Tag Archives: Jackson List

Update re The Jackson List

As you might know, I write about Robert H. Jackson (1892-1954), United States Supreme Court Justice and Nuremberg chief prosecutor of Nazi war criminals following World War II.  Jackson is one of the most enduringly significant lives of the 20th century.  Among other things, I am a Jackson biographer, discoverer and editor of his acclaimed book That Man on President Franklin D. Roosevelt (which also is a Jackson autobiography), author of many articles on Jackson, a regular lecturer across the U.S. and internationally on Jackson and related topics, and a fellow and board member at the Robert H. Jackson Center in Jamestown, New York.

An outgrowth of all that is that I email a few notes each month, on Justice Jackson, the Supreme Court, Nuremberg, and/or related topics, to “The Jackson List.”  It is a one-way, private email list that reaches many thousands of direct subscribers—teachers, students, scholars, lawyers, Judges, and other learners—and, through their forwarding, reposting, blogging, etc., many others around the world.

In the past, I have used this blog site to post items as they are sent to The Jackson List.  But it has migrated to a new platform and better technology.  (Thank you, IT aces!)  So from now on, new Jackson List posts will go by email to The Jackson List and, simultaneously, be posted on its archive site—

https://thejacksonlist.com/

To subscribe to The Jackson List, sign up there, or send me an email.

Thanks very much for your interest, and for spreading the word.

Jackson List: Respecting the Mother of a Man Killed in Auschwitz (1946)

When the international trial of the Nazi arch-criminals began in Nuremberg in November 1945, Rudolf Franz Ferdinand Höss (in English, Hoess) was known to have been the commandant of the Nazi concentration camp near Oświęcim in what had been, before September 1939, Poland.  During World War II, the Nazi invaders and occupiers had renamed that town Auschwitz.  Hoess had, people were alleging, gassed millions, mostly Jews, at Auschwitz.  But as the Nuremberg trial began, Hoess was missing, at least a fugitive, perhaps dead.

Almost four months later, in March 1946, soldiers in the United Kingdom zone of occupation captured Hoess near what had been Germany’s border with Denmark.  They interrogated him.  He confessed that he had, as Auschwitz commandant, on orders from Nazi leader Heinrich Himmler (who had killed himself in May 1945), gassed two million people.

Hoess then was transported to Nuremberg for further interrogation.  The four Allied  nations had by that time concluded presenting their prosecution cases against the defendants, but Hoess’s evidence was potentially relevant to their cross-examinations and rebuttals that still lie ahead, and perhaps to future trials.  He was interrogated, thoroughly and repeatedly, by U.S. personnel.  He continued to confess, in expanding detail, what he and his personnel had done at Auschwitz.  His confession was put in affidavit form, which he and United States assistant trial counsel Lieutenant Colonel Smith W. Brookhardt, Jr. (IGD), each signed on April 5, 1946.

Hoess’s capture and his presence in Nuremberg were made known to defense counsel.  On April 6, British prosecutor David Maxwell Fyfe applied to the International Military Tribunal (IMT), on behalf of defendant Ernst Kaltenbrunner, for a new “witness called Hoess, who was former Commander of the Auschwitz Concentration Camp.  My Lord, there is no objection on the part of the Prosecution to that.”  The IMT, determining that other defense counsel either concurred or did not object, granted permission.

On April 15, Kaltenbrunner’s lawyer called Hoess as a witness.  He testified that he had been commandant of Auschwitz for its first three years, and that he had reported to and received his instructions directly from Himmler’s subordinate Adolf Eichmann (who then was believed to be dead).  Hoess’s key testimony, from the defendant’s perspective:

Defense counsel Dr. Kurt Kauffmann:  Did the Defendant Kaltenbrunner ever inspect the [Auschwitz] camp?

 Hoess:  No.

 Dr. Kauffmann:  Did you ever talk with Kaltenbrunner with reference to your task?

 Hoess:  No, never.

U.S. Army Colonel John Harlan Amen, a senior member of U.S. Chief of Counsel Robert H. Jackson’s staff, then cross-examined Hoess.  The examination tracked his horrific affidavit to Brookhart.  It confessed publicly, without remorse, the enormous, deliberate, exterminationist evil of Auschwitz.

*          *          *

On the day of Hoess’s trial testimony, Justice Jackson was in Allied-occupied Vienna for diplomatic, military liaison, and other coordination meetings.

The next day, an Austrian woman, Helene Zacchiri, hurriedly typed a letter in quite-rough German and managed to get it delivered to Justice Jackson.  She obviously knew that he was in the city, that he was the chief prosecutor in Nuremberg, and that Hoess had just testified there.  She had been told years earlier that her son had died in Auschwitz.  She had tried to learn more about his fate but had failed.  Now she was asking Jackson for help.

Jackson, who did not read or speak German, had an interpreter with him in Vienna.  The interpreter shared with Jackson these words from Mrs. Zacchiri:

16 4 46

            [April 16, 1946]

Herrn Vorsitzenden Dr Robert H Jakson

[Mr. Chairman Robert H. Jackson]

Ich habe in der Zeitung gelesen das die Verhandlung gegen Kommandaten Hosch demnachst in Nurnberg stattfindet[.] Daher ersuche herrn Vorsitzden in engelegenheit meines Sohnes denselben einzuvernehmen[.]

[I have read in the newspaper that the hearing against Commandant Hosch [Rudolf Hoess] is taking place in Nuremberg. Therefore, I ask you to please question him about the fate of my son.]

Mein son Demeter Odnega geb Wien am 10 Juni 1901[.]  Maschinen techniker wurde von der Gestappo Wien am 29 Mai 1941 nach Auschwitz uberstellt[.]  Am 10 December hat mir der Kommandant eine Todeserklahrung geschikt[.]  Nun bin ich nach Berlin gefahren und habe dort erfahren dass main Son nur Tod erklahrt wurde[.]  Nachdem hier unde in Auschwitz alle akte verbrant sind kann ich uber das schiksal meines Sohnes Nicht erfahren[.]

[My son Demeter Odnega, born in Vienna on 10 June 1901, is a mechanic.  The Gestapo in Vienna sent him to Auschwitz on 29 May 1941.  On 10 December [1941?], the Commandant sent me a death certificate.  I went to Berlin and all that I could learn there is that my son is declared dead.  Because all the files in Auschwitz were destroyed, I cannot learn about the fate of my son.]

Ich ersuche daher hoflichst Hosch einzuvernnehmen ob mein Sohn getodet wurde in Auschwitz oder verschikt[.]  Ich war drei mal in Auschwitz Herr Vorsitzender[.]  und habe im Ort erfahren wie diese armen Menschen dort auf Befehl des Kommandanten als auf Auftrag des Schirach dort mishandelt wurden und getodet[.]  Ersuche mich schriftlich von der Einvernahme zu verstandigen denn es ist fur eine Mutter furchbar nicht zu wissen funf Jahre wo mein Sohn ist[.]

[Therefore please ask Hosch [Hoess] whether my son was killed in Auschwitz or transferred to some other place.  I was in Auschwitz three times, Mr. Chairman.  I learned how the poor people there were mistreated on the orders of the Commandant, on behalf of Schirach.  Please write back to me what you learn through interrogation.  It is awful for a mother not to know for five years where her son is.]

Hochachtunsvoll

Helene Zacchiri

Wien 4 Muhlgasse 20 12

            [Sincerely

            Helene Zacchiri

            Vienna [Austria] 4 Muhlgasse 20 12]

*          *          *

In Jackson’s position—he was the important chief of a very large, high profile, high stakes project, asked by an unimportant person to seek information that almost surely would not exist—many people would do little or nothing.

Jackson brought Mrs. Zacchiri’s letter back from Vienna to Nuremberg.  He gave it to his secretary Elsie Douglas.  He told her what it said, and that it likely was a futile request.  But he told her to send it to Col. Amen.

Mrs. Douglas sent the Zacchiri letter to Amen, with a cover note that was less than an order from Jackson to do something but not discouraging of action.

Amen passed the letter along to Sender Jaari, one of his Interrogation Division personnel who had been involved in interrogating Hoess.

Jaari asked the imprisoned Hoess about Mrs. Zacchiri’s son’s fate.  Hoess replied that he had no information.  Jaari reported that back to Mrs. Douglas.

Mrs. Douglas reported to Jackson what Hoess had said.

Jackson then sent a letter back to “My dear Mrs. Zacchiri” in Vienna:

As requested in your letter of April 16, which was delivered to me during my brief stay in Vienna, the witness Hoesch [sic] has been interrogated as to some possible clue on your son’s whereabouts.  I regret to advise you that Hoesch states that he does not know anything about him and therefore can give you no helpful information.  I am very sorry we have been unable to help you.

We know, as Mrs. Zacchiri was told in December 1941 and continued to believe, crushingly, in 1946, that her son Demeter Odnega was a Holocaust victim, murdered in Auschwitz—click here for his record in the International Tracing Service database.

I hope that she received Justice Jackson’s letter, and that she felt its humanity.

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This post was emailed to the Jackson List, a private, one-way (me to you), entirely non-selective email list that reaches many thousands of subscribers around the world.  I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Donald B. Verrilli, Jr.’s Jackson Lecture at Chautauqua Institution

On July 1, 2019, Donald B. Verrilli, Jr., former Solicitor General of the United States, delivered Chautauqua Institution’s 15th annual Robert H. Jackson Lecture on the Supreme Court…

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UPDATE:  This post, edited a little bit and enhanced with photographs, now is on the Jackson List archive site, which is searchable, in PDF film form.

Click here for video of Mr. Verrilli’s lecture.

Click here for video excerpts from a Robert H. Jackson Center interview.
with Mr. Verrilli.

 

Jackson List: Update on DOJ’s Much-Coveted AG Jackson Portrait

During his seven-plus years as a high official in the Executive Branch of the United States Government, Robert H. Jackson served mostly in the U.S. Department of Justice.  Yes, Jackson started at Treasury—he came to Washington when President Franklin D. Roosevelt appointed him in 1934 to serve as Assistant General Counsel in the Treasury Department’s Bureau of Internal Review.  Yes, Jackson was detailed in late 1935 from Treasury to the Securities and Exchange Commission.  But from 1936 through Spring 1941, Jackson was a leader, and he rose to be the leader, at DOJ.

President Roosevelt nominated Jackson three times, each confirmed by the Senate, to serve in the Justice Department.  In 1936, Jackson was appointed Assistant Attorney General.  He spent that year heading the Tax Division and the next year heading the Antitrust Division.  In March 1938, Jackson was appointed Solicitor General, then the Department’s number two position.  And in January 1940, Jackson was appointed Attorney General.  He served in that Cabinet office until he was appointed to the U.S. Supreme Court in July 1941.

The Department then arranged for Jackson’s official AG portrait to be painted.  Click here to see it—John Christen Johansen, one of America’s most noted portrait painters, produced it in Fall 1942 following sittings with Jackson.

The Department of Justice has a collection of portraits of each Attorney General—click here to see its online portrait gallery.  By custom, a perk of serving as a senior DOJ official is the right to choose, in office rank order, which former AG portrait(s) one wishes to hang in his and her offices and conference rooms.

As I have chronicled previously (see links below), the Jackson portrait has been, over the years, in high demand.  I cannot (yet) document all of its homes since 1941, but I know that:

  • Solicitor General Seth P. Waxman (1997-2001) had the Jackson portrait in his conference room;
  • Solicitor General Paul D. Clement (2005-2008) had the Jackson portrait in his immediate office;
  • Attorney General Michael B. Mukasey (2007-2009) had the Jackson portrait in his office;
  • Attorney General Eric H. Holder, Jr. (2009-2015) had the Jackson portrait in his conference room;
  • Solicitor General Donald B. Verrilli, Jr. (2011-2016) could not get the Jackson portrait away from AG Holder, so Verrilli had a copy made and kept that in his office; and
  • Deputy Attorney General Rod J. Rosenstein (2017-2019) had the Jackson portrait in his conference room.

Rosenstein of course resigned as DAG this Spring.

We now know, thanks to the Wall Street Journal’s July 13 report, that Attorney General William P. Barr was waiting to snag the Jackson portrait.  It today hangs, again, in the AG’s—Jackson’s former—office.

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Some links—

  • Sadie Gurman, “Justice Department Chiefs Can’t Get Enough of the Patron Saint of the Rule of Law,” Wall Street Journal Online, July 13, 2019 (click here—paywall-blocked from non-subscribers, but they can access it through libraries, etc.…);

(And thanks, WSJ, for the article’s generous mention of the Jackson List and you many subscribers.  This motivated many more of you to become new subscribers.)

  • a 2007 Jackson List post, “Office Wall Décor” (click here);
  • a 2008 Jackson List post, “An Update on Attorney General Mukasey’s Office Décor” (click here);
  • a 2009 Jackson List post, “Department of Justice Installations, New and Permanent” (click here); and
  • my 2003 Buffalo Law Review article, “A Jackson Portrait for Jamestown, ‘A Magnet in the Room,’” which discusses Jackson’s participation in tribute and dedication events and his various portraits that are displayed in locations throughout the U.S. (click here).

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This post was emailed to the Jackson List, a private, one-way (me to you), entirely non-selective email list that reaches many thousands of subscribers around the world.  I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Heard July 5th on the National Mall: An Impending Supreme Court Justice’s Independence Day Speech (1941)

Below, for reading on this day after Independence Day and on other days, is the speech that Robert H. Jackson, then Attorney General of the United States, delivered in a radio studio on Friday, July 4, 1941.

Three weeks earlier, on June 12, President Franklin D. Roosevelt had nominated Attorney General Jackson to become an Associate Justice of the Supreme Court of the United States.  On June 30, a U.S. Senate subcommittee completed four days of hearings on Jackson’s nomination and the Senate Judiciary Committee then voted, unanimously, its approval.

Attorney General Jackson’s 1941 Fourth of July speech was and is many things, including an important lesson in U.S. history, an explication of the 1776 U.S. Declaration of Independence, and a powerful statement about democracy as a universal ideal.  Although Jackson was addressing 1941’s international situation and the coming U.S. involvement in the world war with fascism—New York City mayor Fiorello La Guardia, who then was also serving as FDR’s director of the national Office of Civilian Defense, had recruited Jackson to give this speech—many of Jackson’s words are timeless.

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 on nationwide radio.

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 5 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 11, 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.

*          *          *

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.

America’s position in the society of nations is unavoidably that of a champion of the freedoms.  The reason is aptly stated by [Cornell University history professor] 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.

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.”

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This post was emailed to the Jackson List, a private, one-way (me to you), entirely non-selective email list that reaches many thousands of subscribers around the world.  I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

 

Jackson List: Barnette Day

Today, June 14, 2019, marks the 76th anniversary of the U.S. Supreme Court’s decision, embodied in Justice Robert H. Jackson’s opinion for the Court, in West Virginia State Board of Education v. Barnette.

Barnette, decided amid the commendable patriotism of the U.S. home front during the dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah’s Witnesses.  In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag.  For that refusal, they were expelled from school.  Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, 6-3, that the flag salute and pledge requirements violated the children’s constitutional rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

Although Jackson’s full opinion in Barnette bears close reading (and regular rereading), some words to consider particularly closely are his summary paragraphs:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

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 or force citizens to confess by word or act their faith therein.  If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

**Please also note** the FIU Law Review’s recent publication of a rich symposium on Barnette.  It includes my article “Justice Jackson in the Jehovah’s Witnesses’ Cases,”  based on my keynote address at FIU’s excellent Barnette 75th anniversary conference.  Click here to get to the symposium articles.

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Additional links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • a 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
  • a 2012 Jackson List post, “Arguing Barnette”—click here; and
  • a 2010 Jackson List post, “The Newest Barnette Sister”—click here.

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This post was emailed to the Jackson List, a private, one-way (me to you), entirely non-selective email list that reaches many thousands of subscribers around the world.  I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

RIP, Dr. Walter V. Powell (1929-2019)

I write once, twice, or a few times a month to The Jackson List, a private, now very large and ever-growing email list, about U.S. Supreme Court Justice Robert H. Jackson and related topics.

One result, unexpected at first and now a great pleasure, is that people respond to Jackson List posts by emailing back to me.  Sometimes they just send thanks.  Other notes are more substantive, sometimes very personal and erudite.

Through these notes, which I try to read and at least to acknowledge (although the volume can be daunting), I’ve made a lot of special “friends”—not in-person friends, but the electronic version of what once were pen pals.

Earlier this week, an email bounce message alerted me that the email address of Walter V. Powell, long a Jackson List subscriber and one who wrote back to me regularly, was no longer functional.  By Googling, I learned that Walt Powell, professor emeritus of political science at Slippery Rock University in Slippery Rock, Pennsylvania, age 90, died on February 27, 2019.

Dr. Powell lived a long and accomplished life.  Some of it, including his family life, his World War II military service, his education, his teaching, and his community commitments, is chronicled in this obituary.

In his emails to me, Walt Powell always sent thanks for Jackson List posts and expressed his particular interests.  One was the World War II—his—generation, including particularly people who had served on Justice Jackson’s staff prosecuting Nazi war criminals at Nuremberg in 1945-46.

Walt Powell greatly admired one of them, Whitney R. Harris.  Indeed, Walt got to know Whitney through hosting him as the keynote speaker at a Slippery Rock University conference on the Nuremberg trial.  Later, Walt lamented Whitney’s failing health, then his death, and Walt remembered Whitney always.  Walt also wrote to me when “Nurembergers” Richard Sonnenfeldt, Peter Calvocoressi, Arno Hamburger, and Ernest Michel each passed away.  Walt reported to that he had used some of my writings on Nuremberg when he lectured in a class on war crimes, and that he had visited the Robert H. Jackson Center in Jamestown, New York.

Walt also, every holiday season, sent his greetings, thanks, and good wishes.

This post, in a small way, reciprocates that sentiment.  I am grateful that we were, in our historical studies, biographical interests, and priorities, truly colleagues.

Jackson List: The Federal Prosecutor (1940)

On this date in 1940, Robert H. Jackson—age forty-eight, three months into his service as Attorney General of the United States—gave one of his most important, famous, enduring speeches:  The Federal Prosecutor.  He spoke on that Monday to the chief federal prosecutors of his day, the U.S. Attorneys then serving in each Federal Judicial District across the country.  They were assembled in the Great Hall at the U.S. Department of Justice in Washington, D.C., for the Second Annual Conference of U.S. Attorneys.

Attorney General Jackson had moved up to that position from having been Solicitor General of the U.S., then DOJ’s number two position.  As a new AG in 1940, he was leading a Department that had been misdirected and, as a result, badly demoralized.  This speech was part of Jackson’s work to clean up DOJ.  The speech offered his vision of proper, ethical conduct by federal prosecutors.  It was, you will note, the antithesis of an April Fool’s Day message.

Jackson’s speech is quoted often.  I recall first reading of it in Justice Scalia’s dissenting opinion in Morrison v. Olson (1988), which quotes from it liberally, and then getting and reading the whole Jackson speech to get a better understanding of it in full, in context.  I have read it many times since then—it was, for example, handed out as assigned reading to many attorneys by a senior DOJ official when I worked in there in the 1990s, and I completed the assignment.  I have heard or read most Attorneys General, Deputy Attorneys General, and other senior DOJ officials, including recently, quote from Jackson’s speech in their own speeches, other public remarks, and written work.

Attorney General Jackson’s speech bears rereading in full.

Jackson’s speech then bears what he hoped in 1940 that it would accomplish:  absorption and implementation by every “gentleman,” and today also every gentlewoman, who wields federal prosecutorial power.

 

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 The Federal Prosecutor

By Robert H. Jackson

Attorney General of the United States

April 1, 1940

            It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country.  The prosecutor has more control over life, liberty, and reputation than any other person in America.  His discretion is tremendous.  He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.  Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.  The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.  He may dismiss the case before trial, in which case the defense never has a chance to be heard.  Or he may go on with a public trial.  If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.  While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere.  This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States.  You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice.  It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington.  It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.

Experience, however, has demonstrated that some measure of centralized control is necessary.  In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy.  Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts.  To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

Our problem, of course, is to balance these opposing considerations.  I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts.  At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor.  Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.  Although the government technically loses its case, it has really won if justice has been done.  The lawyer in public office is justified in seeking to leave behind him a good record.  But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance.  Reputation has been called “the shadow cast by one’s daily life.”  Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.  Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

The federal prosecutor has now been prohibited from engaging in political activities.  I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service.  There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations.  I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community.  Law enforcement is not automatic.  It isn’t blind.  One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.  If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.  We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.  What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.  Therein is the most dangerous power of the prosecutor:  that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.  With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.  In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.  It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.  It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.  Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.”  They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny.  Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby.  Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration.  Some of our soundest constitutional doctrines were once punished as subversive.  We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions.  Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

Another delicate task is to distinguish between the federal and the local in law-enforcement activities.  We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses.  Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.

But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals.  And the moral climate of the United States is as varied as its physical climate.  For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely.  The same variation of attitudes towards other law-enforcement problems exists.  The federal government could not enforce one kind of law in one place and another kind elsewhere.  It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment.  In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may.  Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman.  And those who need to be told would not understand it anyway.  A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: On British Opinion on Nuremberg (1949)

In late October 1946, Justice Robert H. Jackson, just back to the United States from his year-plus away serving as U.S. Chief of Counsel prosecuting Nazi war criminals before the International Military Tribunal (IMT) at Nuremberg, happened to meet, briefly, lawyer Eugene C. Gerhart, age thirty-four.  Gerhart was a former pre-World War II secretary to a judge of the Permanent Court of International Justice in Switzerland, a graduate of Harvard Law School, a veteran of U.S. Navy service during the war, a practicing lawyer in Jackson’s upstate New York homeland, and a man with interests in history and writing.  Not surprisingly, Jackson was impressed by Gerhart.

A year later, Eugene Gerhart wrote to Justice Jackson and proposed to write his biography.  Jackson was skeptical but agreed to cooperate, within the limits that his time and his respect for U.S. Supreme Court confidentiality imposed.

As Gerhart pursued his research, he posed various questions to Jackson.  In 1949, for instance, Gerhart asked Jackson about mid-1945 United Kingdom attitudes, before the London Conference concluded in August 1945 with the international agreement to create the IMT, about whether the Allies should prosecute their leading Nazi prisoners as criminals.  Gerhart also asked about U.K. attitudes since Nuremberg about the legal theories on which the trial was conducted.  He apparently had recently read British lawyer John Hartman Morgan’s 1948 book The Great Assize: An Examination of the Law of the Nuremberg Trials, and he (Gerhart) asked Jackson if he also had read it.

In response, Justice Jackson dictated, edited, and sent the following letter to Eugene Gerhart on March 17, 1949—seventy years ago today.  The letter was Jackson’s description, quite straightforward, candid, and on the record, of his thinking, which was at odds with U.K. policy at least initially in 1945, and which perhaps in 1949 was still at odds with some British views, about the legal underpinnings and the legitimacy of the Nuremberg trial.

Mr. Eugene C. Gerhart,

Security Mutual Building,

Binghamton, New York.

My dear Mr. Gerhart:

               I have not read [R.H.] Morgan’s The Great Assize.  Viscount [Frederic Herbert] Maugham, the former Lord Chancellor and brother of Somerset Maugham, was at Nurnberg briefly as a guest.

               Of course, the fundamental premises on which we prosecuted the Germans for offenses against international society are at war with the concept of sovereignty as an absolute right of a nation to do as it pleases.  This argument was made by German [defense] counsel.  However, as [Columbia University law] Professor [Philip] Jessup points out in his work, A Modern Law of Nations, page 2, no real international law can exist if this rule of unlimited sovereignty is to prevail.  This is simply one of those basic breaks between the modern and what I consider the medieval conception of the place of law among nations.  I am not disposed to deny that it [Nuremberg] was a substantial break with the past and may have been applied somewhat retroactively.

               As to the crimes against humanity, there is truth on both sides.  As I pointed out in the Opening Speech [I delivered to the IMT on November 21, 1945,], it is not every cruelty which a government inflicts upon its own people that becomes of international concern.  But you will notice in the definition of “crimes against humanity” that it is limited to those “in execution of or in connection with any crime within the jurisdiction of the Tribunal.”  That is to say, when extermination, enslavement and deportation are a part of the program of aggressive warfare, they do become matters of international concern.  I think our proof amply demonstrated that the campaign against the Jews was intended to remove what they [the Nazis] regarded as an obstruction to instituting war and that the extermination was a part of the objective of the war.

               It may be true that there is no generally accepted definition of “aggressive war” and that all victors tend to justify themselves.  You will find in the minutes of the [summer 1945] London Conference that I made repeated efforts to get a definition and I never had any help from the British in doing it.

               It does not seem to me that aggressive warfare is any more vague, even if not further defined, than many of the concepts with which we work in the law.  And we must not forget that the Hitler war was aggressive by any test that anybody has ever suggested, and that he boasted of it as such.  I have dealt with these matters in a speech, copy of which is enclosed.

               This must be remembered about all British comment on the trial.  The British Government under Lord Chancellor [John] Simon was opposed to trials and wanted the war criminals disposed of by executive determination.  This fact appears in the London Conference records among the very early documents.  A large segment of British opinion remains committed to that theory or is sufficiently biased on the subject to be critical of the trials.  We rather forced trials upon them, as you will see from the London minutes, and there has been some disposition among the British not perhaps to resent that fact but at least to try to make up for it by criticism of what was done.

               I trust this gives you, in general, what you want.

               With best wishes, I am

                                                               Sincerely yours,

                                                               /s/ Robert Jackson

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: 127th Birthday

Today marks the 127th anniversary of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

For your Jackson Birthday reading, here are some previous Jackson Birthday-related posts:

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.