New Deal and Civil Liberties

Although in power for more than twelve years, the administration of Franklin D. Roosevelt had little concern for civil liberties per se, nor did it have much interest in civil rights. Economic recovery constituted the chief item on the agenda of the New Deal from March 1933 until September 1939, and after that preparation for and winning a world war shoved all other issues to the side. While the Roosevelt administration’s record does not compare badly to Wilson’s heavy-handed assault on dissent, it still left much to be desired. The fact that attorneys general like Francis Biddle, Frank Murphy, and Robert Jackson did care about civil liberties no doubt ensured that at least some attention would be paid to the matter.

During the prewar years, labor appeared to be the chief beneficiary of the New Deal. As late as 1934, the American Civil Liberties Union (ACLU) noted pessimistically that ‘‘alarms are widely expressed over alleged dictatorship by the President, the abrogation of States’ rights and the vast economic power of the federal government.’’ By 1936, however, the ACLU recognized that the government had done a complete turnabout; the greatest threat to liberty came not from the government, but from ‘‘the resort to force and violence by employers, vigilantes, mobs, troops, private gunmen, and compliant sheriffs and police.’’

The change in the Roosevelt administration’s attitude resulted from its disillusionment with the actions by business owners and managers during the first New Deal. Management had been willing enough to take the benefits offered by the government, but it had not kept its part of the bargain in regard to labor. The second New Deal, with its commitment to labor through the Wagner Act and the National Labor Relations Board, scrutinized far more critically the gross violations of civil liberties that workers suffered at the hands of anti-union management, often aided by state and local authorities.

In early 1936, a Senate subcommittee chaired by Robert M. LaFollette, Jr., of Wisconsin, began to investigate charges that workers’ rights, especially free speech and assembly, had been violated. The LaFollette committee detailed the lengths to which management had gone to crush labor, including the use of private armies, spies, intimidation, and agents provocateurs, as well as the involvement of corrupt local officials. Following the violence of the Little Steel strike of 1937, the committee publicized how employers had continuously flouted the Wagner Act, broken the laws, and disregarded civil liberties. These practices, of course, had been employed for nearly a half-century, ever since workers had seriously begun organizing into unions. But now, for the first time, workers could look past hostile bosses and uncaring local officials to the federal government for help; the Wagner Act put the law on their side. Moreover, the Depression had led to a loss of faith in business, so that the public now viewed with suspicion management’s claims that radicals and subversives caused labor strife.

Much of the civil liberties agitation in the mid- and late 1930s resulted from efforts by American workers to organize and bargain collectively. Unlike previous periods of labor unrest, however, workers now had potent allies. The national government, especially the Department of Labor and the Labor Relations Board, actively supported organized labor, as did much of the Democratic majority in Congress. The Roosevelt appointees to the Court fully sympathized with labor goals, unlike the anti-union justices of the Taft years. Labor in particular and civil liberties in general also received strong support from academics and from younger lawyers who had imbibed the attitudes of the ‘‘realists’’ or the civil liberties views of such influential law teachers as Ernst Freund, Felix Frankfurter, and especially Zechariah Chafee, Jr.

Civil libertarians, remembering the Wilson administration’s attacks on speech and press and the Palmer campaign against aliens, dreaded the prospect of American involvement in another war. The fact that war required some limits on individual rights could hardly be denied, although opinions varied widely on where to draw the line. Many people wanted to shut down the activities of American fascist groups, and the administration did investigate, harass, and suppress the speech of pro-Nazi speakers. As historian Richard Steele noted, ‘‘[T]he dozens victimized for their utterances and associations during World War II did not approach the thousands prosecuted for sedition during World War I.’’ But the memory of the excesses of the earlier war remained vivid in the minds of Justice Department officials, and for the most part they refused to prosecute all but the most pro-Nazi groups.

The example of the European dictatorships provided a salutary warning of what should not be allowed to happen here. Despite the Dies Committee’s calls to act against dissidents, the president’s public promise to sustain free speech and press, the definite civil liberties commitment of Attorney General Francis Biddle, and the absence (except on the West Coast) of the anti-alien hysteria that had swept the country in 1917–1918 all contributed to sustaining a relatively healthy civil liberties climate during the war.

Since many of the worst abuses during World War I had resulted from prosecutions of alleged subversives under state Criminal Laws, the Roosevelt administration moved quickly to assert sole federal control over internal security, mainly through the Alien Registration Act of 1940. At the 1940 Governors’ Conference, the states acceded to the administration’s request that all enforcement of internal security essentially be left in the hands of the federal government. A few months later the Supreme Court confirmed federal supremacy in Hines v. Davidowitz (1941). The Court overturned a Pennsylvania alien registration law on the grounds that the federal statute had preempted the field. Attorney General Biddle promoted a policy of cooperation between federal and state law enforcement agencies, but he made it clear that the states should leave alien control, sedition, and other security—related matters to the national government.

The Justice Department did, however, try to control the activities of naturalized citizens of German and Italian origin who had manifested either disloyal or merely dissident behavior. The government sought to revoke their Citizenship on the grounds that current disloyal behavior proved they had secured Citizenship either illegally or under false pretenses. Within a year of American entry into the war, the Justice Department had initiated over two thousand investigations, and had secured the Denaturalization of forty—two people.

As it turned out, the case testing this campaign, Schneiderman v. United States (1943), involved neither a Nazi nor a fascist sympathizer, but a communist; the government based its case on the claim that his Communist Party membership proved that the defendant did not have the ‘‘true faith and allegiance to the United States’’ that Citizenship demanded. Wendell Willkie, the 1940 Republican candidate for President, represented Schneiderman and eloquently pleaded with the Court not to establish the principle that a person could be punished for alleged adherence to abstract principles. Writing for a six-to-three majority, Justice Murphy rejected the government’s case. While naturalization constituted a privilege granted by Congress, once a person became a citizen he or she enjoyed all the rights guaranteed by the Constitution, especially freedom of thought and expression. Membership in the Communist Party had not been illegal at the time Schneiderman had taken out his papers, nor had it been established that current membership was ‘‘absolutely incompatible’’ with loyalty to the Constitution. In order to denaturalize a person, the government had to provide ‘‘clear, unequivocal and convincing evidence’’ of illegality or fraud, a burden that it had failed to carry.

The Court also proved cool to prosecutions arising under the old Espionage Act of 1917, with its laundry list of subversive activities apparently aimed as much at punishing deviant behavior as at catching spies or traitors. In Hartzel v. United States (1944), a five-tofour vote overturned the conviction of a man who had distributed racist literature vilifying Jews, Englishmen, and the president, and calling on the United States to form an alliance with Nazi Germany. Although the literature had reached the hands of Army officers, Justice Murphy ruled that the government had failed to prove that the petitioner had intended to subvert the war effort. Murphy insisted on a literal application of the Clear and Present Danger Test, and despite the scurrilous nature of the material, he pointed out that Hartzel’s activities had posed no real danger. The Court’s insistence in this and other cases that the government show a clear and present danger, with clear, unequivocal and convincing evidence, for the most part discouraged the Justice Department from prosecuting persons merely for voicing unpopular or even noxious doctrines.

Despite the neutrality legislation, Roosevelt had not been altogether passive, and took steps to protect the internal security of the country. In the summer of 1936, the president met with J. Edgar Hoover, director of the Federal Bureau of Investigation (FBI), who told him that the government had no intelligence data on either communist or fascist activities in the country. Acting on the president’s orders, the FBI, in cooperation with the Department of State, began secretly collecting data on potential subversives. In the next few years, the government secured important information on the identities and activities of foreign agents, and made good use of those files when the nation later went to war.

Congress had similar concerns about subversion, but patriotic zealots there acted with little sense of restraint. In May 1938, the House created a special Committee on Un—American Activities under the chairmanship of Martin Dies of Texas. The highly partisan committee charged that the national government had been riddled with communists, cascists, radicals, and other dangerous persons whom only a thoroughgoing exposure would eliminate. Despite promises from Dies to observe fundamental procedural rights, the committee rode roughshod over civil liberties in its headlong rush to ferret out alleged radicals. It accomplished nothing in terms of identifying subversives, and like other witch hunts, it often smeared innocent people.

Roosevelt, disgusted with the Dies Committee from the start, took much of the wind out of its sails by openly authorizing the FBI to investigate the German—American Bund and other groups under the Foreign Agents Registration Act. Through executive order, he also gave the FBI official supervision of all espionage investigations. As the threat of war increased, congressional concern led to other action, some of it of dubious value. In 1939, Congress tacked on to the Hatch Act a provision prohibiting the employment of communists by the government. In March 1940, Congress updated the 1917 Espionage Act by adding penalties for peacetime violations. In June, an Alien Registration Act aimed primarily at communists included a section allowing the Justice Department to prosecute not only those actually conspiring to overthrow the government, but also anyone who advocated or conspired to advocate its overthrow. Although the government registered and fingerprinted 5 million aliens, it did so courteously and sympathetically. The two attorneys general responsible for alien registration, Robert Jackson and Francis Biddle, tried not to offend the rights and sensibilities of these persons, the large majority of whom proved completely loyal to the nation.

The worst civil liberties violation resulted from the forced relocation of 110,000 men, women, and children of Japanese origin from the West Coast. The relocation program constituted the most serious invasion of individual rights by the federal government in the history of the country. The entire operation proceeded on racist assumptions and brought forth such astounding statements as that of Congressman Leland Ford of California that ‘‘a patriotic native-born Japanese, if he wants to make his contribution, will submit himself to a concentration camp.’’ Despite the absence of even a shred of evidence of disloyalty, the entire Japanese—American population—including native— born citizens—stood condemned, because, as General DeWitt so eloquently put it, ‘‘A Jap is a Jap.’’ In a series of heavily criticized decisions, the Supreme Court approved the program.

In contrast to the treatment of Japanese on the West Coast, it is instructive to see what happened to Italians on the East Coast. After Mussolini’s declaration of war against the United States in December 1941, some 600,000 Italians—more than 10 percent of the entire Italian-American community—remained Italian citizens and were automatically labeled as ‘‘enemy aliens.’’ But the Roosevelt administration had been actively cultivating Italian voters, and the president instructed Attorney General Biddle to cancel that designation. The announcement was made to a cheering 1942 Columbus Day crowd in Carnegie Hall, New York, just weeks before the congressional elections.

MELVIN I. UROFSKY

References and Further Reading

• Auerbach, Jerold S. Labor and Liberty: The La Follette Committee and the New Deal. Indianapolis: Bobbs- Merrill, 1966.
• Corwin, Edward S. Total War and the Constitution. New York: Knopf, 1947.
• Irons, Peter. Justice at War. New York: Oxford University Press, 1983.
• Steele, Richard W. Free Speech in the Good War. New York: St. Martin’s Press, 1999.
• Tomlins, Christopher L. The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960. New York: Cambridge University Press, 1985.

Cases and Statutes Cited

• Hartzel v. United States, 322 U.S. 680 (1944)
• Hines v. Davidowitz, 312 U.S. 52 (1941)
• Schneiderman v. United States, 320 U.S. 118, 165 (1943) (Rutledge, J., concurring)