THE ADMINISTRATIVE ORIGINS OF MODERN CIVIL LIBERTIES LAW

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch’s suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to limit the reach of that state. Drawing on a wealth of unexplored archival material, this Article inverts the conventional story: It argues that lawyers within the executive branch took the lead in forging a new civil-libertarian consensus and that they did so to strengthen rather than circumscribe the administrative state. Tasked with implementing the World War I draft, Felix Frankfurter, Harlan Fiske Stone, and other War Department administrators embraced civil libertarianism as a tool of state-building, not a trump against state power.

* David Berg Foundation Scholar, NYU School of Law; Ph.D. Candidate, Yale University; J.D., Yale Law School. For their sharp insights, patient reads, and encouragement along the way, I am indebted to Bruce Ackerman, Jean-Christophe Agnew, Akhil Amar, Vince Blasi, Erin Braatz, Kiel Brennan-Marquez, Jessica Bulman-Pozen, Bo Burt, Christopher Capozzola, Tino Cuellar, Deborah Dinner, Norman Dorsen, Justin Driver, Ariela Dubler, Mary Dudziak, Stefan Eich, Liz Emens, Blake Emerson, Dan Ernst, Robert Ferguson, Ted Fertik, Willy Forbath, Katherine Franke, Beverly Gage, Josh Geltzer, Bob Gordon, Kent Greenawalt, Jamal Greene, David Grewal, Philip Hamburger, Daniel Ho, Daniel Hulsebosch, Ira Katznelson, Amalia Kessler, Sophia Lee, Jim Liebman, Kenneth Mack, Jerry Mashaw, Gillian Metzger, Sam Moyn, Bill Nelson, Burt Neuborne, Nick Parrillo, Christina Duffy Ponsa, Robert Post, Dave Pozen, Jed Purdy, David Rabban, Dan Richman, Reuel Schiller, Tom Schmidt, Reva Siegel, Bill Simon, Ganesh Sitaraman, Brad Snyder, Elli Stern, Peter Strauss, Karen Tani, Kendall Thomas, Louisa Thomas, Adam Tooze, Patrick Weil, Laura Weinrib, Jay Winter, and John Witt. Audiences at Columbia Law School, Harvard Law School, N.Y.U. School of Law, Stanford Law School, Yale Law School, the Center for Historical Enquiry and the Social Sciences at Yale University, and the American Society for Legal History caught many errors and sparked new lines of inquiry. Several institutions provided financial support: International Security Studies at Yale University, the Lyndon B. Johnson Foundation, the Smith Richardson Foundation, the Tikvah Center at NYU School of Law, the Tobin Project, and Yale University’s Graduate School of Arts and Sciences.