Uphill All the Way: The Fortunes of Progressivism, 1919-1929
By Kevin C. Murphy, Copyright 2013. All Rights Reserved.

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Chapter Six: Legacies of the Scare
Progressives, Civil Liberties, and Labor

III. The Laws and the Court

I. The Education of Jane Addams.
II. Prisoners of Conscience.
III. The Laws and the Court.
IV. Shoemaker and Fish-Peddler.
V. The Shame of America.
VI. The Right to Organize.
VII. Professional Patriots.

Time and again, Borah invoked the constitution to plead the case for the political prisoners. He did much the same in his attempts to repeal the laws that had put them in jail. "May I trespass upon your time long enough to read from an ancient document known as the Constitution of the United States," he told one New York audience in 1923. "It is so simple and so plain that a man need not be a lawyer in order to understand it." Citing the First Amendment, Borah contended that "every clause, every line, every paragraph of that Great Charter obtains in time of war just the same as in time of peace." Thus, he argued, the Espionage Act of 1917 is, and always had been, unconstitutional. As he put it to one Idaho constituent, "I opposed to the utmost of my ability and voted against all provisions of the Espionage law providing punishment for expressions or opinions either by speech or in writing. I thought then, and I think now, that such provisions were contrary to the letter of the Constitution, and I know they were contrary to the spirit of our institutions and at war with the whole theory of free government."1

As it happened, repealing the Sedition Act amendments to the Espionage Act was not a particularly contentious question. Even A. Mitchell Palmer, who still believed some sort of law "against the attempt or threat to injure or destroy the government of the United States by force of violence" was necessary, told the Senate investigatory subcommittee that he "went on record…within 30 days after I became Attorney General in favor of the repeal of the espionage act." (By this, Palmer meant the Sedition amendments.) As such, the Sedition Act amendments were taken up by Congress soon after Harding's election, and repealed on December 13, 1920.2

But not everyone agreed it was time to roll back sedition laws. In the summer of 1921, Senator Thomas Sterling tried once again to pass his more stringent Sedition Act, which had passed the Senate but failed in the House the year before. The Sterling bill "will clamp the lid on free speech tighter than ever," the ACLU warned in a mass mailing. "It must be stopped, and will be if Senate leaders say the word." The Union knew just the right Senate leader to go to. "I know that you are opposed to measures of this character," ACLU co-director Albert DeSilver wrote Borah when the Sterling bill was reported, "and I write to inquire what useful steps can, in your opinion, be taken at this time to insure against its passage."3

DeSilver wasn't the only concerned citizen asking Borah to move into action against Sterling's sedition law. "I want to go on record as vigorously opposed to this bill and any other bill which would further curtail the rights of the people, or interfere with the constitutional rights of free speech, free press, and free assemblage," wrote a banker from Buffalo to Borah. "Let us do away with un-American propaganda, masked as 'pure' Americanism." "You can imagine how I feel in the matter," Oswald Villard wrote the Idaho Senator. "[S]uch legislation is utterly unnecessary and…constitutes a grave danger to our institutions through the possibility of its arousing the very evils it purports to prevent." In the words of one Wellesley professor to Borah, "it seems foolish to urge you to oppose the Sterling Sedition Bill, since all your political life indicates that you will do so gladly and without urging. No one wants it save a few old ladies - and some of your colleagues. Palmerism has seen its day "4

Borah was inclined to agree. "I am very much opposed to the Sterling Sedition bill," he told Villard, "and I do not believe it has any chance of passing, although of course, there are some who are very much in favor of it." Nonetheless, to further weaken its chances, Borah introduced an amendment to the Sterling bill calling for a five-year prison sentence, or a $10,000 fine, for any "officer, agent, or employee of the United States in the civil, military, or naval service who injures, oppresses, threatens, or intimidates any person in the free exercise or enjoyment of any right or privilege secured or guaranteed to him by the Constitution or laws of the United States."5

The amendment also criminalized attempts "by force, threat, intimidation, order, advice, or otherwise…to prevent any person from freely exercising his rights, privilege, or immunity by lawful means to advance, promote, agitate for, or discuss any amendment to the Constitution of the United States." And it banned any warrantless attempt to search a room, seize papers, or otherwise "enter a hall, room, or other premises for the purpose of obstructing, interfering with, or breaking up any meeting." "Glad to see you put out a fine amendment," Villard wrote Borah. The Survey similarly thought Borah's "very interesting amendment" to the Sterling bill would "'pull its teeth' so far as practical enforcement was concerned." This "admirable move," the ACLU's DeSilver thought, "will make some of those who favored Senator Sterling's bill hesitate about starting the debate on it."6

But even if the Sterling sedition bill could not pass, the original Espionage Act remained on the books, including the provision, Title XII, allowing for censoring of the mail. In September 1921, after the Sterling issue had died down, Roger Baldwin wrote Borah reminding him that "when certain matters in connection with foreign affairs were out of the way, you would stand sponsor for the repeal" of Title XII. Borah asked the ACLU to draft a bill for him, which the Union's co-director, Albert DeSilver, sent along in early October. "I know that I do not need to suggest to you the dangers which inhere," in Title XII, he wrote to Borah. "Such vague powers should not reside in administrative officials in peace time, it seems to me." This exchange of letters was enough to get Borah listed in Elizabeth Kirkpatrick Dilling's lurid 1934 anti-communist expose, The Red Network, as a "pro-Soviet" sleeper agent. But the bill, if Borah ever in fact introduced it, didn't go anywhere. The Espionage Act, while amended in 1940 and thereafter, remains law up to the present day.7

"It sometimes seems that the less law one knows," Borah said in a March 1923 speech on political prisoners, "the better he understands the Constitution!" In fact, the civil liberties protections Borah and others assumed were stated unequivocally in the First Amendment were to be litigated often during the 1920's. In most cases, the forces of reaction would win the day, while either dissents or the legal reasoning involved would carve out space for later rulings in defense of civil liberties.8

The same month Harding ascended to the White House, the Supreme Court handed down a 7-2 decision, Justices Louis Brandeis and Oliver Wendell Holmes dissenting, in the case of US Ex Rel. Milwaukee Social Democratic Pub. Co. v. Burleson. This case emerged from Wilson Postmaster General Albert Sidney Burleson's used of his Espionage Act powers to silence Victor Berger's Socialist newspaper, the Milwaukee Leader - the bone of contention being that Burleson, deeming past issues worthy of censorship, blocked mailing of all subsequent issues of The Leader as well. Could the Postmaster General issue a blanket ban of a publication based on previously published material? "It would not be possible for the United States to maintain a reader in every newspaper office of the country, to approve in advance each issue before it should be allowed to enter the mails," argued Justice John Hessin Clarke, writing for the majority. Instead of re-applying for their mail permit, Clarke argued, Berger and the Leader "preferred this futile litigation, undertaken upon the theory that a government competent to wage war against its foreign enemies was powerless against its insidious foes at home."9

Progressives vehemently disagreed. In his dissent, Justice Brandeis wrote that "[i]f, under the Constitution, administrative officers may, as a mere incident of the peace-time administration of their departments, be vested with the power to issue such orders as this, there is little of substance in our bill of rights, and in every extension of governmental functions lurks a new danger to civil liberty." "No more vicious and dangerous decision has ever been handed down by the Supreme Court of the United States," proclaimed The Nation, who saw its own existence at stake. "[A]ny ordinary publication would be ruined. This is not a war-time decision. It grants permanent despotic power to one single government official." "[W]ithout any jury, without any court," Zechariah Chafee argued in the same magazine, a Postmaster General "can punish by extinction a periodical which ventures to discuss problems of sex and family life when he considers obscene though many others think them valuable." No other decision, Chafee concurred, "has gone so far in sustaining governmental powers over the press."10

The following year saw the first of several decisions of note in the civil liberties space that revolved around the appropriate application of due process. First was the case of Ng Fung Ho v. White, in which four men of Chinese descent challenged their deportation, two of them on the grounds that they were American citizens. Justice Brandeis, writing the unanimous opinion of the court in May 1922, agreed. "To deport one who so claims to be a citizen," he wrote, "obviously deprives him of liberty." The Court reversed the deportation order of the two probable citizens, arguing that they were "entitled to a judicial determination of their claims" under the due process clause of the Fifth Amendment.11

In February 1923, the Court heard the case of Meyer v. Nebraska, a 7-2 decision that would have broad implications for the future of jurisprudence. The case arose from the May 1920 arrest of a Nebraska schoolteacher, Robert Meyer, for instructing his students in the German language - He was caught by a local attorney having a fourth-grader read the story of Jacob's Ladder from the Bible in German. This was a violation of Nebraska's Siman Act, passed in April 1919, which forbid instruction in or of any language other than English. In June 1923, conservative Justice James McReynolds, writing for the seven member majority, argued the Siman Act violated the due process clause of the Fourteenth Amendment, in that it infringed on both Meyer's right-to-work and parents' right to determine the course of their children's education.12

For several decades, as perhaps best embodied in the Lochner case of 1905, the Court had determined that the due process clause in the Fourteenth Amendment guaranteed liberty of contract and the rights of property, but this had previously mainly been used to uphold the rights of corporations and to block progressive regulations of them. But McReynolds' application of the same clause to guarantee Meyer's right to work as an educator was relatively new ground for the Court. "While this court has not attempted to define with exactness the liberty thus guaranteed," McReynolds wrote, "the term has received much consideration and some of the included things have been definitely stated":
Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men…The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.1
"That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear," Justice McReynolds concluded, "but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution -- a desirable end cannot be promoted by prohibited means."14

The Court expanded on this reasoning two years later in Pierce v. Society of Sisters, a unanimous decision overturning Oregon's 1922 Compulsory Education Law, which mandated that all students between the ages of eight and sixteen attend public schools. Educator John Dewey had argued this Oregon law "seems to strike at the root of American toleration and trust and good faith." Writing again for the majority Justice McReynolds argued that the parochial and Catholic schools bringing the case "have business and property for which they claim protection" under the Fourteenth Amendment's due process clause, and which "are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools." In addition, McReynolds argued, "[u]nder the doctrine of Meyer v. Nebraska…we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children."15

The Pierce decision, Felix Frankfurter argued, rendered "immediate service on behalf of the essential spirit of liberalism." It and Meyer would pay dividends further down the road as well. In taking these first tentative steps to expand the Fourteenth Amendment's due process clause to personal rights other than liberty of contract, the Court unwittingly fashioned the beginnings of the legal reasoning that would flower in later seminal cases such as Loving v. Virginia, Griswold v. Connecticut, and Roe v. Wade. This broadening of the Fourteenth Amendment's applicability was also evident in one of the major civil liberties cases of the decade, and the first in which the ACLU would play a substantive role, Gitlow v. New York.16

In 1919, as part of the November sweep conducted by A. Mitchell Palmer and New York authorities, Socialist-turned-Communist Benjamin Gitlow had been arrested and charged under New York's criminal anarchy law for passing out The Revolutionary Age, a pamphlet which included "The Left Wing Manifesto," a statement of Socialist philosophy which included the expected overthrow of capitalism. ("A dull document," according to TNR. "Any agitator who read these thirty-four pages to a mob would not stir them to violence, except possibly against himself.") Gitlow was defended in Court by two lawyers from the National Civil Liberties Bureau, Charles Recht and Walter Nelles, as well as one of the great defenders of the age, Clarence Darrow. "Oh, I know you are innocent," Darrow told Gitlow upon taking the case sight unseen, "but they have the country steamed up. Everybody is against the Reds." Darrow argued in the subsequent trial that there should be "no fetters on the thoughts and actions and dreams and ideals of men, even the most despised of them. Whatever I think of their prudence, whatever I think of their judgment, I am for the dreamers." In February of 1920, the judge and the jury were not. Gitlow was convicted and given the maximum sentence of five to ten years.17

Once it had wended its way to the Supreme Court, one of the ACLU's top lawyers, Walter Pollak, joined Walter Nelles as Gitlow's remaining counsel. Pollak and Nelles argued to an unsympathetic Court that New York's criminal anarchy law violated Gitlow's First Amendment right to free speech. Only three years earlier, in 1922, the Court had determined once again in the case of Prudential Insurance. Co. v. Cheek that First Amendment protections did not carry over into state law. But this, Pollak argued, was a problem, because the due process clause of the Fourteenth Amendment should extend First Amendment protections to state law.18

The final 7-2 majority opinion in Gitlow v. New York, written by the newest member of the Court, Justice Edward T. Sanford, upheld Benjamin Gitlow's earlier conviction, on the grounds that "a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means." But, in making this determination, the Court also argued that "for present purposes we may and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Oliver Wendell Holmes and Louis Brandeis, writing in dissent, agreed that "the general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used." They thought Gitlow's conviction should be overturned, on the grounds that it did not meet the "clear and present danger" test established in Schenck.19

Either way, the Court had now taken the unprecedented step of extending First Amendment protections to the States. In the words of TNR - who otherwise thought that Gitlow's conviction showed America has "lost vision and courage; The Left Wing Manifesto is a tepid hash of the Communist Manifesto of Marx and Engels" - a "profit and loss account of the Gitlow case shows one new gain, the possibility of federal protection against state suppression. A more liberal Court may prevent a checker-board nation, with ultra-conservative states into which moderately radical Americans come at peril of imprisonment for sedition." One of the legal minds greatly perturbed by this shift was Charles Warren, soon to be Calvin Coolidge's rejected candidate for Attorney General. "This most recent development," he argued in 1925, "may well awaken serious thoughts as to whether there is not danger that the 'liberty' of the States is being unduly sacrificed to this new conception of 'liberty' of the individual…If the doctrine of the case is carried to its logical and inevitable conclusion, every one of the rights contained in the Bill of Rights ought to be and must be included within the definition of 'liberty,' and must be guaranteed by the Fourteenth Amendment against deprivation by a State 'without due process of law.'" And so they would be.20

Another notable victory-in-defeat for the ACLU and civil liberties advocates occurred in the 1927 case of Whitney v. California. Here again, the defendant was a Communist who had been arrested in November 1919 and was convicted under a state criminal anarchy law. This time, the agitator in question was California social worker Charlotte Anita Whitney, who had been charged with "criminal syndicalism" for advocating the Communist Labor Party and the workers' overthrow of capitalism. And once again, Walter Nelles and Walter Pollak of the ACLU represented Whitney before the highest court in the land.21

Anita Whitney lost her appeal 9-0, with Justice Sanford, writing for seven members, concluding that "the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose." As such, "a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means." In short, the Majority concluded, "[w]e find no repugnancy in the Syndicalism Act as applied in this case to either the due process or equal protection clauses of the Fourteenth Amendment on any of the grounds upon which its validity has been here challenged."22

However, in a concurring opinion, Louis Brandeis argued for he and Oliver Wendell Holmes that they were "unable to assent to the suggestion in the opinion of the Court that assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass action at some date necessarily far in the future, is not a right within the protection of the Fourteenth Amendment." (Instead, they upheld the conviction on other evidence of a criminal conspiracy.) In short, the "clear and present danger" test, Brandeis argued, was being too broadly applied.23

"Despite arguments to the contrary which had seemed to me persuasive," Brandeis argued, returning to the Meyer, Pierce, and Gitlow cases, "it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus, all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights." Moreover, he continued:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties…They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.24
"Fear of serious injury," Brandeis and Holmes argued, "cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one." In short, "[t]he fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State." Otherwise, "the remedy to be applied is more speech, not enforced silence."25

With the Whitney case, as with Gitlow, civil libertarians lost the battle and won the war. Justice Brandeis's concurrence would go down in legal history as one of the more eloquent summations of the importance of free speech in case law. (In fact, much of Brandeis's most memorable language was originally meant to be a dissent in the 1927 case of Ruthenberg v. Michigan, upholding the conviction of Communist Charles Ruthenberg under a similar criminal anarchy law. But Ruthenberg died before the opinions were published and the case was voided.)26

But even if together, the ACLU, civil libertarians, and the progressive members of the Court had succeeded in establishing the sanctity of free speech and the authority of the First Amendment over state law, there were still notable and grotesque limits to their vision of what constituted individual liberties. Take for example, the now-notorious 1927 case of Buck v. Bell.

Born in 1906 in Charlottesville, Virginia, Carrie Buck was a young woman to whom life had been decidedly unkind. Born to a father who abandoned her and a mother, Emma, who reportedly worked as a prostitute, Carrie was given to foster parents and upstanding members of the community, J.T. and Alice Dobbs, at the age of three. She attended school through the sixth grade, and then became a maid and helper to the Dobbs family. When Carrie was 14, her foster father, a local police officer, succeeded in getting her biological mother Emma committed on the grounds of feeble-mindedness. In 1923, at the age of seventeen, Carrie was raped by the Dobbs' nephew, Clarence Garland. And, in January of 1924, two months before giving birth to a daughter, Vivian, from this rape, Carrie herself was committed by the Dobbs to the Virginia Colony for Epileptics and Feeble-Minded. There, it was determined by eugenicists that traits like feeble-mindedness, "moral delinquency," and promiscuity had been passed down three generations, from Emma to Carrie to Vivian Buck - the latter because, at the age of seven months, Vivian had given a nurse a look that was "not quite normal." (In another tragedy in a life full of them, Vivian, actually considered a "bright" child who made the school honor roll, would perish at the age of eight from intestinal illness.)27

And so, Carrie was slated to become the first mandatory sterilization performed under Virginia's new 1924 Sterilization Law. As it happened, the major proponent of this sterilization law was the Superintendent of the Virginia Colony, Dr. Charles Priddy - who up to that point had been conducting illegal sterilizations under the auspices of "pelvic disease." And, so to strengthen the statute and protect the Colony from liability, Priddy specifically chose Carrie's situation as a test case to go before the courts. Enlisting a former member of the Colony Board and friend-of-a-friend Irving Whitehead to go through the motions as counsel for the ostensibly feeble-minded plaintiff, Priddy put forth a challenge to the law that argued Carrie's sterilization would be "void under the Fourteenth amendment as denying to the plaintiff in error due process of the law and equal protection of the laws." Priddy died of Hodgkin's disease before the case reached the Supreme Court, and so the new superintendent of the Virginia Colony, James H. Bell, became the defendant.28

In May 1927, Oliver Wendell Holmes -- who was on record as a supporter of eugenics -- penned a decision for the eight-member majority that even his colleagues thought was "brutal." (Justice Pierce Butler, a conservative Irish Catholic, silently dissented.) "We have seen more than once that the public welfare may call upon the best citizens for their lives," noted the Civil War veteran:
It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…Three generations of imbeciles are enough.29
As for the due process question, Holmes barely addressed it. "It is the usual last resort of constitutional arguments to point out shortcomings of this sort," he harrumphed. And, besides, "so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached."30

On October 19, 1927, Carrie Buck's fallopian tubes were removed. She would be the first of over eight thousand men and women legally sterilized in the Commonwealth of Virginia, the most outside of the considerably more populous state of California. (The total number of sterilizations across the country was roughly 65,000.) Among them would be Carrie's sister Doris, who was hospitalized for "appendicitis" at the age of 16 and did not find out until 1979, at the age of 67, why she and her husband were never able to have children. Before she died alone in a nursing home in 1983, Carrie Buck was interviewed by researchers and historians, and found to be of normal intelligence.31

While later generations would condemn Holmes' lazy reasoning in Buck v. Bell, especially after it was cited as a defense by lawyers representing Nazis at Nuremberg, the civil libertarians of the time were universally silent. Neither the ACLU, under Baldwin, nor the NAACP, under DuBois, objected to the decision. Neither The New Republic nor The Nation made any editorial comment. For all their grasping towards "a new conception of liberty of the individual," in Charles Warren's words, the progressives and civil libertarians of the 1920's still felt Theodore Roosevelt's dire forebodings of "race suicide" were a more fundamental concern to society than was Carrie Buck's control of her own body.32

Continue to Chapter 6, Pt. 4: The Shoemaker and the Fish-Peddler.

Return to the Table of Contents.

1. William Borah, "Political Prisoners," March 11, 1923, WJB Box 166: Speeches 1923-1924, 12-13. Borah to Dan L. Lindsley, January 17, 1922, WJB Box 105: Amnesty for Political Prisoners.
2. "Amnesty and Pardon for Political Prisoners," US Senate, 83. Stone, 230.
3. "Civil Liberty! Will Wolves Guard the Sheep?", Industry, April 15, 1922, 13-14. Albert DeSilver to Borah, May 28, 1921. WJB, Box 102: Sterling Sedition Bill.
4. William Taylor to Borah, June 11, 1921. WJB, Box 102: Sterling Sedition Bill. Villard to Borah, June 23, 1921. WJB, Box 102: Sterling Sedition Bill. Horace B. English to Borah, June 11, 1921. Box 102: Sterling Sedition Bill.
5. Borah to Villard, June 24, 1921. WJB, Box 102: Sterling Sedition Bill. S.1375 Amendment, June 6, 1921. Box 102: Sterling Sedition Bill.
6. S.1375 Amendment, June 6, 1921. Box 102: Sterling Sedition Bill. Villard to Borah, June 23, 1921. WJB, Box 102: Sterling Sedition Bill. "The New Sterling Bill," The Survey, June 25, 1921, 428. Albert DeSilver to Boah, June 11, 1921. WJB, Box 102: Sterling Sedition Bill.
7. Baldwin to Borah, September 26, 1921. WJB, Box 92: Espionage (1920-1921). Borah to Baldwin, September 27, 1921. WJB, Box 92: Espionage (1920-1921).Albert DeSilver to Borah, October 7, 1921. WJB, Box 92: Espionage (1920-1921). Elizabeth Kirkpatrick Dilling, The Red Network: A Who's Who Handbook of Radicalism for Patriots, (Chicago: Ayers Publishing, 1934), 266.
8. William Borah, "Political Prisoners," March 11, 1923, WJB Box 166: Speeches 1923-1924, 12-13.
9. US Ex Rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921).
10. Ibid. The Nation, March 16, 1921 (Vol. 112, No. 2906), 391. Zechariah Chafee, Jr., "The Milwaukee Leader Case," The Nation, March 23, 1921 (Vol. 112, No. 2907), 428-429.
11. Ng Fung Ho v. White - 259 U.S. 276 (1922). Paulson, 187.
12. Capozzola, 194-197.
13. Ibid. Meyer v. Nebraska - 262 U.S. 390 (1923).
14. Ibid. One of the two dissenting justices in the case was Oliver Wendell Holmes. "It is with hesitation and unwillingness that I differ from my brethren with regard to a law like this," Justice Holmes wrote, "but I cannot bring my mind to believe that, in some circumstances…the statute might not be regarded as a reasonable or even necessary method of reaching the desired result… No one would doubt that a teacher might be forbidden to teach many things, and the only criterion of his liberty under the Constitution that I can think of is "whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat." Bartels v. Iowa - 262 U.S. 404 (1923) In 1927, the Court would find similarly in the case of Farrington v. Tokushige, which disallowed mandatory permits in Hawaii that were required for teaching in a foreign language. Farrington v. Tokushige, 273 U.S. 284 (1927).
15. Pierce v. Society of Sisters - 268 U.S. 510 (1925). John T. McGreevey, Catholicism and American Freedom (New York: W.W. Norton, 2003), 182.
16. McGreevey, 182. Justia.com, "Development of the Right to Privacy," http://law.justia.com/constitution/us/amendment-14/30-right-of-privacy.html
17. Ronald K.L. Collins and Sam Chaltain, We Must Not Be Afraid to Be Free: Stories of Free Expression in America (New York: Oxford University Press, 2011), 25-26. "The Gitlow Case," The New Republic, July 1, 1925, 141. Nancy Cornwell, Freedom of the Press: Rights and Liberties Under the Law (Santa Barbara: ABC-Clio, 2004), 86-87.
18. Cornwell. Collins and Chaltain, 28-32. When Pollak asked the Court for an extra fifteen minutes to make his opening case, Oliver Wendell Holmes - once a recipient of a mail bomb - was heard to say in a loud whisper, "I'll see him in Hell first." The request was denied. Collins and Chaltain, 32.
19. Gitlow v. People of State of New York 268 U.S. 652 (1925). Collins and Chaltain, 32.
20. "The Gitlow Case," The New Republic, July 1, 1925, 142. Collins and Chaltain, 33.
21. Whitney v. California, 274 U.S. 357 (1927).
22. Ibid.
23. Ibid.
24. Ibid.
25. Ibid.
26. Ronald Colins and David Skover, "Curious Concurrence: Justice Brandeis's vote in Whitney v. California," 2005 Supreme Court Review 333.
27. John Warren Akin, "Inherited Realities: Oliver Wendell Holmes, Jr., and Buck v. Bell," The Tower, Spring 2009 (Vol. 1, No 2), 1-6. Stephen Jay Gould, "Carrie Buck's Daughter," Natural History, July-August, 2002. Paul Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Baltimore: John Hopkins, 2008), ix-xi, 1-6.
28. Ibid. William Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 7-11.
29. Buck v. Bell - 274 U.S. 200 (1927) Regarding Butler's dissent, Holmes said, "Butler knows this is good law, I wonder whether he will have the courage to vote with us in spite of his religion." The infamous "three generations" language was suggested to Holmes by another supporter of eugenics, Chief Justice William Howard Taft. Leuchtenburg, 15, 20.
30. Buck v. Bell - 274 U.S. 200 (1927)
31. Leuchtenburg, The Supreme Court Reborn, 23-25. Lonardo, i-vi.
32. Ellen Chesler, Woman of Valor: Margaret Sanger and the Birth Control Movement in America (New York: Simon & Schuster, 1992), 485.

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