The modern American civil liberties movement famously began with the United States's intervention in World War I. Yet these beginnings have long raised a conundrum for civil liberties historians. Why did the American civil liberties movement arise precisely when so many sophisticated legal and political thinkers began to call into question the truth value of abstract rights claims? The puzzling rise of civil liberties in an age of pragmatic skepticism is all the more startling given that early leaders of the civil liberties movement were themselves leading rights skeptics. This Article offers a new interpretation of the rise of the modern American civil liberties movement. Our ostensibly domestic civil liberties movement--and indeed, the phrase "civil liberties" itself--has its roots in a pre-World War I international law cosmopolitanism. In particular, the social movement that coalesced around the phrase civil liberties developed as a group of self-consciously internationalist organizations. Led by people such as Crystal Eastman, a little-remembered, charismatic, progressive-era reformer and radical, these organizations had begun to question not just the abstract metaphysical truth of rights claims but also the usefulness of that other great abstraction of nineteenth-century law: sovereignty. The civil liberties movement in American law thus did indeed emerge out of a pragmatist critique of abstract legal fictions. The relevant abstraction, however, was not so much the formal concept of rights as the formal concept of nation-state sovereignty. With American intervention in World War I, obligations of loyalty to the nation-state compelled American internationalists such as Eastman, her colleague Roger Baldwin, and the fledgling American Civil Liberties Union to reframe their critique of sovereignty in terms made available by the constituent documents of American nationalism.
John Fabian Witt,
Crystal Eastman and the Internationalist Beginnings of American Civil Liberties,
54 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol54/iss3/2