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November|December 2005
Fundamental Imports By Mark Tushnet
Second Look at the Second City By William Henderson
Elsewhere
Born on the Fourth of July By Murray Dry

Fundamental Imports

The European origins of American civil liberties (and the American Civil Liberties Union).

By Mark Tushnet

IN MARCH, THE SUPREME COURT struck down capital punishment for offenders who committed their crimes before the age of 18. The 5-4 decision provoked a dramatic reaction, less because of its result than because of Justice Anthony Kennedy's references to other nations' laws in support of his majority opinion.

But scholars on the right and the left have shown that supporting decisions with foreign law is hardly a novel practice. Influences from abroad have long shaped American law in ways that transcend the common law heritage that the United States shares with other nations. The historian Daniel Rodgers's important 1998 book, Atlantic Crossings, examined the wide-ranging effects that our reactions, positive and negative, to European developments have had on American social policy. Obvious examples in the law include the antislavery and women's suffrage movements, which were transnational through and through.

John Fabian Witt, a lawyer and legal historian on the faculty of Columbia Law School, uncovers a lesser-known experience in "Crystal Eastman and the Internationalist Beginnings of American Civil Liberties," an article recently published in the Duke Law Journal. According to Witt, the idea of civil liberties in the U.S. came from Europe. Witt makes his point through the complex story of Crystal Eastman, a social investigator, economist, and activist who helped found the American Civil Liberties Union in 1920.

Eastman studied economics at Columbia University with the celebrated John Bates Clark, a sentimental socialist who made major contributions to neo-classical economics and for whom the most prestigious award in contemporary U.S. economic scholarship is named. Eastman was at Columbia until 1904; she earned a law degree from New York University in 1907 but wasn't able to find an acceptable job as a lawyer.

She returned to one of her interests as a student, the empirical study of sociological and economic conditions, and participated in a major investigation of why industrial accidents were so prevalent. Her findings helped prompt New York and other states to adopt workers' compensation systems.

Eastman's studies led her to examine what European nations were doing about industrial accidents, and, as a result, she developed a cosmopolitan perspective on issues such as social insurance and women's suffrage. Her cosmopolitanism, Witt argues, deepened with the approach of World War I. The prospect of war generated an international peace movement, and Eastman joined the women's movement for peace in the U.S.

The theorists of the movement saw a world that had become, as many of us would now put it, globalized: Corporate operations, foreign investment, and the telegraph tied together the peoples of the world's nations. The response to globalization was then, as it is now, law. As Witt puts it, "American international lawyers adopted an often utopian exuberance," promoting new international courts and other institutions for world governance.

A faction of the peace theorists would try, as one said, to "substitut[e] law for war" on the international level. But they drew conclusions that would change domestic law as well. According to Witt, they believed that unrestrained national sovereignty generated the militarism that led to war. International institutions would restrain national sovereignty, and so would domestic constitutional law by limiting nations' ability to go to war.

WHAT DOES ALL THIS HAVE TO DO WITH CIVIL LIBERTIES? More than you might think, according to Witt. The nationalism that these cosmopolitans opposed came back to bite them during World War I. Peace activists could mouth off all they wanted to when nations were at peace. But they got into trouble agitating for peace when the U.S. was nearing war. Crystal Eastman, a member of the American branch of the international peace movement, became an antiwar activist, and was appointed the executive secretary of the American Union Against Militarism.

According to Witt, Eastman and other antiwar activists had to figure out how to carry on their advocacy of an international order in the militaristic atmosphere of America during World War I. "Civil liberties," Witt writes, "emerged as the solution." Full-bore advocacy of internationalism was impossible, but opposing what the American Union Against Militarism called the "extreme manifestations of militarism"—the suppression of opposition—was not. And so, according to Witt, civil liberties were born largely out of the antiwar movement. Initially a strategic choice, defending civil liberties quickly became a principled commitment, undertaken to ensure that peace activists would be able to get their message across yet generalized to address speech suppression of all sorts.

Roger Baldwin, in charge of the American Union's Civil Liberties Bureau, hived it off into a new organization, the American Civil Liberties Union, with Eastman on the ACLU executive committee. Witt points out that the new name was drawn from Europe, where the British National Council for Civil Liberties had been operating for a couple of years. In fact, the connections were even closer, because Walter Fuller, Eastman's second husband and a British subject, was a friend of the National Council's founders and later became its corresponding secretary. (Eastman had lost her U.S. citizenship when she married Fuller in 1916, pursuant to a law the Supreme Court found to be constitutional a year earlier.)

WITT'S ARTICLE IS IMPRESSIVE AND INGENIOUS, a model of scholarship in legal history. But what should those of us who aren't legal historians make of it?

Liberals taken by the idea that the Constitution ought to be interpreted with reference to internationally recognized human-rights norms might find interesting the identification of historical antecedents to their position. They might also find the antecedents valuable in defusing conservative attacks on the invocation of non-U.S. law in domestic constitutional law. And some conservatives might be disconcerted to learn that the idea of civil liberties is rooted in part in relatively recent European history.

Still, the links Witt draws between the international peace movement and the new civil liberties movement may be weaker than he suggests. Witt's article identifies connections between antiwar and civil liberties organizations, and among the individuals active in both. Proximity isn't causation, though, and it would be nice if the participants themselves—Eastman or Baldwin—had drawn the connection between their civil liberties commitments and their internationalist leanings. The closest we get are some statements, primarily from Baldwin, about the strategic necessity for civil liberties if internationalism is to succeed. That's something, but not enough, I think.

While it's important to observe that the peace movement that generated the free speech battles of World War I was an international movement, I'm unconvinced that the observation supports Witt's title, "Internationalist Beginnings," in any interesting way. There were other beginnings, too, and they were probably more important. In the 1997 book Free Speech in Its Forgotten Years, 1870-1920, Professor David Rabban of the University of Texas Law School told a different story about the emergence of free-speech protections during World War I. According to Rabban, in the late 19th century, a number of now obscure constitutional theorists like Theodore Schroeder began to explain why our Constitution required substantial protection of free expression. Some of the theorists were laissez-faire libertarians, others anticapitalist radicals who intuitively understood what journalist A.J. Liebling later made clear—that freedom of the press belongs to the person who owns one, and so the dispossessed need the First Amendment to ensure that their voices are heard.

Free speech theory began its slow transformation into free speech practice in the early 1900s, when the Industrial Workers of the World, also known as the Wobblies, engaged in a number of celebrated free speech battles. When a city's police attacked the Wobblies because they were organizing labor unions, the Wobblies cleverly mounted their defense, not in terms of the rights of workers to organize, but in terms of the Wobblies' right to speak. They went to jail in large numbers, but their failure as free speech practitioners didn't reduce their effect on free speech theory. Their battles were a recent memory when antiwar activists began to criticize U.S. involvement in World War I.

Witt touches lightly on another aspect of the story that deserves more attention. He describes how the concern for civil liberties displaced the interest of the U.S. branch of the international peace movement in, well, peace. Witt observes that in 1918, Baldwin said that protection of civil liberties was a "test of the highest type of loyalty," which, as Witt explains, meant "loyalty not to global citizenship or to the idea of world federation, but to self-consciously national ideals."

Eastman herself became the head of the New York chapter of the Women's Peace Party. This peace organization, later named the International League for Peace and Freedom, is still operating today, but with much less influence than the ACLU had on U.S. politics. An ironist might say that the organized defense of civil liberties actually weakened the peace movement from which it emerged and which it sought to shield from the state. According to Witt, Eastman and her internationalist colleagues believed that "the defense of civil liberties seemed a necessary precondition to the advancement of internationalism." Perhaps, but as it turned out, the defense of civil liberties did not precede the realization of that advancement.

CIVIL LIBERTIES BECAME THE NATIONALIST VEHICLE—the expression of American constitutionalism—in which cosmopolitans began to ride. And, even more, the idea of civil liberties became, at least for some today, a uniquely American contribution to constitutionalism. In observing that the "notions of justice" prevalent in the world community were "(thankfully) not always those of our people," Justice Antonin Scalia attributed to the U.S. Constitution values not shared beyond our borders. Whatever might be said of that proposition generally, Witt does show that the idea of civil liberties, and much of its present content, cannot be attributed to the framers of the U.S. Constitution.

Civil libertarians in the U.S. have begun to retrieve their internationalist heritage. The ACLU now includes international human rights on its "issues" list. Much of the energy that liberal law students used to devote to supporting civil liberties and civil rights now flows to Human Rights Watch and other organizations devoted to international human rights.

Witt's article shows that these students—and the Supreme Court—are returning to an old tradition. That tradition may be thinner than Witt contends, but his article reminds us that American constitutional law has never been immune to foreign influence.

Mark Tushnet is the Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center.

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