Posted April 15, 2004
McCarthy Era Offers Cautionary Tale
for Post-9/11 America, Stone Says
Conservatives’ recent revisionist take on Joseph McCarthy as
a patriotic hero glosses over the past and fails to take into account
the widespread damage his witch hunt for communists inflicted upon
Americans, in what was an “inappropriate response” well
beyond the scope of the threat, said Geoffrey Stone at the Brennan
Center Thomas M. Jorde Symposium April 8 at the Law School. This year
marks the 50th anniversary of the congressional condemnation of McCarthy,
and Stone offered his "cautionary tale" in light of the Bush
Administration’s move to broaden executive powers during the
war on terrorism.
“The age of McCarthy bears some relationship to the present,” he
said. “Think of this as a bedtime story, but one with goblins.”
As World War II ended in 1945, rights advocates like the ACLU were
optimistic about the future. "It was a time for Americans to enjoy
the hard-won fruits of sacrifice,” Stone said.
But economic instability in 1946, coupled with labor strikes and Truman's
verbal assault against the Soviet Union, which came not long after
President Franklin Delano Roosevelt praised the Soviets as a strong
potential ally, signaled unrest. Two spy scares also transfixed the
country: secret government documents about China were leaked to a leftist
journal and Canada charged that 22 people had conspired to steal information
about the atom bomb for the Soviet Union. In July a House subcommittee
recommended a new federal loyalty program to protect the United States
from potential spies for foreign governments. As the election neared,
Truman was increasingly under attack from a coalition of anti-New Deal
Republicans and southern Democrats who incited fears of communist subversion.
As a result, in the 1946 elections Republicans won 54 seats in the
House and 11 in the Senate, taking control of both.
"Fear has proved a potent political weapon," Stone said.
Leaders in the Republican Party increasingly identified Democrats with
communists, and Democrats scrambled to respond. Truman's labor secretary
demanded that the Communist Party be outlawed, while the House Un-American
Activities Committee prepared a program to expose communists and sympathizers. "The
President [was] caught in a vise of conflicting pressures," he
Truman unveiled a two-pronged program to quiet opponents: the Truman
Doctrine held that the United States would contain and confront the
Soviets and communism wherever they encroached, and secondly proposed
a loyalty program for all present and prospective federal employees
that held them subject to a loyalty investigation, which specifically
looked at membership or affiliation with, or sympathy for, designated
communist or subversive organizations.
"It's at this moment the eve of McCarthyism begins to unfold," Stone
Americans had worked themselves into a frenzy, when the threat was
much smaller than perceived, Stone said. Founded in 1919, the Communist
Party of the United States (CPUSA) at its peak in 1949 barely numbered
100,000 registered members. No one was ever elected to Congress under
the Communist Party, and the CPUSA drew most of its membership from
the fallout of the 1930s Depression, which had triggered a severe loss
of American confidence. "Americans increasingly questioned the
cruel consequences of capitalism," he said. The CPUSA and the
hundreds of organizations that sprung up during the era to fight for
economic, social, and racial justice had an overlap of members, and
both kinds of organizations were prosecuted. Americans originally joined
such groups "not because they wanted to overthrow the government,
but because they wanted to help good causes as a civic duty," Stone
explained. The most infamous question, "Are you now or have you
ever been…" encompassed the past. The attorney general's
original list of 78 suspect organizations swelled to more than 250
as investigations continued, and included such groups as the International
Workers Order, a fraternal benefits society that specialized in low-cost
insurance. As World War II ended, most Americans attached to communist
organizations severed their connection, and membership dwindled.
Under the shadow of loyalty programs, "individuals had to be
wary about joining any organization. The safe course was to join nothing." If
a loyalty program review revealed any such connection, a full-field
investigation was launched that included interviewing all friends,
relatives, and neighbors, as well as looking at what books you read.
Forty thousand people in the McCarthy era were subject to full-field
investigations. Suspects had no right to confront witnesses at hearings
or even know their identities. "These hearings took on the character
of a medieval inquisition," Stone said. "The charges were
often vague, and almost impossible to rebut...the impact of this program
With the fall of China to communism in 1948 and one month later the
detonation of the first Soviet atomic bomb, American hysteria increased.
Newspaper editorials advocated a preemptive war and questioned the
loss of China. "Only perfidy, they argued, could have caused such
a disaster," Stone said. Soon after, Klaus Fuchs, a British physicist,
confessed to passing secrets to the Soviets, and his confession led
to the Julius and Ethel Rosenberg trial.
McCarthy exploded onto the scene in 1950, previously an unknown first-term
senator. He asserted in a speech that he was privy to inside information,
a list of 205 names of spies working in the State Department. There
was only one problem for McCarthy: "This was a complete fabrication." He
bluffed his way through the aftermath, at one point telling a reporter
he left the list in his other suit, after promising to tell all. Truman
said McCarthy was lying, and Senate democrats demanded that McCarthy
prove his allegations. Challenged to produce proof, McCarthy lashed
out at "egg-sucking liberals whose pitiful squealing would hold
sacrosanct those Communists and queers who sold China into atheistic
In 1950 the Tydings Committee issued a report that McCarthy’s
findings were indeed false, but McCarthy shot back that the report
showed there were traitors in government who need not fear the current
administration. "Americans were swept away by his certitudes and
patriotism," Stone said. In June 1950, North Korea opened fire
on South Korea, and Truman authorized General Arthur McDouglas to invade—with
U.N. approval, Stone emphasized.
"The Korean War unleashed a frenzy of anti-Red hysteria," Stone
said. Soon state governments started loyalty programs as well. Thousands
of books deemed "communistic" were removed from public libraries.
The McCarran Internal Security Act, passed in 1950, required disclosing
CPUSA member names; Truman vetoed the Act, but his credibility was
already damaged by his own anti-communism actions. His veto was overridden.
In the meantime McCarthy appeared on the covers of Time and Newsweek and
campaigned in support of Republican candidates and against Tydings,
going so far as to fabricate a photo purporting to show Tydings huddled
with communist leaders. "The Democrats attempted desperately to
fend off these assaults," Stone explained, and Truman responded
that those claiming the domestic United States was in peril had lost
all sense of restraint and decency.
The 1952 Republican platform charging that Democrats were shielding
traitors helped the GOP sweep the election and win the White House.
McCarthy "was now seen as invincible and as the most feared man
in America,” Stone said. “Democrats were thoroughly intimidated.”
At one point McCarthy proffered hundreds of documents supporting communist
infiltration on the Senate floor, and challenged Senators to inspect
them. According to accounts, when Sen. Herbert Liebman held out his
hand for the documents, other senators lowered their eyes while McCarthy
snarled, "go back to your seat old man."
McCarthy announced his intentions to investigate the federal government,
colleges, and universities, and in 1953 began an investigation of Voice
of America, a World War II agency that promoted a positive view of
the United States abroad. Although VOA personnel were badgered and
some resigned in protest (one of even committed suicide), the hearings
uncovered no evidence of unlawful conduct.
In 1953 Time and Newsweek said it was apparent McCarthy
was aiming for the White House in 1956, and Truman responded with a
national televised speech accusing “certain Republicans” of
shameful demagoguery, and defining McCarthyism as a harmful cancer.
Despite Republicans’ increased nervousness, the House Un-American
Activities Committee also took aim at Hollywood, resulting in the blacklisting
of several movie producers, directors, actors and authors such as Dorothy
Parker, Arthur Miller, and James Thurber.
Those who were blacklisted became a menace to friends, who feared
consequences for their own lives, and outcasts to society, Stone alleged;
11,000 employees from federal, state, local and private employers were
fired as a result of the anti-communist hysteria.
“Fear of ideological contamination swept the nation” and
led to a stifling conformity that marked that early 1950s, Stone said.
McCarthy’s fall began when he chose to target the army, angering
President Dwight Eisenhower, a former war hero. Two of McCarthy’s
lieutenants were also key figures in his demise. Congressional staff
member David Shine was drafted into the Army, and colleague Roy Cohn
ordered Shine’s commander to grant him privileged treatment.
The uproar that followed led to hearings addressing whether Cohn attempted
to intimidate the commander, but no one doubted the real issue was
whether McCarthy would be brought down, Stone said.
Sensing an opportunity, Senate minority leader Lyndon B. Johnson arranged
for the hearings to be televised, and McCarthy followed through. “McCarthy
made a spectacle of himself,” Stone said. He “was the perfect
stock villain.” When McCarthy attacked the Army’s chief
attorney, Joseph Welch, for having a National Lawyers Guild member
on his staff, Welch famously replied, "Have you no sense of decency,
sir, at long last? Have you no sense of decency?" He left the
room, which burst into applause.
In the end, McCarthy’s crusade resulted in no convictions for
espionage, and no communists were uncovered in positions that handled
classified information, Stone said. Moves to censure McCarthy climaxed
when in 1954 a six-member congressional committee recommended that
McCarthy be condemned “for reprehensible and contemptuous conduct.” The
measure was adopted, 67-22, with Republicans split on the vote. Six
weeks later, Democrats regained control of both houses of Congress
and two years later McCarthy, an alcoholic, died of cirrohsis at age
Stone acknowledged that some spies sought to harm the United States,
perhaps numbering 200-400 at the height of the Cold War. “But
the danger these individuals presented was not subversion of the American
people. It was the danger of espionage and sabotage,” he said.
Instead of fostering a climate of oppression, the United States should
have punished law breakers, and used appropriate law enforcement tools. “This
is the essential distinction between a free state and a police state,” he
The public hysteria of the late 1940s and early 1950s foddered a “breeding
ground for opportunistic politicians,” Stone said. “Fanned
by politicians, this fear of an insidious enemy led Americans to fear
Americans, to confuse panic with patriotism, and to blindly oppress
others in a frantic bid to ensure our own safety.”
Revisionists concede that McCarthy lied, Stone alleged, but claim
he was pursuing a profoundly important inquiry. “Even if he was
wrong on the details, the argument goes, he was right on the big things,” Stone
said. “This is wrong and dangerously so.”
The goal of preserving security is legitimate, Stone explained, “but
a democracy is about means as well as ends,” and McCarthy’s
means violated the norms and values of the Constitution.
Stone said his topic was well suited to a symposium honoring former
Supreme Court Justice William Brennan, whom he once clerked for. Brennan
loved to boast that McCarthy was the only senator to vote against his
confirmation, Stone said. In confirmation hearings, McCarthy asked
Brennan whether he would know the difference between Americanism and
communism. Once confirmed, Brennan “was a central figure shaping
the First Amendment priveledge that reversed the course of constitutional
Stone compared McCarthyism to the post-September 11 atmosphere, as
the United States has secretly arrested and detained more than 1,000
non-citizens and deported hundreds of non-citizens in secret proceedings.
The Patriot Act has expanded the power of federal officials to surveill
religions groups as well as email and information about what you check
out at the library, although the latter reportedly has not been used.
"Just as hard cases make bad law, hard times make bad judgments," Stone
said. "It's our responsibility as lawyers to resist those bad
Virginia law professor Vincent
Blasi responded to Stone’s comments, focusing on the lackluster
judicial response to the McCarthy era. The First Amendment tradition
up to that point was “unprepared” for the challenges
of the era, Blasi said. By the late 1940s and early 1950s, the Supreme
Court had developed a libertarian understanding of the First Amendment,
but not in ways that generated doctrines that spoke to the McCarthy
era. There was no doctrine for guilt by association or for the notion
of protecting political
privacy—that you should have immunity from testifying about
your political beliefs and associations. Up to that point, First Amdnement
doctrine revolved around whether the speech in question would cause
harm; any possible connection to harm would justfy regulating speech.
Instead, Blasi suggested, “we should only be worried about material
harms.” Fears of communist espionage can’t be dismissed
as groundless, he said, but “what’s on the other side of
the equation is really important.”
“A lot of the way people think about these issues really does
turn on how you deal with fear,” he said. Every time Americans
have a major moment of regulated speech we later regret, Americans
argue that “never before” had those circumstances come
to bear. For example, to justify the crackdown of free speech and labor
strikes during World War I, Americans said “never before” had
fighting a war depended so much on domestic production, and never before
were there so many immigrants that would purportedly invoke unrest. “When
we had our ‘never before’ moment in the McCarthy era, it
was very much a pattern and in that sense we had heard it before,” Blasi
Looking to the past for answers to today’s security and free
speech issues is a “complicated endeavor,” said responder
Sam Issacharoff, Harold R. Medina Professor in Procedural Jurisprudence
at Columbia Law School. Academics in hindsight may overlook risks that
were really there, but also, Americans experience “pride of learning” from
the past; for example, those in the McCarthy era may have taken pride
that it wasn’t a true witch hunt in the sense that they didn’t
burn people at the stake.
Still, Issacharoff said he could not bring himself to defend McCarthy.
He instead focused on the fear that has pressed upon the country since
September 11. He recalled the day after the attacks when in his New
York neighborhood the prevailing winds shifted and filled the air with
the acrid smell of incineration, military aircraft hovered in the sky,
and Wall Street was shut down. “I did not know what would come,” he
said, noting that he had children at home. “It was genuine fear.”
Since then, the United States has fought two wars, detained over 1,000
people, and restructured domestic security services. “Most critical
there has been no second attack on the United States,” he added.
Issacharoff said Stone avoided the issue by twice using the concept
of “inappropriate response” to describe the present situation.
“How do we know? How do we know what’s appropriate?” Issacharoff
He said one way to judge whether the American response is appropriate
might be to draw comparisons to other democracies, such as those in
Europe. In contrast with the United States, Spain’s police practices
were not altered by the September 11 attacks. There are indications
that three masterminds involved in the March 11 Spain bombings were
on police watch lists and being trailed by security officials, but
they had insufficient jurisdictional authority to act when the terrorists
started moving key personnel across national borders. He called the
situation “oddly parallel” to what happened in American
prior to September 11 when terrorists routed Internet communications
through American-based service providers, because they knew strong
jurisdictional boundaries would keep the CIA and NSA from following
The end result in Spain is that over 200 are dead, and now Spain has “had
a coordinated response with other police services,” instituting
broader jurisdictional lines and broader powers, and arresting suspects
Some parts of the Patriot Act seem sensible, others ominous, Issacharoff
said, but it may have had the surprising effect of enhancing Internet
privacy, as some have argued. Others have claimed the main effect of
the Act has been to overcome bureaucratic stagnation and problems with
• Reported by M. Wood