‘Common Law’ S2 E2: Rethinking Rights After World War II
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‘Common Law’ S2 E2: Rethinking Rights After World War II

October 21, 2019


[MUSIC PLAYING] RISA GOLUBOFF: Hi, and
welcome back to Common Law, a podcast from the University
of Virginia School of Law. I’m Risa Goluboff, the dean. LESLIE KENDRICK: And I’m
Leslie Kendrick, the Vice Dean. This season we’re
traveling backward in time, shedding light on some crucial
turning points in legal history with stories about how
law changed the world. RISA GOLUBOFF: That’s right. You might have heard
our last episode, where we talked with Sarah Milov
about how lawyers and activists came to recognize
nonsmokers as a group with legal rights, which in
turn led to a real shift, not only in tobacco regulation,
but also in public health law more broadly. So today, we’re going to look
at how a global catastrophe created the conditions
for a different sort of transformation in our
conceptions of civil rights and civil liberties. LESLIE KENDRICK: The
global catastrophe you’re referring to,
Risa, is World War II, and we’re going to be talking
about it and its impact on American law with
someone who knows a great deal about that subject,
UVA law professor Ted White. Ted White is a giant
in legal history. He’s written 19
books, which have won numerous honors, including
a final listing for the Pulitzer Prize in History. RISA GOLUBOFF: We invited
Ted to discuss World War II and its legal
ramifications with us, especially some
landmark Supreme Court cases, a topic he
covers at length in his latest book, Law in
American History, Volume Three. It’s the final work in a
series on the evolution of law in America across the entire
history of the United States. Ted, welcome to Common Law. TED WHITE: Nice to be
here, Risa and Leslie. Thanks for having me. LESLIE KENDRICK: Ted, as
you write in your book, one of the reasons the
war had such an impact on the law in the
United States was because of the way
Americans define themselves as against their enemies,
the Germans, the Japanese, and then later, the Soviets. Could you start us off by
talking a bit about that? TED WHITE: Maybe the first thing
to understand about World War II from the experience
of Americans is how comparatively late the
United States entered the war. Hitler’s Germany, fascist
Italy under Mussolini, and imperial Japan have emerged
as aggressive totalitarian regimes beginning
in the early ’30s. And by the late
’30s, the Germans are annexing other
countries in Europe, the Japanese have moved into
China and occupied Korea, and the Italians have
moved into North Africa. And these regimes have
formed a military alliance. Now Americans had not had much
participation in overseas wars at all. The participation of
Americans in the World War I was comparatively slight
because we came into the war at the very end. And most of the casualties of
the United States in World War I were from influenza rather
than from military campaigns. So going from that to a
situation all of a sudden in which Japan bombs us at
Pearl Harbor, we enter the war. All of a sudden, there’s a
massive military call up. And what does it look like
to the average American? What it looks like is a bunch
of totalitarian ruffians seeking to conquer the world and impose
their regimes on everyone, which are completely devoid
of freedom for individuals in which the rulers of the state
control every facet of life. And can one imagine America
comparably being occupied and having rulers like that? So it’s a big deal,
conceptually, for Americans. I mean, this is a titanic
struggle, if you will, for control of the world. RISA GOLUBOFF: And so
for Americans, what are the values that
they see the United States as standing
for in contrast to those other countries? TED WHITE: It’s
the United States is the so-called leader
of the free world. What does it mean to be free? Well, first of all, you don’t
have the state telling you what to do in every
facet of your life. You don’t have totalitarianism. You have democracy. You have freedom of speech. You have freedom of religion. These values, embodied in
the US constitution but not prior to World War II really a
significant part of the Supreme Court’s jurisprudence,
become elevated in public consciousness. And so there’s a
direct connection, I think, between
the way in which the war is set up and
conceived by American audiences and this post-war growth
of civil liberties and civil rights. LESLIE KENDRICK: Are
there particular examples of legal cases or
legal doctrines where you really think
we can see that show up, we can see that concern
manifest in the law? TED WHITE: Absolutely. What happens in the early ’40s– one thing to remember is that
although we think of the New Deal as a sort of
prominently liberal period in American history, and
it was in some respects in economic matters,
free speech really doesn’t begin until
the early 1940s. And the early free speech cases
are, to an important extent, Jehovah’s Witnesses cases. These are religious
minorities who are claiming that
their civil right of free exercise of religion
is being infringed upon. And typically in
pretty mundane contexts like distributing
leaflets in parks. But the Witnesses are
a very litigious group and they bring a lot of cases. And it is those cases that
force the Justices to think more profoundly and deeply about
the meaning of free speech, particularly insofar as
it involves protection for unpopular communications
by minorities. RISA GOLUBOFF: So, Ted, I’m
thinking in particular here about two cases
that were decided three years apart with
incredibly different outcomes, so Gobitis and Barnette. Gobitis, Minersville School
District versus Gobitis, which was 1940 case. And then three years later,
West Virginia State Board of Education versus Barnette. That’s 1943. They’re both religious freedom
cases, very similar facts, one right after the other. But the results,
totally different. So could you tell us a little
bit about what happened there? TED WHITE: Yeah, the
petitioners, again, in both of these cases
are Jehovah’s Witnesses. Although the cases
are not typically understood in that fashion. They’re understood
as flag salute cases. Because these are cases
with identical fact patterns where a school board
is requiring students in the school system
to salute the flag. There’s a ceremony
where you begin school by going through an exercise in
which children salute the flag. This is challenged by
Jehovah’s Witnesses who take the position
that saluting the flag is worshiping a graven image,
which their religion forbids. So they want their children to
be exempted from the ceremony. The first time the case comes
up, a majority of the court says, no, the school board
can do this because compulsory saluting the flag is a kind
of value inculcation exercise that public school
students can do. And the flag is
a national symbol and what you’re saying
in a wartime setting is pledge allegiance to it
as part of being an American. Three years later, with
a slightly different configuration of Justices,
but with some other Justices changing their minds,
in an identical case the court goes the other way. And Felix Frankfurter, who
wrote the majority opinion in the first case, writes
a very impassioned dissent. But he loses. And after that case, there
is a majority, if you will, on the court for the proposition
that government cannot simply impose its own values on
dissenting minorities. RISA GOLUBOFF: So you
mentioned at the beginning that the war provoked a
rethinking of free speech and also equal protection. So say more there, right? Race is really in
flux at this moment. TED WHITE: Race is in flux. The implications of race don’t
begin to play out immediately after the Second World War. But one of the features
of World War II is that there is
still some segregation of military personnel. There are still some
regiments that are all black and others where
African-Americans are not included. In the middle of the war, Gunnar
Mydal’s book American Dilemma is published. And that is written by a
native of Sweden, a book based on interviews and
expeditions that Myrdal took in the American South. What it demonstrates in
rather dramatic detail is that the United
States on the one hand, fighting as a leader
of the free world and an arsenal of democracy is
also perpetuating segregation. And that ends up being
increasingly embarrassing because the Soviet
Union exploits it. The Soviet Union says,
well, if the Americans are so are so
dedicated to freedom how come that the
freedom does not extend to African-Americans? LESLIE KENDRICK: So
certainly segregation within the armed
forces and recognition of the status of
African-Americans in the American South
exposes the hypocrisy of American ideals that are part
of that rally cry for the war. But you go from 1945 when the
war’s over, Brown is in 1954. So it’s like, obviously there’s
lots of other moderating and mediating influences here. But how do you trace out
the legacy of the war and how civil rights come about? TED WHITE: Yeah,
Truman signs an order desegregating the armed forces
after World War II ends. But a powerful argument is made
by African-Americans who come back saying, I’m a veteran. I fought for my country. And I come back, and I’m still
being treated as a second class citizen. I can’t go to a movie theater,
I can’t ride on a bus. I fought for my country
and that’s just not fair. But litigation being what it
is it takes a while for this to emerge. The easier cases are the
higher education cases. Law schools that just won’t
admit African-American students even though there’s
no other law school in the state or
a graduate school that admits an African-American. And then puts him in a
separate seat in the classroom and he has to eat in the
dining room by himself. I mean, and these in
some ways easy cases because the segregation
is so patently disruptive of educational opportunities. And how can they possibly argue
that that’s separate but equal? LESLIE KENDRICK: So let
me ask, and I don’t know exactly how this cashes out. But in our heads now, I think we
have the bucket civil liberties that’s kind of speech related
and some other rights, and civil rights which
are more equality focused. And those are, in
some ways, sort of artificial terms for a
panoply of different rights that we can slice and
dice in different ways. So did these things
that happened, is the legacy of
World War II part of how it is that we think
of this whole set of rights? Did it contribute
to our understanding of what counts as
civil liberties and what counts as civil rights? Are those categories that start
to emerge in this time period? TED WHITE: They are categories
that start to emerge. And along with them emerges
the stance of the Supreme Court in reviewing
legislation that I call in the Law in American History
volumes bifurcated review. Which is to say they adopt
a more aggressive stance toward reviewing legislation
that, putting in your terms, infringes on civil rights
and civil liberties than they do on legislation that
infringes upon economic rights. RISA GOLUBOFF: Like the New
Deal, New Deal legislation. TED WHITE: New Deal legislation. So you get a lot of
New Deal and state social welfare legislation
routinely upheld by the court, under a so-called rational
basis review standard where they really just ask the
legislature to give some purported justification
for the legislation. They don’t go much
further than that. It’s very different where
the equal protection clause is concerned or the
First Amendment is concerned. That triggers more
aggressive review. And the Warren
Court has decisions where you get very
supine attitudes toward economic legislation. At the same time you get
rather aggressive scrutiny and some overturning
of legislation challenged on civil liberties
or civil rights grounds. LESLIE KENDRICK: Which just
to be clear is a change. The review of economic
regulation goes way down. The scrutiny goes way down in
the period of the late ’30s and onward, where
they start to give this more permissive form of
review for economic regulation. That’s a change for them. TED WHITE: Absolutely, the
strict scrutiny for some cases, rational basis scrutiny for
others, intermediate scrutiny. The court never used
to have these levels. Every case was the equivalent
of aggressive review. It only began, this more
deferential form of review, in the 1930s. If you think about this
in terms of the argument that judges shouldn’t
interfere with legislatures because legislators are properly
elected and judges are not, Supreme Court is not. And it’s counter
majoritarian, if you will, for the Court to
usurp legislation. Well, if that’s the case, if the
court internalizes that view, then why not have deferential
legislation across the board? Why not have it in all cases? Well, because an idea, and
it’s a World War II idea, has seeped into the
court’s thinking, which is majorities have the
capacity to repress legislative minorities. Majorities can exclude
minorities from the process. And then they can
pass legislation imposing costs on them. It is majoritarian,
but it runs counter to our democratic principles. And who is going to help the
minorities except the court? So it’s that sort of memory of
a state like the Axis powers where the state
completely controlled the welfare of minorities,
seeping into the Justices’ consciousness and
making them worry about majoritarian
repression of minorities. LESLIE KENDRICK: I wonder if
we could move that conversation into the Cold War a little bit. I’m thinking about the treatment
of communists in the United States during the
Cold War, where I think we see some
similar kind of tensions between the ideals
and the opposition to the purported
values of the enemies. But then how we actually apply
that in the United States. What can tell us about that? TED WHITE: There’s an
interesting evolution of attitude toward
communism that takes place between the 1930s and 1940s. And the house Un-American
Activities Committee is formed during World War II
to look into Nazis, to look into subversive organizations. And they transformed themselves
to look into communists. And that really catches on. They become a quite important
and influential force in American politics
in the late ’40s. And the first
response of the court is to allow legislatures to
engage in proceedings where they’re identifying
people as communists. And dismissing them from
positions of public education. And the people who are
dismissed sue, claiming it’s a violation of their
First Amendment rights. For the most part the court– when Vinson is Chief Justice– RISA GOLUBOFF: So what years? TED WHITE: Vinson becomes
Chief Justice in 1946 and stays until he
dies suddenly in 1953. So we have on the Vinson
court a bare majority for support of this
legislation punishing people for being communists or
communist sympathizers. And then after Vinson dies
and Warren replaces him and Brennan comes on the
court the majority shifts. But it takes a while
for the Supreme Court to revise its posture toward
government decisions that punish people because of their
views sympathetic to communism. LESLIE KENDRICK:
So one could ask if free speech became a more
important value to society or if threats on
the ground change. It’s a lot easier in 1959 to
determine as a factual matter that communists are
not a major threat to the national security
of the United States than it is in 1954. The House Un-American Activities
Committee, all of this has been basically
discredited at that point. And you could say
the Supreme Court’s coming on the battlefield
after the war has been fought to shoot
the wounded, basically. TED WHITE: The Communist
Party has certainly been marginalized
between the late ’40s and let’s say the late ’50s. There was one more case, United
States vs. Scales in 1960 in which there’s a
conviction of somebody for subversive advocacy. There’s not a single
case after that. So by then of course the Warren
Court is, for my generation growing up in law
school in that period, it’s a heroic institution
protecting civil rights and civil liberties. That’s not been
its entire history. LESLIE KENDRICK: Well,
and this gets me back to the question of the
division between civil rights and civil liberties. And how that can be kind
of a messy distinction. Because you think
about in Barnette, back to the pledge case,
Gobitis treated the pledge issue as a free exercise
issue and rejected it. And Barnette comes along and
treats it as a free speech issue and says, oh, this
is about state neutrality toward ideas. It’s not about equal
treatment of people. It’s not about
religious minorities. So in many ways you do see
the Court at various times kind of going back and forth. And putting things in one
bucket that maybe easily could have gone in another. TED WHITE: Yeah, I think
the equal protection argument is the slowest
to take root on the Court. For example, you could
have thought of Roe v. Wade as an equal protection case. RISA GOLUBOFF: And people
have made arguments that it should be
treated that way, right? TED WHITE: And instead it
goes off along on due process. But the Court is
just, for some reason, reluctant to embrace a sort
of full-blown conception of equality. For example, the Warren
Court doesn’t even bat an eye about gender
discrimination cases. The case they take,
Hoyt versus Florida, where a female juror is
excluded on the theory that women ought to stay
home and not participate in civic affairs, unanimously
decided by the Justices, including Earl Warren, and Hugo
Black, and William O. Douglas, and William Brennan. They just don’t see it. They don’t begin to
see it until the 1970s. So that the equality argument is
somehow later than the others. RISA GOLUBOFF: So would
you say that we’re still in the shadow of World War II? TED WHITE: I would say
we are in some respects. Take habeas corpus
in Guantanamo. Something I’ve learned since
the advent of the Trump administration is the
extraordinary power that the President has to
issue executive orders. Many of which are not reviewable
by anybody, apparently. And what is that
all a product of? I think that’s a
product of what we might call the imperial presidency. And that is a product
of World War II. Because what you need
is you need the idea of an executive who can
make swift decisions which don’t get bogged
down in red tape which may involve
national security. So the national
security rationale and the sort of imperial
presidency conception I think are products of World War II. And we are still very
much stuck with them. RISA GOLUBOFF: It’s interesting
because in World War II you have executive orders
creating fair employment practices among
federal contractors. It’s through an executive order
that Truman, after World War II, desegregated the military. So you see those examples
of executive orders. They look very different. But you see examples of those
executive orders in the midst of the war as well. LESLIE KENDRICK: That’s kind
of a double edged sword. RISA GOLUBOFF: It
goes both ways, yeah. TED WHITE: I also think
that the line of cases involving detainees
from the Gulf Wars and War on Terror,
in those cases the Bush administration
repeatedly argued that there was
essentially no judicial review of these decisions whatsoever. And their rationale
was national security. And their rationale was a need
to have this sort of summary executive treatment? Well, where’s that come from? World War II. LESLIE KENDRICK: Well, this
has been really interesting. And I feel I’ve learned so
much both about World War II and about
jurisprudential history. So thank you very much, Ted. TED WHITE: Oh, my pleasure. Glad to be here. RISA GOLUBOFF: Thanks so much. [MUSIC PLAYING] LESLIE KENDRICK: So, Risa,
that was really interesting. And it certainly played up
both civil liberties questions and civil rights questions. And where we wound
up with Ted I think was a complicated picture. And not one where
the war is simply a catalyst for progress
on either of those fronts, but something that’s a little
bit more complicated than that. RISA GOLUBOFF: Absolutely. I think there’s often
a dichotomous effect on civil rights and civil
liberties in wartime. Simultaneously, the state
is repressing disloyalty, repressing marginal or
challenging speech or activism. And the stakes are really
high and national security is really important. And at the same time various
groups find openings to say, you have to prove why we
should be loyal to you. If you’re saying we’re fighting
a war for freedom and democracy and yet there’s still
Jim Crow at home, why would I want
to fight for you? LESLIE KENDRICK: So one example
that that makes me think of is Japanese internment. RISA GOLUBOFF: Clearly
from World War II, that’s the biggest
example, right? So we can talk all
about desegregation in the military which
happens after this. And I think
African-American activism did soar during this period. And you could see the
beginnings of progress even if the fruits
of those protests weren’t really going to be seen
for a decade or two after that. But the Japanese internment
is the complete opposite side of that dichotomous coin. So during World War II
there was enormous panic on the west coast that
Japanese-Americans living in California and elsewhere on
the West Coast were saboteurs, were spies, were
planning violence, were doing all kinds
of nefarious things. And the folks who lobbied
for the exclusion order that comes into effect during
World War Two that says people of Japanese descent
can’t live on the west coast. And then later not
only pushes them out but it detains them in,
essentially, concentration camps, where the
exact same people who had been pushing for various
kinds of discriminatory laws against the Japanese
for years and years. So they were opportunistically
using the emergency of the war to prosecute their
anti-Japanese discriminatory agenda. LESLIE KENDRICK: That seems
very similar to an earlier time period history that
our conversation made me think about,
which is World War I and its relationship
to civil liberties and free speech in
particular, where you have socialists being
prosecuted under the Espionage Act. And it’s this combination
of national security justifications but also clear
animus toward socialists. So a Red Scare
mentality combined with this sort of
national security impetus for cracking down on them. And you get the same dynamic
where the war and wartime become both a catalyst for
conceiving of and crystallizing free speech rights. But also that’s coming out of
a moment of severe repression. And it’s not really until
after the war is over that you start to see
some movement on that, the national security
justification has kind of fallen away at that point. RISA GOLUBOFF: And those are
dissents and concurrences, right? Which is also parallel to
what happens in World War II. So the Court is deciding these
Japanese internment cases. And they uphold
Japanese internment. But there are
dissents that create the possibility
for future doctrine that will uphold the civil
rights of minorities. LESLIE KENDRICK: That’s right. And it seems like that is
a kind of common pattern where, mistakes were made. Mistakes are made
during wartime. RISA GOLUBOFF: Big,
big, big mistakes. LESLIE KENDRICK: The take
away, the constitutional jurisprudence take away is,
we learned from that mistake. And this thing that the
case comes to stand for is that we’re not
going to do that again, this sort of anti-canon idea. And that’s certainly true in
the post-war era during the Cold War, where the same
dynamic sets up. And the lesson that we take away
from all of the McCarthy era, both prosecutions and denials
of various types of government benefits or status
for communist is that we don’t punish people
for their political beliefs. But it’s through a lot
of trial and error– RISA GOLUBOFF: That we
punished people, right? LESLIE KENDRICK: We’ll
put emphasis on the error, that we sort of come
to this takeaway. RISA GOLUBOFF: So
does that make you think we don’t ever really
learn because each war we do it again? Or whether Cold
War or hot war we continue to make these
kinds of mistakes? Can you even call them mistakes
if we do them every time? Or is it just a dynamic? There’s a Latin saying that
the laws are silent in wartime. And I think maybe you could
tell an optimistic story. Well, maybe the laws
are silent in wartime. But after each war
then we figure out a way to make that experience
meaningful for the law going forward. But you could also
say, why don’t we ever learn that we shouldn’t
have the laws be silent in wartime? And just treat it
differently at the time. LESLIE KENDRICK: Yeah,
that’s a great question. I see examples going
both directions. So on the free
speech front, I think we tend to advance and
then make new mistakes. So at the point of
the McCarthy era there’s kind of a
collective consensus that outlawing a political party
is something that one can do. And this goes back to early
20th century conversations about whether the Klan
could be banned outright. And instead the tactic
becomes to get at that Klan through sunlight,
through disclosure laws, and through a variety of other
types of mechanisms like that. And those same
conversations come up again in the anti-communist era. And so maybe you
see development. But still not always
in the best direction. RISA GOLUBOFF: You
know Leslie, we’ve been talking about how
law changed the world and how the world changes law. And we talked about that with
Sarah’s episode and smoking and nonsmoker’s rights. And I think here we
see a particular way in which when the
world changed the law, the law changes the world. Which is in both the
early free speech cases and the Japanese
interment cases you see dissents
and concurrences that are not the
majority opinion, and are not making law
at a particular moment. But that they come
back later and they are resources both for social
movements, and lawyers, and litigation, and creating
opportunities for people to continue to challenge the
law and try to create new law. And then for Justices
to actually create majorities going forward. LESLIE KENDRICK: Yeah, it
seems like these world events, they force changes in the
law which then get push back. And the push back itself
then becomes new legal rules going forward. So it’s a really
interesting dynamic. RISA GOLUBOFF: Exactly. [MUSIC PLAYING] LESLIE KENDRICK: Well, that’s
all we have for you today on Common Law. We hope you’ll join us next
time for more stories about when law changed the world. RISA GOLUBOFF: If
you want to find out more about Ted White’s work
on law in American history and much, much more,
please visit our website site, CommonLawPodcast.com. You’ll also find all of
our previous episodes, links to our Twitter
feed, and more. LESLIE KENDRICK:
Be sure to leave us a review on Apple
Podcast, Stitcher, or wherever you
listen to the show. We’ll be back in a few weeks
with Cynthia Nicoletti, talking about the Civil War. CYNTHIA NOCOLETTI: In 1865
there’s this choice, right? How much military
authority is Congress going to put in the
former Confederacy? And how much of a wrench
do they want there to be? LESLIE KENDRICK: Common Law
is a production of the UVA School of Law and is recorded
at the studio of the Virginia Quarterly Review. This episode was produced by
Sidney Helleman, Robert Amangal and Mary Wood. We had help from Virginia King. I’m Leslie Kendrick. RISA GOLUBOFF: And
I’m Risa Goluboff. See you next time. [MUSIC PLAYING]

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