DP15: Individual Rights & Progressivism

Enforcement of Individual Rights

• The lecture discusses the enforcement of individual rights through federal courts, a development often called the Rights Revolution by 20th-century scholars.
• This is an outgrowth of progressivism, a complicated set of movements pushing for reform.
• World War I accelerated these progressive trends beyond expectations.
• Freedom of speech is a key area where this regulation begins.
• These trends shaped the 20th century and continue to influence reactions to developments like the administrative state.

Progressivism

• Progressivism involved a general reform drive among intellectuals and policymakers, aiming to address issues like corporate control and ethnic diversity.
• Reforms during this period varied widely, including those reinforcing or abolishing capitalism, and those supporting or opposing racial justice.
• Legal scholars criticized the idea of legal classicism, which focused solely on logic without considering social circumstances.
• Charles Beard, a progressive historian, argued in his 1913 book that the Constitution was designed to protect the wealth of its framers.
• Roscoe Pound aimed to incorporate sociological methods into the study of law.
• Progressives believed that society and economic interests shape the law, rejecting the notion of law as a neutral, disinterested entity.
• In the early 20th century, there was a struggle between progressives and conservatives on the courts, where conservatives generally prevailed.
• Lochner v. New York represents the classic target of progressives, challenging the unenumerated right to contract within the 14th Amendment's liberty interest, which hindered legislative reforms.

Miller v. Oregon and the Brandeis Brief

• Louis Brandeis, later a Supreme Court Justice, created a famous brief in Miller v. Oregon, which concerned maximum working hours for women in laundromats.
• Oregon sought to limit women's working hours in laundromats due to concerns about the heavy labor damaging their childbearing capabilities.
• Brandeis argued that international laws considered social impacts, agreeing that there was a right to contract protected by the 14th Amendment.
• Brandeis made an exception, arguing that the law's circumstances would damage women's childbearing capabilities, aligning with the government's paternalistic goals.
• The court was convinced by Brandeis's brief, creating a carve-out that provided special protection for women.
• This position would later be challenged by feminists, but it demonstrated that laws with demonstrably bad social effects could be limited in their application.
• This case foreshadowed future legal thinking, though Lochner was not overturned until the 1930s.

Progressive Reforms

• Progressive reforms aimed to make the government more democratic in some ways and less democratic in others.
• The 16th Amendment allowed for the direct election of senators, intending to reduce the influence of party bosses and economic interests.
• Many states adopted initiatives, allowing voters to propose legislation directly on the ballot if they couldn't achieve their goals through the legislature.
• Voter registration was ramped up to filter out certain voters.
• Executive agencies were established, staffed by experts, aiming to remove government from cronyism and patronage.
• This professionalization of government service also had the effect of filtering out ethnic minorities and people of color.
• Moral and social reforms included racial regulations, such as segregation, framed as a way to clean up elections.
• Efforts were made to enforce traditional gender roles, while some pushed for women's suffrage.
• Prohibition, an effort to ban alcohol nationwide, was a significant movement.
• Immigration was restricted through the National Origins Act, which established a quota system.
• Struggles to recognize labor rights and implement business regulations, such as antitrust laws, were ongoing.
• Teddy Roosevelt and William Taft pursued antitrust efforts, with Roosevelt later running against Taft for the Republican nomination in 1912, leading to a Democratic victory.
• Woodrow Wilson, a reform president, oversaw the passage of food safety laws, influenced by Upton Sinclair's "The Jungle," leading to the creation of the Pure Food and Drug Administration and inspection regimes.
• The Federal Reserve System was established as a robust independent agency.
• Congress set broad regulatory strokes implemented by government agencies, a trend that would fully develop in the 1930s.
• These experts were somewhat removed from the electoral process but engaged with interested parties and gathered public comments.
• There are arguments that this system took legislation away from the control of the people due to its insulation from elections and partisan politics.

World War I

• World War I began in Europe due to building tensions.
• A network of secret alliances connected European powers.
• Nationalist tensions, particularly in the Baltics, were present.
• A Serbian terrorist assassinated Archduke Ferdinand, leading Austria to declare war on Serbia.
• The complex web of alliances subsequently led to declarations of war between major European powers, plunging Europe into a four-year war.
• The United States initially tried to remain neutral to protect its relations and trade with both Germany and England.
• British war strategy involved blockades, complicating trade with Germany.
• Germany resorted to submarine warfare, which violated naval warfare rules requiring warning shots before sinking ships.
• Submarines could not surface to give warning because they would be vulnerable.
• The sinking of ships with American citizens and Germany's unrestricted submarine warfare led the United States to join the war on the side of the Allies.

Wilson's War Powers

• Upon entering the war, President Wilson exercised significant power under his war powers.
• He took over the railroads to ensure efficient transport of supplies, addressing bottlenecks and disorganization that were hindering the war effort.
• A draft was instituted to build up military forces, without exemptions for conscientious objectors.
• Wilson instituted the Lever Act to regulate agriculture to increase production for the war effort.
• The executive branch was reorganized to improve efficiency.
• Wilson sought to shape foreign policy and the peace process, advocating for freedom of the seas, national self-determination, and the League of Nations.
• The Treaty of Versailles blamed Germany for the war and required it to pay reparations.
• The United States refused to join the League of Nations, as Republicans feared it would undermine American sovereignty.
• Wilson campaigned against Republican senators who opposed him, leading to the treaty's defeat and a separate peace treaty between the U.S. and Germany.
• Wilson suffered a stroke and was unable to steer domestic issues.

Freedom of Speech

• Before World War I, federal courts generally did not regulate speech.
• In the 19th century, constitutional law primarily concerned the balance of authority between state and federal powers.
• In the 20th century, the focus shifted to protecting individual rights, beginning with freedom of speech issues.
• Patterson v. Colorado involved a newspaper sued for publishing a cartoon accusing the Colorado Supreme Court of partisanship.
• The state argued that the cartoon would undermine confidence in the government.
• Oliver Wendell Holmes Jr. wrote the opinion, stating that the First Amendment did not apply to the states, dismissing the case.
• Holmes applied the bad tendency test, derived from Blackstone's commentaries, which allowed punishment for speech with potentially harmful consequences.
• John Marshall Harlan argued that the First Amendment should apply.

Shift in Free Speech Regulation

• The labor movement argued for the right to speak about strike activity and criticize employers.
• The Wilson administration passed the Espionage Act and the Sedition Act, criminalizing speech against the draft and discouraging enlistment.
• These acts broadly restricted speech, including criticisms of the war effort and advocating for peace.
• The Masses, a leftist publication, was tried under the Sedition Act for publishing cartoons critical of the war.
• The Russian Revolution created a fear of communist infiltration, leading to continued crackdowns.
• The Red Scare was a response to bombings and fears of radicalism.
• Holmes began to shift away from the bad tendency test.

Landmark Free Speech Cases

• In 1919, a series of cases, including United States v. Schenck, United States v. Abrams, and Debs v. United States, addressed free speech issues.
• In Schenck, socialists distributed literature discouraging the draft, arguing it violated freedom of speech and assembly.
• Holmes, writing for a unanimous court, introduced the clear and present danger test, requiring speech to pose an immediate threat to warrant regulation.
• Holmes argued that speech intended to undermine the war effort could be regulated, similar to yelling fire in a crowded theater.
• The court often applied the bad tendency doctrine while invoking the clear and present danger test.
• Eugene Debs, a socialist candidate, was jailed for criticizing the war, sparking debate.
• Critics like Zechariah Chafee, Ernest Freund, and Learned Hand argued for greater protection of speech, influencing Holmes.

Holmes's Shift

• Holmes shifted his views in 1920s cases like United States v. Abrams, involving Russian socialists distributing leaflets against intervention in Russia.
• Holmes dissented, arguing that the leaflets posed no clear and present danger and that a "marketplace of ideas" was necessary.
• Brandeis joined the dissent, emphasizing the need for space to criticize the government.
• In Gilbert v. Minnesota, Brandeis dissented against a state sedition law that broadly restricted speech against the war, arguing it jeopardized speech, religious conscience, and that the First Amendment should apply to the states.
• Brandeis emphasized the need for robust protections for speech and religion.
• As the Supreme Court became more willing to apply the Bill of Rights against the states, the doctrine of incorporation gained importance.
• Progressivism introduced new concerns into legal thought, gradually influencing the courts.