Marching through Skokie

Will the Nazis finally march in Skokie? They have sought to stage their demonstration in the suburbs of Chicago since May of last year, and until very recently there seemed to be a concert between the state and federal courts to strike down every legal obstacle that might have prevented the Nazis from marching. But suddenly the declamations were suspended and judicial minds were concentrated anew, with the mounting evidence that other groups would be coming to Skokie with the intention of meeting the Nazis in the street with a show of violence. In February Judge Bernard Decker of the Federal District Court had swept away the restrictions on the Nazis and warned against the danger of “permitting the government to decide what its citizens may say and hear.” By the end of March, however, Judge Decker issued a restraining order to postpone the demonstration (and, presumably, the “principle” he articulated) for another 45 days.*

In this manner the courts have managed to create the worst of all possible worlds. They have been given the chance over several months to restrain the Nazis on grounds of jurisprudential principles that are fundamental to a democratic order. What they chose to do instead was to affirm the view that a democracy has no principles by which to judge the Nazis—but then to restrain the Nazis anyway without the benefit of principles: the courts have established now that the Nazis have the wildest claims to constitutional freedom, but that their freedom of expression may be restricted so long as hostile groups show a willingness to use violence. The result, in short, has been decidedly antilibertarian. Instead of using the occasion to teach something about the principles that define legitimate interests and expression, the courts have given credence to the most cynical understanding of the law—viz., that the law is merely a polite form in which the force of the many may govern the few.

About the Author

Hadley Arkes

Hadley Arkes is the founder and director of the James Wilson Institute on Natural Rights and the American Founding.

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Will the Nazis finally march in Skokie? They have sought to stage their demonstration in the suburbs of Chicago since May of last year, and until very recently there seemed to be a concert between the state and federal courts to strike down every legal obstacle that might have prevented the Nazis from marching. But suddenly the declamations were suspended and judicial minds were concentrated anew, with the mounting evidence that other groups would be coming to Skokie with the intention of meeting the Nazis in the street with a show of violence. In February Judge Bernard Decker of the Federal District Court had swept away the restrictions on the Nazis and warned against the danger of “permitting the government to decide what its citizens may say and hear.” By the end of March, however, Judge Decker issued a restraining order to postpone the demonstration (and, presumably, the “principle” he articulated) for another 45 days.*

In this manner the courts have managed to create the worst of all possible worlds. They have been given the chance over several months to restrain the Nazis on grounds of jurisprudential principles that are fundamental to a democratic order. What they chose to do instead was to affirm the view that a democracy has no principles by which to judge the Nazis—but then to restrain the Nazis anyway without the benefit of principles: the courts have established now that the Nazis have the wildest claims to constitutional freedom, but that their freedom of expression may be restricted so long as hostile groups show a willingness to use violence. The result, in short, has been decidedly antilibertarian. Instead of using the occasion to teach something about the principles that define legitimate interests and expression, the courts have given credence to the most cynical understanding of the law—viz., that the law is merely a polite form in which the force of the many may govern the few.