A CONVERSATION WITH LEONARD W. LEVY
Leonard W. Levy is Andrew W. Mellon All-Claremont Professor of Humanities, and Chairman of the Graduate Faculty of History, Claremont Graduate School. Among his numerous works are Legacy of Suppression: Freedom of Speech and Press in Early American History, and Jefferson and Civil Liberties: The Darker Side. His most recent book is Treason Against God-A History of the Offense of Blasphemy. Professor Levy is the recipient of numerous honors, including the Pulitzer Prize for his 1969 work Legacy of Suppression. He is presently editing the Encyclopedia of the American Constitution, to be published by Macmillan, in 1987.
Interview by George Forsyth
FORSYTH: What is the main task of the scholar?
LEVY: The main task of the scholar is to verify old truths, if they are verifiable, and to discover new ones. Both are indispensable elements of scholarship. Much that we once believed has now been proven wrong: "Time has upset many fighting faiths."
We must not perpetuate "old truths" before investigating and verifying them, for we must not perpetuate falsehood. The job of scholars is to evaluate critically what others take for granted. The possibility of advancing knowledge is limited, perhaps irreparably, when scholarship, free inquiry, or criticism are limited. Social progress requires the exercise, development, and expression of individual minds. For this remarkable development and expression, remarkable because it is always rare, absolutely free and open discussion is crucial.
Intellectual criticism and inventiveness, which are necessary for the expansion of knowledge, cannot be commanded, and must be cherished and nurtured. If society attempts to determine what shall and shall not be studied and thought, it has no basis, except that which is already known, for recognizing what might be useful or right in criticism or in new ideas. You cannot say, "Find truth here, but not there, or elsewhere."
Scholarship, as John Stuart Mill said of freedom of thought, gives us a more clear perception of truth. And truth is a good which so outweighs other goods that the discovery of truth should be cherished by every society with aspirations to decency, not to say greatness. The task of the scholar is to use intellectual freedom and to insist on that freedom, because truth is not likely to be found in any other way. Freedom of thought or scholarship must be protected, even when some new ideas seem wholly dangerous, or hateful. Scholars must have absolute intellectual freedom to discover truth.
Let me elaborate. We once believed in a flat earth, divine right, the Ptolemaic model of the solar system, the unique perfection of one religion and the culpability of the Jews for almost everything: for deicide, for the Black Death, for capitalism, and for communism. We feared and burned witches; we thought the white race superior to all others; we thought people owed absolute fealty to the state. Experience, time, and scholarship have overturned these "old truths," these "fighting faiths." Scholars must free people from the bondage of mistaken opinions; to take nothing for granted, to be skeptical of our most deep-seated beliefs, and to keep open the possibility of receiving new truths. We invite stagnation and death to all that we esteem if we freeze that which is known and believed and call it truth. We may never know what truth is, but scholarship broadly conceived and committed to the open and inquiring mind is the only way fallible people have of looking for truth.
FORSYTH: I hope that we can follow the path of ideas you described in your opening remarks: old truths, social progress or stagnation, criticism and citizenship. First, the idea of truths, and of old truths.
You mean by this, of course, things men have thought to be true, that is, opinion. Tell me if you agree with this. There are two kinds of opinions: those about the order of the world, and those about right and wrong. It was once held to be true that the sun orbits the earth. This opinion has been proven to be false. It is easy to see how such a "truth" can be overturned. There are reliable tests to resolve such issues. But it is not so clear in the second case.
Take the belief in the divine right of Kings. Seemingly, this country is a living refutation of that notion. Yet the core idea of divine right, that government is necessary for human life, and is therefore sanctioned by the Author of human life, was not repudiated by the American Founding. You might say that the meaning of the divine sanction of political authority is better understood today than it was previously, or more comprehensively understood. You couldn't really say that it had been overturned.
LEVY: Well, we have abandoned absolute monarchy and all that went with it. But I think that while your categories have descriptive value, they are too abstract. Remember how the Church treated Galileo. The Inquisitor would deny your distinction between facts and values as a corrupt moral distinction.
FORSYTH: I didn't say "facts and values." If it is true, the divine origin of human government is as much a fact as any other.
LEVY: You implied it. But I don't want to get into a quibble here. This is no question from the dead past. We have similar cases today. In the state of Arkansas they have passed a law [recently invalidated by a federal court] mandating that public schools teach what is called Creation Science. Now, I believe that Darwinian theory has been established as true. It may not be. But it is certain that the Genesis account of the origins of the world is not science, it is religion, and the state of Arkansas is employing its authority to propagate a religious doctrine under the guise of science.
The point here is that religion-however noble and true-is a private matter, and to use government to impose religious belief on others is wrong. The will to do this is always very strong, but it must be resisted. Eternal vigilance is the price of liberty. I think that the study of history is a part of that vigilance.
FORSYTH: Do you see any legitimacy at all in the political program of the Creationists and their allies on the religious right? It seems to me that they represent a growing sense of dissatisfaction with the way things have been going in our society. For example, television has been the target of much criticism of late.
LEVY: Goodness knows, the majority of the "prime time" TV programs are enough to make anyone fed-up.
FORSYTH: Yes. So what would you say to an argument along these lines. There is a spirit of licentiousness in the land, and it is interfering with the performance of parental duties. Some idea like this is motivating the so-called religious right. They want reforms in those areas of our society, including government, which are having an adverse effect on them. Are you saying that this is inherently wrong?
LEVY: You're being provocative. The Creationists are proselytizing a private faith through the public schools. I don't think you need to do that in order to establish or preserve public morals. And such a course violates our Constitution. In Gitlow v. New York, and in Palto v. Connecticut, the Supreme Court spoke of the fundamental principles that are indispensable to a free society. It seems to me that these principles constitute public morals in our country. I agree with the 1937 statement of Justice Cardozo, that the guaranties of the First Amendment are "the essence of ordered liberty." The creation science law is a clear violation of those guaranties, and thus is a blow to public morals.
Now it is true that originally the Bill of Rights did not bind the states, though many thought that the constitutional guarantee to the states of a republican form of government implied their application. After all, the Bill of Rights is a further specification of the character of republican government. The ratification of the Fourteenth Amendment removed this difficulty by making possible the extension of the Bill of Rights to the states. No state may deny the privileges and immunities of citizens of the United States, nor deny life, liberty, or property without due process of law, nor deny the equal protection of the laws. It took a long time to work out exactly what this meant. Cardozo, for example, thought that only some of the enumerated rights were essential to "ordered liberty" and those were therefore guaranteed against state violation, while the others were not. This is a very good example of what I mean when I say that the task of the scholar is the testing of old truths and the discovery of new truths.
FORSYTH: Would you say that the ban on prayer in the public schools was a result of the discovery of a new truth?
LEVY: I don't think I would put it that way. The decision against required prayer in the public schools, while it was new in 1962, actually rested on an old truth: religion is a private affair; the government has no business sponsoring religion.
FORSYTH: Would you agree that we have reached a workable public accommodation, at least on the matter of school prayer? As far as I know, they are still praying in many public schools, though there is no compulsion involved.
LEVY: You call noncompliance with the law a workable public accommodation?
FORSYTH: Of course not.
LEVY: Perhaps a personal note is appropriate here. When I was a boy I lived in DeKalb, Illinois, the only Jew in a Christian community. They prayed and read from the New Testament in my schools, which is all right as for as it goes, but they also singled me out as an object of scorn and worse; my classmates beat me up regularly. I can remember listening to Gerald L.K. Smith speak in the town square, provoking the townspeople against the Jews. He was an American Nazi, or as good as the same. The anti-Semitic hatred he spread was little different from Hitler's. In those days we lived in fear of our Christian neighbors. Those personal experiences, perhaps, add a certain vigor to my understanding of the First Amendment in this matter. It commands separation of religion and government.
It is not the function of the public schools to teach religion. A man's relation with God is none of the state's business. It is a private affair. Roger Williams said that "compulsion stinks in the nostrils of God." And he was right.
FORSYTH: Does the law allow the state to prohibit or to regulate the exercise of religion?
LEVY: Public limitation of improper exercise is another thing entirely. A man might claim his religion requires him and his co-religionists to assemble at a major intersection during rush hour, and the state has the authority to prevent that kind of thing to protect the public safety. No rights are absolute.
FORSYTH: It has been frequently argued that a free society is absolutely dependent on public morals, and that public morals require a public, or in any event, a shared religion.
LEVY: I think that what you are calling public morals-which I take to mean a certain honesty and decency in public conduct-is actually a creation of the social order, and not the other way around. A just and equitable society will produce just and decent people. Morality is right conduct. The mere profession of a religious belief is not the whole, or even the most important part, of right conduct.
We are a nation of immigrants and, for the most part, immigration has not meant an uprooting from the moral institutions-the family, and the church and synagogue. But in our secular, humanistic society there are many individuals who are ethical, but not at all religious. If you look at the greatest figures in our history, say Jefferson or Lincoln, you will see that a certain open-mindedness and even skepticism as to religious matters is by no means incompatible with the general good.
Public morals are a proper matter of public concern. I don't mean to deny that. And no student of history could deny that the congruence of the Lawgiver and Witch Doctor is ancient, and perhaps most typical. But as long as law and religion are identical, law will be nonempirical. It may accidentally be good law, but it is much more likely to be bad law. We poisoned Socrates, crucified Jesus, burned Servetus, excommunicated Spinoza, and drove out Einstein. The history of this joining of law and religion is almost unceasing in its horror. All of these societies believed in a strong tie between morals and religion.
The reason for this is easy to understand. Religion and morals are both tied up with what it means to be a person. And diversity on these points may raise terrible doubts about the most important questions. But there is no way to avoid these difficulties in human life. Certainly it does no good to use the state to suppress expressions of diversity. Centuries of experience show that religious exclusivity in the state doesn't work. Religious liberty does work: "it is good for business." That's what the Dutch government told Stuyvesant, when he wanted to expel the Jews from New York.
Religious freedom was a sociological fact in this country long before it was a principle of law. And Madison was not reasoning abstractly, but historically, when he observed that one sect in society would result in persecution, two sects in civil war, but many sects and denominations would produce peace and prosperity. Penn got nowhere in England as long as he rested his arguments for religious liberty on the Bible, on theology, and on religious considerations. He became persuasive when he shifted to secular considerations. In any case, public morality can exist without religion and without government aid to religion. Ethics do not depend on religion and in some cultures are not God-centered.
Religion and authority have no monopoly on right conduct. The "golden rule" is not dependent on religion, on churches, or belief in God. I prefer a morality founded in "secular" or ethical humanism, the way of Jefferson, Emerson, and Lincoln.
FORSYTH: Isn't our tradition of religious toleration and disestablishment actually a result of the historical fragmentation of the Christian Church? This led to the practical necessity, in a country like the United States, where, as you say, the multiplicity of sects was an established fact, the practical necessity to establish public morals in a nonsectarian, natural rights/natural law doctrine. And it was a reasoned foundation for the Judeo-Christian tradition of morality. It follows that our tradition is not so much in the toleration as it is in the moral attitude that is shared by most Westerners, or in any event, that was all but universal here in the eighteenth and nineteenth centuries.
LEVY: Let me make it clear that I am not making an argument against religion. But I think that you mistake the position of the Founders. It is true that state establishments of religion persisted under the Constitution until well into the last century. But they were wrong, and the decisive arguments against them had already been made, long before the movement towards disestablishment was completed. And this policy is not only in accord with our Constitution. It has also proved to be good both for the churches and for the state.
Tocqueville argues that toleration, by removing the goad of politics from matters of faith, allowed Americans to give full play to their religious inclinations, in a spirit of charity and true piety. Similarly, disestablishment purifies the churches by removing faction and partisan interest from their internal operations. Many of the most active and influential exponents of this policy were devout church members who sought to make their own churches better, precisely in this way. Madison, for example, accepted a line of reasoning something like this. I don't think that you need a natural law doctrine established and perpetuated by the state, any more man you need an established church, or religious doctrine, to secure public morals. This may have been a point of argument in the eighteenth century, but it is no longer a theoretical question. We have the cumulative experience of our own history under disestablishment to prove that it works. Religion, and natural law philosophy, and ethical humanism are free to form men's moral attitudes, and the public realm benefits from their teachings without itself being obliged to underwrite them. The result has been the most just, decent, enlightened, and prosperous society in the world. In light of this accomplishment, it would be folly to set out on another course, as some are suggesting.
FORSYTH: And yet, some people claim that today the state is perpetrating a moral teaching, or a teaching of amorality, through such matters as obscenity legislation, abortion laws, sex education, and the like. This is not a morally neutral teaching, but one which is a direct repudiation of the moral tradition, whether you are Christian, Jew, Moslem, or a natural law student.
LEVY: I am not interested in defending any particular piece of legislation in this whole area. It is arguable that some of the laws you refer to have the character that has been ascribed to them. But I remind you that the Court has made room for communities to protect themselves from objectionable materials, while securing the right of others who do not object to pornography. So our laws are developing, but not in the rigid way that you suggest. Even if what you suggest were true, it would not follow that we should repudiate our public law tradition of neutrality in matters of religious doctrine, but rather that we should return to that tradition. The solution to present corruption is not to establish fundamentalism in the state.
FORSYTH: Your comment reminds me of Edmund Burke's appeal to tradition. Would you consider yourself a conservative?
LEVY: I am looking to the experience of mankind as a guide to present judgment. History proves that these principles-liberal principles-work. That may be Burkean or not. But what I want to say is, that whether we move forward slowly or try great leaps, we must have a firm ground from which to proceed. Left, Right, and Center, we all must proceed in light of history, the experience of the past. You may call that being a conservative if you like. I call it being an historian.
In order to form an accurate impression of what man is, and can be, we must understand what he has been at other times and in other places. The study of history, of the infinite experience of mankind, is the way we become members of the human race. Without it we can have no understanding of who we are, what we are, or how we got here. It follows that we can have little chance of finding a way out of here; that is, of overcoming our present difficulties and moving on. Without historical knowledge, we are reduced to the condition, of an amnesiac; groping to rediscover our identity, reinventing the wheel, making the same errors as we face old problems. History is the collective memory of mankind. We deceive ourselves by distorting it, but we cannot escape it.
FORSYTH: Do you think that our present educational system, particularly our colleges and universities, is accomplishing this task?
LEVY: In general, no. The worst thing that could have happened to an educational system has happened to ours. I mean the substitution of a system of so-called free and relevant electives for a rigorous core curriculum. We should be teaching, at the minimum, several years of the history of Western Civilization, both in college and before college. I don't understand how you could choose among electives without that kind of background. In the enthusiasm for reform and relevance, this necessity has been ignored.
Still, I have not altogether despaired of the academy. Remember that good teaching and good learning can go on in many different settings, and in a variety of ways. It is still going on in our nation's colleges and universities, in spite of what seems at times to be the determined efforts of many parties to stamp it out. Students will read and they will talk to one another, and reading and conversation are the two things that can teach you how to think, especially if critically supervised. After all, that is what an education is all about. It is more difficult to get an education today than it should be, but it is still possible. Think of the education of Abraham Lincoln, if you want real hardship.
I think it is important to emphasize that it is not the function of the university to be relevant to contemporary social and political problems. The university ought not to set out to right the wrongs of the world. Rather it should live up to its character as a home for scholars and for scholarship. Scholars must have the widest possible latitude to follow their studies wherever they may lead. But if they choose to be social activists, they should do so in their capacity as citizens, and not as scholars.
FORSYTH: So you would disagree with someone who said that the purpose of the academy is to advance egalitarianism, or to overcome race prejudice? What, for instance, do you think about waiving admissions requirements for members of preferred race and ethnic groups?
LEVY: I disagree. I do not believe in special treatment for anybody. The only just standard for the university to follow in admissions policy is individual academic merit.
When the University tries to reform society, it compromises its own character as a seeker after truth by committing itself to something which may be false. Look at Classical or Keynesian economics. Each has failed. The University, above all other institutions, should remember that whatever suddenly seems to be the truth is often proved to be wrong, or at least limited in its applicability.
Individual scholars as citizens, must be as free to act in the political arena as any other citizen. But the scholar and the citizen are two different things. The scholar is a truth seeker. At the least he must be bound by the evidence, and he must attempt to prove his point through argument. This means he must always preserve an openness to the possibility that his argument is false and that the evidence is against him. This kind of disinterestedness is not the defining characteristic of politics.
Let me give you a case in point. In my research on the First Amendment, I have been persuaded that in their protection of political speech the Founders had no intention of overturning the English common law of seditious libel. I revealed this fact, and the evidence which establishes it, in my book, Legacy of Suppression. I did this in spite of the fact that, as a citizen, I am dismayed by my findings. I believe that the Founders were wrong in this matter, and that we should not follow their lead in it. But in removing the influence of seditious libel from our laws we cannot appeal to them as authorities. What passed for wisdom in their time is now out-of-date.
FORSYTH: So they didn't persuade you that your opinion in this matter was wrong?
LEVY: No. My study has by and large confirmed me in those principles I was raised to believe. I mentioned growing up in DeKalb, and how frightened we were when Gerald L.K. Smith was going around blaming the Jews for the Depression. You will understand me when I say that the value of civil liberty and the danger of totalitarianism is no abstract proposition to me. Members of my family remembered with dismay the Bolshevik victory over Kerensky. I was raised a liberal. My study of history has persuaded me of the "truth" of the principles of liberalism. The world has changed, but I have not. I was opposed to quotas when they were for WASPS and against Jews, and I am still opposed to quotas, whoever benefits from them. Still, you should not let your values interfere with your scholarship.
FORSYTH: Very well. The question is what are the principles of liberalism, and how ought they to be applied? Don't you risk discrediting the idea of civil liberty for most people when you refuse to make elementary distinctions. It is one thing to protect political speech or to exempt scientists from political control. It is another thing to turn toleration into complete license for dissidents. Aren't there practical limits to toleration? Take the recent case in Skokie, Illinois. It seems to defy common sense to allow people in Nazi uniforms to march through a neighborhood populated by survivors of the holocaust.
LEVY: Yes, let's take that example. These people, the American Nazis, are no "clear and present danger." The American people are not about to become Nazis. You now, it was as much the street brutality of the real Nazis as it was their ideas that made them dangerous. And these people here are not engaging in that kind of violence; surely not with the impunity the Nazis enjoyed in Germany.
Remember, criticism is vital to our way of life. We ought not to risk stifling it, if we can help it. Until such time as ideas or advocacies are translated into overt acts against law, we must be restrained from suppressing their proponents lest we become like them. We should use our freedom to argue down the enemies of freedom, not to clobber them.
FORSYTH: But is it "clobbering the enemies of freedom" to deny a group a parade permit under any circumstances? Does freedom of speech take precedence over every other good thing? Justice Black seems to make such a claim in his interpretation of the First Amendment. As you know, he says the introductory phrase, "Congress shall make no law," means that no legislation whatsoever is to be allowed in the protected areas.
LEVY: I do not deny that the language in which an argument is couched, or the circumstances under which it is made, or the setting, have a legal bearing on the matter. Of course they do. The defense of freedom is not antiprudential. The argument you quoted by Justice Black is neither reasonable nor historical. The treason laws are good constitutional law, and in some circumstances even prior restraint is constitutionally justifiable. Hugo Black himself would have acknowledged this. No right is an absolute right, and the Constitution vests absolute rights in nobody. The distinction between freedom and license was acknowledged by the Founders, and is implicit in our law.
Still, it is always dangerous to enforce this distinction in particular cases, and almost always safer, where the consequences of error can be so profound, to err on the side of toleration than intolerance. Groups who advocate violence (and we are not talking about terrorists) should be met with the community's self-imposed stand against violence.
If I had been in Skokie, I would have tried to organize a boycott of the Nazi parade. Why not have the townspeople assembled along the parade route, wearing black armbands, and yellow Stars of David, in silence, with their backs turned? Boycotts, not suppression, are the American way.
We must keep in mind that morality comes from the community, not from the law. The Bill of Rights is really a bill of restraints imposed by a decent community on itself when it acts politically. Private groups can lobby the media not to cover an event like the Nazi march, and threaten to boycott them if they do, or boycott if they fail to cover the event in the proper way. The Nazis want publicity. Deny it to them-but let them speak and march. There really is no defense of freedom except freedom.
You say we need to suppress A. B wants to suppress X. When we get through, what is left of our freedom? It wasn't so long ago that Al Smith couldn't be elected to the presidency because he was a Roman Catholic, and people thought that would mean that the Pope would rule. I don't deny that freedom is a risky business, but if we don't allow it for everybody pretty soon we'll have it for no one.
FORSYTH: The exercise of a particular right is conditional upon the circumstances in which it is to be exercised, and the intention. This understanding of the prudential limits of rights has not been very popular for some time now. During the Vietnam War, for example, an attitude arose and was sustained in the press and in the university, that it was unconstitutional to compel men to fight in that war, or to censor press reports coming out of Vietnam, in order to sustain civilian morale back home.
LEVY: The war was not unconstitutional and censorship was wrong. This is a very good example of how difficult political questions can be, and how much they are dependent upon the judgment of our elected leaders, backed up by a sound and informed public opinion. I don't want to get into the complexities of Vietnam. But in general, the government thought that if a given end was legitimate, then the necessary means to that end were also legitimate. The doctrine that the end justifies the means is odious and dangerous. But it always comes to balancing different ends and different means. In reality, our failure in Vietnam was as much the result of weak political leadership at home as it was of the protests and the press's attitude towards the whole policy. Certainly there was a very widespread, unrealistic view of what was going on in this country and in the war. And both the press and the academy must accept a measure of responsibility for that attitude.
Consider the news coverage of Vietnam, especially after Tet. I would say that we would have lost the American Revolution if it had been covered by television. The public would not have liked seeing dead Americans or the harrowing winter at Valley Forge. This is not so much the fault of the individuals as it is of TV itself. Television trivializes and simplistically dramatizes complex events. This accounts for the growing popularity and importance of TV in our political life. It makes subtle and difficult things accessible to busy people who don't really have the time for a more serious examination. And it produces the "instant expert." Television has influenced the print media to move, by degrees, in the same direction. Step by step the quality of political reporting decreases as the volume increases. I think that this is in large part the result of the huge amount of money involved in the so-called media industry today. If you have to make a profit, you had better be selling what people want to hear.
I think that the media environment is not nearly hot enough today. There are far fewer newspapers published per capita today than there were two centuries ago, or two decades ago. And that means that any particular community is confronted with one, or at best, two points of view. This consolidation of newspaper ownership, and decline in the number of newspapers serving any given market, has tended to homogenize the news. The same is true of TV.
Both the growth of advertising in newspapers and the adoption of nonpartisanship by newsmen have furthered this tendency. The advertisers don't want their products identified with particular political positions, understandably enough, and publishers want the maximum advertising revenues, again, understandably enough. Gradually, the standard for the success of a newspaper has become its ability to appeal to the widest possible audience by offending the fewest number of potential readers.
In the eighteenth and nineteenth centuries, American newspapers were openly partisan. They backed candidates and ideas, and their reporting was openly aimed at advancing them. But they also published fairly full texts of speeches and important public documents. They were almost compelled to marshal their evidence and present it to the reader (who might well be skeptical) if they were to persuade him of their point of view on a question. The necessity for serious political argument was almost built into the system of news reporting.
Today, the raw materials of political judgment appear predigested in the guise of an objective account, which is often only a more subtle form of partisanship. The combined-effect is that, with the possible exception of the New York Times, today's papers are less interesting to read and less politically useful. The sports page and the comics are about as good as the local papers get.
I don't doubt that there are many reasons for the decline of our newspapers. Perhaps the most important is that it is simply easier to watch television. Whatever the cause, it is a real problem for our democracy, and for the just exercise of our freedoms under the law. And I think that it is an important part of the scholar's task to point out a long-term development like this, a development which can only come into view on the basis of the study of history. Our natural memories do not stretch back very far. But our institutions and laws, and the principles which underlie them, are centuries old. You can't really understand them unless you are familiar with the way they have grown and developed, and how other generations, under different but recognizable circumstances, have dealt with them. Such knowledge gives one a sense of political moderation which is indispensable to human freedom. It teaches a moderation of expectations without which a just evaluation of leaders and policies is impossible. But the past is not immediately accessible. It requires both research into events-what actually happened-and reflection on the meaning of events. For this, the scholar must have absolute discretion. There must be no partisan test or social test on the work of scholarship in any field. It is fundamentally wrong to ask of scholarship, "Who benefits?" Or rather, we must always remember that truth can harm no one, though it may upset many fondly held beliefs. Whenever you find people demanding that the academy solve society's problems, watch out. There are the enemies of liberty. They may be friends of equality, but not of liberty. Put to a choice, I would prefer liberty to equality.