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Civil Liberties in Times of Crisis Alan Brinkley

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Civil Liberties in Times of Crisis Alan Brinkley © Corbis In recent months, Academy meetings in Cambridge, Palo Alto, and Washington, D.C., have considered the concept of justice from an historical, contemporary, and interna- tional perspective. The remarks from these meetings are reprinted below. Civil Liberties in Times of Crisis Alan Brinkley This presentation was given at the 224th Annual Meeting and 1891st Stated Meeting, held at the House of the Academy on May 11, 2005. At this meeting Denis Donoghue, University Professor and Henry James Professor of English and American Letters at New York University, also spoke. His remarks on “The American Classics” were published in the Summer 2005 issue of the Bulletin. Alan Brinkley Alan Brinkley is Allan Nevins Professor of History stronger. We are now in a period of appar- from the state that the state can withdraw and University Provost at Columbia University. ently open-ended crisis, and the lessons of when they become inconvenient. They are He has been a Fellow of the American Academy these past experiences with war and emer- the product of continuous effort, which has since 1999. gency are clear: We cannot reasonably ex- extended over two centuries and must con- pect the highly robust view of civil liberties tinue into a third–in dangerous times as that we have embraced in recent decades to well as in tranquil ones–if personal freedom The history of civil liberties in America, survive entirely unaltered. Every major cri- is to remain a vital part of our national life. sis in our history has led to abridgments of like the history of civil rights, is a story of It is part of our national mythology that the personal liberty, some of them inevitable struggle. Even in peacetime, Americans con- framers of the Constitution guaranteed civil and justi½ed. But in most such crises, gov- stantly negotiate between the demands of liberties to all Americans through the Bill of ernments have also used the seriousness of liberty and the demands of order and secu- Rights, and that we are the bene½ciaries of their mission to seize powers far in excess of rity. But in times of national emergency, the their wisdom. But during the ½rst century what the emergency requires. conflict between these demands becomes and more of the history of the United States, particularly intense and the relative claims Those living through such times should the Bill of Rights had relatively little impact of order and security naturally become remember that civil liberties are not a gift on the lives of most American citizens. Widespread violations of civil liberties that 26 Bulletin of the American Academy Winter 2006 by modern standards would seem excep- and women who de½ned their mission as tionally oppressive inspired one scholar, re- The history of civil liber- spying on their neighbors, eavesdropping on marking on the early history of the Bill of ties in America, like the suspicious conversations in bars and restau- Rights, to describe it as “140 Years of Si- rants, intercepting and opening the mail and lence.” Even ignoring the egregious viola- history of civil rights, is a telegrams of people suspected of disloyalty, tions of rights and liberties inflicted on both and reporting to the authorities any evi- enslaved and free African Americans, Native story of struggle. Even in dence of disenchantment with the war Americans, Mexicans, Chinese, and many effort. They made extralegal arrests. They other groups of immigrants, and the routine peacetime, Americans organized “slacker raids” against perceived limitations of the rights of women, the draft resisters. And they constituted only abridgments of civil liberties were severe constantly negotiate be- the largest of a number of such organiza- and routine. Local governments routinely tions. There was also the National Security banned books, censored newspapers, and tween the demands of lib- League, the American Defense Society, even otherwise policed “heretical” or “blasphe- erty and the demands of one modeled on the Boy Scouts–the Boy mous” speech. Communities enforced rigid Spies of America. standards of public decorum and behavior order and security. Much of this repression was directed at la- and often criminalized unconventional con- bor leaders, radicals, and other dissidents. duct. The legal rights of the accused in crim- But it fell hardest on immigrants, and above inal trials had few effective protections, and tious” materials included anything that all on German Americans. The California obedience to the Fourth, Fifth, and Sixth might “impugn the motives of the govern- Board of Education, for example, banned Amendments was often token or nonexis- ment and thus encourage insubordination,” the teaching of German in the public tent. Freedom of religion did not always ex- or anything that suggested “the government schools, calling it “a language that dissemi- tend to Catholics, Jews, free thinkers, agnos- is controlled by Wall Street or munitions nates the ideals of autocracy, brutality, and tics, or atheists; and such people had no pro- manufacturers, or any other special inter- hatred.” Libraries removed German books tection against discrimination in education, ests.” All publications of the Socialist Party from their shelves. Merchants and others jobs, and even place of residence. were banned by de½nition. dropped German words from the language. It would be too much to say the Bill of The Sedition Act, passed the next year to (“Sauerkraut” became “liberty cabbage”; Rights was an empty shell during the nine- strengthen the provisions of the Espionage “hamburgers” became “liberty sausage.”) teenth century. Things would surely have Act, made it a criminal offense to use “any German faculty members were ½red from been worse without it. But to a signi½cant disloyal, profane, scurrilous, or abusive lan- universities. German musicians were ½red degree it remained contentless in the ab- guage about the form of government of the from orchestras. Because of widespread ru- sence of popular, legislative, and judicial United States or the Constitution of the mors of plots by German Americans to put support–all of which were intermittent and United States, or the flag of the United ground glass in bandages sent to the front, often grudging for over a hundred years. States, or the uniform of the Army or Navy,” the Red Cross barred people with German or any language that might bring those insti- names from working with the organization. Our modern notion of civil liberties was, in tutions “into contempt, scorn, . or disre- In Minnesota, a minister was tarred and fact, not born with the creation of the Bill of pute.” This second law was a particularly feathered because he was overheard praying Rights. A more important turning point may useful instrument for suppressing radicals with a dying woman in German. In South- have been American involvement in World and labor unionists. Hiram Johnson, pro- ern Illinois, a man was lynched in 1918 for no War I, which fostered some of the most gressive senator from California, caustically apparent reason except that he happened to egregious violations of civil liberties in our described the provisions of the law: “You be of German descent; the organizers of the history–and, indirectly, some of the ½rst shall not criticize anything or anybody in lynch mob were acquitted by a jury, which vigorous defenses of them. the Government any longer or you shall go insisted that what they had done was a patri- to jail.” When the United States entered the war in otic act. April 1917, the Wilson administration was This state-sponsored repression did not The end of the war in 1918 did not bring this acutely aware of how much of the public occur in a vacuum. It both encouraged and period of intolerance to a close. If anything, remained hostile to the nation’s interven- reflected a widespread popular intolerance it intensi½ed it by ushering in what has be- tion. It responded with an aggressive cam- of dissent that at times became highly coer- come known as the great Red Scare. The Red paign of intimidation and coercion designed cive. In 1917, private volunteers formed the Scare was, in part, a response to the Bolshe- to silence critics and root out opposition. apl American Protective League ( ) to assist vik Revolution in Russia and the tremen- the government in the task of maintaining At the center of this effort were two pieces dous fear that event created throughout the loyalty. The apl received the open endorse- of wartime legislation: the Espionage Act of capitalist world. It was also a product of the ment of the Attorney General, who called it 1917 and the Sedition Act of 1918, which em- great instability of postwar America, which a “patriotic organization . assisting the powered the government to suppress and many middle-class people believed to be heavily overworked federal authorities in punish “disloyalty and subversion.” The orchestrated by revolutionaries. There was keeping an eye on disloyal individuals and Espionage Act, among other things, permit- widespread labor unrest, racial conflicts in making reports on disloyal utterances.” By ted the Postmaster General, Albert Sidney cities, economic turbulence, and a small but the end of the war, the organization had two Burleson, to ban all “seditious” materials frightening wave of terrorist acts by radi- hundred and ½fty thousand members–men from the mail. He announced that “sedi- Bulletin of the American Academy Winter 2006 27 The federal government’s the wartime excesses helped create three sisting state efforts to limit individual free- new forces committed to defending civil lib- doms. He became a civil liberties activist assault on civil liberties erties: popular support, formidable institu- during World War I, and he spent the rest of tions, and the ½rst serious evidence of judi- his long and active life building institutional during and after World cial backing.
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