The First Amendment and World War II Tony A. Freyer A time of origination is inevitably a time of choice. In American constitutional discourse the framing of the Bill of Rights and the Fourteenth Amendment were periods ofchoice during which the Supreme Court limited rather than enlarged rights claims. The era of the Second World War, by contrast, witnessed a new beginning for First Amendment guarantees built upon the jurispru dential foundation established in Palko v. Con necticut (1937) and footnote four ofthe Carolene Products decision of 1938.2 The change repre sented the ascendancy of a counter-majoritarian theory established during the 1930s.3 After the war began, cases involving labor groups and Jehovah’s Witnesses tested the limits of this theory; but ultimately change occurred within the boundaries of continuity, conditioned by a nonpartisan rights discourse of Democratic and Republican party presidential candidates, and a professional legal discourse that drew principally upon cases decided during the 1930s.4 I A year before Pearl Harbor, Franklin D. Roosevelt stated succinctly the values for which Americans were prepared to fight.5 The “Four Freedoms” formulated in the President’s annual message to Congress on January 6, 1941, linked the economic and social security of individuals and groups to preserving the “foundations of a healthy and strong democracy.”6 Along with freedom from want and fear, the “essential hu man freedoms” upon which the security of Americans and the world’s peoples depended were first, the “freedom of speech and expres sion—everywhere in the world,” and second, the “freedom of every person to worship God in his own way—everywhere in the world.” Foreign dictators across the seas challenged these demo cratic freedoms on such a scale that the time was “unique in our history.” Accordingly, nothing less than the “full cooperation from all groups” was necessary to preserve the nation. Even so, nations “do not fight by armaments alone,” Roosevelt said; they “must have the stamina and courage which come from an unshakable belief in the manner of life which they are defending.” The “few slackers or troublemakers in our midst” who threatened group cooperation would be “shame[d] by patriotic example.” If that failed, they would be subjected to the “sovereignty of the government.” Roosevelt’s speech reflected a popular atti tude towards rights in wartime that was unique in American history. During the War of Inde pendence and its aftermath in the struggle be tween Federalists and Jeffersonian Republicans, 84 FIRST AMENDMENT state and national officials lauded freedoms of speech, press, and religion in the abstract even as they limited those rights in practice. Simi larly, Abraham Lincoln’s reorientation of war time purpose from saving the Union to a cru sade against slavery, like Woodrow Wilson’s support for national ethnic self-determination in the Fourteen Points, linked the defense of de mocracy to a recognition of human rights. Yet both leaders mobilized national morale by pros ecuting those who disagreed with these and other wartime goals.7 Roosevelt affirmed, however, that the freedoms ofexpression and religion were sources of patriotic feeling basic to any true democracy.8 This new rights consciousness stimulated new issues involving rights claims. From Inde pendence to the 1920s, assertions of civil liber ties were claims against individuals, groups, and community authority. However, as totalitarian regimes espoused creeds of racial and cultural supremacy and threatened democratic institu tions on a world-wide scale during the 1930s and 1940s, popular demand grew for government intervention to defend individual and group free dom on the basis of rights. As a result, radical and moderate labor organizations, minority re ligious and racial groups, and libertarian advo cates such as the American Civil Liberties Union acquired increased constitutional legitimacy. More than ever before it was apparent that civil liberties claims existed not only against persons and governments but also within the community. Thus the community’s power to curb and destroy rights coexisted with its authority to sanction and expand rights. Indeed, James Madison had changed from opposing to supporting a bill of rights in part because he said it would establish a basis for appealing to the “sense of the com munity.”9 Prior...