American Experiment (240 page)

It was clear to the Democratic party leaders—including young Franklin Roosevelt, now slowly regaining some mobility after a crippling polio attack—that the Democracy must move more firmly to the still-burgeoning urban and immigrant masses and toward industrial labor. Their candidate for 1928 was at hand. Al Smith had emerged from the sidewalks of New York, educated at no college other than the Fulton Fish Market, politically savvy, able above all to learn from experience. Elected to the state legislature, he gained a seat on the Banking Committee after having entered a bank only once—to serve a jury notice—and on the Forest Committee, though he had never been in a forest. He learned much from Tammany and from rebelling against Tammany; he learned from the Triangle fire that women were cheap, property sacred. Democratic hopes for Al Smith and his party soared when Silent Cal, vacationing in the Black Hills in August 1927, summoned the press and handed each reporter a little slip: “I do not choose to run for President in 1928.”

Most Americans knew little about Al Smith except for one big fact: he was a Catholic. Survivors of the McAdoo-Smith convention duel of 1924 knew that a Smith nomination in 1928 would set off a religious war. Could a rational debate on the issue forestall irrational confrontation? In April 1927, the
Atlantic Monthly
published an “open letter” from Charles C. Marshall to Smith questioning whether a Catholic’s dual allegiance to his Church and Constitution should bar him from the presidency.
The Atlantic
printed Smith’s reply in the next issue:

“Taking your letter as a whole and reducing it to commonplace English, you imply that there is a conflict between religious loyalty to the Catholic faith and patriotic loyalty to the United States.” No such thing could be true. “I have taken an oath of office in this State nineteen times. Each time I swore to defend and maintain the Constitution of the United States.” He had never known any conflict between his official duties and his religious belief. And, rebutting Marshall, Smith contended that no such conflict could exist in education, religious tolerance, appointments, foreign policy.

“I summarize my creed as an American Catholic. I believe in the worship of God according to the faith and practice of the Roman Catholic Pope and I recognize no power in the institutions of my Church to interfere with the operations of the Constitution of the United States or the enforcement of the law of the land. I believe in absolute freedom of conscience for all men and in equality of all churches, all sects, and all beliefs before the law as a matter of right and not as a matter of favor. I believe in the absolute separation of Church and State….”

In vain. Americans were not yet ready for a rational debate over church and state. As the Democratic nominee, Smith ran into a hurricane of religious bigotry, misunderstanding, sectional chauvinism. It was a religious war and much more—a culmination of the cultural war between big city and small town, immigrants and nativists, wets and drys, North and South, East and West, Irish and English, on a battlefield of ignorance and intolerance. Smith, moreover, refused to pretend that he was not what he was, in Oscar Handlin’s words— “a Catholic, a grandson of Irish immigrants, a poor boy off the sidewalks of New York.” Against the advice of the media experts of the day he went right on wearing his brown derby and big cigar, saying “horspital” over the “raddio,” attacking Prohibition, refusing to restrict immigration: “I have lived among these people all my life” and “I can’t shut the door in their faces.”

Al Smith received the news of his defeat sitting in the Seventy-first Regimental Armory, an unlighted cigar clamped in his teeth. He had won 87 electoral votes against Hoover’s 444, 15 million popular votes against Hoover’s 21.4 million. “Well,” he later said, “I guess the time has not yet come when a man can say his beads in the White House.”

Once again the Democrats had failed to build an electoral coalition that could even come close to beating the GOP. Once again the loyal opposition had failed to come up with a credible alternative. Excuses there were aplenty, but perhaps even the Democrats did not comprehend the full power of the Republicans’ “compact majority.” Corporate business had more than an efficient party working for it; it had an ideology rooted in the modern American experience, grounded in fundamental American beliefs and attitudes, fortified by “scientific ideas” such as Social Darwinism, operationalized through an experienced political leadership, and above all expressive of the nation’s industrial and financial power. The only strategy for a party and electoral opposition was to shape an ideology, a party, and a leadership so sharply different from the “ins” as to pose a constant challenge and thereby offer some hope of winning in the future. The Democrats failed to do this; even Smith, with his ties to big business and his innate social conservatism, offered no clear-cut alternative. Election studies later revealed that the 1928 presidential contest was far more a reflection of the politics of the 1920s than a forerunner of the political alignments to come.

If Democrats, progressives, liberals, laborites, and their allies could not overcome the “compact majority” of corporate and Republican power and leadership, at least the minority had the right to exist, speak
up, challenge the ins, and seek to oust them at the polls. What about opposition from more radical elements? The Founding Fathers had sought to protect the rights of small minorities as well as large, of tiny sects, rebellious movements, individual dissenters. They had bequeathed this protection in the checks and balances and in the Bill of Rights, and they and their successors had institutionalized that protection by allowing dissenters recourse to the judges, who were expected to be aloof, protected by lifetime tenure from the gusts of intolerance and passion that swept the populace.

Toward “seditionists,” draft obstructionists, and the like, a conservative Supreme Court took a hard line during wartime. In the
Schenck
case Oliver Wendell Holmes spoke for the entire Court in upholding Charles T. Schenck’s conviction for mailing impassioned anti-draft letters to draftees. “The most stringent protection of free speech,” Holmes wrote, “would not protect a man in falsely shouting fire in a theatre and causing a panic.” But Holmes set a stern test for future restrictions on First Amendment liberties. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight....”

Eugene Debs fared no better than Schenck, however, under this wartime test. Holmes spoke for the Court in sustaining Debs’s conviction for obstructing the recruiting service in the socialist leader’s now famous Canton speech. Privately Holmes seemed defensive about his position. Referring to a “lot of jaw about free speech,” he wrote his friend Sir Frederick Pollock about “people who pitched into the Court for sending Debs to prison.” He hoped that Wilson would pardon him “and some other poor devils with whom I have more sympathy.” He went on: “The greatest bores in the world are the come-outers who are cocksure of a dozen nostrums. The dogmatism of a little education is hopeless.”

Jacob Abrams, a Russian emigrant, was sentenced under the Espionage Act to twenty years’ imprisonment for throwing down from a loft in the garment district some leaflets urging workers to produce no arms for American intervention in Russia at a time when Americans were not at war with Russians. The Court held that the necessary result of this incitement was to hamper the war with Germany. Holmes and Brandeis dissented. Abrams’s action was only indirect, Holmes argued; there was no clear and present danger in the publication of such a “silly leaflet.” Holmes
concluded with words that would become etched in American constitutional history:

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.... That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment….” What about free speech when the.nation was
not
at war? The “red scare” of 1919, coming on the heels of the Bolshevik Revolution in Russia and a rash of communist uprisings elsewhere in Europe, left a scar on the popular mind that lasted well into the twenties and later. Extremism had fed on extremism; alarming labor actions like the Boston police strike, the furious factional quarrels among communists and between communists and socialists, and the bombings, had been matched by the reckless arrests and imprisonments, mass deportations, and demands by such as Billy Sunday that “wild-eyed Socialists and I.W.W.’s” be stood up before firing squads.

Amid the whipped-up fear and hysteria, each side stereotyped the other and lost any capacity to discriminate. Fanatics placed or mailed bombs that mainly hurt the poor and vulnerable—one mail bomb blew off the hands of a Southern senator’s maid—while missing their targets; Tennessee’s Senator Kenneth McKellar wanted to send American radicals to penal colonies in the middle of the Pacific, and South Carolina’s James F. Byrnes asked federal help to thwart an alleged plot of communists to foment a black uprising in the South. The New York State Assembly denied their seats to five socialists who obviously had chosen the democratic electoral process over “red rebellion.”

In the postwar hysteria Benjamin Gitlow, a left-wing socialist, had been arrested and convicted under New York’s Criminal Anarchy Act of 1902 for writing pamphlets that urged proletarian “struggle.” The Court upheld his conviction, Holmes and Brandeis dissenting. Holmes and Brandeis agreed with the majority on one crucial point—that the freedom of speech guaranteed by the First Amendment was part of the “liberty” of the Fourteenth Amendment and thus guaranteed against state infringement. The dissenters, moreover, saw no clear and present danger in Gitlow’s pamphlet. Incitement? Holmes asked in response to the Court’s depiction of the pamphlet. “Every idea is an incitement.” He added: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces in the community, the only meaning of free speech is that they should be given their chance and have their way.”
And in the
Schwimmer
case, upholding the right of a pacifist to become naturalized as a United States citizen, he reminded the Court that the most vital principle of the Constitution was that of free thought, including freedom for the thought “we hate.”

Still, this was only the loyal opposition speaking. The compact majority on the Court, under Taft’s unifying leadership, turned out decision after decision against dissent—or at least against dissenters. To some it seemed odd that a Court so clearly representing conservative thought in the country, so clearly committed to laissez-faire and against governmental regulation, should crumble so easily when government attacked individual liberty to dissent. The High Bench seemed far more devoted to property rights than to civil liberties. This view was bottomed on a major and very articular premise—that in America’s hierarchy of liberties, economic liberty stood at the top. Faith in Algerism was still running strong in the 1920s.

However thwarted by their minority status, the dissenters found other ways to influence political opinion and action. Holmes and Brandeis and their numerous political friends such as the La Follettes, former law clerks, intellectual correspondents, and faithful acolytes constituted a powerhouse of ideas, criticisms, ruminations, explorations, and proposals. Brandeis and Holmes struck sparks off each other; Brandeis wrote Felix Frankfurter of Harvard Law School almost every day, passing on political and judicial gossip, asking for legal and other information, and often suggesting ideas, proposals, and comments for Frankfurter in turn to pass on to the
New Republic
or—later—the New York
World.
Through Frankfurter also, Brandeis made his private political views known to a wider circle. The justice paid his young associate several thousand dollars a year to help him work for causes they both favored.

Holmes and Brandeis were tourist attractions on the High Court, in the little Capitol room in which the Court still met—the former with his swath of white hair, mustachios, and imperial presence; the latter with his “piercing blue eyes,” abundant gray hair, and creased cheeks, looking, according to one of his clerks, “like a combination of Hebrew prophet and Abraham Lincoln.” But even between the two of them there was a division in the intellectual powerhouse. Holmes did not share Brandeis’s almost undiscriminating opposition to “bigness.” Holmes’s approach to free speech was based on claims of utility rather than of morality, in Philippa Strum’s words, while “Brandeis saw free speech as an end as well as a means,” and believed in it as an absolute truth, along with his insistence upon experimentation. Agreed in practice on most legal questions, the two men differed on key issues of principle and philosophy.

Nor did left-liberal thinkers outside the Court achieve much intellectual
unity. Philosophers, historians, and economists seemed more interested in perfecting their crafts than in trying to match the brilliant innovations of the progressive era or, in the European fashion, to frame comprehensive doctrines that could undergird political programs. Vernon Parrington worked on the third volume of his architectonic
Main Currents in American Thought,
which he would never complete. Thorstein Veblen, a founding member of the New School for Social Research in New York, had fled from the “higher learning in America” that he had derided in 1918 only to see some of his work popularized and cheapened. Neither man would outlive the decade. Charles and Mary Beard published a best-selling history of the United States. Walter Lippmann, writing first for the
New Republic
and then for the New York
World,
had moved by the late 1920s so far toward the lively political center that after the
World
was sold off to Scripps-Howard, he was offered jobs by William Randolph Hearst, Roy Howard, the
New York Times,
and the Republican New York
Herald-Tribune;
Lippmann chose the
Trib.