Research Matters: Laura Weinrib on "Civil Liberties Outside the Courts"
Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.
Assistant Professor Laura Weinrib wrote “Civil Liberties Outside the Courts,” which will be published in the Supreme Court Review in 2015. The paper — which examines the articulation and enforcement of civil liberties during the New Deal period, as well as a previously unexplored connection between civil liberties and organized labor — grew out of archival research she was doing for a forthcoming book on the history of the modern civil liberties movement.
Q. Why did you write this paper?
A. The goal of the paper is to intervene in contemporary legal debates about constitutional change, the role of the courts, and the First Amendment, in addition to historical literature on the so-called New Deal Settlement. We ordinarily think of the constitutional revolution as having two components: First, the turn away from strong protection of property rights and freedom of contract and, second, new protections for free speech and disfavored minorities. The assumption is that both parts of that transformation were unequivocal victories for liberal New Dealers. As it happens, that story is incomplete. The embrace of civil liberties was not a program that had universal support on the Left. In fact, labor leaders and their New Deal allies were largely opposed to strengthening the First Amendment, for fear that it would legitimate the judiciary — an institution that they identified with labor injunctions and with Lochner-era substantive due process.
By the same token, conservatives reluctantly adopted the civil liberties project. This is particularly surprising because modern civil liberties advocacy had its roots in labor radicalism. “Civil liberties” was a term that was introduced into American political discourse during World War I, by the organizational precursor to the ACLU. Its singular form, “civil liberty,” was closely linked to common law property rights. But “civil liberties,” as the ACLU framed the concept, were meant to encompass the rights of labor to organize, boycott, and strike.
Q. So what happened to cause this shift?
A. During the 1920s, the ACLU had emphasized issues like academic freedom and sex education that helped make civil liberties palatable to mainstream liberals and, increasingly, to conservatives. But the key period was the 1930s. The New Deal state threatened the business establishment in unprecedented ways. Conservatives began to conceive of congressional committees and administrative agencies as threats to their First, Fourth, and Fifth Amendment rights. And celebrating the Supreme Court’s decisions upholding the rights of radical dissenters, which they had opposed when the cases were argued, helped to deflect charges of judicial hypocrisy in the face of the Court-packing plan. After the “switch in time,” attorneys and their corporate clients realized that a strong First Amendment could stand in for freedom of contract. These are all developments I describe in other work.
This paper focuses on the other side of the story: liberal ambivalence about a strong, judicially enforceable Bill of Rights. For the first time, labor leaders and progressive reformers saw the state as an ally against business interests. For them, protecting free speech — which had always been about protecting the underdog — now had the function of protecting big business. And so they started to question whether that commitment made sense in absolute terms. Some of them came to believe that state-centered reform efforts should trump individual rights. Others re-envisioned civil liberties as a socio-economic agenda to improve workers’ wages. Some even believed that the state was obligated to protect those rights against private incursion.
Q. Why isn’t the embrace of civil liberties generally remembered this way?
A. I’m speculating here, but I suspect there are a couple of factors. The first is a matter of terminology. All of the actors I describe in the paper, from the ABA to the Communists, claimed to be committed to “civil liberties.” By the early 1940s a particular vision of civil liberties, which I call the liberal civil liberties vision, prevailed. That’s the familiar understanding of civil liberties today, namely, as rights contained in the Bill of Rights, asserted against the state, and enforceable by the courts. Many New Dealers staunchly opposed that formulation, but since they all endorsed “civil liberties,” we mistakenly assume they were on the same page.
Second, the political landscape shifted sharply by the late New Deal. During and after the 1940s, the obvious beneficiaries of a strong First Amendment were once again radicals. The contentious First Amendment cases involved the rights of civil rights activists, of communists, of Vietnam War protestors. Some New Dealers had believed that speech alone rarely accomplishes material economic change, and they were willing to potentially jettison some protection of advocacy if it meant more rigorous regulation of economic activity. Those tradeoffs fell out of view until recent decades, when issues like corporate speech and campaign finance became central.
Q. Why is it important to understand this fuller picture now?
A. I think that debates over the First Amendment have been unduly constrained by this idea that a strong, anti-state, judicially enforceable First Amendment has always been central to concepts of American constitutional democracy — or at least, that the ordinary function of the Bill of Rights is to shield disenfranchised minorities against a powerful and oppressive state. In recent years, there’s been an outcry against the Lochnerization of the First Amendment. But in a sense, the modern First Amendment was Lochnerized from the start. Many New Dealers understood that at the time, and they resisted it. I hope that recovering the frenzied debate of the 1930s about the costs of a strong First Amendment will open space to debate alternative visions today.