Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2014 The Administrative Origins of Modern Civil Liberties Law Jeremy K. Kessler Columbia Law School,
[email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Administrative Law Commons, Constitutional Law Commons, First Amendment Commons, Legal History Commons, and the Religion Law Commons Recommended Citation Jeremy K. Kessler, The Administrative Origins of Modern Civil Liberties Law, 114 COLUM. L. REV. 1083 (2014). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/109 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact
[email protected]. COLUMBIA LAW REVIEW VOL. 114 JUNE 2014 NO. 5 ARTICLE THE ADMINISTRATIVE ORIGINS OF MODERN CIVIL LIBERTIES LAW Jeremy K. Kessler* This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to limit the reach of that state. Drawing on a wealth of unexplored archival material, this Article inverts the conventional story: It argues that lawyers within the executive branch took the lead in forging a new civil-libertarian consensus and that they did so to strengthen rather * David Berg Foundation Scholar, NYU School of Law; Ph.D.