What great 20th century American historical figure was a “practical, decently profane, and a most impressive leader?”

You will find the answer to this question, and much more, in this recent and utterly compelling piece from the Jackson List:

In late May 1945, Justice Robert H. Jackson and his fellow justices were nearing the conclusion of their Supreme Court term. They had finished hearing oral arguments in new cases and were writing, editing and handing down opinions. On Monday, May 21st, for example, Jackson announced three opinions for the Court—“the last of [his] crop,” as he described it, of Court opinions for the term.

Justice Jackson at that time also was four weeks into his assignment, from President Truman, to serve as United States chief of counsel in the international trial of now-surrendered Nazis whom the Allies regarded as war criminals. He continued to do Supreme Court work as he needed to, but since late April his “Nazi prosecutor” job was his priority and filled most of his time.

On Thursday, May 22nd, Jackson left Washington to make a preliminary survey of the situation in Europe. He took off from Washington that afternoon and, after airplane refueling stops in Newfoundland and the Azores, he arrived in Paris just after 1:00 a.m. local time on May 24th.

General Edward C. Betts, United States Army Judge Advocate of the European theatre, met Justice Jackson at the Paris airfield. He decided, after conferring quickly in the officers’ lounge there with Gen. Betts and other senior U.S. officials, to stay for a day or two in Paris, working on the Paris-based needs of the case before travelling to consultations in London. The Army then drove Jackson to the Ritz, where he stayed in “a suite big enough and grand enough for a royal family” and got five or six hours of sleep.

Jackson’s May 24th day was filled with high level consultations. He first met with Gen. Betts at his office. His secretary, a British “Wren” (a Women’s Royal Naval Service officer), became Jackson’s, helping him make appointments. A senior aide to General Lucius Clay, the Director of the Military Government of Germany, came from its Versailles headquarters to meet Jackson. They went the airport and met Jackson’s deputy, General William J. Donovan of the Office of Strategic Services. (At the airport, Jackson also ran into and spoke briefly with his Washington friends and colleagues Harry Hopkins, Averell Harriman and Robert Lovett.) Jackson then had a lunch meeting with Donovan and OSS staff back at the Ritz. During the afternoon, Jackson had more meetings with Betts and others at his office. At 4:00 p.m., Jackson met with Jefferson Caffrey, the U.S. Ambassador to France. At 5:00, Jackson drove out to Versailles and had a long meeting with Gen. Clay. At 7:30, Jackson returned to Paris and was introduced to U.S. Army Major Lawrence A. Coleman, a young lawyer who had been assigned to serve as Jackson’s military aide; they reviewed local messages and Washington cables for Jackson.

Following dinner at the Ritz, Jackson took a long walk with Col. John Harlan Amen of his staff. Paris was moonlit but otherwise poorly lighted. They saw few people out. Burned tanks and vehicles lined roadsides. Barbed wire and former Nazi pillboxes were everywhere. Luxury shops appeared well-stocked. Stores for ordinary customers seemed to have no stock.

On Friday morning, May 25th—seventy years ago yesterday—Jackson returned to Gen. Betts’s office. He reported that the Supreme Allied Commander, General Dwight D. Eisenhower, was in Paris. Jackson telephoned and Eisenhower invited him and Betts to meet with Eisenhower at his room at the Hotel Raphael.

Although Jackson and Eisenhower had each lived at various times in Washington, D.C.’s Wardman Park apartment building, they had never met. At the Raphael, Eisenhower greeted Jackson cordially. Eisenhower explained that he was there to get a day’s rest.

They discussed Jackson’s presidential assignment to prosecute war criminals. Eisenhower said he did not support shooting anybody without a trial and hoped that trials would not take long. Jackson explained his preliminary plan to prosecute the Gestapo as a criminal organization, and then to prosecute Gestapo members for the crime of belonging to that organization. Eisenhower stated his support—he said he had seen so much that in his eyes “any bastard who belonged to that outfit is guilty”.

Jackson asked Eisenhower where the principal Nazi prisoners—the prospective defendants—were being held. Betts injected that he was asking the War Department for authority to keep them in jail rather than in prisoner of war camps. Eisenhower said not to bother Washington—simply put the suspected criminals in jail on his responsibility.

Eisenhower stated his full authorization for any war criminal trials, pledging the Army’s full cooperation. He told Betts to get more men if they were needed.

Jackson, in a later diary note, wrote his initial impression of Eisenhower: “He is practical, decently profane, and a most impressive leader.”

As always, thanks to Professor John Q. Barrett. Barrett brings legal history alive!


Jackson in the Holiday Season

Judges and Justices are ordinary people who sometimes do extraordinary things. One of the greatest Justices of all time, Robert Jackson, proved that point during the holiday season of 1945, as chronicled in this post from the Jackson List:

For the Jackson List:

Sixty-nine years ago, the Nuremberg trial was in its fifth week.  Twenty-four actual trial days had been completed and United States prosecutors were still presenting their case—the leading and largest, and only the first of four, national presentations of evidence—to the International Military Tribunal.

On December 20, 1945, the IMT judges recessed the trial for a two-week holiday break.  They decided to recess over the strong objections of U.S. chief prosecutor Justice Robert H. Jackson.  He then was in the seventh month of his presidential assignment to prosecute the principal Nazi war criminals, away from the Supreme Court as its 1945 Term was progressing, and trying to complete the trial and return to the U.S. as quickly as possible.

Late that Thursday afternoon, in his office in the Palace of Justice on the outskirts of devastated Nürnberg, Jackson wrote a long letter to his wife, his daughter and his daughter-in-law.  It chronicles his holiday circumstances and, as Jackson’s writing typically did, it shows a lot of himself:

Dec 20 1945

Dear Rene, Mary and Nancy:-

 Well here we are at Christmas—I have plenty of money and can’t buy a thing.  At least my shopping problem is simple. 

The Tribunal against our protest voted a recess from Dec 20 to Jany 2.  We wanted to work right through except Christmas day.  But nothing doing with the French + British so near home.  The time is too long to remain here in waiting and not time enough to get home [to the U.S.] + back safely.  I can’t take a chance on the long delays now caused by weather over the Atlantic. 

We have planned a short trip to the sun sunshine south of the Alps—Riviera—Rome—(1 day) Athens (1 day) Cairo—If possible we will go to the Church of the Nativity at Bethlehem for midnight Christmas eve service.  It is only 40 minutes by air from Cairo and Cairo two days from here.  Then on the way back we will cut our trip to fit our time.  Seems a rare chance to see something of the Near East.  Our party will be only eight—Gordon Dean—Col. [Robert] Gill—Bill [Jackson’s executive assistant and son, William E. Jackson]—Capt. [John] Vonetes—Roger Barrett a fine boy from Chicago [*no, no relation][—]R.H.J.—and Jean MacFetridge and Elsie [Jackson’s secretary Elsie L. Douglas].  …  We have our own plane and the Army is taking care of us at each point.

…  Last night we gave a combination dinner for staff members….  The cooks and boys got a tree—Elsie made all sorts of things to put on it by way of decorations—nuts and cookies tied up in paper napkins, cut outs of horseshoes, the moon, stars etc etc and finally one of the boys from some German got some lights and Elsies mother sent some icecycles (however you spell it).  It made a really beautiful tree.  Then a turkey dinner.  It was exactly six months before that our plane landed in London—only ones [from that original group] here now were Bill, [Larry] Coleman, [Gordon] Dean, Jean MacFetridge, Alma Soller, Elsie & I.  We drank a wine Rhine wine—(liberated) to ourselves + then made the others drink one to us.  Then they all went to the [house’s] music room and sang Christmas carols—then we had a bus take us all out to the Press Camp where the correspondents were having a rather shabby dance—but for policy reasons I had to show up.  Back about midnight—at least things are early around here.  Everybody thought we had a darned good time considering.  Santa Claus came to our house too—Elsie gave Bill + me each a pair of pajamas—made us ashamed we had not thought so far ahead [back in London that summer, to buy gifts before coming to Nuremberg].  …

The case is going well.  There is complaint that it is dreary.  So it is for people who don’t like hard facts.  I have tried to avoid making it spectacular.  But don’t worry.

…  Love and good wishes—more later


(Jackson’s late December 1945 holiday trip with stops around the Mediterranean Sea did come off as planned.  Eight years later, in what turned out to be the last year of his life, he described that trip quite lyrically in an autobiographical fragment:

I have journeyed to Jerusalem and on a Christmas even to Bethlehem, where walking outside the little village the shepherds were still tending their flocks and the stars seemed almost within reach.  And I have lingered for days at Luxor, resting in the shade cast by temples that the faith of men built 4,000 years ago and trudging through a city of tombs that bespoke their belief that death was a beginning as well as an end.)

The Robert Jackson of Christmastime 1945—he a leading player on the world stage, commanding the power of military occupation, immersed in and proving the horrors of Nazism and World War II, experiencing the wonders of geography and history—is one piece of him and the holiday experience.

Jackson’s December 1945 also letter shows quite plainly, however, that he was even then, in all of his Nuremberg power and special circumstances, a man of human values and not much pretense—as he had been from his humble beginnings and earlier years.  Consider, for example, a Christmastime in the mid-1920s.  Bob Jackson then was a Jamestown, New York, lawyer in his early 30s.  He and Irene had been married since 1916 and their children Bill and Mary were young.  At holiday time, they hosted at home their friends Royal and Alace Bates.  The men went out and then returned with young Bill Jackson’s first toy train—“a wind up affair.”  And then, as Alace Bates recalled it years later, “those big boys”—Jamestown lawyers Bob Jackson and Royal Bates—“played with it all evening then did the tree and we all made merry.”

In this holiday season, I hope that you and yours get to gather with loved ones, to travel and see marvels, and to experience the happiness of a child—and perhaps to be one yourself—with a new toy.

*          *          *

John Q. Barrett

Professor of Law, St. John’s University, New York, NY


The candid lawyer, Robert H. Jackson

The American lawyer, even one who is a partisan, is frequently the only one in the room who is candid. Keep that idea in mind as you read the following piece from the always fascinating Jackson List.

In 1880, Mr. Velona Walter Haughwout of Fall River, Massachusetts, married Helen J. Preston in her hometown, Jamestown, New York. They settled in Fall River but retained ties, through her family, to Jamestown.

Decades later, Mr. Haughwout read Jamestown newspaper stories—some and maybe all sent by his sister-in-law, who continued to reside there—about the activities, including public speeches, of a Jamestown attorney, Robert Houghwout Jackson. [Later to become Justice Jackson.] Perhaps Haughwout and Jackson had met. They definitely were connected by Jackson’s middle name, which was his mother’s maiden name. Haughwout concluded, it seems correctly, that he and Jackson were related descendants of an early Dutch settler in New Netherlands (North America, and later the United States).

In June 1928, Mr. Haughwout wrote his compliments to Jackson:

Robert H. Jackson, Esq.

My dear cousin:

I read with great profit and inflated sense of pleasure your screed upon Russia.

My inflation was due to the astonishment that our family name was sustained by a man of real consequence. I had supposed Haughwoutian oratory to be an extinct art. I salute you sir and am proud to subscribe myself your kinsman.

V.W. Haughwout

That Fall, Haughwout wrote again to Jackson. Haughwout’s sister-in-law had sent him a story on a recent Jackson speech supporting the Democratic Party’s nominee for president, New York Governor Al Smith. “[W]hile I cannot subscribe to your conclusion that Smith should be elevated to the White House,” Haughwout wrote,

I must say that the speech was by far the most satisfying one I have read during this filthy campaign, barring none. It is so superior that I am passing it on to a prominent Boston friend of mine as a specimen of fearless, lucid reasoning. I hope it does not carry him over into the Smith column, but I am for frankness whatever the result. … It would clarify the air if both candidates [Al Smith and Republican nominee Herbert Hoover] were to imitate your candor.

On October 24, 1928, Jackson dictated and sent a letter back to Haughwout. Jackson expressed some agreement about the Smith-Hoover race and then mentioned the candidacy that he found more promising:

I appreciate very much your kind words about my speech but I really think that it only shines by reason of the dismal campaign background which is the worst in my recollection. We have, however, in Franklin D. Roosevelt, a splendid candidate for Governor of New York whom I hope to see elected.

* * *

Robert Jackson met Franklin Roosevelt in 1911 and then had episodic contacts with him over the next seventeen years. Roosevelt was elected Governor of New York in 1928, and thereafter, and even more so after his reelection in 1930, Jackson was in contact with him and involved in state policymaking and politics.

In 1932, the Democratic Party nominated F.D.R. to be its presidential candidate. Jackson became a prominent campaign lawyer and spokesman.

On October 24, 1932, James A. Farley of New York, the Democratic Party’s national chairman, held a press conference at his headquarters, the Biltmore Hotel in Manhattan. Farley announced that he was forming a state-wide lawyers committee to protect Democratic Party interests before the election and at the polls. The committee’s first task, he said, would be to investigate the reported Republican campaign to intimidate workers from voting Democratic. Farley announced that Robert H. Jackson of Jamestown had agreed to chair this committee, and that Jackson would appoint chairmen of district committees to assist him.

Jackson worked quickly. Two days later, he announced that he had appointed Democratic lawyers’ committee representatives in judicial districts and counties across New York State, and that they were investigating dozens of complaints of factory owners and managers attempting to intimidate workers into not voting Democratic.

Late the next week, Jackson reported back to Farley, and publicly, on his investigation of alleged employer intimidation of prospective voters. Jackson and his committee members had found that: (1) only a small proportion of employers had used such methods; (2) the similarity of their methods and “advice” to workers indicated a common origin; (3) such efforts “boomerang,” causing more resentment than intimidation; and (4) federal and state legislation should be enacted to punish “every such attempt.”

* * *

On the following Tuesday, November 8th, Governor Roosevelt defeated President Hoover. In New York State’s race for governor, Lieutenant Governor Herbert Lehman defeated the Republican candidate, attorney William J. Donovan.

Through the following year, Robert Jackson continued to practice law in Jamestown, and to assist the Democratic Party and its candidates.

Mr. Haughwout died in February 1934, two weeks after the U.S. Senate had confirmed his kinsman Jackson’s appointment to his first New Deal office, a senior position in the Treasury Department. In a few more years, his speeches, reports and other writings, and his candor, would come to national and then international attention.

* * *

John Q. Barrett

Professor of Law, St. John’s University, New York, NY

Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY

The education of Mr. Justice Jackson–and Kopf’s one question

Mr. Justice Jackson went to the Albany Law School, but became a lawyer only after “reading” the law. “A ‘county-seat lawyer’, he remains the last Supreme Court justice appointed who did not graduate from any law school . . . , although he did attend Albany Law School in Albany, New York for one year.” Robert H. JacksonWikipedia (last accessed August 2, 2014).

Scott Greenfield has an interesting discussion about whether in this modern day one ought to be able to “read law” rather than attend law school as a condition of bar passage. See Scott H. Greenfield, Lawyers Without Law School, Simple Justice (August 1, 2014). But, that’s a topic for another day.

Today, I want to highlight Jackson’s remarkable “reading list” that a high school English teacher gave him, and which played an integral part in this great man’s eduction. At the end, I will have a question for you!

We learn the following from Professor John Q. Barrett’s wonderful Jackson List about “Miss Willard’s English Reading List (1910)” and how that molded one of the Supreme Court’s best writers:

In 1909, Robert H. Jackson, age 17, graduated from the high school in his boyhood hometown, Frewsburg, New York. That Fall, he began to commute northward by trolley each day—about six miles—to Jamestown, New York. He attended Jamestown High School as a senior, taking subjects that had not been offered in Frewsburg.

At Jamestown High School, Robert Jackson came to be influenced, deeply, by an English teacher, Miss Mary Willard. He took her courses in English and English History. He also studied with her outside of class. In 1910, she gave him a carbon copy of a typed, four-page list of recommended readings—it became, as he wrote on it, “Property of Robt. H. Jackson.” Soon thereafter, Miss Willard gave him a mimeographed copy of a retyped, slightly longer version of the list—an expanded edition, it seems.

Jackson kept both documents for the rest of his life. The five-page version:


Sir Roger de Coverly Papers.

Schraband Rustum.
Sonnet on Shakespeare.

Marjorie Daw.
The Story of a Bad Boy.
The Queen of Sheba.

BIBLE Book of:
Genesis- Exodus-Ruth.
1 & 2 Samuel- 1 &2 Kings.
Esther, Daniel, The New Testament.

Saul (?)
A Death in the Desert.
Pippa Passes.
A Blot in the Scutchon.
The Pied Piper of Hamlin.
Epistle of Karshish.

Wake Robin.
Sharp Eyes.
Essay on Walt Whitman.

The Cry of the Children
Mother and Poet.
Sonnets from the Portuguese.

Rab and His Friends.
Marjorie Fleming.

Pilgrim’s Progress.

Cotter’s Saturday Night.
To a Field Mouse.
To a Mountain Daisy.
On Seeing a Louse on a Ladies Bonnet.
To Mary in Heaven.

Sarter Resartus.
Essays on Burns.
Heroes and Hero Worship.


Prue and I.

Don Quixote.

Prologue to the Canterbury Tales.
Patient Griselda.
Palemon & Aicite (?)

Ancient Mariner.
Kubla Khan.

Essay on Joan of Arc.
Essay on Burns.
Confessions of an Opium Eater.
Flight of a Tartar Tribe.

Our Mutual Friend.
Bleak House.
Tale of Two Cities.
Christmas Carol.
Martin Chuzzlewit.
David Copperfield.

Count of Monte Christo.
The Three Musketeers.

Ode on St. Cecilie’s Day.
Palemon & Ascite (?)

Essay on American Scholar.
Concord Hymn.

Silas Marner.
Adam Bede.

The Deserted Village.
She Stoops to Conquer.

Elegy in a Country Churchyard.


A Man Without a Country.

The Chambered Nautilus.
Old Ironsides.

Abou Ben Adhem.


Les Miserables.

Pere Gynt.
Dolls House.
Master Builder.

Sketch Book.
Knickerbocker’s History of New York.

Ode to a Nightingale.
Ode to Autumn.
Ode to a Grecian Urn.
The Eve of St. Agnes.

The Imitation of Christ.

Mine Own People.
Plain Tales from the Hills.
Soldiers Three.

Water Babies.

LANIER: The Symphony.

Tales of a Wayside Inn.
Building of the Ship.
The Arsenal at Springfield.

Commemoration Ode.
Vision of Sir Lannfal.
Table for Critics.
Prayer of Agassiz.

Essay on Milton.
”””””””””Sam’l Johnson.
”””””””””Earl of Chatham.
Lays of Ancient Rome.

MILTON: Lycidas.
Il’ Penseroso.
Sonnet on His Blindness.
Samson Agonistes.

Reveries of a Bachelor.
Dream Life.

Our Village.

Conquest of Peru.

Paolo & Francesca.
The Sin of David.

Sesame & Lilies.

Lay of the Last Minstrel.


Midsummer Night’s Dream.
Winter’s Tale.
King Lear.
Henry IV (I&II)
Henry V
Richard III
Songs and Sonnets.

The Cloud.
Ode to a Skylark.

The Philosophy of Style.

Verginibus Puerisque.

A Sentimental Journey.

Faerie Queen B’ks 1 & 2.

Holy Living.

Idyls of the King.
The Princess.
Enoch Arden.

The Newcomes.
Vanity Fair.

Cape Cod Walden.

Black Log Studies.
The People for whom Shakespeare Wrote.
In the Wilderness.

Tent on the Beach.
Snow Bound.

Ode to Duty.
Rye Re-visited.

* * *

People ask how Robert H. Jackson, from humble origins and lacking higher education, became one of the finest writers in American public life, U.S. Supreme Court history, international relations and maybe generally. My answers are that he had natural talents, sufficient resources, a love of learning, special teachers, and drive. And that he read—thanks to Mary Willard and others, he read, savored, recited, memorized and thus, in his speaking and writing, consciously and unconsciously, emulated great works.

John Q. Barrett, Jackson List, (July 31, 2014).

I have one question. How many of these classics have you read?


The Fourth of July and Justice Jackson

The Jackson List is out and recounts the busy summer, including most especially the Fourth of July, that then Attorney General Jackson underwent in 1941. Fascinating stuff. With a huge tip of the hat to Professor John Q. Barrett, Professor of Law, St. John’s University, New York, NY and Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY, consider the following.

Justice Jackson was to give a Fourth of July speech despite the fact that he must have been focused almost exclusively on his Supreme Court nomination. Three weeks earlier, on June 12th, President Franklin D. Roosevelt had nominated Attorney General Jackson to become an Associate Justice of the Supreme Court of the United States. On June 30th, a U.S. Senate subcommittee completed four days of hearings on Jackson’s nomination and the Senate Judiciary Committee then voted, unanimously, its approval.

On July 4, 1941, Jackson was supposed to deliver this speech at the Washington Monument as part of the capital’s Independence Day observance. The speech also was to be broadcast live to a national radio audience. Washington’s summer weather, however, intervened. Pouring rain caused the Fourth of July events that were scheduled to occur on Washington’s Mall—a Marine Band concert; a procession of flags and colors carried by representatives of 300 veterans’ and other patriotic, fraternal and civic organizations; Jackson’s speech; and fireworks—to be cancelled for a second straight year.

Jackson did deliver his speech that evening in a Washington radio studio, and it was broadcast nationwide over Mutual’s radio network. The speech also was recorded. When July 5th brought better weather, the events on the Mall were rescheduled. That evening, Jackson’s recorded speech was played for the crowd before the fireworks flew.

On Monday, July 7, 1941, the U.S. Senate confirmed by voice vote Jackson’s nomination to the Supreme Court. On Friday, July 11th, at the White House, FDR signed and gave Jackson his commission. The Clerk of the Supreme Court then administered the constitutional oath to Jackson, who thus was appointed the 84th Supreme Court Justice in U.S. history.

Jackson’s speech is an example of rhetorical excellence. It is worth reading for the beauty of the thing, if nothing else. But there is far more to the speech than beautiful words. In the speech, Jackson contemplates the looming explosion in Europe.  In more gentle terms then we might hear now, Jackson speaks to America’s exceptional place in the world. He speaks of the goodness of the American people, and their concern for men and women throughout the world. In this jaded, self-absorbed and cynical age, Jackson’s 1941 Fourth of July speech is, I assert, as important now as it was then.

I reprint the speech below, and ask only that you take a few moments to read it. If you do, the Fourth of July, 2014, will be marked with the unsettling but important point that Americans cannot (or at least should not) selfishly and solely look inward. In many ways, we have been chosen to carry the weight of the world on our exceedingly broad shoulders.

Here is Justice Jackson’s Independence Day address:

By Robert H. Jackson
Attorney General of the United States

Washington, D.C.
July 4, 1941

For nearly two years now many of us have been bewildered by the headlong course of events in Europe and not a few of us have been confused as to the course of wisdom at home. We have seen a nation which twenty years ago had been vanquished, rise up with a ferocity seldom seen in the history of mankind. We have seen vaunted armies smashed as if they were so much paper. We have seen Europe overrun and England placed in grave danger. We have seen the dictator idea spread in the world. At first its two principal proponents, communism and fascism, appeared to be mortal enemies. Then, one day, they turned up as partners. Now they battle each other.

For nearly two years Americans have been asking each other which way safety and security lie. We have pondered the problem weighing risk against risk and danger against danger. Now at last, on this Fourth of July in 1941, the truth of our situation is coming home with increasing clarity to all Americans. We are learning the overwhelming fact that now, as in 1776, our nation, together with our sister Republics on this hemisphere, faces a preponderantly hostile and undemocratic world. Now, as in 1776, we can turn to the Declaration of Independence for the principles which should guide our action.

You are lifted and inspired, like generations before you, by the majestic cadence of the boldest, the noblest, and best known of all American writings. The Declaration of Independence speaks strong doctrine in plain words. It is the world’s master indictment of oppression. The fervor of its denunciation haunts and challenges dictators everywhere and in every field of life.

But the Declaration of Independence does not stop with mere denials and negations. It sets forth great affirmations as to the permissible foundations of power and political leadership among free men. It lays down a fighting faith in the rights of man — merely as man — a faith to die by if need be, or even more bravely to live by. It impresses upon all political power the high obligation of trusteeship. It established an accountability by the governing few to the governed many. That is why men abroad who wield dictatorial powers over subject peoples would silence the reading of the Declaration of Independence, would tear all mention of it from the record, and torture all recollection of it out of the minds of men. Even at home there are some who hope it will not be read too loudly.

But the masses of warm-hearted people are reared on its strong doctrines of equality and human rights. It has exceeded every other modern pronouncement in its profound influence upon our lives, our culture, and our relations to the world. When the Constitution of the United States was adopted, its foundations were laid in the democratic idealism of the Declaration. It has been the inspiration for every later recognition of broadened human rights and for the extension of justice and security to all men. We do not claim to have reached a perfect fulfillment of its high principles. But we have achieved the nearest approach among all the nations to a classless society, to equality of rights, and to a fair distribution of opportunity and prosperity. Whenever we reproach our own imperfections, as we ought often to do, we must not forget that our shortcomings are visible only when measured against our ideals, never when put beside the practical living conditions of the rest of the world. We have by Constitution, by legislation, and by judicial decision translated the Declaration out of the language of abstract philosophy into the idiom of everyday living. We have validated democratic principles by our success. (Emphasis added by Kopf)

America’s position in the society of nations is unavoidably that of a champion of the freedoms. The reason is aptly stated by Carl Becker, who says:

“In the Declaration the foundation of the United States is indissolubly associated with a theory of politics, a philosophy of human rights, which is valid, if at all, not for Americans only, but for all men.” (Emphasis in italics added by Kopf)

When our national success demonstrated that freedom is an attainable goal, we made it the ultimate goal of all people everywhere. The four freedoms are not local or transient incidents; they are universal and timeless principles if they are valid at all. A blow against their existence in Europe is a blow at their validity everywhere. On the other hand, the example of a great and powerful people governed by their own consent through lawmakers of their free choice is a standing incitement to overturn tyranny anywhere. Malevolent conquests by dictators are silently undermined by our confession of faith in democracy as stated in the Declaration. That carries hope to subject peoples in whom there would otherwise be a noble, but unavailing, fortitude. Overridden countries find a bid to insurrection in its assertion of the right of the people to alter or abolish an existing government that is destructive of life, liberty, and happiness. They read words of invitation in its statement of their right to “institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” No wonder the Declaration of Independence is the nightmare of conquerors.

Some will say that the decision faced by the patriots of 1776 was an easier one than ours, since they had nothing to lose but their intolerable situation. Our task, some will argue, is to protect rather than to win our freedom and that for that reason we should be cautious.

But if the patriots of 1776 risked little by action, we risk much by indifference. Today we risk the loss of a physical, cultural and spiritual heritage of freedom far beyond the most inspired visions of the leaders of ’76. And the more of the world that ceases to be democratic, the greater our risk will be. We do not need to be imprudent or foolhardy, but we should recognize that no amount of cautious behavior, no amount of polite talk will earn for us the friendship and goodwill of dictator systems. Ultimately we must come to the day when we shall face their threats and their enmity for no other reason than that we persist in living the kind of life we live.

One fact emerges clear above all others. We Americans cannot cease to be the kind of people we are, we cannot cease to live the kind of life we live. We are not the kind of people the dictators will ever want in the world. They will never have any use for our kind of life, nor we for theirs.

Every American knows now, as he knew it in 1776, that there is nothing for him in that way of life.

There are those who shrink from the risks of standing for a forthright, practical application of democracy. They point to the striking power and efficiency of foes abroad. But the enemies of American democracy today cannot begin to assemble a force so relatively powerful and so encircling as were its foes that day when the signers of the Declaration pledged their lives, their fortunes, and their sacred honor in its support. The most strategic points in our own country were then in possession of the King’s armies. Canada was a base for his operations. Florida, Cuba, Puerto Rico, and the mouth of the Mississippi were occupied by forces of Spanish monarchy — no lover of democracy. And the unsolved problem of the colonies along their whole precarious frontier was the Indian. American democracy then had no navy, only an empty treasury. Its army was composed of untrained volunteer backwoodsmen who could not get shoes, clothing, or substantial arms to fight the invading British regulars. There was no national unity. There were cabals against Washington, a fifth column of Royalists was powerful and respectable, and the states were jealous rivals who did not act, nor even think, as a unit. But in such an hour our forefathers who believed in freedom did not fear to stand alone and to become, as they continued for many years to be, the world’s only real democracy. But the American forces had power — the unseen power of the earnest individual — the individual with what Mr. Justice Holmes called “fire in his belly.” Only when these fires go out need we fear the lawless forces of dictatorship. Democracy’s strength is in man-to-man measure. None other draws such initiative from its way of life, none invents, and none had so generally and fully mastered in its daily life the technique of handling modern machine transport and production. And we dwell among resources as incredible as acres of diamonds.

But there is at home and abroad an anti-democratic influence, even more cynical and sinister and dangerous than Hitler, Mussolini, and Stalin combined. I refer to those who think democracy is a fair weather ideal — to guide us in soft times — but that when the going is tough we cannot save it without losing it. This doctrine has every base quality of fascism without either its candor or courage. Let us in America never forget that liberties trampled by conquest may be regained, but liberties abandoned by an indifferent people are never recovered. Nor are they deserved.

Let us not forget the example of our forefathers. They, too, heard the argument that time of external danger was no time to advance freedoms. But their answer was to give liberty a new birth not only in the midst of a war but in the very darkest hours of that war, because they knew that what wins struggles are the last ounces of endurance and the reserves of power that come to the common run of men on fire for a cause. Such men do not count costs nor watch the clock. We must keep our freedoms, keep them in face of foreign dangers even more tenaciously and jealously than in calmer times — keep them because it is our liberty that lifts our cause above material ends and anchors our efforts in timeless things. We know that in the unfolding book of destiny, just as in the closed book of history, it is written that tyranny and oppression bring forth their own downfall and that the irresistible moral forces of the world march always on the side of resolute men when freedom is their goal. We know that the spiritual strength and the moral power of our democratic tradition, authenticated by a century and a half of progress, will not long yield the field anywhere in the world despite the temporary devastations by enemies of the fundamental philosophy of our Declaration of Independence. As Kipling has said:

“Though all we knew depart,
The old commandments stand: –
‘In courage keep your heart,
In strength lift up your hand.’”

Jackson’s eloquence is exceeded only by his wisdom. His 1941 remarks remain relevant this Fourth of July, 2014. If you don’t believe me, watch world news tonight between the rockets red glare and bombs bursting in air.*


PS. I am pleased to serve as Chairman of the Board of The Historical Society of the
United States Courts in the Eighth Circuit. I have no talent for legal history personally, but I love reading legal history and promoting it whenever I can. The Jackson List is among the best legal history being done in this country. It is a treasure.

Justice Jackson and Memorial (Decoration) Day 1909

I have a tendency to take cheap shots at legal academics. I know that is unfair, but it is so easy and so much fun. Obviously, there are a lot of fine legal academics who enrich the lives of the practicing bar and the judiciary.  With the The Jackson List, Justice Jackson, the Supreme Court, Nuremberg and related topics, John Q. Barrett, a Professor of Law at St. John’s University in New York City, certainly enriches my life.  (I encourage others to sign up to receive the list. “To join the Jackson List, which keeps recipient identities and email addresses confidential, send a ‘subscribe’ note to barrettj@stjohns.edu”) Noting that he encourages sharing, Professor Barrett’s latest contribution is reprinted below.

Reading about Justice Jackson as a student, listening to a man speak that Memorial Day in 1909 about the civil war, peace and justice, when the speaker would later become the Justice’s law partner, brought to mind the bonds lawyers develop with each other as time passes. That the Justice is buried at the same cemetery where he heard his partner-to-be’s speech solidified my perception (hope?) that there is a timeless connection between brothers and sisters at the bar.

With thanks to Professor Barrett, I encourage the reader to take a moment and read the following:

In the United States in 1909, the Memorial Day national holiday, also known as Decoration Day, fell on Monday, May 31st.

The President of the United States, William Howard Taft, delivered an address on the battlefield at Gettysburg, Pennsylvania.

In New York City, over 100,000 people lined Riverside Drive, cheered 15,000 parading veterans of the Civil War and the Spanish War, and attended exercises at the Soldiers’ and Sailors’ Monument. The Governor of New York, Charles Evans Hughes, delivered an address at Grant’s Tomb. Governor Hughes earlier had reviewed a large parade in Brooklyn. The Bronx also hosted comparable exercises—its largest parade ever.

Memorial Day commemorations involving smaller crowds and less prominent speakers also occurred in cities and towns across the United States.

In the village of Frewsburg in southwestern New York State, Memorial Day exercises began with a parade. A column of people marched from Main Street to a wooden structure, Frewsburg’s Union Free School. With seven classrooms and a library, the Union School offered an elementary course. It also offered, as it had since 1896, a high school course. The high school met in a large room on the top floor. The School’s total enrollment was about 200 students. The high school senior class numbered less than 20.

On that Memorial Day in Frewsburg, Union School pupils and teachers joined the parade. It wound from the village to its cemetery, where a program was held. Lincoln’s Gettysburg Address and an honor roll of soldiers were read to the crowd.

A leading attorney, Walter Henry Edson of nearby Falconer, New York, delivered the principal speech. Edson spoke about the Civil War, and about peace movements. He emphasized that universal peace cannot occur until there is universal justice.

Robert Houghwout Jackson, then age 17, was one of the student marchers and listeners. A few weeks later, he graduated as Frewsburg High School’s valedictorian. Four years later, he became Edson’s colleague at the bar. They later became law practice partners.

In time, including on the Memorial Day in 1946 that Justice Robert H. Jackson spent in Europe as chief U.S. prosecutor of Nazi war criminals, he made his contributions to universal justice and, he hoped, to peace.

Today, Justice Jackson’s remains rest in that same Frewsburg cemetery, the Maple Grove Cemetery.

It currently is adorned with many United States flags honoring men and women who died while serving in U.S. armed forces, and also honoring U.S. military veterans.

Thank you for your interest, and please share with others who might be interested too.

* * *

As always, thank you for your interest and please share this with others.



Professor John Q. Barrett

Professor of Law, St. John’s University, New York, NY

Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY



Did Chief Justice Roberts crib from Justice Jackson?

In the title of this blog, I refer, as Chief Justice John Roberts did in his confirmation hearing, to a judge as an “umpire.”  It turns out that Chief Justice Roberts was not the first Justice to have had such a thought. Justice Robert Jackson expressed a similar sentiment in 1951:

These men [Learned and Augustus Hand] found their highest satisfaction in judicial work. It fulfilled their every ambition. They put all they had into it—they have not shirked even its drudgery. They wrote their opinions with no appeal for applause and sought only to merit the ultimate approval of their profession. They have not been looking over their shoulders to see whom they please. They have represented an independent and intellectually honest judiciary at its best. And the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

Robert H. Jackson, Why Learned and Augustus Hand Became Great (December 13, 1951) (speech before the American Bar Association) (emphasis added by italics).

Chief Justice Roberts clerked for Justice William Rehnquist, who, of course, later became Chief Justice. Rehnquist clerked for Justice Jackson during the 1952–1953 term.

The law is like a never-ending river. That comforts me.


PS Many thanks to Daniel H. Borinsky for the tip.

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