Academic journal article
By Witt, John Fabian
Duke Law Journal , Vol. 54, No. 3
The modern American civil liberties movement famously began with the United States's intervention in World War I. Yet these beginnings have long raised a conundrum for civil liberties historians. Why did the American civil liberties movement arise precisely when so many sophisticated legal and political thinkers began to call into question the truth value of abstract rights claims? The puzzling rise of civil liberties in an age of pragmatic skepticism is all the more startling given that early leaders of the civil liberties movement were themselves leading rights skeptics. This Article offers a new interpretation of the rise of the modern American civil liberties movement. Our ostensibly domestic civil liberties movement--and indeed, the phrase "civil liberties" itself--has its roots in a pre-World War I international law cosmopolitanism. In particular, the social movement that coalesced around the phrase civil liberties developed as a group of self-consciously internationalist organizations. Led by people such as Crystal Eastman, a little-remembered, charismatic, progressive-era reformer and radical, these organizations had begun to question not just the abstract metaphysical truth of rights claims but also the usefulness of that other great abstraction of nineteenth-century law: sovereignty. The civil liberties movement in American law thus did indeed emerge out of a pragmatist critique of abstract legal fictions. The relevant abstraction, however, was not so much the formal concept of rights as the formal concept of nation-state sovereignty.
With American intervention in World War I, obligations of loyalty to the nation-state compelled American internationalists such as Eastman, her colleague Roger Baldwin, and the ,fledgling American Civil Liberties Union to reframe their critique of sovereignty in terms made available by the constituent documents of American nationalism.
A paradox haunts the history of civil liberties in the United States. The Bill of Rights notwithstanding, it took well over a century for U.S. law to develop protections for dissenting or unpopular speech. Both the phrase "civil liberties" itself and the civil liberties tradition as twenty-first-century American lawyers understand it--a body of legal protections for rights such as speech and assembly--date to World War I. Yet the years leading up to the war witnessed the emergence of powerful challenges to the very ideas of "rights" and "liberty" on which a civil liberties movement might be thought to depend. Indeed, many early architects of the civil liberties movement were themselves leading rights-skeptics and builders of the kinds of modernist legal institutions that sought to consign rights talk to a nineteenth-century past. (1)
One prominent response to the paradox seeks to connect the advent of civil liberties to the distinctively American philosophical tradition of pragmatism and its jurisprudential analogues. Justice Oliver Wendell Holmes famously contended in 1919 that pragmatic uncertainty as to ultimate truths ought to lead nation-states to be reluctant to prohibit the expression of even apparently abhorrent ideas. "[T]ime," Holmes wrote in his dissent in Abrams v. United States, "has upset many fighting faiths." (2) It followed for Holmes that nation-states should establish the kinds of protections for speech and expression that Americans today would describe as central elements of the civil liberties agenda. Yet until Holmes's suggestion in 1919, pragmatism had more often undermined rights claims. Pragmatist philosopher John Dewey scorned those who clung to "the individualistic tradition" (3) of "early Victorian platitudes" about "the sanctity of individual rights." (4) Critics noted that the problem of uncertainty to which Holmes pointed in Abrams cut both ways, calling into question not only legislative commitments to the suppression of particular ideas, but also the unyielding commitment to principle that underlay rights claims in times of crisis. …