Liberty Defined - Part 1

“Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” – Patrick Henry, 1775

Give me liberty or give me death. In this one quote the idea of liberty, even the ideal of liberty was branded into the American psyche. Liberty peppered arguments on both sides of the American Civil War – liberty for the enslaved and liberty from an oppressive federal government for state powers. We think we know what it means and that it has always meant the same thing. But we would be wrong.

Herein lies the theme for this entire year of The Charge. The hope is to post monthly about a different case that changed our understanding of liberty.

In 1925, the Supreme Court of the United States decided Gitlow v. New York, 268 U.S. 652 (1925). On one level, it was not that exciting - the Court upheld a criminal conviction. But, one line in that case initiated a very intriguing law review article that prompted this idea to examine liberty and the incorporation doctrine and our changing understanding of liberty since the founding.

In this year, where we are celebrating the 250^th anniversary of the Declaration of Independence and the birth of our nation (and coincidentally the emergence of sovereign states rather than colonies of the crown), it seems fitting to begin this examination. And so, with thanks to Charles Warren, born just as the Fourteenth Amendment was ratified and now almost lost to history, a Boston-born lawyer, scholar, educator, and government official, and for our purposes, the author of The New “Liberty” Under the Fourteenth Amendment, 39 Harv.L.Rev. 431 (February, 1926), we, too shall begin with Gitlow v. New York.

As it turns out, liberty is a moving target. Indeed, one hundred years ago, the Court took up the mantle of change. Indeed, Gitlow itself is a landmark case. Briefly, in modern parlance, it incorporated the First Amendment freedom of the press and freedom of speech to the states through the Fourteenth Amendment. It did so in one passing sentence despite ruling against Mr. Gitlow. That sentence? “For present purposes, we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Gitlow v. New York, 268 U.S. at 666.

The facts of the case may resonate even today: a socialist elected official wrote what was termed a “Left Wing Manifesto" and was arrested, tried, and convicted for violating a New York State law prohibiting anarchy. He was defended at trial by none other than Clarence Darrow and on appeal by ACLU lawyers, Walter Pollak and Walter Nelles. They argued that the New York criminal statute violated the Fourteenth Amendment.  More precisely, among the privileges and immunities the Fourteenth Amendment protects are the freedom of speech and the press. This was essentially a case where the defendant argued that even if criminalizing “anarchy” was a valid exercise of police powers, it was  - again in modern parlance – unconstitutional as applied. That is, the statute criminalized incendiary language advocating the overthrow of the government – there was a question as to whether the writing – reproduced in the footnotes of the opinion – was such a screed. And even if it was, since it did not lead to any attempt to overthrow any government, how did it qualify as a crime when really it was just protected speech?

The Court determined that the sole question it needed to answer was “whether the statute, as construed and applied in this case, by the State courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment.” It ruled that because the Manifesto was a call to action (even if none was taken), the statute was valid as was its interpretation by the state. The Court upheld the conviction.

Unspoken – save for that one sentence where the Court assumes that the Fourteenth Amendment incorporates the liberties of the First Amendment – was that for the decades since the ratification of the Fourteenth Amendment, the Court repeatedly denied that it incorporated the Bill of Rights to state governments. So, without officially overruling any prior decision, the Court radically changed how it would interpret the Fourteenth Amendment. And just like that, even though the Court upheld Mr. Gitlow's conviction, this became a watershed moment.

Two justices – Oliver Wendell Holmes, Jr. and Louis Brandeis - believed the conviction should be overturned. In the dissent, Justice Holmes explained that the indictment really did not allege any criminal act, but instead only sought to punish the words and that the words were protected speech. Both of these Justices agreed that the First Amendment was incorporated to the states via the Fourteenth Amendment.

And this is significant as to our term “liberty” – which Mr. Henry declared more precious than life itself. What it meant, what it grew to mean, how we understand it, what makes us concerned about losing it, and how we protect it going forward. Within that 1926 law review article, Mr. Warren explained that James Madison wanted to constrain not just the federal government, but also all state governments from infringing on freedom of speech, of the press, rights of conscience, and trials by jury in criminal cases. While the House passed something similar, the Senate (then elected by state legislatures, not by the public) nixed it. Of course - why would state governments or their agents in the federal government seek to restrict their own powers?

In any event, liberty, individual liberties, civil liberties have been brought before the Court many times since the founding – with very different assessments as to what they are and how much the government can infringe upon them. That is what we will be exploring in The Charge this year.

As to our friend, Mr. Gitlow. He had been released during his appeal. When he lost in the high court, he surrendered to finish his prison sentence. Just then, New York Governor Al Smith granted him a pardon. Gitlow, finally liberated, stayed true to socialist and even communist ideas for years. Perhaps it was Stalin’s brutality that turned him, but for whatever his reasons, he ended up as a virulent anti-Communist which he remained until his death in 1965.