March 29, 2016 Dear Columbia Colleagues, I am attaching a prologue and (nearly) the first two chapters of the book I am working on this semester. It is the story of an organization known as the Garland Fund or the American Fund: a philanthropic foundation established in 1922 to give money to liberal causes. Some of you may have heard of it. The Fund figures prominently in the history of civil rights lawyering because of its role in financing the early stages of the NAACP’s litigation campaign that led eventually to Brown v. Board of Education. I hope you will be able to get some sense of the project from what I’ve attached here. This is very early in my writing, but I’ve now spent far too long in what is proving to be far too many archives, and so I am anxious to hear what you think. My working titles are all very provisional. I’m leaning toward The American Fund: A Story of Money and Politics in America. Please forgive typos, infelicities, and awkward formulations, which I fear are likely to abound! Looking forward, John Witt – CLS draft March 2016 not for circulation without permission of the author Prologue In November 1920, three weeks after Warren Harding swept into the White House on a promise to restore normalcy, a restless Harvard dropout named Charles Garland did something that was not normal at all. Garland was the handsome scion of a Wall Street investment banking fortune. He received a bequest that would have been the envy of even the wealthiest Americans. But the young Garland said no. Someone, he said, needed to be the first to stand up against the organized selfishness of society. And so he refused his inheritance. The executors of the estate were perplexed; no one could recall such a thing ever having happened before. Reporters from up and down the East Coast and from as far away as San Francisco descended on the Garland family’s fashionable Cape Cod farm to get a word with the eccentric young man. Onlookers wanted to know if the Russian Revolution had influenced him. (Would communist rejection of private property spread to American shores?) Journalists asked about Garland’s unusual ideas about sex and marriage. (Would communist ideas about property lead to collectivist ideas about the family?) Most reactions alternated between scandalized and voyeuristic. But a few people watching from afar had different ideas. From Los Angeles, the writer Upton Sinclair, whose best-selling investigative journalism in The Jungle had revealed the horrors of the meatpacking industry, wrote to Garland with a proposal. He should give away his money, Sinclair urged, not refuse it. Sinclair suggested that Garland get in touch with Roger Baldwin, founder of the fledgling American Civil Liberties Union. Baldwin met with Garland at the family farm on the Cape, now made over as an experimental cooperative. And by 1922, a plan was in place. Garland would use his money to create a foundation, the American Fund for Public Service, later known as the Garland Fund. He would endow it with $1 million, a figure that would double during the course of the stock market bubble of the next seven years, ultimately amounting to around $26 million in 2015 dollars. Sinclair and Baldwin, in turn, would use it to finance further experiments like Garland’s own: experiments in what it meant to be free. Though few guessed it at the time, Garland, Sinclair, and Baldwin were embarking on a venture through one of the great pivots of American history. At the end of the First World War, the projects that now seem most fundamental to the modern American ideas of freedom and equality under the law barely existed. Not once in its entire history had the United States Supreme Court ruled on First Amendment grounds in favor of a speaker. (Few American courts of any kind had ever done so.) The segregation regime known as Jim Crow forcibly separated 1 Witt – CLS draft March 2016 not for circulation without permission of the author people by race. Laws forbade sex outside of marriage, especially between people of different races, let alone the same sex. Sharing information about birth control was a criminal act. On the job, Americans had few rights their employers were bound to respect; they had no right to organize and no right to insist on decent working conditions. In courtrooms, a person convicted in a patently unjust criminal trial had little recourse to the federal courts. Lynch mobs served as an alternative to trials in thousands of cases, especially when the accused was black or otherwise out of the mainstream. Each of these things changed in the decades after the First World War. Successive Congresses and presidents created a strong central government where once there had been little more than a Rube Goldberg contraption. The United States assembled the basic building blocks of the modern welfare state, established the modern income tax, and built a national highway system. The nation created a vast standing army and financed the scientific research that produced, among other things, the first atom bomb. And along with these highly visible changes came a more fundamental subterranean transformation: the triumph of a new set of ideas to cope with the distinctive challenges of the modern world. Lawyers have a story about this pivot in the nature of modern freedom. We call it the switch in time. In two dramatic terms of the Supreme Court in 1937 and 1938, American law turned away from protecting rights of property to defending civil liberties and racial equality. It was, in a phrase popularized by Washington journalist Joseph Alsop, the “switch in time that saved nine.” The Court changed course just as Franklin Roosevelt and the New Deal Congress were mounting a frontal attack on the antiquated views of the nine justices, threatening to add six new members whose votes would tip the Court decisively in Roosevelt’s direction. The real story of the twentieth-century’s turn is much bigger and far deeper, for not even an institution as important as the Supreme Court could have imposed such a dramatically new way of thinking on the modern world, at least not on its own. Not even the presidency of Franklin Roosevelt or the extraordinary New Deal Congress can adequately explain the transformation, for the switch was one of the great seismic shifts in American history, like the founding generation’s revolution and the Civil War’s abolition of slavery. It was a product of a transformation in basic ideas about constitutional freedom, one that took place on the scale of social movements and cultural turns. The Supreme Court’s transformative terms ratified a turn that had already begun to take place in the organizing ideas of the nation. To be sure, no single document embodied the novel commitments of the age. Statesmen enacted no sweeping amendments to enshrine the new principles in the Constitution, as the Congress had at the close of the Civil War. Yet the changes in thinking about the nature of modern freedom that took place in the United States after the First World War were as enduring as those wrought by any constitutional convention or formal constitutional amendment. The transformation reflected nothing less than a fundamental rethinking of the defining attributes of modern freedom, one that aimed to adapt American freedom to the new circumstances of the twentieth century. Its origins are as tangled and deep as the idea of freedom itself. But if we want to make sense of the ideals that shape the world in which we live, to understand where they came from, we can’t do much better than to start with the story of Garland’s million. 2 Witt – CLS draft March 2016 not for circulation without permission of the author This book follows the story of a small group of men and women who, brought together on the occasion of Garland’s gift, aimed to reinvent public thought for a modern America. Three of them served as directors of the American Fund, deciding how to spend the money. Roger Baldwin was a Harvard graduate and descendant of the Mayflower who became a political lightning rod in virtually every free speech controversy of the twentieth century. James Weldon Johnson was a black man born in Florida at the end of Reconstruction who fought against the scourge of lynching and turned to music and literature as a way to do politics outside of politics. Elizabeth Gurley Flynn was an indefatigable Irish labor radical who organized workers around the country and flouted the restrictive sexual morays of the age. Felix Frankfurter was a Jewish immigrant who rose to influence in the highest circles of American government and served as a regular outside counsel to Baldwin and the Fund. The men and women who assembled around the table at the Fund’s meetings from 1922 into the mid-1930s were not presidents or generals. Only one ever held a high public position. But as modern-day apostles of new ideas about the nature of freedom, they participated in movements that left deep marks on the patterns of American thought. For a decade and more, the Fund’s directors met four times a year to decide how to spend the Fund’s money and to debate the fate of the country. They disagreed as often as not, sometimes bitterly. But despite their differences, the group coalesced around a shared premise. To change the world, they would need to free people’s minds from the shackles of the past, from what Baldwin called “the bonds of old institutions.” Freedom, they believed, was a quality of mind.