
must be allowed "to run free". Never mind if these lyrics
and the artists who compose and sing them lure thousands
of youngsters into the trap of drug addiction, ruining
their lives, forcing many of them to turn to crime to sup
port their habits, bringing tragedy into the lives of all
who love them. Society, according to this theory, has no
right to still the Pied Piper's flute.
When a society does not tolerate a certain form of
conduct, it takes the measures necessary to see that that
form of conduct is rarely, if ever, seen. There was a
time, for example, when American society did not tolerate
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the use of narcotics. Virtually every member of society
agreed that this was an evil that should not be tolerated.
Drug users were severely punished, when caught. But their
numbers were few, not because the punishment was severe,
but because no one recommended, condoned, or defended the
use of narcotics.
Today we have a serious narcotics problem in this
country. The punishments have not changed. The diligence
of the law enforcement agencies did not suddenly diminish.
What did change, slowly but surely, was the extent to which
society became tolerant of the use of narcotics. The pun
ishment remained the same, but we began to see toleration
of the advocacy of the use of marijuana, LSD, and harder
drugs. The notion that use of narcotics was not bad, but
perhaps even good, began to appear in various media of com
munication - newspapers, magazines, books, motion pictures,
and popular songs. The advocates of drug use acquired suf
ficient respectability that they were able to spread their
message with relative ease and in many cases to their own
substantial pecuniary profit. It is saddening to note that
the strongest opposition to the FCC ruling on drug-oriented
music comes from the record companies that have made mil
lions of dollars from these songs.
In narcotics control, as in any other constraint,
the rule of law depends on the maintenance of a climate in
which the law violators are a minuscule proportion of the
population. This means that only a small part of the re
sources of society has to be devoted to detecting, trying
and punishing the lawbreakers. When the number of people
who flout any particular law rises to a certain level, an
open society that does not wish to resort to terrorist tac
tics finds it impossible to enforce that law. This is true
even though those who defy the law may actually comprise
only a small minority of the total population.
If we really want to stamp out the narcotics traf
fic and other crimes, it seems clear to me from all past
experience that we have only one practical course that
would be appropriate for our kind of society. We must
cease to be tolerant of incitement to or encouragement of
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violations of the law. We ought to aim at the creation of
a climate where the commission of these crimes is virtually
unthinkable, as it indeed is in many civilized countries.
This is not an untested theory. Some months ago
an article in the Washington Post pointed out that Japan
had successfully avoided the kind of drug use epidemic that
has swept our country. Writing from Tokyo, the author noted
that the Japanese strictly enforce the laws against illegal
drugs, including marijuana, and added:
"Apart from the tougher police approach here,
the underlying reason for Japanese success in con
trolling drug abuse appears to be the overwhelming
public hostility toward narcotics and a correspond
ing willingness to cooperate with the police...In
movie and TV thrillers here one of the most common
villains is the dope smuggler, invariably depicted
in venal colors."
He then went on to describe the great caution with which
the daily press handled narcotics-related news.
This is in sharp contrast with the irresponsibility
displayed by the communications media and the entertain
ment industry in our own country. Here we have seen dan
gerous narcotics glorified in the songs designed to appeal
to impressionable teenagers. These have been distributed
by large record companies and have been played over the
air repeatedly throughout the country. The "artists" have
indeed been allowed to run free. Those who were notorious
advocates of the use of dangerous drugs have been lionized
on television and in the press.
More than two decades ago, one of the wisest men
of this century, Judge Learned Hand, in his famous essay
on "The Spirit of Liberty", said:
"The hand that rules the press, the radio,
the screen and the far-spread magazine, rules
the country; whether we like it or not, we must
learn to accept it. And yet it is the power of
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reiterated suggestion and consecrated platitude
that at this moment has brought our entire civili
zation to imminent peril of destruction. The in
dividual is as helpless against it as the child
is helpless against the formulas with which he is
indoctrinated. Not only is it possible by these
means to shape his tastes, his feelings, his de
sires and his hopes; but it is possible to convert
him into a fanatical zealot, ready to torture and
destroy and to suffer mutilation and death for an
obscene faith, baseless in fact and morally mon
strous."
It appears to me that this tremendous power de
scribed by Judge Hand has, in our society, devolved upon
men who in many instances seem ready and willing to pro
mote crime and the moral disintegration of our society
for their own profit. This is clearly true of the record
companies that have protested the FCC memorandum on drugoriented music. The movie makers, the broadcasters, and
the publishers have frequently shown similar lack of con
cern for the consequences of the products they peddle.
One of the most pernicious influences has been the
so-called "underground" press, which circulates very much
above ground among our young people. These papers openly
advocate the use of dangerous drugs, and in many cases they
have condoned and even encouraged crimes of violence printing instructions, for example, on how to make bombs.
The irresponsibility is not limited to the "under
ground" press, however. One of our most prestigious news
papers has published numerous articles that have defended
and even advocated the use of an illegal drug, marijuana.
The paper, of course, editorially deplores the terrible
drug epidemic that is daily taking the lives of children
in its city. It apparently sees no connection between the
spread of the evil it deplores and the advocacy of drug
use that is found in its own columns and in the movies
and books it advertises.
We have also seen in the press and on television
a tendency to explain the inexcusable bombing of public
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buildings, including even the Capitol Building in Washing
ton, in terms that come very close to a rationalization of
these despicable deeds. It has been said that the bomb
ings were the acts of frustrated young people who found
society unresponsive to their legitimate demands and who
took this way of expressing their disappointment. This is
a form of the discredited argument that it is society, not
the individual, who is to blame for crimes the individual
commits.
If a society permits its young people to be taught,
by one means or another, that it is all right to blow up
buildings, no one should be surprised if some of those
young people decide to engage in that activity. I know
that it is contended that no harm is done by mere advocacy
of illegal deeds. There are some very respectable people,
including some eminent jurists, who contend that a truly
free society must permit the advocacy of anything and every
thing, no matter how repugnant it may be. The idea is a
very noble one, in theory. We are attracted to the idea
for two reasons. The first is that our thoughts and the
expression of those thoughts should not be subject to the
control of anyone else, including the government, or per
haps I should say especially the government. The second
is that thoughts have their consequences in the real world
and hence the course of the open society is advanced by a
free market in ideas. Yet the latter proposition confronts
us with a dilemma. Experience and logic both show that
human conduct is strongly influenced by suggestion. Our
multi-billion dollar advertising industry is based on the
idea that people can be induced to buy this or that product from vitamins to hot pants - by reiterated suggestion, by
repeated advocacy.
A society that tolerates advocacy of illegal con
duct will inevitably be faced with a higher crime rate
than a society that clamps down on the advocacy of criminal
conduct as well as on the conduct itself. It will be
obliged to put a greater amount of its resources into
policing the criminals, trying them, and incarcerating
them. The cost of this, as we are discovering, is very
great not only to society as a whole, but to those indi
viduals who are unfortunately led into the commission of
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criminal acts.
and wasted.
Their lives are almost invariably ruined
Hence, we have the seeming choice between two al
ternatives. On the one hand, as members of a free society,
we want ideas to be generated and circulated without cen
sorship or fear. On the other hand, we must be free of
the terrible plague of criminality, which can snuff out
not only the rights of freedom and security that civilized
men are entitled to enjoy, but even life itself. But that
choice is really illusory for - as the late Justice Robert
Jackson warned us - the choice is not between liberty and
order, but between liberty with order and anarchy without
either. And until very recently, virtually all societies
have agreed. They have opted for some restraints on what
could be advocated, aiming to prevent crimes by that small
part of the population that might prove susceptible to
suggestion that they flout the law. This was a view that
was supported by our most eminent official interpreters of
the Constitution, including Justice Oliver Wendell Holmes,
up until fairly recent times. It was Justice Holmes, you
will recall, who struggled with this problem and formulated
the so-called test of "clear and present danger". This
distinguished between advocacy of illegal acts which might
clearly involve the danger that it would lead someone to
break the law and advocacy that did not appear to involve
that risk. Holmes felt that society could safely tolerate
the latter, but it had every right, even the duty, to sup
press the other.
This seemed to be the obvious resolution of the es
sentially spurious dilemma. However, a more recent school
of jurisprudence has discarded it in favor of the theory,
an incredible theory - unsanctioned by history, untenable
in logic, and repudiated by experience - that freedom of
speech is indeed an absolute, which should under no cir
cumstances be subjected to any restraint. The acceptance
of this theory in recent years has opened the way for un
inhibited advocacy of criminal conduct in a wide variety
of ways. Not only has it become possible in song and drama
to suggest the glories of the use of narcotics to impres
sionable young people, but it has become possible for agi
tators to harangue emotional crowds with recommendations
that they burn or bomb public buildings.
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We are now told that the proper remedy for the
evils that we have caused to be visited upon our society
is intensified education. It is said that we must step
up our efforts to persuade young people that it is not in
their best interests to ruin their lives with drug addic
tion or to take up bombing as a hobby. I would certainly
agree that education along these lines would be highly
desirable. However, I wonder how much sense it really
makes to redouble our efforts in this direction when at
the same time we do nothing to halt the countereducation
which is in progress - the advocacy of these evils by
means that seem to impress many of our young people more
than do the lectures that they receive in school or at
home. The popular music that suggests drug use is some
thing that even a highly skilled teacher might have dif
ficulty overcoming. A salacious underground newspaper,
spiced with titillating pornography, that carries articles
on how to make and use bombs to "overthrow the establish
ment" may be far more exciting to some young minds than
Bible lessons.
The educational approach reminds me a little of
the Washingtonian who came home one warm day to find that
his wife had turned on the air conditioner but had not
turned off the furnace. The thermostat on the air con
ditioner was set at 70 degrees and the furnace was set
at 75 degrees, and the two were battling it out. This is
what we are doing with the minds of our young people.
Common sense and our long historical and legal tradition
tell us that we can and should protect them against the
corrupting influence of those vicious elements in society
who would lead them down the path to self-destructive
criminal conduct. We should do this by applying the rea
sonable restraints on freedom of expression that were ap
plied with eminently satisfactory results during the first
160 years or so of our Constitution.
I will not pretend that a return to the constitu
tional insights of Mr. Justice Holmes will immediately
solve the problem of spiraling crime. That return, how
ever, affords us the necessary beginning, which is to
understand what the problem really is - namely, that
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crime is essentially a consequence of intellectual and
moral forces, not economic ones, and more specifically
it is the fruit of ideas which circulate in society and
influence the behavior of a susceptible minority.
What we see about us today in the high crime rates
and the declining security for persons and property is
the cumulative effect of the malaise I mentioned earlier,
the gradual erosion of respect for the law. We see this
in the increased willingness to cut legal corners to
achieve desired objectives more rapidly than could be
done if the letter of the law were observed. We see it
in the open flouting of the law by men and women who com
mand wide attention in our communications media. And most
seriously of all, we see it in the attitudes of some of
those who determine the conduct of our communications
media.
Even though I am sure the malaise is curable, 1
do not profess to be able to prescribe the cure. However,
I suggest that we try to find it:
(1) by accentuating the positive about this great
land of ours rather than magnifying its de
fects;
(2) by focusing the spotlight on those people who
are striving to improve our society rather
than on those who seek to destroy it (and in
the process, stop making heroes of those who
blatantly refuse to abide by the law) ; and
(3) by devoting more of our efforts to modernizing
and speeding up our legislative and judicial
machinery and to improving our laws and their
administration, and less of our effort to de
vising ways and means of "righteously” evading
the law, or cutting corners, in our haste to
get somewhere fast.
As I reflect upon the danger to our free institu
tions that is posed by the evident decline in respect for
the rule of law, 1 am reminded of the remedy prescribed
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by Abraham Lincoln at a time when he was troubled with a
similar concern. Lincoln warned that if the laws were
disregarded and the rights of the people were not secure,
the alienation of their affections from the government
would be the natural consequence. Then he said:
"Let every American, every lover of liberty,
every well wisher to his posterity, swear by the
blood of the Revolution, never to violate in the
least particular, the laws of the country; and
never to tolerate their violation by others...let
every man remember that to violate the law, is to
trample on the blood of his father, and to tear
the charter of his own, and his children's liberty.
Let reverence for the laws, be breathed by every
American mother, to the lisping babe, that prattles
on her lap— let it be taught in schools, in semi
naries , and in colleges...let it be preached from
the pulpit, proclaimed in legislative halls, and
enforced in courts of justice. And, in short, let
it become the political religion of the nation...
"While ever a state of feeling, such as this,
shall universally, or even, very generally prevail
throughout the nation, vain will be every effort,
and fruitless every attempt, to subvert our na
tional freedom." ("The Collected Works of Abraham
Lincoln", Volume I, p. 112)
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