CHAPTER THREE
On the morning of October 2, 1914, Charles Taze Russell, the founder and leader of a group of apocalyptic Christians, came down to breakfast in a large, old Brooklyn house. He and his followers had bought the residence as a base to preach the end times and to wait for the coming apocalypse. The Bible Students, or the Jehovah’s Witnesses as they are called today, had been proclaiming that the world was coming to an end sometime in the first week of October 1914.
“Good morning, all,” he said to those gathered around the table. Then he began to clap his hands and declaimed, “The Gentile times have ended; their kings have had their day.”1
Russell’s announcement was pregnant and fraught. It implied that the Students’ expectations of an imminent demise were perhaps not quite on point. But no one knew exactly what that meant for sure. A month later, when war broke out in Europe, Russell decided that the commencement of hostilities marked the end of the world system and that 1914 was not the absolute end but the beginning of the end.
“Millions now living will never die,” the Bible Students began to declare. Their preaching became more urgent and aggressive, as befitting the final, unexpected dispensation before the coming fiery destruction of the world. They were still at it a couple of years later when Russell himself died. He was replaced by the group’s former legal counsel, Joseph F. Rutherford, a combative man who thought the urgency of the situation required an even more aggressive response. But Rutherford’s election as president of the Watchtower Tract and Bible Society would put the Bible Students in direct conflict with the U.S. government, challenging the religious structures of American political culture and promoting, somewhat contrary to their intentions, an American secularism. The confrontation was related to the war, though the dynamics were not entirely apparent at the time Rutherford was elected.2
The United States had originally sought to stay out of the European feud, a reflection of its historical dislike of foreign entanglements that did not have to do with the Western Hemisphere. But a series of incidents had made neutrality impossible for American leaders. In 1915 the Germans sank the passenger liner Lusitania, en route to Great Britain from New York, killing nearly twelve hundred people. A couple of years later British intelligence intercepted the Zimmermann telegram, a secret communiqué between the German Foreign Office and the Mexican government that sought to bring Mexico into the war. Germany promised Mexico that if it entered on the German side, at the war’s successful conclusion Mexico would receive Texas, Arizona, and New Mexico back as Mexican territory. The twin episodes inflamed American sentiment against the Central Powers.3
In April 1917, a little over three months after Rutherford was elected as head of the Bible Society, President Woodrow Wilson went before Congress to ask for a declaration of war. His War Message was a remarkable turnaround for someone who had promised to keep the United States neutral. But having made the turn, he embraced the effort with a missionary zeal in keeping with his brand of Christianity. Standing before Congress in an evening address, he justified the fight in terms that made the United States into the world’s messiah. “We have no selfish ends to serve,” he said. “We desire no conquest, no dominion. We seek no indemnities for ourselves, no material compensation for the sacrifices we shall freely make. We are but one of the champions of the rights of mankind.”4
His speech was perfectly pitched to appeal to a wide range of people, from liberal rationalists, who heard their own commitments in his rhetoric, to Christian groups, who warmed to what they saw as the calculatedly Christian terms of the American mobilization. Christian bodies began to amplify his message, as they understood it. The Federal Council of Churches immediately embraced his vision because, in its view, American democracy was “the expression of Christianity” and so needed to be spread abroad. The Reverend Austen K. De Blois of the First Baptist Church in Boston avowed that the coming conflict was “America’s Holy War” and “a grand campaign for righteousness.” Liberal Christians and conservative Christians both found a way to support mobilization, liberals emphasizing the goodness of humanity that needed military support and conservatives emphasizing the God-given power and destiny of the United States. The administration, seeing the Christian enthusiasm, used churches to create and distribute propaganda materials, to recruit soldiers, and to raise funds.5
But the Bible Students were having none of it. Under Russell, the group’s first leader, the Watchtower Society had already rejected any and all forms of nationalism. Existing governmental systems, even the U.S. political order, were irretrievably unjust, vehicles of Satan marked for destruction at the end of days. No patriotic allegiance to any such system could be countenanced. Under Rutherford, the new leader, their posture became more rigid as the United States began the march toward battle. 6
The war and its impulse toward religious patriotism brought into crisp focus several long-standing tendencies in American life. Christian leaders, or sometimes just Protestant leaders, set the parameters of political debate so that there was, in effect, a political orthodoxy. The true doctrines changed over time but they established a fuzzy yet existent set of boundaries about what could be discussed in public. Blasphemy charges, obscenity convictions, vice campaigns, birth control suppression—the entire panoply of Christian moral regulation—had existed going back to the founding era. But the war heightened the tendency of religious bodies to use coercive suppression, especially after the Bolsheviks in Russia seized power in 1917, a revolution that the journalist John Reed described as “ten days that shook the world.” The formation of the first communist state shocked global leaders, and the avowed atheism of the Bolsheviks was one of the main causes for alarm. The Russian leader Vladimir Lenin, following Karl Marx, denounced religion as an opiate of the people or, as he put it, “a sort of spiritual booze, in which the slaves of capital drown their human image.”7
For American political authorities and American religious leaders alike the revolution was a terrifying development that they sought to contain. There had been a long-standing anxiety among American leaders about what they saw as the godless political ideologies among the American Left—chiefly Marxism but also anarchism, socialism, and anarcho-syndicalism. In labor disputes dating back to the nineteenth century, in which laborers often marched under the leadership of leftist organizers, many churches and church leaders supported the owners over the workers. Christian ministers frequently called on the state to intervene on the owners’ side. Apprehensions about secularism often overlaid the labor dispute, and the fight over workers’ rights frequently became a proxy battle about the role of religious belief in American society.8
The Russian Revolution both realized and amplified the anxieties many Christian leaders had. Authorities began to fear that communism would radicalize American laborers, who were needed to work in factories and to fight as soldiers. They worried also about the protection of property. And they fretted that the Christian religion would be undermined if the leftist ideology spread. All three anxieties were connected. Many American leaders thought that Christianity was inseparable from American economics, which was itself inseparable from American institutions, so that criticizing any component would undermine the entire structure. The U.S. government became especially disturbed as American leftists and radical leaders moved to align themselves with the Russians, denouncing the war effort as a capitalist–imperialist venture that could not be supported.9
In response the U.S. government created new ways to suppress dissent. A couple of months after the U.S. entered the war, Congress passed the Espionage Act of 1917. It promised fines and imprisonment for interfering with the recruitment of soldiers or for mailing newspapers or magazines that had the same effect. Congress later added an amendment known as the Sedition Act of 1918, which prohibited speech criticizing the government, casting the war effort in a negative light, or interfering with the sale of war bonds.10
Looked at in one way, these laws could be considered an attempt to defend the secular ideal of national unity in wartime. There was not anything explicitly religious about the Espionage and Sedition Acts. But given the overwhelmingly Christian tone of the war effort, in which churches became vehicles of state propaganda and portrayed the war in the Christian terms generated by government leaders, the Espionage and Sedition Acts look less like a secular effort and more like acts designed by a Christian establishment to suppress anything that they labeled as antireligious dissent. Both acts were instantly used to reinforce mainstream Christian power in public life against those who challenged it.
Not surprisingly, the Bible Students soon came under the government’s watch. In February 1918 Rutherford traveled to Los Angeles, where he delivered a lecture denouncing the military effort. His denunciation came packaged in a comprehensive theological critique of the existing connections between church and state. To Rutherford and the Bible Students the war was but the latest instance of the religious usurpation of government for selfish ends. For fifteen hundred years, he said, the clergy had taught that kings ruled by divine right. Catholics still tended to speak in such terms. Even Protestants, Rutherford said, “mixed politics and religion, church and state” in an attempt to increase their power. It was clear to him that all the existing religious leaders were corrupt, implicated as they were in the wider violence of American life. The clergy’s fundamental problem, he said, was an allegiance to the nation rather than to the coming order of God. To Rutherford, their allegiance was simple idolatry that, in the context of armed hostilities, was a justification for murder. It could not under any circumstances be tolerated.11
His themes had an obvious resonance. Although he spoke in the tones of theology, Rutherford’s criticism dovetailed with the leftist critique of the war. The similarity was perhaps inevitable, given that many of the people attracted to Rutherford’s message came from the same down-and-out classes that socialists, communists, and anarchists drew upon. Those who were feeling crushed by the system were inevitably those likely to be responsive to an ideology of fundamental critique.12
Clergymen were outraged. When a full-page report of the lecture was printed in the Los Angeles Morning Tribune, the local ministerial association quickly sent an emissary to speak to the paper’s editor. They objected that so much of the lecture had been published, which tended to spread the message to far broader audiences than it would have otherwise reached. The authorities also took note of Rutherford’s comments and responded accordingly. Three days after the speech the U.S. Army Intelligence Bureau raided the Los Angeles headquarters of the society and gathered up its publications. Two months later the Department of Justice raided Bethel, the Brooklyn headquarters, and took the society’s officers into custody. They were soon indicted for having violated the Espionage and Sedition Acts and made to stand trial.13
The Watchtower leaders faced a conundrum in mounting their defense. They did not see the court as legitimate, since it was a vehicle of Satan, but neither did they wish to go to jail. So they tried various arguments in spite of their fundamental belief in the illegitimacy of the proceedings. Their strongest was that the Watchtower Society was a wholly religious organization and that their work was wholly religious as well, not political. But the government blew past that contention, pointing to society publications that clearly rejected patriotism, war, and the widespread Christian connection with the state. Whatever the Bible Students claimed, their teaching had political import that undermined a core component of American government and ran against the teaching of the other churches that did, appropriately, support that government. The Bible Students countered that the specific publications entered into evidence were published before the United States joined the war and before the Espionage and Sedition Acts were passed. Criminal laws cannot be applied retroactively so their prosecution was entirely inappropriate. That fact in another context might have led to their acquittal. But to the jury it did not matter. They were convicted on all counts.14
It was, to the Bible Students, a trying but instructive experience. The result tended to confirm what they already thought. Rutherford and the other leaders were convinced that their legal prosecution was essentially a religious persecution, an expression of Christian religious bigotry that sought to use the government for chauvinistic religious ends. In that way, according to the Watchtower leaders, they had been arrested on false pretenses, or at least on a partial pretense. They were convicted not because they criticized the war, the Bible Students believed, but because they criticized the clergy and the clergy’s association with state power. Their suspicions were confirmed when U.S. district judge Harlan B. Howe announced their sentences.
“The religious propaganda in which these men are engaged is more harmful than a division of German soldiers,” Howe said. “They have not only called in question the law officers of the Government and the army intelligence bureau but have denounced all the ministers of the churches. Their punishment should be severe.” He handed down twenty years for each of the four counts, to be served concurrently.15
Immediately after their sentencing, the Bible Students asked to be released on bail while they pursued their appeals. Judge Howe denied their request. They were sent instead to the Atlanta Federal Penitentiary.
The government was moving against other critics as well. Hundreds of leftists, many of them Jewish, were arrested for violating the Espionage and Sedition Acts. The constriction of national political debate would have, it turned out, a long tail. It persisted through the fighting and, once the war ended, in many ways it intensified. American policy makers, who were terrified of the power of international communism, soon launched a Red Scare that sought to root out communists from their place in American life. Left-leaning and antireligious activists protested, often to little avail, as the government sought to eliminate dissent even in peacetime.
It was in that context of political and religious persecution that the court was finally pulled into the conflict. Cases on appeal slowly began to make their way through the court system. In early 1919 the Supreme Court heard a case challenging the constitutionality of the prosecutions under the Espionage Act. It would invite Louis Brandeis to apply his thinking on individual rights to a new, potentially explosive situation. It began, as a result, the long reformulation of American law that would culminate in a new secular order.
The case was not complex. The appellant, Charles Schenck, was a secretary of the Socialist Party in the United States. During a raid on Socialist Party headquarters authorities found leaflets that criticized the war effort. On one side of the pamphlet Schenck had printed the Thirteenth Amendment, which forbade slavery in the United States. On the other side he described the draft as a form of slavery supported by the capitalist class. The pamphlet urged citizens to lay claim to their rights in defiance of political repression and in resistance to capitalist rule.16
Writing for a unanimous court that included Brandeis, Oliver Wendell Holmes upheld the constitutionality both of the Espionage and Sedition Acts and of Schenck’s conviction. Holmes acknowledged that there were free-speech issues raised by Schenck, but he thought that they did not apply in the case. There were, he said, limits to speech that everyone recognized. A man could not falsely shout “Fire!” in a crowded theater, for example, as that would likely cause panic and endanger others.
“The question in every case,” Holmes wrote, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” During wartime, it was obvious to Holmes that statements normally permitted could be curtailed, that the substantive evils to be prevented were more expansive. The hindrance of the war effort was one such evil that Congress had the power, even the duty, to prevent.17
A week later the court handed down another decision, this time involving the five-time Socialist Party presidential candidate Eugene Debs. A couple of years earlier Debs had given a speech that explained socialism, recounted its history, and predicted its success. He had been careful throughout not to run afoul of the law. He praised socialist comrades who, though he did not say it, had been arrested for obstructing the draft. He hinted to the crowd that he wanted to say more, but he could not do so because he did not want to get into trouble with the authorities. He declined to go any further. But it turned out that he had said enough to be arrested.
During his trial Debs contended that his speech did not warrant charges against him because it was about socialism, not the war. But then he did not do much to dissuade the court from convicting him. Addressing the jury directly, he said, “I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone.” Still, he said, that did not mean he had violated the Espionage and Sedition Acts.18
The jury disagreed. It convicted him. Prior to his sentencing Debs addressed the court. He could have pled for leniency, but he did not. He did the opposite. He reiterated everything he said in his original speech but with more eloquence. His commitment to articulating socialism was unswerving, even in the face of war, because, as he put it, “in this high noon of our twentieth-century Christian civilization” money still trumped every humane consideration. “Your Honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth,” he told the court. “I said then, and I say now, that while there is a lower class, I am in it, and while there is a criminal element, I am of it, and while there is a soul in prison, I am not free.”19
The judge sentenced him to ten years in prison. Debs appealed his conviction all the way to the U.S. Supreme Court. But in another unanimous decision written by Holmes, the court upheld his conviction and cited its prior case involving Schenck. Debs was sent to the Atlanta Federal Penitentiary, where he ran for president while still in prison in 1920.20
With the possibility of national political debate tightening, liberals who had been seduced into supporting the war began to reconsider. Up to that point they had had the somewhat complacent assumption that a modernizing spirit was inevitably opening American political culture. But the persecution of war critics demonstrated that the right of dissent and the right of conscience itself were far more precarious than they had thought. The rulings by Holmes, whom many people considered, inaccurately, an extravagant liberal, were even more disturbing. John Dewey, the philosopher and public intellectual whose essays had done much to make militarism respectable among the liberal intellectual class, complained about “the conscription of mind” in national debate. “The increase of intolerance of discussion to the point of religious bigotry has been so rapid,” he lamented.21
In some sense Dewey and others ought not to have been surprised. Radical war critics certainly were not. The cracking down on dissent was in keeping with campaigns against anti-Christian labor leaders going back to the nineteenth century. And the curtailment of speech, which Holmes’s opinion had supported, simply reinforced a conception of law that had been used to suppress working-class activism for some time. Jurists had relied upon what was known as the bad tendency test, put forward by William Blackstone in the eighteenth century, to determine the limits of speech. The test was fairly straightforward. If speech was likely to produce behavior prohibited by a statute, it could be punished. Because the test was broad, speech was often curtailed. The government could prosecute pretty much any speech if it judged that an utterance had the tendency to lead to unlawful action. Holmes was simply applying the test. His basic idea in both cases was that free speech was not an absolute right, that it was limited to prevent bad outcomes, and that that limitation had been a long-standing facet of American law. 22
But writing in the New Republic, Ernst Freund, a prominent exponent of sociological jurisprudence, attacked Holmes’s opinions as a failing to consider wider implications of the law and its social effects, the very thing that Holmes urged in his earlier writing. “To know what you may do and what you may not do, and how far you may go in criticism, is the first condition of political liberty,” Freund wrote. “To be permitted to agitate at your peril, subject to a jury’s guessing at motive, tendency and possible effect, makes the right of free speech a precarious gift.”23
Brandeis, who had joined the opinions, was bothered by the criticism. Given his commitment to cultural pluralism, he should have been more alive to the issues than he was. It seems, retrospectively, that his earlier deliberations might have had bearing on the issue of free speech. But his thinking, it was now clear, had a giant lacuna. He was somewhat blind or at least insensitive to the curtailment of leftist speech, and he had no wider theoretical lens through which to view the issue. He later confessed to Felix Frankfurter, “I have never been quite happy about my concurrence in [the] Debs and Schenck cases. I had not then thought the issues of freedom of speech out.”24
The problem was that when Brandeis considered individual rights, he conceptualized the issues in terms of private ordering and private rights. The state needed to protect an individual’s ability to order his or her life, he thought, free from governmental interference. But the right of free speech was not a private right and did not protect, necessarily, an individual’s ability to pursue self-fulfillment in a context of personal freedom. Free speech, as Freund pointed out, preserved a public freedom, the ability of an individual to participate in public life and to speak on matters of general interest. Brandeis did not have the right categories to understand the topic.25
A couple of months after the Debs decision, Brandeis began to see how the problem of speech could radiate to other substantive issues as well. He received an appeal from the Bible Students. They had had a hard time of it, even by the standards of wartime dissenters. After Judge Howe had sent them to the Atlanta Penitentiary, they asked for bail from the Second Circuit Court of Appeals while they pursued their case. Their requests were summarily denied. They tried a third time, in this instance appealing to Brandeis, who oversaw the Second Circuit.26
Their petition arrived on Brandeis’s desk a couple of weeks after the court handed down the Debs decision, as he was growing uneasy with its reasoning. He took the opportunity to rethink his position. Here was a case of overt religious discrimination in addition to political suppression. He sent the case back to the appeals court for reconsideration. The Bible Students were released on bail. Soon the appeals court vacated the convictions because of the many irregularities during trial. In the end, the government abandoned the case.27
Other critics continued to pound away at the court’s free-speech stance, which further unnerved Brandeis. A couple of months after the Debs opinion, Zechariah Chafee, another exponent of sociological jurisprudence, published an essay that was directly aimed at the emergent liberal wing of the court. It was a masterful dismantling of many of the court’s key assumptions from the perspective of someone who had thought through the social implications of law.
Chafee began by noting the importance of the free-speech issue to the current moment. There had been over two hundred espionage and sedition prosecutions during the war, a situation that called for a careful appraisal of the purposes of speech in a free society. In that assessment, Chafee contended, one needed to take care to frame the issues in the correct way. The usual liberal approach began by considering free speech as a right. Chafee disagreed. “It is useless to define free speech by talk about rights,” Chafee insisted. Rights often conflicted. The individual had a right to speak. The government had a right to wage war. The rights opposed one another. Deadlock ensued.28
To break the impasse one must go behind the talk of rights to understand the interests at stake. The individual sought to speak. Society wanted the successful prosecution of the war. Those interests were relative, not absolute. “Individual interests and social interests . . . must be balanced against each other, if they conflict,” Chafee wrote, “in order to determine which interest shall be sacrificed under the circumstances and which shall be protected and become the foundation of a legal right.” The balancing procedure was essentially a policy-oriented endeavor, an expression of sociological jurisprudence in the modern world. One must consider what Holmes had earlier called “the social end” of a regulation in the development of law.29
In the case of speech, the social function of free expression was much more capacious than the court seemed to acknowledge. “One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern,” Chafee wrote. In order to promote free inquiry the First Amendment was prejudiced toward, in Chafee’s words, a “national policy in favor of public discussion of all public questions.” Free speech was simply and obviously a prerequisite for having a full public debate.30
If Chafee had stopped there, he already would have been saying a lot. In cases that involved the regulation of speech, he removed the burden from those who wanted to speak and placed it upon those who wanted to curtail speech. Those who wished to limit speech had to prove decisively that the prevention of substantive evil would more than compensate the obvious costs to public discussion.
But Chafee went beyond his own formulations by arguing that Holmes had, in fact, already recognized the social purpose of freedom of speech. Holmes had noted in the Schenck opinion that the First Amendment allowed for the regulation of speech only when it caused “clear and present danger” to some vital social interest. Holmes had simply employed the old bad tendency test using a new turn of phrase. But Chafee reinterpreted Holmes as proposing a new, more stringent standard for the regulation of speech that could be useful in the future.
In Chafee’s construal, Holmes had limited the government’s ability to regulate speech to those few cases in which speaking caused an immediate danger to others. The clear and present danger test affirmed that all citizens could express their opinions free of governmental interference. It was obvious to Chafee, on that standard, that the court had wrongly decided the Debs case because Debs’s speech held no danger to any vital interest. Debs was simply expressing an unpopular opinion that ran against the political orthodoxy that the government was trying to protect.31
Chafee’s creative misconstrual of the court’s opinion was enormously useful to both Holmes and Brandeis. It offered “intellectual cover,” as the legal scholar David Rabban has put it, for changing their minds without repudiating their prior positions. The new direction allowed for a new jurisprudential orientation to enter law.32
Six months after the Schenck and Debs decisions, they were able to acknowledge their partial volte-face. The case, Abrams v. United States, involved five Russian-born radicals convicted for their role in distributing two circulars, one in English and one in Yiddish, that spoke favorably of the Russian Revolution. The appellants maintained that they were within their rights to publish and distribute the flyers. The Espionage Act was unconstitutional, they said, on the grounds of freedom of speech and freedom of the press.33
The court, in a 7–2 opinion, disagreed. “Even if their primary purpose and intent was to aid the cause of the Russian Revolution,” the court said, “the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States.” To justify its finding, the court cited its own prior rulings written by Holmes.34
But Holmes did not vote with the majority. In his dissent, which Brandeis joined, Holmes insisted that he never had occasion to doubt the earlier speech opinions he had written. His clear and present danger test had disposed of the cases accurately, while also proposing a new rule. But the court in this case had incorrectly followed his guidance by not understanding that the new test had a prejudice toward free speech. It required that an actual threat be shown before speech could be curtailed. In the current case, no threat had been shown.
“Nobody can suppose,” Holmes wrote, “that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.”35
That seemed, to his mind, to dispose of the case. But he was not content to leave it there. Holmes offered, in a not-quite-apology for his past opinions, a stirring articulation of why he thought free speech merited protection and why the court had gotten the issues wrong.
“Persecution for the expression of opinion seems to me perfectly logical,” he wrote. “If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition.” But, he continued, dogmatism did not afford an adequate social justification for belief in the modern world. The better approach was to allow “free trade in ideas,” he advised, because “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” This was the pluralistic idea that liberal intellectuals had been advancing for two decades.36
The opposite impulse was on display in the current case. “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death,” Holmes wrote, “unless they so imminently threaten interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”37
His dissent was a remarkable reconsideration, though he did not acknowledge it as such. There is some evidence that Brandeis had pushed him into it. A month and a half after Holmes’s Schenck and Debs decisions Brandeis wrote him with a chastisement. “You, who have pried open the legal door to effort,” Brandeis said, “should not close it to hope.” Holmes was, in this case, persuaded.38
But disagreements remained. Holmes continued to exhibit a cynicism about individual human beings and their experiences in society. His view was rooted in the notion that life is struggle and that competition is one of its dominant impulses. His metaphor of the free market of ideas had vaguely social Darwinist overtones, which was in keeping with his form of nonbelief. An idea that survived through exertion and rivalry, Holmes contended, was more likely to be correct.
Brandeis was moving in the opposite direction. As a believer in social reform, he had begun to embrace free speech as a necessary component of democratic deliberation and as a prerequisite by which human beings could use intelligence to shape their destiny. Brandeis was able to articulate his own point of view in a case argued the same day as Abrams but not decided until four months later. Schaefer v. United States was yet another wartime case involving political leftists. The five appellants all took part in running a pro-German and Leftist newspaper and were convicted of violating the Espionage Act. In a 6–3 opinion the court upheld the conviction of three of the appellants, while dismissing the conviction of the other two for lack of evidence.39
Brandeis wrote in dissent, with Holmes joining. He was not satisfied that the newspaper constituted a clear and present danger to the war effort. But rather than leave it there Brandeis expounded upon the wider threat within the court’s jurisprudence that he saw developing. The issue of the case was not merely one of speech in wartime, he said, since the right of free speech was the same in peace and war (this, in itself, rejected Holmes’s claim in Schenck). The wider issue of the case was that some powerful people in government had decided to regulate the opinion of individuals with whom they disagreed. “Convictions such as these, besides abridging freedom of speech,” he wrote, “threaten freedom of thought and belief.”40
A week later Brandeis went further still. In Pierce v. United States several men were convicted for distributing flyers and making speeches against the war. The defendants admitted their intention to make converts to socialism but not to interfere with the war. The court upheld their conviction. Brandeis, with Holmes concurring, complained that the court was constricting the democratic process. “The fundamental right of free men to strive for better conditions through new legislation and new institutions will not be preserved,” he wrote, “if efforts to secure it by argument to fellow citizens may be construed as criminal incitement.”41
Still the cases kept coming. A few months later the court heard an appeal challenging a Minnesota law that made it illegal to discourage enlistment in the military. The convicted man, Joseph Gilbert, was a socialist and a lawyer who was convicted under the law. The case posed novel issues because the law in question was passed by a state, while the free-speech clause of the First Amendment, like the rest of the Bill of Rights, applied only to the federal government. The majority ruled that Gilbert had improperly criticized national policy and had advocated, in effect, a policy of anarchy. It was within the state’s power to enact a law that established order and preserved peace.42
Brandeis’s dissent was restrained but moving, and it obviously sought to appeal to Holmes. “Like the course of the heavenly bodies,” Brandeis wrote, “harmony in national life is a resultant of the struggle between contending forces. In frank expression of conflicting opinion lies the greatest promise of wisdom in governmental action, and in suppression lies ordinarily the greatest peril.”43
The problem the court faced, one which would be central to the development of secularism, was just how far the state could go in promoting a political orthodoxy, how intensely it could regulate individual belief. This was the underlying current in all of these cases. But after Gilbert v. Minnesota (1920) the court took a breather and decided no other free-speech case of import for five years. In the meantime the national political environment continued to constrict. The diminished room for debate, in turn, led political dissidents to seek new alliances that further developed the institutional matrix of American secularism.
In January 1920, a coalition of liberal Protestants, post-Protestants, and liberal Jews came together to form the American Civil Liberties Union (ACLU). The founders hailed from a variety of organizations formed during the war—the Bureau of Legal First Aid, the Legal Defense League, the Liberty Defense Union, and, especially, the National Civil Liberties Bureau (NCLB). The smaller organizations had proven to be too fragmented. By contrast, the ACLU immediately became a nexus through which all the groups interested in civil liberties could come together.44
It occupied such a central place largely through the dynamism of its leader, Roger Baldwin, whose wartime experience transformed his perspective. Like many moderate liberals prior to the war, Baldwin had not much initial interest in free speech. He taught sociology and worked at a settlement house in St. Louis, where he had moved on the advice of Louis Brandeis after Baldwin graduated from Harvard. But after a few years in St. Louis he went by chance to hear the anarchist Emma Goldman speak. The encounter was the beginning of a political awakening, and from that point forward he became both a philosophical anarchist and a pacifist.45
His new politics became a problem once the United States entered the war. Determined to live out his convictions, Baldwin made his way into the American Union against Militarism, which in July 1917 created the Civil Liberties Bureau to advocate for conscientious objectors to the war effort. A couple of months later the Civil Liberties Bureau broke off to become the NCLB, with Baldwin at its head.46
In spite of his radical turn, Baldwin had a somewhat naïve trust in the American government and in the good intentions of the governmental elite. As the Department of Justice began to crack down on dissenters Baldwin continued to believe he could work within the system. When the government asked for information about his clients, he willingly handed it over. Soon government lawyers began to suspect that the NCLB itself was guilty of criminal activity. It opened an investigation into the organization, pressured the NCLB’s landlord into issuing an eviction, and eventually conducted a raid to cart off the bureau’s legal files en masse. The Department of Justice declined ultimately to prosecute the NCLB, but the legal files became very useful in its other prosecutions.47
Baldwin himself became the next object of scrutiny. Because of his pacifism he declined to enroll in the draft. The U.S. government indicted him as a draft dodger. At trial he engaged in a long philosophical exchange with the judge about the rights of conscience and the theory of American government that, in his view, protected his actions. But his efforts failed. The judge found him guilty. There was still some hope that he might have a lenient punishment. But the judge told Baldwin, “A Republic can last only so long as its laws are obeyed,” before he sentenced him to a maximum of eleven months and ten days in federal prison.48
Baldwin’s imprisonment shattered whatever faith he had in government. He served his time and emerged from the pen just as the Supreme Court began to hear cases on appeal that dealt with free speech. Each negative decision from the court reinforced his conviction that litigation was a waste of time, that the government was no more likely to acknowledge rights than the judge was in his own case. To persuade, to litigate was to presume that the government would grant rights. Experience had proven otherwise. So instead of litigating, Baldwin began to favor direct action by aligning his efforts with those of other leftist resistance movements, especially the labor movement, that fought for rights via strikes and protests. This posture of resistance to state authority became a pillar of ACLU thought. But other civil rights organizations disagreed.49
When the ACLU was organized, it joined an increasingly crowded civil rights landscape that included the NAACP, the Anti-Defamation League (formed in 1913), and the American Jewish Congress (AJC, formed in 1918). Unlike the ACLU, each of these organizations viewed the federal government as a positive protector of rights, at least potentially. Even within the ACLU there were those who favored patient litigation in an attempt to bring the government around to their position.50
For the most part Baldwin tolerated other approaches and sought to create a big tent for civil liberties cooperation. Shortly after the ACLU was formed, Baldwin invited James Weldon Johnson, the NAACP’s executive secretary, to sit on the ACLU’s executive committee. That started a long-standing organizational connection between the two bodies.51
But given their divergent views about the role of government in protecting civil liberties, tension was inevitable. In 1920, after Protestant fundamentalist ministers revived and revitalized the KKK, the NAACP sought some way to counter its growth. As KKK membership swelled, the NAACP asked the postal service to ban Klan literature. In doing so, it presumed that the distribution of Klan material led to violence against black Americans, so the literature itself could be deemed a form of incitement.52
The ACLU thought otherwise. Albert DeSilver, a cofounder of the organization, wrote to Johnson explaining their opposition. “We do not think it is ever a good policy for an organization interested in human liberty to invoke repressive measures against any of its antagonists,” DeSilver said. “By doing so it creates a danger of making a precedent against itself.”53
A few years later the city of Boston banned public meetings of the KKK. Tension flared again. The Boston ACLU protested the rule as an unacceptable limitation on speech. If left intact and adopted elsewhere, the ban would have far-ranging consequences. “There would be considerable parts of this country in which religious intolerance would prohibit Catholics, Jews, and indeed, the representatives of some Protestant sects, from holding meetings or speaking at all,” the ACLU declared. The silencing of offensive sentiment required someone to determine when speech crossed the line into the unacceptable, which was a problematic endeavor and which inevitably created a new orthodoxy. The line that should be drawn, the ACLU held, was “between word and deed,” not between “one kind of speech and another.”54
In effect, the two organizations had rival goals. The ACLU wanted to reject the reigning orthodoxy by creating an official agnosticism—a form of negative secularism—about political and religious matters. Free speech was a way to support that agnosticism. Individuals or groups might have whatever substantive positions they wanted—however noxious they might be to other people—but the government, the law, and the political process ought to support a freewheeling pluralism in American public life by remaining studiously noncommittal to any substantive position. The rights of conscience would be thereby guaranteed, and the rights of free speech, public deliberation, and political participation for all would be protected.
The NAACP agreed with the vision up to a point. It wanted to reject the reigning orthodoxy, in its case the white Christian order that supported inequality. But it wanted to substitute that orthodoxy with a new one that limited public debate and that inculcated a more substantive political commitment to equal protection. It was, in essence, a new secular civic orthodoxy that the NAACP sought to endorse.
But if the ACLU’s stance blocked full cooperation with some groups, it opened paths to coordination with others. It was especially attractive to Joseph Rutherford and his followers. The Bible Students had emerged from prison at about the same time as Baldwin, and, like Baldwin, their time in the federal pen made them even more fervent in their opposition to state authority. They also shared his deep skepticism toward curtailments of free speech, since they thought any limitation was likely to be used against them.
Their wartime experience had changed them in a more fundamental way. The conflict had come and gone without the apocalyptic fulfillment of prophesy. They recognized that even if the world was slated to end, it might not necessarily be imminent. The postponement of God’s kingdom meant that they had still more preaching to do, so they committed themselves to building out their organization in order to stay on message while scaling their efforts.
It started at the top, with Joseph Rutherford, who began to make phonographs of his sermons that could be played by his followers on a portable player. The society also expanded its printing efforts, putting out tracts in the hundreds of thousands and, soon, the millions. Within a few years their operations had expanded so much that the society built an eight-story printing plant to support its endeavors.55
The organizational efforts fed into a vastly expanded program of evangelism. On Sundays the devout would load into cars and travel to a neighborhood. From there they would fan out to knock on doors or to approach people in the streets. The Bible Students’ standard procedure was to ask potential converts whether they would be willing to listen to a phonograph of Rutherford’s message. Whether or not the person said yes, the evangelists offered a variety of pamphlets or tracts for a donation. If the person declined to offer a contribution but promised to read the pamphlet, the Bible Students would give it away for free. Soon they were also using sound trucks—vehicles with speakers mounted on all sides—that broadcast Rutherford’s sermons while slowly circling through a neighborhood or while standing next to a park.56
Challenges began immediately. The obnoxious nature of the message was the chief source of conflict. The Bible Students rejected pretty much every existing power structure within American society. They thought that clergy, politicians, and businessmen—what the Watchtower Society called an unholy trinity—had banded together to do the work of Satan. Existing religious organizations, especially the Roman Catholic Church, were rackets designed to enrich the clergy and protect their power while suppressing the true message of the scriptures. All was corrupt in the current order, the Students believed, and all must be opposed.57
Their preaching was, accordingly, harsh. The Bible Students denounced any and all connections between religion and the government as the work of the unholy trinity. They rejected Prohibition as a “scheme of the Devil,” even though they personally did not drink, because they regarded the effort as a nakedly religious attempt to coerce people into good behavior. They objected to blue laws and other laws that compelled religious observance for the same reason. They renounced religious instruction in the schools as an impermissible attempt to use public institutions to indoctrinate the American citizenry. Like the ACLU, the Bible Students criticized laws—which existed in a majority of states—that suppressed the advocacy of political and economic beliefs that undermined the social order and general welfare. They thought, rightly, that the authorities often used those laws against religious minorities.58
The government responded to the Watchtower Society much as it did to the labor movement. Many clergymen wrote government officials to request an investigation into Watchtower practices. Agents from the Federal Bureau of Investigation placed Rutherford under surveillance. The Watchtower Society was considered an incipiently communist organization. The Bible Students also faced difficulties on the local and state levels. When they showed up in a neighborhood, offended citizens, many of them Catholic, would call the cops to come arrest the proselytizers or they would take matters into their own hands. It was not uncommon for Bible Students to go proselytizing with their toothbrushes, expecting to end the day in jail.59
As Bible Students ran into trouble, the ACLU stepped in to defend them. The organization’s justification was as unbending as always. Regardless of the offensive nature of their speech, the ACLU said, the First Amendment permitted it.
Soon Rutherford began to hear about the ACLU’s efforts on behalf of his movement. One day he decided to pay Baldwin a visit. He asked one of his colleagues to arrange a meeting. When he arrived at Baldwin’s office with a large retinue of female followers, he settled into a chair like he owned the place and got down to business.
“I have to come to see you to express our appreciation of what you are doing to help our people,” Rutherford told Baldwin. “I want you to be able to continue it without cost, and so would like to make a contribution for that purpose.”
Baldwin tried to assure him that that was unnecessary. “Our business [is] to help anyone get civil rights,” Baldwin replied. The ACLU’s existing contributors already gave so that the organization could offer services for free. It did not need payment after the fact.
“No, no,” Rutherford responded. “I don’t want you to tax them for us.”
He asked his secretary whether they had money in the bank. The secretary responded that they did.
“Well, in that case,” Rutherford told the secretary, “write out a check for a thousand dollars for Mr. Baldwin, and send him another when he asks for it.”60
Baldwin later recounted, “I was somewhat taken aback.” A thousand dollars was a lot of money back then. “But,” he said, “not being in the habit of refusing honest money for the cause, I accepted it.”61
It was the beginning of a long association that would, in time, bear secular fruit.
While their partnership was developing, others within the ACLU were looking for test cases to change the law. They did not have much reason to be optimistic. The Supreme Court had spoken clearly, with Holmes and Brandeis in dissent, often by themselves. The law seemed settled.
But their plan was to pursue appeals that would allow Brandeis and Holmes to continue to critique the direction of the court. An alternative vision of the law, they hoped, might grow in influence over time.
The first big breakthrough happened in 1925, when the court heard the case Gitlow v. New York. Benjamin Gitlow was a Jewish communist who, along with other communists following the Russian Revolution, had broken with the Socialist Party. The socialists thought that they could work toward their goal through existing political channels. The communists accepted the Soviet contention that socialist revolution required the overthrow of existing governments. As a member of what became known as the Left Wing Socialists (i.e., communists), Gitlow had printed, published, and distributed a magazine, The Revolutionary Age.62
In one issue of the magazine he included the Left Wing Manifesto. “The world is in crisis,” it announced. “Capitalism, the prevailing system of society, is in the process of disintegration and collapse. . . . Humanity can be saved from its last excesses only by the Communist Revolution.”63
For printing and circulating the manifesto, Gitlow was arrested along with several colleagues under a New York law that made it a crime to advocate criminal anarchy or, in the words of the law, “the doctrine that organized government should be overthrown by force, or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means.”64
Gitlow was happy to be arrested. It was all part of the plan. As he later recounted, “We were in the best of spirits. We were, after all, revolutionists, ready to sacrifice all for the revolution, so that a mere arrest and a ride in a patrol wagon was a trifling incident.”65
But in spite of his optimism, his trial went badly. He was convicted. After the jury delivered the verdict, the presiding judge thanked them for their service and opined that the problem with political radicalism was that it led men to hope for heaven on earth. “So long as we are on this mundane sphere, the only way that we can stand firm and erect in the sight of God is to keep our feet on the ground, only allowing our own heads to be in the clouds.” He commended the jury for saving the country from “misguided idealists.”66
Gitlow appealed his conviction to the circuit court. He lost again. In upholding his conviction, the court wrote that Gitlow’s case revealed the importance of immigration restriction. If the flow of foreign people and ideas were blocked, the court wrote, “the God-fearing, liberty-loving Americans” would make sure that “these pernicious doctrines are not permitted to take root in America.”67
Undeterred, Gitlow appealed to the Supreme Court. The ACLU got involved. Gitlow lost yet again. In a 7–2 opinion the court ruled that the Left Wing Manifesto was an incitement to overthrow the government. The state was permitted to punish those who abused freedom of speech “by utterances inimical to the public welfare, tending to corrupt public morals, incite crime, or disturb the public peace.”68
If that was all the opinion said, it would have been just like all the rest. But the remarkable part of the decision was its somewhat casual assumption that the First Amendment applied to the states, which would have enormous consequences for the secularization of law. Because the First Amendment begins, “Congress shall make no law,” the courts had long held that it applied only to the federal government. But legal doctrine had begun to change after the Civil War when Congress passed the Fourteenth Amendment to protect former slaves from state abuse. It forbade states from infringing upon the rights of U.S. citizens. And it allowed the federal government to protect U.S. citizens from curtailment of their liberties. But the amendment had left the rights of citizenship undefined. By the end of the nineteenth century, some legal thinkers were inclined to say that the rights of U.S. citizenship could be found in the Bill of Rights and, especially, in the First Amendment.69
In Brandeis’s dissent five years earlier in Gilbert v. Minnesota (1920), he had asserted that the free-speech protection of the First Amendment was part of or, in technical legal jargon, was incorporated into the due process provisions of the Fourteenth Amendment. The rest of the court refused to affirm Brandeis’s position at the time.
Yet five years later, in the Gitlow case, the majority opinion simply accepted that First Amendment free-speech protection was incorporated into the Fourteenth. That part of the First Amendment then applied to the states, and states could no longer violate free speech without the federal government getting involved. The majority still thought that in this specific case the regulation of speech was justified. But by applying free-speech protection to the states, the conservative majority had made an enormous concession. Chafee called it “a victory out of defeat.”70
The Gitlow decision showed the power of Brandeis’s and Holmes’s strategic approach. On the surface the case simply continued the trend of Holmes and Brandeis in lonely dissent from the rest of the court. But a wider perspective revealed how far they had come. The majority on the court had accepted in principle, though not in practice, the clear and present danger standard as the essential test for regulating speech. The prejudice of the clear and present danger test in Chafee’s construal was toward freedom of speech, not its regulation, which required the court to use the test while working around its implications. The court likewise accepted that all levels of government were bound to honor free speech by applying the First Amendment to the states.
The Gitlow case also uncovered the underlying issue, which was that the majority seemed to desire an intellectual homogeneity through the regulation of belief. Freedom of conscience was necessarily suspect. The more time that elapsed after the First World War, the more obvious it became that this was the real issue facing the court when free-speech appeals came before it.
Two years later, for example, the court heard a case involving Anita Whitney, a well-to-do woman from California. She was an unlikely revolutionary, born two years after the Civil War to a wealthy family whose ancestry included five people who came over on the Mayflower and a governor of the Massachusetts Bay Colony. She was closely related to David Josiah Brewer, a late-nineteenth-century Supreme Court jurist who widely proclaimed that the United States was a Christian nation. Whitney had begun her political work as a clubwoman, which was respectable, before moving into social work, which was less so, and then into political radicalism.71
Her journey from that point was pretty typical. When the communists split from the socialists, she went with the communists and gave speeches throughout California to drum up support for the Communist Labor Party of America. As part of that effort she gave a speech in Oakland condemning the wave of lynching that had spread across the nation after the First World War. She urged Congress to pass an antilynching law to protect equal rights for all. At a time when communists were at the forefront of civil rights activism for black Americans, the sentiment was again fairly standard for a Communist Party event. But shortly after the speech Whitney was arrested, charged, and convicted of violating the California Criminal Syndicalism Act.72
By the time her case made it to the High Court, the fissures were well known. Holmes and Brandeis had become, in the words of the St. Louis Post-Dispatch, “a separate liberal chamber of the Supreme Court.” “On the great issues that go down to the fundamental differences in the philosophy of government,” the paper continued, “these two are nearly always together; often they are together against the rest of the court.”73
Their estrangement was true even when the decision was unanimous, as it was in Whitney v. California (1927). The majority opinion, joined by seven justices, upheld Whitney’s conviction by saying, yet again, that freedom of speech did not eliminate the police power of the states. The law against criminal syndicalism was an expression of police power. Because Whitney’s speech tended toward lawbreaking, the majority held, she was rightly convicted.74
In a concurring opinion joined by Holmes, Brandeis critiqued the court’s reasoning. The problem with California’s criminal syndicalism law was not what it forbade—support for criminal acts in the attempt to bring about political, social, or economic change. The problem was that it extended guilt to anyone who associated with organizations preaching criminal syndicalism. The prosecution had alleged that the Communist Labor Party of America, which Whitney supported and which did not explicitly support criminal behavior, was a front for the more radical International Workers of the World, which did endorse violence to achieve political aims. Brandeis worried that such associative concern led to hysterical forms of abuse. “Men feared witches and burnt women,” he pointed out, and some version of the dynamic seemed to be what was happening in the present case.75
Brandeis’s comparison to the witch trials was useful and telling. It implied a reactionary and superstitious response to political radicals by those who wished to regulate speech. But the power of speech, Brandeis wrote, was that it freed people from irrational fears by promoting “the discovery and spread of political truth.” “To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process of popular government,” Brandeis continued, “no danger flowing from speech can be deemed clear and present unless the incidence of evil apprehended is so imminent that it may befall before there is opportunity for full discussion.”76
Brandeis, though, stopped short of saying that Whitney had been wrongly convicted. There was some evidence of conspiracy to commit a criminal act, he said, although what the evidence was he did not elaborate. Because it was not possible to retry the case on appeal, he swerved at the end to agree with the majority in upholding the verdict, though it seemed to pain him.
So what was the point of writing the opinion? As was true of many of his dissents, Brandeis was able to use the case to elaborate his conception of political rights and social purposes. He showed how the protection of individual liberties nourished social goals—in this case, the maintenance of democratically supported truth—and vice versa. By contrast, the suppression of free speech yielded irrationality and superstition that used the powers of the state, which was also on display in the court’s reasoning.
It was an argument that did not try to persuade the court but sought instead to persuade the public and others who joined the court in the future. And it appeared to be working the next year when the court heard Olmstead v. United States. The case involved Roy Olmstead, a bootlegger who ran an alcohol smuggling ring in the Pacific Northwest. His activities had been of interest to the cops for some time, but he had not been caught. To gather evidence the authorities wiretapped his house, without court approval, and then used the evidence to convict him of violating the National Prohibition Act, which forbade the manufacture and sale of intoxicating beverages except under certain, limited conditions. Olmstead stressed that the wiretapping, which was conducted by federal Prohibition officers without a warrant, violated his Fourth Amendment protection against illegal search and seizure. The decision to use that evidence in court violated his Fifth Amendment rights to the due process of law. In a 5–4 decision the majority upheld the conviction and ruled that Olmstead’s rights had not been violated.77
The minority opinions were fractured, which demonstrated a wider disarray of reasoning. Holmes held that it was obviously illegal to wiretap without a warrant and that the government ought not violate the law in the interest of catching others who violate it. Pierce Butler, ordinarily a reliably conservative vote, announced that the court was bound by the intent and principles articulated in the Constitution rather than merely the literal meaning of the words. Those principles would seem to have protected Olmstead from unfettered surveillance.
Brandeis went the farthest. The Olmstead prosecution demonstrated to Brandeis why the court needed to recognize a right to privacy. His reasoning was not, at first, entirely obvious. In the case of other dissenters who were engaging in political activity, the court’s desire to regulate opinion was clear. Left-wing activists sought to articulate their ideas in a public forum in order to win supporters to their side. The government opposed their ability to do so, and the court had upheld the government’s actions. Brandeis’s opposition made sense from the facts of each case. But in Olmstead government agents were not regulating opinion. They were simply trying to enforce the law against an obvious and egregious lawbreaker.
And yet there were wider implications in that surveillance. To Brandeis, the government’s actions revealed a darker possibility that needed to be protected against. If a person could be illegally surveilled to prevent bootlegging, who was to say that a person would not be surveilled because he was a political radical or a religious zealot or some other yet-to-be-named social problem?
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,” Brandeis wrote. “They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized men.” The government’s violation of Olmstead’s right to privacy and its use of evidence wrongly gathered in a criminal proceeding ought to have invalidated the conviction. But, more broadly, Brandeis thought the government ought not be able to surveil its citizens so that they could be free to develop themselves as they wished. This was an update on Brandeis’s right-to-privacy notion, and the update showed why the notion was so foundational in the first place. The right to privacy ramified outward from the First Amendment to the Fourth and Fifth Amendments and, potentially, beyond.78
With this opinion Brandeis completed his intellectual transformation in a way that would have powerful import in the future. When he first defended the right to privacy with Samuel Warren, his conception of the right was a threat to freedom of speech and freedom of the press. Over the next forty years he reconfigured his ideas about rights and responsibilities, eventually coming to affirm the importance of public political reasoning and the right of free speech. In his Olmstead dissent he came full circle by reconceiving the right to privacy from one that threatened freedom of speech into one that honored intellectual independence, personal difference, and the right of conscience. That reconfiguration would soon be picked up by the court.79
One might wonder about Brandeis’s optimism in these opinions. Would he have expressed his views on speech in the way he did if the defendants were Nazis after the Second World War? There is a confidence here about free speech and the rational progress of humankind that not everyone can share. That optimism led to a kind of free-speech absolutism, a belief in the sanctity of personal convictions and their ability to be expressed publicly, that would become especially vexing in the future as the court built out the structures of American secularism.
His free-speech doctrine also contained an ambiguity. What was the relationship between the public rights of free speech to the private rights of religion or free association or other instances of private ordering? Brandeis had not entirely worked it out, which would also vex the court in the future.
But he was soon joined by someone who would attempt to work it out or at least work out one solution. The fourth dissenter in the Olmstead case was a newcomer to the Supreme Court, a liberal Protestant named Harlan Stone. During the First World War Stone served on a War Department Board of Inquiry that reviewed cases in which lower-level draft boards had rejected claims of conscientious objection. By 1919, as the free-speech cases began to make their way to the court, Stone started to express sympathy for the dissenters. “The Army was not a bed of roses for the conscientious objector,” he later wrote in the Columbia University Quarterly, “and the normal man who was not supported in his stand by profound moral conviction might well have chosen active duty at the front as the easier lot.” Their courage to stand by their convictions won him over to their side and began to change his perspective more generally. Soon he was defending socialists and others who faced prosecution on free-speech grounds.80
By the time Stone joined the court, he had become a proponent of sociological jurisprudence. That position aligned him immediately with Holmes and Brandeis. In the Olmstead case he joined both Holmes’s and Brandeis’s dissents. He also joined Butler’s insofar as it dealt with the merits of the case, but he did not endorse Butler’s constitutional theories. Butler’s jurisprudence had no sociological sense and usually upheld positions that a liberal progressive would consider bad policy. Stone’s vote indicated his basic orientation in the future.81
The Olmstead case marked a turn, not because of an immediate change in the dynamics of the court but because American society was about to go through a fundamental upheaval that finally created an opening for the court’s liberal jurisprudence. Not long after the court handed down the Olmstead ruling, the United States went into a profound economic slump that soon became a depression. It is difficult to communicate how jarring the downward turn was after the roaring economy of the 1920s. Whole industries ceased to function. Communities were devastated. For workers who lost their jobs, the depression called into question the desirability of capitalism itself.
Brandeis watched the situation with dismay, disturbed that President Herbert Hoover seemed unwilling to use the full force of the federal government to address the misery. “The widespread suffering, the economic helplessness, and the general dejection are appalling,” Brandeis confessed to Harold Laski, an economist and sociologist of law at the London School of Economics. But in spite of the suffering, nothing much was being done. American businessmen and their enablers in government had no sense that they needed to reconsider their theories in light of market paralysis. “The process of debunking continues,” Brandeis wrote, “and if the depression is long continued—which seems likely—America will gain much from her sad experience.”82
On the court there were changes but little progress that Brandeis would recognize, at least at first. On the eve of his ninetieth birthday Oliver Wendell Holmes decided to, in his words, “bow to the inevitable” by retiring. Hoover nominated a secularist Jewish appeals court judge, Benjamin Cardozo, as Holmes’s replacement. Cardozo was in many ways the perfect substitution. His judicial philosophy comported with Brandeis’s sensibilities, and he was committed to the use of law for progressive political ends.83
“As we lose Holmes,” Brandeis wrote to one correspondent, “the appointment of judge Cardozo gives joy.”84
Other developments also gave Brandeis ballast. By 1932 Hoover had lost all legitimacy, and the Democratic candidate, Franklin Delano Roosevelt, put forward a vision of wholesale political renovation that Brandeis could embrace. Roosevelt was a thoroughgoing progressive. He thought the times demanded what Walter Lippmann had called “a new sense of political values.” His basic posture, and the rhetorical burden of his presidential campaign, was to offer a vision of governmental reconstruction in order to meet the challenge of human suffering that the Great Depression was causing.85
Roosevelt’s campaign message was, accordingly, simple and focused. At the Democratic National Convention he demanded “a new deal for the American people” that would create an invigorated relationship between the government and its citizens. He was not, he told the crowd, one of those “who squint at the future with their faces turned toward the past, and who feel no responsibility to the demands of the new time.” The crisis of the Depression had shown the folly of that historical posture because the governmental practices of the past had become obsolete in the light of industrial civilization. The breakdown of order and the depression itself now required the Democrats to embrace their transformative mission, to become, as Roosevelt put it, “prophets of a new order.”86
Brandeis was delighted, telling his niece that Roosevelt had been “much underrated by the Liberals.”87
Once Roosevelt entered office he set about bringing the new political order into effect. What the New Deal required was an expanded role for the federal government in regulating the nation’s economic life. As Congress responded with a flurry of legislation that built out the administrative capacities of the executive and created what became known as the New Deal state, businessmen and their allies on the court moved into opposition. In response to cases brought by business leaders, lower courts and then the Supreme Court began striking down key components of New Deal legislation, sometimes in 6–3 decisions with Brandeis, Cardozo, and Stone in dissent and sometimes in 5–4 decisions with Chief Justice Charles Evans Hughes joining the liberal justices.88
The judicial impasse had an important effect. The election of 1936 became a straightforward referendum on the constitutionality of the New Deal, which is another way of saying that it became a plebiscite on the desirability of the liberal–progressive vision that Roosevelt articulated. It was a make-or-break opportunity. And in an indication of how expansive the public’s appetite for political change was, Roosevelt demolished his Republican opponent by one of the widest margins in a presidential election.
But his victory did not solve the problem of the court. In an effort to deal with judicial recalcitrance, Roosevelt put forward a proposal to reorganize the judiciary. He sought, in effect, to pack the court with new justices so that he could have his way. Associate Justice Robert H. Jackson later remarked that the scheme was “the political manifestation of a long-smouldering intellectual revolt.” When Roosevelt tried to add judges to the court in order to compel its acquiescence, he sought in effect to bring it into line with the other modernizing currents in American society.89
The proposal ultimately did not make it through Congress, but its failure was nonetheless productive. It accomplished its purpose simply by being raised. The court buckled under political pressure and acceded to the constitutionality of the New Deal. In 1937, in the case of West Coast Hotel v. Parrish, the court split 5–4 while signaling that it was willing to accept a broad definition of interstate commerce in assessing economic legislation, a stance that the New Deal relied upon. Two weeks later the same 5–4 grouping ruled that the Wagner Act, a signature piece of New Deal legislation that allowed collective bargaining by unions, was constitutional. Via these two rulings the majority of the court heralded that it would take a hands-off approach to legislation that sought to rework American political economy.90
To that proposition the majority added a second one that would change the entire constitutional landscape and make way for a secular political order. When the court allowed the New Deal to proceed, it repudiated the contract- and property-based conception of rights it had used up to that point. It immediately faced the question of how to conceptualize rights, of how to understand the relationship of the individual to the social whole. This was exactly the question Brandeis and other liberals had been pursuing for the past forty years or more. Now their thinking could finally enter American law.
A year after the court upheld the constitutionality of the New Deal, it began to work through these questions in a footnote to another commerce clause case, United States v. Carolene Products Co. The fact that it was a footnote was consequential. The majority indicated that it was not merely interested in disposing of the issues at hand, because the contents of the footnote had nothing to do with the case. But the court recognized that the New Deal transformation meant that a lot of the legal past needed to be rethought and reinterpreted. The majority used the footnote to sketch the directions that the reinterpretation could go, many of which were far-reaching. Harlan Stone wrote the opinion. He said that even as the court showed deference to Congress in economic legislation, it could and would, in Stone’s words, conduct a “more searching judicial inquiry” into laws that negatively affected religious, national, and racial minorities. He did not find it necessary to elaborate on what he meant. It was simply a marker for the future.91
With this opinion the court entered fully into a new constitutional world. It broadcast a broad deference to the legislature in matters of political economy but a simultaneous commitment to minority rights that refused to defer to prevailing sentiment. The latter was an accession to civil liberties thinking that had been developed by the ACLU and other dissenters and that was articulated through Brandeis’s right to privacy thought and the free-speech cases of the 1920s and early 1930s. The court had embraced a new set of substantive ideals and liberal keywords—diversity, equality, rights—that would control its thinking in the coming years. Its public affirmation of new ideas invited people to use the court’s institutional power to achieve a renewed constitutional and political order. As a result, the court soon became the central venue for the elaboration of secularism in public life, more so than any other institution.
Yet the justices did not understand all of what they were doing since they did not have complete control over the agenda. The court’s opinions had grown over time in a half-conscious and sometimes meandering way as groups appeared before it. When the postwar free-speech cases began to work through the system, even Brandeis was caught off guard. The justices responded to the challenges with fresh thought and so built a new body of doctrine and a new language that others could pick up.
In protecting racial, ethnic, and religious minorities, the court would have to ask about their rights and how their rights squared with those of others in a political system. It could happen only by considering a range of desirable political ends—as the minority had shown in the free-speech cases—which turned legal reasoning into a quasi-policy endeavor. That made the court into a venue that could be used by minorities who could not hope for success through normal political channels.
Given the place of Christianity in the United States, it was inevitable that litigants would use the court’s jurisprudence to question Christian power and to demand a secular reformulation of the nation’s laws in order to protect minorities. The Bible Students, the ACLU, the Catholic church, atheist groups—the entire array of the American religious scene—soon began urging the court to elaborate on its promises. The push and pull of these new voices led to secular constitutional structures that were not always coherent and that people would view through their own lenses. The varying viewpoints would lead to more conflict in the future, which would push the court further still and build out the constitutional framework in surprising ways.
But all that was to come. The point is that by 1937 the foundations were in place. The creation of a secular political order could finally begin.