Civil liberties

The preamble to the Constitution commits the United States to a government that secures “the blessings of liberty” to all future generations. That promise guarantees to protect the rights of individuals and the minority against the majority will and the actions of government. In short, civil liberties are those personal rights protected against the common will.

The Supreme Court entered the 20th century believing that courts were actively protecting Americans’ liberty by preventing government from infringing upon or violating individual contract and property rights. In the wake of the Slaughterhouse Cases, state and federal courts overturned legislation that regulated industry, taxed income, or provided for the common welfare. These laws restrained government intervention in the economy but also restricted the rights of political dissenters. At the same time, many Americans espoused energetic government that would intervene in and legislate for the general welfare. In response to these sometimes contradictory impulses, the courts began to direct their focus to liberty concerns flowing from the First Amendment’s speech, press, religion, and assembly guarantees. Essentially the courts, and in particular the Supreme Court, sought to balance what Zachariah Chaffee in 1920 characterized as “a conflict between two vital principles. . . between order and freedom.”

Beginning with World War I, the Wilson administration and Congress perceived the need for uniform support of the nation’s war efforts. Accordingly, Congress passed a series of laws to put the nation on a war footing, among them the Espionage Act of 1917. That act made it unlawful to “utter, print, write or publish any disloyal” language about the government or its war efforts. Charles Schenck was convicted of violating that law by advocating resistance to the military draft. Justice Oliver Wendell Holmes, writing for a unanimous Supreme Court in Schenck v. U. S., affirmed Schenck’s conviction, finding that the First Amendment did not protect speech that presented a “clear and present danger,” one of the “evils that Congress has a right to prevent.” Later that year, the Court in Abrams v. U. S. affirmed the conviction of Jacob Abrams for advocating strikes against munitions factories. In that case, Holmes dissented from the Court’s holding, arguing that the government must establish a “present danger of immediate evil” for speech to be unlawful. While the Court disagreed, Holmes’s powerful dissent carried significant future weight.

Immediately following the war and in response to radical movements and the Russian Revolution, President Wilson’s attorney general, A. Mitchell Palmer, created an antiradicalism division of the Department of Justice and named J. Edgar Hoover to run it. Between 1919 and 1920, that division arrested more than 6,000 people as radicals in what became known as the Red Scare. States also passed various laws designed to protect against radical elements. In response to those efforts, Roger Baldwin formed the American Civil Liberties Union (ACLU) in 1920 from an earlier organization that had protected war dissenters. Among its missions, the ACLU provided litigation support in defense of individual liberties and labor rights, including the defense of John Scopes for teaching evolution in Tennessee.

Historically, the Bill of Rights only applied to federal government and not to state actions. By the 1920s, however, state efforts to control radicals raised the issue whether the First Amendment should restrict state authority over speech. In response, the Supreme Court in Gitlow v. New York (1925) declared that speech and press freedoms “are among the fundamental personal rights and liberties” protected by the Constitution against encroachment by the states. While the Court sustained Benjamin Gitlow’s conviction for advocating proletarian revolution, speech freedoms now protected individuals against state and federal abuse. As in Abrams, Justice Holmes, this time joined by Justice Louis Brandeis, argued that the conviction be overturned. In powerful language, Holmes defended the need for speech, offering that, “every idea is an excitement” that must be heard in a democratic society, unless that speech resulted in a substantial and immediate danger. The majority felt otherwise, and Holmes’s dissent would not find general acceptance until after 1930.

In an article in 1890 and later in a dissent in 1928 in Olmstead v. U. S., Brandeis sowed the seeds of privacy-based civil liberties that were only later accepted. In his article, The Right to Privacy, Brandeis joined with fellow author Samuel Warren to propose that the Constitution guaranteed “the right to be let alone.” While on the Court, Brandeis proclaimed that “the makers of our Constitution . . . conferred, as against the government, the right to be let alone—the most comprehensive of the rights and the right most valued by civilized man.” This concept laid the foundation for the constitutional right of privacy that underlies much of modern jurisprudence and thought.

The Supreme Court between 1900 and 1930 most often struck a balance in favor of government restrictions on individual rights. However, through powerful dissenting arguments, Supreme Court justices planted the ideas of civil liberty that future Courts would embrace. Those ideas form the basis of our modern views of free expression, privacy, and liberty.

See also Buck v. Bell; Darrow, Clarence; lree speech lights; ScoPEs Trial.

Further reading: Paul L. Murphy, World War I and the Origins of Civil Liberties in the United States (New York: Norton, 1979); David M. Rabban, Free Speech in Its Forgotten Years, 1870-1920 (Cambridge: Cambridge University Press, 1997).

—Robert Olender