Civil Liberties Outside the Courts

60 Pages Posted: 9 Oct 2014 Last revised: 27 Jan 2015

See all articles by Laura Weinrib

Laura Weinrib

Harvard University - Harvard Law School

Date Written: January 26, 2015


This article recovers the institutional alternatives to judicial enforcement of civil liberties during the New Deal. Based on archival research, it demonstrates that the court-based strategy was deeply contested and remained controversial well after the foundational First Amendment victories. Today, theories of civil liberties are premised on state neutrality in the domain of public debate; in the 1930s, the most prominent accounts demanded affirmative government intervention to correct distortions in the marketplace of ideas or to advance substantive rights. In examining these forgotten traditions, the article highlights the close and unexplored connection between civil liberties and organized labor during the New Deal. Surprisingly, early proponents of civil liberties understood the term to encompass, above all, the rights to organize, picket, and strike. Reconstructing the competing visions of civil liberties and their optimal enforcement before and after the ‚ÄúConstitutional Revolution‚ÄĚ reveals the anticipated trade-offs of the judicial strategy, with important implications for theoretical accounts of constitutional change.

Suggested Citation

Weinrib, Laura, Civil Liberties Outside the Courts (January 26, 2015). Supreme Court Review, Forthcoming, U of Chicago, Public Law Working Paper No. 492, Available at SSRN: or

Laura Weinrib (Contact Author)

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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