• February 2016
  • 12 Stan.J.C.R.& C.L. 1
  • Article
Christopher W. Schmidt

The Civil Rights-Civil Liberties Divide

Christopher W. Schmidt


Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Article explains how this differentiation arose and considers its consequences.

Although there is a certain underlying logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech and due process rights of suspected subversives. Toward this end, they took two terms that had generally been used interchangeably and they created the civil rights-civil liberties distinction. Civil rights would forever after be attached to the struggle for racial equality and subsequent campaigns against other forms of public and private discrimination. Civil liberties would be attached to claims of individual freedom against generally applicable government regulatory power.

The civil rights-civil liberties divide was contested from the beginning, however. In the late 1940s and early 1950s, the radical left condemned the divide as a tool for politically powerful liberal anticommunists to separate themselves from the declining fortunes of their former New Deal allies. In the 1960s, a new generation of critics of the divide made the case that the battles against discrimination and government oppression were indivisible. Some advocated a new label, “human rights,” which would subsume the categories of civil rights and civil liberties, while also recognizing social welfare rights. Despite these revisionist efforts, the civil rights-civil liberties divide survives, still contested, but also reinforced as each new generation puts it to new uses. This Article not only reconstructs the largely forgotten history of the origins of the civil rights-civil liberties divide, it also identifies the ways in which labeling and categorizing the legal landscape can advance or impede legal change.


Introduction....................................................................................... 2

I.  Civil Rights and Civil Liberties Before the Divide.......................... 5

A.  Reconstruction and the Birth of Civil Rights.......................... 6

B.  Civil Rights, Civil Liberties, and the Labor Movement in the New Deal Era    8

II.  The Cold War and the Creation of the Civil Rights-Civil Liberties Divide          10

A.  The Political Landscape of the Early Cold War.................... 10

B.  The President’s Committee on Civil Rights.......................... 12

C.  The Influence of the PCCR Report....................................... 14

D.  Civil Rights, Civil Liberties, and the Case for Government.... 16

E.  Racial Justice Advocacy and Free Speech............................. 19

F.  The Birth of the “Civil Rights Movement”.......................... 21

III.  Challenging the Civil Rights-Civil Liberties Divide.................. 24

A.  Early Challenges................................................................. 24

B.  The Civil Rights Movement and the Emergence of the Civil Rights-Civil Liberties Alliance   26

1.  The Supreme Court Challenges the Divide..................... 26

2.  A Civil Libertarian Interprets the Civil Rights Movement 29

3.  The Birth of the Harvard Civil Rights-Civil Liberties Law Review            30

C.  Civil Rights vs. Human Rights.............................................. 32

IV.  Maintaining the Civil Rights-Civil Liberties Divide................... 35

Conclusion........................................................................................ 40



“A Champion of Civil Rights, if Not of Civil Liberties,” ran the headline in the New York Times when Attorney General Eric Holder announced his resignation in September 2014.[1] Holder “made civil rights the centerpiece of his six-year tenure,” noted the article, citing the Attorney General’s efforts to address racial disparities in the legal system.[2] Yet he “frustrated and confounded even his staunchest allies for his views on civil liberties,” a record that included support for government surveillance, aggressive tactics against journalists who refused to reveal sources of national security leaks, and support for the President’s authority to kill an American who had joined Al Qaeda.[3] “This is an attorney general who displayed an odd approach, an odd schism between civil rights and civil liberties,” explained one liberal activist,[4] an observation that echoed throughout the media discussion of Holder’s achievements and failures.[5]

As these assessments of Holder’s legacy demonstrate, the terms “civil rights” and “civil liberties” are generally understood to reference distinct areas of law. In its common usage, civil rights involves the unequal treatment of different groups. The civil rights canon revolves around the Equal Protection Clause of the Fourteenth Amendment, supplemented by an array of local, state, and federal civil rights laws, which today protect against state and many forms of private discrimination based on race, sex, disability, and sexual orientation.[6]

To speak of civil liberties in contemporary legal discourse raises quite different concerns.[7] While civil rights policy often calls for government regulation of private relations, civil libertarianism is premised on skepticism toward government interference in the private sphere. Autonomy rather than equality is the guiding principle of civil liberties. The civil liberties canon revolves around the limitations on government power outlined in the Bill of Rights, starting with the foremost of all civil liberties principles, the First Amendment’s protection of freedom of speech.[8]

The distinction between civil rights and civil liberties structures the way we write and teach about the law. It is found in the way we organize our legal institutions. It shapes the way we think about the complex array of government constraints and responsibilities.

Although there is a certain underlying logic to the distinction between these two terms, the civil rights-civil liberties divide is actually the product of the unique constellation of circumstances that arose at a particular moment in history. In this Article I explain how, in the years following World War II, the civil rights-civil liberties divide took shape, how subsequent generations have contested the distinction, and why, despite these challenges, it has retained its viability in modern legal discourse. I also consider the impact of this particular exercise in legal categorization. The terms and categories by which we understand our legal world matter. The birth of the civil rights-civil liberties divide and subsequent debates over its value and meaning well illustrate this point. Put simply, the divide has served some legal claims better than others.

The origins of the modern distinction between civil rights and civil liberties can be traced to the late 1940s, when liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security demanded limitations on the speech and due process rights of suspected subversives. It became increasingly important in the early years of the Cold War for liberal anticommunists to separate the “race issue” from the domestic “Communist issue.” One of the results was the creation of the civil rights-civil liberties divide. Liberal anticommunists took two terms that had generally been used interchangeably and with little conscious effort to define what they meant, and crafted and promoted the civil rights-civil liberties distinction. From this point on, the civil rights label would be attached to the struggle for racial equality and subsequent campaigns against public and private discrimination of various kinds. The women’s movement, the movement for disability rights, and the gay rights movement have all been generally recognized as primarily advancing civil rights claims. In contrast, since the early Cold War, the civil liberties label attached to claims of individual freedom against generally applicable government regulatory power. Those who challenge government authority to restrict speech, invade privacy, or regulate personal behavior are generally understood to be advancing civil liberties claims.

The civil rights-civil liberties divide was contested from the beginning, however. In the late 1940s and early 1950s, the radical left recognized the divide as a tool for politically influential liberal anticommunists to separate themselves from the declining fortunes of their former New Deal allies. By the late 1960s, a new generation of critics of the divide made the case for the indivisibility of the battles against discrimination and government oppression, often insisting on the need for a new label, “human rights,” that would subsume and transcend the categories of civil rights and civil liberties.

Despite these challenges, the civil rights-civil liberties divide remains a basic organizing principle for modern American law. Its continued vitality can be attributed to several factors. The animating principles behind paradigmatic civil liberties claims and civil rights claims have distinctive characteristics. Various rights-oriented organizations and agencies have developed around one category or the other, thus giving a kind of organizational path dependency to the categories. And, perhaps most significantly, the divide retains continued utility in structuring legal contestation. The civil rights-civil liberties divide has featured prominently, for instance, in debates over hate speech regulation, in the framing of the legal claims of the gay rights movement, and in recent libertarian efforts to elevate the role of civil liberties in the history of the civil rights movement. In each of these instances, we see the work the divide does. For proponents as well as critics, the divide has always been a tool, useful for advocating a particular substantive agenda.[9] The history of the divide shows the need to attend to the ways in which the exercise of labeling and categorizing the landscape of legal rights can advance as well as retard the cause of legal reform.

This Article presents the history of the civil rights-civil liberties divide in four parts. Part I looks to the period before the divide took shape. Here, the Article examines efforts to categorize rights claims from the Reconstruction Era through the New Deal, years in which the terms “civil rights” and “civil liberties” were commonly used, but without their modern, differentiated implications. During this period other distinctions operated—distinctions that were particular to the perceived categorizing needs of that period. Part II explains the development of the civil rights-civil liberties divide in the 1940s and 1950s, when liberal anticommunists relied on the category distinction as a way to explain and justify their political agenda. Part III examines challenges to the divide in the 1950s and 1960s, when critics sought to highlight the costs of differentiating civil rights from civil liberties. Then, in Part IV, the Article considers why, in the face of these critiques, the divide has persisted. This Part includes a discussion of the role the divide has played in recent legal debates. This Article concludes with a brief assessment of the costs and benefits of the civil rights-civil liberties divide.

I.  Civil Rights and Civil Liberties Before the Divide

Part I provides a survey of the history of debates over the meaning of “civil rights” and “civil liberties” in the period between Reconstruction, when the Thirty-Ninth Congress basically created civil rights in its modern sense, though the middle of the twentieth century. During this period the two terms were used largely interchangeably. Politicians and lawyers struggled over the meaning of civil rights (which they sometimes called civil liberties) and civil liberties (which they sometimes called civil rights), but they did not see the need to distinguish the two labels. A brief description of the terminological struggles of this period illustrates the chronic nature of battles over legal labels. It also emphasizes the novelty of the civil rights-civil civil liberties divide when it did emerge in the late 1940s.

A.  Reconstruction and the Birth of Civil Rights

The earliest effort in the United States to define something approaching our modern, discrimination-focused understanding of civil rights came immediately following the Civil War, as the newly unified nation faced the challenge of defining a place for four million newly freed slaves.[10] In response to the South’s repressive Black Codes, the Thirty-Ninth Congress passed the Civil Rights Act of 1866,[11] the first of a series of federal laws designed to protect African Americans. The law prohibited “discrimination in civil rights or immunities,” which the text of the statute enumerated as including the right to contract, to go to court, to own and sell property, and “to full and equal benefit of all laws and proceedings for the security of person and property.”[12] The debate over the passage of this statute included much discussion, largely inconclusive, about the meaning of the term “civil rights.”[13] Subsequent congressional debate over the framing of the Fourteenth Amendment (intended to place the statutory protections of the Civil Rights Act of 1866 on firmer constitutional footing) largely reprised the terms of the earlier debate, including the discussions about the meaning of “civil rights.”[14] In the end, the primary author of the initial text of the Fourteenth Amendment, Senator John A. Bingham, chose to exclude the contentious term “civil rights” from the text of the amendment.[15]

When the Thirty-Ninth Congress turned to the problems of defining and categorizing rights, the central issue was not differentiating “civil rights” from “civil liberties,” as the two terms were used interchangeably.[16] Rather, the key lines of distinction were between three categories of rights: civil rights (sometimes referred to as civil liberties), social rights, and political rights.[17] Advocates of the Civil Rights Act of 1866 countered criticism that its antidiscrimination measures went too far by emphasizing the limits of the “civil rights” that it protected. The Act prohibited racial discrimination with regard to the right to make contracts, own property, and go to court, but, according to its defenders, it did not affect political rights, such as the right to vote or run for office; nor did it affect “social rights,” which implicated an amorphous conception of social interactions that ran the gamut from private social clubs to privately operated public accommodations (taverns, theaters, and the like) to public schools.[18]

In the following years, these categories of rights remained salient in legal debate. The framers of the Fourteenth Amendment emphasized the distinction between civil rights (the primary target of the Amendment), social rights, and political rights. Since the Amendment protected civil and not political rights, there was a need for an additional constitutional Amendment, the Fifteenth, to protect the right to vote. Much of the debate over the Civil Rights Act of 1875 involved defenders of the law explaining that prohibiting racial discrimination in public accommodations was a protection of a civil right, not a social right.[19] The carving up of society into separate spheres—civil, social, and political—was central to the emerging logic of Jim Crow. It featured prominently, for instance, in the reasoning of the Supreme Court in The Civil Rights Cases,[20] which struck down much of the Civil Rights Act of 1875 as beyond the reach of the Fourteenth Amendment, and Plessy v. Ferguson (1896),[21] which upheld racial segregation in railroad cars as merely a restriction of a social right, not an infringement of a protected civil right.

Differentiating the category of civil rights from other categories of rights was thus at the heart of the civil rights project from the beginning. What would change in the twentieth century was the nature of the categories. The sharp lines between civil, social, and political rights became blurred and ultimately untenable as the twentieth century black freedom movement successfully challenged racial discrimination in all these spheres. By the middle of the twentieth century, the term civil rights had subsumed and largely effaced these categories. But as racial justice activists in the twentieth century remade the category of civil rights—conflating what had previously been differentiated—other activists were engaged in their own efforts to advance their causes by capturing and redefining the meaning of civil rights and civil liberties.

B.  Civil Rights, Civil Liberties, and the Labor Movement in the New Deal Era

In the period from the beginning of the twentieth century to the onset of the Cold War, political and legal actors saw little reason to distinguish between civil right and civil liberties. Activists and observers used the two labels interchangeably to describe the campaign to expand workers’ rights in the opening decades of the twentieth century efforts.[22] The broad umbrella of the labor movement encompassed a variety of rights-based reform efforts. Some pressed the expansion of free speech and assembly rights as the key to advancing the cause of labor.[23] Some saw an attack on racial inequality as the cornerstone of workers’ rights.[24] The various rights-based causes of the period were so intertwined, their central legal claims so eclectic and diffuse,[25] that the development of a category distinction between civil rights and civil liberties would not have made sense, or at least would not have been particularly useful.

The evolving, overlapping nature of reform activism during this period was reflected in the labels reformers used to describe their work. In 1920, when Roger Baldwin reorganized the National Civil Liberties Bureau—a group formed in response to government efforts to suppress speech during World War I—he considered naming the new organization the National Civil Rights Union before settling on the American Civil Liberties Union.[26] The early ACLU was primarily concerned with protecting and promoting the rights of workers to organize.[27] In the 1930s, Senator Robert M. La Follette Jr. created and chaired the Civil Liberties Committee, a congressional committee dedicated to the protection of labor rights.[28] In 1939, the Justice Department formed a Civil Liberties Unit[29]—which the New York Times referred to as a “‘Civil Rights’ Unit”[30] and whose initial charge was to investigate “civil rights” issues.[31] In its early years, the unit’s primary concern was protecting the rights of workers to organize and protest.[32] In 1941, when Victor Rothem took charge of the Civil Liberties Unit, he decided to change its name. He was concerned that his group was getting confused with the ACLU; he also felt that the title risked sounding too radical.[33] So he renamed it the Civil Rights Section.[34] (This idea that “civil rights” had a less subversive connotation than “civil liberties” would be a recurrent theme in the coming years.[35]) Typical of the slippage between labels was an article published in the inaugural edition of the Bill of Rights Review in 1940 titled “Civil Liberties—A Field of Law.”[36] Its first sentence described the emergence of a “distinct field of law—that of civil rights.”[37]

All of this is to say that the most prominent legal reform movements of the early twentieth century fail to fit neatly into modern legal categories. Campaigns for free speech interlocked with campaigns for labor rights, and all of these efforts—as well as the movement for racial justice—flew under the banners of civil rights as well as civil liberties. In sum, prior to the 1940s, the terms civil liberties and civil rights were used interchangeably and with little precision in American legal and political discourse.

II.  The Cold War and the Creation

of the Civil Rights-Civil Liberties Divide

The rise of anticommunism as a major issue in the years following World War II created the political circumstances that gave birth to the civil rights-civil liberties distinction. During this period, an influential group of Cold War liberals sought to distinguish their growing interest in protecting the rights of African Americans from their willingness to consider certain limitations on speech and due process rights in the name of protecting the nation from communism. For those who lamented the weakening of protections for political dissent, the distinction offered useful labels to criticize these developments. The civil rights-civil liberties divide, in short, provided a language to describe and participate in the politics of early Cold War America.

A.  The Political Landscape of the Early Cold War

In the years following World War II, rising tensions between the United States and the Soviet Union, and the resulting anticommunist fervor within the United States, led to the strengthening of the interests of certain minority groups and the curtailment of others. World War II marked a critical turning point in the emergence of the modern movement for African American equality, a result of wartime rhetoric attacking fascism and promoting American freedom, the service of large numbers of African Americans in the armed forces, and the migration of thousands of African Americans to the urban North, where they formed powerful voting blocs that demanded the attention of local, state, and federal government representatives.[38] With the end of World War II and the subsequent emergence of the Cold War, the problem of racial discrimination became a foreign policy liability.[39] The Soviet Union eagerly highlighted examples of racial discrimination in the United States in their efforts to bring many of the nations of Africa and Asia under its influence. The supposed leader of the “Free World” hardly acted the part when it came to protecting the freedoms of its racial minorities, and the Soviet propaganda machine only had to publicize news events from the United States to make this point. As Cornell professor Robert Cushman wrote in 1948 in a New York Times Magazine article, “[i]t is unpleasant to have the Russians publicize our continued lynchings, our Jim Crow statutes and customs, our anti-Semitic discrimination, and our witchhunts; but is it undeserved? Some of the flung mud sticks.”[40] From the late 1940s onward, foreign affairs provided a powerful national security rationale for increased federal intervention into dismantling the worst excesses of Jim Crow.[41]

For other minority groups in America, however, the politics of the Cold War proved far less supportive of their cause. Domestic anticommunism decimated the already declining numbers on the far left end of the American political spectrum.[42] Radicals of all stripes found themselves vulnerable to accusations of being sympathetic to the Soviets and subversive to the American order.[43] Members of leftist groups (or even those suspected of being “fellow travelers”) were ostracized from mainstream society; some were even prosecuted for disloyalty.[44] Liberals expressed concern that loyalty programs and the prosecution of suspected subversives infringed free speech and due process rights. But these expressions of concern were often muted and qualified.[45] Liberals and conservatives alike generally believed that the threat of communism, at home and abroad, necessitated a reconsideration of the balance of individual rights and national security.[46] With anticommunism dominating domestic politics in the late 1940s and early 1950s, the political risks of staking out a strong stand on behalf of the civil liberties of suspected subversives often discouraged public officials who might have had reservations about loyalty programs and prosecutions from speaking out on behalf of the rights of political dissidents.[47]

Writing in 1952, Robert M. Hutchins, who had recently resigned as president of the University of Chicago to run the Ford Foundation, noted the “great progress [that] has been made” to advance “the rights of the Negro,” while lamenting that on the question of “the freedom to differ and to espouse unpopular causes, we seem to be losing ground.”[48] This was the political dynamic that those who pressed the distinction between civil right and civil liberties sought to describe, as well as to shape.

B.  The President’s Committee on Civil Rights

No event did more to solidify “civil rights” as specifically involving problems of discrimination, particularly racial discrimination, than President Truman’s creation of a special commission in 1946 charged with investigating the nation’s race problem. The President’s Committee on Civil Rights (PCCR) would publish a highly influential report in 1947, titled To Secure These Rights,[49] which went a long way toward establishing the liberal agenda for racial justice reform in the coming years.

Initially, however, as members of the commission and staffers sought to establish the PCCR’s agenda, there was a good deal of uncertainty about the purview of the committee and about the best way to describe its agenda. Truman’s executive order creating the PCCR reflected the terminological slippage typical of the period. It described the breakdown of government protections for minorities following World War II as a question of “civil liberties,” the preservation of which “is a duty to every Government—state, Federal and local.”[50] It then shifted to discuss the need for improved “civil rights” legislation, referencing the title of the committee—the President’s Committee on Civil Rights—and concluding with the committee’s charge to report on the means by which the nation could improve “the protection of the civil rights of the people of the United States.”[51] Philleo Nash, a special assistant to Truman, later explained that the administration officials who planned out the PCCR used “civil rights” in the title of the commission since it was “a term that was slightly fresh” and it “was not used for this function [i.e. racial justice] at that time.”[52]

Soon after Truman announced the creation of the committee, its members turned to the Civil Rights Section of the Justice Department for guidance on what exactly a committee dedicated to civil rights might do.[53] Lawyers in the Civil Rights Section responded with a report to the PCCR that shed remarkably little light on the situation.[54] “Civil rights is not a technical legal term,” they explained, “but a phrase of popular currency applied somewhat indiscriminately to a miscellaneous group of rights, interests and situations.”[55] To sum up the situation: the Justice Department’s Civil Rights Section was explaining to the President’s Committee on Civil Rights that they did not really know what “civil rights” meant.

As the PCCR went about its work of collecting information, analyzing the state of minority rights, and proposing an agenda for reform, its members found the Justice Department’s catch-all definition of civil rights too diffuse for their purposes. They sought to draw distinctions between different categories of rights. The placement of these lines—out of which emerged the modern distinction between civil rights and civil liberties—reflected the distinctive dynamics of Cold War-era politics, with the relative strength of the cause of racial equality and the cause of political dissent heading in opposite directions.

The resulting report, released on October 29, 1947, offered what were for the time quite bold proposals for federal government intervention on the race question—indeed, much of what the report called for would eventually be realized in the landmark civil rights legislation of the 1960s.[56] Yet it largely bypassed the other pressing minority rights issue of the day: the rights of political dissenters. The report included just a six page statement on the “Right to Freedom of Conscience and Expression,”[57] which it prefaced with a disclaimer that the committee did not do much research on the topic due, in part, to “the conviction that this right is relatively secure.”[58] The fact that the seminal official statement of “civil rights” of the time could spend practically all of its time on the problem of racial discrimination indicated a definite shift in the kinds of issues that would be associated with the category of civil rights going forward. Although the report never explicitly defined “civil rights”—it echoed the non-guidance from the Civil Rights Section lawyers and noted that the term “has with great wisdom been used flexibly in American history”[59]—its overwhelming focus on the rights of African Americans made obvious what the PCCR meant by the term. The focus of the report significantly pushed forward the process of confining the term “civil rights” to the issue of African American equality, with a particular focus on antidiscrimination policy—and in doing so, implicitly limiting issues of dissent and free speech to the category of “civil liberties.”

C.  The Influence of the PCCR Report

Following the publication of the PCCR Report, political leaders, as well as popular and scholarly commentators, began with increasing frequency to use the term “civil rights” to represent the issue that had previously been described as the “Negro question” or the “race question.” On February 2, 1948, Truman gave a special “civil rights” address to Congress in which he made a case for implementing the recommendations of the PCCR.[60] Truman urged the strengthening of Reconstruction Era federal civil rights laws, a federal anti-lynching law, increased protection of voting rights, the creation of a Fair Employment Practices Commission, and ending discrimination in interstate transportation.[61] He also called for the creation of “a permanent Commission on Civil Rights, a Joint Congressional Committee on Civil Rights, and a Civil Rights Division in the Department of Justice.”[62] Collectively, these proposals became known as Truman’s “civil rights program.”[63]

The influence of the PCCR report was clearly evident in Arthur M. Schlesinger, Jr.’s 1949 manifesto of Cold War liberalism, The Vital Center,[64] which was the most explicit articulation up to this point of the civil rights-civil liberties divide. “The distinction between the two areas is worth understanding,” Schlesinger explained.[65] “‘Civil rights’ refers to issues of racial and religious discrimination. The federal civil rights acts after the Civil War defined the field, and the report of the President’s Committee on Civil Rights has given this generation a clear and eloquent statement of our present achievements and obligations.”[66] In contrast, “civil liberties . . . refers primarily to the freedoms of conscience and expression.”[67] He went on to assert unstinting support for civil rights, terming “the sin of racial pride” as “the most basic challenge to the American conscience,” and concluding that “it is fatal not to maintain an unrelenting attack on all forms of racial discrimination.”[68] At this point, Schlesinger turned his attention to the matter of civil liberties, which he argued would require “a considered redefinition in terms of the threats to free society presented by fascism and Communism.”[69] While far from an endorsement of the witch-hunts led by the House Un-American Activities Committee and, in the coming years, by Senator Joseph McCarthy, Schlesinger offered a standard liberal anticommunist argument for reconsidering how far civil liberty protections should be extended during a time of crisis.[70]

In a comprehensive 1953 law review article on civil rights policy, Will Maslow and Joseph B. Robison cited Schlesinger’s distinction in drawing a similar line between civil rights (“those rights commonly denied because of race, color, religion, national origin, or ancestry”) and civil liberties (“rights protected by the Constitution and particularly the first ten amendments”).[71] The lawyers for the NAACP felt the new categories useful in trying to discern a pattern in the Supreme Court’s rulings. “Although the Supreme Court record in the field of civil liberties of late has not been good,” attorney Robert Carter wrote to NAACP executive secretary Walter White in 1951, “we certainly have no cause to complain about their handling of civil rights cases involving the question of racial discrimination.”[72] When the heads of the several racial justice organizations came together in 1950 to pressure Congress to take up Truman’s call for national civil rights legislation, they called their conference the National Emergency Civil Rights Mobilization;[73] two years later they formed the Leadership Conference on Civil Rights, a lobbying organization that still exists today.[74] When President Truman spoke before a rally of African Americans in Harlem in 1952, he was introduced as “Mr. Civil Rights.”[75] By 1952, if there were any lingering confusion, the voice piece of the American mainstream, Life magazine, put the development of the past five years or so into the simplest terms: “[c]ivil rights means Negro rights.”[76]

D.  Civil Rights, Civil Liberties, and the Case for Government

The civil rights-civil liberties distinction helped address a critical challenge faced by the Truman administration and others who supported a federal civil right program in the early postwar years. To show that Jim Crow was morally offensive, that racial prejudice undermined basic American values as well as America’s interests abroad, was only one component of the struggle for racial equality. The other was to make a persuasive case that this problem called for federal intervention.[77] Ending Jim Crow required expanded federal authority—to prosecute lynchings when southern authorities looked the other way, to protect voting rights, to ensure equal opportunities in the workplace. This national civil rights program faced not only the predictable opposition of defenders of segregation who decried Truman’s proposal as a violation of states’ rights, but also the opposition of those who feared that expanding federal authority, even if for well-meaning purposes, undermined basic constitutional values.[78] The language of the civil rights-civil liberties divide helped civil rights proponents push back against this libertarian critique and promote the benefits of the federal government asserting authority to promote racial justice.

By the late 1940s, the most fervent defenders of rights of political dissidents generally viewed a powerful, interventionist government as freedom’s primary threat. This was, in the new parlance of the day, a civil liberties position.[79] Their primary goal was to push government back, to protect their activities from government interference. In contrast, advocates of using the law to advance racial justice viewed that very same interventionist power of the government as necessary for promoting freedom. Their agenda required an acceptance of the need for some measure of “social engineering” and an acceptance of the need for the application of governmental power in the promotion of racial equality.[80] Although many in this period embraced both increased government authority to promote racial justice and more constraints on government authority to protect individual liberty, the emergent civil rights-civil liberties divide offered a kind of rhetorical and conceptual chisel to separate the two issues. And once separated, Cold War liberals could insist that there was nothing necessarily linking the two, and perhaps the two even worked against each other.

In a 1947 study of the work of the Justice Department’s Civil Rights Section, political scientist Robert K. Carr, who served as executive secretary for Truman’s Committee on Civil Rights and played a leading role in drafting the committee’s report, deployed this new “civil rights” mindset by differentiating a “shield approach” and a “sword approach” to protecting individual rights.[81] The guiding assumption of the shield approach was that “[i]nterference with private rights by public agencies is the great historic threat to civil liberty, and the chief method of meeting this threat has long been to invoke the constitutional bill of rights . . . . Government was the enemy of freedom. Accordingly, it was against government, and government alone, that the Bill of Rights was directed.”[82] This was the civil liberties mindset that Carr and other Cold War liberals critiqued. “The use of a defensive weapon is not enough,” Carr explained. What was needed was a civil rights approach. “A sword must be wielded and aggressive battle waged to safeguard our fundamental rights. In this battle to preserve civil rights, the role of government inevitably changes from oppressor to protector.”[83]

President Truman exemplified this position’s distinctive attitude toward civil rights and civil liberties among Cold War liberals. He was an aggressive Cold Warrior who supported significant limitations on civil liberties in the name of national security,[84] but he also spoke out powerfully against racial discrimination. His words before the 1947 convention of the National Association for the Advancement of Colored People (NAACP) captured the approach of this new generation of Cold War liberals—and the emerging reliance on the civil rights-civil liberties distinction. “[W]e cannot be content with a civil liberties program which emphasizes only the need of protection of the people against the possibility of tyranny by the Government,” the president explained.[85] “The extension of civil rights today means, not protection of the people against the Government, but protection of the people by the Government. We must make the Federal Government a friendly, vigilant defender of the rights and equalities of all Americans.”[86]

The ease with which postwar liberals were able to move back and forth between advocating the need to limit civil liberties alongside the need to expand civil rights is illustrated by a speech Attorney General (and future Supreme Court justice) Tom Clark gave in 1946.[87] Entitled “Civil Rights,” the speech began with Clark discussing the problem of racial discrimination and the challenges the Justice Department faced in effectively dealing with this problem.[88] Clark then quickly shifted into an attack on radicalism, warning of “a national and international conspiracy to divide our people, to discredit our institutions, and to bring about disrespect for our government.”[89] By the end of the speech he was urging that “our bar associations, with a strong hand, should take those too brilliant brothers of ours to the legal woodshed for a definite and well-deserved admonition.”[90] He has traveled a remarkable road here. In the context of the times, a pro-civil rights argument could easily morph into an argument for limiting civil liberties. Once on the Supreme Court, Clark established himself as generally supportive of civil rights claims while remaining skeptical toward broad civil liberties claims.[91] Indeed, most of Truman’s appointments to the Court walked the same path when it came to civil rights and civil liberties.[92]

In this way, Cold War liberalism pushed aside the strong civil libertarian position that saw the expansion of federal government power as an inherent threat to basic freedoms. True to their New Deal roots, Cold War liberals believed that needed reform generally came from improving and expanding government regulation, not adding more constraints. What was needed was the sword rather than the shield—a civil rights mindset rather than a civil liberties mindset. The emergent civil rights-civil liberties distinction offered an important tool for pursuing the Cold War liberal agenda.

E.  Racial Justice Advocacy and Free Speech

The assumption behind the nascent civil rights-civil liberties divide—that the cause of racial equality could be advanced alongside only qualified protections for protest and expression—aligned relatively comfortably with the beliefs of influential racial justice advocates of the day. The anticommunist fervor of the early Cold War created new and powerful incentives for racial justice advocates to separate themselves from political radicals. The NAACP expelled Communists from their organization in 1950,[93] and its leaders generally supported government loyalty measures.[94] Thurgood Marshall resigned from the National Lawyers Guild after the left-leaning organization criticized Judge Harold Medina for his handling of a 1949 sedition trial of communists.[95] African American educator and activist Mary McLeod Bethune wrote an article in 1950 titled “The Privileges of a Democracy Are Not Without Common Sense” in which she declared that “[n]either rabble-rousing nor totalitarian whip-cracking is evidence of democracy.”[96]

Recognizing the costs unfettered speech could have to their cause, racial justice advocates sometimes called for speech regulation as a weapon against racial oppression.[97] In 1949, the Chicago Defender, one of the nation’s leading African American newspapers, called on the federal government to prevent a particularly virulent white supremacist pamphlet from being distributed in the mail.[98] Adam Clayton Powell argued that federal sedition law should be used against segregationist opponents of school desegregation.[99] Racial justice activists sought to have racist teachers fired from New York public schools.[100] Activists advocated measures to drive racist speech from the public sphere by criminalizing “group libel,” a tactic the Supreme Court in 1952 upheld against a First Amendment challenge.[101]

Why this willingness among those who were fighting against racial oppression to support policies that some believed to be forms of political oppression? Any explanation for this state of affairs must recognize the relative weakness of the struggle for African American equality at this time as well as a generous dose of political opportunism among its leaders. Unlike the labor movement of the 1930s, supporters of the cause of racial equality in the 1940s saw little advantage in aggressively promoting protection for free expression.[102] To be sure, white supremacy in the United States included the repression of speech of African Americans, through formal and informal methods. But at the time there was nothing approaching an organized mass movement for racial equality that could be unleashed by removing government restrictions on protest activities—there was no mass civil rights movement and most repression of civil rights speech in this period was accomplished through intimidation and violence rather than official policy. What was needed, racial liberals assumed, was to create more public support for the cause of dismantling Jim Crow, a goal that could be advanced by targeting the speech of those who advocated racial prejudice.[103] And it would be aided by detaching the attack on Jim Crow from leftist politics, which by the late 1940s, with the rise of anticommunism, were in increasing disrepute. The emerging civil rights-civil liberties divide offered a tool for understanding and navigating the political landscape of the late 1940s.

F.  The Birth of the “Civil Rights Movement”

It was only in the wake of the PCCR report and Truman’s highly publicized, if only minimally successful, push for federal civil rights reform that people began to describe the struggle for racial justice as the civil rights movement.[104] Until civil rights became specifically associated with the issue of racial justice, such a label would not have made much sense. It would have been too ambiguous and diffuse a referent. But by the late 1940s, with the commonplace meaning of civil rights increasingly associated with the equality rights of African Americans, the very idea of a movement for civil rights became coherent. The term “civil rights movement” did not become a regular part of popular discourse until the 1960s, but its basic meaning took shape in the late 1940s.

The coalescing of the meaning of civil rights around the race issue in the late 1940s was largely a project of exclusion. Since Reconstruction, the term had been understood to include protections against racial discrimination, but it also included many other kinds of rights claims. For Cold War liberals to argue that civil rights, properly defined, centered on the race issue, they had to argue that other kinds of rights claims did not fit the category. They distinguished civil liberties claims, thus centering the civil rights agenda on a call for increased federal authority while also attempting to insulate the race question from questions of political radicalism and national loyalty.[105] Furthermore, the Cold War liberal conception of civil rights tended to emphasize one strand of the broader campaign for racial justice while deemphasizing others. A recent generation of legal historians has emphasized the eclectic nature of racial justice advocacy in the decades before Brown. Reformers pressed African American self-help programs, social welfare reforms, and labor-based activism alongside their campaign against de jure segregation.[106] In the 1940s the NAACP, with the support of lawyers in the Civil Rights Section of the Justice Department, made a concerted effort to challenge racial inequalities in the private employment market.[107] This kind of legal eclecticism in the struggle for racial justice did not disappear in the late 1940s,[108] but one of the consequences of the creation of the category of “civil rights” in the hands of Cold War liberals was the elevation of a relatively narrow conception of a racial justice reform agenda. As Truman made his push for civil rights, and as the Supreme Court moved toward its ruling in Brown, the term civil rights became associated not only with racial justice issues, but with a particular mode of approaching these issues, namely the use of federal authority and Fourteenth Amendment litigation to attack state-sponsored racial discrimination.[109]

The construction of “civil rights” as a discrete category relating to race relations in the late 1940s thus strengthened the forces pushing for racial equality while also narrowing the field of battle. It helped to raise the salience of the struggle for racial justice on the national agenda. What had been known as the “Negro problem”[110] or the “race problem” or, more generally, “race relations,” now had a label that gave the issue a more generalizable connotation.[111] The new label reframed a “problem” into a potential solution. “Civil rights” referenced the legal tool that would address the problem.[112] The new label also invited action. Yet it was action of a particular kind, for as “civil rights” came into common understanding as shorthand for legal reforms targeting racial inequality, the Cold War liberals responsible for this development also sought to exclude certain kinds of legal reforms from their newly configured category. As the label gained traction in popular discourse in the late 1940s and early 1950s, racial liberals pressed a particular version of legal reform, one that downplayed socioeconomic reforms and aimed primarily at racial discrimination by state actors. The “civil rights” campaign that took shape in the late 1940s steered racial justice reform into narrower but more legally and politically viable channels.[113]

By the mid-1950s, the language by which Americans would describe and categorize the landscape of rights claims was set. When in 1957 Congress passed legislation designed to protect voting rights, it was titled “An Act [t]o provide means of further securing and protecting the civil rights of persons within the jurisdiction of the United States.”[114] The first section of the 1957 Act followed through on the proposal of Truman’s PCCR and created a “Commission on Civil Rights.”[115] Its mandate was to investigate the denial of voting rights “by reason of . . . color, race, religion or national origin,” and to “[s]tudy and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution.”[116] Subsequent congressional legislation—in 1960, 1964, 1965, and 1968—were all labeled civil rights acts. Opponents of this legislation made various efforts to resist what they saw as the co-optation of a term with a long, venerable tradition by a special interest group. Practically every segregationist reference to the term during legislative debate was prefaced with “so-called” or some similar form of linguistic protest.[117] But these efforts were to no avail. The movement had its name.

III.  Challenging the Civil Rights-Civil Liberties Divide

A.  Early Challenges

Advocates of the distinction between civil rights and civil liberties did not go unchallenged during this formative period in the early years of the Cold War. Some of the most committed racial egalitarians were skeptical of the idea that civil rights could be advanced alongside compromises on civil liberties. Some were concerned that civil rights proponents were too committed to national authority. This civil libertarian critique of federal civil rights policy was evident in the surprising testimony before the PCCR of Charles Hamilton Houston, a leading figure in the NAACP’s anti-segregation litigation campaign.[118] “It may sound a little strange,” Houston told the Committee,

but, basically, I am a states rights man as distinguished from a federal rights man, because I can conceive of the Federal Government being a juggernaut which can roll over minority rights, as well as protect them, and the present performance of the Federal Government in the witch hunt against Communists, and its fight against labor, gives me no belief that the Federal Government either is the repository of all wisdom or should be entrusted with all the police power of the United States of America.[119]

Much the same point was featured in an assessment of To Secure These Rights published in the Harvard Law Review, whose author criticized the PCCR report for its virtually unqualified enthusiasm for federal power.[120] “[T]his emphasis has . . . resulted in the virtual ignoring of those threats to civil liberty which prompted the original adoption of the first ten Amendments. . . . [C]ivil rights are constantly imperiled, as much today as in any previous time, by certain suggested or actual uses of the processes of government.”[121] (Note the implicit rejection of the PCCR’s civil rights-civil liberties distinction in this critique.)

The further left one was on the political spectrum, the more one had to lose from the emergence of the civil rights-civil liberties divide, since it had the effect of detaching a liberal cause that was growing in support (civil rights for African Americans) from one that was under fire (civil liberties for leftists). “Within the last three years a distinction has developed between ‘civil rights’ and ‘civil liberties’ that clearly reflects a tendency to reject the moral commitment to preserve our freedom which is part of the American heritage,” the editors of the Nation lamented in 1950.[122] “[W]hat if the price which government demands for the affirmative protection of civil rights is acquiescence in the curtailment of civil liberties?”[123] Carey McWilliams, a Nation contributor and an activist committed to combating both anticommunism and racial discrimination, wrote a book in 1950 in which he accused liberals of attempting to divert attention from the problem of economic rights and basic civil liberties through their newfound interest in civil rights.[124] “Civil liberties and civil rights are not separable,” he declared in a subsequent editorial.[125]

Although these voices of dissent would strengthen as the excesses of the anticommunist crusade continued to pile up and liberal opinion was mobilized, albeit tentatively and gradually, on behalf of free expression for political dissidents, it would not be until McCarthyism died down in the late 1950s that one could fairly say that mainstream liberal opinion embraced a robust commitment to civil liberties.[126]

B.  The Civil Rights Movement and the Emergence of the Civil Rights-Civil   

      Liberties Alliance

By the late 1950s, the political conditions that had encouraged the development of the civil rights-civil liberties divide were receding. Most importantly, anticommunism, although still a powerful factor on the American political scene, no longer dominated political discourse in the way it did in the McCarthy Era. At the same time, in the aftermath of Brown v. Board of Education the black freedom movement was evolving in ways that invited a newfound appreciation for potential synergies between civil rights and civil liberties. The divide, which had been integral to the work of liberal anticommunists a decade earlier, simply made less sense, and offered fewer political benefits, in this new political atmosphere. By the mid-1960s a new generation of liberals attacked the divide as an impediment to advancing their agenda.

1.  The Supreme Court Challenges the Divide

Increasing pressure on the civil rights and civil liberties divide can be seen in a series of landmark Supreme Court rulings in the late 1950s and 1960s. The Court considered legal challenges to southern state efforts to undermine the civil rights movement by suppressing civil rights activism. Much of the southern defense of Jim Crow in this period could be struck down based on Brown’s antidiscrimination principle.[127] But increasingly in the late 1950s southern states turned to race-neutral laws in their attacks on the civil rights movement.[128] For the Supreme Court to push back these assaults on the black freedom struggle, the Fourteenth Amendment’s Equal Protection Clause—the “civil rights” approach—was often insufficient. The Court relied instead on provisions of the Bill of Rights, particularly the First Amendment, in order to protect civil rights activity from southern states intent on killing off the civil rights movement.[129]

The civil rights-civil liberties alliance in the Supreme Court can be seen in several lines of cases in the late 1950s and 1960s. One involved challenges to southern state efforts to run the NAACP out of business by requiring the organization to hand over its membership lists, a move that would have left members vulnerable to firing, intimidation, or worse.[130] In NAACP v. Alabama,[131] the Court unanimously ruled that the First Amendment protected a “right of association” that would be violated if organizations could not protect the identities of their members.[132] The state interest in obtaining the membership lists in this case was not sufficient to overcome the First Amendment rights of the NAACP members.[133]

Virginia led another attempt to undermine the NAACP’s civil rights activities when it prosecuted NAACP lawyers for violating state ethics laws.[134] The NAACP’s public interest litigation, most notably its school desegregation suits, required its lawyers to mobilize support in local communities and to exercise significant control over the course of litigation, practices that Virginia claimed failed to follow proper legal practices.[135] The Supreme Court again stood behind the civil rights organization, ruling in NAACP v. Button[136] that public interest litigation was a form of political expression protected under the First Amendment. Writing for the Court, Justice Brennan explained that for groups such as African Americans who are unable to be heard at the ballot box, “litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.”[137] He also referenced the obvious fact that Virginia’s motivation behind prosecuting the NAACP was the “intense resentment and opposition” of white Virginians to the NAACP’s civil rights activity.[138]

Another demonstration of the strengthening civil rights-civil liberties convergence was the landmark 1964 case of New York Times Co. v. Sullivan.[139] This case emerged from the efforts of pro-segregationist forces in Alabama to use state libel law to strike out at civil rights activists and the northern press.[140] As the student lunch counter sit-in movement spread across the South, allies of Martin Luther King (who, at the time, was being prosecuted in Alabama on charges of tax evasion and perjury)[141] ran a full-page fundraising advertisement in the New York Times, in hopes of getting donations to cover King’s considerable legal expenses.[142] The advertisement, which condemned Alabama law enforcement’s treatment of both student protesters and King, contained several factual inaccuracies. Several Montgomery elected officials, including L.B. Sullivan, the city commissioner in charge of the police, sued the Times and four black Alabama ministers who had been listed as endorsing the advertisement for libel. Sullivan won a $500,000 jury verdict against the newspaper, which the Alabama Supreme Court upheld.[143] The Supreme Court, in another opinion by Justice Brennan, held that in light of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” the verdict infringed on the newspaper’s First Amendment rights.[144] In order for a public official to sue for libel, the statements at issue must be made with “actual malice,” a high standard that largely immunized newspapers from being held liable for inadvertent factual inaccuracies that portrayed public officials in a negative light.[145] It was obvious to all that while the doctrinal significance of this decision was in the area of the First Amendment, a critical factor in the ruling was, as one commentator put it, the “sociological reality” of the black freedom struggle.[146]

The First Amendment also served as the doctrinal tool for the Supreme Court’s defense of the civil rights movement in cases involving southern state suppression of civil rights protest. In Edwards v. South Carolina,[147] Justice Stewart found a demonstration held on the grounds of the state house as an exercise of First Amendment rights “in their most pristine and classic form.”[148] In Cox v. Louisiana,[149] the Court held that peaceful protesters who refused to leave jailhouse property when officials ordered them to were protected from prosecution under the First Amendment;[150] and in Brown v. Louisiana,[151] the Court held that a public library sit-in was a form of expression protected under the First Amendment.[152]

Thus we can see that for a period in the late 1950s through the mid-1960s, a majority of the Court generally understood the First Amendment and the Equal Protection Clause as mutually supportive partners in the project of supporting the civil rights movement. The Court advanced the cause of racial equality not only by striking down acts of racial discrimination, but also by protecting First Amendment rights. “The importance of these decisions regarding freedom of association and expression to the civil-rights struggle is hard to over-estimate,” noted NAACP lawyer Robert L. Carter in 1965.[153] The upheaval of the civil rights movement and the Supreme Court’s transformation of constitutional jurisprudence in response led some to conclude that the categories of civil rights and civil liberties overlapped so much that the distinction had largely dissolved.

2.  A Civil Libertarian Interprets the Civil Rights Movement

The use of civil liberties doctrine to advance the cause of civil rights, reflected in the Court’s rulings in the late 1950s through the mid-1960s, gained an influential endorsement from the legal academy in the spring of 1964 when Harry Kalven, the leading First Amendment scholar of the day, gave a series of lectures in which he emphasized the ways in which the Court’s promotion of free speech served the cause of the civil rights movement.[154] Kalven acknowledged that his claim highlighted the intersection of “civil rights” and “civil liberties,” although, in line with the growing concern with the descriptive accuracy and normative implications of the civil rights-civil liberties divide, he indicated some discomfort with the terminology, which he referred to as “two popular labels of the day.”[155] Regardless of the labels chosen to describe this development, he felt their convergence was reason for celebration. The tone of his lectures was hopeful, even triumphant. “The story [of the civil rights movement and the First Amendment] is, I think, a happy and encouraging one,” he wrote.[156] Although the civil disobedience tactics embraced by movement activists risked pushing their actions beyond the protection of the First Amendment, the “extraordinary tact and sure instinct” of the protesters, Kalven argued, had ensured that these actions could be properly regarded as “primarily a massive petition for the redress of grievances, a form of political action, in the courts and in the streets. And a gallant and sensitive United States Supreme Court has responded.”[157]

In praising the ways in which the black freedom struggle bolstered free speech principles, Kalven noted “an intriguing sociological puzzle:” that the black freedom struggle—unlike campaigns against anti-Semitism, for example—had never fully embraced the use of group-libel law to advance its cause.[158] Regardless of the reason for this (Kalven hypothesized that it related to the blunt harshness of white supremacy in America), it allowed Kalven to press ahead with his basic thesis, namely that the civil rights movement epitomized the synthesis of free expression and antidiscrimination efforts. Not only was the civil rights movement achieving unprecedented gains for African Americans, it was also elevating the First Amendment to newfound heights. In its effort to protect the black freedom struggle, the Court, in cases such as Button and Sullivan, embraced new speech-protective doctrines, which ultimately would benefit the entire society. “[T]he Negro,” Kalven declared, was “winning back for us the freedoms the Communists seemed to have lost for us.”[159] There was no divide between civil rights and civil liberties. In Kalven’s optimistic assessment, the two were mutually reinforcing.

3.  The Birth of the Harvard Civil Rights-Civil Liberties Law Review

In 1966, in the midst of this optimistic atmosphere in which civil rights and civil liberties seemed comfortably aligned in service of the liberal agenda, students at Harvard Law School published the first volume of the Harvard Civil Rights-Civil Liberties Law Review [CR-CL]. The inaugural issue explained the editors’ rationale for integrating the two concerns of civil rights and civil liberties into a single journal dedicated to progressive legal reform. “The line of demarcation between the fields of civil liberties and civil rights, blurry enough in theory, has proven nearly unworkable in practice.”[160]

Prior to the formation of CR-CL, Harvard Law School had separate student organizations dedicated to civil liberties and to civil rights. The students who in 1960 began the Civil Liberties Research Service, later referred to as the Civil Liberties Bureau, modeled the organization on the ACLU.[161] The group was dedicated to providing research support for litigants and reform groups working to advance the principles of the Bill of Rights.[162] Its framers followed the principled neutrality model of the ACLU, claiming they would work for the segregationist White Citizens Councils if their constitutional rights were being violated.[163] As the law school newspaper explained, “Members will be asked, not if they are for a cause or against it, but what legal rights are involved and should be recognized.”[164]

Three years later, Harvard law students formed a separate organization dedicated to civil rights.[165] Members of the Civil Rights Group focused on ways in which the law could be actively used to protect and empower the weakest members of society. Their overriding concern was the struggle for black equality.[166]

The division of labor between the two groups was never clearly demarcated, however, and by 1966 they found their work overlapping so much that they decided to unite their causes when forming the new journal.[167] Those responsible for the merger offered several explanations for what had happened. The student editors emphasized the practical pressures for combining, as “the ties between the organizations have over the years become increasingly intimate.”[168] The journal’s adviser, Professor Mark DeWolfe Howe, found a meaning in the new group that went well beyond a mere marriage of convenience.

Recent times have reminded us . . . that aspiration, like history, is a seamless web—that when we talk of civil liberties we are discussing civil rights, that when we deal effectively with civil rights we must deal courageously with economic misery, that when we take military action with respect to the world around us the achievements that we have sought at home are likely to be postponed.

. . . This periodical is launched with the confidence of its sponsors and editors that the legal profession sorely needs a journal that will be devoted to the alert examination, the critical consideration, and the constructive proposal of efforts to make law an effective instrument for advancing the personal freedoms and the human dignities of the American people.[169]

Such sentiment had become commonplace by the mid-1960s. This faith in an unproblematic, perhaps even inevitable, alliance of civil rights and civil liberties in the cause of progressive politics was an understandable outgrowth of the experience of the civil rights movement. For a brief period of history the two approaches to defending minority interests against majority oppression came into a powerful and fortuitous alignment. The students who formed CR-CL were a part of this historical period in which there was little question that the struggle for social justice, for the advancement of the “personal freedoms and human dignities” of which Howe wrote, was served by aggressive advocacy of both civil rights and civil liberties.

C.  Civil Rights vs. Human Rights

By the mid-1960s, civil rights activists, inspired by their accomplishments and frustrated by the persistence of racial inequality in the face of these accomplishments, were framing the movement’s goals in increasingly ambitious terms. One element of this growing ambition was the conflation of the concepts of civil rights and civil liberties, a product of the heady intersection of a nation-changing social movement and a Supreme Court that transformed both civil rights and civil liberties doctrines in order to support the cause of racial equality. Another element of this growing ambition was the turn to a more openly radical agenda among civil rights activists. As the 1960s progressed, leading civil rights advocates picked up what had been a minor cord in the civil rights community and brought it to the forefront of the cause, emphasizing that ending racial discrimination (or, for that matter, defending civil liberties) was not an end in itself, but was a means to the more fundamental goal of social justice and economic opportunity—a goal that advocates often framed in transnational terms. This turn strained the confines of the category of “civil rights,” which racial liberals of the late 1940s and 1950s had effectively stripped of its social democratic and labor-oriented implications.[170]

One of the most influential critiques of the limits of the concept of civil rights was Bayard Rustin’s 1965 assessment of the civil rights movement, published in Commentary under the title “From Protest to Politics.”[171] “At issue, after all, is not civil rights, strictly speaking, but social and economic conditions,” he explained.[172] The best way to achieve economic justice was not through the protest tactics that had proven so successful in the battle against racial discrimination, but through gaining political power.[173] Rustin even suggested that the civil rights movement was “perhaps misnamed,” since the term civil rights was too limited to encompass what was really at stake.[174]

In attempting to capture the social and economic focus of the civil rights movement agenda in the second half of the 1960s, progressive activists turned to a new category, “human rights,” which they used to reference a range of agendas, from a national labor-civil rights alliance to an idealistic, even utopian, campaign for justice and equality on an international scale. In this setting, civil rights assumed a new role. It became a more conservative, moderate, and inadequate foil to “human rights,” a term with a long, if somewhat under-defined, historical pedigree,[175] which achieved newfound currency in the postwar years.[176] In 1965, a Student Nonviolence Coordinating Committee (SNCC) worker wrote “[t]he cause is not ‘civil right’ but human rights,”[177] referencing Malcolm X’s call “to expand the civil-rights struggle to a higher level—to the level of human rights.”[178] In 1967, members of SNCC declared themselves a “human rights organization.”[179] One explanation for this declaration was “a desire to relate to Third World liberation movements” and connect with the “international struggle in which our American struggle is only a small part.”[180] Toward the end of his life, Martin Luther King Jr. increasingly spoke in terms of human rights. “It is not a constitutional right that men have jobs,” he noted, “but it is a human right.”[181] For more and more people on the political left, civil rights did not go far enough—ridding the country of racial discrimination would not address entrenched structural economic inequalities. Civil rights was best understood as a sub-category within the broader category of human rights, which included not only civil rights and civil liberties, but also, most importantly, social welfare rights.

During this period, legal academics were exploring the possibility of a constitutional right to certain minimum social welfare benefits, a concept they too took to describing as “human rights.” Archibald Cox, who had served as Solicitor General between 1961 and 1965 before returning to teaching at Harvard Law School, titled his 1966 Harvard Law Review Foreword “Constitutional Adjudication and the Promotion of Human Rights.”[182] Cox charted the explosion of equality-based claims in a variety of areas—race, access to the vote, criminal procedure—which he consolidated under the umbrella label of “human rights.”[183] The Supreme Court’s human rights agenda demonstrated an increased willingness to “impose affirmative obligations upon the state.”[184] “Today, the political theory which acknowledges the duty of government to provide jobs, social security, medical care, and housing extends to the field of human rights and imposes an obligation to promote liberty, equality, and dignity.”[185] Such an ambitious and novel constitutional agenda, reaching well beyond the civil rights and civil liberties achievements of the past, demanded a new label, one that could transcend the civil rights-civil liberties divide and encompass the positive rights agenda that some liberals believed was within reach. This was the work of “human rights.”

While efforts to transform the civil rights movement into a broader, more ambitious human rights movement failed to gain significant traction as a matter of domestic policy or constitutional doctrine in the United States,[186] beginning in the 1970s a vibrant international human rights movement developed.[187] The modern international human rights movement benefited from a big-tent approach, one that allowed for many different actors with different agendas to rally around the same amorphously defined label of “human rights.”[188] If the primary work of the original civil rights-civil liberties distinction was to divide, to carve off a swath of loyal but risky supporters of the cause of racial equality in order to legitimate that cause, the primary work of the label of human rights was to bring together a diverse global community.

IV.  Maintaining the Civil Rights-Civil Liberties Divide

The history of the civil rights-civil liberties divide raises the following question: Why has the distinction been so durable, even when the conditions for its emergence are long past? Several explanations present themselves. One is that the labels indeed reflect certain basic realities about the American legal tradition. Civil rights and civil liberties have different legal and constitutional bases—different textual origins, different lines of precedent, different government institutions that tend to support (or threaten) those rights. Modern civil rights practice relies predominantly on statutory frameworks; civil liberties claims still generally rest on constitutional grounds.

Additionally, there is an important functional distinction between civil rights and civil liberties in terms of what their proponents ask of the government. Put simply, advocates of civil rights typically ask the government to do more: to implement more aggressive antidiscrimination regulations, to extend the equal protection norm, through legislative or judicial or administrative action, to new areas of society and to new groups. Civil libertarians generally believe that government power and individual freedom operate as a zero-sum game. Their basic demand is that the government do less. There is a certain legal and functional logic to the civil rights-civil liberties distinction, which has allowed it to live on, even when the political circumstances of its birth no longer hold.[189]

The longevity of the civil rights-civil liberty divide can also be explained by reference to organizational dynamics. Civil rights activists and civil libertarians have largely developed separate organizational structures. While in the majority of instances these organizations find themselves fighting different battles or joining on the same side of a particular issue, there are instances in which their organizations end up on opposing sides of an issue. In the 1930s and 1940s, the ACLU gradually abandoned its affiliation with the labor movement and leftist causes, a response to the necessities of surviving in the face of Cold War politics, along with the growing prominence of groups such as the NAACP specifically dedicated to fighting on behalf of oppressed groups.[190] During this period, the ACLU’s national office became increasingly dedicated to a stance of principled neutrality, focusing on protecting a legal principle more than specific causes.[191] So, for example, the ACLU did not fully support the Civil Rights Act of 1960 because it did not guarantee southern election officials accused of discrimination the right to confront their accuser during the hearing before the Civil Rights Commission.[192] More recently, the ACLU has broken with civil rights groups over hate speech codes (a topic discussed further below).

In sum, ingrained ideological tensions between civil rights and civil liberties, the development of separate legal traditions, and the largely distinct organizational apparatus that has developed help to explain the resilience of the civil rights-civil liberties divide through the second half of the twentieth century and into the twenty-first century.

In addition to these factors, we also need to recognize the work that the divide does in modern American law. Just as the liberal anticommunists of the early Cold War put the divide to work for their own purposes, subsequent generations of Americans have found tangible benefits in amplifying the distinction between the two categories of rights claims. The civil rights-civil liberties divide has always served as a vehicle to advance certain substantive claims. It has always been a way to structure debates about which kinds of rights should be favored and which ones should be limited. This trend repeated itself many times over the course of the history of the divide, and it remains relevant today.

For instance, opponents to the federal civil rights laws of the late 1950s through the 1970s often framed their critique as a defense of civil liberties against civil rights. “There is an unbridgeable gap between civil liberties and civil rights,” wrote Sam Ervin, longtime U.S Senator from North Carolina, in his autobiography.[193] “Civil liberties belong to Americans of all races, classes, and conditions. Civil rights are special privileges enacted by Congress, or created by executive regulations, or manufactured by activist Supreme Court Justices for the supposed benefit of members of minority races on the basis of their race.”[194] Critics of the civil rights movement framed this claim as a tension between equality and liberty, proclaiming the latter the more fundamental value.[195] Defenders of segregation aligned themselves with ideological libertarians who attacked efforts to promote racial equality through increased government regulation because of the supposed costs these regulations imposed on individual freedom.[196]

A more recent episode in the history of the civil rights-civil liberties divide can be found in the debate over the regulation of hate speech and pornography, a debate fought out with particular urgency in the 1980s and 1990s and one that has periodically flared up since then. In a 1992 assessment of campus speech codes, Thomas C. Grey started by identifying the assumption of a civil rights-civil liberties alliance that was a legacy of the 1960s, noting that “American liberals believe that both civil liberties and civil rights are harmonious aspects of a basic commitment to human rights.”[197] The debate over hate speech had the effect of challenging this assumption, however, and “recently these two clusters of values have seemed increasingly to conflict . . . .”[198] Critical race theorist Richard Delgado suggested that the hate speech debates demonstrate that civil rights and civil liberties might best be described as having a “dysfunctional” relationship.[199] Delgado and other supporters of hate speech restrictions argued that the proper approach was to prioritize civil rights over civil liberties—an abstract principle of free expression must not prevent measures designed to protect oppressed groups. When the cause of racial equality comes into conflict with personal liberty and autonomy, defenders of hate speech regulation argue, equality simply must triumph over liberty.[200] Here, the civil rights-civil liberties distinction allows for a relatively clear, concise exercise in ranking the substantive value of conflicting rights.

Critics of speech codes have also framed their critique in terms of the civil rights-civil liberties divide. In this conflict, they argue, civil liberties must be recognized as the more fundamental value.[201] The courts have generally agreed with this position and have consistently struck down efforts to regulate pornography and hate speech as a violation of the First Amendment.[202]

A related development has been a recent revisionist effort among libertarian legal scholars to elevate the role of civil liberties in the history of racial progress in twentieth-century American. David Bernstein in particular has pressed this point.[203] He argues that the jurisprudence associated with the famous Lochner[204] case advanced not only economic liberty, “but civil rights and civil liberties as well.”[205] “Indeed [Lochner’s defenders] failed to distinguish among these categories.”[206] He writes:

It is possible to imagine that but for the interruption of the Great Depression and the New Deal, entirely different forms of civil rights protections would have arisen—a laissez-faire combination of equal protection of the law, liberty of contract, and freedom of association, instead of the more statist combination of interest group liberalism, the welfare state, and government enforcement of nondiscrimination norms against private parties.[207]

Bernstein notes that others have called for a reinvigoration of this “laissez-faire version of civil rights”[208]—or, put another way, a civil liberties approach to advancing the civil rights goal of combatting discrimination.[209]

The civil rights-civil liberties divide has also featured in debates over gay rights. Opponents have deployed civil liberty claims to counter efforts to expand civil rights protections to cover discrimination based on sexual orientation. In Boy Scouts of America v. Dale (2000),[210] the Supreme Court’s decision holding that a state prohibition of sexual orientation discrimination violated the Boy Scouts’ right to free association sparked a new wave of debate over the costs and benefits of an expansive conception of civil liberties when used to challenge civil rights policy.[211] More recently, critics of legal recognition of same-sex marriage have framed their position largely in civil libertarian terms, as defending expressive freedom and religious liberty.[212] Yet gay rights advocates have also successfully used civil liberties claims to advance their cause. This can be seen in the Supreme Court’s reliance on a due process liberty claim when striking down sodomy laws in Lawrence v. Texas,[213] or the 2010 federal district court decision striking down the military’s “Don’t Ask, Don’t Tell” policy as a violation of the First Amendment.[214] Consider also the mission statement of the Log Cabin Republicans, which defends its advocacy for gay rights as part of a general commitment to “free markets, individual liberty, limited government, and a strong national defense.”[215]

One last example helps illustrate the ongoing relevance of the civil rights-civil liberties divide. As discussed at the top of the Article, those assessing Eric Holder’s record as Attorney General found the divide a useful tool for bringing coherence and balance to their accounts of his achievements and failures.[216] One critic, however, attacked Holder’s record through a rejection of the divide. University of Chicago Law Professor Eric Posner noted that Holder sought to be remembered for his record on civil rights, by which “he means the efforts that he made on behalf of gays and lesbians and of racial minorities.”[217] Yet, “[f]rom the standpoint of civil rights,” Posner concluded, “historians will regard him as a failure.”[218] Posner supported this assessment with a list of national security issues—issues others categorized as civil liberties—on which Holder came up short.[219] “This is not a record that a civil-rights-promoting attorney general can be proud of,” Posner concluded.[220] By drawing civil liberties issues under his unconventionally broad definition of civil rights, Posner sought to counter the claims of Holder’s supporters that even if the Attorney General deserved “jeers” for his civil liberties record, he deserved “cheers” for his civil rights record.[221] Echoing several generations of critics of the civil rights-civil liberties divide, Posner recognized that the divide comes with costs—in this case, it was being used as a way to excuse or minimize Holder’s civil liberties record.

In sum, the civil rights-civil liberties divide retains significance today because of the work it does in explaining the legal phenomena our current political environment has made relevant. It provides a language by which to oppose, to praise, and to reconcile many of our era’s legal issues.


In a 2006 article on the history of human rights, Kenneth Cmiel called for more attention to the “ways that rights have been clustered together over time,” including the “political ramifications” of these groupings.[222] This examination of the civil rights-civil liberties divide has sought to do just that.

The gathering of certain rights around the labels of civil rights and civil liberties in the late 1940s was a response to the demands of the domestic politics of the Cold War. Liberal anticommunists sought a language of rights that could capture their potentially contradictory message of calling for an expanded federal commitment to the protection of equality rights for African Americans while accepting, in the name of national security, limitations on certain freedoms. The civil rights-civil liberties divide was a tool that advanced the particular interests of Cold War liberals. The divide had its costs, first raised by isolated voices in the 1940s and 1950s, then by a concerted reform movement in the 1960s. Efforts in the 1960s to dissolve the civil rights-civil liberties divide ultimately failed, however, and the distinction lives on as a basic organizing principle of American law.

Excavating the largely forgotten history of the civil rights-civil liberties divide allows us to better understand its continued significance today. Although the divide no longer provides a language and conceptual apparatus for contesting the meaning of American liberalism, as it did from the late 1940s through the 1960s, it still has a role to play, as seen in recent debates over hate speech, gay rights, or an Attorney General’s legacy. Defining and debating the divide has always been a tool for contesting the relative value of certain rights. The divide persists because it continues to do political and ideological work. The history of the civil rights-civil liberties divide illuminates the importance of the labels by which we understand our legal world.


Associate Professor, Norman and Edna Freehling Scholar, and Director, Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law; Faculty Fellow and Editor, Law and Social Inquiry, American Bar Foundation. For helpful comments that greatly improved this Article, I would like to thank Steve Heyman, Mark Rosen, and Laura Weinrib.

[1].Matt Apuzzo, A Champion of Civil Rights, if Not of Civil Liberties, Just Like His Hero, N.Y. Times (Sept. 26, 2013),




[5].See, e.g., Clarence Page, Eric Holder’s Mixed Legacy, Chi. Trib. (Sept. 28, 2014), (“Holder deserves cheers for his stance on civil rights, but bemused jeers for his assaults on civil liberties.”); Jonathan Turley, Eric Holder’s Reign Ends with a Whimper, USA Today (Sept. 28, 2014), (“In the end . . . his positive work on civil rights will be eclipsed by his destructive legacy on civil liberties . . . .”); Shields and Brooks on Islamic State as ‘Ideal’ Villains, Retirement for Holder and Jeter, PBS Newshour (Sept. 26, 2014), (noting that Holder “was quite strong on civil rights and not so strong on civil liberties”).

[6].See, e.g., Civil Right, Black’s Law Dictionary (7th ed. 1999) [hereinafter Black’s]; Jack Greenberg, Civil Rights, in Encyclopedia of the American Constitution 273, 273-81 (Leonard W. Levy et al. eds., 1986) [hereinafter Encyclopedia]; John E. Semonche, Civil Rights and Civil Liberties, in The Oxford Companion to American Law 110 (Kermit L. Hall at al. eds., 2002).

[7].See, e.g., Civil Liberty, Black’s, supra note 6; Norman Dorsen, Civil Liberties, in Encyclopedia 263-70, supra note 6.

[8].For similar descriptions of the distinction between civil rights and civil liberties, see Semonche, supra note 6; Ronald Goldfarb & Stephen Kurzman, Civil Rights v. Civil Liberties: The Jury Trial Issue, 12 UCLA L. Rev. 486, 486 (1965); Thomas C. Grey, Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment, 63 J. Higher Educ. 485, 486 (1992); “Civil Rights” vs. “Civil Liberties,” Findlaw, (last visited Oct. 18, 2015).

         Of course, the civil rights-civil liberties distinction is not always so clear in practice, a fact reflected in Black’s recognition that a civil liberty is “[a]lso termed a civil right,” and the inclusion of “civil liberty” as an alternative definition for civil right. Civil Right, Black’s, supra note 6; Civil Liberty, Black’s, supra note 6.

[9].My study of the civil rights-civil liberties divide focuses on usage rather than meaning. As the historian Daniel Rodgers wrote in his study of “keywords” in American politics, attention to the usage of words entails an inquiry into “how they were employed and for what ends, how they rose in power, withered, and collapsed, how they were invented, stolen for other ends, remade, abandoned.” Daniel T. Rodgers, Contested Truths: Keywords in American Politics Since Independence 3 (1987). Rodger’s description of “political words” would seem to apply, with equal force, to “legal words”: “Political words take their meaning from the tasks to which their users bend them. They are instruments, rallying cries, tools of persuasion.” Id. at 10.

[10].See George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866, at 42 (2013) (describing the passage of the 1866 Civil Rights Act as redefining “civil rights” to mean “those rights sufficiently fundamental to be protected from discrimination on the basis of race”).

[11].Civil Rights Act of 1866, ch. 31, 14 Stat. 27.


[13].Rutherglen, supra note 10, at 41-46; G. Edward White, The Origins of Civil Rights in America, 64 Case Western Reserve L. Rev. 755, 772-75 (2014); Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 11-29 (1955).

[14].Rutherglen, supra note 10, at 70-80; White, supra note 13, at 775-76.

[15].Id. at 74; Bickel, supra note 13, at 25-26.

[16].See, e.g., Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (Senator Trumbull describing the purpose of the Civil Rights Act as protecting “civil liberty”); see also Rutherglen, supra note 10, at 41-46.

[17].On the nineteenth-century division of what we today consider varieties of civil rights into this tripartite division, see Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction 70-74 (2011); Harold M. Hyman & William M. Wiecek, Equal Justice Under Law: Constitution Development, 1835-1875, 394-97 (Henry Steele Commager et al. eds., 1982); Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1016-36 (1995); Rebecca J. Scott, Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge, 106 Mich. L. Rev. 777, 788-89 (2008).

[18].E.g., Bickel, supra note 13, at 12-13 (describing arguments of Representative Lyman Trumbull); id. at 16-17, 19-20, 26 (describing arguments of Representative James F. Wilson).

[19].Brandwein, supra note 17, at 81-84.

[20].The Civil Rights Cases, 109 U.S. 3, 22 (1883); id. at 59-60 (Harlan, J., dissenting).

[21].Plessy v. Ferguson, 163 U.S. 537, 544 (1896); id. at 561 (Harlan, J., dissenting).

[22].Risa Goluboff, The Lost Promise of Civil Rights 23-25, 280 nn.16-21 (2007).

[23].Laura Weinrib, The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech, 30 L. & Hist. Rev. 325, 334-36 (2012); see also David Rabban, Free Speech in its Forgotten Years, 1870-1920 (1999).

[24].See, e.g., Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right 11–34 (2014); Goluboff, supra note 22; Kenneth W. Mack, Rethinking Civil Rights Lawyering and Politics in the Era Before Brown, 115 Yale L.J. 256, 304-07 (2005).

[25].Laura M. Weinrib, Civil Liberties Outside the Courts, 2014 Sup. Ct. Rev. 297, 308 (2014) [hereinafter Weinrib, Civil Liberties] (“During the 1930s, the meaning of civil liberties was in flux. More to the point, it was vehemently contested. Whatever their underlying objectives, advocates across the political spectrum defended them in civil liberties terms. To some, civil liberties were constraints on state power; to others, they served as a basis for state intervention against private abuses or economic inequality. Civil liberties might undercut administrative discretion or justify government intrusions.”).

[26].Samuel Walker, In Defense of American Liberties: A History of the ACLU 47 (2d. ed. 1999).

[27].See Weinrib, Civil Liberties, supra note 25, at 303.

[28].S. Rep. No. 6, at 1 (1939); Risa L. Goluboff, The Thirteenth Amendment and the Lost Origins of Civil Rights, 50 Duke L.J. 1609, 1617-18 (2001). The La Follette Committee was established “to investigate violations of right of free speech and assembly and interference with right of labor to organize and bargain collectively.” S. Res. 266, 74th Cong., 2d Sess. (June 6, 1936), quoted in Robert K. Carr, Federal Protection of Civil Rights: Quest for a Sword 28 n.39 (1947); see also Jerold S. Auerbach, The La Follette Committee: Labor and Civil Liberties in the New Deal, 51 J. Am. Hist. 435 (1964).

[29].Carr, supra note 28, at 24 n.35 (citing Order of the Attorney General, No. 3204, Feb. 3, 1939); Weinrib, Civil Liberties, supra note 25, at 343; Henry A. Schweinhaut, The Civil Liberties Section of the Department of Justice, 1 Bill Rts. Rev. 206, 206 (1941).

[30].“Civil Rights” Unit Set Up by Murphy, N.Y. Times, Feb. 4, 1939, at 2.

[31].Id. A representative sample of the terminological fluidity characteristic of the day can be found in this opening line of a New York Times story: “Attorney General Frank Murphy, warning that civil rights had been abridged in some communities and racial discrimination fostered, urged States and municipalities yesterday to join with the Federal Government in a vigorous defense of civil liberties.” Guard Civil Rights, Murphy Asks Cities, N.Y. Times, May 16, 1939, at 1.

[32].At the time of the formation of the Civil Liberties Unit, the most significant Justice Department prosecutions relating to what was understood to be “civil liberties” involved Kentucky coal miners and the CIO in New Jersey. Schweinhaut, supra note 29, at 206. The complaints received by the newly formed unit encompassed a variety of issues, from labor rights to free speech to criminal justice violations, to repression of African Americans by the Ku Klux Klan. Id. at 206-07. See also Goluboff, Thirteenth Amendment, supra note 28, at 1616-17.

[33].Carr, supra note 28, at 24 n.35.

[34].Id. The name change foreshadowed a change in the section’s mission. Over the course of the 1940s, the agenda of the Civil Rights Section shifted from labor rights toward a focus on racial discrimination. Id.

[35].See infra Part II.E.

[36].Civil Liberties—A Field of Law, 1 Bill Rts. Rev. 7, 7 (1940).

[37].Id. Almost all the articles published during the short life of the Bill of Rights Journal (it stopped publication in 1942) dealt with what we would today consider civil liberties issues. See, e.g., Arthur Garfield Hays, Civil Liberties in War Time, 2 Bill Rts. Rev. 170 (1941); George I. Haight, Freedom of Speech and of the Press—Now, 1 Bill Rts. Rev. 278 (1941); Wire Tapping, Civil Liberties and Law Enforcement, 1 Bill Rts. Rev. 48 (1940).

[38].See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 173-96 (2004).

[39].See Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (2000).

[40].Robert E. Cushman, Our Civil Rights Become a World Issue, N.Y. Times Mag., Jan. 11, 1948.

[41].Dudziak, supra note 39.

[42].See Ellen Schrecker, Many Are the Crimes: McCarthyism in America 359-415 (1998).


[44].See, e.g., id., at 309-58 (describing the persecution of union organizer Clinton Jencks).

[45].See, e.g., Sidney Hook, Heresy, Yes—But Conspiracy, No, N.Y. Times Mag., Jul. 9, 1950, at 12, 38-39; Irving Kristol, Civil Liberties, 1952—A Study in Confusion, 229-36  9, 1950 nd of the Press e.]rather, it is just the report itself."on or that this was the Administration'tration is validComment., Jan. 1952, at 228, 229-36.

[46].For a representative expression of the liberal anticommunist position, see Arthur M. Schlesinger, Jr., The Vital Center: The Politics of Freedom (1949), discussed below.

[47].See, e.g., Richard H. Pells, The Liberal Mind in a Conservative Age: American Intellectuals in the 1940s and 1950s 262-345 (1985).

[48].Robert M. Hutchins, Foreword to 1 Thomas I. Emerson & David Haber, Political and Civil Rights in the United States, at iv (2d ed. 1952).

[49].President’s Committee on Civil Rights, To Secure These Rights (1947) [hereinafter PCCR Report].

[50].Exec. Order No. 9808, reprinted in id. at vii.

[51].Id. at viii.

[52].Interview by Jerry N. Hess with Philleo Nash, Special Assistant for Domestic Operations, Office of War Info., in D.C., (Feb. 21, 1967).

[53].Civil Rights Section of the Department of Justice, Federal Criminal Jurisdiction Over Violations of Civil Rights, Memorandum to the President’s Committee on Civil Rights, (Jan. 15, 1947), reprinted in Documentary History of the Truman Presidency, Vol. 11, The Truman Administration’s Civil Rights Program: The Report of the Comm. on Civil Rights and President Truman’s Message to Congress of February 2, 1948, at 235 (Dennis Merrill ed., 1996) [hereinafter Documentary History].

[54].See id.

[55].Id. (internal quotation marks omitted).                 

[56].PCCR proposals included increased federal protection for voting rights, see PCCR Report, supra note 49, at 8; cutting off federal funds to any public or private entity that practices racial discrimination, see id. at 166-67; prohibiting racial discrimination in employment, see id. at 167-68, public facilities, see id. at 169-70, and privately operated public accommodations, see id. at 170-71.

[57].Id. at 47-53.

[58].Id. at 47.

[59].President’s Committee on Civil Rights, To Secure These Rights x (1947).

[60].Harry S. Truman, Special Message to the Congress on Civil Rights, Feb. 2, 1948, Pub. Papers of the Pres.,



[63].See, e.g., The President’s News Conference, Feb. 5, 1948,; Editorial, Civil Rights Message, Wash. Post, Feb. 4, 1948, at 14; C.P. Trussell, South Threatens Anti-Truman Drive over Civil Rights, N.Y. Times, Feb. 4, 1948, at 1.

[64].Arthur M. Schlesinger, Jr., The Vital Center: The Politics of Freedom (1949).

[65].Id. at 189.


[67].Id. at 190.

[68].Id. at 190-91.

[69].Id. at 191.

[70].See id. at 191-218. See also, Arthur M. Schlesinger, Jr., What Is Loyalty? A Difficult Question, N.Y. Times Mag. (Nov. 2, 1947). at 7, 48-51.

[71].Will Maslow & Joseph B. Robison, Civil Rights Legislation and the Fight for Equality, 1862-1952, 20 U. Chi. L.R. 362, 363 n.1 (1953). See also Milton R. Konvitz, The Constitution and Civil Rights vii (1947) (differentiating between political rights (“such as the right to vote”), civil liberties (“such as those mentioned in the Bill of Rights), and civil rights (“the rights of persons to employment, and to accommodation in hotels, restaurants, common carriers, and other places of public accommodation and resort”)).

[72].Jack Greenberg, Crusaders in the Courts: Legal battles of the Civil Rights Movement 111 (2004); see also Loren P. Beth, The Case for Judicial Protection of Civil Liberties, 17 J. Pol. 100, 101 (1955) (noting that “the Supreme Court has in recent years turned in what many libertarians believe to be a backward direction”).

[73].5000 to Launch Civil Rights Campaign Here Today, Wash. Post, Jan. 15, 1950, at M9.

[74].See Gorshon Fishbein, 4 Main Steps to Civil Rights Are Outlined, Wash. Post, Feb. 19, 1952, at 11; Interest High on Civil Rights, Atl. Daily World, Feb. 19, 1952, at 4.

[75].Truman Declares Ike Converted to ‘Me-Tooism’, Bos. Globe, Oct. 12, 1952, at C1. Thurgood Marshall, the person most commonly identified with this title, started being praised as “Mr. Civil Rights” around this time. Banquet Held for Marshall, Balt. Sun, Feb. 16, 1953, at C11 (noting that Marshall “has been frequently referred to by his many admirers both in and out of the Negro race as ‘Mr. Civil Rights’”).

[76].Editorial, White Supremacy, Life, Aug. 4, 1952, at 30.

[77].See Christopher W. Schmidt, “Freedom Comes Only from the Law”: The Debate over Law’s Capacity and the Making of Brown v. Board of Education, 2008 Utah L. Rev. 1493 (2008).

[78].See, e.g., Civil Rights and Politics, N.Y. Times, Feb. 24, 1948, at 24; Stewart Alsop, Even South’s Liberals Found Opposed to Civil Rights Laws, N.Y. Herald Trib., Oct. 24, 1948, at A1; George Gallup, Civil Rights Ideas Differ over Nation, Wash. Post, Jul. 25, 1948, at B2.

[79].As Laura Weinrib points out, this kind of anti-statist approach to defending civil liberties was only one strand of several available in the 1920s and 1930s. By the 1940s, however, it became the dominant approach of self-professed civil libertarians. Weinrib, Civil Liberties, supra note 25.

[80].Consider, for example, NAACP attorney Thurgood Marshall’s statement before the PCCR: “Whatever reservations one may have concerning a strong central government, our complex social and economic structure makes such a government not only necessary but inevitable . . . . [P]ossibly more than any group in American life, the Negro fervently believes in the rightness and the correctness of these principles.” Statement of Thurgood Marshall Before President’s Committee on Civil Rights, Apr. 17, 1947, Records of the President’s Committee on Civil Rights, Box 9, Truman Library.

[81].Carr, supra note 28, at 1-14.

[82].Id. at 6.

[83].Id. at 14.

[84].See, e.g., Alonzo L. Hamby, Beyond the New Deal: Harry S. Truman and American Liberalism 87-119 (1973).

[85].Harry S. Truman, Address Before the National Association for the Advancement of Colored People (June 29, 1947), in Public Papers of the Presidents of the United States: Harry S. Truman 1945-1953,


[87].Tom C. Clark, U.S. Att’y General, Civil Rights: An Address (June 21, 1946), reprinted in Documentary History, supra note 53, at 89, 90.




[91].Klarman, supra note 38, at 194-96.


[93].See, e.g., NAACP Pledges Crackdown on Communism at Confab, Chi. Defender, July 1, 1950, at 1, 2.

[94].Cf. Roy Wilkins with Tom Mathews, Standing Fast: The Autobiography of Roy Wilkins 205-06 (1982); George Streator, NAACP Condemns Communist Tinge, N.Y. Times, Mar. 10, 1949, at 14; Walter White, The Negro and the Communists, Crisis, Aug.–Sept. 1950, at 502.

[95].Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, 44-45 (1994); Juan Williams, Thurgood Marshall: American Revolutionary 168-69 (1998).

[96].Mary McLeod Bethune, The Privileges of a Democracy Are Not Without Common Sense, Chi. Defender, Apr. 22, 1950, at 6.

[97].In the 1940s, “we were all concerned with devising controls for the libeling of groups,” Harry Kalven would later reflect. “The war and the rise of fascism had made us suddenly sensitive to the evils of systematic defamation of minority groups, sensitive to the new and unexpected power of malevolent propaganda.” Harry Kalven, Jr., The Negro and the First Amendment 7 (1965); see, e.g., David Riesman, Democracy and Defamation: Control of Group Libel, 42 Colum. L. Rev. 727, 728-30, 733 (1942).

[98].Black Blood Black, but Negro Is Red Says Newest Race Hate Book, Chi. Defender, June 11, 1949, at 13.

[99].Martha Biondi, To Stand and Fight: The Struggle for Civil Rights in Postwar New York City 138-39 (2003).

[100].Id. at 244-45.

[101].Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).

[102].A much earlier historical analogue, in which a racial justice movement aligned itself with robust protections for free expression, was antebellum abolitionism. See Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835-37, 89 Nw. U. L. Rev. 785, 859-66 (1995); see also Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 234-35 (1998) (“From the 1830s on, abolitionist crusaders had understood that freedom of speech for all men and women went hand in hand with freedom of bodily liberty for slaves.”).

[103].NAACP support for certain forms of speech repression can be traced back to its long-running campaign to have censored the 1915 film The Birth of a Nation, a flagrantly racist depiction of Reconstruction Era history. See Melvyn Stokes, D. W. Griffith’s The Birth of a Nation: A History of the Most Controversial Motion Picture of All Time 129–70 (2007); Stephen Weinberger, The Birth of a Nation and the Making of the NAACP, 45 J. Am. Stud. 77, 84-91 (2011). In response to a 1940 letter from ACLU executive director Roger N. Baldwin urging the NAACP to stop its efforts to suppress The Birth of a Nation and “not to help build up a machinery of public suppression of anything,” the editors of The Crisis responded that the NAACP’s “struggle against a hostile public opinion” demands that “some forms of anti-Negro propaganda had to be attacked even though it meant censorship.” ACLU on “The Birth of a Nation”, Crisis, Aug. 1940, at 268-69.

[104].Since Seneca Falls, Wash. Post, July 22, 1948, at 10 (looking back on the 100-year anniversary of the Seneca Falls Conference, describing the Democratic Party in 1948 as having “taken its stand for the new civil rights movement”); Urges Ballot Use in Dixie, Chi. Defender, Feb. 28, 1948, at 5 (referring to opposition to Truman’s program as “[l]eaders in the anti-civil rights movement”). A search of Proquest Historical Newspapers database produced only two uses of the phrase “civil rights movement” prior to 1948, both coming from 1884 stories based on the same telegraph dispatch out of Cleveland, Ohio. Colored Leagues in Ohio, Sun, Feb. 27, 1884, at 1 (“[A] gigantic civil rights movement has been started among the colored people in Ohio, and already over 200 ‘equal rights leagues’ have been organized.”); Colored Leagues Forming in Ohio, N.Y. Herald Trib., Feb. 26, 1884, at 1 (“A gigantic Civil Rights movement has been started in Ohio.”).

[105].Supra Part II.D.

[106].See, e.g., Susan D. Carle, Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (2013); Mack, supra note 24.

[107].Goluboff, supra note 22, at 256.

[108].Sophia Z. Lee, Hotspots in a Cold War: The NAACP’s Postwar Workplace Constitutionalism, 1948-1964, 26 L. & Hist. Rev. 327, 331 (2008) (“Brown did not mark a critical break with the diverse, working-class-focused civil rights lawyering that preceded it.”).

[109].Goluboff, supra note 22, at 238-70.

[110].See, e.g., Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (1944).

[111].See Rodgers, supra note 9, at 4 (“[I]t is largely through a string of words . . . that individuals separated from normal sight of each other are shaken into consciousness that their grievances, ambitions, angers, and desires are not peculiarly theirs but, at some slightly altered level of generalization, the material of politics. Abstract, generalizing talk makes private matters public. The bigger, the more sonorous the words, the more private desires they can bind together, the more new desires they can create.”).

[112].The increasing use of “civil rights” as a general referent for race-based reform was one component of the legalization of the race question. Prior to the 1940s, advocates of legal challenges to the race problem had to confront a considerable ideological obstacle in the laissez-faire attitude toward race relations that dominated the Jim Crow era. One of the central contributions of racial justice advocates of the 1940s was to challenge the assumption that racial prejudice could not be uprooted by law. See Schmidt, supra note 77.

[113].A recent generation of historians has called for increased attention to civil rights activity in the 1930s and 1940s. They have argued for reframing our understanding of the civil rights movement to encompass what has been termed the “long civil rights movement,” which began in the 1930s and continued through the 1970s. See e.g., Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement 7-9 (2011); Jacquelyn Dowd Hall, The Long Civil Rights Movement and the Political Uses of the Past, 91 J. Am. Hist. 1233, 1235 (2005). They have also argued for increased attention to what Risa Goluboff has described as the “lost promise of civil rights,” i.e., a broader conception of civil rights, which included a focus on economic inequality as well as racial discrimination, that existed in the 1930s and 1940s but was, to some extent, “lost” in the early 1950s, replaced by a “liberal legalist” approach that centered on Fourteenth Amendment litigation. Goluboff, supra note 22; Mack, supra note 24; see also Glenda Gilmore, Defying Dixie: The Radical Roots of Civil Rights, 1919-1950 (2008).

My examination of the origins of the civil rights-civil liberties divide does not question the essential contribution of this scholarship, which is to show that racial justice advocates in the 1930s and 1940s embraced a notably broad conception of racial reform, particularly when contrasted to the anti-discrimination approach that was the primary focus of most of the legal reform of the 1950s and 1960s. But it is important to note the historical anachronism of applying the “civil rights” label to racial justice activism prior to the late 1940s. The excavation of a “lost” vision of “civil rights” in the 1930s and 1940s requires the application of a term—and, by extension, a conceptually singular category of activity—in a way that would be unfamiliar to the historical actors being described. Those engaged in racial justice activism in the 1930s and early 1940s did not understand themselves to be participating in a “civil rights” movement. Lawyers who used the courts to attack racial inequality did not identify themselves as engaging in a distinctive practice of “civil rights” lawyering. Cf. Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (2012) (emphasizing the ways in which black lawyers in the first half of the twentieth century challenged Jim Crow in ways other than litigating what we now consider to be “civil rights” cases). And the 1940s did not see the displacement of one conception of “civil rights” with another. It is more accurate to say that it was not until the late 1940s that “civil rights” emerged as a distinctive category related to addressing racial injustice. “Civil rights” was not transformed or diluted in the 1940s and 1950s, as these accounts would have it. Goluboff, supra note 22, ch. 9 (titled “Brown and the Remaking of Civil Rights”). Rather, this period should be understood as the birth moment of the idea of “civil rights” as a distinctive area of race-related legal activism. I examine these issue at more length in Christopher W. Schmidt, Legal History and the Problem of the Long Civil Rights Movement, Law & Soc. Inquiry (forthcoming).

[114].The Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634.

[115].Id., Part I, §104(1)-(2).

[116].Id. In a pamphlet the Commission issued, it further explained its mission “to study the application of the Fourteenth Amendment” in order to “pave[] the way for future laws and governmental action in the broad field of civil rights.” Pamphlet, The Commission on Civil Rights (1958) (E. Frederic Morrow Records, Box 9, Civil Rights Bill),

[117].See, e.g., Keith M. Finley, Delaying the Dream: Southern Senators and the Fight Against Civil Rights, 1938-1965, 232 (2008) (quoting Richard Russell in 1960 lamenting “the grievous wrongs being wrought in the name of ‘Civil Rights’”); Joseph R. L. Sterne, Parts of Rights Law Assailed by Senator, Balt. Sun, Nov 1, 1964, at 1, 6 (quoting Goldwater saying: “We only cloud the issue by labeling the real problem before us one of ‘civil rights’—a man’s civil rights are those had in relation to his government, not in relation to his fellow man”); CBS Reports: Filibuster—The Birth Struggle of a Law, transcript of May 18, 1964, broadcast, available at Minnesota Historical Society, Hubert H. Humphrey Papers,, at 28 (Senator Strom Thurmond denouncing the Civil Right Act of 1964 because “[n]o bill is a civil rights bill if it takes away basic liberties and constitutional rights and guarantees, and replaces them with arbitrary government powers” and attacking the “so-called civil rights movement in America” for demanding a “fundamental change” in the American constitutional system).

[118].Transcript: Meeting of the PCCR, Charles H. Houston testifying (May 15, 1947) (White House File, Truman Library, Box 201).


[120].Thomas H. Eliot, Book Reviews, 61 Harv. L. Rev. 899, 899 (1948) (reviewing To Secure These Rights, supra note 49 and Carr, supra note 28).

[121].Id. See also Robert H. Jackson, Messages on the Launching of the “Bill of Rights Review”, 1 Bill Rts. Rev. 34, 35 (1940) (illustrating the U.S. Attorney General and future Supreme Court Justice expressing concern “that the Department of Justice by misuse of power will invade civil rights,” because of the “ever present danger of overstepping in investigations, of publicity tending to prejudge the accused, of wandering beyond the realm of criminal acts into that of unpopular opinion, of exceeding the proper bounds of Federal power”).

[122].Rights and Liberties, Nation, July 22, 1950, at 71.

[123].Id. at 71-72.

[124].Carey McWilliams, Witch Hunt: The Revival of Heresy (1950).

[125].Carey McWilliams, The Witch Hunt and Civil Rights, Nation, June 28, 1952, at 651.

[126].The Supreme Court reflected and contributed to the improved position of civil liberties claims in the wake of McCarthyism. In the early 1950s the Court upheld the constitutionality of anticommunist measures. See, e.g., Dennis v. United States, 341 U.S. 494, 514-17 (1951); Am. Commc’n Ass’n v. Douds, 339 U.S. 382, 390-91 (1950). By the late 1950s, however, the Court was more willing to protect the civil liberties claims of dissidents. See, e.g., Yates v. United States, 354 U.S. 298, 334 (1957); Watkins v. United States, 354 U.S. 178, 215-16 (1957).

[127].See, e.g., Cooper v. Aaron, 358 U.S. 1, 17 (1958); Watson v. City of Memphis, 373 U.S. 526, 529-30 (1963).

[128].I explore this issue in more depth in Christopher W. Schmidt, New York Times v. Sullivan and the Legal Attack on the Civil Rights Movement, 66 Ala. L. Rev. 293 (2014) [hereinafter Schmidt, Legal Attack].

[129].See Schmidt, Legal Attack, supra note 128, at 321-24.

[130].See id. at 299-300.

[131].357 U.S. 449 (1958).

[132].Id. at 460-63.

[133].Id. at 463-66; see also Gibson v. Florida Legislative Investigating Comm., 372 U.S. 539, 557-58 (1963) (holding that Florida could not compel disclosure of NAACP membership lists under pretense of a legislative investigation into suspected subversive activities); Shelton v. Tucker, 364 U.S. 479, 488, 490 (1960) (voiding Arkansas requirement that all teachers submit an annual list of all organizations to which the teacher belonged or contributed); Bates v. Little Rock, 361 U.S. 516, 517, 527 (1960) (holding that Little Rock could not require the local NAACP branch secretary to turn over the branch’s membership list).

[134].NAACP v. Button, 371 U.S. 415, 423-26 (1963).


[136].Id. at 429-30.

[137].Id. at 430.

[138].Id. at 435.

[139].376 U.S. 254 (1964).

[140].See Kermit L. Hall & Melvin I. Urofsky, New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press 28-33 (2011).

[141].Schmidt, Legal Attack, supra note 128, at 302-03.

[142].See Hall & Urofsky, supra note 140, at 15-22.

[143].New York Times Co. v. Sullivan, 144 So. 2d 25, 39, 51-52 (1962).

[144].Sullivan, 376 U.S. at 270-72.

[145].Id. at 279-80.

[146].Harry Kalven, Jr., The New York Times Case: A Note on “The Central Meaning of the First Amendment, 1964 Sup. Ct. Rev. 191, 191-93 (1964).

[147].372 U.S. 229 (1963).

[148].Id. at 235.

[149].379 U.S. 536 (1965).

[150].Id. at 545-47.

[151].383 U.S. 131 (1966).

[152].Id. at 139-43; see also Garner v. Louisiana, 368 U.S. 157, 196-204 (1961) (Harlan, J., concurring) (suggesting that the breach-of-peace prosecutions of lunch counter sit-in protesters might raise a viable First Amendment claim).

[153].Robert Carter, Association—Civil Liberties and the Civil-Rights Movement, in Legal Aspects of the Civil Rights Movement 193 (Donald B. King & Charles W. Quick eds., 1965). The sense among civil rights activists at the height of the civil rights movement that robust protections for free expression served to advance their cause indicates the transformation in the politics of the black freedom struggle that had taken place. A generation earlier racial justice activists tended to see limitation on expression as an essential weapon in their battle, see supra Part II.E. By the mid-1960s, backed by a powerful protest movement and increasingly supportive public opinion, civil rights leaders, like labor leaders of the 1930s, saw protections for free expression as essential to their cause.

[154].The lectures were published the following year. Kalven, supra note 97.

[155].Id. at 4.

[156].Id. at viii.


[158].Id. at 10-11; see also Clive Webb, Rabble Rousers: The American Far Right in the Civil Rights Era 186 (2010) (“At the height of the black freedom struggle, civil rights organizations had for ideological and strategic reasons refrained from legally campaigning for restrictions on hate speech.”).

[159].Kalven, supra note 97, at 6; see also Kalven, supra note 146, at 192-93.

[160].Preface, 1 Harv. C.R.-C.L. L. Rev. iii (1966).

[161].See Civil Liberties Researchers Organize, Harv. L. Rec., Oct. 13, 1960, at 5.

[162].See id.



[165].Donald W. Kramer, Rights Groups Form, Harv. L. Rec., Oct. 17, 1963, at 1, 9.

[166].See Michael Hampden, Student Groups Work for Rights, Liberties, Harv. L. Rec., Nov. 12, 1964, at 1, 8-10.

[167].Preface, supra note 160.


[169].Mark DeWolfe Howe, Foreword, 1 Harv. C.R.-C.L. L. Rev. 1 (1966).

[170].See Goluboff, supra note 22, at 4-6, 10, 12.

[171].Bayard Rustin, From Protest to Politics: The Future of the Civil Rights Movement, Commentary (Feb. 1, 1965), 25-31.

[172].Id. at 26.

[173].Id. at 29.

[174].Id. at 26.

[175].See generally, Lynn Hunt, Inventing Human Rights: A History (2007).

[176].Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen 165 (3d ed. 2013).

[177].Francesca Polletta, The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961-1966, 34 L. & Soc’y Rev. 367, 400 (2000).

[178].Malcolm X, “The Ballot or the Bullet,” in Malcolm X Speaks: Selected Speeches and Statements 34 (George Breitman ed. 1990); see also id. at 35 (“Civil rights means you’re asking Uncle Sam to treat you right. Human rights are something you were born with. Human rights are your God-given rights. Human rights are the rights that are recognized by all nations of this earth. And any time any one violates your human rights, you can take them to the world court.”).

[179].Polletta, supra note 177, at 399.

[180].Id. at 400 n.60.

[181].Thomas F. Jackson, From Civil Rights to Human Rights: Martin Luther King, Jr., and the Struggle for Economic Justice 5 (2007).

[182].Archibald Cox, The Supreme Court—1965 Term: Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv. L. Rev. 91, 91 (1966).

[183].See id. at 91-93.

[184].Id. at 93.


[186].See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (rejecting poverty as the basis for a “suspect classification” under the Equal Protection Clause); id. at 37 (rejecting education as a “fundamental right” under the Due Process Clause); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (“We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill.”); Dandridge v. Williams, 397 U.S. 471, 487 (1970) (“[T]he intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court . . . . [T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.”).

[187].See Samuel Moyn, The Last Utopia: Human Rights in History 1-4 (2010); Kenneth Cmiel, The Emergence of Human Rights Politics in the United States, 86 J. Am. Hist. 1231, 1233 (1999).

[188].Moyn, supra note 187 at 121 (“[H]uman rights allowed diverse actors to make common cause as other alternatives were seen as unviable . . . .”).

[189].Thomas Grey provides a useful description of what he terms “the two main structural features of the clash between the civil-liberties and civil-rights perspectives.” Grey, supra note 8, at 486. He continues:

. . . [(1)] The civil-liberties mentality . . . tends to limit the kinds of harms that can justify abridgment of that freedom to traditionally recognized infringements of tangible interests in property and bodily security. . . . By contrast, the civil-rights approach, with its roots in anti-discrimination law and social policy, is centrally concerned with injuries of stigma and humiliation to those who are the victims of discrimination. . . . . [(2)] The active state is traditionally conceived as the sole or dominant threat to civil liberties. . . . [But] [u]nder the civil-rights perspective, defense of basic human rights is by no means simply a matter of limiting state power. Government may deny equal protection by omission as well as by action . . . .

Id. at 486-87. Cf. Richard B. Wilson, The Merging Concepts of Liberty and Equality, 12 Wash. & Lee L. Rev. 182, 182 (1955) (“Liberty and equality have frequently been considered antithetic. Liberty has been viewed as protecting the unfettered expression of individuality in all its forms, equality as a set of limitations on human action.”).

[190].Case Comment, Private Attorneys-General: Group Action in the Fight for Civil Liberties, 58 Yale L.J. 574, 579 (1949) (noting that the ACLU’s role as defender of “oppressed groups” has diminished in recent years because these groups “have learned that that can most effectively pursue their interests through organizations of their own”).

[191].See Weinrib, supra note 25.

[192].Walker, supra note 26, at 240.

[193].Sam Ervin, Preserving the Constitution: The Autobiography of Senator Sam J. Ervin, Jr. 163 (1984).

[194].Id. at 163-64.

[195].See, e.g., R. Carter Pittman, The “Blessings of Liberty” vs. the “Blight of Equality”, 42 N.C. L. Rev. 86, 87-89 (1963); R. Carter Pittman, Equality Versus Liberty: The Eternal Conflict, 46 A.B.A. J. 873, 873-75 (1960).

[196].See, e.g., Alfred Avins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 Cornell L. Q. 228, 230, 246-47 (1964); Robert Bork, Civil Rights—A Challenge, New Republic, Aug. 31, 1963, at 21-22; see generally Christopher W. Schmidt, Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement, in Signposts: New Directions in Southern Legal History 417-46 (Sally E. Hadden & Patricia Hagler Minter eds., 2013).

[197].Grey, supra note 8, at 485.


[199].Richard Delgado, About Your Masthead: A Preliminary Inquiry into the Compatibility of Civil Rights and Civil Liberties, 39 Harv. C.R.-C.L. L. Rev. 1, 2 (2004). Delgado writes that “efforts at reconciliation [between civil rights and civil liberties] are unsuccessful because they dodge hard cases, minimize conflicts that are real, or define the area of disagreement in a manner that allows only one answer.” Id. at 4.

[200].An alternative approach to defending the constitutionality of speech codes is to downplay the supposed tension between civil rights and civil liberties. See Charles R. Calleros, Reconciliation of Civil Rights and Civil Liberties After R.A.V. v. City of St. Paul: Free Speech, Antiharassment Policies, Multicultural Education, and Political Correctness at Arizona State University, 1992 Utah L. Rev. 1205, 1205-06.

[201].See, e.g., David E. Bernstein, You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws 4 (2003) (describing the expansion of antidiscrimination laws as having “grave consequences for civil liberties”); David E. Bernstein, Antidiscrimination Laws and the First Amendment, 66 Mo. L. Rev. 83, 89 (2001) (critiquing doctrine that “privilege[s] antidiscrimination laws over civil liberties”).

[202].See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (striking down cross-burning statute); Am. Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 325 (7th Cir. 1985) (finding a pornography ordinance to unconstitutionally “discriminate[] on the ground of the content of speech); but see Virginia v. Black, 538 U.S. 343, 347-48 (2003) (Finding a provision of a Virginia cross burning statute is not protected by the First Amendment because although a ban of “cross burning with intent to intimidate” is “consistent with the First Amendment,” cross burning is not “prima facie evidence of intent to intimidate”).

[203].David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform 78-86 (2011) (arguing that Lochner-style substantive due process claims provided a powerful weapon against Jim Crow); David E. Bernstein, Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective, 51 Vand. L. Rev. 797 (1998).

[204].Lochner v. New York, 198 U.S. 45 (1905).

[205].Bernstein, supra note 203, at 873.


[207].David E. Bernstein, Roots of the ‘Underclass’: The Decline of Laissez-Faire Jurisprudence and the Rise of Racist Labor Legislation, 43 Am. U. L. Rev. 85, 135 (1993).


[209].For a critique of this claim, see Brent M. Rubin, Buchanan v. Warley and the Limits of Substantive Due Process as Antidiscrimination Law, 92 Tex. L. Rev. 477, 478 (2013).

[210].530 U.S. 640 (2000). Another case in which the Court upheld a civil liberties claim against an application of antidiscrimination law in a gay rights context was Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 559 (1995).

[211].Boy Scouts, 530 U.S. at 643; see, e.g., Andrew Koppelman with Tobias Barrington Wolff, A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association xi (2009); Dale Carpenter, Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach, 85 Minn. L. Rev. 1515, 1516-17 (2001).

[212].See, e.g., Elane Photography, LLC. v. Willock, 309 P.3d 53, 63-76 (N.M. 2013) (denying Plaintiff’s claim that a requirement to not discriminate against clients would infringe upon their First Amendment rights), cert. denied, 134 S. Ct. 1787 (2014); see generally Same Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson eds., 2008); Paul Horwitz, The Hobby Lobby Moment, 128 Harv. L. Rev. 154 (2014).

[213].539 U.S. 558, 578 (2003).

[214].Log Cabin Republicans v. United States, 716 F. Supp. 2d 884, 927-29 (C.D. Cal. 2010).

[215].About Us: Mission Statement, Log Cabin Republicans, (last visited Jan. 3, 2016). As a resolution summarizing the group’s mission explains: “The core of the political philosophy known as conservatism is unbounded faith in liberty. This is driven by two beliefs: the power of the individual to self-direct his/her life and the proper role of government to protect and expand liberty, not to limit it. These dual beliefs validate LGBT equality as sound conservative politics.” Sill Resolution, Log Cabin Republicans,

[216].See supra notes 1-5 and accompanying text.

[217].Eric Posner, Eric Holder’s Legacy, Slate, Sept. 25, 2014,




[221].Page, supra note 5.

[222].Kenneth Cmiel, The Recent History of Human Rights, 109 Am. Hist. Rev. 117, 122 (2004).

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