I'm reviewing Martin Redish's book, The Logic of Persecution, for the Northwestern Law Review. The book is an interesting look at the so-called "McCarthy era" (which both pre and post-dated McCarthy) from a First Amendment perspective. I'll post a link to the review soon.
Meanwhle, I was thinking today about how much I enjoy writing about constitutional history. Some law professors love to manipulate legal doctrine; that's fine, and I do plenty of that myself, but I like even more learning how legal events unfolded in their historical context, especially because when I delve into the historical literature, I (a) find such interesting details; and (b) so often find facts that are either overlooked, ignored, or misinterpreted by both mainstream historians and popular presentations of history.
Here are some of the facts I learned from doing research for my review, some of which are just "fun facts," and others of which affected my view of the era in question (if you want footnotes, you will have to wait until I circulate the paper):
(1) The first chairman of the House committee that was the predecessor to HUAC, Samuel Dickstein, was probably a Soviet agent.
(2) Hollywood scriptwriters who were members of the Communist Party (CPUSA) were expected to use their positions to promote Communist doctrine and the Party's agenda, or, if that was not possible, at least to work to exclude anti-Soviet sentiment. (And I already knew, but you might not have, that each of the Hollywood Ten was a member of the CPUSA.)
(3) The first federal prosecution under the Smith Act (later used to prosecute CPUSA leaders) was the prosecution of eighteen leaders of the Trotskyist Socialist Workers Party 1941. The CPUSA not only applauded this action; Party leaders assisted in the prosecution.
(4) The Smith Act prosecutions of CPUSA leaders were largely a result of the fact that top government officials had recently learned from decoded "Venona cables" between the Soviet Union and its agents and affiliates abroad that the Soviet Union used American Communists to engage in wide scale espionage against the United States. The CPUSA leaders were not prosecuted for espionage and related charges (conspiracy) because that would have involved revealing that the U.S. had deciphered the Soviets' code, and also much of the additional evidence the government had was obtained in violation of the Fourth Amendment. Instead, the government resurrected the Smith Act, and proceeded with prosecutions of highly dubious constitutionality (though upheld by the Supreme Court, which implicitly recognized that these prosecutions were "special").
(5) Not only did the CPUSA recruit spies for the Soviet Union through its "secret apparatus," it was prepared to engage in violence on behalf of the Soviet Union.
(6) The Smith Act prosecutions and other government and private anti-Communist activity destroyed the usefulness of the CPUSA to the Soviet Union for espionage.
(7) Many of the questionable tactics used by the government against domestic Communists in the late 1940s and 1950s, including Smith Act prosecutions, were previously used by the government against domestic Nazis and fascists in the late 1930s and early 1940s by the Roosevelt Administration.
(8) Alger Hiss was not prosecuted for spying because the statute of limitations had expired.
(9) During the "Red Decade" of the 1930s, Hollywood Communists ran their own blacklist againist their political enemies. Because the studio bosses didn't support this blacklist, it wasn't as effective as the 1950s blacklist of Communists, but it seriously harmed careers nevertheless. Also, many in Hollyood boycotted those who testified before HUAC, allegedly as revenge for "naming names". But is there any serious doubt that the boycotters' attitudes would be very different if their targets had discussed with Congress Nazi, as opposed to Communist, infiltration of Hollywood?
(10) Then there's this quote from historian Ellen Schrecker, who is generally sympathetic to the Communists, regarding the blacklist, which conflicts with the theme of a couple of major Hollywood movies: "Most of the men and women who lost their jobs or were otherwise victimized were not apolitical folks who had somehow gotten on the wrong mailing lists or signed the wrong petitions. ...Whether or not they should have been victimized, they certainly were not misidentified." On the other hand, anti-Communist historian Klehr states that "many innocent people were harassed." But Redish concludes that "for the most part, it seems that the blacklists were accurate."
(11) Much of what is now labeled "McCarthyism" consisted of spontaneous action by private individuals and groups to boycott Stalinists. Unfortunately, I have yet to find a sound source that persuasively explains to what extent these private actors interacted with the government. For example, I still don't have a firm sense to what extent the Hollywood blacklist was the result of a fear of bad publicitly and threats to boycott the industry from various anti-Communist groups, and to what extent it was motivated by fear of potential government regulation. [Update: Eric Muller says that I'm wrong about this, becuase "most" of what now think of as McCarthyism was government action. Besides confusing "much" and "most," I'm not sure Eric is right that people consider the federal loyalty security program "McCarthyism"; maybe they do, and it's hard for someone who actually knows the history to disaggregate public perceptions from reality. But in fact, the federal loyalty security program was started by President Harry Truman in 1947, years before anyone heard of McCarthy, and was a result of revelations of significant lapses in federal security with regard to Communist espionage. Also, Eric talks about the federal government preventing "alleged Communists" from getting passports. The only relevant law I know was a 1950 law that prevented Communist Party members from getting passports, and if the definition of McCarthyism is policies that targeted potentially subversive activities by actual members of the Stalinist Communist Party, then the definition is broad indeed!]
Of course there are plenty of other facts around which make the Communists look better (e.g., most Americans who joined the Communist Party did so for relatively benign reasons, did not participate in espionage, and left after a short time), the government look worse, and otherwise more closely supports the "revisionist" historians perspective on the era. But I was already aware of those facts, the ones above were new to me.