The Growth of Civil Liberties

• Author: Jack Fruchtman
• Profession: Professor of Political Science and Director of the Program in Law and American Civilization at Towson University, Maryland
• Pages: 154-171

American Constitutional History: A Brief Introduction, First Edition. Jack Fruchtman.

© 2016 John Wiley & Sons, Inc. Published 2016 by John Wiley & Sons, Inc.

11

The Growth of Civil Liberties

In the twentieth century, the Court focused a great deal of attention

on the rights and liberties encompassed in the First Amendment.

During the welfare state republic, the federal government expanded

citizens’ rights and liberties. This expansion required the Court to

incorporate most of the remaining provisions of the first eight amend-

ments into the due process clause of the Fourteenth Amendment

and apply them to the states. These included specific and implied rights

of criminal suspects, the separation of church and state, and the right

to privacy.

Free Expression

The post World War II era experienced a replay of the Red Scare of

the 1920s. Although the Soviet Union was an ally of the United

States and Britain during the war, the relationship dissolved into the

Cold War, which lasted for 53 years: from the fall of Poland and

Czechoslovakia to communism in 1948 until the dissolution of the

Soviet Union in 1991. Many members of Congress feared that the

threat of communism to American democracy posed the greatest

threat to the United States. In 1940, even before America’s entry

into World War II, Congress passed the Alien Registration or Smith

Act, the first peacetime sedition law since the Alien and Sedition Acts

The Growth of Civil Liberties 155

of 1798. It made it illegal for anyone to teach or advocate the

overthrow of the US government through force or violence.

During his 1948 run for re‐election, President Harry Truman

needed to appear strong on communism. Attorney General Tom Clark

asked J. Edgar Hoover, director of the Federal Bureau of Investigation

(FBI), to round up dozens of New York communists on suspicion of

being Soviet spies. Some were engaged in espionage, others were not.

Among those arrested were Eugene Dennis and 10 comrades. A federal

district court convicted them of violating the Smith Act when they

were caught teaching themselves communism, chiefly from four books

by Karl Marx, Vladimir Lenin, and Joseph Stalin, and a history of the

Soviet Communist Party. Judge Learned Hand, who in 1919 had

helped persuade Holmes to change his mind about clear and present

danger, rejected their appeal when it reached the United States Court

of Appeals for the Second Circuit. Hand upheld their convictions and

created a new judicial formula based on Holmes’s clear and present

danger test. Courts must consider “whether the gravity of the ‘evil,’

discounted by its improbability, justifies such invasion of free speech as

is necessary to avoid the danger.” He determined that the gravity of

the evil was indeed very great.

When the case reached the Supreme Court in 1950, the justices,

voting six to two, adopted the Hand formula. Justice Tom Clark,

Truman’s former attorney general, recused himself, because he had led

the original roundup of the men. In Dennis v. United States, Chief

Justice Fred Vinson (1946–1953), who succeeded Stone, wrote that

the appellants had organized themselves into a political party designed

to overthrow the government of the United States: “speech of this sort

ranks low.” Words “cannot mean that before the Government may act,

it must wait until the putsch is about to be executed, the plans have

been laid and the signal is awaited.” Congress must protect the nation,

because the men involved in this case comprised “a conspiracy which

creates the danger.”

The Court dealt with other communist‐oriented speech cases in the

1950s and early 1960s. The justices in Yates v. United States overtur ned

the convictions of second‐tier communists in 1957, but declined to

overturn the Smith Act. Joining the Court in 1955, John Marshall

Harlan, grandson of the first John Marshall Harlan, abandoned clear

and present danger and instead promoted a balancing test. He thought