The administrative origins of modern civil liberties law

Columbia Law Review

Volumn 114, Issue 5, 2014, Pages 1083-1166

  Kessler, Jeremy K ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84903437310     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (462)

1. Throughout this Article, "Progressive" indicates a multigenerational network of American individuals, ideas, and institutions prominent from the 1880s to the 1930s. The common feature of this network was a belief that new organizations of public power should and could resolve the challenge to social stability posed by economic, ethnic, and religious difference. See generally Eldon J. Eisenach, The Lost Promise of Progressivism 25-29 (1994);
2. Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy 33-39 (1992);
3. Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age 12-17 (1998)
4. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906-1926, at 23-24 (2002)
5. William E. Forbath, Politics, State-Building, and the Courts, 1870-1920, in 2 The Cambridge History of Law in America 643, 643-96 (Michael Grossberg & Christopher Tomlins eds., 2008). The major disagreements within the Progressive network involved the scale and structure of public power-whether public power should be organized at the level of workplaces, communities, cities, states, or the nation itself, and whether it should take legislative, executive, or judicial form. See, e.g., Daniel R. Ernst, Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894-1932, 23 Stud. Am. Pol. Dev. 171, 171-88 (2009) [hereinafter Ernst, American Rechtsstaat]
6. William E. Forbath, Caste, Class, and Citizenship, 98 Mich. L. Rev. 1, 51-57 (1999) [hereinafter Forbath, Caste, Class, and Citizenship].
7. Stephen Skowronek, The Conservative Insurgency and Presidential Power: A Development Perspective on the Unitary Executive, 122 Harv. L. Rev. 2070, 2087 (2009).
8. See, e.g., Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 65-74, 82-83 (1991) (describing Progressives' skepticism of individual rights claims)
9. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
10. John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American Law 157 (2007) (identifying "[p]uzzle of American Civil Liberties" as recurrent question in academic literature).
11. E.g., Robert Cottrell, Roger Nash Baldwin and the American Civil Liberties Union 49-50 (2000) (arguing "modern civil liberties movement" was defensive response to government action)
12. See, e.g., Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 65-74, 82-83 (1991) (describing Progressives' skepticism of individual rights claims)
13. Donald Johnson, The Challenge to American Freedoms: World War I and the Rise of the American Civil Liberties Union 197 (1963) (interpreting civil liberties movement as response to "coercive" character of wartime "federal government")
14. Paul L. Murphy, World War I and the Origin of American Civil Liberties in the United States 25-31 (1979)
15. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
16. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime 230 (2004) [hereinafter Stone, Perilous Times]
17. Samuel Walker, In Defense of American Liberties: A History of the ACLU 37-47 (1990)
18. John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American Law 157 (2007) (identifying "[p]uzzle of American Civil Liberties" as recurrent question in academic literature).
19. G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth Century America, 95 Mich. L. Rev. 299, 312-14 (1996) [hereinafter White, Emergence of Free Speech].
20. This argument is indebted to a group of legal scholars who have previously noted a positive relationship between civil libertarianism and state building in early twentiethcentury America. Such a positive relationship is clearest in the context of the labor movement, where administrative agencies and congressional committees rather than courts came to be seen as the best guardians of workers' associational and expressive rights. See Jerold S. Auerbach, Labor & Liberty: The La Follette Committee and the New Deal 8-11 (1966) (describing use of executive and legislative coercion to vindicate workers' civil liberties)
21. William E. Forbath, Law and the Shaping of the American Labor Movement 139-66 (1991) [hereinafter Forbath, Law and Shaping] (tracking positive and negative accounts of civil liberties law in the context of labor politics)
22. Laura Weinrib, From Public Interest to Private Rights: Free Speech, Liberal Individualism, and the Making of Modern Tort Law, 34 Law & Soc. Inquiry 187, 201 (2009) [hereinafter Weinrib, Public Interest to Private Rights] (describing how interwar civil-libertarian leaders sympathetic to labor "sought to use government affirmatively to advance their free speech agenda")
23. Laura Weinrib, The Liberal Compromise: Civil Liberties, Labor, and the Limits of State Power, 1917-1940 (May 2011) [hereinafter Weinrib, Liberal Compromise (unpublished Ph.D. dissertation, Princeton University) (on file with the Columbia Law Review) (tracing intersection of civil libertarianism and labor politics and shifting positive and negative accounts of civil liberties law). While Laura Weinrib focuses on nongovernmental actors centered at the American Civil Liberties Union, this Article turns to wartime public officials who embraced civil libertarianism as both a goal and a method of governance. Ken Kersch similarly focuses on governmental actors, arguing that, beginning in the early twentieth century, public officials invoked civil liberties to legitimate their regulatory efforts.
24. Ken Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law 338-41, 359-61 (2004).
25. William J. Novak, The Legal Origins of the Modern American State, in Looking Back at Law's Century 249, 265 (Austin Sarat, Bryant Garth & Robert A. Kagan eds., 2002). Significantly expanding on Novak's theme, Karen Tani has argued that administrative provision of welfare rights during the New Deal functioned as a "language of the state"-a language that marked both local bureaucrats and regulated individuals as national citizens.
26. See Karen M. Tani, Welfare and Rights Before the Movement: Rights as a Language of the State, 122 Yale L.J. 314, 321-23 (2012) ("Government-issued rights language, trickling down from federal administrators to local welfare workers, helped central-state authority expand into new domains" and "marked poor individuals-still accustomed to thinking of themselves as state and local subjects-as citizens of a beneficent nation-state"). In such a language, rights do not delineate a sphere beyond the state, but serve to recommit all Americans to the fashioning of a democratic and interdependent national polity. Id. at 383 ("To speak in the language of rights. is to speak to central-state power in a shared language, a language that historically has bypassed state and local intermediaries to demand the perquisites of national citizenship. "). This Article develops Tani's important insight in two ways. First, it traces the use of individual rights as a method of state building back to the supposedly rights-skeptical Progressive era-particularly the years of World War I-when the administrative theorists and practitioners who would shape the New Deal first took power. While Tani notes that New Deal welfare rights were an effort to continue "progressive" reform, she does not provide a more detailed genealogy.
27. Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399, 402, 413 (2007) (describing New Dealers as "descendants" of "Progressive" administrative reformers). Second, this Article identifies the provision of specifically civil-libertarian rights as a critical aspect of state building. Between this Article's World War I-era administrative civil libertarians and Tani's New Deal administrators, Reuel Schiller provides a critical historical bridge, documenting how the "constitutional protection of freedom of expression was subsumed under administrative law" during the interwar period.
28. Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 Va. L. Rev. 1, 21-22 (2000) [hereinafter Schiller, Free Speech and Expertise]. Schiller attributes administrative autonomy in the realm of freedom of expression to the Proressives' faith in expertise.
29. Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 556-58 (2007) [hereinafter Desai, Wiretapping] ("The constitutional principle [of communications privacy] was not rooted in the Fourth Amendment in abstract, textual, or even historical terms; rather, it was a principle deeply embedded in the history of the post office. "). Crucial to Desai's argument is the insight that the libertarian character of the Post Office advanced governmental interests.
30. Both Richard Steele and Geoffrey Stone have noted that John Lord O'Brian, head of the Justice Department's War Emergency Division, advocated for a nuanced prosecution of dissent during the war and opposed both local vigilantism and the excesses of military intelligence officials. Richard W. Steele, Free Speech in the Good War 5-7 (1999)
31. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime 230 (2004) [hereinafter Stone, Perilous Times]
32. Peter H. Irons, "Fighting Fair": Zechariah Chafee, Jr., the Department of Justice, and the "Trial at the Harvard Club, " 94 Harv. L. Rev. 1205, 1219-20 (1981) ("Labor Department officials. began to seek a way to block the deportation of all but 'conscious' members of the Communist Party, thus freeing those who had joined the Party without knowledge of its revolutionary doctrines. "). See generally Louis F. Post, The Deportations Delirium of Nineteen-Twenty (1923) (narrating author's experience during Red Scare).
33. See generally Louis F. Post, The Deportations Delirium of Nineteen-Twenty (1923) (narrating author's experience during Red Scare).
34. Selective Service Act of 1917, ch. 15, § 4, 40 Stat. 76, 78-80, repealed by Act June 15, 1917, ch. 29, § 4, 40 Stat. 217, 217 (providing compulsory military service should cease four months after proclamation of peace by President)
35. see also 1 U.S. Selective Serv. Sys., Special Monograph No. 11, Conscientious Objection 49 (1950) ("In this war, conscription became personal, universal, and absolute; there was no provision whatsoever for the hiring of a substitute or the paying of a commutation fee. "). For the importance of the war, and the draft in particular, to state building
36. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
37. Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, at 294 (2013) ("The Great War. was a watershed event in the consolidation of the modern American fiscal state. ")
38. William E. Leuchtenburg, The New Deal and the Analogue of War, in Change and Continuity in Twentieth-Century America 81, 81-143 (John Braeman, Robert H. Bremner & Everett Walters eds., 1964) (describing how New Deal state-builders drew on experience and rhetoric of World War I-driven administrative development)
39. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
40. see Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen 210 (2008)
41. The Act stated: [N]othing in this Act. shall be construed to require. any person to serve in [the armed forces] who is found to be a member of any well-recognized religious sect or organization at present organized and existing and whose existing creed or principles forbid its members to participate in war. but no person so exempted shall be exempted from service in any capacity that the President shall declare to be noncombatant. Selective Service Act § 4, 40 Stat. at 78.
42. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
43. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
44. See, e.g., Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 65-74, 82-83 (1991) (describing Progressives' skepticism of individual rights claims)
45. See, e.g., Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 65-74, 82-83 (1991) (describing Progressives' skepticism of individual rights claims)
46. Daniel R. Ernst, Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915-1943, 11 Law & Hist. Rev. 59, 62-79 (1993) [hereinafter Ernst, Common Laborers] (contrasting approaches to group autonomy taken by industrial pluralists and legal realists). The pluralism espoused by the Progressive administrators discussed here was very much of the latter kind, interested in the role that individual citizens-in all of their political and cultural diversity-played in shaping the state and securing the public interest.
47. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
48. For the language of self-determination, see Press Release, Comm. on Pub. Info., Immediate Release (Sept. 28, 1918) [hereinafter Immediate Release, Comm. on Pub. Info.], reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919
49. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
50. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
51. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
52. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
53. For class conflict, see Shelton Stromquist, Reinventing "The People": The Progressive Movement, the Class Problem, and the Origins of Modern Liberalism 165-90 (2006) (describing impact of class conflict on Progressive movement)
54. See, e.g., Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 65-74, 82-83 (1991) (describing Progressives' skepticism of individual rights claims)
55. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906-1926, at 23-24 (2002)
56. Robert Wiebe, The Search for Order, 1877-1920, at 44-132 (1967) (describing bureaucratic response to pluralism). For international rivalry
57. Alan Dawley, Changing the World: American Progressives in War and Revolution 181-216 (2003)
58. Throughout this Article, "Progressive" indicates a multigenerational network of American individuals, ideas, and institutions prominent from the 1880s to the 1930s. The common feature of this network was a belief that new organizations of public power should and could resolve the challenge to social stability posed by economic, ethnic, and religious difference. See generally Eldon J. Eisenach, The Lost Promise of Progressivism 25-29 (1994);
59. Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age 12-17 (1998)
60. Robert B. Westbrook, John Dewey and American Democracy 195-227 (1991) (describing Progressive split due to World War I).
61. Robert B. Westbrook, John Dewey and American Democracy 195-227 (1991) (describing Progressive split due to World War I).
62. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
63. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
64. Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, at 294 (2013) ("The Great War. was a watershed event in the consolidation of the modern American fiscal state. ")
65. Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, at 294 (2013) ("The Great War. was a watershed event in the consolidation of the modern American fiscal state. ")
66. Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, at 294 (2013) ("The Great War. was a watershed event in the consolidation of the modern American fiscal state. ")
67. Charles Chatfield, For Peace and Justice: Pacifism in America, 1914-1941, at 70-76 (1971)
68. Ronald B. Flowers, To Defend the Constitution: Religion, Conscientious Objection, Naturalization, and the Supreme Court 68-72 (2003); 1 Kent Greenawalt, Religion and the Constitution 50 (2006);
69. Kent Greenawalt, Religion and the Constitution 50 (2006)
70. Donald Johnson, The Challenge to American Freedoms: World War I and the Rise of the American Civil Liberties Union 197 (1963) (interpreting civil liberties movement as response to "coercive" character of wartime "federal government")
71. Paul L. Murphy, World War I and the Origin of American Civil Liberties in the United States 25-31 (1979)
72. Michael J. Davidson, War and the Doubtful Soldier, 19 Notre Dame J.L. Ethics & Pub. Pol'y 91, 130 (2005) (noting briefly expanded Army policy in World War I allowed exemptions for nonreligious objection)
73. Louis Fisher, Nonjudicial Safeguards for Religious Liberty, 70 U. Cin. L. Rev. 31, 53-56 (2001) (noting though scope of conscientious objectors remained limited through World War I, Congress began to entertain ideas of broader exemptions);
74. Kent Greenawalt, All or Nothing at All: The Defeat of Selective Conscientious Objection, 1971 Sup. Ct. Rev. 31, 35-36 (summarizing 1917 conscientious-objector law).
75. Such individualized involvement was thought to serve normative and functional imperatives: As administered subjects both persuaded and informed expert administrators, administrative decisionmaking would become more democratic and more effective. In contrast to contemporary civic-republican theorists of administration, Progressives embraced administrative expertise as a necessary and legitimate bridge between individual diversity and a synthetic public interest. See Note, Deweyan Democracy and the Administrative State, 125 Harv. L. Rev. 580, 589-90 & n.57 (2011) (comparing civicrepublican and Progressive evaluations of role of administrators)
76. Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 Va. L. Rev. 1, 21-22 (2000) [hereinafter Schiller, Free Speech and Expertise]. Schiller attributes administrative autonomy in the realm of freedom of expression to the Proressives' faith in expertise.
77. Charles Sabel, Dewey, Democracy and Democratic Experimentalism, Contemp. Pragmatism, Dec. 2012, at 35, 44-45 (arguing for broad goals-based lawmaking informed by administrative expertise)
78. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 93 (2011) (advocating for experimentalist administrative regimes "that try to combine accountability with local initiative in ways that facilitate learning and individuation")
79. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 93 (2011) (advocating for experimentalist administrative regimes "that try to combine accountability with local initiative in ways that facilitate learning and individuation")
80. Blake Emerson, Critical Bureaucracy: The Communicative Power of the Equal Employment Opportunity Commission 4 (2011) (unpublished manuscript), available at http://digitalcommons.law. yale.edu/ylsspps_papers/68 (on file with the Columbia Law Review) (arguing Equal Employment Opportunity Commission "enacted deliberative democracy through their bureaucratic practices"). This Article contributes to the contemporary recovery of earlytwentieth-century administrative and democratic theory by identifying an account of civil libertarianism that emerged in concert with that theory, and remains consistent with it. For further discussion of the theory of democratic participation that motivated both administrative civil libertarianism in particular and Progressive administration generally
81. See, e.g., William E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980, at 121-37 (2001) (discussing antitotalitarian roots of modern civil liberties and civil rights jurisprudence)
82. See, e.g., William E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980, at 121-37 (2001) (discussing antitotalitarian roots of modern civil liberties and civil rights jurisprudence)
83. Richard A. Primus, The American Language of Rights 177-97 (1999) (describing foundation of rights discourse in opposition to Nazi Germany and Soviet Union)
84. Howard Gillman, Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence, 47 Pol. Res. Q. 623, 649 (1994) (arguing judges developed tradition addressing "threats to civil liberties posed by the rise of the modern state" by "mitigating [its] totalitarian impulses")
85. Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 Va. L. Rev. 1, 21-22 (2000) [hereinafter Schiller, Free Speech and Expertise]. Schiller attributes administrative autonomy in the realm of freedom of expression to the Proressives' faith in expertise.
86. John W. Wertheimer, A "Switch in Time" Beyond the Nine: Historical Memory and the Constitutional Revolution of the 1930s, in 53 Studies in Law, Politics and Society 3, 13-15 (Austin Sarat ed., 2010) (describing transformation in American legal culture in response to totalitarianism)
87. Laura Weinrib, The Liberal Compromise: Civil Liberties, Labor, and the Limits of State Power, 1917-1940 (May 2011) [hereinafter Weinrib, Liberal Compromise (unpublished Ph.D. dissertation, Princeton University) (on file with the Columbia Law Review) (tracing intersection of civil libertarianism and labor politics and shifting positive and negative accounts of civil liberties law). While Laura Weinrib focuses on nongovernmental actors centered at the American Civil Liberties Union, this Article turns to wartime public officials who embraced civil libertarianism as both a goal and a method of governance. Ken Kersch similarly focuses on governmental actors, arguing that, beginning in the early twentieth century, public officials invoked civil liberties to legitimate their regulatory efforts.
88. This argument is indebted to a group of legal scholars who have previously noted a positive relationship between civil libertarianism and state building in early twentiethcentury America. Such a positive relationship is clearest in the context of the labor movement, where administrative agencies and congressional committees rather than courts came to be seen as the best guardians of workers' associational and expressive rights. See Jerold S. Auerbach, Labor & Liberty: The La Follette Committee and the New Deal 8-11 (1966) (describing use of executive and legislative coercion to vindicate workers' civil liberties)
89. Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 Va. L. Rev. 1, 21-22 (2000) [hereinafter Schiller, Free Speech and Expertise]. Schiller attributes administrative autonomy in the realm of freedom of expression to the Proressives' faith in expertise.
90. Jeremy K. Kessler, "Calculations of Liberalism": John W. Davis and the Crisis of Civil Libertarianism in the 1930s, at 5-34 (Mar. 2014) [hereinafter Kessler, Calculations of Liberalism] (unpublished manuscript) (on file with the Columbia Law Review) (noting relationship between civil libertarianism and state building in early 1930s)
91. Jeremy K. Kessler, The Civil Libertarian Conditions of Conscription 5-17, 34--38 (Jan. 2014) [hereinafter Kessler, Civil Libertarian Conditions] (unpublished manuscript) (on file with the Columbia Law Review) (describing emergence of antistatist vision of civil liberties law)
92. Laura Weinrib, Civil Liberties Enforcement and the New Deal State 4-21, 26--34 (n.d.) [hereinafter Weinrib, Civil Liberties Enforcement] (unpublished manuscript) (on file with the Columbia Law Review) (describing relationship between civil liberties and federal government in 1930s).
93. Gillian E. Metzger, Administrative Constitutionalism, 91 Tex. L. Rev 1897, 1901 (2013) [hereinafter Metzger, Administrative Constitutionalism].
94. Gillian E. Metzger, Administrative Constitutionalism, 91 Tex. L. Rev 1897, 1901 (2013) [hereinafter Metzger, Administrative Constitutionalism].
95. Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 556-58 (2007) [hereinafter Desai, Wiretapping] ("The constitutional principle [of communications privacy] was not rooted in the Fourth Amendment in abstract, textual, or even historical terms; rather, it was a principle deeply embedded in the history of the post office. "). Crucial to Desai's argument is the insight that the libertarian character of the Post Office advanced governmental interests.
96. Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 556-58 (2007) [hereinafter Desai, Wiretapping] ("The constitutional principle [of communications privacy] was not rooted in the Fourth Amendment in abstract, textual, or even historical terms; rather, it was a principle deeply embedded in the history of the post office. "). Crucial to Desai's argument is the insight that the libertarian character of the Post Office advanced governmental interests.
97. Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559, 1594-98 (2007) (describing how "secrecy" compounds dangers of constitutional decision-making by executive actors)
98. Gillian E. Metzger, Administrative Constitutionalism, 91 Tex. L. Rev 1897, 1901 (2013) [hereinafter Metzger, Administrative Constitutionalism].
99. Anjali Dalal, Administrative Constitutionalism and the Re-Entrenchment of Surveillance Culture 7, 14-23, 28 (Mar. 4, 2013) (unpublished manuscript), available at http://ssrn.com/abstract=2236502 (on file with the Columbia Law Review) (describing how "intelligence gathering culture centered on secrecy of process" contributed to entrenchment of pro-executive First Amendment norms).
100. Gillian E. Metzger, Administrative Constitutionalism, 91 Tex. L. Rev 1897, 1901 (2013) [hereinafter Metzger, Administrative Constitutionalism].
101. Joseph P. Lash, A Brahmin of the Law: A Biographical Essay, in From the Diaries of Felix Frankfurter 21 (Joseph P. Lash ed., 1975). Though there is nothing inaccurate in Lash's description, Frankfurter's memorandum was far more detailed and legally nuanced than Lash suggests. Several other biographers neglect to mention the memorandum altogether.
102. H.N. Hirsch, The Enigma of Felix Frankfurter (1981)
103. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
104. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
105. See C.H. Cramer, Newton D. Baker: A Biography 49-56, 190-93 (1961) (chronicling Baker's accomplishments as mayor and work for National Consumers League).
106. E.g., Robert Cottrell, Roger Nash Baldwin and the American Civil Liberties Union 49-50 (2000) (arguing "modern civil liberties movement" was defensive response to government action)
107. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
108. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
109. Charles Chatfield, For Peace and Justice: Pacifism in America, 1914-1941, at 70-76 (1971)
110. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
111. Jack C. Lane, Armed Progressive: General Leonard Wood 197-201 (1978) (describing Wood's support for universal military training)
112. Jack McCallum, Leonard Wood: Rough Rider, Surgeon, Architect of American Imperialism 264-66 (2006) (explaining Wood's efforts to prepare nation for possibility of war).
113. John Milton Cooper, Jr., The Warrior and the Priest: Woodrow Wilson and Theodore Roosevelt 303-23 (1983) (discussing contentious relationship between Wilson and Roosevelt prior to American entry into World War I).
114. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
115. Wilson and Baker also demoted Major General Leonard Wood, Roosevelt's chief ally on active duty, assigning him to training camps and ensuring that he would not hold a command in Europe. Daniel R. Beaver, Newton D. Baker and the American War Effort: 1917-1919, at 41-43 (1966).
116. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
117. Increase of Military Establishment: Hearings on the Bill Authorizing the President to Increase Temporarily the Military Establishment of the United States Before the H. Comm. on Military Affairs, 65th Cong. 7 (1917) (statement of Newton D. Baker, Sec'y, U.S. Dep't of War).
118. see Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen 210 (2008)
119. E.g., Robert Cottrell, Roger Nash Baldwin and the American Civil Liberties Union 49-50 (2000) (arguing "modern civil liberties movement" was defensive response to government action)
120. John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American Law 157 (2007) (identifying "[p]uzzle of American Civil Liberties" as recurrent question in academic literature).
121. Louisa Thomas, Conscience: Two Soldiers, Two Pacifists, One Family-A Test of Will and Faith in World War I, at 159 (2011) [hereinafter Thomas, Conscience].
122. Letter from Jane Addams et al., Am. Union Against Militarism, to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (Apr. 12, 1917) (on file with the Columbia Law Review).
123. Throughout this Article, "Progressive" indicates a multigenerational network of American individuals, ideas, and institutions prominent from the 1880s to the 1930s. The common feature of this network was a belief that new organizations of public power should and could resolve the challenge to social stability posed by economic, ethnic, and religious difference. See generally Eldon J. Eisenach, The Lost Promise of Progressivism 25-29 (1994);
124. Letter from Newton D. Baker, Sec'y, U.S. Dep't of War, to Jane Addams, Am. Union Against Militarism 1 (Apr. 12, 1917) (on file with the Columbia Law Review).
125. E.g., Robert Cottrell, Roger Nash Baldwin and the American Civil Liberties Union 49-50 (2000) (arguing "modern civil liberties movement" was defensive response to government action)
126. John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American Law 157 (2007) (identifying "[p]uzzle of American Civil Liberties" as recurrent question in academic literature).
127. Louisa Thomas, Conscience: Two Soldiers, Two Pacifists, One Family-A Test of Will and Faith in World War I, at 159 (2011) [hereinafter Thomas, Conscience].
128. E.g., Robert Cottrell, Roger Nash Baldwin and the American Civil Liberties Union 49-50 (2000) (arguing "modern civil liberties movement" was defensive response to government action)
129. 55 Cong. Rec. 928 (1917) (statement of Sen. James Brady) (quoting letter from Norman Thomas explaining objectors "are not cowards and are very eager to serve society").
130. See Letter from Jane Addams, Am. Union Against Militarism, to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (Apr. 27, 1917) (on file with the Columbia Law Review) (detailing AUAM support for imperiled amendments).
131. 55 Cong. Rec. 1528 (1917) (statement of Rep. Edward Keating) (proposing amendment exempting from service "any person who is conscientiously opposed to engaging in such service").
132. See Beverly Gage, The Day Wall Street Exploded: A Story of America in Its First Age of Terror 2-3 (2009) (describing rise of reform and militant movements between 1890-1920, leading to "'civil war' between capital and labor")
133. Joseph A. McCartin, Labor's Great War: The Struggle for Industrial Democracy and the Origins of Modern American Labor Relations, 1912-1921, at 40 (1997) (noting factors contributing to 1917 labor unrest "accentuated what Secretary of Labor [William Bauchop] Wilson called the 'traditional cleavages between employers and wage earners'").
134. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
135. Nat'l Civil Liberties Bureau, The Facts About Conscientious Objectors in the United States 7 (1918), available at http://debs.indstate.edu/a505f3_1918.pdf (on file with the Columbia Law Review) ("[T]he local and district boards may grant special certificates, exempting from combatant service, men who are members of religious sects or organizations recognized by the boards. [The certificate] authorizes exemption from actual combatant service when drafted.").
136. Letter from Newton D. Baker, Sec'y, U.S. Dep't of War, to Jane Addams, Am. Union Against Militarism 1 (Apr. 29, 1917) (on file with the Columbia Law Review).
137. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
138. Letter from Newton D. Baker, Sec'y, U.S. Dep't of War, to Jane Addams, Am. Union Against Militarism 1 (Apr. 29, 1917) (on file with the Columbia Law Review).
139. see also James McDermott, British Military Service Tribunals, 1916-1918, at 36-58 (2011) (reviewing difficulties British tribunals faced in implementing conscientiousobjection legislation)
140. John Rae, Conscience and Politics: The British Government and the Conscientious Objector to Military Service 1916-1919, at 117-28 (1970) (describing British tribunals' resistance to more accommodating implementation of objection legislation).
141. President Calls the Nation to Arms
142. Draft Bill Signed
143. Registration on June 5; Regulars Under Pershing to Go to France, N.Y. Times, May 19, 1917, at 1.
144. Letter from Newton D. Baker, Sec'y, U.S. Dep't of War, to Jane Addams, Am. Union Against Militarism 1 (Apr. 29, 1917) (on file with the Columbia Law Review).
145. E.g., Robert Cottrell, Roger Nash Baldwin and the American Civil Liberties Union 49-50 (2000) (arguing "modern civil liberties movement" was defensive response to government action)
146. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
147. Letter from Felix Frankfurter, Professor, Harvard Law Sch., to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (Feb. 6, 1917) (on file with the Columbia Law Review).
148. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906-1926, at 23-24 (2002)
149. H.N. Hirsch, The Enigma of Felix Frankfurter (1981)
150. See Ralph Hayes, Third Assistant Secretary of War, in Appreciations of Frederick Paul Keppel by Some of His Friends 17, 19 (1951) (describing Keppel's decision to join War Department).
151. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
152. The Espionage Act outlawed, among other actions, willful attempts to "obstruct the recruiting or enlistment service of the United States. " Espionage Act of 1917, ch. 30, § 3, 40 Stat. 217, 219 (codified as amended at 18 U.S.C. §§ 793-799 (2012). For a recent study of the Act's passage and enforcement, see Stone, Perilous Times, supra note 3, at 146-82.
153. Charles Chatfield, For Peace and Justice: Pacifism in America, 1914-1941, at 70-76 (1971)
154. Donald Johnson, The Challenge to American Freedoms: World War I and the Rise of the American Civil Liberties Union 197 (1963) (interpreting civil liberties movement as response to "coercive" character of wartime "federal government")
155. Statement from the Am. Union Against Militarism 1 (May 23, 1917) (on file with the Columbia Law Review).
156. Memorandum from Oswald Garrison Villard, Bd. Member, Am. Union Against Militarism 1 (May 25, 1917) (on file with the Columbia Law Review).
157. David A. Lockmiller, Enoch H. Crowder: Soldier, Lawyer and Statesman 116, 140 (1955).
158. Letter from Roger N. Baldwin, Sec'y, Am. Union Against Militarism, to Frederick Keppel, Third Assistant Sec'y, U.S. Dep't of War 1 (June 2, 1917) (on file with the Columbia Law Review).
159. Letter from Roger N. Baldwin, Sec'y, Am. Union Against Militarism, to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (June 15, 1917) (on file with the Columbia Law Review).
160. Memorandum of Interview with Joseph Tumulty, Sec'y to President Woodrow Wilson, by Roger N. Baldwin, Sec'y, Am. Union Against Militarism 1 (June 21, 1917) (on file with the Columbia Law Review).
161. Memorandum from Oswald Garrison Villard, Bd. Member, Am. Union Against Militarism, to Joseph Tumulty, Sec'y to President Woodrow Wilson 1 (June 21, 1917) (on file with the Columbia Law Review).
162. 43 The Papers of Woodrow Wilson 5 (Arthur S. Link ed., 1983) (footnote omitted) (providing Villard's proposal).
163. Memorandum from Enoch H. Crowder, Provost Marshal Gen., to Newton Baker, Sec'y, U.S. Dep't of War 1 (June 21, 1917) (on file with the Columbia Law Review).
164. Memorandum of Interview with Newton D. Baker, Sec'y, U.S. Dep't of War, by Roger N. Baldwin, Sec'y, Am. Union Against Militarism 1 (June 22, 1917) (on file with the Columbia Law Review).
165. See Joan Jensen, Army Surveillance in America, 1775-1980, at 121, 125 (1991) (describing role of Van Deman and Army War College in development of intelligence capabilities).
166. Brian McAllister Linn, The Echo of Battle: The Army's Way of War 109-115 (2007) (noting military commanders viewed civilian population as "incapable of the necessary preparation and sacrifice needed to secure victory. in case of war").
167. Memorandum from Joseph E. Kuhn, Assistant Chief of Staff, U.S. Army, to Chief of Staff, U.S. Army 1 (July 4, 1917) (on file with the Columbia Law Review).
168. Memorandum from Roger N. Baldwin, Sec'y, Am. Union Against Militarism, to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (July 13, 1917) (on file with the Columbia Law Review).
169. Memorandum from Enoch H. Crowder, Provost Marshal Gen., to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (July 17, 1919) (on file with the Columbia Law Review).
170. Memorandum of Interview with John Henry Wigmore, Major, U.S. Army, and Allen W. Gullion, Colonel, U.S. Army, by Roger N. Baldwin, Sec'y, Am. Union Against Militarism 2--6 (Sept. 11-12, 1917) [hereinafter Wigmore Interview] (on file with the Columbia Law Review)
171. see also William R. Roalfe, John Henry Wigmore: Scholar and Reformer 45, 125 (1977) (noting Wigmore's deanship and military service).
172. Memorandum of Interview with John Henry Wigmore, Major, U.S. Army, and Allen W. Gullion, Colonel, U.S. Army, by Roger N. Baldwin, Sec'y, Am. Union Against Militarism 2--6 (Sept. 11-12, 1917) [hereinafter Wigmore Interview] (on file with the Columbia Law Review)
173. Memorandum of Interview with Felix Frankfurter, U.S. Dep't of War, by Roger N. Baldwin, Sec'y, Am. Union Against Militarism 1 (Sept. 11-12, 1917) (on file with the Columbia Law Review).
174. Memorandum of Interview with Frederick Keppel, Third Assistant Sec'y, U.S. Dep't of War, by Roger N. Baldwin, Sec'y, Am. Union Against Militarism 1 (Sept. 11-12, 1917) (on file with the Columbia Law Review).
175. Letter from John Henry Wigmore, Major, U.S. Army, to Roger N. Baldwin, Assoc. Dir., Am. Union Against Militarism 1 (Sept. 12, 1917) (on file with the Columbia Law Review).
176. Letter from Roger N. Baldwin, Sec'y, Am. Union Against Militarism, to John Henry Wigmore, Major, U.S. Army 1 (Sept. 14, 1917) (on file with the Columbia Law Review).
177. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
178. Telegram from John Henry Wigmore, Major, U.S. Army, to Roger N. Baldwin, Sec'y, Am. Union Against Militarism 1 (Sept. 15, 1917) (on file with the Columbia Law Review).
179. Letter from Roger N. Baldwin, Sec'y, Am. Union Against Militarism, to John Henry Wigmore, Major, U.S. Army 1 (Sept. 18, 1917) (on file with the Columbia Law Review).
180. Memorandum from John Henry Wigmore, Major, U.S. Army 1 (Oct. 12, 1917) (on file with the Columbia Law Review).
181. Memorandum from Enoch H. Crowder, Provost Marshal Gen., to Newton D. Baker, Sec'y, U.S. Dep't of War 2 (Sept. 20, 1917) (on file with the Columbia Law Review).
182. See Memorandum of Interview by Roger N. Baldwin, Sec'y, Am. Union Against Militarism, with Felix Frankfurter, U.S. Dep't of War, 122, at 1
183. Letter from Felix Frankfurter, U.S. Dep't of War, to Roger N. Baldwin, Sec'y, Am. Union Against Militarism 1 (Sept. 18, 1917) (on file with the Columbia Law Review) (showing Frankfurter's willingness to collaborate with Baldwin on issue of conscientious objectors).
184. Letter from Felix Frankfurter, U.S. Dep't of War, to Roger N. Baldwin, Sec'y, Am. Union Against Militarism 1 (Sept. 27, 1917) [hereinafter Frankfurter, Second Letter to Baldwin] (on file with the Columbia Law Review).
185. Jack M. Balkin, Living Originalism 4-5 (2011) (describing constitutional construction as "implementing and applying the Constitution using all of the various modalities of interpretation")
186. Richard H. Fallon, Jr., Implementing the Constitution 5-7 (2001) (describing courtcentered theory of constitutional "implementation")
187. Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 410 (2007) (arguing content of Constitution "must be derived functionally, not formally").
188. Stephen Skowronek, The Conservative Insurgency and Presidential Power: A Development Perspective on the Unitary Executive, 122 Harv. L. Rev. 2070, 2087 (2009).
189. Laura Weinrib, Civil Liberties Enforcement and the New Deal State 4-21, 26--34 (n.d.) [hereinafter Weinrib, Civil Liberties Enforcement] (unpublished manuscript) (on file with the Columbia Law Review) (describing relationship between civil liberties and federal government in 1930s).
190. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
191. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
192. See Sam Erman, Citizens of Empire: Puerto Rico, Status, and Constitutional Change 61-63, 71, 73 (Feb. 28, 2013) (unpublished manuscript), available at http://ssrn. com/abstract=2226754 (on file with the Columbia Law Review) (describing Frankfurter's approach to colonial citizenship).
193. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
194. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
195. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
196. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
197. Charles Chatfield, For Peace and Justice: Pacifism in America, 1914-1941, at 70-76 (1971)
198. David M. Kennedy, Over Here: The First World War and American Society 26-30, 70-72 (1980) [hereinafter Kennedy, Over Here] (describing socialist opposition to war and its appeal to workers)
199. David Montgomery, The Fall of the House of Labor: The Workplace, the State, and American Labor Activism, 1865-1925, at 371-72 (1987) (describing tension between classes during war)
200. Christopher M. Sterba, Good Americans: Italians and Jewish Immigrants During the First World War 124-26, 155-63 (2003) (describing antiwar socialist activity).
201. Charles Chatfield, For Peace and Justice: Pacifism in America, 1914-1941, at 70-76 (1971)
202. Morris Hillquit, Introduction, in Alexander Trachtenberg, The American Socialists and the War 3 (1917) (discussing socialist views on the war)
203. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
204. Letter from Stedman & Stoelke to Woodrow Wilson, President 1 (Aug. 21, 1917) (on file with the Columbia Law Review) (seeking conscientious-objector recognition for members of "council of Socialist Conscripts, Local Division of Cook County, Illinois").
205. Niall Ferguson, The Pity of War: Explaining World War I, at 434 (2000).
206. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
207. see also James McDermott, British Military Service Tribunals, 1916-1918, at 36-58 (2011) (reviewing difficulties British tribunals faced in implementing conscientiousobjection legislation)
208. John Rae, Conscience and Politics: The British Government and the Conscientious Objector to Military Service 1916-1919, at 117-28 (1970) (describing British tribunals' resistance to more accommodating implementation of objection legislation).
209. see Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen 210 (2008)
210. see Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen 210 (2008)
211. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
212. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
213. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
214. See, e.g., Herbert Croly, The Promise of American Life 207 (1909) ("Democracy does not mean merely government by the people, or majority rule, or universal suffrage. All of these political forms or devices are a part of its necessary organization but the chief advantage such methods of organization have is their tendency to promote some salutary and formative purpose. ").
215. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906-1926, at 23-24 (2002)
216. See John Dewey & James Tufts, Ethics 472 (1908) (calling for "generalized individualism: which takes into account the real good and effective-not merely formal-freedom of every social member")
217. Throughout this Article, "Progressive" indicates a multigenerational network of American individuals, ideas, and institutions prominent from the 1880s to the 1930s. The common feature of this network was a belief that new organizations of public power should and could resolve the challenge to social stability posed by economic, ethnic, and religious difference. See generally Eldon J. Eisenach, The Lost Promise of Progressivism 25-29 (1994);
218. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906-1926, at 23-24 (2002)
219. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906-1926, at 23-24 (2002)
220. Robert B. Westbrook, John Dewey and American Democracy 195-227 (1991) (describing Progressive split due to World War I).
221. See, e.g., Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 65-74, 82-83 (1991) (describing Progressives' skepticism of individual rights claims)
222. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
223. Throughout this Article, "Progressive" indicates a multigenerational network of American individuals, ideas, and institutions prominent from the 1880s to the 1930s. The common feature of this network was a belief that new organizations of public power should and could resolve the challenge to social stability posed by economic, ethnic, and religious difference. See generally Eldon J. Eisenach, The Lost Promise of Progressivism 25-29 (1994);
224. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906-1926, at 23-24 (2002)
225. Even those Progressives most critical of state power, such as Randolph Bourne, acknowledged this positive aspect of public coercion. In February 1918, Bourne himself wrote to Frankfurter on behalf of a pacifist musician who, upon his induction into the army, had been hospitalized as a "constitutional psycopath [sic]. " Letter from Randolph Bourne to Felix Frankfurter 1 (Feb. 21, 1918) (on file with the Columbia Law Review). Arguing that such a diagnosis was simply "the evasion of doctors who are stumped by a healthy, non-religious, non-fanatical, and courageous pacifism, " Bourne condemned "this illogical position" in which his friend found himself. Id. "If he is a 'constitutional psycopath,'" Bourne continued, "he should be discharged as unfit for the army; if he is sound, they have no business to keep him in the hospital. If his conscientious objections are not accepted, then he should be frankly dealt with. " Id. What Bourne wanted was not total emancipation for his friend but for the War Department to "meet his case squarely. " Id. Bourne concluded his message to Frankfurter by praising the "great piece of work you have been doing on the labor situation" and hailing him as "the liberal hope." Id. For Bourne's views on the question of war, conscription, and dissent
226. see generally Randolph S. Bourne, War and the Intellectuals: Essays, 1915-1919 (1964).
227. Throughout this Article, "Progressive" indicates a multigenerational network of American individuals, ideas, and institutions prominent from the 1880s to the 1930s. The common feature of this network was a belief that new organizations of public power should and could resolve the challenge to social stability posed by economic, ethnic, and religious difference. See generally Eldon J. Eisenach, The Lost Promise of Progressivism 25-29 (1994);
228. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
229. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
230. Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America 27-47 (2012)(discussing debate about scope of First Amendment in relation to Jehovah's Witnesses)
231. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
232. Paul L. Murphy, World War I and the Origin of American Civil Liberties in the United States 25-31 (1979)
233. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
234. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
235. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
236. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
237. see also Margaret Levi, Consent, Dissent, and Patriotism 16-27, 33-41, 165-199 (1997) (describing how wartime democratic governments secure compliance from individuals with a range of material interests and cultural commitments, including through provision of conscientious objection).
238. Press Release, Comm. on Pub. Info., For Release in Morning Papers 1 (May 30, 1918) (on file with the Columbia Law Review).
239. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
240. John A. Thompson, Reformers and War: American Progressive Publicists and the First World War 221-22 (1987) (same).
241. In implementing these procedures, Wilson and Baker were not bowing to a proconscientious-objector bloc in Congress. Over the course of the war, the War Department and the President received scattered congressional complaints of abuse of conscientious objectors-but these generally came from the representatives of sectarian constituents who were covered, if not satisfied, by the original legislative accommodation. See, e.g., Letter from Enoch H. Crowder, Provost Marshal Gen., to W.W. Griest, U.S. Representative (Sept. 13, 1917) (on file with the Columbia Law Review) (addressing complaints about treatment of "Mennonite, Quaker, Dunkard and Amish sects")
242. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
243. Memorandum from H.G. Learnard, Adjutant Gen., U.S. Army, to Commanding Gens. of all Nat'l Army and Nat'l Guard Div. Camps (Oct. 10, 1917), reprinted in U.S. War Dept., Statement, at 37.
244. Letter from Newton D. Baker, Sec'y, U.S. Dep't of War, to Jane Addams, Am. Union Against Militarism 1 (Apr. 29, 1917) (on file with the Columbia Law Review).
245. see Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen 210 (2008)
246. Selective Service Act of 1917, ch. 15, §4, 40 Stat. 76, 78, repealed by Act June 15, 1917, ch. 29, § 4, 40 Stat. 217, 217 (providing compulsory military service should cease four months after proclamation of peace by President)
247. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906-1926, at 23-24 (2002)
248. Throughout this Article, "Progressive" indicates a multigenerational network of American individuals, ideas, and institutions prominent from the 1880s to the 1930s. The common feature of this network was a belief that new organizations of public power should and could resolve the challenge to social stability posed by economic, ethnic, and religious difference. See generally Eldon J. Eisenach, The Lost Promise of Progressivism 25-29 (1994);
249. Daniel R. Ernst, Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915-1943, 11 Law & Hist. Rev. 59, 62-79 (1993) [hereinafter Ernst, Common Laborers] (contrasting approaches to group autonomy taken by industrial pluralists and legal realists). The pluralism espoused by the Progressive administrators discussed here was very much of the latter kind, interested in the role that individual citizens-in all of their political and cultural diversity-played in shaping the state and securing the public interest.
250. see also Barnette, 319 U.S. at 646-671 (Frankfurter, J., dissenting)
251. Richard Danzig, Justice Frankfurter's Opinions in the Flag Salute Cases: Blending Logic and Psychologic in Constitutional Decisionmaking, 36 Stan. L. Rev. 675, 705--11 (1984) (describing Frankfurter's approach to relationship between marginal beliefs and democratic reason).
252. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
253. As William D. Palmer has noted, Baker's order "was the first-and, until the Supreme Court interpreted the exemption broadly beginning in the 1960s, the only-example of the federal government granting an exemption to conscientious objectors whose objections may not have been based on religious belief. " William D. Palmer, Time to Exorcise Another Ghost from the Vietnam War: Restructuring the In-Service Conscientious Objector Program, 140 Mil. L. Rev. 179, 184 (1993).
254. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
255. Memorandum from John Henry Wigmore, Major, U.S. Army 1 (Oct. 12, 1917) (on file with the Columbia Law Review).
256. Memorandum from Enoch H. Crowder, Provost Marshal Gen., U.S. Army, to Newton Baker, Sec'y, U.S. Dep't of War 1 (Jan. 16, 1918) (on file with the Columbia Law Review).
257. Selective Draft Law Cases, 245 U.S. 366, 366, 387-90 (1918).
258. Paul L. Murphy, World War I and the Origin of American Civil Liberties in the United States 25-31 (1979)
259. Samuel Walker, In Defense of American Liberties: A History of the ACLU 37-47 (1990)
260. Paul L. Murphy, World War I and the Origin of American Civil Liberties in the United States 25-31 (1979)
261. Samuel Walker, In Defense of American Liberties: A History of the ACLU 37-47 (1990)
262. Selective Draft Law Cases, 245 U.S. at 389-90.
263. see Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen 210 (2008)
264. For "off the wall" constitutional arguments, see Jack M. Balkin & Sanford Levinson, Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of Bush v. Gore, 90 Geo. L.J. 173, 181 (2001).
265. Congress first accommodated religious nonsectarians in the 1940 Selective Training and Service Act. See Selective Training and Service Act of 1940, ch. 720, § 5(g), 54 Stat. 885, 889 ("Nothing contained in this Act shall be construed to require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training or belief, is conscientiously opposed to participation in war in war in any form. ") Only during the Vietnam War era did the Supreme Court interpret this statutory provision to cover secular objections to war.
266. Welsh v. United States, 398 U.S. 333, 343-44 (1970)
267. United States v. Seeger, 380 U.S. 163, 176, 184-87 (1965).
268. Exec. Order No. 2,823 (Mar. 20, 1918) (on file with the Columbia Law Review);
269. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
270. David M. Kennedy, Over Here: The First World War and American Society 26-30, 70-72 (1980) [hereinafter Kennedy, Over Here] (describing socialist opposition to war and its appeal to workers)
271. Martin Kitchen, The German Offensives of 1918, at 68 (2d ed. 2005).
272. Martin Kitchen, The German Offensives of 1918, at 68 (2d ed. 2005).
273. David M. Kennedy, Over Here: The First World War and American Society 26-30, 70-72 (1980) [hereinafter Kennedy, Over Here] (describing socialist opposition to war and its appeal to workers)
274. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
275. Letter from Roger N. Baldwin, Sec'y, Am. Union Against Militarism, to Woodrow Wilson, President 1 (Apr. 2, 1918) [hereinafter April 2, 1918 Letter from Baldwin to Wilson] (on file with the Columbia Law Review).
276. Letter from Felix Frankfurter, Professor, Harvard Law Sch., to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (Feb. 6, 1917) (on file with the Columbia Law Review).
277. Letter from Felix Frankfurter, Professor, Harvard Law Sch., to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (Feb. 6, 1917) (on file with the Columbia Law Review).
278. Letter from Joseph Kline to Felix Frankfurter, Professor, Harvard Law Sch. 1-2 (Apr. 4, 1918) (on file with the Columbia Law Review).
279. See Memorandum from Felix Frankfurter, U.S. Dep't of War, to Adjutant Gen. 1 (Apr. 18, 1918) (on file with the Columbia Law Review) (strongly suggesting "Private Kline [be] segregated in accordance with the Secretary's instructions, relative to the treatment of conscientious objectors")
280. Memorandum from H.P. McCain, Adjutant Gen., to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (Apr. 22, 1918) (on file with the Columbia Law Review) (reporting Kline's commanding general "has been directed to see that the instructions contained in Presidential Proclamation on Conscientious Objectors are carefully complied with in [Kline's] case").
281. Memorandum from Enoch H. Crowder, Provost Marshal Gen., to Newton Baker, Sec'y, U.S. Dep't of War 1 (June 21, 1917) (on file with the Columbia Law Review).
282. Letter from B.T. Shuler, Postmaster, to Newton D. Baker, Sec'y, U.S. Dep't of War 1 (Apr. 23, 1918) (on file with the Columbia Law Review).
283. Record from Letter from Enoch H. Crowder, Provost Marshal Gen., to B.T. Shuler 1 (Apr. 29, 1918) (on file with the Columbia Law Review).
284. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
285. Press Release, U.S. Dep't of War, For Release in the Morning Papers 1 (May 30, 1918) (on file with the Columbia Law Review)
286. Press Release, U.S. Dep't of War, Official Statement as to Conscientious Objectors (June 8, 1918), reprinted in 75 Friends' Intelligencer 357, 357 (June 8, 1918).
287. Press Release, U.S. Dep't of War, Official Statement as to Conscientious Objectors (June 8, 1918), reprinted in 75 Friends' Intelligencer 357, 357 (June 8, 1918).
288. Press Release, U.S. Dep't of War, Official Statement as to Conscientious Objectors (June 8, 1918), reprinted in 75 Friends' Intelligencer 357, 357 (June 8, 1918).
289. Letter from Felix Frankfurter to Frederick Keppel, Third Assistant Sec'y, U.S. Dep't of War (June 3, 1918) (on file with the Columbia Law Review).
290. Selective Service Act of 1917, ch. 15, § 4, 40 Stat. 76, 78-80 (1917), repealed by Act June 15, 1917, ch. 29, § 4, 40 Stat. 217, 217 (providing compulsory military service should cease four months after proclamation of peace by President).
291. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
292. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
293. See Walter Guest Kellogg, The Conscientious Objector 26 (1919) ("The work of the Board was essentially migratory in character. ");
294. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
295. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
296. See Walter Guest Kellogg, The Conscientious Objector 26 (1919) ("The work of the Board was essentially migratory in character. ");
297. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
298. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 239-60 (1987) (describing legacy of World War I draft)
299. Charles Chatfield, For Peace and Justice: Pacifism in America, 1914-1941, at 70-76 (1971)
300. Mark A. May, The Psychological Examinations of Conscientious Objectors, Am. J. Psych., Apr. 1920, at 154-61 (same).
301. Mark A. May, The Psychological Examinations of Conscientious Objectors, Am. J. Psych., Apr. 1920, at 154-61 (same).
302. See Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 105 (1956) [hereinafter Mason, Pillar]
303. See Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 105 (1956) [hereinafter Mason, Pillar]
304. See Walter Guest Kellogg, The Conscientious Objector 26 (1919) ("The work of the Board was essentially migratory in character. ");
305. For this distinction between "management" (which involves "efficiency-minded, goal-driven organization") and "democracy" (which involves the continual harmonization of individual self-determination and collective decisionmaking through "communicative processes"),
306. see Robert Post, Constitutional Domains: Democracy, Community, Management 4, 11 (1995) (quoting Philip Selznick).
307. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
308. Letter from H.P. McCain, Adjutant Gen., to Frederick Keppel, Third Assistant Sec'y, U.S. Dep't of War 1 (June 15, 1918) (on file with the Columbia Law Review) (emphasis added).
309. Memorandum from John S. Johnston, Adjutant Gen., to All Dep't, Camp, and Cantonment Commanders All Excepted Places (Aug. 2, 1918), in U.S. Dep't of War, Statemen
310. Wilson and Baker also demoted Major General Leonard Wood, Roosevelt's chief ally on active duty, assigning him to training camps and ensuring that he would not hold a command in Europe. Daniel R. Beaver, Newton D. Baker and the American War Effort: 1917-1919, at 41-43 (1966).
311. see Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen 210 (2008)
312. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
313. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
314. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
315. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
316. Alpheus Thomas Mason, Harlan Fiske Stone: In Defense of Individual Freedom, 1918-20, 51 Colum. L. Rev. 147, 151 (1951) (quoting Stone's January 5, 1919 report to Butler).
317. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
318. Letter from H.P. McCain, Adjutant Gen., to Frederick Keppel, Third Assistant Sec'y, U.S. Dep't of War 1 (June 15, 1918) (on file with the Columbia Law Review) (emphasis added).
319. Letter from H.P. McCain, Adjutant Gen., to Frederick Keppel, Third Assistant Sec'y, U.S. Dep't of War 1 (June 15, 1918) (on file with the Columbia Law Review) (emphasis added).
320. (quoting Runkle v. United States, 122 U.S. 543, 558 (1887).
321. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
322. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
323. See C.H. Cramer, Newton D. Baker: A Biography 49-56, 190-93 (1961) (chronicling Baker's accomplishments as mayor and work for National Consumers League).
324. By statute, the Secretary of War had the authority to grant an "honorable restoration to duty" to convicted soldiers. See Act of March 4, 1915, ch. 143, 38 Stat. 1062, 1074-1075 (repealed by Pub. L. No. 90-377, § 6(1), (3), 82 Stat. 288 (1968) (extending "authority. vested in the Secretary of War to give an honorable restoration to duty, in case the same is merited, to general prisoners confined in the United States disciplinary barracks and its branches. so that such restoration may be given to general prisoners confined elsewhere").
325. reprinted in U.S. Dep't of War, Statement Concerning the Treatment of Conscientious Objectors 47 (1919)
326. Memorandum from Newton D. Baker, Sec'y, U.S. Dep't of War, to Peyton C. Marsh, Chief of Staff (Jan. 16, 1919), in U.S. War Dep't, Statement, at 30.
327. See Memorandum from Frank McIntyre, Major Gen., to Roy A. Hill, Adjutant Gen. (Jan. 17, 1919), in U.S. War Dep't, Statement, at 31.
328. Letter from Newton D. Baker, Sec'y, U.S. Dep't of War, to Jane Addams, Am. Union Against Militarism 1 (Apr. 29, 1917) (on file with the Columbia Law Review).
329. Immediate Release, Comm. on Pub. Info., supra note 11, at 47.
330. Woodrow Wilson, President, The Fourteen Points Address (Jan. 8, 1918), in 45 The Papers of Woodrow Wilson 534, 536 (Arthur S. Link ed., 1984).
331. Woodrow Wilson, President, The Fourteen Points Address (Jan. 8, 1918), in 45 The Papers of Woodrow Wilson 534, 536 (Arthur S. Link ed., 1984).
332. Ross Kennedy, The Will to Believe: Woodrow Wilson, World War I, and America's Strategy for Peace and Security 134 (2009) (discussing Wilson's "assessing the relationship between German democratization and prospects for international reform").
333. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
334. 250 U.S. 616, 627-31 (1919) (Holmes, J., dissenting).
335. See Robert Murray, The Red Scare: A Study in National Hysteria, 1919-1920, at 12, 15-16 (1955) (describing societal circumstances that exacerbated Red Scare in 1919).
336. Todd Pfannestiel, Rethinking the Red Scare: The Lusk Committee and New York's Crusade Against Radicalism, 1919-1923, at 13 (2003).
337. E.g., Robert Cottrell, Roger Nash Baldwin and the American Civil Liberties Union 49-50 (2000) (arguing "modern civil liberties movement" was defensive response to government action)
338. Todd Pfannestiel, Rethinking the Red Scare: The Lusk Committee and New York's Crusade Against Radicalism, 1919-1923, at 13 (2003).
339. 1 J. Legis. Comm. Investigating Seditious Activities, Revolutionary Radicalism: Its History, Purpose and Tactics 1087 (1920).
340. Conscientious Objectors, N.Y. Times, Feb. 16, 1919, at 41.
341. 58 Cong. Rec. 3063-66 (1919).
342. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
343. 58 Cong. Rec. 3065.
344. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
345. William Hard, Your Amish Mennonite, New Republic, Feb. 1, 1919, at 11, 11-14.
346. John Dewey, Conscience and Compulsion, New Republic, July 14, 1917, at 297.
347. W. Anthony Gengarelly, Distinguished Dissenters and Opposition to the 1919-1920 Red Scare 54 (1996).
348. Editorial, Amnesty for Political Prisoners, 65 Dial 497, 497 (1918).
349. John Nevin Sayre, Editorial, Political Prisoners in America, 65 Dial 623, 623-24 (1918).
350. Letter from Frederick P. Keppel, Third Assistant Sec'y, U.S. Dep't of War, to Felix Frankfurter 1 (Jan. 16, 1919) (on file with the Columbia Law Review).
351. Letter from Felix Frankfurter to Frederick P. Keppel, Third Assistant Sec'y, U.S. Dep't of War (Jan. 18, 1919) (on file with the Columbia Law Review).
352. 249 U.S. 47, 48-49 (1919).
353. 249 U.S. 204, 207-08 (1919).
354. 249 U.S. 211, 212-14 (1919).
355. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
356. 249 U.S. at 51.
357. 250 U.S. 616, 624 (1919) (Holmes, J., dissenting).
358. See Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind-and Changed the History of Free Speech in America 7 (2013) ("Holmes's dissent in Abrams marked not just a personal transformation but the start of a national transformation as well. ")
359. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
360. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
361. Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 Harv. L. Rev. 932 (1919).
362. See Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind-and Changed the History of Free Speech in America 7 (2013) ("Holmes's dissent in Abrams marked not just a personal transformation but the start of a national transformation as well. ")
363. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
364. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
365. Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 Harv. L. Rev. 932 (1919).
366. See Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind-and Changed the History of Free Speech in America 7 (2013) ("Holmes's dissent in Abrams marked not just a personal transformation but the start of a national transformation as well. ")
367. 265 F. 17 (D. Mass. 1920), rev'd sub nom. Skeffington v. Katzeff, 277 F. 129 (1st Cir. 1922).
368. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
369. David M. Rabban, Free Speech in Its Forgotten Years 3-4, 299 (1999) (describing Progressives' "prewar faith in a benevolent state and their corresponding aversion to constitutional rights")
370. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
371. See Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind-and Changed the History of Free Speech in America 7 (2013) ("Holmes's dissent in Abrams marked not just a personal transformation but the start of a national transformation as well. ")
372. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
373. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
374. G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth Century America, 95 Mich. L. Rev. 299, 312-14 (1996) [hereinafter White, Emergence of Free Speech].
375. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
376. G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth Century America, 95 Mich. L. Rev. 299, 312-14 (1996) [hereinafter White, Emergence of Free Speech].
377. John Henry Wigmore, Abrams v. U.S.: Freedom of Speech and Freedom of Thuggery in War-Time and Peace-Time, 14 Ill. L. Rev. 539, 551 (1920) [hereinafter Wigmore, Abrams].
378. Memorandum of Interview with John Henry Wigmore, Major, U.S. Army, and Allen W. Gullion, Colonel, U.S. Army, by Roger N. Baldwin, Sec'y, Am. Union Against Militarism 2--6 (Sept. 11-12, 1917) [hereinafter Wigmore Interview] (on file with the Columbia Law Review)
379. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
380. John Henry Wigmore, Abrams v. U.S.: Freedom of Speech and Freedom of Thuggery in War-Time and Peace-Time, 14 Ill. L. Rev. 539, 551 (1920) [hereinafter Wigmore, Abrams].
381. See, e.g., John Dewey, Conscription of Thought, New Republic, Sept. 1, 1917, at 128-129 ("What I am concerned with is. the historically demonstrated inefficacy of the conscription of mind as a means of promoting social solidarity, and the gratuitous stupidity of measures that defeat their own ends. ")
382. Zechariah Chafee Jr., The Conscription of Public Opinion, in The Next War: Three Addresses Delivered at a Symposium at Harvard University: November 18, 1924, Norris F. Hall, Zechariah Chafee, Jr. & Manley O. Hudson 39, 53--54 (1925) ("[S]ome men will refuse to devote their speech and writing to the cause of victory, and for these force will be necessary---the conscription of thought. ").
383. John Henry Wigmore, Abrams v. U.S.: Freedom of Speech and Freedom of Thuggery in War-Time and Peace-Time, 14 Ill. L. Rev. 539, 551 (1920) [hereinafter Wigmore, Abrams].
384. Nat'l Popular Gov't League, Report upon the Illegal Practices of the United States Department of Justice (1920) [hereinafter Nat'l Popular Gov't League, Report]. Among other case studies, the report contained a fourteen-page description of the Colyer case in which Chafee and Frankfurter had intervened. Id. at 42-56. For an overview of Frankfurter's anti-Red Scare activities
385. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
386. Nat'l Popular Gov't League, Report upon the Illegal Practices of the United States Department of Justice (1920) [hereinafter Nat'l Popular Gov't League, Report]. Among other case studies, the report contained a fourteen-page description of the Colyer case in which Chafee and Frankfurter had intervened. Id. at 42-56. For an overview of Frankfurter's anti-Red Scare activities
387. Peter H. Irons, "Fighting Fair": Zechariah Chafee, Jr., the Department of Justice, and the "Trial at the Harvard Club, " 94 Harv. L. Rev. 1205, 1219-20 (1981) ("Labor Department officials. began to seek a way to block the deportation of all but 'conscious' members of the Communist Party, thus freeing those who had joined the Party without knowledge of its revolutionary doctrines. "). See generally Louis F. Post, The Deportations Delirium of Nineteen-Twenty (1923) (narrating author's experience during Red Scare).
388. Alpheus Thomas Mason, Harlan Fiske Stone: In Defense of Individual Freedom, 1918-20, 51 Colum. L. Rev. 147, 151 (1951) (quoting Stone's January 5, 1919 report to Butler).
389. Charges of Illegal Practices of the Department of Justice: Hearings Before a Subcomm. of the S. Comm. on the Judiciary, 66th Cong. 279-80 (1921).
390. Alpheus Thomas Mason, Harlan Fiske Stone: In Defense of Individual Freedom, 1918-20, 51 Colum. L. Rev. 147, 151 (1951) (quoting Stone's January 5, 1919 report to Butler).
391. Letter from Felix Frankfurter, Professor, Harvard Law Sch., to Harlan Fiske Stone (Apr. 3, 1924) (on file with the Columbia Law Review).
392. Harlan Fiske Stone, The Conscientious Objector, Columbia U. Q., Oct. 1919, at 254 [hereinafter Stone, The Conscientious Objector] (discussing religious beliefs of objectors)
393. H.N. Hirsch, The Enigma of Felix Frankfurter (1981)
394. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
395. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
396. Letter from Felix Frankfurter, Professor, Harvard Law Sch., to Harlan Fiske Stone, Att'y Gen., U.S. Dep't of Justice (Feb. 19, 1925) (on file with the Columbia Law Review).
397. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (1982).
398. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
399. See Jeremy K. Kessler, Calculations of Liberalism, at 15-34 (unpublished manuscript) (on file with the Columbia Law Review) (discussing Frankfurter's involvement in United States v. Macintosh and related legislation).
400. Ronald B. Flowers, To Defend the Constitution: Religion, Conscientious Objection, Naturalization, and the Supreme Court 68-72 (2003); 1 Kent Greenawalt, Religion and the Constitution 50 (2006);
401. See Letter from Charles E. Clark, Dean, Yale Law Sch., to Allen Wardwell (May 1, 1930) (on file with the Columbia Law Review) (conveying Frankfurter's views on legal situation of pacifist naturalization applicants)
402. Letter from Charles E. Clark, Dean, Yale Law Sch., to W. Charles Poletti (May 5, 1930) (on file with the Columbia Law Review) (discussing Frankfurter's views)
403. Letter from W. Charles Poletti to Felix Frankfurter, Professor, Harvard Law Sch. (May 6, 1930) (on file with the Columbia Law Review) (responding to Frankfurter's suggestions).
404. See, e.g., Letter from Felix Frankfurter, Professor, Harvard Law Sch., to Anthony Griffin, U.S. Rep. (Jan. 10, 1932) (on file with the Columbia Law Review)(giving reasons for supporting change in law)
405. Letter from W. Charles Poletti to Forrest Bailey, Am. Civil Liberties Union (Oct. 13, 1931) (noting Frankfurter agreed with proposed amendment to proposed legislation).
406. Letter from Felix Frankfurter to Frederick Keppel, Third Assistant Sec'y, U.S. Dep't of War (June 3, 1918) (on file with the Columbia Law Review).
407. Letter from Felix Frankfurter to Frederick Keppel, Third Assistant Sec'y, U.S. Dep't of War (June 3, 1918) (on file with the Columbia Law Review).
408. Daniel R. Ernst, Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915-1943, 11 Law & Hist. Rev. 59, 62-79 (1993) [hereinafter Ernst, Common Laborers] (contrasting approaches to group autonomy taken by industrial pluralists and legal realists). The pluralism espoused by the Progressive administrators discussed here was very much of the latter kind, interested in the role that individual citizens-in all of their political and cultural diversity-played in shaping the state and securing the public interest.
409. Felix Frankfurter, The Task of Administrative Law, 75 U. Pa. L. Rev. 614 (1927) [hereinafter Frankfurter, Task of Administrative Law].
410. Nat'l Popular Gov't League, Report upon the Illegal Practices of the United States Department of Justice (1920) [hereinafter Nat'l Popular Gov't League, Report]. Among other case studies, the report contained a fourteen-page description of the Colyer case in which Chafee and Frankfurter had intervened. Id. at 42-56. For an overview of Frankfurter's anti-Red Scare activities
411. Felix Frankfurter, The Task of Administrative Law, 75 U. Pa. L. Rev. 614 (1927) [hereinafter Frankfurter, Task of Administrative Law].
412. Nat'l Popular Gov't League, Report upon the Illegal Practices of the United States Department of Justice (1920) [hereinafter Nat'l Popular Gov't League, Report]. Among other case studies, the report contained a fourteen-page description of the Colyer case in which Chafee and Frankfurter had intervened. Id. at 42-56. For an overview of Frankfurter's anti-Red Scare activities
413. Felix Frankfurter, The Public and Its Government 124-67 (1930) (extolling benefits of recruiting talented lawyers for public service);
414. see also Cases and Other Materials on Administrative Law vii-viii, 1-17 (Felix Frankfurter & J. Forrester Davison eds., 1932) (citing various contemporary legal authorities on importance of lawyers, judges and administrators to evolution of "the State").
415. Daniel R. Ernst, Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915-1943, 11 Law & Hist. Rev. 59, 62-79 (1993) [hereinafter Ernst, Common Laborers] (contrasting approaches to group autonomy taken by industrial pluralists and legal realists). The pluralism espoused by the Progressive administrators discussed here was very much of the latter kind, interested in the role that individual citizens-in all of their political and cultural diversity-played in shaping the state and securing the public interest.
416. See, e.g., Memorandum from Felix Frankfurter, U.S. Dep't of War, to Newton D. Baker, Sec'y, U.S. Dep't of War 1-4 (Sept. 18, 1917) [hereinafter Frankfurter Memorandum] (on file with the Columbia Law Review).
417. This argument is indebted to a group of legal scholars who have previously noted a positive relationship between civil libertarianism and state building in early twentiethcentury America. Such a positive relationship is clearest in the context of the labor movement, where administrative agencies and congressional committees rather than courts came to be seen as the best guardians of workers' associational and expressive rights. See Jerold S. Auerbach, Labor & Liberty: The La Follette Committee and the New Deal 8-11 (1966) (describing use of executive and legislative coercion to vindicate workers' civil liberties)
418. Laura Weinrib, Civil Liberties Enforcement and the New Deal State 4-21, 26--34 (n.d.) [hereinafter Weinrib, Civil Liberties Enforcement] (unpublished manuscript) (on file with the Columbia Law Review) (describing relationship between civil liberties and federal government in 1930s).
419. Letter from Felix Frankfurter, Assoc. Justice, U.S. Supreme Court, to Robert Jackson, Att'y Gen., U.S. Dep't of Justice 1 (Jan. 19, 1940) (on file with the Columbia Law Review).
420. Id. Frankfurter wrote that the report "might, without using too grandiose language, be called a historic document. " Id. Jackson responded with thanks and a chuckle, "If your historic document does not rank with Magna Charta, it is at least a good supplement to it, and I am glad to accept it. " Letter from Robert Jackson, Att'y Gen., U.S. Dep't of Justice, to Felix Frankfurter, Assoc. Justice, U.S. Supreme Court 1 (Jan. 23, 1940) (on file with the Columbia Law Review).
421. Letter from Harlan F. Stone, Assoc. Justice, U.S. Supreme Court, to Grenville Clark 1 (June 22, 1940) (on file with the Columbia Law Review).
422. In September, Frankfurter's good friend Francis Biddle, then serving as Solicitor General, passed along to the Attorney General Stone's 1919 article, The Conscientious Objector, detailing his World War I experience, as well as the War Department's 1919 Statement on Conscientious Objectors, prepared under Third Assistant Secretary of War Frederick Keppel's supervision. Memorandum from Francis Biddle, Solicitor Gen.
423. U.S. Dep't of Justice, to Robert Jackson, Att'y Gen., U.S. Dep't of Justice 1 (Sept. 25, 1940) (on file with the Columbia Law Review).
424. In October, Stone relayed a message to Attorney General Jackson "stress[ing] the need for having the proper type of man as Hearing Officer. " Memorandum from Matthew F. McGuire, Assistant to the Att'y Gen., U.S. Dep't of Justice, to Robert Jackson, Att'y Gen., U.S. Dep't of Justice (Oct. 10, 1940) (on file with the Columbia Law Review).
425. And in December, Frankfurter wrote Jackson about early draft resistance in Boston, where a group of university students were refusing to register. Letter from Felix Frankfurter, Assoc. Justice, U.S. Supreme Court, to Robert H. Jackson, Att'y Gen., U.S. Dep't of Justice 1 (Dec. 5, 1940) (on file with the Columbia Law Review).
426. He also forwarded a letter to the editor written by his Harvard colleague Samuel Eliot Morison, calling for an end to the House Un-American Activities Committee and the relocation of all investigation of "subversive activities" to the Department of Justice, where "unnecessary snooping and spying and smearing" might be avoided. Letter from Felix Frankfurter, Assoc. Justice, U.S. Supreme Court, to Robert H. Jackson, Att'y Gen., U.S. Dep't of Justice (Dec. 9, 1940) (on file with the Columbia Law Review) (enclosing Morison letter).
427. For the outlines of this debate
428. see Gerald T. Dunne, Hugo Black and the Judicial Revolution 209-23 (1977) (noting development of allegiances in debate over First Amendment rights)
429. Paul L. Murphy, World War I and the Origin of American Civil Liberties in the United States 25-31 (1979)
430. Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America 27-47 (2012)(discussing debate about scope of First Amendment in relation to Jehovah's Witnesses)
431. Alpheus Thomas Mason, Harlan Fiske Stone: In Defense of Individual Freedom, 1918-20, 51 Colum. L. Rev. 147, 151 (1951) (quoting Stone's January 5, 1919 report to Butler).
432. Shawn Francis Peters, Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution 230-59 (2002) (discussing debate about scope of First Amendment in relation to Jehovah's Witnesses)
433. Urofsky M.I., Felix Frankfurter: Judicial Restraint and Individual Liberties 50 (1991).
434. G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth Century America, 95 Mich. L. Rev. 299, 312-14 (1996) [hereinafter White, Emergence of Free Speech].
435. Felix Gilman, The Famous Footnote Four: A History of the Carolene Products Footnote, 46 S. Tex. L. Rev. 163, 202-09 (2004) (discussing preferred-position debate);
436. Peter Linzer, The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone, 12 Const. Comment. 277, 277-78 (1995) (discussing competing interpretations of footnote four and its reception);
437. Louis Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093, 1093 (1982) (attempting to clarify misconceptions about drafting and reception of footnote four)
438. G. Edward White, Free Speech and the Bifurcated Review Project: The "Preferred Position" Cases, in Constitutionalism and American Culture: Writing the New Constitutional History 99-122 (Sandra F. VanBurkleo, Kermit L. Hall & Robert J. Kaczorowski eds., 2002) (describing evolution of preferred-position cases).
439. Laura Weinrib, Civil Liberties Enforcement and the New Deal State 4-21, 26--34 (n.d.) [hereinafter Weinrib, Civil Liberties Enforcement] (unpublished manuscript) (on file with the Columbia Law Review) (describing relationship between civil liberties and federal government in 1930s).
440. See Jeremy K. Kessler, Calculations of Liberalism, at 15-34 (unpublished manuscript) (on file with the Columbia Law Review) (discussing Frankfurter's involvement in United States v. Macintosh and related legislation).
441. See Jeremy K. Kessler, Calculations of Liberalism, at 15-34 (unpublished manuscript) (on file with the Columbia Law Review) (discussing Frankfurter's involvement in United States v. Macintosh and related legislation).
442. Jones v. Opelika, 316 U.S. 584, 608 (1942) (Stone, C.J., dissenting).
443. Letter from Felix Frankfurter, Assoc. Justice, U.S. Supreme Court, to Harlan Fiske Stone, Assoc. Justice, U.S. Supreme Court 1-2 (May 27, 1940) (on file with the Columbia Law Review).
444. 310 U.S. 586, 601-07 (1940) (Stone, J., dissenting). For further background on the Justices' thinking about the relationship between administration and civil liberties in the flag salute cases
445. see generally Vincent A. Blasi & Seana V. Shiffrin, The Story of West Virginia Board of Education v. Barnette: The Pledge of Allegiance and the Freedom of Thought, in Constitutional Law Stories 416-18, 424-31 (Michael C. Dorf ed., 2d ed. 2009);
446. Richard Danzig, How Questions Begot Answers in Felix Frankfurter's First Flag Salute Opinion, 1977 Sup. Ct. Rev. 257, 262 (1977)
447. Richard Danzig, How Questions Begot Answers in Felix Frankfurter's First Flag Salute Opinion, 1977 Sup. Ct. Rev. 257, 262 (1977)
448. Robert L. Tsai, Reconsidering Gobitis: An Exercise in Presidential Leadership, 86 Wash. U. L. Rev. 363, 380 (2008).
449. See Jeremy K. Kessler, Calculations of Liberalism, at 15-34 (unpublished manuscript) (on file with the Columbia Law Review) (discussing Frankfurter's involvement in United States v. Macintosh and related legislation).
450. Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 556-58 (2007) [hereinafter Desai, Wiretapping] ("The constitutional principle [of communications privacy] was not rooted in the Fourth Amendment in abstract, textual, or even historical terms; rather, it was a principle deeply embedded in the history of the post office. "). Crucial to Desai's argument is the insight that the libertarian character of the Post Office advanced governmental interests.
451. Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 556-58 (2007) [hereinafter Desai, Wiretapping] ("The constitutional principle [of communications privacy] was not rooted in the Fourth Amendment in abstract, textual, or even historical terms; rather, it was a principle deeply embedded in the history of the post office. "). Crucial to Desai's argument is the insight that the libertarian character of the Post Office advanced governmental interests.
452. Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399, 402, 413 (2007) (describing New Dealers as "descendants" of "Progressive" administrative reformers). Second, this Article identifies the provision of specifically civil-libertarian rights as a critical aspect of state building. Between this Article's World War I-era administrative civil libertarians and Tani's New Deal administrators, Reuel Schiller provides a critical historical bridge, documenting how the "constitutional protection of freedom of expression was subsumed under administrative law" during the interwar period.
453. Laura Weinrib, Civil Liberties Enforcement and the New Deal State 4-21, 26--34 (n.d.) [hereinafter Weinrib, Civil Liberties Enforcement] (unpublished manuscript) (on file with the Columbia Law Review) (describing relationship between civil liberties and federal government in 1930s).
454. See Jeremy K. Kessler, Calculations of Liberalism, at 15-34 (unpublished manuscript) (on file with the Columbia Law Review) (discussing Frankfurter's involvement in United States v. Macintosh and related legislation).
455. see also Eric Berger, Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making, 91 B.U. L. Rev. 2029, 2049-50 (2011) (describing emergence of judicial review of administrative procedure in licensing context)
456. Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 100 Colum. L. Rev. 479, 530-31 (2010) (discussing judicial review of administrative procedure in licensing context)
457. Henry P. Monaghan, First Amendment "Due Process, " 83 Harv. L. Rev. 518, 522-23 (1970) (noting with approval trend toward judicial intervention in administrative evaluation of speakers' rights).
458. See, e.g., Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2685 (2011) (Breyer, J. dissenting) (warning invalidation of state medical-confidentiality law on First Amendment grounds "reawakens Lochner's pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue")
459. Korte v. Sebelius, 735 F.3d 654, 693 (7th Cir. 2013) (Rovner, J., dissenting) (calling injunction of contraception mandate on religious-freedom grounds "reminiscent of the Lochner era, when an employer could claim that the extension of statutory protections to its workers constituted an undue infringement on the freedom of contract and the right to operate a private, lawful business as the owner wished")
460. Jedediah Purdy, The Roberts Court v. America, Democracy, Winter 2012, at 46, 46-58 (describing use of First Amendment to create new "free-market jurisprudence")
461. Tim Wu, The Right to Evade Regulation, New Republic (June 3, 2013), http://www.newrepublic.com/article/113294/how-corporationshijacked-first-amendment-evade-regulation (on file with the Columbia Law Review) (describing use of free speech arguments to advance "corporate deregulation")
462. Joey Fishkin, Who Is a Constituent?, Balkinization (Apr. 3, 2014), http:// balkin.blogspot.com/2014/04/who-is-constituent.html ("[F]ive Justices continue to grind campaign finance regulations through their First Amendment woodchipper.").