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The Supreme Court's decisions dealing with civil liberties in the ten years under review fall into four groups: (1) cases involving the rights protected by the First Amendment—freedom of religion, speech, press, and assembly; (2) those concerned with racial discrimination; (3) cases enlarging the power of the federal government to protect civil rights against invasion by private persons; (4) war-time cases arising out of conflicts between civil liberty and military power. Decisions dealing with procedural due process and other rights of those accused of crime are discussed in another part of this symposium.I. FIRST AMENDMENT—FREEDOM OF RELIGION, SPEECH, PRESS, AND ASSEMBLYDuring the decade we are examining, the Supreme Court not only has decided a substantial number of cases involving freedom of speech, press, and religion, but it has developed a new and important judicial philosophy or doctrine with respect to them. In this judicial doctrine, three principles are fused. The first is that the four liberties protected by the First Amendment are so indispensable to the democratic process and to the preservation of the freedom of our people that they occupy a preferred place in our scheme of constitutional values.

No apology need be offered for continuing the discussion of either civil liberties or emergency powers, exhausting and exhausted as the topics may now seem to have become. The very fact that such wide interest has been aroused by the agitation conducted by defenders of civil liberties in recent months indicates a growing realization that there is something at stake here requiring careful consideration and alert watchfulness. Whether one views civil liberty as flowing from numerous aspects of a well-balanced constitutional system of government, as the present writer does, or as the special area of distinctively designated fundamentals laid out to-protect individual rights, as many of the most vocal libertarians seem to do, every person must recognize the peculiar and intimate relation subsisting between civil liberty and constitutionalism. The preservation of the liberty of the subject is the distinguishing feature of all systems properly called constitutional and marks them off quite definitely from all forms of arbitrary government, no matter how the latter may be designated politically, socially, or economically. And at the present time no one can fail to observe that the unregulated and uncontrolled exercise of emergency powers constitutes one of the most serious threats to civil liberty as long understood and that it poses a most difficult problem for the constitutionalist.It is unnecessary to enter here upon any consideration of the nature or elements of civil liberty; still less is it necessary to embark on a defence of liberty or to ask why freedom matters. Liberty has been claimed on so many grounds —religious, rational, economic, national, and ethical—and has spawned such a volume of defences, from Milton's Areopagitica to Laski's Liberty in the Modern State, that one is entitled to assume that adequate exposition has been made and the goal denned in general terms acceptable to all sharing the historic concepts of western civilization. Nevertheless, it ought to be noted that the very same sources from which libertarian doctrines emanate are also quite frequently the springs of its repression, namely, some religious dogmas, some economic doctrines, some national cults, and social gospels of various types.

The historic controversy over the "rights of the subject" has again come into public prominence and gives evidence of being here to stay for a considerable period. The occasion of the new interest in the topic was apparently the notable departure from customary procedures in the espionage cases, but once attention was directed to the issue additional grounds for grave anxiety were found in the treatment of Jehovah's Witnesses in the province of Quebec. It would be a mistake, however, to consider that these particular examples of the invasion of civil liberties reveal a novel form of arbitrary conduct in Canadian government. The essential conditions of the situation have been present in most parts of the country for many years, though generally unobserved and unchallenged. Indeed, the current alarm might easily have been dissipated and the recent events might have been a warning only to the most sensitive if those responsible had expressed the least nominal regret at their mistakes.