Faculty Bibliography
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This Essay draws on Jack Balkin’s The Cycles of Constitutional Time to evaluate the prospect of constitutional renewal through judicial review. It begins by questioning Balkin’s conclusion that historical change operates cyclically. It then addresses his assumption that courts have served as a source of constitutional renewal during some periods, including the mid-twentieth century. It argues that the Carolene Products regime that Balkin describes should be understood not as a solution to economic inequality and republican rot in a period of declining political polarization, but rather as a precipitating cause. Indeed, the New Deal settlement may have staved off durable change and thereby produced the seemingly cyclical pattern Balkin observes.
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In the formative years of the modern First Amendment, civil liberties lawyers struggled to justify their participation in a legal system they perceived as biased and broken. For decades, they charged, the courts had fiercely protected property rights even while they tolerated broad-based suppression of the “personal rights,” such as expressive freedom, through which peaceful challenges to industrial interests might have proceeded. This article focuses on three phases in the relationship between the American Civil Liberties Union (ACLU) and the courts in the period between the world wars: first, the ACLU’s attempt to promote worker mobilization by highlighting judicial hypocrisy; second, its effort to induce incremental legal reform by mobilizing public opinion; and third, its now-familiar reliance on the judiciary to insulate minority views against state intrusion and majoritarian abuses. By reconstructing these competing approaches, the article explores the trade-offs – some anticipated and some unintended – entailed by the ACLU’s mature approach.
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This essay explores Marc Blitzstein’s 1937 labor opera, The Cradle Will Rock, as an assault on legal legitimacy. Since its famous first production—a pared-down performance in which actors delivered their parts from the house, improvised when the WPA canceled the scheduled opening of the controversial project—critics have emphasized Cradle’s indebtedness to the German playwright Bertolt Brecht, to whom Blitzstein dedicated the work. Consistent with Brecht’s Verfremdungseffekt, Blitzstein distances the audience from Cradle’s characters, substituting rational understanding for unreflective empathy. Like Brecht, he employs this theatrical device to expose the cultural and economic underpinnings of familiar social practices, including capitalism. Imported to the US context, the Brechtian reimagining of theatrical conventions resonated with a corresponding attack on formal legal justice. At the height of the New Deal’s crisis of legal legitimacy, Cradle depicts a judicial system baldly beholden to wealth and property. The anti-union steel magnate at the show’s center bribes and manipulates journalists, professionals, and public officials to promote his concept of “liberty,” namely, freedom from organized labor. By amplifying the effects of economic interests on legal outcomes while undermining empathy with the characters who facilitate and legitimate repression, Cradle invites the audience to consider its own complicity in law’s injustice.
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This chapter argues that the congruity between the Capabilities Approach (CA) and the American labor movement’s ambitions and tactics has shifted over time. In the early twentieth century, labor activists embraced strong forms of social and economic pressure, rejected minimalism, and disavowed state intervention. Over the course of the twentieth century, however, the American administrative state actively structured the bargaining relationship between unions and employers, and unions surrendered much of their coercive power. In the new legal landscape, it may be plausible to ground labor law in the CA, which combines an emphasis on full equality of freedom of speech and association with support for a strong social safety net. This compatibility, however, is premised on the labor movement’s relinquishment of its most effective historical weapons. That is, the same modifications that have accommodated labor law to the CA have also eroded labor’s strength and accelerated its decline.
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This article argues that important antecedents of post-New Deal American liberalism emerged in response to the First Red Scare. As war hysteria gave way to patent antiradicalism, the pervasiveness of peacetime state-sponsored repression undermined progressive confidence in administrative governance and generated support for so-called personal rights. At the same time, the suppression of meaningful labor activity during the early 1920s buttressed conservative confidence in the judiciary and emboldened lawyers and business advocates to oppose state policing of putatively private beliefs. The result was increasing convergence around a new liberalism, defined against “intolerance,” which laid the groundwork for judicial enforcement of free speech and minority rights.
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This chapter for an edited volume on the relationship between law, disgust, and prejudice in social and political life explores the role of disgust in structuring class distinctions. It argues that disgust has often been an unarticulated basis for laws that denigrate and quarantine the poor, ranging historically from vagrancy and “unsightly beggar” laws to compulsory sterilization. It explores whether and how law might be used to dismantle the status-based stratification that exacerbates and legitimates disgust. Finally, it asks whether repudiating disgust is likely to facilitate or impede efforts to mitigate economic inequality. If the visceral force of disgust helps to naturalize social hierarchy, then exposing its effects as illegitimate might serve to spur structural reform. At the same time, the power of disgust to unsettle middle-class complacency has occasionally functioned as an impetus for legal and social change.
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Disgust plays a role in structuring social relationships across class lines. Revulsion and fear of contamination reinforce spatial separation and the stigmatization of poverty. Moreover, terms such as ‘white trash’ indicate that class-based disgust can operate in the absence of other markers of low social status for which poverty often serves as a proxy. Although class-based disgust is rarely the principal impetus for the legal regulation of wealth and social status, it has consistently contributed to laws that denigrate and segregate the poor. Meanwhile, the theoretical capacity of law to mitigate economic inequality and, by extension, status-based distinctions has helped to render social class a putatively permeable category that is denied heightened constitutional scrutiny. Building from these premises, this chapter considers whether law might be used to dismantle the status-based stratification that exacerbates and legitimates disgust and, more equivocally, whether disgust might in some situations be redeployed to spur legal and social change.
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This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade's upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.
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In the early decades of the twentieth century, business leaders condemned civil liberties as masks for subversive activity, while labor sympathizers denounced the courts as shills for industrial interests. But by the Second World War, prominent figures in both camps celebrated the judiciary for protecting freedom of speech. In this strikingly original history, Laura Weinrib illustrates how a surprising coalition of lawyers and activists made judicial enforcement of the Bill of Rights a defining feature of American democracy. The Taming of Free Speech traces our understanding of civil liberties to conflict between 1910 and 1940 over workers’ right to strike. As self-proclaimed partisans in the class war, the founders of the American Civil Liberties Union promoted a bold vision of free speech that encompassed unrestricted picketing and boycotts. Over time, however, they subdued their rhetoric to attract adherents and prevail in court. At the height of the New Deal, many liberals opposed the ACLU’s litigation strategy, fearing it would legitimize a judiciary they deemed too friendly to corporations and too hostile to the administrative state. Conversely, conservatives eager to insulate industry from government regulation pivoted to embrace civil liberties, despite their radical roots. The resulting transformation in constitutional jurisprudence―often understood as a triumph for the Left―was in fact a calculated bargain. America’s civil liberties compromise saved the courts from New Deal attack and secured free speech for labor radicals and businesses alike. Ever since, competing groups have clashed in the arena of ideas, shielded by the First Amendment.
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This article recovers the institutional alternatives to judicial enforcement of civil liberties during the New Deal. Based on archival research, it demonstrates that the court-based strategy was deeply contested and remained controversial well after the foundational First Amendment victories. Today, theories of civil liberties are premised on state neutrality in the domain of public debate; in the 1930s, the most prominent accounts demanded affirmative government intervention to correct distortions in the marketplace of ideas or to advance substantive rights. In examining these forgotten traditions, the article highlights the close and unexplored connection between civil liberties and organized labor during the New Deal. Surprisingly, early proponents of civil liberties understood the term to encompass, above all, the rights to organize, picket, and strike. Reconstructing the competing visions of civil liberties and their optimal enforcement before and after the “Constitutional Revolution” reveals the anticipated trade-offs of the judicial strategy, with important implications for theoretical accounts of constitutional change.
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This article examines the interwar expansion of the ACLU agenda to incorporate nonpolitical speech. In the early 1920s, it was ACLU policy to contest an obscenity regulation only if its underlying motivation was the suppression of disfavored political or economic views. By 1931, however, the ACLU was an aggressive advocate of artistic freedom and birth control and the undisputed leader of the anti-censorship campaign. The catalyst for change was a postal censorship dispute involving a sex education pamphlet, The Sex Side of Life: An Explanation for Young People, written by the former suffragist and outspoken birth control activist Mary Ware Dennett. Postal authorities declared the pamphlet obscene despite its many endorsements from medical practitioners, religious groups, and government agencies. ACLU board members agreed to defend The Sex Side of Life because they believed that liberalizing access to scientific knowledge promoted the public interest in a familiar progressive fashion and would highlight the dangers of suppressing subversive ideas. Unexpectedly, however, the litigation precipitated a far more sweeping anti-censorship campaign. Dennett’s heavily publicized conviction, overturned by the Second Circuit on appeal, generated popular hostility toward obscenity laws and convinced ACLU attorneys that speech should be protected regardless of its social value. With that shift, the ACLU inched closer toward a new model of civil liberties premised on individual expressive freedom.
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Drawing on John Witt's 2007 book, Patriots and Cosmopolitans: Hidden Histories of American Law, this essay explores the role of the interwar civil liberties movement in rehabilitating the discourse of rights and privatizing the American welfare state. In the years after World War I, most proponents of free speech were hostile to Lochner‐era legalism and preferred to pursue civil liberties through legislative and regulatory measures as a means of advancing the public interest. By the onset of World War II, however, they had instead adopted a court‐centered strategy that emphasized individual autonomy. The popular and political resonance of their new state‐skeptical vocabulary suggests that post‐New Deal liberalism in America was a hybrid of classical and Progressive approaches.
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Along with a translation of the five remaining Dachau-Kaufering issues, the book includes an extensive critical introduction. Nitotz is a tribute to the inspiring faith of those struggling for survival.
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