Page:Harvard Law Review Volume 32.djvu/970

934 934 HARVARD LAW REVIEW formerly to discuss the war-time aspects of the general problem of liberty of speech, and this article will approach the general problem from that side. At some later day it may be possible to discuss the proper limits of radical agitation in peace, and also to make a detailed historical examination of the events and documents lead- ing up to the free speech clauses in our state and federal constitu- tions. For the present it is not feasible to do more than consider the application of those clauses to the treatment of opposition to war. We shall not, however, confine ourselves to the question whether a given form of federal or state action against pacifist and similar utterances is void under the constitutions. It is often asstmied that so long as a statute is held vaHd imder the Bill of Rights, that docimient ceases to be of any importance in the matter, and may be henceforth disregarded. On the contrary, a provision like the First Amendment to the federal Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of their grievances," is much more than an order to Congress not to cross the boimdary which marks the extreme limits of lawful suppression. It is also an exhortation and a guide for the action of Congress inside that boundary. It is a declaration of national poHcy in favor of the public discussion of all public questions. Such a declaration should make Congress reluctant and careful in the enactment of all restrictions upon utterance, even though the courts will not refuse to enforce them as unconstitutional. It should influence the judges in their construction of valid speech statutes, and the prosecuting attorneys who control their enforcement. The Bill of Rights in a European constitution is a declaration of policies and nothing more, for the courts cannot disregard the legislative will though it violates the constitution.^ Our Bills of Rights perform a double 39 Sup. Ct. Rep. 249, Bull. Dept. Just., No. 197 (1919); Debs v. United States, 249 U. S. 211, 39 Sup. Ct. Rep. 252, Bull. Dept. Just., No. 196 (1919); Sugarman v. United States, 249 U. S. 182, 39 Sup. Ct. Rep. 191, Bull. Dept. Just., No. 195 (1919). fore ensues. The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort
 * A. V. Dicey, Law of the Constitution, 8 ed., 130: "This curious result there-