Against Intolerance: The Red Scare Roots of Legal Liberalism

Abstract

This article argues that important antecedents of post-New Deal American liberalism emerged in response to the first Red Scare. As war hysteria gave way to patent anti-radicalism, the pervasiveness of peacetime state-sponsored repression undermined progressive confidence in administrative governance and generated support for so-called personal rights. At the same time, the suppression of meaningful labor activity during the early 1920s buttressed conservative confidence in the judiciary and liberated lawyers and business advocates to oppose state policing of putatively private beliefs. The result was increasing convergence around a new liberalism, defined against “intolerance,” which laid the groundwork for judicial enforcement of free speech and minority rights.