Presidents and Civil liberties from Wilson to obama This book is a history of the civil liberties records of American presidents from Woodrow Wilson to Barack Obama. It examines the full range of civil liber- ties issues: First Amendment rights of freedom of speech, press, and assem- bly; due process; equal protection, including racial justice, women’s rights, and lesbian and gay rights; privacy rights, including reproductive freedom; and national security issues. The book argues that presidents have not pro- tected or advanced civil liberties, and that several have perpetrated some of the worst violations. Some Democratic presidents (Woodrow Wilson and Franklin D. Roosevelt), moreover, have violated civil liberties as badly as some Republican presidents (Richard Nixon and George W. Bush). This is the first book to examine the full civil liberties record of each president, allowing us to place a president’s record on civil rights, for example, in the context of his record on national security issues and to compare the performance of all the presidents covered on particular issues. Samuel Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha. He is author of thirteen books on civil liberties, criminal justice, and policing. They include In Defense of American Liberties: A History of the ACLU (1990), Hate Speech (1994), and Sense and Nonsense about Crime (7th ed., 2012). He is a frequent commentator on criminal justice and police issues in the national news media and has appeared on CNN, NBC, NPR, PBS Frontline, and the History Channel. He has served as a consultant to the U.S. Justice Department and local community groups on police problems. Presidents and Civil liberties from Wilson to obama A Story of Poor CuStodiAnS Samuel Walker University of nebraska at omaha cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, NY 10013-2473, USA www.cambridge.org Information on this title: www.cambridge.org/9781107016606 © Samuel Walker 2012 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2012 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Walker, Samuel, 1942– Presidents and civil liberties from Wilson to Obama : a story of poor custodians / Samuel Walker. p. cm. Includes bibliographical references and index. ISBN 978-1-107-01660-6 (hardback) 1. Presidents – United States. 2. Civil rights – United States. 3. Executive power – United States. I. Title. KF5053.W35 2012 342.7308′5–dc23 2011048914 ISBN 978-1-107-01660-6 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. To Elizabeth Emlen Walker January 13, 1913–June 15, 2011 My mother was born two months before the events in this book begin, and she died almost exactly a year before it was published. She had a long and happy life, never complaining, even though at times we certainly gave her plenty of reason to do so. The summer before her death, at age ninety-seven, she was working in the garden at the assisted living center. She worked in a garden almost every day of her adult life. Everyone should tend his or her own chosen garden with the same determination and contentment. Contents Preface page xiii Acknowledgments xv List of Abbreviations xix 1. Introduction: Presidents and Civil Liberties 1 Scenes from the White House 1 Poor Custodians of American Liberties 2 Presidents and America’s Core Values 2 PART I. The eARly yeARS 2. Woodrow Wilson and the Suppression of Civil Liberties in World War I 9 “Such Creatures . . . Must Be Crushed Out” 9 Wilson, Progressivism, and Civil Liberties 9 War and Repression Begin, 1917 10 Wilson’s Role in the Repression 17 The Mind of the Progressive Reformer 20 The Final Orgy: The Red Scare, 1919–1920 30 An Ominous Legacy: Origins of the National Security State 32 Moving Backward on Race 34 A Reluctant Path to Women’s Suffrage 39 Brandeis to the Supreme Court 42 End of a Presidency – Dawn of the Civil Liberties Era 43 3. Harding, Coolidge, and Hoover: Civil Liberties in the Wilderness 47 Civil Liberties in a Changing America 47 The Red Scare “Hangover” 49 Amnesty for the Victims of Wartime Prosecutions 51 Political Spying Continues 52 Keeping Dangerous Ideas out of the United States 55 A National Campaign for Racial Justice 57 Alice Paul, the ERA, and a New Direction for Women’s Rights 63 Sex and Censorship: The Post Office and the Customs Bureau 65 Attacking the First Amendment Rights of Organized Labor 67 Lawless Policing: Prohibition Enforcement 70 vii viii Contents Freedom to Teach: The Scopes Case 73 Straws in the Wind: The Supreme Court Shifts 75 End of the Republican Era 76 4. Franklin D. Roosevelt: The Mixed Legacy of a Strong President 79 “The Greatest Violation of Civil Liberties in American History” 79 The Japanese-American Tragedy: FDR Decides 80 FDR, the Constitution, and Presidential Power 85 The Tragedy Unfolds 87 The Rights of Working People: A Casual Indifference 90 Federal Protection for Civil Rights: Origins of the Civil Rights Division 93 Unleashing FBI Spying: The Permanent National Security State 95 Troubling Claims of Presidential Power 101 A March on Washington? FDR Confronts the Civil Rights Movement 104 Freedom of Speech in Peace and War 112 Creating the Roosevelt Court 117 President Roosevelt versus the Roosevelt Years 123 PART II. CIvIl lIbeRTIeS In The Cold WAR And CIvIl RIghTS eRAS 5. Harry Truman: Courage and Contradictions 127 Cold War Contradictions 127 Truman and Civil Liberties 127 Anti-communism at Home and Abroad 128 The Loyalty Program in Operation 131 Attacking the Communist Party and “Dangerous” Ideas 133 Truman, J. Edgar Hoover, and the FBI 135 The Rise of Government Secrecy – and Challenges 137 McCarthyism Arrives 138 Unmatched Political Courage: Truman and Civil Rights 141 Korea: Three Crucial Decisions on Presidential Power 148 A Divisive Church-State Controversy 155 Last Gasp (for a While) for the ERA 157 Mediocrity on the Supreme Court 159 The Ambiguity of Strong Presidential Leadership 160 6. Dwight D. Eisenhower: A Failure of Presidential Leadership 163 “My Biggest Mistake” 163 Silence on Joe McCarthy 163 Civil Rights: A Leadership Failure 167 Ike, Communism, and Domestic Security 183 Secrecy, Executive Privilege, and the CIA 187 A Weak Record on Women’s Issues 193 Creating the Warren Court 193 The End of the Fifties 199