I.

In this article, I focus on those aspects of the Red Scare that were most salient to liberals’ interwar reassessment of the relationship among state power, social progress, and constitutional rights. Consequently, my analysis foregrounds the contrasting reactions to the suppression of labor agitation, on the one hand, and the advocacy of radical and revolutionary ideas on the other. While much of the repressive apparatus that emerged in 1919 was either rolled back or appeared vulnerable by the mid-1920s, the decisiveness and virtual unanimity with which legislative, executive, and judicial actors aided industry in crushing the spectacular strikes of the early postwar period left a lasting imprint.Footnote ³¹

It is, of course, impossible entirely to disentangle reactions to the Red Scare from its wartime antecedent: there was no sharp break between the wartime repression and the antiradical measures that followed on its heels. During the war, the government's home-front campaign was multifaceted.Footnote ³² State and federal officials shut down forthright pro-German propaganda and, most famously through the Creel Committee, issued countervailing propaganda of their own.Footnote ³³ They also pursued radicals, pacifists, and other antiwar activists who portrayed the conflict in Europe as a concession to capitalists and profiteers. Among this contingent, the Socialist Party—which in spring 1917 counseled that “the only struggle which would justify the workers in taking up arms is the great struggle of the working class of the world to free itself from economic exploitation and political oppression”Footnote ³⁴—figured most prominently and, along with the Industrial Workers of the World (IWW), bore the brunt of popular and prosecutorial antagonism.Footnote ³⁵ Meanwhile, government officials ensured that production was unhindered by disruptive labor activity. When strikes erupted in the logging and copper mining industries in 1917, state law enforcement officials sought to break them. When they failed, state militias were federalized, federal troops were dispatched to states where the IWW commanded support, and federal prosecutors pursued convictions for interference with the war effort.Footnote ³⁶

The most outspoken opponents of censorship were concerned that the government was “us[ing] the war as a means to crush labor,” particularly after the Bolshevik revolution of November 1917 thrust the stakes of radical agitation into the spotlight.Footnote ³⁷ Many of the notable wartime prosecutions under the Espionage Act involved radical defendants, including anarchist Jacob Abrams and socialists Charles Schenck and Eugene V. Debs, whose unsuccessful appeals would feature in the Supreme Court's foundational First Amendment cases.Footnote ³⁸ Meanwhile, Congress paved the way to the deportation of foreign-born radicals with its 1918 immigration statute, which authorized the removal of any alien who was discovered to have espoused anarchist views at any time since entering the country. And the infamous 1918 Sedition Act amendments to the Espionage Act directly targeted radical agitation.Footnote ³⁹ Not only did they forbid “disloyal, profane, scurrilous, or abusive language about the form of government the United States,” but they also prohibited advocacy of “any curtailment of production in this country” of anything “necessary … to the prosecution of the war.”Footnote ⁴⁰ In other words, the apparent effect of the Sedition Act was to criminalize strikes in war-related industries.

“The war psychology grew apace,” as Norman Thomas recounted in the Survey, and “it invaded the home, the street and the marketplace.”Footnote ⁴¹ Most Americans denounced dissenters outright or accepted the state's power to silence them.Footnote ⁴² A handful of organizations emerged to combat both censorship and conscription. Most prominent among them was the National Civil Liberties Bureau (NCLB), the organizational precursor to the American Civil Liberties Union (ACLU).Footnote ⁴³ The NCLB unsuccessfully employed a panoply of tactics to check the public and private persecution of radicals. Its founders were deeply suspicious of the courts, which were notoriously hostile to labor litigants. Like some labor and radical groups before the war, however, the organization proved willing to pursue constitutional litigation in service of its clients. It argued that personal rights, including freedom of speech and conscience, were just as fundamental to the constitutional order as the property rights on which judges routinely relied when they invalidated progressive legislation or issued injunctions to block strikes. But the courts proved unreceptive to such claims, and their coolness failed to elicit popular outrage. “Personally, I am perfectly willing to have the Government suspend whatever may be necessary of my own civil rights during the period of the war, if it will help win the war,” a typical correspondent explained to the NCLB leadership, “and I have no fear whatever but that when Germany and her Allies have been licked to a frazzle that I shall be restored to the full enjoyment of all the civil rights I am capable of appreciating.”Footnote ⁴⁴ Despite the NCLB's insistence that “in a war for democracy there is no more patriotic duty than to keep democracy alive at home,”Footnote ⁴⁵ most of its interlocutors instead believed that “the world will not be safe for free speech until it is safe for democracy.”Footnote ⁴⁶

Rather than making the world safe for democracy, the end of the war only exacerbated domestic repression. The intensely conformist wartime climate did not easily dissipate. The zealous officials and organized patrioteers who had recently targeted “slackers” and pacifists were eager to find a new purpose, and the legal and cultural safeguards that ordinarily prevailed in peacetime were overrun.Footnote ⁴⁷ “A Constitution that could be torn to tatters under the strain of alleged military necessity could not be easily restored to its former effectiveness,” the socialist New York Call lamented a few months after the Armistice.Footnote ⁴⁸ In 1920, the Nation belatedly echoed that grim assessment. “When war is declared on a foreign foe,” it observed, “it is also declared on every forward-looking cause, every liberal, every reformer at home.”Footnote ⁴⁹

Labor's inflated expectations and subsequent disappointment also played a role. During the war, the American Federation of Labor (AFL) (though not its more radical counterparts) had made significant gains in both membership and power. The foreign deployment of millions of American workers led to labor shortages, which dramatically improved the AFL's bargaining position vis-à-vis government and employers.Footnote ⁵⁰ The National War Labor Board was chaired by the labor-friendly lawyer Frank P. Walsh along with former president William Howard Taft. The latter's track record as a federal judge gave unions little cause for optimism, but the board proved comparatively friendly to labor, and it favored an eight-hour day and the right to organize. Although it lacked enforcement authority, its decisions were backed by the administration and carried considerable weight.Footnote ⁵¹

Labor's ascension was, however, short-lived. After Republicans gained control of Congress in 1918, the Wilson administration increasingly catered to industry instead of labor. The labor supply soon swelled with returning soldiers, which served to fuel a wave of union militancy, along with anti-immigrant sentiment and race riots. At the same time, shortages of civilian goods raised the cost of living, which heightened support for labor radicalism as well as fears of revolution.Footnote ⁵²

In the spring of 1919, two series of bombs were mailed to politicians and government officials, accompanied by a leaflet signed “The Anarchist Fighters.”Footnote ⁵³ Although the radical press disclaimed the attacks, mainstream newspapers called for decisive government action.Footnote ⁵⁴ Under the leadership of the young J. Edgar Hoover, the newly formed General Intelligence Division of the Bureau of Investigation worked to ferret out radicals and subversives, and Attorney General A. Mitchell Palmer—whose home was damaged in the second spate of bombings—oversaw the summary deportation of foreign-born radicals.Footnote ⁵⁵

Congress, too, entered the fray. In November 1919, the House of Representatives refused to seat Wisconsin socialist Victor Berger, who was appealing (eventually, successfully) a conviction under the Espionage Act for his opposition to the war.Footnote ⁵⁶ In the Senate, the Overman Committee, which was originally organized to investigate pro-German activity among beer brewers, held hearings on the Bolshevik threat beginning in the winter of 1919.Footnote ⁵⁷ Among its influential witnesses was Red-hunter Archibald Stevenson, a New York attorney who would soon shepherd the Red Scare to New York.Footnote ⁵⁸ Notably, Stevenson drew attention to the dangers of organized labor, as distinct from terroristic violence. The true peril, he explained, came not from “small groups which seek to use the torch and bomb,” but rather from “those quasi-political and economic organizations which teach that the workers should organize into revolutionary industrial unions.” In the wake of the sensational Seattle general strike of February 1919, the “coercive power of the general strike” emerged as a credible threat to political and economic stability.Footnote ⁵⁹

Indeed, in a span of months, thousands of strikes embroiled four million American workers. The result was a unified front of state and federal officials, in all three branches of government, intervening to restore production.Footnote ⁶⁰ During the war, ACLU co-founder Roger Baldwin had faulted Samuel Gompers for refusing to “recognize the attacks that are being made upon personal and minority liberties.”Footnote ⁶¹ In the summer of 1919, by contrast, AFL leaders were denouncing state sedition laws and pronouncing free speech to be the “answer to the Steel Trust.”Footnote ⁶² At their annual convention, they “insist[ed] that all restrictions of freedom of speech, press, public assembly, association and travel be completely removed.”Footnote ⁶³ But their contention that labor organizing amounted to an exercise of protected expression—an argument that the Supreme Court had decisively rejected well before the war—still rang hollow to government officials.Footnote ⁶⁴ In September, President Wilson denounced the Boston police strike as “a crime against civilization.”Footnote ⁶⁵ The next month, federal troops assisted in suppressing the steel strike.Footnote ⁶⁶ In November, the administration secured a federal injunction against striking coal miners. In all three cases, industry interest groups downplayed unions’ complaints about wages, hours, and working conditions, along with their potentially sympathetic bargaining demands. Instead, they depicted the strikers as a mix of revolutionaries and their unwitting dupes. The press generally echoed their exhortations to save American democracy from the Bolshevik menace.Footnote ⁶⁷ “[T]he newspapers both in their reporting of the news and their comments on it line up with the employers and accept a class interpretation of the controversy and of its salient facts,” Herbert Croly reflected in 1920. “With few exceptions they followed this course in respect to the steel and coal strikes of last year and prejudiced those controversies [against] organized labor.”Footnote ⁶⁸

In his classic 1955 study, Robert Murray identified the labor militancy of fall 1919 as the “one factor which more than any other” acted as the “trigger mechanism” of Red Scare hysteria.Footnote ⁶⁹ It seems equally plausible to cast the 1919 strikes as casualties rather than catalysts of the Red Scare. Perhaps, had officials not had an apparatus of investigation and propaganda at its disposal, the burgeoning American labor movement would not have incurred the crushing defeat that defined the 1920s. Either way, Murray's emphasis on organized labor comports with contemporaneous assessments.

As the coal strike collapsed, enthusiasm for the Red Scare began to diminish. To many Americans, the immediacy of the 1919 strike wave had justified drastic measures. When the threat of direct action subsided and official attention pivoted to advocates of long-term social change, a growing constituency advised moderation. The Palmer Raids and ensuing deportations generated critical commentary in the academic and popular literature. In the spring of 1920, Congress failed to pass federal peacetime sedition legislation, despite Attorney General Palmer's efforts. Government officials increasingly urged restraint.Footnote ⁷⁰

The wind-down, of course, was gradual. State legislatures, which in 1919 had begun enacting criminal syndicalism, criminal anarchy, Red flag, and sedition statutes in record numbers, carried on into 1920.Footnote ⁷¹ New York's Joint Legislative Committee to Investigate Seditious Activities, or Lusk Committee, extended its Red Scare activities well into the new decade.Footnote ⁷² As the ACLU's Albert De Silver put the point, it was “bitterly true that the recession [was] very slow; that the ebb [left] uncovered laws against sedition and like offenses in thirty-five states; and that many if not most of our fancied safeguards against repression [had] been swept away by the inundation, only to be built upon again by painful years of toil and struggle.”Footnote ⁷³ Nonetheless, it was evident by early 1920 that the tide had decisively turned.

II.

The Red Scare prompted progressives to reevaluate their belief in a relatively unitary public interest as well as their prewar confidence in state power. Although most continued to favor active government involvement in social and economic affairs, their unvarnished faith in administrative expertise was tainted by palpable overreach. Over the course of the 1920s, a new breed of liberal progressives began to formulate mechanisms to constrain administrative arbitrariness while preserving the state's regulatory power.Footnote ⁷⁴ On the whole, they remained skeptical of the judiciary and favored self-policing within the political branches. Eventually, however, they accepted a role for the courts in enforcing civil liberties and civil rights, even where legislatures acted explicitly to curtail them. The ironic effect of the Red Scare, then, was to undercut progressive confidence in the very administrative machinery that might have abetted the redistributive ambitions they worried the Red Scare would quash.

During the First World War, many progressives capitulated to the Wilson administration's speech-suppressive policy. Even those who had vocally opposed American entry into the war believed, like Buffalo attorney Philip Willett, that “[a]s units of democracy [they were] bound by the national decision.”Footnote ⁷⁵ Although most considered robust discussion to be a prerequisite of legitimate policy, they urged deference to majoritarian decision making once that policy was enacted. They accepted a principle articulated by Roscoe Pound before the war, namely, that “The individual interest in free belief and opinion must always be balanced with the social interest in the security of social institutions and the interest of the state in its personality.”Footnote ⁷⁶ The exigencies of the war seemed to tilt the balance toward the latter.

To be sure, a few progressives balked at the repression, including Robert M. La Follette, Randolph Bourne, and (belatedly) Bourne's mentor, John Dewey.Footnote ⁷⁷ Dewey, like Zechariah Chafee Jr. after him, cast censorship as a threat to social welfare, not individual autonomy. In the same vein, those who counseled greater tolerance for divergent viewpoints or the demands of conscience almost exclusively sought accommodation through legislative and administrative moderation, not the judicial enforcement of constitutional rights.Footnote ⁷⁸ During and after the war, they associated courts too closely with Lochner-era substantive due process—that is, with the exercise of judicial review to invalidate the prized legislative reforms of the Progressive Era, as typified by the notorious 1905 United Supreme Court case Lochner v. New York Footnote ⁷⁹—to risk legitimating their counter-majoritarian exercise of power.Footnote ⁸⁰ The judicial strategy appeared unpromising in any case. Efforts by socialists and the IWW to defend their advocacy and organizing activity on free speech grounds had yielded few dividends in the prewar period; the courts had proven wholly unreceptive to First Amendment claims, and progressives had little taste for litigating them. Operating through administrative channels instead, they secured some notable concessions.Footnote ⁸¹ On the whole, however, progressive opposition to the wartime repression was as tepid as it was scarce.

Yet many of the same progressives who accepted wartime censorship regarded continued suppression after the Armistice as different in kind. During the war, there was a kind of symmetry to the state's enlarged footprint, which encompassed broad swaths of social and economic life. Even the AFL had supported the government's war effort in exchange for political and economic gains. Like a united home front, those gains were the product of state power. Thus, an Illinois senator captured dominant conservative sentiment when he denounced the administration's concessions to labor as a step toward “political autocracy,” an attack on the autonomy of beleaguered industrialists.Footnote ⁸² It was easier for progressives to reject entreaties for such “civil liberties” as freedom of speech and assembly when businesses believed their own “civil liberty” was under assault.Footnote ⁸³

As hostilities in Europe wound down, however, this precarious equilibrium shifted toward industry. Gilbert Roe, a former law partner of Robert La Follette who had fought unsuccessfully to preserve civil liberties throughout the war, quickly understood the implications of the peacetime double standard. “The President told us yesterday that the moment the armistice was signed he took the harness off from business, but he did not say anything about taking the halter off from free speech,” Roe complained to the Civic Club of New York in December 1919. “Industry, he tells us, is unshackled; but the embargo on ideas remains.”Footnote ⁸⁴

The persistence of censorship during the “great war after the war” provoked some progressives to rethink their deference to state suppression.Footnote ⁸⁵ As the Overman Committee heard testimony on alleged Bolsheviks, the Nation blamed repression for “turning the thoughtful working people of the country into dangerous radicals and extreme direct actionists.” While reiterating the journal's aversion to socialism, an editorial insisted on the right of every person “to present for public consideration his ideas, no matter how erroneous they may appear.”Footnote ⁸⁶ The notion that speech might serve as an outlet for aggression and thereby defuse potential violence was a frequent refrain in Red Scare defenses of free speech. Even President Wilson claimed always to have “believe[d] that the greatest freedom of speech was the greatest safety.”Footnote ⁸⁷ In March 1919, the socialist New York Call ran an article titled, “The Liberals Wake Up,” in which it welcomed the news that American liberals were finally “organizing to aid in the struggle to restore political democracy in the United States.”Footnote ⁸⁸

Progressive outlets voiced increasing concern over the summer and fall of 1919. Their coverage of the coal and steel strikes was generally sympathetic to the unions and critical of government policy.Footnote ⁸⁹ Many had long regarded the inequality of bargaining power between employees and employers as a blemish on American democracy as well as an impediment to economic stability, and they were dubious of allegations that Bolsheviks were behind the strikes. They emphasized that officials were targeting labor activists on the pretext that their radical ambitions necessarily implied the exercise of force or violence. As Swinburne Hale wrote for the New Republic, would-be strikers were arrested not because they actually advocated “force and violence,” but rather because “they advocated the general strike.”Footnote ⁹⁰

Still, more than suppression of the strikes, it was the expulsion of socialists from the New York legislature in January 1920 that indisputably crossed a line. Spurred on by New York's Lusk Committee, the frenzied Assembly voted overwhelmingly not to seat its lawfully elected representatives. Its action inspired a critical letter from Charles Evans Hughes on behalf of the New York Bar Association and (according to Literary Digest) triggered “emphatic protest and almost universal condemnation” from “Republican, Democratic, and Socialist newspapers alike.”Footnote ⁹¹ The affair dragged on for months, but the Red Scare never regained its momentum.Footnote ⁹² As Zechariah Chafee Jr. reflected in his 1920 classic Freedom of Speech, “with Governor Hughes's letter on the 9th, the ebb set in.”Footnote ⁹³

The outcry reverberated across the political spectrum and undermined support for a federal peacetime sedition bill.Footnote ⁹⁴ Labeling the confiscation of personal rights a “worse form of bolshevism” than the confiscation of property, Senator Joseph I. France, a liberal Republican, argued that “liberty must be secured not by democracy,” but rather “by the Republic, with its Constitution, with its protecting mandates, setting the absolute metes and bound beyond which even the majority may not go.”Footnote ⁹⁵ Subsequent efforts by the Lusk Committee to expose radical teachers in the public schools and to shut down the socialist Rand School of Social Science energized many Americans who, according to the Nation, had evinced a “callous indifference to the civil liberties of workers.”Footnote ⁹⁶ Even mainstream newspapers like the New York World denounced the measures and extolled their eventual defeat as a “triumph of liberalism.”Footnote ⁹⁷

If the excesses in New York taught progressives the dangers of majoritarian intolerance, the Palmer Raids and subsequent deportation of hundreds of noncitizens for mere membership in radical organizations underscored the potential for administrative abuse. Although they continued to condemn radical tactics, the new liberals fretted that the Justice Department's indiscriminate methods endangered established constitutional rights. In the summer of 1920, a group of twelve respected lawyers and legal academics, including such darlings of progressivism as Zechariah Chafee Jr., Ernst Freund, Felix Frankfurter, and Roscoe Pound, issued a Report upon the Illegal Practices of the United States Department of Justice.Footnote ⁹⁸ The document condemned the government's lawless methods and its “continued violation of [the] Constitution.” It cataloged a long list of acts inconsistent with the Fourth, Fifth, and Eighth Amendments, including the “wholesale arrests both of aliens and citizens,” effected “without warrant or any process of law.”Footnote ⁹⁹

More and more, liberals came to see such Red Scare transgressions as endemic to administrative governance. To be sure, they were unwilling to give up entirely on bureaucratic expertise. But they disclaimed naiveté about the dangers of administrative authority. Significantly, the New Republic issued an assessment of the platform of the liberal “Committee of Forty-Eight”—a short-lived political party that positioned itself as an alternative to the Republican, Democratic, or Socialist Parties—the same day it reported that the so-called “Red Ark” that carried Emma Goldman and other deportees to Soviet Russia had departed American shores.Footnote ¹⁰⁰ The latter it described as a betrayal of American institutions, and it pointedly reproached “the petty panic-stricken bureaucrats” who ordered the hasty “banishment … of alien refugees” without affording them legal process. As for the “middle class ‘liberals’” who disavowed the class struggle but were nonetheless too “radical” for the Republican and Democratic Parties, the New Republic lauded their emphasis on increasing workers’ bargaining power and abolishing injunctions in labor cases, as well as their demands for “equal rights irrespective of sex and color [and] the immediate and unqualified restoration of all civil liberties guaranteed by the Constitution.” But it worried that the group's persistent faith in government ownership of public utilities and natural resources was inadequate to ensure desirable outcomes. “The emphasis in the program of public ownership,” it reflected poignantly, “has the disadvantage of proposing to confer on the government a huge increase in power and responsibility at the very moment when liberals all over the world have reason to revive their former distrust of bureaucrats and public officials.” Public ownership was desirable, they assured readers, but only in conjunction with safeguards “to protect the public and the workers against bureaucratic dictation.”Footnote ¹⁰¹ Before the war, progressives had believed that bureaucrats were insulated from political will; over time, the influence of industrial interests, among others, had taught them that neutrality was illusory. According to journalist William Hard, “Bureau after bureau, commission after commission,” had succumbed to the influence of “reactionaries.”Footnote ¹⁰²

In short, liberal progressives agreed that Red Scare suppression was dangerous and unnecessary. As they had before the war, they cautioned that open discussion was vital to democracy, and that enforced conformity undermined social welfare.Footnote ¹⁰³ They were also becoming more amenable to constraints on administrative discretion, albeit with an eye toward buttressing rather than dismantling state authority.Footnote ¹⁰⁴ Those constraints might be incorporated at the level of institutional design (as with tripartite commissions and quasi-public corporations) or through internal procedural rules. Occasionally, however, they might require an outside authority—whether the courts, or rather what the Report on the Illegal Practices of the United States Department of Justice called “the conscience and condemnation of the American people”—to ensure that the channels of communication remained open and that the rights of minorities were respected.Footnote ¹⁰⁵ In other words, progressives had come to believe that censorship would undermine both the legitimacy and the effectiveness of the administrative state. Their views echoed those of the British civil libertarian Norman Angell, who explained that “the need of individuality in thought increases in direct ratio to the increasing complexity of our social arrangements.” Modern societies required unprecedented levels of “regimentation [and] regulation,” which made it even more vital “to preserve variety and freedom of individual thought” in setting social priorities.Footnote ¹⁰⁶

The new liberals divided sharply over the appropriate role of the judiciary in policing democratic openness. A handful of sympathetic lower courts had construed the wartime legislation narrowly and dismissed indictments against alleged subversives under the Espionage Act.Footnote ¹⁰⁷ In June 1920, a federal district court in Massachusetts, chastising the Department of Justice for its “lawlessness,” went so far as to hold that Communist Party membership was an inadequate basis for deportation.Footnote ¹⁰⁸ Although the decision was eventually overturned on appeal, it pointed to the potential of a court-centered approach.Footnote ¹⁰⁹

Yet many progressives continued to regard the courts as antidemocratic, a cause of suppression as opposed to a potential solution. Not only had federal judges overwhelmingly failed to check the legislative excesses of the Espionage Act, they had actively expanded the power of prosecutors to silence critics of the war. Through the doctrines of “bad tendency” and constructive intent, the courts had authorized juries to convict critics of the government's war policy who might reasonably have foreseen that their speech would encourage others to commit such criminal acts as interference with conscription. “For arbitrary executive,” Ernst Freund explained, the Espionage Act had “practically substitute[d] arbitrary judicial power.”Footnote ¹¹⁰

Still, a few ambivalent champions of the judicial enforcement of the First Amendment were beginning to emerge. Among the most vocal was Zechariah Chafee Jr., whose 1919 article “Freedom of Speech in War Time” is generally regarded as the template for the progressive theory of free speech and helped to inspire the Supreme Court justices Oliver Wendell Holmes Jr. and Louis Brandeis to reevaluate the role of the First Amendment.Footnote ¹¹¹ According to Chafee, the First Amendment might serve not only individual interests, but also the “social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out the wisest way.”Footnote ¹¹² Just months after reading Chafee's article in the Harvard Law Review, Justice Holmes penned the first of his iconic dissents, in Abrams v. United States, a case upholding the conviction under the Espionage Act of self-proclaimed “revolutionists” who distributed leaflets opposing American interference with the Russian Revolution and “advocat[ing] a resort to a general strike.”Footnote ¹¹³ In the cases that followed, the dissenting justices signaled their willingness to reverse convictions and even invalidate legislation on First Amendment grounds.

The progressives who celebrated the dissenting opinions were quick to differentiate them from the court's exercise of liberty of contract to constrain democratic reform. As John Dewey later explained, Holmes and Brandeis valued expressive freedom for its relationship to public welfare, not “anything inherent in the individual as such.”Footnote ¹¹⁴ Even so, the turn to the judiciary to constrain the political branches was a dramatic departure from progressive tradition. As Dewey's co-author and collaborator James H. Tuft observed, the war had prompted an “interesting shift in the attitudes of conservative and liberal groups toward majority rule expressed through legislation on the one hand and constitutional guarantees as supported by the courts on the other.”Footnote ¹¹⁵ The courts provided a fallback forum for legislative losers, he reasoned, and at the height of the Progressive Era, conservatives had invoked their power to protect property rights from democratic redistribution. During the Red Scare, by contrast, conservatives celebrated majority rule while progressives, disillusioned with popular democracy, embraced the courts.

Certainly there were plenty of progressive holdouts who fretted about empowering the judiciary. The distinguished constitutional scholar Edward Corwin observed that many of the same individuals who were “endeavoring to-day to elaborate constitutional restrictions upon Congress's power over the press” had earlier opposed the judicial enforcement of “constitutional limitations” on congressional power. Corwin was personally inclined to their former position. Given the complexities of modern society, he argued, “it is much more to the point to insist upon the responsibility of legislators than their lack of power.”Footnote ¹¹⁶ In a similar vein, Herbert Goodrich inverted Holmes's famous appeal in Abrams to the “free trade in ideas” and the “competition of the market.” Recounting with approval the growing conviction that Lochner v. New York was wrongly decided, he argued that the progressive assault on freedom of contract had been waged in the marketplace of ideas, and that “if unrestricted speech cannot win in the same field, we shall probably have to get along without it.”Footnote ¹¹⁷ Even Chafee treated the First Amendment as a reference point for legislative as much as (if not more than) judicial decision making. Previewing later calls for popular constitutionalism, he described the First Amendment as “an exhortation and a guide for the action of Congress.”Footnote ¹¹⁸

Whatever the merits of these competing attitudes toward judicial enforcement of the First Amendment, they were largely confined to academic debate. Notwithstanding the great weight attributed to the Holmes and Brandeis dissents in subsequent legal and historical literature, contemporaries considered it just as unlikely that the wayward justices would win a majority in the speech cases as it was in the domain of substantive due process.Footnote ¹¹⁹ In the assessment of the fledgling ACLU, the Abrams decision, despite its stirring dissent, had left “the status of civil liberty hopeless so far as it is the concern of the courts of law.”Footnote ¹²⁰ No one expected the conservative justices to embrace a First Amendment right to engage in subversive advocacy. As with Holmes's equally impassioned dissent in Lochner, the dissenters’ vision of free speech served as a rallying cry and organizing tool more than a legal blueprint.

Nonetheless, the scholarly fermentation of the early interwar period portended a basic reconfiguration of progressive principles. In the face of Red Scare repression, enthusiasm for far-reaching state authority gave way to demands for restraint in the public interest. In the new conception, the state retained a central role in managing economic growth and in providing for social welfare in an era of industrial and corporate capitalism. Increasingly, however, the toleration of dissenting ideas emerged as a necessary check on administrative authoritarianism. The new liberalism married a continued commitment to the government regulation of a capitalist economy with a growing insistence on state protection of personal rights.

III.

“It seems the hardest thing in the world to straighten out the honest conservative mind on this question of free speech,” an exasperated correspondent wrote to Zechariah Chafee Jr. in reference to a peacetime sedition bill.Footnote ¹²¹ Like progressives, conservatives resisted the idea of erecting a constitutional barrier to government involvement in Red Scare repression. Their reservations, however, stemmed from a markedly different source. Conservatives were staunch believers in the counter-majoritarian judicial enforcement of constitutional rights, but they were ill disposed to protect the substantive agenda of radicals and organized labor.Footnote ¹²²

During the war, conservatives fretted about the unprecedented expansion of federal power. The president of the ABA decried Congress's baldness in “fixing hours of labor and rates of wages upon the transportation system,”Footnote ¹²³ and as Norman Thomas noted wryly, business advocates vocally opposed the “conscription of wealth.”Footnote ¹²⁴ Such concerns, however, did not carry over to conscription of people, the exercise of government authority most visible to draft-age Americans. Nor did conservatives resist the expansion of administrative censorship authority in the post office and other agencies.Footnote ¹²⁵ They had long regarded an “independent judiciary” as a crucial bulwark against redistribution, and they framed the “judicial function of declaring invalid any statute which contravenes constitutional safeguards to individual rights of property and liberty” as a “barrier to the establishment of a government of Socialism.”Footnote ¹²⁶ But most did not count opposition to the war or advocacy of radical economic change among the exercises of freedom that courts were charged to protect. Freedom of speech, they argued, encompassed only liberty, not license.Footnote ¹²⁷

These positions flowed easily from conservatives’ prewar commitments. Employers and their interest groups had litigated the major cases in which the Supreme Court had enshrined a constitutional “liberty of contract” within the Due Process Clauses of the Fifth and Fourteenth Amendments. This judicial innovation had served as an obstacle to progressive wage and hour and workplace safety legislation, albeit less completely than progressive critics alleged.Footnote ¹²⁸ Equally important, employers had justified their union-busting efforts by reference to individual rights, arguing that closed shops abridged workers freedom,Footnote ¹²⁹ while yellow-dog contracts (which prohibited workers from joining unions) protected individual rights because the duties they imposed were voluntarily assumed.Footnote ¹³⁰ Accepting these arguments, courts had eagerly enjoined union efforts to “coerce” workers into honoring boycotts and picket lines.Footnote ¹³¹ At the same time, they had decisively rejected union efforts to protect their own activity on constitutional grounds.Footnote ¹³² As the general counsel of the National Association of Manufacturers reflected, it was equally proper “to enjoin the use of [a man's] hands or his feet or his head to do some unlawful thing … [as] to use the injunction in connection with the use of the tongue.”Footnote ¹³³

Conservatives were no friendlier to free speech claims by strikers and radicals after the war than before. Writing for Nation's Business, the mouthpiece of the Chamber of Commerce of the United States, Utah Senator William H. King denounced the “internationalists” who “demand free speech and a free press in order that they may thereby destroy the Government which guarantees free speech and a free press.”Footnote ¹³⁴ The conservative American Bar Association urged local bar associations to “purge the rolls of unworthy members,” and it celebrated the disbarment of a radical lawyer whose efforts on behalf of striking steel workers had “overpassed the limits of free speech.”Footnote ¹³⁵ Above all, conservatives resolutely resisted the notion that a labor injunction issued by a federal court might run afoul of the First Amendment.Footnote ¹³⁶

In short, conservatives maintained two potentially conflicting attitudes toward state power and individual rights. On the one hand, they clung to their decades-old position that a broad police power threatened the robust right to property on which political and economic well-being depended. On the other, they relied on government actors to maintain law and order and suppress class-conscious agitation.Footnote ¹³⁷ A 1922 address to the ABA neatly captures the competing commitments. After underscoring the need for a strong and independent judiciary to arrest the accretion of the “so-called police power,” the organization's president declared it the duty of every patriot to support the government suppression of subversives and the deportation of foreign-born agitators.Footnote ¹³⁸ Conservatives minimized the tension between these two positions, but progressive critics exploited it. As John Dewey subsequently reflected, these “laissez-faire liberals” condemned government interference with business practices but were “almost uniformly silent in the case of even flagrant violations of civil liberties—in spite of lip service to liberal ideas and professed adulation of the constitution.”Footnote ¹³⁹

Yet there were also signs that a new, more “open-minded” outlook was emerging.Footnote ¹⁴⁰ In 1923, John Burgess, a distinguished political scientist and constitutional theorist at Columbia University, sounded a familiar theme in denouncing labor's “contemptible methods of social ostracism and business boycott” for infringing on individual freedom. But he also identified the judicial enforcement of the First Amendment as the “fundamental principle of American political philosophy.”Footnote ¹⁴¹ As the bogeyman of Bolshevism withered, Burgess's views attained broader purchase. A growing chorus of erstwhile conservatives seized the label of liberalism and lobbied, forcefully if inconsistently, for pluralism and tolerance.

In large measure, it was the success of the Red Scare that cleared space for the new path. Not coincidentally, radical agitation was eroding in step with public support for repression. By 1921, thirty-five states had passed antiradical legislation. Some of the nation's most charismatic activists had been deported, and many others were in jail or wary of ending up there. Satisfied that the worst dangers were contained, Americans increasingly agreed with Justice Holmes that the “surreptitious publishing of a silly leaflet by an unknown man” posed little peril to American institutions.Footnote ¹⁴²

The perceived threat of labor activity lingered a while longer. Unions had lost more than a million members since their wartime peak, but the disruptions they wrought were more palpable, and labor advocates and conservatives agreed that striking workers elicited less sympathy than silenced socialists. “A manly candor would compel the self-styled liberals to confess the tyranny of trade-union domination,” the New York Times urged readers in 1922, contrasting “the destructive blindness of ‘industrial democracy’” with “the airy jocosities of Bernard Shaw.”Footnote ¹⁴³ The federal government routinely aided employers in labor disputes, and press coverage of economic disruption and picket-line violence eroded whatever public support unions had once commanded. In 1922, the Harding administration urged federal judge James Wilkerson to issue the notorious shop-craft injunction to break the Great Railroad Strike. Among the injunction's sweeping provisions was a clause prohibiting any member or agent of the union from “encourag[ing]” any person to “abandon” or “refrain from entering” the employment of a railroad, through any mode of communication “whatsoever”—a provision that the ABA deemed entirely consistent with free speech.Footnote ¹⁴⁴ Under its new Chief Justice William Howard Taft, the Supreme Court joined the antilabor fray with two major cases dismantling legislative protections for organized labor.Footnote ¹⁴⁵ Although well-established unions extracted a few modest concessions from the Republican Party, mass mobilization of the kind envisioned at the end of the war was practically inconceivable.

Soon enough, even the “memory of wartime strikes and wage holdups,” which remained vivid to the New York Times in 1922, began to fade.Footnote ¹⁴⁶ That year, the ACLU counted 846 legal prosecutions, 225 acts of mob violence, and 28 lynchings.Footnote ¹⁴⁷ But as the “wartime hysteria” and “large industrial conflicts” diminished apace, there was a drop-off in “active interference with civil rights.” According to the ACLU leadership, “intolerance [was] so entrenched that there [was] no need of locking people up to control their heresies.”Footnote ¹⁴⁸ In any case, by mid-decade, economic prosperity rendered the risks of strikes and boycotts unenticing. As Roger Baldwin quipped, “Enough of our workers can buy second hand cars to ward off class-consciousness. All they need for contentment is the price of gasoline.”Footnote ¹⁴⁹

It was in this new, business-friendly climate that conservatives revisited their traditional commitments and resolved to update—to liberalize—their attitudes toward social mores and state-imposed conformity. Incensed by Prohibition more than the Red Scare, they condemned “[t]he use of the power of the state to enforce some particular rule of conduct, which those to whom it appeals describe as moral.”Footnote ¹⁵⁰ In 1923, Nicholas Murray Butler remained unabashed about his economic philosophy: liberalism was flatly incompatible with the “huge bureaucracy at Washington,” with attempts to regulate prices or restrain commerce and industry. At the same time, he worried that “religious freedom, free speech and the right of assembly [were] endangered or ignored.”Footnote ¹⁵¹ Recounting a long list of affronts to the First, Fourth, and Fifth Amendments, he continued: “The historic basis on which liberalism rests finds expression in the first ten amendments to the Constitution of the United States, which defined with sufficient clearness and precision that field of civil liberty into which the Government may not enter.” In testing these ideas, Butler found eager audiences and ample company. Even President Calvin Coolidge, addressing the American Legion in 1925, exalted “the ferment of ideas” and declared that “the clash of disagreeing judgment … makes progress possible.”Footnote ¹⁵²

IV.

Out of these twin narratives emerge several implications of the Red Scare for the articulation of modern liberalism. Historians and constitutional law scholars have long identified the aftermath of the First World War as the moment when progressives rediscovered the importance of the Bill of Rights; while most progressives remained skeptical of judicial enforcement of civil liberties for longer than the conventional accounts allow, it is certainly true that many celebrated an American tradition of free speech and procedural rights by the time the Red Scare waned. The Red Scare also helps to explain the growing unease among progressive lawyers with respect to unfettered administrative power. Red Scare repression served to undermine progressives’ faith in the very machinery that they had regarded as necessary to accomplish progressive ends. Their desire to shield socialists and labor leaders from overreaching by a reactive state reduced the likelihood that the redistributive agenda they advocated could effectively be implemented.

What is perhaps more surprising is the extent to which the Red Scare may inadvertently have liberated conservative lawyers to find common ground with progressives concerning the value of pluralism and dissent. From the beginning, conservatives had accused radicals of demanding their own constitutional rights even as they advocated the dictatorship of the proletariat. At first, they insisted that socialists had forfeited their rights, and in any case (as the Washington Post famously put it) that there was “no time to waste on hairsplitting over infringement of liberty.”Footnote ¹⁵³ But as the repression achieved its ends and the risk of revolution abated, American liberties instead emerged as a foil to Soviet-style tyranny. In 1924, Nation's Business gave publicity to the reflections of disabused socialists who rejected Communism for its abridgment of free speech.Footnote ¹⁵⁴ Samuel Gompers joined the chorus, lamenting the Soviet disregard for freedom of organization, press, speech, movement, and assembly—freedoms so fundamental that Americans were “taught to believe they are more precious than life.”Footnote ¹⁵⁵ As the Soviet experiment lost its luster and labor militancy yielded to bread and butter unionism, conservatives could safely celebrate personal rights.

By 1925, an attorney writing for the journal of the American Bar Association captured the dominant understanding when he differentiated between “two opposing schools of thought and two divergent theories as to the scope of governmental activities”: on the hand, “conservatives” who “denounce the curtailment of liberty and the encroachment of government activities upon private business”; and on the other, “liberals who believe in constitutional rights, but insist that the public welfare and rights of society are paramount and that the rights of the individual must give way for the public good.” To the author, this dyad was simply the “age-old battle in its modern form.”Footnote ¹⁵⁶ In reality, however, the terms of the dispute had shifted. What distinguished the mid-decade assessment from its Red Scare precursor was the author's conviction that both schools valued personal rights, and neither was antagonistic to constitutionalism. In place of the progressive assault on the Constitution, the new liberal vision confronted conservatives with an alternative interpretation of how American constitutionalism might best be effectuated and preserved.Footnote ¹⁵⁷ When progressives first sought to wrest the meaning of liberalism from its conservative roots, conservatives had complained bitterly, with Nicholas Murray Butler, that “liberalism [had] been transmuted into socialism.”Footnote ¹⁵⁸ By contrast, the new liberalism made their views more palatable and more broadly resonant.

The convergence was as yet only partial. On the Left, many self-described liberals continued to reject the courts as the appropriate arbiters of constitutional meaning, at least where Congress had definitively specified its own constitutional understanding. Meanwhile, some avowed adherents of laissez-faire refused to cede the mantle of liberalism to those who believed that private property and the right of contract, like “liberty of speech and of the press,” must occasionally “yield to the public need.”Footnote ¹⁵⁹

In other work, I trace the gradual path to judicial enforcement of civil liberties between the First and Second World Wars to an awkward alliance between these two slices of a budding liberal coalition.Footnote ¹⁶⁰ The architect of that coalition was the ACLU, an organization that pledged itself in founding documents to “a dramatic campaign of service to labor.”Footnote ¹⁶¹ It initially advanced what it called a “right of agitation,” that is, a right of workers to picket, boycott, and strike. At first, the ACLU sought to secure labor's rights through grassroots activism and direct action, and it pursued constitutional litigation to generate propaganda as opposed to legal victories. Eventually, however, it accepted that no revolution was imminent, and it settled in for a longer struggle. It attracted progressive support by emphasizing the value of unfettered expression in building democratic legitimacy and advancing social progress, and by pursuing cases in such areas as academic freedom and sex education, which galvanized progressive interest. At the same time, it wooed conservatives with its critique of administrative arbitrariness.Footnote ¹⁶² Sounding like Butler, it promised to combat “force[d] conformity” and to prevent the “complete standardization” of the “intellectual life of [the] nation.”Footnote ¹⁶³ Over time, the ACLU tempered its radical rhetoric and pursued incremental legal advances, contesting convictions on the basis of insufficient evidence or procedural irregularities rather than a frank right to engage in sedition. In so doing, it drew support from pluralists who remained ambivalent about judicial review as well as judicial enthusiasts who harbored enduring fears of Bolshevism. As Roger Baldwin told James P. Cannon, the ACLU had a particular crowd to sway in the long-term struggle for economic equality.Footnote ¹⁶⁴ Among the swelling ranks of “middle-class liberal[s],” most “merely welcome[d] change without fighting for it.” But some, whom Baldwin preferred to call “libertarians,” were embracing the “fight for civil liberty as a principle of progress.”Footnote ¹⁶⁵

It would take another decade for the new constitutional liberalism to assume its mature form. During the 1930s, the ACLU and its allies grappled with new extensions of state power, like the National Labor Relations Act, that advanced rather than undermined labor's right to organize. When New Deal administrators seized business records and suppressed employers’ anti-union speech, they confronted the possibility that civil liberties claims might serve the interests of capital as much as, or more than, the interests of labor. After securing legislation to eliminate federal injunctive power in labor disputes, they debated the virtues of amending the Constitution to eliminate judicial review. At the same time, as the protections of the Bill of Rights were incorporated piecemeal into the Due Process Clause of the Fourteenth Amendment, and thus made binding on the states, they discovered the potential of federal judicial intervention to protect racial minorities as well as political dissenters from the repressive reach of state and local officials, especially in the Jim Crow South. As Europe succumbed to totalitarianism, they helped give shape to the New Deal Settlement—which paired broad judicial deference to government regulation of the economy with exacting scrutiny of its interference with civil liberties and civil rights—and ultimately, the institutional parameters of postwar American liberalism.

Yet in the years after the Red Scare, the contours of a new, hybrid liberalism were already apparent. Half a decade after he denounced the expulsion of the socialist members of New York's Assembly as incompatible with the “essence of the institutions of liberty,”Footnote ¹⁶⁶ Charles Evans Hughes served as president of the ABA. In his address to the organization's annual meeting, he declared an “intolerant spirit” to be the most troubling development confronting the nation—a nation, significantly, comprising “different racial stocks, variety of faiths, and … manifold interests and opinions.” An inclusive suffrage, desirable though it was, only exacerbated the danger that the “passion for uniformity” would trench on the liberty of “individuals, and hence of minorities.” Hughes acknowledged that the complexities of modern society necessitated more intrusive regulation, even as he cautioned that an “ordered freedom” required enforcement of the federal Bill of Rights and its state counterparts “through the judgment of impartial and independent men, … placed in judicial tribunals and charged with the duty of enforcing the Constitution as the supreme law.”Footnote ¹⁶⁷ That Hughes received a standing ovation is a telling indication of the purchase of the new liberalism.

Indeed, just weeks after Hughes's address, over a dozen “American leaders” clamored to celebrate the principles of liberalism in a symposium in the American Hebrew. Politicians, journalists, and university presidents all eagerly identified as liberals. And though they quibbled over the details, a single thread ran through virtually all of the essays. The “intolerance which was running at flood tide a year ago has subsided,” wrote Arizona Governor George W. P. Hunt.Footnote ¹⁶⁸ “I could not do otherwise than believe that the salvation of Civilization is an open mind and tolerance, [and] I share this belief, I am certain, with every true American,” maintained Al Smith, explicitly invoking the United States Constitution.Footnote ¹⁶⁹ Smith College president William Allan Neilson made the same point more plainly. “This nation was founded upon the principles of freedom and toleration,” he reflected, “and the only true Americanism is fundamentally liberal.”Footnote ¹⁷⁰