Uncivil Liberties: Review of The American Civil Liberties Union and the Making of Modern Liberalism
When Anthony Romero, executive director of the American Civil Liberties Union (ACLU) since 2001, has a bad day, he ought to pull down from the shelf this remarkable history of his organizational ancestors. It might perk him up.
Romero has been having more than a few bad days lately. Taking
office just four days before the September 11 attacks, he was plunged
into the greatest civil liberties crisis since the Palmer Raids and
other World War I–era abuses spawned the ACLU’s founding in 1920. For
five years, he’s had to work overtime, forging alliances on the right
and left while fighting the Bush Administration and its allies on
everything from torture to domestic surveillance. But Romero’s bad days
haven’t been caused totally by his adversaries in government, though.
It’s his friends he has to worry about, too. While not taking issue
with the organization’s ardor and effectiveness, a few ACLU board
members have complained publicly about what they see as serious lapses
of principle and transparency on several internal matters, using no
less than the New York Times (which has run a half-dozen articles on
the conflict) as their platform. The longtime ACLU director whom Romero
succeeded, Ira Glasser, has called for his removal, along with board
President Nadine Strossen, and joined the renegade (now former) board
members in forming a committee to “Save the ACLU.” (To Romero’s relief,
Glasser’s and Strossen’s immediate predecessors, along with numerous
other former officials, have been outspoken in support of the current
management.)
There are few activist organizations, liberal or conservative, that
could stand up to the spotlight recently shone on the ACLU. But as Judy
Kutulas–a professor of history and American studies at St. Olaf’s
College–exhaustively demonstrates in The American Civil Liberties Union and the Making of Modern Liberalism, 1930–60,
where the ACLU is concerned, there was never a golden age. In her
account of three of the organization’s early decades, Kutulas doesn’t
pull any punches in exposing how far short of its mission the ACLU has
fallen on numerous occasions. A few egregious examples: Roger Baldwin,
an ACLU founder who lived long enough (he died at 97) to be treated as
a Mandela-like figure, covered up declines in ACLU membership; cozied
up to congressional investigators and the FBI; and abused his staff and
involved them in his personal work. When the vote of the ACLU
affiliates went against the leadership’s position in a referendum in
the 1950s, Baldwin’s successor, Patrick Murphy Malin–in a move that
would have done the late Mayor Richard Daley proud–pushed the Chicago
branch to conduct a phone ballot of members, reversing the outcome. And
later, when anticommunist board members, following what was clearly
already a long-standing ACLU tradition, leaked board discussions to the
press, Malin threatened “possible removal” of any officer “who may be
guilty.”
Kutulas’s book covers only the period from 1930 to 1960 when, in her
view, the ACLU completed the transformation from its radical roots to
the liberal mainstream, professionalizing and bureaucratizing along the
way. But, had she brought it up to the present day, she could have come
up with many other instances of such internecine conflict. In 1976, the
Washington director was forced out for making supposedly partisan
statements. The same year saw a divisive challenge to a disputed
national board election in which a staff member beat the bushes for
extra votes in conservative precincts, lifting a right-leaning board
member to victory. It’s easy to understand why the New York Times
headlined Anthony Lukas’s 1978 profile “The ACLU Against Itself.” So
Romero can take comfort from the fact that internal intrigue and
conflict has a long and colorful history in the nation’s leading civil
liberties group. But he can also take pride, as those of us who support
the ACLU do, that despite the organizational chaos, the ACLU has long
since overcome a tendency to flinch when core civil liberties
principles are under public assault. From standing up for those
detained without charge at Guantánamo to litigating against
“intelligent design” in Pennsylvania, the ACLU has been a force for
liberal principles.
Kutulas’s exhaustive–and, at times, exhausting–chronicle of its
early years not only shows an organization navigating the rough Red
Scare seas of mid-twentieth century America, but it also demonstrates
how liberal organizations are nourished and sustained by their
grassroots, an instructive lesson for progressives at this critical
moment in American life.
I have a more than casual relationship with the ACLU. I was
appointed to its Academic Freedom Committee while a freshman at
Columbia University in 1972, and I wrote its 50th anniversary history a
few years later. I met Roger Baldwin on my first visit to the ACLU
office and saw him regularly until he died on my birthday, in 1981. I
worked for two ACLU affiliates in the 1980s, served on the National
Board and Executive Committee for seven years in the 1990s, and chaired
the ACLU’s Free Speech and Association Committee as well as its 75th
Anniversary Conference. When the ACLU received hundreds of files on the
organization from the FBI in 1977, I was the young staff member tasked
to spend the summer in a back office, looking at every page and
flagging instances of the FBI’s perfidy–and, most disturbingly, the
ACLU’s as well (four former officials fed the Bureau information on the
alleged communist ties of branch members and leaders). I know as much
about the Trotskyite/Schachtmanite arguments in the City College
cafeteria as any baby boomer who spent 12 years in parochial school
could be expected to know. Yet I learned much from Kutulas’s prodigious
research. I never knew that Groucho Marx joined the ACLU (apparently
suspending his well-known policy about not wanting to belong to any
club that would have him as a member). I didn’t know the ACLU was
popular enough to be invited to have its own booth at the 1939 World’s
Fair, while remaining controversial enough to slow down the Supreme
Court nominations of Frank Murphy and Felix Frankfurter on account of
their ACLU memberships. And while I always thought the ACLU was a bit
ahead of its times, at least in the early days, by having women in key
staff (Crystal Eastman and Lucille Milner) and board positions
(foundation official Mary van Kleeck, Helen Keller, and Jane Addams),
Kutulas makes a good case that they were in fact frequently
marginalized.
To be fair, most organizations sanitize their history, and the ACLU
is hardly an exception. But while today’s leaders concede that the
middle part of the last century was not the organization’s finest hour,
few understand just how often, and just how far short, the ACLU fell
from its purported ideal. In 1942, the national board voted two-to-one
to support the government’s right to in- tern citizens without a
declaration of martial law. It did nothing in 1942 when the Justice
Department ordered the U.S. Post Office to confiscate copies of Social
Justice, the magazine of the far-right priest Charles Coughlin. When
the United States prosecuted war opponents on seditious conspiracy
charges during World War II, holding them for years at a time and
trying them far away from the scene of their supposed crimes, the
ACLU’s Committee on Seditious Cases studied the matter and reported
that the defendants were adequately represented and that there was no
need for the ACLU to intervene.
Nor did it consistently stand up for civil liberties during the Red
Scare of the 1950s. When the Hollywood 10 declined to answer questions
from the House Un-American Activities Committee (HUAC) about their
political affiliations, anti-communist ACLU board members delayed and
diluted the group’s response so successfully–forcing a time- consuming
referendum on whether to file an amicus brief–that, according to
Kutulas, the ACLU “squandered its influence.” And when, after the war,
Communist Party leaders were tried under the Smith Act, which made it a
crime to advocate the overthrow of government, the ACLU at first did
nothing, despite the fact that it had testified against the law in
- While the board eventually took a close vote to ask the attorney
general not to bring additional prosecutions, it also instructed the
staff “not to issue any statements” that might imply an actual position
on this grave violation of civil liberties. The ACLU board and national
committee also supported the right of unions to bar communists as
officers, the exclusion of communists as permanent immigrants, and the
denial of naturalization to Communist Party members.
But, if the ACLU has such a checkered history, how did it earn its
reputation as a staunch defender of the Bill of Rights? In large part
it derives from the organization’s idealistic, radical roots. Look at
the membership of its National Committee in 1923. It included the
communist leaders Elizabeth Gurley Flynn and William Foster, the
pacifist member of Congress Jeannette Rankin, and prominent socialists
like Norman Thomas, Vida Scudder, and James Maurer. In that same year,
the ACLU published pamphlets such as “Amnesty for Political Prisoners,”
“Do We Need More Sedition Laws?”, and “Lynching and Debt Slavery”–at a
time when the defense of civil liberties was hardly the
mom-and-apple-pie position it is today. No civil liberties defender of
the 1920s could look to government–certainly not at the federal
level–or the courts as allies in these struggles. Instead, the ACLU had
to work hard to build ties with other elements of the left, including
labor and radical political parties. In so doing, the organization
developed a radical reputation of its own.
Over time, however, the ACLU became more conservative, relatively
speaking. The uneasy alliance between communists, socialists, and
liberals began to fray, in part because of the devious tactics of many
communists and in part because of the increasingly repressive
response of the government and the fear it engendered among the left.
It is difficult for progressives today to understand just how intense
these tensions were. As Baldwin, who made the journey from cheerleader
for the new Soviet Union to staunch anti-communist, put it in a 1975
interview with Alan Westin of the Civil Liberties Review, “I learned
the lesson that many others–but, unfortunately, not all
liberals–learned: that no movement in which communists participate can
successfully resist their manipulations for control. Whatever good they
did was more than destroyed by the partisan ends they served when the
common interest clashed with the party line, and by the confusions
between communists and noncommunist liberals.”
Within the ACLU, this split was mirrored by a rising division
between the trunk and the branch. The national leadership grew steadily
more conservative and mainstream, particularly with the rise of the
Roosevelt Administration and the access ACLU leaders had to it.
Meanwhile, the affiliates–especially on the West Coast–stayed true to
the organization’s radical roots. At first, I found Kutulas’s focus on
the affiliates a bit odd, particularly the way her chapters alternate
the perspectives of the national office and the field in each of the
decades under discussion, a sort of “Upstairs/Downstairs” approach to
ACLU history. But she makes a compelling case that the arcana of
organizational bureaucracy are important not just because they were
steps to broaden participation and counter the parochialism of the East
Coast establishment, but because they pushed forward the frontiers of
the organization’s work and kept it true to its core principles.
Through this narrative we see that the story of the ACLU’s oscillation
between idealism and compromise, in other words, is the story of the
power struggle between the central and East Coast establishments and
the Union’s affiliate base–and how these affiliates kept the ACLU
focused on its core mission, rejuvenating it when the organization
flagged.
Take the issue of Japanese-American internment during World War II,
one of the country’s most infamous incursions on civil liberties. The
national ACLU board, dominated by liberals eager to support FDR and the
war effort, preferred to work an inside track, limiting its protests to
violations of due process. But Ernie Besig of the Northern California
ACLU took a different tack. It was Besig and his affiliate that took
Fred Korematsu’s case to the Supreme Court, not Baldwin and the
national office. Indeed, Baldwin did his best to undermine Besig. In
one particularly rich but appalling anecdote, Kutulas describes Baldwin
lazing on the beach in Martha’s Vineyard with his family while on the
other coast Besig, whose own secretary had been interned, used scarce
gasoline rations to drive hundreds of miles to the Tule Lake internment
camp. While Besig conducted interviews with detainees, the camp
director called Baldwin, who authorized Besig’s expulsion. Officials
then escorted him to the car he had parked in a guarded lot, were Besig
found his gas tank filled with salt.
And it was the affiliates, particularly the California branches,
communist-influenced or not, who never wavered during the McCarthy
era, even as ACLU leaders tried to work the inside track with
then-Representative Richard Nixon and others on the HUAC. The tension
wasn’t borne of simple geography: Kutulas suggests that the class
backgrounds of national and affiliate leaders played a key part.
Baldwin, described by Anthony Lewis as a “patrician heretic,” took no
salary, thanks to a wealthy wife, and had homes in Greenwich Village,
Martha’s Vineyard, and the tonier northern reaches of New Jersey. In
contrast, three leaders of the Southern California branches in the
1930s included a former Catholic seminarian, a Russian-born labor
lawyer, and a social worker in a settlement house for Mexican
immigrants, all without family money or connections.
Toward the end of the 1950s, the ACLU had become a fairly staid
organization, and other groups on the left, such as Americans for
Democratic Action (ADA) and the NAACP, had more affiliates, larger
budgets, and bigger memberships. Yet today the ADA is virtually
moribund, and friends worry that the NAACP’s days of glory may be
behind it. The ACLU, on the other hand, has grown steadily since the
1960s, has a boldness that keeps it at the edge of controversy, and has
a capacity to act at the state and national level that has no parallel
among other membership organizations on the progressive side. Why?
The answer, which lies in the history Kutulas draws out for us but
which came to fruition after the period covered by her book, is that
the ACLU affiliates won their fight with the center establishment. In
the 1960s, Aryeh Neier, then the field director, greatly expanded the
number of ACLU affiliates and chapters [full disclosure: Neier is now
the president of the Open Society Institute, where I work.]. In 1965,
he took over the New York affiliate, and, along with his deputy, Ira
Glasser, reinvented the ACLU as an ally of protest movements and the
disenfranchised. With Neier’s narrow victory in the board vote for
executive director in 1970, a virtual coup of the affiliates took
place, and the activist approach they represented was once again the
organization’s dominant stance. When Glasser succeeded him as national
director in 1978, he continued the revolution, steadily shifting
resources to strengthen the affiliates. While there remained echoes of
the left-right ACLU split well into the last decades of the twentieth
century, and even faint reverberations today, on every key issue of
civil liberties policy–from protection for hate speech to defense of
terrorist suspects–the ACLU is, to borrow a term from the old
struggles, a united front.
The world we are living in very much reflects the ACLU’s impact.
Unfortunately, the backlash against the rights movement, with the
attendant culture wars along with the steady stoking of fear of crime
and terrorism, has shaken many who once called themselves liberals. You
don’t hear much about rights from most Democratic politicians. John
McCain is better known–and not all that deservedly–as a champion in the
fight against torture than any Democrat. The voice of the ACLU is
strong, but the rights culture is weaker in the corridors of power than
it has been for almost a century. Look at Democrats’ votes on
immigration and habeas corpus, or what they might have done had
President Al Gore or John Kerry claimed the stunning prerogatives of
unchecked executive power that the Bush Administration asserts. Thanks
to the triumph of the ACLU affiliates chronicled in this timely book,
if that were to happen, at least one organization would be calling them
to account for it. That is, assuming that today’s ACLU leaders don’t
succumb once again to the temptation to mute their public voices and
actions in order to play an inside game.
What should today’s progressives, or for that matter, today’s ACLU
activists, take from the saga Kutulas recounts? First, that attention
to the grassroots is essential to the vibrancy and health of any
progressive organization. Far too many advocacy groups, in contrast
with the ACLU, lack any real base beyond a handful of big foundation
funders, and as a result they shrink from boldness for fear of
offending their patrons. Second, that organizational structure matters,
and tending to it, while rarely glamorous, is essential to both the
capacity to act and the ability to remain relevant. And finally, that
principle–or, to use a recently touted term, values–matters above all.
When an organization drifts from it, even for seemingly pressing
tactical reasons, it loses not just its soul, but the very essence of
what ultimately makes it effective.