This dissertation traces the emergence between World War I and World War II of a state-skeptical, court-centered, and content-neutral model of civil liberties in America. It argues that the new understanding drew from competing traditions of progressive reformism and conservative legalism. The American Civil Liberties Union reformulated those competing traditions, primarily through efforts to resist the cooptation and coercion of the working class by the capitalist state. More broadly, the dissertation suggests that the interwar civil liberties movement was an important architect of the post-New Deal constitutional order, which paired congressional regulation of the economy with judicial enforcement of state neutrality in the democratic decision-making process.
The ACLU’s initial theory of civil liberties derived from the principles of labor voluntarism. Its central commitment was to a “right of agitation,” bound up with the rights to picket, organize, and strike. In the early 1920s, however, economic prosperity and the resulting decline in industrial conflict opened space for the organization to venture into new fields and form new partnerships without reassessing its underlying commitment to radical laborite ideals. Although ACLU lawyers were initially skeptical of rights-based litigation, which they associated with the substantive due process decisions of the Lochner era, their successes in such areas as academic freedom and sex education attracted conservative proponents of individual rights and helped to rehabilitate the judiciary as a forum for progressive reform.
Over the course of the 1930s, a broad range of actors sought to define and mobilize civil liberties claims, including the La Follette Civil Liberties Committee, the American Bar Association’s Committee on the Bill of Rights, and the Civil Liberties Unit within the Department of Justice. The ACLU clashed with its labor and administration allies over New Deal labor legislation, the judiciary reorganization plan, and “employer free speech.” Conservatives, in turn, adopted the ACLU’s civil liberties rhetoric in support of their own agenda. By the late 1930s, the ACLU had traded in its open endorsement of radical social change for a politically neutral commitment to the Bill of Rights, embraced by the legal establishment and enforced by the federal courts.
Weinrib, Laura M., "The Liberal Compromise: Civil Liberties, Labor, and the Limits of State Power, 1917-1940" (2011). Other Publications. 4.