As we commemorate the fiftieth anniversary of the passing of Robert H. Jackson, we honor a man who capitalized on the infinite possibilities a legal education provides. Following his studies at Albany Law School, Justice Jackson's diverse career included serving as a country lawyer in Western New York, a close advisor to President Franklin Delano Roosevelt, Solicitor General and Attorney General of the United States, Justice of the United States Supreme Court, and chief U.S. prosecutor in the Nuremburg trials against Nazi war criminals. Although his career ended over fifty years ago, Jackson, in each of his legal capacities, wrestled with issues that continue to provoke debate in our nation and world today.
A review of Justice Jackson's career reveals his involvement in some of the critical issues with which our country continues to struggle. During his tenure at the Department of Justice, Jackson co-authored briefs and argued the government's position before the United States Supreme Court in cases regarding the constitutionality of the Social Security Act. (1) Today our Congress and President assiduously work to define, or possibly redefine, the role of Social Security and to insure its viability for future generations. Additionally, as a Justice on the United States Supreme Court, Jackson authored the majority opinion in the case extending First Amendment protection to school children unwilling to salute the American flag. (2) Spirited debate persists today regarding the constitutionality of prayer in public arenas and the use of "God" in the Pledge of Allegiance. Perhaps one of Jackson's most historic statements as a Supreme Court Justice, however, arose from his dissent in Terminiello v. Chicago, (3) where Jackson, drawing on his experience at Nuremburg, argued to uphold a law restricting disorderly conduct and inciting unrest in an effort to preserve order and justice. Clearly, debate regarding the appropriate balance between civil liberties and governmental controls of those liberties is one of the paramount issues we are called upon to face today.
II. THE USA PATRIOT ACT: A MODERN DAY TERMINIELLO?
A. A Brief History of Terminiello v. Chicago
It is often only with the passing of time that we come to appreciate fully the importance of the works of our legal predecessors. At the time of Justice Jackson's dissent in Terminiello, one easily could have viewed his opinion as an inconsequential departure from the majority in an otherwise forgettable case. Jackson's rhetoric, however, now stands for certain hallmark principles in assessing the government's role in preserving civil liberties. The case stems from Father Arthur Terminiello, a suspended Catholic Priest and follower of American fascist leader Gerald L.K. Smith, being found guilty of disorderly conduct in violation of a Chicago city ordinance. Terminiello urged a mob of his sympathizers at a public meeting hall to rise up against a surrounding gathering of his critics. Terminiello warned of the risk of a Communist revolution in the United States, labeled former First Lady Eleanor Roosevelt a Communist, and condemned "atheistic, communistic ... or Zionist Jews." (4) He referred to the mob of his critics as "slimy scum that got in by mistake. " (5) Terminiello's comments incited some members of the audience themselves to make callous remarks about Catholics, Jews, and African Americans, (6) while inciting critics to throw bricks and rocks through the meeting hall windows and break down the auditorium doors. (7) The police experienced difficulty in controlling the mob, but ultimately arrested seventeen individuals and charged Terminiello with provoking the episode. (8)
Justice Douglas, writing for the majority hearing Terminiello's appeal, overturned the conviction, arguing that inviting dispute is a function of the free speech guaranteed by our Constitution. (9) Justice Jackson dissented. In explaining his divergence from Douglas, Jackson wrote: "An old proverb warns us to take heed lest we 'walk into a well from looking at the stars. …