375

Fearing Fear ItselfThe Encounter of A. Mitchell Palmer with Louis F. Post

Paul D. Carrington

here is good reason to fear fear itself.As implied in Franklin Roosevelt’s cau-tion, it is an infectious emotion. And it

has corrosive eÖect on the moral judgment ofthose it aÒicts. Hugh Henry Brackenridgewrote of “moral inÔuenza” that spreads amonga community or nation.1 Popular fear is themost common form of moral inÔuenza. It caninspire irrational loathing of those associatedwith the feared threat. It has often causeddemocracies to fail. The events of September11 gave us a good if not yet acute case of popu-lar fear. This might therefore be an occasion torecall a time past when America previouslytook a path looking rather like the one we areon.

A. Mitchell Palmer, the Attorney Generalin 1919, was in 1916 a defeated candidate forthe United States Senate for whom the Pres-ident of the United States needed to Õnd anhonorable place.2 Palmer was a Quaker and a

Swarthmore graduate who celebrated, even ifhe did not always practice, tolerance, andwho professed paciÕsm. His signature bowlerhat was not Quaker, but the strength of hisopinions might be said to be so.

Palmer started his professional career as alawyer in Stroudsburg, Pennsylvania, readinglaw with a mentor in that town. Soonmanifesting intense ambition for higher oÓceby speaking publicly at every opportunity, heworked his way up the political ladder toCongress, but failed of election to the Senate.The President appointed him Alien PropertyCustodian to manage German property in theUnited States. Although his performance inthat role was subject to criticism, he waselevated to Attorney General in February 1919.

The infection of fear for which Palmerbears some responsibility was contracted bythe American people in 1917. Their wartimehostility to Germany caused many Americans

1 Modern Chivalry 642 (Claude M. Newlin ed., New York 1937).2 His biography is Stanley Coben, A. Mitchell Palmer, Politician (New York 1963). Much of this

account is drawn from Robert K. Murray, Red Scare: A Study of National Hysteria 69-77(Minneapolis 1955).

Paul Carrington is the Chadwick Professor of Law at Duke University. Copyright 2002 by the author.

T

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to fear and loath their German-Americanneighbors. Popular pressure was felt by theDepartment of Justice to punish such personsfor any available reason. This pressure was forthe most part successfully resisted by theDepartment led through the war by ThomasGregory. However, the Espionage Act of 19173

made sedition a federal crime for the Õrst timein 120 years. In 1918, the Act was expanded topunish severely persons engaged in a variety ofallegedly treasonous conduct such as obstruct-ing the sale of government bonds or urgingworkers to curtail production of military hard-ware.4 An extraordinary eÖort was made to

expel Wisconsin’s Robert La Follette from theUnited States Senate because it was errone-ously reported that he told an audience thatAmerica had no grievance against Germany.5

An extravagant utterance of the fear andloathing came from United States DistrictJudge Kenesaw Mountain Landis (later theCommissioner of Baseball). He was disqual-iÕed from sitting on a case tried under theEspionage Act for saying prior to the trial:

If anybody has said anything worse about theGermans than I have I would like to know so Ican use it. … One must have a very judicialmind, indeed, not to be prejudiced against theGerman-Americans in this country. Theirhearts are reeking with disloyalty.6

In Nebraska, a state settled by thousands ofGerman immigrants, a legislature in the sameframe of mind prohibited the teaching of theGerman language to children.7

It was true, of course, that many Americansof German ancestry had hoped that theUnited States would not enter the war againstGermany. Those hopes were not expressed inconduct obstructing the war eÖort. There wasduring the war one detonation of military sup-plies in New Jersey that may have been an actof sabotage,8 but there was no other instanceof eÖective espionage or sabotage detectedduring or after the war to justify mistrust ofGerman-Americans.9

Lacking real spies and saboteurs to punish,those enforcing the law punished the advocacyof paciÕsm. Eugene Debs, the labor leader and

3 Act of June 15, 1917, P.L. 24, 40 Stat. 217.4 Act of May 16, 1918, P.L. 150, 40 Stat. 553.5 Nancy C. Unger, Fighting Bob La Follette: The Righteous Reformer 254-256 (Chapel Hill

2000).6 Berger v. United States, 255 U.S. 22, 28 (1921).7 Meyer v. Nebraska, 262 U.S. 390 (1923).8 Henry Landau, The Enemy Within: The Inside Story of German Sabotage in America 280

(New York 1937).9 Frederick C. Luebke, The Bonds of Loyalty: German Americans � World War I (DeKalb

1974).

A. Mitchell Palmer in 1919 (Library of Congress)

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socialist candidate for President in 1912, wasconvicted of that oÖense and served threeyears in prison.10

Among Attorney General Palmer’s Õrsttasks was a review of cases under the wartimeEspionage Act. At his direction, many caseswere dropped. Also, clemency was granted tomany of those who had previously been con-victed. And the 10,000 German and Austrianaliens who had been arrested and held duringthe war were released. These deeds were pop-ular because patriots no longer feared theirneighbors of German ancestry.

However, no sooner was the armisticesigned in November 1918 than the popular fearand loathing was redirected against aliens andnaturalized citizens from Eastern Europe whomight be suspected of Bolshevik sympathies.There was, of course, no war declared againstthe Bolsheviks. However, in response to therevolution of October 1917 that took Russiaout of the war against Germany, PresidentWilson had been induced by his British andFrench allies to send a military detachment toRussia. The stated purpose of this venture wasto maintain an eastern front against Germany,but at least in some minds the real aim was tosuppress the Bolsheviki.11

The mission was certainly ill advised.Newton Baker, the Secretary of War, protestedat the time that the intervention was a violationof international law. At least one member of thePresident’s personal staÖ at Versailles resignedto protest its continuation after the Armistice.This was young Adolph Berle, who foretoldthat nothing positive would be accomplishedwhile it would earn the enduring hatred of theUnited States by those trying to organize theSoviet Union. Senator La Follette spoke outagainst this adventure, as did NebraskaSenator George Norris.

The protests did not avail because themission was not unpopular with the people. Itwas a modest military adventure compared tothe war just ending, and many Americans wereeven more horriÕed and frightened by RussianBolsheviks than they had been by the GermanKaiser and his presumed underlings living intheir neighborhoods and supposed to beplotting against them.

A reason this was so is that everyoneremembered that the President of the UnitedStates had been murdered in 1901 by ananarchist whose name was Leon Czolgosz.12

Although widely presumed to be an EasternEuropean, Czolgosz was in fact a native ofDetroit. Belying his gentle countenance, heaÓrmed that killing the President was his ownidea, and that he had done it “to help the goodpeople, the working men of all countries.” Thelatter words were enough to suggest aconnection of Czolgosz to an internationalconspiracy.

And one of the very few who defended hiscrime was the ominous Emma Goldman, anative of Lithuania and editor of Mother Earth,

10 Debs v. United States, 249 U.S. 211 (1919).11 See generally Peter Filene, Americans � the Soviet Experiment 1917-1933 (Cambridge 1967).12 A recent account is Jack C. Fisher, Stolen Glory: The McKinley Assassination (La Jolla 2001).

Leon Czolgosz(www.spartacus.schoolnet.co.uk/USA/czolgosz.htm)

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an anarchist publication.13 Few Americansknew the diÖerence between anarchism andcommunism, and Bolsheviks were identiÕed inthe popular mind with Czolgosz andGoldman.

American radicals were enraged by theintervention in Russia and protested. InAbrams v. United States,14 the Department ofJustice prosecuted Õve persons for circulatingtwo papers urging opposition. All the defen-dants were natives of Russia and none was acitizen. None was shown to be a member ofany larger group. They wrote and printed thecirculars on a printing press one of thembought for the purpose.

Circulation occurred on August 18, 1918; itwas accomplished partly by throwing the circu-lars out the window of an oÓce building whereone of the group worked and partly by privatedistribution to their friends. One of the circu-lars charged the Allies and President Wilsonwith hypocrisy; it called for the workers of theworld to rise and put down their enemy,capitalism. The second circular was written inYiddish. It protested that the money loaned tothe government by people buying victorybonds and the weapons being made byAmerican workers were being used not to ÕghtGermans but to kill Russian workers. Therewas no evidence that these circulars had anyeÖect. Yet the defendants were convicted by ajury of violating the 1918 Act. While sentencingthe defendants to twenty years in prison for cir-culating the oÖending papers, the federal judgegave the brutal fate of the Czar’s daughtersmurdered at Ekaterinberg as a reason for theirharsh sentences.

The judge and jury in Abrams reÔected risingpopular fear of Reds. In February 1919, aHammond, Indiana jury acquitted the assassin

of an alien who had been heard to say, “To hellwith the United States.”15

Attorney General Gregory resigned thatmonth to return to private practice in Texas. Itwas not the cause of his retirement, but he hadbeen subjected to criticism for his failure ade-quately to punish radical agitators. As Palmertook oÓce, there was already talk of the need toround up seven to eight thousand radicals fordeportation.

On May Day, 1919,16 fears were furtherelevated when many newspaper headlinesscreamed notice of a communist plot to assas-sinate numerous prominent men, includingJohn D. Rockefeller, J.P. Morgan, and AttorneyGeneral Palmer. The Communist Party, as wasits custom on that date, held rallies in manycities; that year, the rallies would celebrate theRussian Revolution and protest Americanmilitary intervention. Everywhere, the rallieswere attacked by mobs no less anarchical thancommunists, and sometimes the mobs had thesupport of the police. In Cleveland, over a

13 Her biography is Richard Drinnan, Rebel in Paradise: A Biography of Emma Goldman

(Chicago 1961).14 250 U.S. 616 (1919).15 6 Mark Sullivan, Our Times, the United States: 1900-1925 at 160 (New York 1938).16 Murray, note 2, at 69-77.

The Abrams defendants (Library of Congress)

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hundred persons presumed by the mob to beReds were wounded by gunshots and two died.The rumor leading to this violence was par-tially conÕrmed by thirty-six bombs that weresent through the mail, timed to arrive on MayDay. Many went undelivered for insuÓcientpostage. Only one actually exploded asintended, blowing oÖ the hands of the maid ofGeorgia Senator Thomas Hardwick.

On May 6, at a victory loan pageant inWashington, a member of the audiencerefused to rise for the playing of the nationalanthem. An enraged sailor Õred three shotsinto his back, and the crowd burst into cheersin admiration of the sailor’s patriotism.17

The violence of radicals marked by thethirty-six bombs was renewed on the eveningof June 2. Nine bombs exploded in ninecities, damaging public buildings and homesof local notables. The most spectacularexplosion took the front oÖ the home ofAttorney General Palmer. It was set oÖ byone or perhaps two persons who died in theblast. Miscellaneous body parts were foundat the scene of the crime and around theneighborhood. Quite possibly, all were theremnants of a single suicide bomber. TheÕrst person on the scene other than theAttorney General and his wife was theirneighbor, Franklin Roosevelt.18 Pamphletsfound at the site proclaimed that “class war ison” and “we are ready to do anything andeverything to suppress the capitalist class.”19

On June 17, an all-day meeting of its leadingoÓcers was held at the Department of Justice.The Chief of the Secret Service, WilliamFlynn, foretold that there would be manymore bombs. Others present predicted that

July 4, three weeks thence, would be a day ofterror. The evidence before the group at thattime was that American radicals were hope-lessly divided and poorly led, and lackedsupport in the American labor movement.Notwithstanding the evidence, the frightenedgroup concluded that the United States wason the brink of a revolution.

At the urging of the Department, policewere posted at all public buildings on thefateful day. However, nothing happened exceptbaseball double-headers, Õreworks, speeches,and a heavyweight boxing match. The absenceof violence was taken by some as evidence thatthe conspiracy against America was moredisciplined and therefore perhaps even moredangerous than previously thought.

The Department brought a test case underthe Espionage Act against members of an anar-chist group in BuÖalo, the very city in whichCzolgosz had in 1901 murdered the President.The group had proclaimed its dedication to thedestruction of organized society. The federaljudge dismissed the indictment because thegroup’s propaganda did not explicitly advocateviolence. “Congress in passing it,” the courtsaid, “did not have in mind, in my judgment,the overthrow of the Government … by the useof propaganda.”20 The Department of Justiceruefully concluded that, notwithstandingAbrams, it had no case against citizens who weremembers of organizations that did nothingmore than fulminate against capitalism. Therewas little they could do except perhaps deportaliens.

Later in July, a black Chicago boy swimmingin Lake Michigan crossed an imaginary linesegregating the whites’ beach from the blacks’

17 Washington Post, May 7, 1919.18 Roosevelt’s account is provided by James Roosevelt � Sidney Shallett, Affectionately, F.D.R.: A

Son’s Story of a Lonely Man 59 (New York 1959).19 Washington Post, June 5, 1919.20 Attorney General A. Mitchell Palmer on Charges Made Against Department of Justice by Louis F. Post and

Others: Hearings Before the House Committee on Rules, 66th Cong., 2d Sess. 166-68 (1920), quoted inCoben, note 2, at 217.

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beach.21 White boys threw rocks at him,causing him to drown. When other blackswimmers asked the Chicago police to arrestthose throwing rocks, they refused. After threedays of mayhem, thirty-four people were deadand some homes burned. Most but not allthose dead were black. There was also a smallerrace riot in Washington. It was widely assumedthat these events were caused by communistsin the black community. Secretary of StateRobert Lansing, a lawyer of stature, declaredthat “We are face to face with an inveterateenemy of the present social order.” A few weekslater, he wrote that the peril caused by radicalpropaganda “seems to me very great.”

So advised, on August 1, the Attorney Gen-eral created a General Intelligence Divisionwithin his department to investigate thoseplanning the revolution. Placed at the head ofthe Division was J. Edgar Hoover, a recentgraduate of the Georgetown Law School.Hoover’s staÖ set up Õles on thousands ofpersons suspected of radical sentiments. Theirprimary sources of information were 625 radi-cal newspapers, including 251 they designatedas ultra-radical.

When the Senate was reluctant to appropri-ate the money Palmer sought for the newdivision, Assistant Attorney General FrancisGarvin (who had once studied constitutionallaw at the New York Law School with Profes-sor Woodrow Wilson) told the Senatecommittee that “We have every reason tobelieve that the Russian Bolsheviki are pouringmoney in here at the rate” of millions of dollarsa month. There was no evidence whatever thatthis was so, and indeed Russia, which was thenin utmost disarray, was sending no money tosupport the communist movement in theUnited States. The evidence on which Garvinrelied was that some of the radicals writing in

some of the publications being monitored bythe Department expressed optimism that arevolution would occur in America, or at leastthat a benign Soviet Union might send themsome money to pursue that end. Hoover,Garvin, and Palmer, among many othersdriven by fear, chose to believe that this was so.

In September, the steelworkers struck. Itwas widely supposed that this was evidence ofradical control of their union. Hoover assuredPalmer that this was the case. Coal and railstrikes were threatened, leading major news-papers to expose the Bolshevik plot to engulfthe world in class war.

In October, accepting an honorary degreefrom Lafayette College, Attorney GeneralPalmer made a speech opposing legislationlimiting immigration as an overreaction. Healso reaÓrmed the right of communists toassemble and express their dissatisfaction withthe government. The New York Times inresponse to these calm words opined thatPalmer had “expressed ancient and outwornviews on immigration. … The resolve ofAmericans to defend the American policyagainst Bolshevism is growing sterner everyday. And here is the Attorney General of theUnited States, whose oÓcial duty it is to havethese alien seditionaries, anarchists, plottersagainst the Government of the United Statesarrested, punished, deported, talking this pre-Adamite sentimentality.”22 He was denouncedby many other frightened newspapers as amoral weakling imposing his quaint QuakerpaciÕsm on the country in its hour of gravedanger.

In October, the Supreme Court of theUnited States aÓrmed the Abrams convictions,Õnding that the record established that thedefendants intended to induce their readers “toturn a deaf ear to patriotic appeals.”23 It

21 For a moving account, see Carl Sandburg, The Chicago Race Riots, July 1919 (New York 1919).22 New York Times, October 17, 1919.23 250 U.S. at 620-21.

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mattered not at all that their purpose was tohelp Russians if in fact they were helpingGermans in time of war. Justice Holmesdissented on several grounds, one of which wasthe excessiveness of the sentences.

An article was soon published in theHarvard Law Review recounting the Abrams caseand concluding that the “whole proceedingfrom start to Õnish, has been a disgrace to ourlaw, and none the less a disgrace because ourhighest court felt powerless to wipe it out.”24

The author was a young Harvard Lawprofessor, Zechariah Chafee.

There was an explosion of rage among theSchool’s alumni and many of them soughtChafee’s dismissal. Among those urgingChafee’s dismissal was John Henry Wigmore,the distinguished dean of the NorthwesternUniversity Law School.25 The Harvard Over-seers Committee conducted a hearing at theBoston Harvard Club and voted 6-5 to retainChafee.26

Also in October, Senator Miles Poindexterof Washington (a sometime prosecutor fromSpokane) led a charge against the AttorneyGeneral. He drafted a resolution (or was it “anhysterical … yowl”?) that passed the Senatewithout a dissenting vote; it demanded that theAttorney General inform the Senate whetherhe had yet begun legal proceedings againstthose who preached anarchy and sedition,advised deÕance of the law, and advocateddestruction of property and whether he had yetbegun to arrest and deport aliens who had per-formed those misdeeds. Palmer later correctlyaÓrmed that he was not only berated by theSenate, but “shouted at from every editorialsanctum in America from sea to sea.”27

Thus motivated, Palmer made a deal with

the Secretary of Labor, William Wilson: theJustice Department would identify 4,000members of the Union of Russian Workers; theDepartment of Labor would issue warrants fortheir arrest; Justice would round them up; andLabor would deport them. The Union was tar-geted because its members were all immigrantsand its manifesto stated the Union’s aim toteach the working class to abolish government.Membership was therefore deemed groundsfor deportation.

On November 7 came the sweep by Justiceof the meeting places of the Union in twelvecities. Federal oÓcers were assisted by localoÓcers and patriotic volunteers deputized forthe purpose. Everyone within or near the des-ignated meeting places was arrested or takeninto custody for questioning, and many werebeaten by the police. Homes were invaded andsearched without warrants. Six-hundred-Õftypeople were arrested in New York, althoughwarrants had been issued for only twenty-seven. People were taken into custody becausethey roomed with a member of the Union. Tothe frustration of the police, many of thosetaken into custody insisted on speaking totheir attorneys before interrogation and thenrefused to discuss their political beliefs orassociations. Most were released, but manywere beaten in the hope of coercing a confes-sion, and many remained in custody formonths without a hearing.

On December 21, after cursory administra-tive hearings in the Department of Labor, 249were placed on a former troopship bound forRussia and named by the press as The SovietArk. “Red Emma” Goldman was amongthem. The popular press was ecstatic. TheNew York World opined that it felt:

24 A Contemporary State Trial – The United States versus Jacob Abrams et al, 22 Harv. L. Rev. 747 (1919).25 William R. Roalfe, John Henry Wigmore: Scholar � Teacher 150-151 (Evanston 1977).26 Arthur F. Sutherland, The Law at Harvard: A History of Men � Ideas, 1817-1967 at 252-259

(Cambridge 1967).27 United States Senate Committee on the Judiciary, Charges of Illegal Practices in the

Department of Justice, Hearings, 66th Cong., 3d Sess. (1921).

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mingled emotions of pride and resentment [asit] watched the vessel pass out of sight.America had risen in her might and delivered ablow that reached the very soul of theincorrigible fanatics. … [Those aboard were]249 blasphemous creatures who not onlyrejected America’s hospitality and assailed herinstitutions, but also sought by a campaign ofassassinations and terrorism to ruin her as anation of free men.28

It was generally assumed that all or almost allof the thousands of persons taken into custodywere subversives. Palmer was an instantnational hero and a viable candidate for thePresidency. Senators expressed pleasure withhis answer to Senator Poindexter’s resolution,but there were many calls for much more ofthe same. The popular press did not observethat no crime or preparation for crime hadbeen traced to the Union of Russian Workers.Nor did they report the fact that few membersof the Union had ever read its manifesto. Itturned out that the organization served chieÔyas a social club for lonely immigrants.

On Armistice Day, 1919, perhaps excited bythe raid, there was more counter-revolutionaryanarchy among Senator Poindexter’s constitu-ents in Centralia, Washington.29 On Memo-rial Day, 1918, there had been an attack bymembers of the American legion on theCentralia meeting hall of the InternationalWorkmen of the World, a radical labor groupthen engaged in a struggle with the lumberindustry. The hall was trashed and everyone init beaten up. In June 1919, there was an attackdestroying the newsstand of a blind man, whoamong other things sold iww publications. Hewas directed to leave Centralia by a writingsigned by “U.S. soldiers, sailors and Marines.”In November, the American Legion, over theobjection of its local commander, planned itsparade to go past the iww’s new meeting hall.Reaching that point, the parade turned into the

hall. The iww members present defendedtheir hall on the advice of their lawyer that theywere entitled to do so. Four Legionnaires wereshot and killed, including the deputy com-mander who led the raid. An iww defenderwho had recently returned from military dutyin France killed two of the Legionnaires. Hewas caught, castrated and burned alive. Elevenother iww members caught were indicted formurder. So was the lawyer who had advisedthem that they had a right to defend their hall.The lawyer was acquitted, but Õve memberswere convicted. They served seventeen years inprison.

In December, the Department of Justiceaimed to bring in and deport all aliensassociated with the Communist Party or theCommunist Labor Party. The list wasaccumulated by Hoover and he was in charge.Ignored by Hoover was Secretary of LaborWilson’s expression of doubt that membershipin the latter group was a deportable oÖense. OnChristmas Eve, Justice asked the Labor De-partment to issue 3,000 warrants. The requestswere mimeographed. They were signed byJohn Abercrombie, the Solicitor to the Depart-ment and Acting Secretary, who did notperform the task assigned him by SecretaryWilson, i.e., to determine in each instancewhether there was evidence of wrongdoingother than party membership. On December27, instructions went out to all United StatesAttorneys directing them to arrest and searcheach of the named individuals, and to searchtheir homes for books, papers and anythinghanging on the walls that might be evidence oftheir political beliefs. No heed was to be paid tothe Fourth Amendment. Again, of necessity,local police and private volunteers weredeputized to help.

The raid was conducted on January 2, butcontinued in some cities for several days

28 Quoted in Louis F. Post, The Deportations Delirium of Nineteen Twenty (Chicago 1923).29 The story is told by John McClelland, Wobbly War: The Centralia Story (Tacoma 1987).

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thereafter. In homes and meeting halls, therewas a nighttime knock on the door preced-ing a rush of police. About 3,600 aliens werearrested, many of them in bed. An equalnumber were not arrested but taken intocustody for questioning. In Seattle, the pool-rooms were invaded, and everyone there wastaken into custody unless they could provecitizenship. Only those who confessed wereallowed to talk to lawyers. Nowhere wasthere room to store the people, and manywere held in abominable conditions. Somecitizens were thus held for months becausethey had no evidence of citizenship. Manyaliens were arrested for being in the wrongplace, there being no evidence that they wereeven members of a condemned organization.Some of those on membership lists proved tobe illiterate. Some were members of socialistorganizations that had been folded into oneof the two oÖending organizations withouttheir knowledge. Many were parents of citi-zens. Families were not notiÕed, nor was anyconcern manifested for those who weredependents of those taken into custody andsometimes held for months.

Fan mail poured into the Department ofJustice. The New York Times saluted Palmerand apologized for its earlier impatience.30 Acabinet meeting on January 6 was a celebra-tion. The New York legislature in alarmrefused to seat Õve socialists who had beenelected by their constituents. It was supposedthat the socialists were enough like anarchiststhat they would use their votes to harm thestate. Solicitor Abercrombie, warmed by thepopular accolades for the deportations he hadeÖected, resigned from the Department ofLabor to run for the Senate.

The United States Attorney in Philadel-phia, Francis Fisher Kane, resigned in protest

over the January raids and released his letter tothe press. The press was not at the time,however, much interested in his views. WithSecretary Wilson sick, Abercrombie’s depar-ture left responsibility for the Department ofLabor with the veteran Assistant Secretary,Louis F. Post.

Post was then seventy years old. He hadonce been an assistant United States Attorneyin New York City, but he had turned to jour-nalism and had for fifteen years edited ThePublic, a weekly journal devoted to the singletax politics of Henry George. He had come tothe Department of Labor in 1913 at the requestof Secretary Wilson, a friend of many years.As a supporter of George, he was no socialistbut he invariably took the side of the poor anddowntrodden. He looked like Leon Trotsky.31

Placed in command of the Department ofLabor, he wreaked havoc on the program. Heworked night and day, seven days a week,reviewing individual cases. He ordered therelease of aliens held on illegally obtainedevidence, or against whom the only evidence

30 New York Times, January 5, 1920.31 A biography is John Williamson Easterly, Louis F. Post (1849-1928): The “Henry George Man”

as Progressive Reformer 116-204 (Ph.D. dissertation, Duke University 1976).

Louis F. Post(Louis F. Post, The Deportations Delirium of

Nineteen Twenty (C.H. Kerr 1923))

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was their membership in an organization thathad been folded into the Communist Partywithout their consent. He also released thosewhose only oÖense was membership in theCommunist Labor Party. By April 7, he hadreleased over a thousand persons, almostthree-quarters of those whose Õles he hadreviewed.

The Department of Justice was enraged andCongressman Hoch of Kansas moved theimpeachment of Post. Because of hisappearance, many “proÕled” Post as a commu-nist sympathizer. When the House RulesCommittee conducted a hearing on Hoch’simpeachment motion, Post came to justify hisdecisions. His appearance was dazzling. Hedemonstrated with elegance and humor thatneither the people clamoring for deportations,nor the Department of Justice, nor indeed themembers of the committee, knew the diÖer-ence between Marx and Tolstoi. Certainly, thelawyers in Justice knew nothing of immigrationlaws, or the Fourth Amendment, or DueProcess. He noted that their searches of thou-sands of homes had turned up three weaponscapable of being Õred, all of them .22 pistols. Atthe end of the day, the Rules Committeelooked “very much like a person who hadpicked up a hot poker and was trying to Õnd aplace to put it.” It resolved to conduct nofurther investigations of Post. PresidentWilson and Secretary Wilson belatedlyexpressed support for Post.

Much of what had happened in Januaryoccurred without Palmer’s knowledge. Whenlater questioned, he left it to Hoover to explainand justify the events. Nevertheless, in April hedismissed Post’s testimony and warned that thecoming May Day would be the occasion for ageneral strike by American workers. Dailybulletins from the Department announced

forthcoming assassinations. Newspapersvibrated with alarm. The entire New YorkPolice Department remained on duty for fiftyconsecutive hours. Machine guns weremounted on police cars. Nothing happened,not even a disorderly meeting.

The Association of the Bar of the City ofNew York then presented itself as advocatefor the socialist legislators whom their

brethren had refused to seat. Their case waspresented by Charles Evans Hughes, theformer Governor of New York, SupremeCourt Justice, and Republican Presidentialcandidate. His appearance on their behalfwas overwhelming.32

On June 1, a federal court in Boston releasedeighteen aliens on writs of habeas corpus. Afterlistening to the Department of Justice wit-nesses, Judge George W. Anderson exclaimedthat “A more lawless proceeding it is hard foranyone to conceive. Talk about Americaniza-tion! What we need is to Americanize peoplethat carry on such proceedings as this.”33 Hisexclamation was very soon followed by anothertaking the form of a 67-page booklet soberly

32 George Martin, Cases � Conflicts: The Centennial History of the Association of the Bar

of the City of New York 1870-1970 at 206-212 (New York 1970).33 Quoted in Coben, note 2, at 238.

“A. Mitchell Palmer on A Nice Spring Day”(Chicago Tribune, April 23, 1920)

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expressing apprehension about the course ofevents in the Department of Justice.34 Amongits twelve distinguished authors were Zecha-riah Chafee, Felix Frankfurter, Ernst Freund,and Roscoe Pound. The report contained sixtypages of exhibits supporting six counts of bla-tant and frequent violations of the Constitu-tion of the United States.

In January, 1921, this indictment of theJustice Department was brought before aSenate committee by the eminent Thomas J.Walsh of Montana. The argument wasadvanced in defense of Attorney GeneralPalmer that there had been a popular fear “ofthe spread of bolshevism because of thedastardly bomb outrages and the activitiesgenerally of the reds.” To this, Senator Walshreplied that “It is only in such times that theguarantees of the Constitution as to personalrights are of any practical value. … If in suchtimes the Constitution is not a shield, theencomiums which statesmen and jurists havepaid it are fustian.”35

While Palmer continued to run for thePresidency as the candidate who would sup-press the coming revolution, there were bymid-summer very few newspapers still in thethroes of panic and his candidacy was in deeptrouble. Indeed, he was ridiculed as Little RedRiding Hood with a Cry of Wolf. The ChicagoTribune portrayed him in his bowler hat

wearing an overcoat on a nice spring day andimagining anarchists in every direction.

He would not be nominated, and theDemocratic candidate who was would have torepudiate him. There was nothing for him todo but return to Stroudsburg. The infection ofpopular fear had at last subsided. Post’stestimony had been the turning point, and he issurely the hero of the story.

It is not easy to tell people that their fearsare exaggerated and impairing their moraljudgment. Politicians are not very good at it.But it is what lawyers must often do for theirclients and their calm must be the mostimportant antidote to the popular infection. Itis not a coincidence that good lawyers were theprimary source of the calm needed to restorethe moral judgment of the nation in 1920.

In reÔecting on his achievement, PostratiÕed the assessment of the group of twelve:

It is a fallacy to suppose that, any more than inthe past, any servant of the people can safelyarrogate to himself unlimited authority. Toproceed on such a supposition is to deny thefundamental American theory of the consentof the governed. Here is no question of a vagueand threatened menace, but a present assaultupon the most sacred principles of ourConstitutional liberty.

B

34 National Popular Government League, To The American People (Washington 1920).35 Quoted in Post, note 28, at 304.

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