Letter Writing and Legal Consciousness during World War I

Abstract

This article explores how ordinary Americans thought about law during World War I by examining 119 letters to Congress regarding charges under the Espionage Act. These letters are a product of their time and shed new light on our understanding of the first Red Scare. This lens of legal consciousness explains how people remain within established modes of engagement, rather than either withdrawing or becoming violent, as is found in the extant literature. Despite opposing goals, the letter writers’ shared master frame enabled them to ‘speak to’ the other side, rather than ‘past’ those with opposing views. This article explains how individuals who opposed and supported seating Berger rallied under the same master frame of Americanism. Yet, the two groups displayed strikingly different legal consciousness. These disparate groups not only conceptualized the law itself differently, but engaged the law as a tool for different agendas. At a time when violence was on the rise, these people eschewed violent means and maintained the most conventional, peaceful means of protest: letter writing. How they managed this was by embracing the law as their key, nonviolent tool.

I. INTRODUCTION

During World War I (WWI), the United States’ conception of itself was changing; it was an ‘unsettled time’.¹ People grappled with the nation’s changing role abroad, its duties to its citizens as well as recent immigrants, and its evolving self-definition. On November 5, 1918, Victor Berger, a Socialist newspaper editor, won election to the House of Representatives in Wisconsin’s Fifth District. However, citing his conviction under the Espionage Act of 1917 for writing and publishing newspaper editorials critical of WWI, the House refused to seat him. In the subsequent special election to fill this vacant seat, Berger was again elected. Even then, the House refused to seat him, leaving the Milwaukee district without representation. The controversy over Berger’s congressional seat generated much reaction across the country and offers a useful lens for understanding how people at that time wrestled with the government and its laws.

The Berger controversy occurred at a difficult time in US history. In the immediate aftermath of WWI, the government was shifting in its relationship to both its citizens and its residents, having enacted controversial federal legislation (Volstead Act of 1919; Sedition Act of 1918; Selective Service Act of 1917; Espionage Act of 1917). Many deeply held beliefs were being contested, including the nation’s concept of itself as it became a world power. Meanwhile, domestically, the United States was becoming more ethnically heterogeneous with more waves of immigration. Some of these immigrants were leftist and revolutionary. Reacting to the recent formation of the Soviet Union, the United States experienced its first Red Scare, with mass arrests, deportations, and imprisonments. Increasingly, Americans wrestled with what it meant to be an American and what American values truly meant.

People from 17 states wrote 119 letters, telegrams, and postcards to Representative Dallinger, the Massachusetts Republican chairing the committee deciding upon Berger’s seating. These data provide a window into how the law and individuals’ relationship with the law, ie their legal consciousness, can galvanize people on starkly opposite sides and provide a rallying point for political mobilization around the same master frame. Unlike most studies of legal consciousness that investigate individuals’ reactions to their own interactions with the law, with great variability in the different experiences inherent in those data, this study observes people’s reactions to a single legal event. To provide context of what other opinions and discursive strategies occurred simultaneously during the period of letter writing, I also coded and analyzed all located editorials and letters to the editor (31 documents) on the Berger controversy (see Table 1).

Both pro- and anti-Berger letters rally under the same master frame of ‘Americanism’, yet defined ‘Americanism’ differently, describing contrasting frames of legal consciousness with opposing goals for the use of law. Those opposed to Berger saw him as Other who threatened Americanism, their legal consciousness positioning the law as a privilege, while Berger’s supporters’ legal consciousness—government action, elections, and rights talk—argued that he must be seated because he was legally elected. Within this common master frame, these opponents engaged in a shared debate. During the unsettled time of WWI, the law not only remained a useful cultural tool, but had heightened relevance.

This project explores the Berger controversy as a product of its time. The issue of free speech—both for Berger and, by extension, his constituents and supporters—is a fundamental principle of many people’s definition of ‘Americanism’. As Rabban explains, ‘Consensus about the connection between free speech and democracy may be the single unifying free speech theme throughout American history’.²

This analysis of people’s reactions to the Berger controversy and relevant laws allows for deeper understanding of the legal consciousness at that time. The lens of legal consciousness helps to explain how people remain within established modes of engagement, rather than either withdrawing³ or becoming violent,⁴ as is found in the extant literature. By understanding the ‘how’ of this historic process, we can better understand not only the context of the first Red Scare but also how ordinary Americans thought about law at a time when the law was shifting.

During this unsettled time of WWI, the law emerged as a powerful cultural tool. While Swidler, discussing culture generally, asserts that cultural tools diminish in usefulness during unsettled times, this project’s data show the law to be an exception. As the United States experienced shifting roles abroad and evolving self-definitions domestically, the law remained an important component of the key master frame of Americanism, and so law became a more, rather than less, resonant component of people’s cultural tool kits.

II. PEOPLE AND THEIR LAWS

The power of law is closely linked to its ability to facilitate powerful rhetorical devices that communicate legitimacy.⁵ Understanding how ordinary people wrestle with and comprehend the law, legal meaning, and new legislation is a key component of understanding law and society.⁶ As Ewick and Silbey explain, ‘(l)egal consciousness is produced and revealed in what people do as well as what they say’ or, in the case of this study, what they write.⁷

1. Historic legal consciousness

Construction of legal consciousness includes what is named a harm, what or who is blamed as at fault, and what one might claim as a remedy.⁸ Legal consciousness often depends on the individual’s own perceptions of and idiosyncratic experiences with the law, incorporating hopes for what the law should be and fears of what the law might be. These factors can affect whether someone engages in ‘rights talk’—a focus on formal rights and a more legalistic discourse⁹—or on morality-focused understandings of one’s situation, such as appeals to duties or relationships.¹⁰

Legal consciousness is an area of sociolegal scholarship seldom examined with historical methods. However, a few noteworthy studies stand out. These studies complicated the general understandings of legal consciousness by showing how ordinary people thought about the law and their relationship to the law—ie their legal consciousness—within particular historic frameworks. The letter writers in those studies challenged their relationship with their government by constructing their own law- and morality-based arguments.

For example, Lovell researched Depression-era complaint letters written to the Justice Department. In contrast to the standard scholarly assumption that ‘right talk’ would be limited to or expanding on specific formally established rights, the letter writers in his study were unconstrained by what rights they truly had. Despite limited or nonexistent legal bases, Lovell’s letter writers asserted various civil rights claims. Even though the letters argued for entitlements that exceeded anything the authorities understood to be established by law, these letter writers forcefully appealed the subsequent rejection of their claims by the Civil Rights Section of the Department of Justice (DOJ).¹¹

Likewise, Baker’s work on gender and politics draws on letters (among other data) written in rural New York in the 1870s–1930s. Her work analyzed men’s and women’s letters to local and state-level government actors regarding women’s right to vote. In analyzing these letter writers’ legal consciousness, she shows how suffrage involved people’s shifting relationship to their government.¹²

Woodward’s similar study of letters written to the Equal Employment Opportunity Commission (EEOC) demonstrates how the inaction of the EEOC concerning sex discrimination violations under Title VII was critical for the formation of the National Organization for Women (NOW). That reticence by the EEOC to make substantial inroads helped spur women and men to organize into a formal organization to address sex discrimination.¹³ This frustration with the federal government may be comparable to those with pro-Socialist, anti-war, and immigrant-rights views in this study who were appalled by federal legislation, recent court decisions, and targeting of prominent Milwaukee Socialists for anti-war statements. Their frustration led them to mobilize, rather than withdraw or engage in violence.

2. The Red Scare, frames, and cultural tools

The Berger controversy sheds new light on our understanding of this time period, particularly on the first Red Scare, because it is an event where individuals’ legal consciousness became widespread mobilization, illuminating how these historical processes were evolving at the time. Gallagher and Yang define mobilization as a form of political participation in which people engage with the government ‘invoking state power and authority for their own interests’.¹⁴ Issues typically begin with a personal grievance, which is then generalized into a broader concern shared by others.¹⁵ Individuals’ mobilization is often sparked by a ‘focusing or triggering event’ by the government or courts.¹⁶ Such events may be especially potent during times of political turmoil.¹⁷

Swidler uses the term ‘unsettled times’ to refer to times of turmoil that can leave people disoriented because their repertoire of habits, skills, and strategies for action—that is, their cultural ‘tool kits’—are in disarray. She explains that ‘within established modes of life, culture provides a repertoire of capacities from which varying strategies of action may be constructed … In unsettled periods, in contrast, cultural meanings are more highly articulated and explicit’.¹⁸ Key issues will become more starkly binary and increase in their importance, yet people experience diminished capacities for dealing with these issues because their cultural tool kits cease to be useful. When activists tie an immediate debate to larger, highly charged ideological positions, they rally their allies, destabilize their enemies, and enhance the power of their ideas. As issues become polarized, current cultural and political contexts can eliminate ‘wiggle room’ so that individuals’ positions that were ambivalent, confused, or multifocal are forced into black-or-white positions that clearly delineate ‘allies’ from ‘foes’.¹⁹

Political mobilization against ‘foes’ often includes litigation and ‘activism in a variety of political arenas’,²⁰ such as writing letters to government officials. However, doubt in the efficacy of such legal or political action or perceptions of society as unjust could lead to heightened legal cynicism and a retreat from the law. Just as ‘marginalization will lead to heightened awareness of the gap between legal ideals and realities, with implications for legal consciousness’,²¹ an awareness of the hurdles of political or legal mobilization may lead people to develop a ‘legal cynicism’.²² Alternatively, frustration with established modes of engagement could lead actors to embrace violent means.²³

‘Frames’ are the devices people use to make sense of their experiences.²⁴ A master frame is the broader cultural frame that ‘provide[s] the interpretive medium through which collective actors associate with different movements’.²⁵ These master frames ‘inspire and legitimate’ the group’s activities.²⁶ Master frames are ‘culturally resonant to their historical milieu’,²⁷ enabling seemingly disparate groups of people to come together to voice competing ideologies within a shared orientation.²⁸

The Berger controversy provides an excellent event for new understandings of political mobilization and cultural tools through the lens of legal consciousness. The letters examined here were not written with the intention that they would be analyzed many decades later as sociological data. Rather, they were written to express the writers’ strongly held beliefs and to influence Congress. In this way, these archival data offer insight into the public’s legal consciousness, values, and ideas, without the taint of the researcher’s hand. The additional inclusion of published editorials and letters to the editor provide context for the congressional correspondence.

Moreover, the correspondence in this project all focuses on a single event—the refusal to seat Berger. That single focus allows this article to look at each person’s understanding of the same legal incident, in contrast to most extant research, which examines disparate legal events. This focus enables exploration of legal consciousness and political mobilization as ‘tool kits’ shift during unsettled times.

III. LETTERS

This article focuses on two sets of letters. The main set are letters written by US residents throughout the country to the House committee deciding whether to seat Berger. I also analyze editorials and letters to the editor regarding the Berger controversy.

1. Letters to the House committee

Between June 1919 and January 1920, 119 letters, telegrams, and postcards were sent to Rep. Frederick Dallinger or his committee. Dallinger (R–Massachusetts), was Chairman of the Committee on Elections, which oversaw Berger’s unseating. While all telegrams are typed, most of the letters and postcards are handwritten. The amount of information concerning each piece of correspondence varies—sometimes only the city of posting, for others, writers and home addresses. Some writers wrote as individuals, others as married couples or business partners, and a few as representatives of organizations or union locals. Some letter writers supported seating Berger; others opposed him. Some letters continue for up to 10 pages, while others are terse telegrams.

Throughout this article, the phrase ‘letter writers’ refers to those who wrote letters as well as those who sent telegrams and postcards. The generic term ‘letters’ refers to both forms of correspondence. However, for each quotation, I specify whether the writer corresponded via letter, telegram, or postcard. I refer to each piece of correspondence according to a number reflecting my own organizational system rather than any official labeling by any archive. Far fewer telegrams were sent than letters (see Table 3).

I coded the letters for location, writer’s gender, when possible, stance regarding Berger’s seating, and the ideological framework the writer employed. I found no key differences based on region or gender. I further coded the content of each letter, telegram, or postcard to facilitate analysis of how the writer used language to argue a position and the symbolic importance Berger’s case held for the writer. I used inductive content analysis in order to identify emergent patterns.

Through repeated reading of the letters, various codes emerged, including threat/danger, loyalty, disloyalty, virtue, outsider, insider, WWI, democracy, legality, and formal rights. I paid careful attention to the language each writer chose because ‘language is a necessary catalyst of politics, concentrating affect for groups seeking political favors and helping spectators of politics to abstract reassurances from a complex environment’.²⁹

Finally, having exhausted the generation of inductive codes, I returned to the data to search for specific concepts from the relevant extant literature, including rights talk, legislation, Congress/House of Representatives, naming a harm, blaming a fault, and trust. A key reason for conducting the deductive component secondly is to avoid as much taint or ‘bleed’ as possible from the preexisting concepts into the inductive codes. By combining inductive and deductive strategies, I am able to identify what themes are key to the documents, as well as which themes might be absent.³⁰

Public letters about the Berger controversy

This study also includes editorials and letters to the editor regarding the Berger controversy. These data are drawn from five databases: American’s Historical Newspapers, Wisconsin Newspaper Association, Proquest Historical Newspapers, US Newstream, History Reference Center, and the News, Policy, and Politics Magazine Archive. Exhaustive searches of each database yielded a total of 31 documents ranging from 1917 to 1919.

I began by coding the editorials and letters to the editor for basic bibliographic data (source, date, etc). I coded documents inductively for perspective or slant on more abstract concepts including patriotism, constitutional issues, loyalty, democracy, and rights. Documents were further coded using deductive content analysis to identify each document’s position on key issues including Americanism, Berger’s seating, ‘hyphenated Americans’, Milwaukee/Wisconsin, Socialism, and WWI, as well as the codes used for the congressional letters.

2. Rich data

Some (eg Swidler) might assert that this small number of letters (119 privately written letters plus published letters) are mere ‘noise’. It is true that these letters are not representative and do not constitute a vast collection. However, as letters, even a relatively small number of letters can offer insights into people’s ideas. Lee, who analyzed letters from Truman through Johnson administrations, asserts that such documents better represent public opinion than survey data or other actively collected data, because letter writing requires greater motivation and captures reactions to contemporary events more authentically.³¹ Similarly, Lovell, whose research on letters to the Justice Department demonstrated how rights claims were used even to address circumstances not usually labeled as civil rights, explains that his discovery of this contrary understanding was possible only because ‘letters allow direct observation of actual encounters with government officials, while interviews typically document only the narrative stories that people tell about such interactions’.³² Indeed, most studies of legal consciousness—this article’s focus—employ qualitative interviews. The advantage of this archival study is that letters, of any number, come to the researcher absent potential influence from the data gatherer, as can happen with interview data.

Unfortunately, letter writers rarely provide full demographic data on themselves. Sometimes all they provide is their last name and title. From this, the researcher might be able to infer the writer’s gender and ethnicity. For example, the sex of the writer may be inferred based on the signature, as with letter 57, signed ‘Dr E. E. Sonnanstine’. This writer probably was male, since physicians typically were men then. But this is far from certain. Other times, a letter will include an address and could be on professional letterhead, which could give a sense of the writer’s neighborhood and occupation. For example, letter 29 was written by Robert A. Nelson of Fairview, Montana while letter 77 was written by Dora Pietsch of Milwaukee, Wisconsin. One might assume that Mr Nelson was not German and had no direct or personal experience with Victor Berger, while one might guess that Ms Pietsch was both German and familiar with Berger on some level. But neither of these sets of deductions are certain. Although few scholars use archival materials for analysis of legal consciousness, those doing so agree that ‘this type of material is particularly suited for studies of legal consciousness because it reveals directly people’s ideas of law, justice, etc, rather than what they might narrate later in interviews’.³³ Indeed, despite the limited information available as to exactly who these letter writers were, this study’s data provide windows into people’s attitudes and understandings about their struggles and beliefs about the law.

IV. ORDINARY PEOPLE AND THE LAW

The Berger controversy is an event in history that increases our understanding of why and how ordinary Americans thought about law at the time of the first Red Scare. The Red Scare ushered in several new laws and new uses of the law. These were used to define and redefine some people as outsiders and their behaviors as forbidden. The law has the power to construct the identities of groups, shifting how others see those groups’ members.³⁴ As a result, people’s relationship with the law became more precarious during these unsettled times, yet both those who opposed and those who supported Berger mobilized under the same master frame of Americanism.

1. The Berger controversy

Conceptions of American identity, the roles of law and government, and the shift of discursive strategies in unsettled times overlap in the Berger controversy. Victor L Berger, a Jewish Austrian immigrant, settled in Milwaukee, Wisconsin, becoming the editor of three socialist newspapers—a daily, the Milwaukee Leader, and two weeklies, the German-language Wisconsin Vorwaerts and the Social Democrat Herald.³⁵ With Eugene Debs, in 1897, he established the Social Democratic Party. Favoring incremental, rather than revolutionary, change, Berger led the conservative, right wing of the Socialist Party.³⁶ Berger was elected to the House of Representatives in November 1910, becoming the first socialist to serve in Congress.³⁷ As US involvement in WWI escalated, Berger’s newspapers continued to oppose the war, bringing him both personal and financial difficulty.³⁸

Two days after the United States severed diplomatic relations with Germany (April 6, 1917), Congress passed the Espionage Act of 1917, giving the government broad prosecutorial power.³⁹ More than 2,000 people were charged under the Espionage Act at that time, in particular journalists and editors of leftist, socialist, or German-language newspapers.⁴⁰ Berger was among the editors charged and, ultimately he was found guilty and sentenced to 20 years in Leavenworth Prison for printing editorials dissuading young men from joining the wartime armed forces.⁴¹ Berger and his four fellow defendants (all similarly convicted) immediately appealed and remained free on bail.⁴²

In November 1918, while Berger awaited appeal, the voters of Wisconsin’s Fifth District elected him to the House of Representatives.⁴³ When the Sixty-Sixth Congress opened in May 1919, it refused to seat Berger and formed a special committee to consider Berger’s eligibility, chaired by Massachusetts Representative Frederick Dallinger.

2. From settled to unsettled times

Before the war, leftists, pacifists, and political radicals were not routinely harassed by police (unless they were leading workers’ strikes) and their periodicals enjoyed the benefit of bulk postage rates. For the most part, European immigrants enjoyed unmolested intra-ethnic enclaves and were increasingly integrated into mainstream society. The German language was celebrated in public plays, operas, and social clubs, with German-language instruction provided in many public schools. Third parties were accepted; Berger, in particular, was elected to Congress as a Socialist Party member and published three thriving socialist papers, one in German.⁴⁴ Before the United States entered WWI, Berger and President Wilson shared the public opinion that the United States should not enter the war.⁴⁵

In many ways, these years before the war were settled times. People could rely on a cultural repertoire to provide them with specific strategies for whatever problem or situation they encountered. Existing strategies were stable and thrived.⁴⁶

However, as the United States entered WWI and moved into a ‘Period of Threat’, life became frightening and unpredictable as people faced change, unfamiliarity, and danger.⁴⁷ As Tolchin explains, periods of threat occur when ‘great societal upheaval generates enormous quantities of public anger, which in turn release unforeseen political changes in their wake’.⁴⁸ This upheaval during 1910 to 1920 manifested in a fear of ‘outsiders’ and, in turn, a persecution of those seen as beyond the circle of ‘true Americans’. For example, the Palmer Raids’ extradition of several hundred leftists to Eastern Europe demonstrates how the definition of American became rewritten to exclude foreign-born, politically left, and non-WASP (white Anglo-Saxon Protestant).⁴⁹

3. The importance of the law

The years surrounding WWI saw some of the nation’s most controversial federal legislation passed; the law became a point of discussion among many people, possibly more than any other time in US history. These laws carried weighty sanctions and recast previously acceptable behavior as criminal. As Merry explains, ‘Law plays a critical role in defining meanings and relationships, but it does so in a context of state power and violence. The power of the law to transform is two-sided: it depends both on the direct imposition of sanctions and on the production of cultural meanings in an authoritative arena.’⁵⁰

At the forefront of the Berger controversy was the Espionage Act of 1917, which criminalized actions perceived as harming the war effort, such as anti-war leaflets (eg Schenck v United States and Abrams v United States) or, in Berger’s case, editorials that discouraged young men from enlisting.⁵¹ The Espionage Act would have had substantial symbolic power, even if it had never been enforced.⁵² As a statement of wartime paranoia, it delineated anarchists, socialists, communists, pacifists, immigrants, labor organizers, and anti-war critics as not only suspect, but dangerous. This illustrates how the law serves as ‘a system of cultural and symbolic meanings … by providing threats, promises, models, persuasion, legitimacy, stigma, and so on’.⁵³ The Espionage Act cast foreign-born socialists like Berger into the group of ‘outsiders’.

However, the Espionage Act of 1917 was more than symbolic. It was actively enforced, along with the Immigration Act of 1918, the Sedition Act of 1918, and the Volstead Act of 1919.⁵⁴ For example, the first Palmer Raid, timed for the second anniversary of the Bolshevik Revolution (11/7/1919) resulted in 650 arrests in New York City, with more raids in 23 states resulting in over 10,000 arrests and 800 deportations during the next several months.⁵⁵ The Volstead Act targeted immigrant communities for whom alcohol was more central and culturally important.⁵⁶ The Espionage Act itself targeted not only socialists, anarchists, and other radicals such as Debs, Berkman, Kate O’Hare, and Emma Goldman, but also pastors, librarians, and German-language teachers.⁵⁷

The brunt of the wartime laws was felt in Wisconsin by more than just Berger and his co-defendants on The Leader’s staff. The US Justice Department pressured local prosecutors across Wisconsin to charge anyone who made utterance against the war, the government, or anything related to those with disorderly conduct charges. For example, in December 1917, US Justice Department Investigator Ralph Izard wrote of his success, with the help of county prosecutor, ‘a great many cases with fines of $100 and from sixty to ninety days in jail’.⁵⁸ These included people who made comments on trolleys or taverns that had been overhead, teachers in classrooms, and priests and pastors at their lecterns.⁵⁹ For example, the Justice Department investigated the Superior, Wisconsin, diocese’s Bishop Joseph Koudelka, originally from Bohemia, for being sympathetic to Germany and for supporting pro-German utterances of his priests. Thomas recounts several incidents when Justice Department investigations were used to curtain the power of local workers and labor unions by raising charges of disloyal utterances against labor activists.⁶⁰

Those feeling the impact of the new legislation were keenly aware of their second-class status. The law branded their beliefs and cultural expressions as illegal, immoral, and un-American. As Bourdieu explains, law has the ‘power of naming … It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another’.⁶¹

Such government actions influence how people act and react toward those labeled as outsiders, particularly during periods of threat or unsettled times.⁶² However, responses to government actions can be constrained by the extent to which people can fully understand the actions being taken.⁶³ Just as these government actions reflected some people’s fears of political radicals and immigrants; for others, these same actions increased concern that xenophobia and war hysteria could lead to widespread persecution of immigrants, dissenters, and anyone in disfavor.⁶⁴ Prominent lawyers, like Roscoe Pound and Felix Frankfurter condemned the government’s actions.⁶⁵

4. Increasing violence

This was a violent time in U. history. Political violence was endemic to this age. The government, from local to federal levels, used violence, threats of violence, and arrests to intimidate political activists and organizers. The first Palmer Raid, mentioned above, exemplifies the government’s use of violence: several hundred people arrested, detained, and deported across almost half the United States, long before the age of Miranda rights and protections against warrantless searches and seizers.⁶⁶

Conversely, various assassinations were also occurring. For example, US President Wm McKinley (1901), Kentucky Governor Wm Goebel (1900), and Idaho Governor Frank Steunenberg (1905) were assassinated. Assassination attempts at lower levels of government and in industry also occurred.⁶⁷

Lynching in the United States was at its height during this period of history (or a bit broader: 1890s–1920s).⁶⁸ Vigilante groups would attack those deemed insufficiently patriotic and loyal.⁶⁹ Increasingly through the next decade, the Ku Klux Klan (KKK) used violence and threat to intimidate various immigrant, Catholic, Jewish, Black, and ‘Red’ groups as well as organized labor associations.⁷⁰

In contrast, labor could also be a key area of much agitation, if less actual violence. Large strikes included the Lawrence Strike of 1912, in which 14,000 struck for more pay; the Ludlow Massacre of 1914, which left 30 people dead; and the Great Steel Strike of 1919, which momentarily stopped steel production with 350,000 steel workers on strike in six states. While the strikes were often peaceful, scabs whose nonunion labor threatened to break the strikes were often met with violence. The United States used strikebreakers to undercut industrial actions more than in any other industrialized country.⁷¹ For example, the Great Steel Strike, like many others, was ended by private violence. Pinkertons and other hired guns were brought in by mill, mine, and factory owners to crush labor organizing. In response to the violence perpetuated on strikers, unions developed paramilitary methods to counter mercenary violence.⁷² Thug-on-striker and striker-on-scab were regular forms of violence within strikes.⁷³

Several farther leftist groups, such as the Italian anarchists, embraced violence. Sometimes this violence could be expressive—to communicate anger with authorities, social structure, or local elite’s actions. However, acts of violence could also be highly political means of challenging the status quo and tolling a warning of (possibly) eminent change coming.⁷⁴

Milwaukee, in fact, was the location of the single deadliest event in national law enforcement history, prior to 9/11. It occurred only a few miles from where Berger and the Milwaukee Socialists had their newspaper offices. Toward the south of town, along Lake Michigan, is Milwaukee neighbor Bay View. In the back of a tavern that is known the Cactus Club, a group of Italian anarchists regularly met. Diagonally across the intersection from the tavern, former Catholic priest, the Reverend Augusto Giuliani, would preach to convert the local Catholics to evangelical Protestantism. Guiliani was also a fervent supporter of the Great War. On September 9, 1917, the anarchists disrupted this pro-war rally and tore down the American flag. Police fired on anarchists, killing two and arresting 11. In retaliation for Guiliani’s setting the police on their comrades, the anarchists left a large Black-power bomb at his church. The church cleaning person took the bomb over to the local police department, where many police where changing shifts. The bomb’s explosion killed 11 and wounded five.⁷⁵

Berger controversy in unsettled times

However, violence can be conceptualized in various ways. For example, Welke uses the phrase ‘brutal expulsion’ in discussing the systematic removal of African Americans from elected and appointed positions after Reconstruction, as well as their denial of suffrage, jury service, and practice in the legal profession.⁷⁶ Another example would be the defendants in the Abrams case: arrested on a charge that would have received a warning or, at most, a six-month sentence in Great Britain, these defendants received decades-long sentences with the alternate choice of deportation.⁷⁷ Thus, violence can refer to physical aggression, but can also indicate sudden profound acts with drastic effects.

During the Berger controversy, the shift into unsettled times saw both radical changes in the law, particularly around free speech, and in the severe response to anti-war, socialist Berger. Although protecting and balancing freedom of speech has been celebrated since the United States was founded, legal scholars report few court cases covering freedom of speech before WWI.⁷⁸ For example, research from the Free Speech Center on Supreme Court Cases involving free speech rights shows 73 cases before 1917, and more than 818 since then.⁷⁹ However, Rabban emphasizes that ‘litigation over free speech [did not begin] abruptly with prosecutions under the Espionage Act of 1917’ but are usually simply forgotten or neglected due to a single focus on federal courts, especially Supreme Court cases.⁸⁰ Nevertheless, Rabban agrees with the historical characterization by fellow legal historian Zechariah Chafee and others in acknowledging that almost no legal cases before WWI engaged free speech arguments in any depth.⁸¹

Berger’s stances on the war, capitalist profiteers, and other issues were consistent before, during, and after the war. Before the war, his opinions were tolerated without threat of prosecution. Yet, during the war years, Berger’s positions became intolerable, threatening, and criminal. Moreover, after the war, charges against him were dropped, and he was again seated in Congress in 1922.⁸² Because Berger’s stance remained quite consistent, his situation provides a good time-based comparison for analyzing changing reactions to him and his position.

The public acknowledged this shift even during the war years themselves, as those events unfolded. For example, this editorial from the Jonesboro Weekly Sun cites Berger’s ideological consistency to reinforce Berger’s blameworthiness.

His own statement upon the announcement of the verdict that he had been following for thirty-seven years the same principles for which he had been convicted, is by no means an excuse for his offense. (January 22, 1919)⁸³

The following editorial from the New York Times also corroborates Berger’s consistency in his Socialist identity and opposition to war profiteering.

He was excluded, he said, because ‘I am a Socialist and an opponent of war and profiteering’. In 1910, Mr Berger was elected to the House from the same district that he has now, after an interval of some years, re-elected him. He was just as much a Socialist then as he is now; he was in fact practically the leader of the Socialist Party in the nation. He was just as much an opponent of ‘war and profiteering’ as he is now. Not the slightest objection was raised to his taking his seat … Why, then did the House exclude [Berger]? … Because in time of war he had lent his influence toward the obstruction of his country’s preparations and subsequent activities, and to that extent, whether intentionally or not, had ranged himself with this country’s enemies. (November, 1919)⁸⁴

This editorial confirms that Berger’s position did not change; the reaction to his position is what changed as the United States entered unsettled times.

5. Master frame of Americanism

The House’s refusal to seat Berger created substantial excitement for those opposing and those supporting Berger. Each group perceived a substantial threat. However, those supporting Congress’s action of denying his seat seem less mobilized to write, based on the different portions of 27 percent (against Berger) and 73 percent (for Berger) of correspondence (see Table 2). This is understandable in that this group only needed to confirm the status quo and urge against change, while those in favor of seating Berger needed to advocate for a change. This group opposing Berger’s seating feared a deterioration of ‘Americanism’ by foreigners and radicals. The House debate and ultimate decision not to seat Berger consoled and reassured them that their version of Americanism would prevail. For the group supporting Berger, the House’s actions caused great anxiety that otherwise freedom- and justice-loving Americanism would be corrupted by xenophobic legal outbursts.

Such attitudes were not unique to the letter writers. Editorials and letters to the editor at that time echo these sentiments, as described below, although the proportions favoring Berger are the reverse of the congressional letters (see Tables 2 and 3). These two different understandings of Americanism are discussed below.

Support for seating Berger

The letter writers who supported Berger’s seating felt his treatment symbolized a dire threat to Americanism. Many focused on symbols of Americanism, such as the Constitution, and emphasized the concept of legality. For example, the following letter provides a good example of focusing on the legality of the election, and so to deny the results of that election go against American ideals:

As a recent resident of Cambridge [Dallinger’s congressional district] and Harvard man … permit me to protest to you respectfully but emphatically on your stand in opposition to the reception of Congressman Victor L. Berger into the House. Sure[ly] it is not in accordance with American ideals to refuse the recognition of a legal election no matter what opinion one may have of the beliefs of the man elected. (letter 18; Wm B Southworth; Meadville, PA)

A classic symbol of legality and America, the Constitution was the exalted symbol of Americanism and provided many letter writers with substantial moralistic ammunition. For example, Mr Beltz compared the Constitution to ‘merely a scrap of paper’ to demonstrate the threat to Americanism by the government and the Espionage Act, in particular:

While our President runs amuck all over the world howling that we have fought for democracy and humanity and all these noble things, I say there is damned little democracy left in America … The damnable Espionage Act was only [passed] for this purpose and not to detect any alien spies or the like. It was only to keep down real democracy at home. When such things as these can be done against the working class, then our constitution is merely a scrap of paper. (letter 39; Richard E Beltz; St Louis, MO)

Mr Schmidt, below, juxtaposed the Constitution with his statements of faith and trust:

I have always believed that the Constitution of the United States is the fundamental law of the land, and must be lived up to by all, regardless of station or official position; in fact, no public official can qualify unless he makes oath or affirmation that he will support and maintain the Constitution … I have faith in humanity, faith in Americans to uphold the letter and spirit of our great institutions. (letter 65; Charles V Schmidt; Milwaukee, WI)

For these and other writers, the Constitution was a formidable symbol to have on their side.

Berger’s supporters frequently referenced historic American heroes and ideals of democracy, invoking that symbolic power to convey that Berger’s treatment was as abhorrent as persecuting these patriots of Americanism:

I do not know you personally, but trust that you are an American and will stand with Victor L. Berger in his fight against outrage and tyranny. There is, as you know, a new order of things sweeping over the face of the world. The democracy of Jefferson and Lincoln must be re-instated; it must be held inviolate. (letter 44; Edw. Barney; Milwaukee, WI)

Writers also compared Berger with the current President Woodrow Wilson, such as this example from Mr Nelson of Montana:

Take Wilson’s message to Congress. [three sentences comparing] You might vote Berger out but remember there are millions of patriotic Americans who cannot be hoodwinked by pretexts. There are over 60,000,000 Red sympathizers here in this country. Now take heed before it is too late … Trusting that you will consider and harken to this voice. (letter 29; Robt. A. Nelson; Fairview, MT)

Aligning Berger’s stance with that of Wilson (albeit citing Wilson’s earlier, pre–WWI statements) and contrasting his treatment with the democratic ideals of Jefferson and Lincoln invoke power symbols to paint Berger as deserving of rights under the law and worthy to represent his constituents.⁸⁵

Among Berger supporters, some were most concerned about the rights of Berger, specifically, as being unfairly abridged, while others cared more about his constituents’ rights to congressional representation. In the letter below, Mr McLean saw Berger’s rights as being key, charging that Congress would ‘swindle, cheat and defraud’ Berger out his place in Congress:

Have you no sense of shame at all? Like a wild, raving maniac, you are trying to swindle, cheat, defraud Mr Victor Berger out of his honest election. The people elected him and you are trying to beat him out of it by crooked means. That infamous, diabolical Espionage Law, which is unconstitutional … and against the rights of man, should be removed summarily and drastically! Away with you traitorous band of political hyenas and English bootlicking hirelings. (letter 82; James McLean; Kansas City, KS)

This letter disparages the Espionage Act while maintaining the sacredness of the Constitution to underscore the chasm between Berger’s treatment and what he deserves.

Mr Bruckhausen, below, invoked the Constitution reverently to argue for Berger’s right to free speech and to not being barred from Congress:

Has Congress forgotten the United States Constitution? If not, how can it bar out Victor Berger duly elected to that body and who has committed no crime except that of free speech which is guaranteed by the first amendment of our Constitution? (letter 48; Fred. Bruckhausen; Milwaukee, Wisconsin)

In letter 15 the emphasis is on Berger’s rights, both to be seated and to publish his editorials:

The voters undoubtedly knew what his opinions were on the war, and also of his conviction … I am inclined to believe that many thousands of votes have no sympathy with his views on Socialism but nevertheless believe that he has been denied as many other patriotic citizens, of certain constitutional rights … President Wilson seems to have voiced the same opinion as Mr Berger upon at least two propositions … Why single out Mr Berger? If we once begin to imprison our citizens for holding certain views on the war, I am afraid that there will be many prosecutions, and that great unrest will necessarily follow … On the whole, I believe that the average American citizen will feel that if Mr Berger is not seated, that he has been deprived of his constitutional rights and that what was done in Milwaukee will be done throughout the nation. The spirit of broad liberality, it seems to me, is more becoming to any party than a narrow and un-American policy. (letter 15; LJ Stark; Denver, CO)

Even when addressing ‘what was done in Milwaukee’, the focus is not on the Milwaukeeans and their rights but on Berger being ‘deprived of his constitutional rights’. Doing so demonstrates how Berger was used as a symbol, himself. As an individual, personally oppressed by the law and lawless behavior, this treatment of Berger shows how the debate stayed focused on the legal system, not on violence or withdrawal.

Other letters, however, while also writing to support Berger, focused more on the rights of the citizens to their chosen representative. For example, letter 35 speaks of ‘injustice done to the voters’ in describing Congress’s actions, rather than injustice to Berger:

I wish to protest against the injustice done to the voters of the Fifth. Wisconsin District when our congressman, Victor L. Berger was not given his seat in Congress to which our votes elected him. This is contrary to the constitution of the United States. We must insist that our representative, Mr Berger, shall be seated without any further delay. (letter 35; R. Weber; Milwaukee, WI)

Letter 34 also focuses on the voters themselves.

The position taken by the 24,000 voters who supported Berger was that he committed no unlawful acts and that what he said was only incidentally helpful to the enemy, his main purpose being the exposition of socialist principles. Consequently … the House acted without constitutional authority in unseated Berger and there was widespread resentment against this apparent assumption of authority to dictate the qualifications of a representative over and above the people [who elected him] … Voters of the Fifth Wisconsin District are as patriotic as your own constituents. (letter 34; WF Thiel, Milwaukee, WI)

Ms Pietsch focuses on the rights of the Milwaukeeans, not Berger’s rights. She underlined the words ‘thousands of thinking people’ to emphasize that Congress’s refusal to seat Berger concerned more than just his right, but also the right of many Milwaukeean to elect their representative:

It seems unbelievable, undemocratic, & unjust not to seat Mr Vict. Berger in Congress in our great land of liberty, when the autocratic Kaiser Wm. allowed to seat Socialists at the Reichstag. We hope that you will give your vote for him as it is the wish of thousands  of  thinking  people. (letter 77; Dora Pietsch; Milwaukee, WI [all underlining in original])Ms Pietsch’s letter contrasts the expectation of American democracy, justice, and a ‘land of liberty’—highly charged language of Americanism—with the disdain the country felt toward the German ‘autocratic Kaiser’. The irony that the Kaiser allowed Socialists to hold national office, while the United States did not, raised the question of which side truly embraced democratic ideals. Similar comparisons that highlight perceived misdeeds of the US government have been identified in other scholarship, such as Lovell’s DOJ letter writers comparing the United States with Nazi Germany.

Opposition to seating Berger

For many letter writers opposed to Berger’s seating, he symbolized outsiders who were threats to their version of Americanism, as the following telegrams make clear:

The people here I have talked with are right behind you in the frank and uncompromising patriotism expressed by your committee on the opening day. The best people know you are right and your own constituents think more of you for your firm stance. (telegram 27, Leavitt C Parson; Boston, MA)

We who represent the loyal Americans of the Fifth Wisconsin district urge that Joseph P. Carney contestant for seat of Victor Berger be seated. (telegram 20; Cornelius Corcoran; Milwaukee, WI)

Similarly, the following letter writers cast themselves as the ultimate embodiment of patriotism and ‘red-blooded Americans’:

I say with millions of other RED BLOODED Americans to push your Summary Action as fast as possible. There is going to be a show down sooner or later anyway and then the birds who are in favor of leniency to the __ Reds, the I.W.W.s and the Hyphenated Americans - who are stronger for a foreign country [than for] the good old USA will be in the same class … The Millions of Real Americans are sure getting mighty tired of Pussyfoot methods in regard to the whole bunch. (letter 11; LC Cox; DeLand, IL)

We urge that you use your influence to prevent the seating of Victor Berger, speaking the sentiment of American soldiers, sailors, and marines who endured hardships that the principles for which our government stands … He sought to stab us in the back while we were engaged with the foe … he cannot be tolerated in councils of our nation. (telegram 5; Sam H McMeekin, Commander of Jefferson Post, American Legion, Louisville, KY)

These letters positioned Berger as the antithesis of Americanism and patriotism, grouping Berger with those far to the left of Berger’s moderate ‘Sewer Socialists’ who were more interested in improved sanitation than revolution.⁸⁶

To many, Berger personified the threat to a Protestant, ‘white’ (ie Western-European descended) America:

You are to be congratulated for the promptness and dispatch in securing the ejection of Victor Berger from the House … If you can go further, and procure the enactment of laws, to imprison or deport all persons who would advocate the destruction of our system of government and prevent further immigration, I am quite sure that the Congress will have the unqualified endorsement of a large majority of our people … We will need all the land to provide homes for the natural increase of the descendants of the people now in the United States, then why permit the further influx of strange peoples to displace our descendants, bring in new and untried theories of government, and eventually overthrow the Republic. The return of Victor Berger to Congress is proof conclusive that we have already too many of that class of citizens. I thank you for the successful effort you have made to free Congress from that class of men, and hope that you may be able to drive them out of our country, and keep others from coming in. (letter 14, Wm E Skeggs, Decatur, AL)

While newspaper editorials and letters to the editor at that time expressed less xenophobia and did not propose radical actions like mass deportation, they did often position Berger as disloyal and contrasted him with ‘an American candidate’ (although Berger was a naturalized citizen) as these editorials from a New Orleans newspaper illustrate:

If [Berger] is re-elected this time, it will be by majority [not plurality] vote, constituting a formal avowal that one of the Milwaukee districts rejects Americanism to embrace Bergerism. It is to be hoped that the Milwaukee voters will ‘upset the dope’ on which the betting odds are based, by electing a ‘100 per cent American’ to Congress at next Friday’s election. (December 12, 1919)⁸⁷

It is necessary for Democrats and Republicans to stand together in support of an American candidate against the disloyal and hostile Berger. Wisconsin has a large population of German descent—and especially in Milwaukee; and a patriotic fight [must] be made. (November 18, 1919).⁸⁸

This newspaper even coins the term ‘Bergerism’ to contrast with ‘Americanism’.

While few editorials or letters to the editor used language as emotive as these letter writers, their sentiments were similar. One point of difference is one-sixth argued against seating Berger exclusively because of his anti-war position and unambiguously not because he was a Socialist, as these quotes from the New Orleans Times-Picayune illustrate:

His political views, the fact that he is an advanced Socialist, had nothing whatever to do with his rejection … [rather, he had] proved himself so hostile to the United States, labored so incessantly to defeat our purposes during the war, to prevent enlistment in the army, that [seating him] was impossible. (November 12, 1919)⁸⁹

However, many other editorials opposed to his seating underlined his party affiliation as one of several reasons for their opposition.

6. Legal consciousness

How the writers’ saw the law, its purpose, and their relationship to it—that is, their legal consciousness—reflects beliefs in rights and fears of outsiders.

Law as an entitlement

For many supporting Berger, the law was an entitlement, a guarantee that could not be destroyed or diminished by one’s political views, country of origin, or immigrant status. Sometimes these letter writers framed their pleas in legalistic language of rights, other times they used more moralistic discourse of fairness. For example, Mr Larson’s letter used rights talk, arguing for law as an entitlement while also raising the possibility that Berger’s treatment might set precedent.

Regardless of whether we agree or disagree with Mr Berger’s views on the war or policies, the people of his district are entitled to be represented in Congress by the man whom they have chosen to represent them and it is contrary to American ideals to deny him his seat on account of his opinions, for if it can be done in Mr Berger’s case, it can be done at any time in the future in the case of any congressman with whom the majority do not agree. Such action would be setting a dangerous precedent and example for the minority when they become the majority … Hoping that you will take a broad American point of view and consider the constitutional rights of free press, free speech and the freedom of opinion in deciding this question. I remain, Yours for justice. (letter 62; Bennet Larson; Milwaukee, WI)

Mr Larson closed his letter by stressing three of the most celebrated rights—free press, free speech, and the freedom of opinion. By closing his letter ‘Yours for justice’, he made a final plea for Berger’s entitlement to the law’s protection.

In addition to Berger’s constituents, a number of Rep. Dallinger’s constituents also wrote to him, reminding him that his own reelection was in the future:

I hasten to warn you, you will be held in strict account in your constituency at the coming election by many of your constituents who were formerly your friends, who believed every district has a constitutional right to a representative of their own choosing … [Not seating Berger] is nothing more than a reactionary looking for cheap political glory. (letter 22; Daniel W Gallaghar; Boston, MA)

Mr Gallaghar reminded Dallinger that he and other constituents would remember at election time how Dallinger went looking for ‘cheap glory’ at the expense of the Wisconsinites right to their chosen representative’.

Also invoking the US Constitution, attorney LJ Stark wrote on stationery from his law office to remind Dallinger that freedom of thought and of speech are key rights:

The average American citizen likes to see fair play, and also wants to see the constitutional rights which are guaranteed to every citizen not only protected, but perpetuated … The great fundamental principle upon which our country has prospered, and under which our people have enjoyed great happiness, has been the principle of freedom of thought and of speech. To deprive [Berger’s constituents] of this great privilege would take us back to the time of religious persecution. If Mr Berger is not seated, then he has been deprived of his constitutional rights. (letter 15; L. J. Stark; Denver, CO)

Other letter writers focused on more normative arguments. In contrast to the rights-focused pleas, above, Drs Sonnanstine and Armstrong, writing collectively, made a moralistic plea for beloved institutions, fairness, and ‘the spirit of right’.

Has honor entirely disappeared from the institutions that we once loved, but are learning to dread? … Be fair, and seat him, and avoid an unpleasant odium to your own name. I am expressing the sentiment of a majority of people regardless of political affiliations when I say what I do … Use your spirit of right, if you are not bound politically, and helpless. Your action by keeping him from his seat shows plainly that all congressmen are either afraid to meet him mentally or are a bunch of cringing sycophants to some unseen master. (letter 57; Dr EE Sonnanstine and Dr Jas. Armstrong; Oklahoma City, OK)

Others who supported Berger utilized the discourse of fairness and morality:

The paper reports you are on the point of taking action to prevent Mr Berger from taking his seat in Congress. I hope that is not true. I should be ashamed to think the Member from my district took the initiative in preventing Milwaukee from having the representative of its choice in the house. I understand no election fraud is alleged … His political or economic views are no concern of yours or of mine. If he was fairly elected, he should be seated. (letter 9; John R Nichols; Cambridge, MA)

Similarly, another letter cited the lack of fairness:

You and a number of other contemptible renegades are repeating the very tactics of the damnable traitors of the Democratic party, bringing the Republicans into disgrace because of your intolerance, prejudice, hysteria, and deviltry against another party. Shame on you. Berger was honestly elected by the people of Milwaukee, Wis., and now you are trying to rob and swindle him out of his election. [Your decision to not seat Berger] is an insult and a direct slap in the face of those independent Americans who elected him. Numerous letters have been written to you in Massachusetts demanding your impeachment and that you be kicked out. You are a traitor! (letter 83; James Lawrence; Kansas City, KS)

Such emotional, moralistic diatribes on the fairness and unfairness of the situation illustrate people’s passionate belief in the law as entitlement.

While eschewing colorful language of the letter writers, editorials and letters to the editor mirrored such key themes as democracy and fair representation. This editorial from the progressive, although not Socialist, Viereck’s newspaper emphasized the concern that not seating Berger risked jeopardizing the constitutional right to freedom:

We are placing our constitutional freedom in jeopardy … if we exclude from Congress, one of its most distinguished spokesmen because their political convictions are at variance with ours.⁹⁰ (‘The Defense of Victor Berger’, December 1, 1919)

Similarly, this editorial from the World Tomorrow, a religious and arguably pacifist newspaper, asserted that actions like denying Berger his seat would harm democracy:

Our form of political democracy cannot be achieved … if the citizens of Mr Berger’s district are denied him as their representative in Congress merely because his views on war are distasteful to his colleagues. He is but a poor American who needs to be told that to obstruct the channels of democracy is to increase the danger of violence. (‘Damming the Channels’, December 2, 1919)⁹¹

Those six pro-Berger editorials and letters to the editor were more often from progressive or left-leaning outlets. While only six publications are not enough to draw a definitive conclusion, this suggests that only ideologically progressive newspapers dared to publish supportive editorials.

Law as a privilege to be balanced

Legal historian Welke reminds us that ‘courts and lawmakers [have often] dress[ed] subordination in the language of privilege’.⁹² Letter writers who opposed Berger framed the right to representation as a privilege to be balanced against other concerns, such as national safety, believing it was a particularly dangerous time, when the law must protect the country from people like Berger, rather than protecting people like Berger. Fearing imminent danger from foreigners and leftists who would threaten Americanism, the privilege of the law had to be reserved for only the truly deserving. Massachusetts Bishop Samuel Babcock explained that Berger was not entitled to free speech because he was disloyal:

This morning, I have read in the Herald a report of your address last evening and I want to assure you of my sympathetic interest and support in the wise and brave course you have pursued in dealing with Berger … It is not a question of free speech; the man is disloyal and if the House of Representatives will allow a traitor to sit and vote in its midst, then our free institutions are, indeed, in danger. (letter 8; Samuel G Babcock, Suffragan Bishop of the Diocese of Massachusetts of the Episcopal Church; Cambridge, MA)

Babcock’s ‘brave course’ was Congress’s use of the law to restrict Berger and diminish the representational power of his constituents. Their legal right to representation was not a right to Babcock, but a privilege they lost by voting for a ‘traitor’.

Similarly, other letter writers concluded that Berger’s constituents forfeited their rights by electing someone not worthy of the office, even though they conceded that, by not seating Berger, Congress affected not only his own political career, but also the legal right of his constituents to choose their representative:

The re-election of Mr Berger would not in the least lesson the charges which were proved, and which disqualified him from holding a seat in the house … If the constituency of Mr Berger persists in re-electing him, then it must suffer the penalty of being without representation until it can send a loyal American citizen to represent it. (letter 31; HA Wallace; New York City, NY)

I most sincerely hope the at the vicious Berger that has been reelected to the House again will not be allowed his seat … I earnestly urge you, if it is at all possible, to take away this cusses citizenship and compel him to be sent ‘back to Russia’ … I also think gov’t officials better look after Berger’s constituents and sent them back with him, too. (letter 3; Henry F. Lunt; Winchester, MA)

The ‘poor decision’ of Berger’s constituents to elect someone these letter writers deem disloyal was enough to deny them their legal right to representation and possibly even strip them of their citizenship and extradite them.

Other letter writers vilified Berger more passionately, bristling with pugnacity. FJ Thayer implies that Berger was not only not American but also not truly human.

It was with much pleasure I read of the sturdy, patriotic & timely action of my Congressional representative … in holding up that reptile Berger … It’s about time that these half-baked foreigners should be set down to cool and set down HARD. Enjoying as they do the benefit of our institutions, yet, constantly and insidiously assailing the very foundations of the fabric our fathers revered, they shall be promptly taken in hand and taught the duties and responsibilities of an American citizen, especially in times like these. Failure to take the hint and mend their ways should ensure speedy deportation to Russia or Germany … We denounce the devilish Hun (and rightly) for his brutal and utter indifference to the rights of others. (letter 76; FJ Thayer; Cambridge, MA)

Perhaps ironically, Thayer’s culmination of Berger’s ‘brutal’ ‘devilish[ness]’ was his lack of respect for the ‘rights of others’.

Newspaper editorials also argued that Berger’s positions overrode any entitlement to protection under the law for him or his constituents. This Times-Picayune editorial argues that he should be punished, not protected, for his anti-war stance, and refers to his constituents as ‘so-called German Americans’, implying that this hyphenated identity might be oxymoronic:

[Berger’s] election to Congress a year ago was an insult to the American people, as is his candidacy today. It is still hoped that he may be punished for his hostile attitude and his efforts to prevent the United States from conducting the war efficiently … The majority he received because of the large number of so-called German Americans in Milwaukee did not overcome the objections to him as a representative nor render him any the less offensive or dangerous.⁹³

This editorial paints him as both ‘offensive’ and ‘dangerous’—one trait with high symbolic repulsion, the other implying a practical safety concern.

Letters to the House and newspaper editorials display considerable overlap in expressed consciousness regarding the Berger controversy. This consistency demonstrates that these themes encompass the key forms of consciousness people had in their cultural ‘tool box’ at this time. Those writing were struggling within a particular historic moment. As detailed below, the unsettled nature of this time generated an interplay between letter writers’ legal consciousness and their mobilization that enabled opposing groups to rally under the same master frame of Americanism. The consistency between these two groups implies that the range of frames used does not vary substantially when people explicitly engage with formal political institutions. However, the hyperbolic, emotive, and colorful language employed by those writing to Congress demonstrates that discursive strategies might actually expand when people are directly petitioning a formal political institution.

In this legal consciousness, people understand law as a privilege only for ‘insiders’—American-born, ‘loyal’, and certainly not leftist in any way. However, Berger’s status is that of an outsider (a ‘traitor’ as Mr Lawrence of Kansas City wrote). As an outsider, Berger did not deserve rights. This law-as-privilege legal consciousness expresses the idea of America as a democracy with rights for ‘true’ Americans.

The sentiments expressed by those who would keep Berger out of Congress are similar to the Athenian concept of restricted citizenship,⁹⁴ the Nazi Germany policy of ‘herrenvolk’,⁹⁵ or the denial of suffrage to non-whites⁹⁶ and women⁹⁷ earlier in US history. This legal consciousness values a superordinate group (here, ‘true Americans’) and permits only these people to fully participate in governance and enjoy full legal personhood. In contrast, a subordinate group (here, ‘disloyal Americans’) are not full legal subjects, are regarded as dangerous and irresponsible, and are not entitled to participation in the democratic process. For example, Bishop Babcock (letter 8) is arguing that the First Amendment only applies to ‘loyal Americans’ when he asserts that Berger’s seating ‘is not a question of free speech’. Whether the group is ‘disloyal Americans’, women, an Athenian resident not born of Athenian parents, African Americans, or non-Aryans, history shows us that denying rights of subordinate groups is not novel. However, as discussed elsewhere, what is somewhat unusual is that these disloyal Americans had not always been denied rights like women and non-whites in the United States, but, instead, somewhat like the non-Aryan in Nazi Germany, had had many formal rights and much social status, and lost these.

V. LEGAL CONSCIOUSNESS, POLITICAL MOBILIZATION, AND THE MASTER FRAME OF AMERICANISM

These multiple visions of legal consciousness under the master frame of Americanism demonstrate how the law remained a useful way for people to make sense of the changing world around them, rather than diminishing in potency during these unsettled times, as Swidler⁹⁸ predicts other tools in people’s cultural repertoires will. Seeing these letters as a product of their times, analysis of the letters also shows how Berger’s supporters and detractors could engage in contrary expressions of legal consciousness on the same issue. Instead of becoming alienated and withdrawing, or frustrated and seeking violent resolution, these ideologically polarized writers constructively engaged with what Americanism meant. This polarization created clear separate sides, both of which had easy and legitimate access to resolution through the legal system. The participants understood themselves as insiders for whom nonviolent, legal means were seen as most appropriate and the stark framing of the issue further facilitated using these means for resolution.

1. Americanism in unsettled times

During unsettled times, cultural ideologies become more explicit while key cultural tools in people’s repertoire might diminish in usefulness. Legal consciousness is an important cultural tool; yet unlike other strategies in people’s cultural tool kits that Swidler believed were compromised in unsettled times, the law’s usefulness remained undiminished; instead it became more critical in people’s struggles to make sense of their world.⁹⁹ As letter writers grappled with how they believed the law should be, they used the law to express their beliefs, hopes, and fears for their changing world.

As the United States entered WWI, the law itself was in flux. The appropriate role of law, and to what extent it must yield to other priorities, was contested—by members of Congress, by Supreme Court justices, and by the letter writers in this study. Data here demonstrate how legal consciousness and political mobilization become particularly vibrant as people struggle to address the uncertainty around them. This heightened cultural power of the law may explain why these letter writers, frustrated with the government’s actions, did not abandon the law to attempt nonlegal means to address their problems, retreat into toleration and despair,¹⁰⁰ or embrace violent means of expression and action.¹⁰¹

Indeed, the letter writers’ actions were in contradistinction of other popular strategies at that time. The Industrial Workers of the World (IWW) eschewed the use law, particularly electoral strategies, instead focusing on large-scale labor organizing.¹⁰² Other socialists, such as those in Texas and Oklahoma, advocated for violent, rather than legal, means.¹⁰³ The anarchists, most notably, preferred bombs to ballot boxes—with one bomb exploding in a Milwaukee police station, killing nine, only two years earlier.¹⁰⁴

However, here we see how they who focused on the difficulties of the Milwaukeeans to have their chosen representative seated, used the nonviolent means of the letter to address the nonviolent activity of voting. They addressed who deserved the ballot box: Did the ideals of Americanism guarantee votes and representation for everyone, or only those who were not leftists or Socialist and not of German lineage? Violence and withdrawal were not engaged because the issue was seen as a stark binary, lending itself to resolution through the legal system, and framed the participants sufficiently as insiders for whom nonviolent, legal means were seen as most appropriate.

Ideological context in WWI

When prevailing contexts tie an immediate debate to larger, highly charged ideological positions, activists are able to rally their allies, destabilize their enemies, and enhance the power of their ideas. This was the context that forced much of the debate within the Berger controversy into binary positions, as extant theory would predict.¹⁰⁵ Not only could the controversy ultimately result in one of only two outcomes—Congress would seat Berger or not—but much of the contemporary public rhetoric also delineated stark, ‘either–or’ positions. This first Red Scare painted citizens and residents as either being pro-socialist or pro-America, with no room for America-supporting socialists or pro-socialist Americans. The Espionage Act and its subsequent case law viewed actions as either helping or hindering the war effort, with little room for neutral free speech.

The patriotic parades, speeches, and war bond rallies proclaimed that you were either a ‘100 per cent American’ or a traitor, resulting in incidents unheard of a few years earlier, such as burning the barns of German-American farmers who purchased ‘insufficient’ war bonds, horse-whipping a minister who prayed for peace and the soul of the Kaiser (among others), or tarring and feathering a German-language teacher, a US citizen with a German surname¹⁰⁶ This unambiguous ideological hardline is illustrated in the November 18, 1919, editorial, discussed above, that disparages Berger’s Milwaukee supporters by calling them ‘so-called German Americans’, implying that these two identities could not coexist.

As Swidler explained, ‘[s]pecific political contexts lead actors to draw lines of ideological division sharply, to develop the action implications of their ideological stances, and to make adherence to one side or another of a debate an important sign of alliance or opposition’.¹⁰⁷ The anti-Reds, pro-war, hyper nationalist and even natalist sentiments created blatant ‘with us or against us’ labeling that led people to take stark ideological positions. Signaling that the wrong ideological stance could have dire consequences. The Berger controversy was the intersection of those tensions.

The struggle to navigate Americanism

These historic data show how Americanism—love of country, adherence to its ideals, application of its key principles—resonated with both those who supported and opposed Berger’s seating. Yet, this Americanism was refracted through each letter writer’s legal consciousness frame, mobilizing support for conflicting government actions and giving voice to opinions that substantially differed. This concept of Americanism was sufficiently robust because the definition and identity of America, domestically and internationally, was evolving.

Americanism was not just any master frame, but a master frame that addressed a key component in flux during this unsettled time: American identity. Internationally, the United States was becoming a world power, with all the responsibility, pride, and visibility that this implies. Domestically, US identity was evolving as the country experienced waves of mass immigration from previously less represented groups, particularly Italians and Eastern European Jews. The law’s role was shifting in its role of protecting—and prosecuting—its residents, creating feelings of vulnerability and uncertainty. A strong federal government monitoring the actions and words of its people was not just a theoretical debate but a controversial practice, resulting in deportation and imprisonment for many.¹⁰⁸

The unsettled nature of these war years enhanced the resonance of the master frame of Americanism, allowing competing legal consciousness frames to coexist within it.¹⁰⁹ Groups with opposing agendas and contrary senses of legal consciousness could both embrace the master frame of ‘Americanism’ in ‘unsettled times’ or ‘periods of threat’.¹¹⁰

As a master frame, Americanism provided a sufficiently common narrative and similar vocabulary that allowed people who believed different things to be in dialogue. The law rose to heightened usefulness, rather than sinking, as Swidler¹¹¹ notes is the case in unsettled times. The common frame of Americanism allowed different sides in the Berger controversy to speak to each other, rather than drawing on irreconcilable positions.

2. Legal consciousness and political mobilization

While the extant literature explains that occasionally a law produces ‘focusing events’ that alert the population to that law and its policies, here we see how these focusing events may become particularly powerful when state actions are substantive departures from earlier policies. The controversy over seating Berger was such an event, drawing the attention of the wartime nation into debate regarding the appropriate role of the law and the state.¹¹² Yet, while the debate addressed the topic of who was sufficiently ‘insider’ and ‘American’ to be worthy of all rights and privileges, the dispute involved a range of people across the country all of whom felt themselves worthy of engaging in the debate.

The Berger controversy induced a ‘mass response because it symbolize[d] a threat [to some] and reassurance [to others]’.¹¹³ When feeling insecure, people often respond with anger, embracing powerfully negative symbols and charged language.¹¹⁴ The letters to Congress expressed substantial anger, using highly symbolic and emotional words—eg ‘red-blooded’, ‘stab us in the back’, ‘traitorous band’, ‘ashamed’, ‘tyrant’, ‘cheap political glory’, ‘mawkish sympathy’, and ‘cringing sycophants’. When emotionally volatile topics create strong opponents and supporters, ‘those who hold the other value become the enemy’.¹¹⁵ Those writing to Congress were not discouraged by the polarized aspect of this campaign; if anything, the ‘ideologically charged campaign reinforced’ their commitment to their stances, as others have documented in later US elections.¹¹⁶

In contrast to much extant literature on mobilization,¹¹⁷ these letters show how this mobilization personalized the legal issue of Berger’s seating. Extant scholarship describes how mobilization often is ‘the transformation of a social problem into a legal one’, beginning with the ‘personal cause first’ and only later taking on political consequences.¹¹⁸ However, in this case, the letter writers’ cause was perceived as a legal issue from the outset. It became personal as Berger’s detractors identified with threats to national security from radicals, and those supporting him feared threats to civil liberties related to ethnocentrism. The personalization reached beyond Berger’s constituents of the Milwaukee area. For example, Mr Cox of Illinois (letter 11), wrote against seating Berger saying he ‘sought to stab us in the back’; whereas arguing for Berger’s seating, Drs Sonnastine and Armstrong of Oklahoma (letter 57), wrote of ‘the institutions that we once loved’.

Additionally, the confrontational use of the second person in order to warn Congressman Dallinger is significant. For example, anti-Berger letter 15 from Colorado said ‘You might vote Berger out, but remember’ while pro-Berger letter 83 from Kansas said ‘You are a traitor!’ This is similar to Lovell’s DOJ study, where letter writers hold officials personally responsible for not following the law, as (mis)understood by those letter writers.¹¹⁹ Relatedly, the contrasting expressions of legal consciousness reflect larger patterns of mobilization and social action. Each letter is an attempt, using the law, to appeal to Congress to act in a particular manner.

Those emphasizing entitlement sought to limit the actions of Dallinger, Congress, and, possibly, the federal wartime laws (eg the Espionage Act). This is a legal consciousness more focused on law as a process. In contrast, those who saw law as a privilege to be balanced viewed the law as a means to control Berger and his supporters. The law was a weapon, which could be proactively aimed at those threatening America. This suggests that an important inquiry for mobilization scholarship is to understand the directionality of the force of law. This article finds that when political mobilization seeks to shield, the law is being invoked through pleas for restraint. Yet, when mobilization musters the law as an instrument, the law is focused on specific targets. While mobilization of the law with either directionality could have substantial impacts on society, marshaling the law as a weapon against an identified threat has the potential to raise serious concerns about civil liberties and personal rights.

These differing expressions of legal consciousness reveal both the instrumental and symbolic importance of the law. While the law could be used instrumentally as a weapon against certain groups or to defend others, such as using immigration laws to deport or the Espionage Law to imprison, the law also could be used symbolically to grant or deny social legitimacy. Indeed, the law can ‘perform the cultural work of rendering [groups] socially normal’ and within the bounds of accepted society.¹²⁰

These two explanations are not mutually exclusive; the letter writers might have been motivated by both instrumental and symbolic reasons. Beliefs about the symbolic significance of the law may affect people’s willingness to use the law as a weapon. Similarly, the degree of instrumental power people perceive in the law may influence the symbolic value it has for them.¹²¹

Critically, the letter writers saw themselves as empowered to engage in this public debate and of sufficient insider status to demand public acknowledgement of their views. For them, violence was not needed. For others in the United States at that time, violence was a more appealing option, possibly because they did not perceive themselves sufficiently as insiders, as discussed more earlier. For example, the rise in lynchings and racist terrorism came at a time when the second KKK was only beginning to gain power. (It was not a national organization, for example, until 1925.)¹²² Labor rights and worker power, too, were in flux. Owners felt their absolute power eroding and yet organized labor was not yet as powerful as it would need to become, leaving both sides feeling sufficiently disenfranchised that violence felt appropriate.¹²³ Groups on the farther left, never having been warmly welcome within US politics, saw violence as not only a suitable means, but possibly the only means, to the ends they felt were necessary.¹²⁴

3. What the letters didn’t say

The Berger controversy deepens our understanding of the first Red Scare not only by what supporters and detractors wrote, but also by what was never written. No letter to Congress, no editorial, and no letter to the editor debated the merit of Berger’s opposition to the war, nor did they evaluate his socialist ideology. Berger’s anti-war stance cost him, personally and financially, as well as his party; yet his supporters did not defend his position in their letters, nor did his detractors use it to criticize him to Congress. Similarly, despite the Red Scare hysteria and recent Soviet Revolution, no one argued for or against Berger’s socialist philosophy.

In fact, many of Berger’s supporters argued that his actual position did not matter, so long as he was lawfully elected. These supporters did not address the destruction caused by the war nor the resulting recession to suggest that these vindicated Berger’s position.¹²⁵ Possibly, these elisions were strategic to distance themselves from the substance of the controversy; perhaps people feared becoming targets of the Red Scare themselves.

This absence seems more likely to indicate that people consciously decided to abandon discussion of controversial debates in order to embrace procedural justice and the spirit of fairness. As Hull argued, ‘many forms of marginalization will lead to heightened awareness of the gap between legal ideals and realities, with implications for legal consciousness’.¹²⁶ The absence of any discussion of Berger’s controversial opinions by those who supported his seating implies that they were aware of how far they could push the limits of discussion. By confining their letters to addressing procedural justice and impartial fairness, they may be acknowledging the reality of living under the Espionage Act and other wartime laws.

Similarly, Berger’s opponents labeled him, and by extension his position, as leftist, but they did not rebut the assertions he made about the war, the economy, or society.

However, the most likely explanation is that the absence of discussion about his positions shows that the Berger controversy was not a dispute about the war, but about the role of law and about the relationship between the governed and the governing. These letters did not address Berger’s anti-war or socialist beliefs because those did not ultimately matter. In this ‘cultural war’, what mattered was what Berger symbolized. His supporters feared an emaciated justice system and threats to civil rights; his detractors worried about diminished national security in a country overtaken by radical immigrants.

4. Confirmation of detractors’ legal consciousness

The prevalence of letters to the House committee in favor of seating Berger (3:1) suggests that the Berger controversy may have triggered a more powerful response among individuals favoring the law as an entitlement. Those supporting Berger watched with dismay as Fifth District voters continued to be unrepresented as the committee deliberated.

The 3:1 ratio may indicate that the situation presented different levels of urgency for the opposing sides. Members of the ‘winning’ side were less motivated to write because Congress was doing what they wanted. Those opposed to Berger had their assumptions about the law confirmed by the actions of the House committee. In contrast, Berger’s supporters not only had to challenge the current status of Berger not being seated, but had to grapple with their understandings and expectations for the law changing. Their fears about what the law could do and their assessment of possible threats substantially affected how each group reacted,¹²⁷ with the pro-Berger group experiencing more of an ‘endogenous shock’.¹²⁸

Yet despite frustration with the Espionage Act and similar laws, as well as with congressional actions, those favoring seating Berger did not develop ‘legal cynicism’¹²⁹ nor did they embrace violent means of expression.¹³⁰ Rather, they were able to engage with Berger’s detractors under the shared master frame of Americanism, capitalizing on the law’s enhanced usefulness as a cultural tool.

This underlines the relationship between legal consciousness and political mobilization: that when a group’s legal consciousness is more contested, that group may be more motivated to action. Although these letter writers clearly questioned the fairness of the government’s actions—and possibly the fairness of laws like the Espionage Act—diminished trust did not thwart their mobilization of the law and legal frames.

Interestingly, the ratio of letters from Berger supporters versus detractors is reversed in the editorials and letters to the editor (contrast Tables 2 (3:1) and 3 (1:4)). More than three-quarters of these published documents opposed seating Berger. This indicates several key differences in these public letters versus those written by laypeople to Congress, discussed more thoroughly above. Most important, nearly anyone can write to Congress, while only a select few have their letters to the editor published, and even fewer publish editorials. Those in such positions are more likely to be elites or at least highly privileged. Positions of privilege may correlate with greater support for the war, less support for Berger, and a heightened fear of socialism and immigrants. The skew of the opinions most likely does not reflect the predominance of opinion for those who would publish letters publicly, but only those who could.

VI. CONCLUSIONS

The Berger controversy was a product of its time, and, as such, is instrumental in understanding how historic legal consciousness was engaged by diverse groups of people. Through examining people’s legal consciousness around this single issue, rather than each person’s reaction to their own individual problems with the law as is often done in legal consciousness scholarship, this project explored how contrasting displays of legal consciousness can remain in dialogue. The data show how opposing groups with different understandings of the law could nevertheless rally under a shared master frame of Americanism; they remained engaged, rather than withdrawing or embracing violence. This suggests that certain master frames could be invoked that employ legal discourses to bring competing views together within politically institutionalized forms of mobilization, thus avoiding the disengagement or violence identified in other studies.

These findings also extend theory on the use of law in political mobilization. Unlike much extant political mobilization research in which issues begin as personal grievances and are then generalized into a shared concern, the letters on the Berger controversy take the legal issue of Berger’s seating and transform it into a personal cause. More importantly, however, the master frame of Americanism allowed participants on opposite sides of the debate to engage rather than withdraw or become violent. Thus, determining the conditions under which people will become more violent or disengaged might hinge on whether opposing sides of a debate can coexist within a shared master frame.

Analysis of the Berger controversy also furthers cultural theory regarding ‘unsettled times’, when people’s cultural repertoire or ‘tool kits’ are thrown into disarray.¹³¹ While Swidler argued that the usefulness of cultural tools diminishes during unsettled times, this project demonstrates how the law can be an exception. Although the language of the letters was highly emotional and the letter writers perceived the issue of the controversy as harshly binary—both as Swidler would have predicted—the cultural tool of the law did not lose its capacity, as Swidler posited.

Rather, the law and its application became a vibrant component within the cultural repertoire of both Berger’s supporters and detractors. Although the United States was experiencing increased dominance internationally and changing its legal powers over its residents, the country continued to define itself by the centrality of its laws. The law remained as an important component of the master frame of Americanism, and so the law itself not only remained within people’s useful tool kits, but was a tool that increased in resonance.

This suggests an important modification to historic application of cultural theory—specifically, that Swidler’s theory of unsettled times requires some conditional components. When an issue involves a master frame where legal consciousness is highly relevant, the role for law as a cultural tool might expand rather than shrink, because people on both sides are aggressively mobilizing different visions of the role of law within the master frame. In these situations, the role of law intensifies, especially as the importance of legal discourse increases. Moreover, the law itself can function as a mechanism for transition and social change.

Still very relevant for today’s political landscape, analysis of the Berger controversy is a window into the degradation and defense of free speech. As Rabban reminds, post–WWI civil libertarians were strongly influenced by attacks on free speech, such as the Berger controversy: the ‘commitment to reforming American society … translated after World War I into a belated defense of dissenting political speech as a vital social interest in democracy … The extensive repression of antiwar and radical speech during and after World War I made many Americans sensitive to infringements on speech for the first time’.¹³² Struggles around free speech, privilege, and protection from a myriad of perceived threats—as well as who is a true American—can be seen today across contemporary society.

I would like to thank the friends and colleagues who helped refine the ideas in this article, particularly, Robin Stryker, Anna Maria Marshall, Kathy Hull, and Michael Yarbrough, as well as the fellow panelists and audience where earlier versions were presented: Midwest Law & Society Retreat; Law & Society Association annual meeting; Midwest Political Science Association annual meeting; American Sociological Association annual meeting. Archivists at the National Archive, the Milwaukee Historical Society, and the Wisconsin Historical Society also deserve much thanks.

Footnotes