Vol. 17 No.4 (April, 2007) pp.334-339

LIBERTIES LOST: THE ENDANGERED LEGACY OF THE ACLU, by Woody Klein (ed). Westport, CT: Praeger Publishers, 2006. 320pp. Hardcover. $49.95/£27.95. ISBN: 0275985067.

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University. Email: bowen [at] jcu.edu.

This volume includes excerpts of the speeches and writings of Roger Baldwin, founder of the American Civil Liberties Union, alongside contemporary commentary by political activists has two purposes. Woody Klein, a journalist and family friend of the Baldwin family, wants to demonstrate all that the ACLU has accomplished since its founding in 1920. Via the commentary, Klein also suggests that the concerns which motivated the creation of the ACLU remain as timely and urgent in 2007 as they were in 1920. The overall message of this book is that vigilance remains necessary to check the exercise of government power and to prevent the suppression of individual liberty.

It is noteworthy that the volume is moderately successful in reconciling these goals and objectives. Klein is quite explicit in the introduction in noting that Baldwin’s words are being used to demonstrate their relevance for present times. The clear motivation for preparing the text at this historical moment is the actions of the Bush Administration in the wake of events of September 11, 2001. Klein suggests that the people and government of the United States have not sufficiently heeded Baldwin’s advice and vision. In that sense, the book is a cautionary tale. Each chapter begins with excerpts from Baldwin’s writings and speeches. The commentators close the chapters and clearly seek to connect Baldwin’s views and experiences to the contemporary political environment.

The second goal is equally central to the book. The text also seeks to demonstrate that Baldwin and the ACLU fundamentally shifted the parameters of debate in the US. The idea that civil liberties exist and are worthy of protection is now part of popular discourse. While their scope remains contested as the text aptly demonstrates, the supposition that the protection of dissent and civil liberties more generally is essential to democracy is pretty well accepted in the US in 2007. Thus, the “book is an effort to put the issue of civil liberties in the framework of history . . . to awaken readers to the real and present danger of our government running roughshod over our basic rights in the name of national security” (p.xvi). Further, the text seeks to contribute to an ongoing dialogue to “awaken the conscience of all Americans to the gathering storm that threatens the very essence of our democracy” (p.xvi).

To do this, the book begins with a brief biographical sketch of Roger Baldwin via his interviews and writings. He was born into privilege in Boston in 1884. He worked as a laborer for four months to understand the lives of workers better. He was a conscientious objector during World War I and was jailed briefly. This forged his commitment to the rights of [*335] prisoners specifically and to the interests of the “underdog” more generally. By the 1950s after he stepped down as executive director of the ACLU, he increasingly turned his attention to international human rights. He became increasingly anti-Soviet and anti-communist during this time period because of Baldwin’s perception that civil liberties in these regimes were supported only for the allies of the state. His mantra that rights and liberties must be afforded to one’s enemies and opponents emerges clearly in the introduction and is a thread carried throughout the narrative.

The second chapter, “Watchdog for the Underdog,” suggests that racial injustice was also a catalyst for the formation of the ACLU in addition to the rights of workers and the protection of free speech and press during wartime that are more commonly associated with the ACLU’s creation in 1920. Baldwin’s writings during this time period suggest that while the labor movement was the primary catalyst for forming the ACLU and that the rights of workers was the main focus, quickly the emphasis expanded to freedom of assembly and dissent for all kinds of unpopular causes. What is particularly striking in this narrative is the clarity with which Baldwin’s political views and sensibilities emerge. At the same time, though, for this commitment to have integrity it was crucial to Baldwin and by extension the ACLU that all unpopular dissidents and their views be protected. So when he writes about defending the Ku Klux Klan in 1969, he can say that, while it was clearly distasteful, it “proved our integrity” (p.31).

Yet Klein and various commentators do not try and duck the controversy surrounding the ACLU’s expulsion of Communists from their board during the Red Scare or lengthy delay in the organization’s condemnation of the interment of Japanese-Americans during World War II. Although Baldwin does not suggest that the decision to purge the ACLU board of members with Communist ties was a mistake in subsequent writings, he is quite explicit in acknowledging that the ACLU should have weighed in much earlier to protest the treatment of Japanese-Americans during World War II. Commentators in the volume place the Communist controversy into its political context. They do not defend it nor apologize for it. They are not overly critical of it, either, however.

The third chapter reiterates the necessity of protecting civil liberties during wartime. As this is a recurrent theme throughout Baldwin’s career, it makes sense that so much text is devoted to the premise that protecting national security and individual liberty should not be seen to be in conflict with one another. As Baldwin wrote in 1941, “how can democracy be saved if civil liberty is sacrificed?” (p.68). Senator Russ Feingold makes the same argument in the present day, suggesting that “we need to make sure we don’t reward terrorists by giving up the freedoms they seek to destroy” (p.81).

The remaining chapters develop and reinforce these basic themes of the text. [*336] The protection of individual liberty is foundational to democracy and protecting the liberties and views of one’s enemies is necessary, not only to maintain a sense of integrity, but to realize fully the promise of robust and unfettered political debate. The ACLU changed public discourse by adding civil liberties to the public lexicon and changing the parameters of debate. And while obviously the Bill of Rights existed before 1920, until the ACLU was created and undertook its litigation strategy, there was no meaningful mechanism to enforce the provisions of the Bill of Rights and give them real and practical meaning. Thus, the litigation strategy adopted by the ACLU was worthwhile and productive. And yet, despite of and because of all that has changed in the past 90 years, the efforts of the Bush Administration to suppress liberties and dissent must not go unchecked. The author and the various commentators, including Ira Glasser, Patrick Leahy, Ted Kennedy, Victor Navasky, William Sloane Coffin and numerous others, are suggesting that while much is to be celebrated in the shift in public discourse, it can unwittingly lead to complacency and disbelief that, if given an opportunity, government will exercise power in ways that abuse the rights of the people.

In examining “The Courts and Equal Justice,” a wide range of topics and views are exhibited via Baldwin’s writings. As noted above, one of the goals of this volume is to demonstrate all that has been accomplished by the ACLU since its founding. This is most evident in the discussions of the role of litigation to effect social change. In 1930, Baldwin notes that the “test of the strength of the democratic institutions lies in the freedom of weaker, more unpopular forces to organize and carry on activities and propaganda” (p.93). And courts, in Baldwin’s judgment, are the best vehicles in the US system to protect minority rights. The included excerpts reflect on the role of the ACLU and Baldwin’s views on notable cases, including the Scopes monkey trial (the first truly notorious case sponsored by the ACLU), the Scottsboro Boys case, the right of Nazis to march through Skokie, IL, Sacco and Vanzetti, and various McCarthy era cases. What is most surprising in this collection of essays is Baldwin’s blunt assessment of various cases. According to Baldwin, Ethel and Julius Rosenberg received a fair trial, and there was no serious injustice despite Baldwin’s opposition to the death penalty (and as contrasted with Sacco and Vanzetti and the Scottsboro Boys). While beliefs should not be punished in a free society, Baldwin is quite clear in stating that the ACLU has no sympathy with efforts to overthrow government; actions can be punished while beliefs cannot.

Although Baldwin was on guard against government intrusion on individual liberties, he nonetheless put his faith in government as having the potential to offer solutions to the enormous wrongdoing he saw, such as discrimination against racial minorities, workers, women and especially immigrants (p.125) In the chapter devoted to “The Government and Civil Liberties,” this more affirmative role for government is explored. In an essay written in 1973, Baldwin quotes [*337] Churchill when he writes “democracy is the best form of government because it is the least evil” (p.130). Two years later, Baldwin reflects on the ACLU’s relationship with government since its founding and notes that much has been accomplished in fifty years. He writes, “industrial warfare has turned peaceful and racial warfare is greatly reduced. Potential and public violence are almost gone from American life.”

Chapter 6 focuses on the rights of workers. This chapter is one of the best because it offers some novel insights into the well-established themes of the book. For example, Baldwin saw NLRB v. JONES AND LAUGHLIN (1937) “as a turning point not only in the history of labor relations but in the history of constitutional rights” (p.145). The connection between the resolution of the constitutional crisis of 1936-1937 and the ascendancy of the protection of civil rights and liberties is familiar to LPBR readers, but the suggestion that the holding in NLRB itself was a civil libertarian decision enriches one’s understanding of that time period.

In Chapter 7, the focus turns to “Education: Key to Protecting Liberty.” The main idea of this chapter is that academic freedom must be valued and protected so that education is not merely to protect the status quo. Baldwin argues that public education must be controlled from the bottom up to ensure that schools are a place where the mind is liberated and dissent can thrive. And in this arena, he is perhaps more optimistic than in other areas (or perhaps than is realistic) as he argues that raising public awareness of the Bill of Rights via the educational system is a long term process of “intellectual change that begins with a few lonely advocates to the broader elite to elite institutions (like the Supreme Court) to the general populace” (p.167).

“Liberalism and Political Change,” Chapter 8, is not the strongest chapter in the book mostly because Baldwin’s definition of liberalism is that of a practitioner and thus often seems in his writings to be an expedient approach to the construct rather than a theoretically rigorous one. He suggests that liberalism is bound up with equality and that its central concept is the protection of individual rights that presupposes decentralization of authority and diversity of societal interests. He goes on to suggest that the “liberal position” is fluid and lacks dogma. Still, the power of this narrative is the evidence of Baldwin’s pragmatism and discussion of the tension between the radical, purist Baldwin and the pragmatic, liberal Baldwin. In this context, the decision to expel Elizabeth Gurley Flynn from the ACLU board in 1940 because of her communist ties is analyzed. Baldwin never acknowledged it as a betrayal, although the text suggests he was acceding to the demands of other board members. Yet Flynn’s posthumous reinstatement to the ACLU board is also seen as the right thing to do.

The discussion of “Liberty and the Media” in Chapter 10 is among the most timely, as this provides the occasion to discuss the balance between national security and a free press. Baldwin’s writings in this context support most aptly the argument that significant and [*338] meaningful change with regard to protection of civil liberties occurs between 1920 and 1980. In 1920, Baldwin writes that a free press does not exist. In 1945, he is more optimistic, suggesting that free communication is now accepted without question. By 1975, he writes that he is satisfied with the freedom the press enjoys and notes that upholding the First Amendment was the New Deals’ major achievement in protection of civil liberties. Here again Baldwin’s words support the overriding themes of the text. He states unequivocally that no language should be punished in the absence of actions. He notes that “free speech never exists as an abstract right . . . it takes determination and the organized power of men who want free speech for themselves and others” (p.183). As Nat Henthoff notes in his commentary for this chapter, “no civil liberties battle is ever won permanently” (p.197). The role and significance of the ACLU is thus demonstrated as is the institutionalization of the organization as a check on the exercise of government power.

The commitment to a wall of separation between church and state has long been associated with the ACLU, and Chapter 10 documents it. Baldwin argues that the concept of a secular state was fundamental to the US Constitution. While the framers were religious, the omission of god and religion from public life was intentional, purposeful and appropriate. That separation has been eroded in the intervening years, but advocacy from the ACLU has helped frame the debate. Baldwin’s description of the Scopes monkey trial of the 1920s demonstrates this capably (and also makes for a compelling read).

Roger Baldwin stepped down as executive director of the ACLU in 1950, although he remained actively committed to the goals of the organization for the remainder of his life. Much of his energy in the last 30 years of his life is devoted to international human rights and protection of civil liberties in nations other than the US. “A World United by the Rule of Law” is the focus of Chapter 11. This chapter lacks a clear narrative flow perhaps because Baldwin is more tentative and less consistent when stepping outside the US perspective, experience and structure. While he acknowledges the limits of an imperialistic approach to civil liberties, suggesting that “help is especially resented when it comes with the implication that the American way of life is superior” (p.226), he also observes that many developing nations are not ready for self-rule and that democracy is learned only by long experience. Most significantly, however, this discussion highlights Baldwin’s commitment to the rule of law and working within legal structures to effect change. While supportive of the work of the United Nations and the Universal Declaration of Human Rights, he notes on several occasions that such proclamations are not law and thus are not enforceable. All that exists in the international arena is moral influence. It is clear from these excerpts that his energy came from litigating provisions of the Bill of Rights in US courts. And as noted throughout the volume, his genius was giving the paper guarantees of the Bill of Rights [*339] life and meaning by taking seriously the proposition that they could be enforced by courts of law.

Because the themes are persistent, the book borders on being repetitive. The commentaries vary in their quality as some are more analytic than others. However, all are succinct and provide a contemporary context with which to contrast Baldwin’s writing. The Afterword, a previously unpublished interview with Baldwin by Anthony Lewis, is particularly salient, as the key themes of the volume are all included in this brief exchange. Baldwin notes the persistence of racism as the most significant issue in the US. He also articulates his world view in a clearer manner than included in the text. That is to say, he argues the need to recognize the sovereignty of individual states and suggests a commitment to nationalism coupled with global consciousness. Most powerful, however, is his belief in the “moral superiority of US institutions” and his commitment to the US structure that divides power, because power concentrated in a few is the greatest danger of all. Moreover, he believed (and this interview took place in 1981) in the US Supreme Court as a libertarian and liberal institution. Indeed, he saw it as the “saving institution.” For those not wanting to read the entire volume, its essence is captured in this final interview.

While Baldwin fashioned himself as a radical, his commitment to change within conventional modes of participation like litigation permeates the volume. And this commitment emerges in a way that makes sense and seems attainable. Ultimately, the book is an optimistic and affectionate narrative suggesting that the promise of the Bill of Rights can be fulfilled in ways that are relevant in 2007 – in ways that can alter the balance of power without dismantling the structure of government. The beauty of the narrative is that this pragmatic and conventional approach to social and legal change is also presented in a convincing manner as a radical and subversive proposition. In that vein, I think this book would be a nice resource for undergraduates. I have found it to be instructive in my teaching of Civil Rights and Liberties this semester because of various anecdotes as well as the overriding themes that augment casebooks.

CASE REFERENCES:

NLRB v. JONES AND LAUGHLIN STEEL CORPORATION, 301 U.S. 1 (1937).

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© Copyright 2007 by the author, Lauren Bowen.