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War & Democracy 27 February 2006

Posted by Todd in Democracy, Democratic Theory, History, Political Commentary, Politics, Social Sciences.
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This week, one of my classes will be studying briefly the American response to World War I. The parallels between the Bush administration's "War on Terror" and the Wilson administration's efforts to garner support for and push America toward war seem too precise to be real: appeals to nationalism and democratic zeal, stifling of dissent, propaganda deployed unashamedly to manipulate public opinion, the interaction of business and Congress in the decision to declare war, and the erosion of Civil Rights in the name of "national security." Perhaps these are merely inescapable tropes of the modern democratic state, and it shouldn't be at all surprising that we're revisiting these things yet again in the 21st century.

At the end of WWI, when debates were raging over the League of Nations, the Wilson administration continued its clamp-down on dissent by using its propaganda office to stir up public fear against socialists, communists, and anarchists. I reread over the weekend the National Popular Justice League's 1920 report concerning U.S. Attorney General A. Mitchell Palmer's and the Justice Department's illegal and unconstitutional actions against American citizens and legal aliens. The NPJL enumerated five violations of the U.S. Constitution by the Justice Department, which they had documented: 1) cruel and unusual punishment; 2) arrests without warrant; 3) unreasonable searches and seizures; 4) provative agents [entrapment and intimidation]; and 5) compelling persons to witness against themselves [torture]. The words of their conclusion ring true 86 years later:

There is no danger of revolution so great as that created by suppression, by ruthlessness, and by deliberate violation of the simple rules of American law and American decency. It is a fallacy to suppose that, any more than in the past, any servant of the people can safely arrogate to himself unlimited authority. To proceed upon such a supposition is to deny the fundamental American theory of the consent of the governed. Here is no question of a vague and threatened menace, but a present assault upon the most sacred principles of our Constitutional liberty….

Unfortunately, I see no danger of revolution at all in 2006 America. Salon.com has an interview in today's issue if you want to see how depressingly we not only resemble, but surpass the Wilson administration and the NPJL's 1920 report.

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Comments

1. adam - 28 February 2006

Santayana’s openly mocking in his grave! How clearly we fail to learn.

2. Equality - 28 February 2006

I wrote a paper on this subject in Grad. School. It was an anlysis of Oliver Wendell Ho,mes and his contribution to First Amendment jurisprudence in some of the WWI cases that came up. Holmes was in an interesting position: he believed that the folks who were being charged by the governement were having their 1st amendment rights trampled upon but he was not in the majority most of the time, so he had to make a pragmatic decision about whether he could have greater impact by dissenting or by siding with the majority and writing some of the opinions. At first, he sided with the majority in some very restrictive cases. In the Schenck case, Holmes wrote for the majority in upholding the conviction of some defendants who had been charged under the Espionage Act of 1917 with distributing pamphlets designed to dissuade recruits from enlisting in the armed services. This is the case where Holmes articulated the famous “fire in a crowded theatre” example. Essentially, the case stood for the idea that a given expression might be protected in one context while not protected in another. The Schenck case was also the first time that Holmes introduced the “clear and present danger” doctrine. This is key because the clear and present danger doctrine is becomes entrenched in constitutional law with this case. Although the individual defendants in Schenck were not helped by it, the fact that Holmes wrote in the majority gave this doctrine more “legs” than it might have had if he had dissented. Holmes later argued in his dissent in the Abrams case for an interpretation of the clear and present danger doctrine that was more protective of free speech than what Schenck provided. Holmes’ dissent in Abrams became the club used by civil libertarians for generations after, but it would have been entirely ineffectual if it had not first been given the Supreme Court’s imprimatur in Schenck. The Abrams dissent is also notable for Holmes inclusion of a philosophical defense of free speech under the “marketplace of ideas” rationale. Unfortunately, the Court continued to rule over the objections of Holmes and Brandeis against free speech in the post-war “Red Scare” years of the early 1920s. But in the long run, the Holmes/Brandeis view won out and was expanded upon by the Court. And yes, the Espionage Act of 1917 is one of the greatest blights on American history, in my opinion. While there are parallels between some of the current acts and attitudes of the folks in power in Washington, really there is nothing close to the oppression produced by the Espionage Act of 1917.

3. Todd - 28 February 2006

Equality,

Thanks for posting this great historical analysis. I suppose I would have to agree with you, given that we haven’t started deporting U.S. citizens on the scale that they did based on the 1917 Espionage Act.

Yet I still feel there is something different going on today that frightens me. Perhaps I overstated in my original post that we are “worse” now than then, but at least when I look historically, Americans were up in arms and on the streets during the period from 1917-1924. It seems like today’s response is half-hearted at best. And I feel like the strucutres (i.e., the Patriot Act) side step all the Constitutional complaints which could be brought to bear in the early 1920s.

I am not a lawyer or legal historian, obviously, so would love to hear your response. I’m thinking in terms of the social structures being produced, and I have to wonder if the current readings of the constitution will have more lasting impact than the 1917 law did (although its immediate impact was more dire).


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