The History of Civil Liberties in the United States

Kersch's book provide the reader with a rich background information as to how the Constitution of the United States has been interpreted since its inception. In other words, Kersch analyzes the relationship between 'development processes' and 'constitutional interpretation' in an effort to depict how the way people perceive (and apply) the concept of civil rights and liberties has changed throughout the years. This change, Kersch argues, is what made the modern (or post-New Deal) Supreme Court possible. He specifically focuses on the late 19th and early 20th centuries, which include the Civil War, abolishment of slavery, segregation, The Great Depression, and finally, the New Deal era (1933-1937) under President Franklin D. Roosevelt.

In the first section, Kersch demonstrates how the idea of increased state power 'narrowed' privacy and criminal process rights. He mentions the term 'publicity' as pointed out by Justice Brandeis, who claimed that shedding broad light upon the actions of men would purify them as the sun disinfects. He further reasoned that electric light was the most efficient policeman.

In an effort to realize this idea of publicity, 'Federal Trade Commission' was created in 1914 with a broad range of powers over businesses – such as "expos[ing] to outsiders a company's private business methods, trade secrets, and intimate correspondence" – which violate the 'unreasonable searches and seizures' clause of the Fourth Amendment (p.60). At this point, Kersch mentions two cases, Boyd v. United States (1886) and Weeks v. United States (1914), as examples from the 'Old' Court protecting the right to privacy against the see-it-all state.

In Boyd v. United States (1886), Boyd, a business owner, was asked by the U.S. government to produce and supply the invoices of a certain trade deal. He refused to supply the documents, and claimed that compulsory production of his records violated his rights under the Fourth Amendment, which forbids a person being forced to incriminate himself. Despite the prevalent views of the times which imagined economic actors as criminals, the Court upheld the Fourth Amendment rights of Boyd.

In Weeks v. United States (1914), a police officer did not hesitate to use a key he found to the defendant's home although he did not have a warrant. While the defendant was at work, he searched his house, and found what he was looking for in a drawer. The Court, however, refused the evidence since it was obtained in an illegal search.

As for criminal process rights, Kersch reports Chief Justice Warren to have drawn attention to "a series of cases decided by [the Supreme] Court [since the 1930s, in which] the police resorted to physical brutality – beating, hanging, whipping – and to sustained and protracted questioning incommunicado in order to extort confessions" (p.124).

Kersch mentions a few cases about police brutality – most of them involving Southern lawmen. One of them is Screws v. United States (1945), in which a county sheriff, who had problems with a thirty year old black man named Hall, a deputy and a policeman gathered in a local bar, 'had their fill', headed to Hall's home, and arrested him with an alleged crime of stealing a tire. Taking him to the police headquarters, they began beating him "with a two-pound, eight-inch-long blackjack and with their fists" for almost half an hour until he passed out. Hall died shortly after the beating. The Supreme Court held that the policemen in question could be prosecuted for acting 'under color of state law' enacted during the Re-construction era, despite the fact that their actions were already illegal under the Georgia state law.

In Sweeney v. Woodhall (1952), a black man doing time in an Alabama prison was repeatedly beaten to unconsciousness, "scarred by lashes from a nine-pound strap studded with sharp metal prongs," forced to sexual slavery, forced to work under the sun all day long without rest, finally escaped, and fled to Ohio. The Court ruled for his extradition to Alabama on the grounds that he did not vindicate his claims in Alabama courts.

As for how the Court applied criminal process rights, Kersch states that it first tried to expand the rights defined at the Fourth and Fifth Amendments while the centralized, powerful New American State was being created. However, the Court began 'negotiating away' these rights, Kersch argues, after the reformist state-building effort became 'all but inevitable'.

Labor rights, on the other hand, raise the issue of individualism vs. collectivism in the sense that the freedoms are perceived not on an individual but on a class basis. In order to give the reader an idea of Frankfurter's collectivism, Kersch, in the second section of the book, quotes the words he said in 1920: "The era of romantic individualism is no more."

Kersch also mentions the political philosopher John Dewey's Marxist contribution to the modern American constitutional ideology. Dewey's thinking involved class exploitation, and Darwinian 'fight for labor power'. He coined the term 'industrial democracy', which he believed was necessary for a truly democratic society.

Senn v. Tile Union (1937) is a good example of what kind of an environment of labor rights culture the United States had during the New Deal era. Paul Senn owned a small Milwaukee tile-laying sole proprietor company, working on his own, laying tiles with his own hands. However, he occasionally hired two to four people to help him. He had a wife and four children, and the money he made was insufficient for him to support his family. He was sympathetic to the union, and therefore, when local tile layer's union, in Milwaukee approached him about converting his company into a union shop, he did not reject the idea. When the discussion began, however, problems occurred - due to the union rule that required those who engage in Senn's type of work to have three years of apprenticeship, which he lacked. One other problem was that the union required a sharp distinction between the labor and management in a business – which meant that Senn would no longer be able to work in his small business if he joined the union. Senn, still being willing to join though, stated that he would be happy to hire only union employees, and follow the union's wage rules, and even accepted not to work in his own business at times when he had sufficient work to get by, but he could not stop working right now, because if he did, he would go bankrupt. He said that he needed exemption from this particular rule, however, Tile Layers Protective Union did not consider its rules negotiable, and started a campaign in order to destroy Senn's business. Members of the union "followed Senn from home to work, and picketed his jobs." Seeking a way to save himself from harassment and resume his usual work, Senn took the issue to the court, however, Wisconsin was "a pioneer of the new constitutional order concerning labor," which took away the state courts' power over picketing – after the Norris-LaGuardia Act. The case went all the way up to the Supreme Court, and Senn and his lawyer argued that the due process and Equal Protection Clauses of the Fourth Amendment protected "the right to work and earn a living." The Court, however, rejected this argument in an opinion written by Justice Brandeis.

Kersch argues that Senn should be protected under the traditional right of an individual to work. However, it was an era of not individualism but collectivism, therefore, an individual's right to work did not really matter when compared to collective right to work – as defined by the unions.

The way unions defined labor power prior to the mid-60s also meant black exclusion. White workers resented black competition for their jobs from black workers to such an extent that many black workers started to sympathize with capitalism – due to the fact that it was color-blind (p.189). One other consequence of black exclusion from unions was picketing cases and campaigns of 'Do Not Shop Where You Can't Work' (p.211). In that sense, it is possible to say that labor rights, as the Unions perceived it, were being expanded at the expense of black civil rights. Kersch argues that the Supreme Court, during this period, was driven neither by partisan politics nor legal doctrine, but rather by a 'highly ideological process' taking place both within and outside the Court (p.233).

In the third and final section of the book, Kersch focuses on education rights, which involve more nation- and less state-building – due to the issues of 'who' will be educated, and 'how.'

When the federal government intended in 1866 to fund the education of the now-free blacks, it faced intense opposition from the South. In the 20th century, however, whether the black population should be educated was out of question, and the education issue was debated more on nationalist and collectivist grounds.

In 1920, the Army's Charles Holley argued that more federal money should be spent on education in order to "prevent the propagation of foreign culture at the expense of American ideals." An advocate of a federal education department was reported to have said that the presence of an electorate speaking a foreign tongue only and more or less ignorant of American institutions was a menace to all.² The educational concerns centered around not only language but also indoctrination. This is probably the part which the black people of the United States of the time must have found interesting the most. Because, actors in the nation-building process set forth the concern of 'an appreciation of an 'American' understanding of liberty.' Charles Holles is again quoted: "[C]entrally subsidized system of schools would be ever ready to meet the emergency by spreading desirable national propaganda. … The central national authority could convert the teachers, and the teachers would then reach the people."³ Interestingly enough, statist progressives, nativist anti-Catholics, and Ku Klux Klan became political allies in that matter. Such a policy of education which involves indoctrination – in terms teaching children not how to think but what to think - in order to 'produce' national beings also brought the question of whether the child belonged to the parents or to the society.

Concluding the book, Kersch tries to find a solution to the problems with 'The New American State,' and sort of goes out of his way to hypothesize a 'world constitution,' which would bind the U.S. Constitution, in a way pretty much similar to what Justice Ginsburg offered in a speech she gave the other week in South Africa. Kersch questions how a world constitution looks like, and gives examples of other nations who gave up their own rights and privileges for the sake of common good – as in Kyoto Protocol and International Crime Court. Referring to the book One World by the philosopher Peter Singer, he further questions the possibility of the creation of a world government and a world ethical system, which would not slip into tyranny, and argues that the answer possibly lies with the Europeans – since they have pioneered the principle of 'subsidiary' (p.345).

The controversial solutions Kersch offers, in fact, belong to a different issue, and thus constitute a topic for a different book, but his overall depiction of the nation- and state-building processes in the 19th and 20th century American constitutional development in three highly interrelated sections is very successful indeed.



¹ Cambridge University Press, 2004. ISBN: 0521811783

² A.J. McKelway, National Child Labor Committee, 'The Next Federal Campaign', Child Labor Bulletin 6, p.214 (Fall 1918)

³ Charles Holley, National System, p.320