Crystal Eastman and the Internationalist Beginnings of American Civil Liberties

Witt, John Fabian, Duke Law Journal

ABSTRACT

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.

INTRODUCTION

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. (5) And indeed, as American intervention in World War I approached, lawyers like Raymond Fosdick (soon to become the first undersecretary general of the League of Nations) increasingly saw "'natural rights'" along with "Jefferson and laissez-faire" as just so many "mental trappings" from "a century ago." (6) As Ernest Hemingway would write, the war had called into question the power of "[a]bstract words such as glory, honor, courage, or hallow"--and, one might add, liberty and rights. (7)

A second response to the civil liberties paradox sees in World War I what political scientist Samuel Huntington would call a moment of "creedal passion": a confrontation between the nation and its deepest values. (8) Federal legislation effectively criminalized antiwar speech; the Post Office barred antiwar and radical literature from the mails; mobs brutalized and even lynched antiwar speakers; and federal agents and allied vigilantes led lawless raids on labor unions and radical organizations. Events such as these, the second account contends, touched off a movement on behalf of ideas about rights that Americans had long held but taken for granted. (9) Yet there is remarkably little evidence of a long-standing American civil liberties tradition in nineteenth-century American law. As one historian puts it, the nation's civil liberties record instead "seems terribly dismal." (10) The civil liberties violations of the World War I period were not so different from those of the Civil War. As one prominent supporter of the war noted in 1918, Lincoln's "limitations of free speech" provided a model for the Wilson administration a half-century later. (11) Indeed, American law had long been characterized by a wide array of practices that by later standards seem clear violations of important civil liberties. Southern states banned antislavery literature and speech. Congress stifled abolitionist petitions. Congress and the states alike prohibited the dissemination of birth control literature and sexually explicit materials. Laws prohibited entertainment on Sundays. Courts broadly enjoined peaceful labor picketing. And communities participated in repressing the free speech efforts of organizations like the Industrial Workers of the World (IWW). (12) Historian Henry Steele Commager plausibly wrote of the period between 1789 and 1937 that there had not been "a single case, in a century and a half, where the Supreme Court has protected freedom of speech, press, assembly, or petition against congressional attack." (13) Nineteenth-century American law, in short, seems to have borne out James Madison's warning that the provisions of the Bill of Rights would be mere "parchment barriers" to acts of government repression. (14)

In sum, neither of these home-grown traditions--neither the philosophical tradition of pragmatism, nor an ostensible moment of truth for America's civil libertarian values--provides an especially satisfying explanation of the modern civil liberties movement. Neither account, moreover, offers a solution to the paradox of rights-claims in an age of skepticism.

An important feature of the beginnings of the American civil liberties tradition has gone missing from domesticated historical accounts. The modern civil liberties movement, as well as the phrase "civil liberties" as a language with which to organize that movement, arose out of a pre-World War I transatlantic internationalism that transcended the national boundaries of the United States. Late nineteenth century internationalists 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: the sovereignty of the nation-state. The civil liberties movement in American law 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 state sovereignty.

This Article describes the connections between the movement that contemporaries called "internationalism" and the beginnings of the twentieth-century civil liberties tradition. No one better captures these connections than Crystal Eastman, an indefatigable and charismatic, though now largely forgotten, young New York lawyer. Between 1913 and 1917, she became one of the most important figures in early-twentieth-century American internationalism. And in 1917 she and Roger Baldwin founded the predecessor organization to the American Civil Liberties Union. Yet a domestic civil liberties movement had not been Eastman's aim at all. For Eastman and a like-minded group of transatlantic internationalists, the war occasioned a struggle for new supranational institutions to constrain the excesses of nation-states that the war had so plainly revealed. When the patriotic obligations of wartime placed new limits on internationalism, American internationalists like Eastman turned to civil liberties as a way to constrain those excesses that could be rooted in the language and constitutive documents of American nationalism. Within a very short time, however, the civil liberties strategy swallowed up and replaced the internationalist agenda it had been designed to advance.

If the story told here is successful, a number of interesting points about American civil liberties and international law follow. The internationalist beginnings of American civil liberties help to explain the paradox of civil liberties in an age of pragmatism. Rights-skeptics in the early twentieth century were grappling not with one but with two conceptual abstractions: rights and sovereignty. If they seized on the former, they did so because it seemed to them less dangerous than the latter. Critiques of sovereignty also help to explain the exceptionally prominent role of women in the American civil liberties movement. Women like Crystal Eastman were especially quick to recognize the dangers posed by nation-states in which they had long possessed only attenuated forms of membership. Nation-states had barred women from voting and had even stripped them of their citizenship when, like Eastman in 1916, they married foreign nationals.

Moreover, the internationalist beginnings of American civil liberties suggest that even those features of American law that are typically described as distinctive--such as the United States's emphasis on the civil liberties of individuals--are often the result of interactions and ideas on a global scale. For almost three decades now, historians and lawyers have chipped away at the myths of American exceptionalism in such areas of the law as torts, crime, labor, and the constitution, (15) and such areas of reform as urban planning, social insurance, and even home economics. (16) In these areas and elsewhere, it now appears, American law and politics developed not in isolation but in robust transoceanic conversations. (17) By the same token, the American civil liberties movement has not been merely a U.S. product for export to the world, though it has sometimes been that. (18) Civil liberties have instead been part of an import/export business, as ideas drawn from transatlantic and European currents in international law were fed back into circulation as civil liberties claims.

Much as in World War I, twenty-first-century crises once again pit obligations of national loyalty against aspirations to an international rule of law. One lesson of civil liberties and American internationalism may be that such moments of conflict over questions of national loyalty have helped to shape some of the United States's most basic legal commitments. But another lesson appears to be that such moments can be full of irony and unanticipated consequences. National conflict, it seems, sometimes shapes the United States in ways that few participants either foresee or intend.

I. CATHERINE CRYSTAL EASTMAN AND THE CRITIQUE OF RIGHTS

Catherine Crystal Eastman hailed from the heart of the nineteenth-century American reform tradition. In the words of her brother, the eclectic aesthete and radical editor Max Eastman, he and Crystal grew up near the "center of gravity" of the "moral and religious map of the United States." (19) She was born in 1881 in Glenora, New York, not far from where the Seneca Falls Convention had issued the Declaration of Sentiments in 1848 to mark the beginnings of the nineteenth-century woman's movement. Her mother, Annis Ford Eastman, attended Oberlin College, Ohio's center of abolitionist activism. Her father, Samuel Eastman, served and was wounded in the Civil War. Both became Congregational ministers in upstate New York, where they eventually moved to the Park Church in Elmira. The Park Church was among the nation's leading churches. In 1870, Mark Twain had married the daughter of a prominent Elmira family at the Park Church. The Church's abolitionist pastor, Thomas Beecher, belonged to one of the most prominent families in America. His sister, Harriet Beecher Stowe, the author of Uncle Tom's Cabin, was (in words attributed to Abraham Lincoln) the "little woman who wrote the book that started" the Civil War. (20) His brother, Henry Ward Beecher, succeeded their father, Lyman Beecher, as America's most influential preacher. And in 1889, upon Thomas Beecher's death, Crystal's parents jointly assumed the church pastorate that Beecher had held for thirty-five years. (21)

In Elmira, Crystal and her brothers Max and Anstice grew up in a home that embraced the tenets of nineteenth-century reform movements, the woman's movement foremost among them. At least in part at Crystal's insistence, the household "was run on feminist principles"; (22) there was, as she later explained, "no such thing in our family as boys' work and girls' work." (23) As a fifteen-year-old, Crystal read a paper--"Woman"--at a woman's movement symposium organized by her mother. Crystal's unfeminine behavior often scandalized the community. She wore "bathing suits without the customary stockings and skirts," her biographer writes, and she refused to ride horses sidesaddle. (24) Taking the woman's movement's goal of "woman's rights" as their standard, Annis and Samuel Eastman organized their children's upbringing around their rights as individuals, unencumbered by the happenstance of such things as gender. As Annis told her children from early on, the ideal of the Eastman household and of nineteenth-century American reform movements (from abolition to married women's property laws to temperance) was that each human being "be an individual." (25) "Nothing you can gain," Annis warned them, "will make up for the loss of yourself." (26) "Conformity with the crowd" was anathema when it involved the individual's "sacrifice of principle." (27)

By the late nineteenth century, however, the American reform tradition into which Crystal Eastman had been born began to lose its way. The abolition of slavery removed the tradition's greatest campaign, and although some abolitionists turned their attention to the "wage slavery" that accompanied free-labor capitalism, considerably less moral fervor coalesced around alternative forms of labor exploitation. (28) In the Beecher family alone, Harriet Beecher Stowe turned from writing antislavery novels to running a Florida plantation worked by poorly paid black agricultural workers. (29) Closer to Elmira, Henry Ward Beecher had been brought low by the media spectacle of an apparent affair with the wife of a prominent parishioner. (30) To be sure, the woman's movement that had begun at Seneca Falls continued. But the "New Departure" for women's suffrage and political equality that the leaders of the nineteenth-century woman's movement pursued beginning in the 1870s had sputtered; despite a modest string of successes in western states from 1887 to 1896, not a single state had enfranchised women between 1896 and 1910. (31) As Max Eastman would later remark about Mark Twain, by the turn of the century old Elmira and the nineteenth-century reform tradition seemed more and more like they "belonged to the 'old regime.'" (32)

In the new century in which Crystal Eastman came of age, Americans were beginning to grope toward new ways of articulating the relationships between individuals and their communities--ways that purported to reject the abstract rights claims and individualism of nineteenth-century liberalism in favor of historicized conceptions of society and politics as organic, evolutionary, and deeply interdependent. (33) Eastman plunged into the center of the new conversation about social politics in European and American thought. After graduating from Vassar College, and with the strong encouragement of her mother, Eastman entered Columbia University in the fall of 1903 to pursue a graduate degree in political economy. Although Eastman would spend only a year at Columbia, she took two courses each with the men who had made Columbia a center for the study of new ideas in economics and sociology: John Bates Clark, pioneering economist and cofounder of the iconoclastic American Economic Association, and Franklin Henry Giddings, one of America's leading sociologists. (34)

Clark, like many other prominent late nineteenth-century American economists, had done graduate work in economics in Germany in the 1870s, where he developed a deep respect for socialist ideas that emphasized cooperation over individualism. The German school of historical economics in which Clark studied argued that classical economists such as Ricardo and Malthus had failed to account for the apparent growth of poverty and inequality in industrializing economies. As history veered toward greater and greater interdependence among individuals, the German historicists argued, the state was required to take on wider and wider responsibilities in economic life. Clark quickly came to agree. By the time he returned to the United States, Clark was convinced of the "beauty" and "altruism" of "the socialistic ideal" (35) as against the selfish advancement of the strong over the weak in individualism. Over time, Clark would pull back from his endorsement of socialist principles; by the time Eastman arrived at Columbia, Clark had become better known for his groundbreaking ideas in the field of marginalist economics. But Clark remained a committed--if moderate--progressive into the twentieth century. (36)

Giddings's influence on Eastman appears to have been still more important than Clark's. Giddings was a leader in the use of statistical techniques in the social sciences; as one scholar later put it, Giddings sought to make sense of social phenomena "in terms of chance and probability." (37) As the holder of the first chaired professorship in sociology in the United States, Giddings conceived his subject not as the study of individuals in isolation but as the study of individuals in the groups in which they inevitably found themselves. Sociology was the study of "the phenomena presented by aggregations of living beings," Giddings wrote in an article that he drafted while Eastman was enrolled in his classes. (38) Such aggregations, he argued, had enormous influence on individuals' behavior. Society, in Giddings's conception, was an "organization for the promotion of ... efficiency by means of standardization and discipline," a "norm" that functioned to control "the variations from itself" such that individual behaviors would generally be found "clustering" around it. (39) Given the structures of "social pressure" that constituted modern social life, eighteenth- and nineteenth-century individualism and natural rights ideas were simply beside the point. "The aggregation of human beings into communities" necessarily occasioned "restrictions of liberty." (40) Indeed, individualism in the nineteenth-century sense was little more than the "riotous use" of power by those who had it. (41) Rights, in turn, were mere "legal forms of freedom" that had given rise to "conditions of great and increasing inequality." (42) To be sure, Giddings was no socialist. "Utopian collectivism" was as distasteful to him as individualism run amok. (43) But a "third and middle view," (44) which combined the cautious use of the state with reasonable competitive freedoms, could ensure the proper mix of liberty and equality. Ultimately, the proportions of restraint and liberty that were "conducive to the general welfare" turned on the "normal social constraint" in the community and the "stage of its evolution" in history. (45) This was the "supremely important question in all issues of public policy." (46) Giddings had no doubt that the balance would be difficult to strike in particular cases. (47) He was just as certain, however, that the instruments of the social policymaker were the insights of sociology and statistics, not old nostrums about rights and individualism. (48)

Eastman may not have imagined that she would put Giddings's ideas to use any time soon. In 1904, she left Columbia after what may have been either a bad final examination experience or an encounter with Giddings's increasingly dim view of the place of women in public life. (49) She decided instead to go into law. A career in the law was a bold decision for a woman in 1904 and 1905. Of all the major American professions, law was probably the most unwelcoming to women. In 1873, when the U.S. Supreme Court upheld Illinois's refusal to admit Myra Bradwell to the state bar, Associate Justice Joseph P. Bradley explained that "nature herself" had made women unfit to join the bar; their "paramount destiny and mission," Justice Bradley wrote, was service as wives and mothers. (50) Although Bradwell was eventually admitted to practice in Illinois after an 1873 change in the state's law, no woman was admitted to practice law in Eastman's home state of New York until 1886. By 1910, there were only 133 women among the 17,000 lawyers across the state, and only 558 women among the more than 114,000 lawyers nationwide. Even as late as 1920, women would make up 5 percent of all physicians and 4.7 percent of all scientists, but only 1.4 percent of all lawyers in the country. (51)

Columbia's law school did not admit women, but the law school at New York University did. By the time Crystal enrolled in 1905, New York University had become the leading school for training women lawyers in the United States. (52) Crystal quickly became part of a close-knit circle of women lawyers, and she just as quickly developed a deep enthusiasm for the law. "I am even more wild than before to be a lawyer," she confided to her brother. (53) By her second year of two at law school, she had emerged as one of the school's leading students--the second vice-president of the class, a champion of law school causes, and a friend of everyone from faculty members to the school janitor. (54)

But for Eastman, as for so many woman lawyers in the twentieth century, success in law school did not translate into professional success after graduation. She sought out a law office in which she could get "started with a good practice." (55) "My mind is just tingling to get to practising law," she wrote to Max. (56) In particular, she picked out the representation of plaintiffs in negligence cases and personal injury suits as a specialty. To be sure, relatively few accident victims in the first decade of the twentieth century chose to sue, and practicing in the field offered little remuneration and even less prestige. Nonetheless, Eastman came to believe that in such cases "a lawyer has every chance of winning before a jury if he ... knows the business." (57) Yet she proved unable to get work even in this low-prestige and poorly-paid area of the law. Her connections to a few reform-minded New York lawyers, like the prominent socialist Morris Hillquit and leading labor lawyer George W. Alger, failed to produce employment prospects. In fact, the refusal of …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Crystal Eastman and the Internationalist Beginnings of American Civil Liberties. Contributors: Witt, John Fabian - Author. Journal title: Duke Law Journal. Volume: 54. Issue: 3 Publication date: December 2004. Page number: 705+. © 2009 Duke University, School of Law. COPYRIGHT 2004 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.