The Origins of the ACLU

APPENDIX A — The ACLU

The American Civil Liberties Union (ACLU) has always been a bit enigmatic, or at least complex or nuanced. They have done great work in defending the First Amendment of the U.S Constitution and the Due Process and Equal Protection clauses of the Fourteenth Amendment. Where they have failed is in recognizing a free person's right to contract.

Article I, Section 10, Clause 1 of the U.S. Constitution, the Contract Clause, includes the text:

No State shall… pass any… Law impairing the Obligation of Contracts…

But, this clause only applies to contracts already signed—ex post facto. It does not mean that states, or the federal government, can't prohibit contracts from being created. And the courts have held that contracts which are contrary to public policy are generally void.

The ACLU has fought valiantly for freedom of speech—yes, even Communists have that freedom—and the right to assemble or protest, or exercise religious freedoms. But, they fail to fight for our liberty to make choices, and to contract, at least in the realm of price and wage negotiations, which are at the core of this book. And, that is because their politico-economic prejudices—their Socialist principium—see wage and price negotiations as predator versus prey, or the powerful versus the helpless victim. By ignoring this right, they are essentially telling us that they prefer the government to step in and dictate contracted wages and prices, and to control the settings under which those wages and prices are set. As do Socialists.

We disagree, because, as this book hopes to demonstrate, the unintended consequences of having bureaucrats, with no skin-in-the-game, set prices (and wages are prices) are usually much worse than any maleffects the do-gooders are trying to thwart.

Again, we grant the ACLU the proper respect for their judicial fights to ensure Constitutional rights. The point here is only to demonstrate that, economically, which is the focus of this book, the ACLU was founded as a left-wing organization with Socialist tendencies. When you read about a person from the 1920s or 1930s being ACLU members, you should have an idea of where they stood on the issues of free commerce. To wit:

The founders of the ACLU, in 1920, included:

  • Executive Director Roger Nash Baldwin, who, in 1927, visited the Soviet Union and wrote a book, Liberty Under the Soviets, where he stated, “The most significant of all liberties under the Soviets is economic.”1 Once a member of Industrial Workers of the World (IWW), an anarcho-socialist union whose slogan is “Labor produces all wealth. All wealth must go to labor.”2 Imprisoned for avoiding the draft in WWI. Later, Nash soured on the Soviet Union. In his 1953 book, A New Slavery, Forced Labor: The Communist Betrayal of Human Rights, Nash wrote:

    Though I had been, like so many liberals, disillusioned by evidence contradicting earlier high hopes for greater human freedoms under a professedly socialist state…

    A few years later, after a three months' tour of the Soviet Union, I published a book on Liberty under the Soviets. I concluded, with what now seems a naive optimism, that despite the single-party dictatorship, buttressed by its powerful secret political police and universal censorship, the evidence was stronger of tendencies toward the ultimate human rights and freedoms which Marxist principles prophesied…

    The Soviet police state, and with it its servants, the communist parties, were revealed as politically and morally no different from the fascist states, and through the deception of lofty claims to salvation, even more dangerous to human freedom.3

  • Walter Nelles, member of the League for Industrial Democracy (new name for Intercollegiate Socialist Society).4 Joined the Socialist Party in 1918, but soon left, “becoming convinced that its futility was incurable even if its bigotry were not.”5
  • Crystal Eastman, Socialist, suffragette. Co-founder and co-editor, with her brother, Max Eastman, of the radical Marxist magazine The Liberator. According to the Marxists Internet Archive, The Liberator is “arguably the greatest radical magazine ever produced in America…[After mergers,] it was given a new form and title as, The Communist. This magazine continues today, known since 1946 as Political Affairs.”6

  • Albert DeSilver. In his junior year at Yale, DeSilver wrote to his future wife, Margaret, then a freshman at Vassar:

    So socialism is popular down your way. I'd like to talk to you about that. It's a fascinating subject, and I read some and heard some wonderful lectures about it last year. It has distinctly more than one side, too, a fact that many people don't believe. I don't mean Jack London's or even Debs's socialism, but the economic socialism which has cool thought at its base.

    While in the Civil Liberties Bureau, the less militant precursor to the ACLU, DeSilver edited a pamphlet in defense of the IWW, which included Carleton Parker's assertion that the IWW was “an unfortunately valuable symptom of a diseased industrialism.” DeSilver voted for Eugene Debs, the Socialist Party candidate for President of the United States, in 1920.7

  • Helen Keller, member of Socialist Party, suffragette. Rose to fame because of her incredible journey through a life of deafness and blindness.
  • Jane Addams. In 1912, she co-founded the Progressive Party and supported the presidential campaign of Theodore Roosevelt. Called the Russian Revolution, “the greatest social experiment in history.”8 Socialist tendencies, but refused to be labeled. Addams voted for the Progressive candidate, Robert M. La Follette, Sr., in the 1924 presidential election.9
  • Arthur Garfield Hays, In 1924, Hays served as New York State chairman of the second (Robert M. La Follette, Sr.'s) Progressive Party.
  • Norman Thomas, perennial presidential candidate for the Socialist Party of America. Joined the Socialist Party in 1918 with Walter Nelles (above).
  • Elizabeth Gurley Flynn, Socialist, IWW organizer. Prosecuted under the U.S. Espionage Act.10 Became head of the Communist Party of the United States of America (CPUSA), and, upon her death, was given a state funeral by the Soviet Union.11
  • Rose Schneiderman, member of Socialist Party. Co-organized Local 23 of the Jewish Socialist United Cloth Hat and Cap Makers' Union.
  • Felix Frankfurter, Harvard Law professor, appointed to the U.S. Supreme Court by FDR. Member of FDR’s Brain Trust (see Chapter 7).

To illustrate the disjunction between the ACLU's politico-economic stance—its socialist tendencies—and its judicial battles, the circumstance of Felix Frankfurter makes a great example.

On July 22, 1916, the San Francisco Chamber of Commerce and anti-union business leaders staged a huge parade to advocate for the United States' military buildup to prepare for entry into World War I. During the parade, a bomb exploded, killing 10 people. Two men were tried and convicted in the bombing: militant-Socialist-extremist IWW members Thomas Mooney and Warren Billings. Three years earlier, Billings had been convicted of transporting dynamite on a passenger train, and, two years before that, of possessing burglary tools. Mooney had been tried, but acquitted, for transporting dynamite to an electrical workers' strike against the Pacific Gas and Electric Company. So, these two thugs were the perfect suspects. Billings was sentenced to life in prison, while Mooney was sentenced to death, which was later reduced to life in prison. But, rumors swirled that some of the testimony against them was perjured.

Felix Frankfurter represented Mooney in trying to get his case overturned, based on the suspected perjured testimony. Frankfurter pleaded with former President Theodore Roosevelt for intervention. In a conflation of politico-economic antagonism and legal justice, Teddy replied:

[Y]ou have taken and are taking an attitude which seems to me to be fundamentally that of Trotsky and the other Bolsheviki leaders in Russia; an attitude which may be fraught with mischief to this country…

Here again you are engaged in excusing men precisely like the Bolsheviki in Russia, who are murderers and encouragers of murder, who are traitors to their allies, to democracy and to civilization, as well as to the United States, and whose acts are nevertheless apologized for on grounds, my dear Mr. Frankfurter, substantially like those which you allege.12

J. Edgar Hoover, Director of the Federal Bureau of Investigation (FBI), called Frankfurter, “the most dangerous man in the United States” and a “disseminator of Bolshevik propaganda.”13

In 1939, the two key witnesses at the trial admitted that they were pressured by the prosecution, and had given perjured testimony at the 1917 trial. Mooney was pardoned. Billings’s sentence was commuted, and he was released.

Despite the efforts of Frankfurter and the ACLU, Mooney and Billings each spent 22 years in prison for crimes that they, most likely, did not commit.

The National Civil Liberties Bureau (NCLB) regrouped as the ACLU after its reputation was tarnished. The U.S. Post Office refused to deliver some mailers from the NCLU, determining they were unmailable under the Espionage Act. In September 1918, armed agents from the U.S. Department of Justice (now the F.B.I.) raided the offices of Nelles and the NCLU. The instructions to the agents were to search for anything which, “either directly or indirectly, consciously or unconsciously, might tend to hinder winning the war, especially letters to or from anarchists, socialists, I.W.W.'s, or any other God-damn fools.”14

On November 3, 1918, when Roger Baldwin appeared in court to be sentenced for refusing conscription, the Associated Press (AP) sent a story over the wire:

Evidence that several organizations promoting disloyalty are federated, so that funds of one can assist the propaganda of others, has been discovered by the Department of Justice. Officials today warned… against contributing to so-called “civil liberties”... organizations… One of the principal federating agencies was operated until recently, officials said, by Roger N. Baldwin of New York, who was sentenced to a year's imprisonment for opposing the draft.15

Footnotes

  1. Roger N. Baldwin, Liberty Under the Soviets, Vanguard Press, New York, 1928, 24.↩
  2. Jaime Caro-Morente, “The political culture of the IWW during its first 20 years,” Industrial Worker, Summer, 2017, 16.↩
  3. Roger Nash Baldwin, A New Slavery, Forced Labor: The Communist Betrayal of Human Rights, Oceana Publications, 1953, 18-19.↩
  4. Eric Arneson, Encyclopedia Of U.S. Labor and Working-Class History, Routledge, New York, 2007, Vol. 1, 795.↩
  5. Walter Nelles, A Liberal in Wartime, The Education of Albert DeSilver, W.W. Norton & Company, NY, 1940, 121.↩
  6. “Workers Monthly, 1924 – 1927,” marxists.org.↩
  7. Nelles, 35, 143, 210.↩
  8. The Autobiography of Robert Morss Lovett, All Our Years, The Viking Press, New York, 1948, 155.↩
  9. Jane Addams, “Why I Shall Vote for La Follette—I,” The New Republic, September 10, 1924, 36.↩
  10. Nelles, 174.↩
  11. Archives of Women's Political Communication, Iowa State University.↩
  12. Richard Merrill Whitney, Reds in America, Beckwith Press, New York, 1924, 60-62.↩
  13. Anthony Summers, Official and Confidential, The Secret Life of J. Edgar Hoover, Open Road, New York, 64.↩
  14. Nelles, 149.↩
  15. Nelles, 167-168.↩