From time to time our national history has been marred by forgetfulness of the Jeffersonian principle that restraint is at the heart of liberty. In 1789 the Federalists adopted Alien and Sedition Acts in a shabby political effort to isolate the Republic from the world and to punish political criticism as seditious libel. In 1865 the Radical Republicans sought to snare private conscience in a web of oaths and affirmations of loyalty. Spokesmen for the South did service for the Nation in resisting the petty tyranny of distrustful vengeance. In the 1920's the Attorney General of the United States degraded his office by hunting political radicals as if they were Salem witches. The Nation's only gain from his efforts were the classic dissents of Holmes and Brandeis.In our own times, the old blunt instruments have again been put to work. The States have followed in the footsteps of the Federalists and have put Alien and Sedition Acts upon their statute books. An epidemic of loyalty oaths has spread across the Nation until no town or village seems to feel secure until its servants have purged themselves of all suspicion of non-conformity by swearing to their political cleanliness.Those who love the twilight speak as if public education must be training in conformity, and government support of science be public aid of caution.We have also seen a sharpening and refinement of abusive power. The legislative investigation, designed and often exercised for the achievement of high ends, has too frequently been used by the Nation and the States as a means for effecting the disgrace and degradation of private persons. Unscrupulous demagogues have used the power to investigate as tyrants of an earlier day used the bill of attainder.The architects of fear have converted a wholesome law against conspiracy into an instrument for making association a crime. Pretending to fear government they have asked government to outlaw private protest. They glorify "togetherness" when it is theirs, and call it conspiracy when it is that of others.In listing these abuses I do not mean to condemn our central effort to protect the Nation's security. The dangers that surround us have been very great, and many of our measures of vigilance have ample justification. Yet there are few among us who do not share a portion of the blame for not recognizing soon enough the dark tendency towards excess of caution.
Some Christian lawyers—some eminent and stupid judges—have said and still say, that the Ten Commandments are the foundation of all law.Nothing could be more absurd. Long before these commandments were given there were codes of laws in India and Egypt—laws against murder, perjury, larceny, adultery and fraud. Such laws are as old as human society; as old as the love of life; as old as industry; as the idea of prosperity; as old as human love.All of the Ten Commandments that are good were old; all that were new are foolish. If Jehovah had been civilized he would have left out the commandment about keeping the Sabbath, and in its place would have said: 'Thou shalt not enslave thy fellow-men.' He would have omitted the one about swearing, and said: 'The man shall have but one wife, and the woman but one husband.' He would have left out the one about graven images, and in its stead would have said: 'Thou shalt not wage wars of extermination, and thou shalt not unsheathe the sword except in self-defence.'If Jehovah had been civilized, how much grander the Ten Commandments would have been.All that we call progress—the enfranchisement of man, of labor, the substitution of imprisonment for death, of fine for imprisonment, the destruction of polygamy, the establishing of free speech, of the rights of conscience; in short, all that has tended to the development and civilization of man; all the results of investigation, observation, experience and free thought; all that man has accomplished for the benefit of man since the close of the Dark Ages—has been done in spite of the Old Testament.