On the occasion of Law Day observances at the Pentagon in Washington, Judge Prettyman delivered the major address, which is reproduced below.

W

E LIVE THESE days on a hillside down which roar great avalanches, loosed from fixed locations and tumbling upon or past us with threats of destruction. Yet even amid the new turmoil old questions recur in critical form. Among them over and over again is the query: What is Freedom? Or Liberty, if you prefer that term?

The question swirls about us on all sides. President Kennedy, in line with all his recent predecessors, declares the aim of this country to be that all men be free. A passion for the intangible designated by the word "freedom" is the cohesive which binds Americans together as a people; for this we will fight. Members of the Supreme Court opine that some freedoms are absolute. We long ago declared rights to some freedoms to be inalienable. The American Bar Association has a world-wide program entitled "Freedom Under Law." Television documentaries show African jungle people chanting, "Freedom! Freedom!" An American newspaper reporter asked Mr. Khrushchev, "You say the Communist people are free, but there is obviously a problem of semantics here; and I ask you, sir, what is your definition of freedom?" And so it goes.

The dictionaries, of course, define the words "freedom" and "liberty." Orators and essayists of all sorts grow lyrical in the rhetoric applied to the subject. Among them appear concepts which seem to me to be unrealistic, erroneous, and perhaps even dangerous. This latter is the

*Judge Prettyman recently retired from his duties as Chief Judge, United States Court of Appeals for the District of Columbia. He is currently serving as Chairman of the Administrative Conference of the United States. He holds the A.B. and A.M. degrees from Randolph-Macon College and the LL.B. and LL.D. degrees from Georgetown University Law School. During World War he served in the Army and was discharged with the rank of Captain. In addition to engaging in the private practice of law for several years, he has served as general counsel for the Internal Revenue Service, President of the District of Columbia Bar Association and as Chairman of the President's Conference on Administrative Procedures. While serving as President of the D.C. Bar Association, Judge Prettyman organized the Administrative Law Section of that organization. For fifteen years he lectured on tax practice to the graduate class of Georgetown Law School.

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spark which ignited my energy to do this address.

What is the freedom of which we sing, for which we yearn on behalf of all people, and for which we will fight? Well, of course it is not freedom from some specific encumbrance, such as jail or an onerous entanglement, an unpleasant spouse, or even from some one governing power, such as an objectionable political party. A man is not free in this sense merely because his wife's brother got a job. He is not free merely because he is retired, although that status is quite pleasant, I assure you.

And then, obviously, we do not mean merely the freedoms as guaranteed in the constitutional amendments, that is, freedom from interference from the Federal Government. There is a school of thought, eminently supported, which reasons that, since the provisions of the Eight Amendments are absolute and the Fourteenth Amendment makes applicable to the states much of this Bill of Rights, therefore the freedoms mentioned are absolute, made that way by these declarations. Of course the Eight Amendments are absolute prohibitions against the Federal Government. However the carry-over by the due process clause does not carry absolute prohibitions, since that clause carries an internal permissive exception; it says "without due process of law." But, however all that may be, there are many sorts of tyranny, antitheses of liberty, besides the Federal Government, or the State governments either for that matter. There is economic bondage, social bondage, intellectual bondage, community bondage, restrictions by lesser governments, and many other sorts of compulsory servitudes. The abstention of the Federal Government from restrictive impositions does not establish the freedom we are thinking about.

THE FREEDOM FOR which we yearn is not the freedom of motionless abstract thinking. Our spirits can be free while our bodies are enslaved or imprisoned, but such freedom is not the sort of which we sing. The mind of a galley slave bound to an oar by chains may be said to be free. But the man is not free. Sometimes I think that our brethren who talk of absolute freedoms refer only to the immobile, expressionless behavior of men's minds. But my own concept of the freedom which is ours by inherent right is not so colorless an attribute.

JULY-AUGUST 1962

Sometimes it is said that freedom is an absence of restraint, and the saying is attractive. It has a pleasant, feathery sound, as if we were angels flitting about in an endless void. But we are not angels with infinite altitude and range capacities. We are earthbound and earthy rather than ethereal. Our spirits inhabit small earthen structures. And we share this planet with millions of similar creatures. These two facts impose limitations upon what might otherwise be without restraint. Men are bodies as well as spirits, and the freedom we value is the freedom of men as such. This freedom is subject to the laws of physics and biology and chemistry and physiology and psychology, and many more.

Thus the freedom of a man involves physical attributes. Freedom of speech is not merely a liberty to think; it is a liberty to cry out, to put ink on paper, and to distribute the paper. Freedom of religion involves places and equipment, and rituals, and music. Freedom of the press involves the going-about of men, the asking of questions, and the spinning of printing presses. The general freedom for which we yearn is not the bare privilege of meditation sitting alone and immobile. It is the freedom to make sounds, to direct pens or pound typewriters, to write or sell or read books, to sing songs and say prayers in unison, to move about on foot or in cars, to jostle each other in crowded places, to plant flowers and corn, to buy and sell goods, to exchange products for currency, to walk into polling booths and pull levers. These are the freedoms of man's spirit inseparably coupled with activities of his body. These bodily activities are integral ingredients of freedom.

Then we must note and remember that the freedoms we seek are not for one man alone but for each one of all men. The freedom of speech which I prize is not a liberty for myself and for no one else. It is a liberty of the same kind, quality and quantity for each one of two hundred million or more human beings in this country alone. To define and enforce a freedom for some one man alone would be a simple task.

The difficulty appears when definition and enforcement are sought for a liberty which is to be given to every one of millions of men. Two men cannot stand on the same spot at the same time, or be understood if both speak loudly at the same time; nor can each hit the same ball with the same bat on the same pitch. All these freedoms and most others require either a taking of turns or less than the whole liberty for each.

AND SO FROM THESE clear premises it follows that the freedom of men in its magnificent full sweep requires restraints for its existence. My freedom to walk across the street is dependent upon restraints upon my neighbor, who drives on that same street. The same electric fixture which signals me that I may cross, signals him and all other drivers that they may not go. Freedom of speech could not exist were the right to speak not restricted as to time and place and circumstance. Outsiders may not speak in the halls of Congress or sessions of the Cabinet, or at meetings of an organization to which they do not belong. You cannot speak to the President, or to a judge in his chambers, or to a corporate officer at his desk, without the permission of some guardian authority. Doctors are not permitted to talk about their pa tients, nor priests and preachers about those who confide in them. There are state secrets and trade secrets. You are not allowed to incite a riot or to block traffic with a speechmaking. Newsmen can be denied access to fire zones or to trouble spots. Prohibitions against obscenity or blasphemy are valid. Freedom to worship is strictly circumscribed-I cannot make a Methodist evangelical plea at a Sabbath serv ice in a synagogue, nor can a Mohammedan friend proclaim his praise of Allah at our Sunday morning worship. Economic freedoms of the people depend upon restrictions-antitrust laws, pure food laws, false advertising laws. qualification requirements for the practice of a profession, zoning laws, restrictions on interest rates, minimum wage laws, age limitations on voting and marriage, permits to bear firearms, compulsory vaccination laws. All these are restrictions on liberty necessary to preserve liberty. The preservation of free business enterprise requires measures of control. To prevent economic slavery, workmen can be required to belong to unions. Absence of restraints gives free rein to force and power, the great antagonists of liberty, always ready to assume control.

At the same time, and to the contrary, complete restriction of any kind, and any amount of some kinds of restriction, negate liberty. Thus, complete censorship denies freedom of speech. To deny a man the right to practice law because of his politics is to impinge upon freedom. A book cannot be denied the privilege of the mail because of the race of the author. A can of food can be denied interstate transportation because it lacks an accurate label but not because its processor lacks religion. Complete control of our activities is the

antithesis of liberty. So too are some partial restraints.

What is required in respect to restraints is a little bit, just enough but not too much. That which is true of the body in its physiological aspects is also true of it in respect to its freedom and the freedom of its resident spirit. The well-being of the body requires some, but not too much, of many elements. Some physical exercise is essential; too much is fatal. Vitamins are necessities; too much of some of them is lethal. Fat and salt and sugar are basic to health; too much of them destroys health. Bodily well-being and freedom of the spirit alike depend upon both the presence and the absence of elements reacting upon them.

We live in what is known as Western Civilization. It envisions a social order in which vast numbers of people live together in peace. This is a concept of interdependence and therefore of rules and restraints. This Civilization conceives that the optimum civic condition of a man is a developing one, and that man's best and highest development occurs when he is free. Thus the liberty for which we strive, within the definitions of the civilization in which we live, is the highest measure of unrestricted thought and action conducive to man's maximum development in an ordered social system in which every human being has the same liberty. Freedom is that state in which every human, in equal amount with every other human, enjoys, to the full measure possible under the physical facts of human existence and nature, unrestricted activity of his mind and body. The objective of freedom is the development of human capacity in all its facets. This, then, is the great problem: To define the system of restraints which will both nurture and protect the full measure of unrestricted activity conducive to the maximum development of man's capacities; and to prescribe the mechanics by which such restraints can be imposed and operated.

I am sure I do not know the answer to that conundrum. I suggest what I conceive to be a few basic truths. I think I know that freedom and liberty are the products of restrictions and restraints. Order is essential to their existence. I know that some kinds and some amounts of restraint destroy liberty. I am certain that equality before the law is an element of liberty. I know that restraints imposed in some ways by some authorities are consistent with liberty but the same restraints imposed in other ways or by other authority are violations of my right to freedom. In many respects

people are free when they participate in the decisions which establish restraints upon their freedom. Thus, if I as a Democrat support a program of legislative permissions and restrictions, but a Republican majority in the Congress enacts otherwise, my liberty is not deemed to be infringed thereby. But, if the British Parliament attempted to impose those same restrictions upon me, an American citizen, the effort would be opposed, even to death, as an invasion of my liberty. Thus it would appear that the unit of authority, and its relation to the source of its power and the area of its effectiveness, are critical factors in the definition of liberty. But even this is not a total touchstone, because duly authorized majorities can act illegally and in destruction of my right to freedom.

Furthermore I know that the evaluation of restraints conducive to man's maximum development must be by measurements of an intangible right and wrong and that those measurements are drawn, in so far as Western Civilization is concerned, from the teachings of the Judeo-Christian religion. Scientists of the pure, or impractical, breed may well pooh-pooh this submission. But the fact nevertheless is that no matter what so-called practical politicians on the one hand or ascetic biologists on the other may say, the major premises of this social order are drawn from the religious teachings which originated in and about Palestine. We can argue the properties and the desirabilities of that condition, but we cannot argue the fact. Beyond such relatively simple propositions I do not know how to go.

We have been talking about the freedom of individuals, and it is indeed a puzzlement. But the freedom of nations is even more complex. Intertwined with our concept of a unified society is the concept of nations. These are units, created partly by sheer power, partly by accident, partly by racial ties, partly, in our case, by purchase. There is a freedom of individuals within nations, and then there is a freedom of nations. Mr. Khrushchev is quite correct in saying the Russian people are free, so long as he means free in the latter sense, i.e., as a nation. They are under the control of no nation other than their own.

We wish all nations to be free, but we violently oppose a freedom for nations which would include unlimited rights to explode nuclear bombs or to subdue other nations. We support the freedom of colonies from mother countries, but we would not support the freedom of provinces from those same mother countries. It has been

established that no one of the United States has a right to be free of the Federal Union. Nevertheless the people of all the states are deemed to be free people.

The American Bar Association has, as I said earlier, a magnificent program for world operation, which it has titled "Freedom Under Law." The crux of this concept is Law. And there is the rub. For law is a set of rules. And so the core of freedom under law is a trilogy of inquiries worthy of presentation to Apollo at Delphi: What rules? Who is to make them? Who is to enforce them?

The nature of liberty is not simple, easily discerned, or easily established. Liberty is a complex, of fearful and conflicting complications.

THUS I COME to my overall thesis. It is that in an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product of restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn. Freedom, I say, is not an absence of restraint; it is a composite of restraints. There is no liberty without order. There is no order without systematized restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man's capabilities, not in a massive glob of faceless animations but as a perfect realization of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity.

I am well aware that what I think in this area and what I have said here is at variance with the

pronouncements of scholars and authorities of far greater eminence than I. They say that freedom-or at least some freedoms-are absolute. This is a proposition I dispute. Of course freedom to think without physical manifestation or concomitance is absolute. But I do not conceive of the freedom of voiceless, motionless minds as being the freedom we value so greatly. My concept of the basic freedoms of human beings is of rights which encompass physical activities as well as abstract cogitation and which belong to every human being in equal amount all at the same times and places.

May I here take off unabashedly upon a flight of rhetorical fancy? A rose is a thing of beauty. It has color, and grace, and fragrance. It gives pleasure to all the senses and to the mind and to the spirit. But the life of a rose is in its roots, dirty and tangled, buried in the earth, tough, drab, not beautiful. They feed it. They hold it steady against the weather. Separated from its roots a rose quickly dies. Restraints are the roots to the rose which is freedom.

Why all this to a captive audience in the year 1962? Because you, especially you younger people, will hear much, say much, and do much about freedom and liberty in the remainder of your lifetimes. Perhaps the cluster of years about the year 2000 will be crucial in respect to them. Now and here are a good time and place to begin some thinking about what the terms mean. I am not a philosopher or even a scholar in the scholar's sense of the term. And the fifty years I have been observing is a very small period for the measurement of fundamentals. What I am saying may be elementary. I am trying to flash a small traffic light-"Road under construction"-so that you may drive with

caution.

Τ

HE DAY IN 1937 when the Federal Social Security Act became effective marked a long step forward towards the time when most income producing individuals would have identification numbers from youth until the grave. Subsequently self-employed taxpayers and members of the Armed Forces were added, so that until recently only doctors, some clergymen, civil service employees, and pensioners were not required to have numbers.

All of this changed with the signing of Public

Law 87-397 on 5 October 1961, which provides that everyone who realizes taxable income in a reportable amount must have a "taxpayer account number." This will be the Social Security number for those who have one, and a tax number for those not required to have a Social Security number. Now it may be possible for some individuals, such as those who receive gifts of income producing property or securities at birth, to have a number from the cradle to the grave. (Continued on page 95)

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HYSICAL DISABILITY RETIREMENT pay and disability severance pay are authorized under Chapter 61, Title 10, United States Code.1 In order to be retired for physical disability certain conditions must first be met. It must be determined (1) that a member of the naval service entitled to basic pay is unfit to perform the duties of his office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, (2) that the disability was not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence, and (3) that the member had either eight years of service (computed under 110 USC 1208), the disability is the proximate result of performing active duty, or the disability was incurred in line of duty in time of war or national emergency. (For the purposes of Chapter 61, a "national emergency" has existed since 16 December 1950. Proc. 2914, 16 Dec. 1950, National Emergency 1950, 50 USC App. prec. sec. 1 note.)

Members ordered to active duty for more than 30 days 2 who are determined to be unfit to perform the duties of their office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, may be separated with severance pay, if it is also determined (1) that the disability is not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and (2) either (a) the disability is less than 30 percent, and the disability was the proximate result of performing active duty, or was incurred in line of duty in time of war or national emergency, (b) the disability is less than 30 percent and the member had at

*Lieutenant Commander Bertram R. Carraway, USN, is presently assigned to the Promotions and Retirements Branch of the Civil Law Division in the Office of the Judge Advocate General. He holds the LL.B. degree from the University of Miami and is a member of the Florida bar and several Federal bars, including the Court of Military Appeals and the Supreme Court. 1. 10 USC 1201-1221.

2. However, members ordered to active duty for training under 10 USC 270(b), i.e. members of the Ready Reserve who fail to satisfactorily perform prescribed training duty and who are ordered without their consent to perform additional active duty for training for not more than 45 days, do not come under the provisions of Chapter 61 except when they are disabled as a result of injury.

least eight years of service computed under 10 USC 1208; or (c) the disability is at least 30 percent and was neither the proximate result of performing active duty nor incurred in line of duty in time of war or national emergency, and the member has less than eight years of service (computed under 10 USC 1208).

Members ordered to active duty for 30 days or less are entitled to the same retirement benefits as are members ordered to active duty for more than 30 days with one important exception. The disability must result from an injury. Members ordered to active duty for more than 30 days may be entitled to disability retirement benefits whether the disability is the result of injury or disease.3

The powers, functions and duties incident to the determinations required to be made to establish eligibility for disability retirement benefits are vested in the Secretary of the Navy. Once the Secretary has determined that a member is entitled to disability retirement, he must determine the percentage of disability that exists and the permanency thereof. If he determines that the disability is less than 30 percent and the member has less than 20 years of active service the member will be separated with severance pay. If the Secretary determines that the disability is 30 percent or more or less than 30 percent but the member has at least 20 years of active service, the member will be placed on the disability retired list.

The questions of fitness for duty, entitlement to basic pay, proximate result, permanency and other determinations required to be made rest solely within the discretion of the Secretary. However, the standards to be applied in determining the percentum of disability are set forth in the Veterans Administration Schedule for Rating Disabilities in use by the Veterans Administration at the time of the determination.*

If the Secretary determines that a disability, for which retirement is authorized, is of a permanent nature, the member will be placed on the permanent disability retired list. On the

3. For a general discussion of Reserve entitlement to disability benefits see, Simonson, "Determining Eligibility for Reserve Disability Benefits," JAG Journal, July 1961, p. 79. 4. See note 1, supra.