Description
The modern jurisprudence of civil liberties and civil rights is best understood, not as the application of principles to facts, but as a product of currents of progressive reformist political thought. This book demonstrates that rights of individuals in the criminal justice system, workplace, and school now identified with the essence of civil rights and liberties, were the end point of a layered succession of progressive-spirited ideological and political campaigns of statebuilding and reform. In questioning this vision of constitutional development, this book integrates the developmental paths of civil liberties law into an account of the rise of the modern state and the reformist political and intellectual movements that shaped and sustained it. In doing so, Constructing Civil Liberties provides a vivid, multi-layered, revisionist account of the genealogy of contemporary constitutional law and morals.
Chapter
Prologue: Fourth and Fifth Amendment Rights before the Statebuilding Era
Stirrings of Change from the Center
The Project of Legibility: Preliminary Statebuilding Initiatives – and Constitutional Resistance
The Social Construction of the “Criminaloid”
Privacy and the Constitutional Resistance to the Progressive Imperative: The Initial Decisions of the 1880s
The Launching of a Permanent Investigatory State – and Civil Libertarian Resistance
The Campaign for Legibility and Publicity
Negotiating a Sustainable Legal Order for the New American State
Federal “Street Crime” Criminal Process Rights and the Reintegration of the Southern Periphery into the National Core
The Next Reformist Campaign: Prohibition
The New Court Initiative on Street Crime: Protecting Privacy in the Face of the Antialcohol Crusade
Incorporation and the Black-Frankfurter Debate
From Prohibition to Race: The Nationalization and Standardization of Police Procedures
The Ascendancy of an Antiracist Reform Imperative
Race, the Police, and Constitutional Criminal Procedure
The Criminal Procedure Reform Imperative and the Problem of Democracy
Alternative Paths: International Human Rights Standards or the Constitution?
The Waning of Fourth and Fifth Amendment Rights in Service of the New Administrative State
The Institutionalization of the Fourth and Fifth Amendment Retreat: The Federal Rules of Civil Procedure
Race and the Warren-Era Criminal Process Revolution: The March of Domestic Atrocities
Race, Privacy, and the New Court-Led Regulation of Search and Seizure in Street Crime Cases
3 Reconstituting Individual Rights
Labor Individualism and Liberty: The Traditional Ideological Benchmark
From Calling to Class: The Ideological Construction of the Union Worker
Progressive Legalism: The Deconstructive and Reconstructive Project
Parallel Developments: Aggregations, the Law of Antitrust, and the New Judicial Power
Constructing the New Imperative of Labor Power: Labor Power as Industrial Democracy
The Clayton Act Comes to the Court: Toward a Class-Based Constitutionalism of Collectivities
Lean Years for the Reconstructive Project
Crisis and the Revival of the Reconstructive Imperative
Putting the Constitutional Imprimatur on the New Group-Oriented Order
The Institutionalization of the New Order Concerning Labor
Civil Rights and Labor Rights: Constitutional Progress Creates a New Barrier
The Black Appropriation of the Class Approach: From the “Old Crowd” to the “New Negro”
The Constitutional Politics of the New Negroes
Labor and the Construction of Blacks as a Class: The Picketing Cases
Reconstituting and Institutionalizing Contemporary “Civil Rights and Civil Liberties”
Introduction: The Absence of Education from Narratives of American Statebuilding
Education and the American State before the Statebuilding Era
The Common Law Order, Child Labor, and Compulsory School Attendance: Early Stirrings of State Construction
Education in the Statebuilding Era: The Social Construction of Autonomous Intellectual Inquiry and the American State
War, the Educational Imperative, and the State
The Child as Creature of the State
Reviving the Progressive Vision after the Lean Years: The Opportunities of the Crash
Court and Classroom in the Mid-Twentieth Century: The New State and the New Pluralism
The Promise of Speech and the Menace of Religion: Academic Freedom and Strict Separation
Fears: The ColdWar and the Social Construction of aWaxing Roman Catholic Menace
Hopes: Catholics and the Imagined Trajectory of Social and Political Progress
Fears and Hopes and the Battle for the Future: Separationism and the Schools
The Constructions of a State of Courts Concerning Education: Nationbuilding in the Supreme Court’s Religion Cases
Science, Civil Rights, and theWaning of Anti-Catholicism: The Ecumenical Turn
The Limits of Peace: Progress Through Contention
The Rise of Global or World Constitutionalism
Integrating the United States into the Global Constitution: How Lawyers and Judges Can Help
Conclusion: Constructing Civil Liberties in the New Constitutional Nation
Constructing Civil Liberties
：Discontinuities in the Development of American Constitutional Law
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