Weinrib on Civil Liberties in World War I

Laura M. Weinrib, University of Chicago Law School, has posted Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken, which is forthcoming in the Emory Law Journal:    

This Article examines the relationship between expressive freedom and freedom of conscience in the formative years of the modern First Amendment. It focuses on efforts by the American Union Against Militarism and National Civil Liberties Bureau — the organizational precursors to the ACLU — to secure exemptions from military service for conscientious objectors whose opposition to American involvement in the First World War stemmed from socialist or radical labor convictions rather than religious scruples. Although such men asserted secular, ethical objections to war, advocates strained to expand the First Amendment’s free exercise clause to encompass them. Concurrently, they sought to import a generalized theory of freedom of conscience into constitutional constructions of freedom of speech and press, within and outside the courts. The conception of liberty of conscience that they advanced, which they linked to an “Anglo- Saxon tradition” of individual rights, clashed with Progressive understandings of democratic citizenship and failed to gain broad-based traction.

Civil liberties advocates consequently reframed their defense of political objectors in terms that emphasized democratic dissent rather than individual autonomy. Sympathetic academics and a few judges embraced this Progressive theory of free speech, which celebrated discursive openness as a prerequisite for democratic legitimacy and justified, rather than cabined, the exercise of state power. Even in the interwar period, however, the proponents of this vision remained deeply ambivalent about the courts and generally hostile to individual rights. Although some accepted a limited role for judicial enforcement of the First Amendment’s speech clause, most declined to endorse a court-centered and constitutional right to exemption from generally applicable laws.