Vietnam and the Anti-War Movement: The Missing Dimension

I have now watched the whole of the PBS documentary series on The Vietnam War. While I have lots of comments and criticisms, I acknowledge the near impossible task faced by the film-makers in trying to cover such an enormous range of material, and so many viewpoints. But I do make one critical point, about the war’s unpopularity. I would argue that, in terms of public attitudes, the Vietnam War was not so radically different from other American conflicts. What made the response to Vietnam so different – and what has so shaped popular memory – was a series of all-but forgotten legal changes in the mid-1950s that allowed the utterly unprecedented expression of popular unrest, and of outright resistance to the war. Historians of the era really need to know about Quinn and Nelson.

The common stereotype suggests that most American wars before Vietnam were largely supported by the broad mass of the people, although there certainly were some dissenters. World War II was the Good War, and most people would be hard pressed to think of any public protests against Korea. For a variety of reasons, though (according to the stereotype), Vietnam was different. Partly, the rising opposition from 1966 onwards reflected the new social awareness of better educated young people, who were all the more numerous in an era when the baby boom was coming of age. That set the stage for ever growing protests and militancy, culminating in the enormous demonstrations and national anti-war mobilizations of 1968-70.

Obviously there is some truth in this picture, but it mis-states the picture of earlier wars. Opposition to US involvement in the First World War was massive and widespread, and was suppressed by an astonishing arsenal of repressive laws, commonly mobilized by state authorities. World War II had vastly more popular support, but an anti-war movement did exist on some scale, drawing partly on isolationist and anti-Semitic roots. But mainstream support was fading rapidly by mid-1945, after 3 ½ years of fighting, as suggested by the extreme difficulty of selling war bonds. We can only wonder how matters would have developed if the war had lasted longer, and indeed as long as the Vietnam conflict. Once you get beyond two years or so, it is very hard to maintain the enthusiasm for a war fought mainly by draftees.

Another prime difference about World War II was that the very powerful Communist Left had an absolute commitment to supporting the Soviet Union, which meant a total and unconditional dedication to promoting the US war effort. In other circumstances, that Left would have been the natural leaders of any anti-war resistance, but they were not going to play any such role if that meant harming the Soviet Union. In fact, the Left spent a lot of effort seeking to expose anyone vaguely critical of the war effort, and charging them as crypto-fascists or Nazi spies.

What about Korea? In fact, there was a very substantial and active anti-war movement on a national scale, but we don’t call it by that name. Of course, the Communist Left passionately opposed the war, and that resonated through their networks among unions, ethnic movements, and young people. They were also sternly opposed to nuclear weapons and the threat of nuclear warfare, and attacked civil defense programs. The story of that resistance, though, is entirely told in terms of the anti-Communist movement, the “Red Scare,” which raged through the post-1945 decade, and which we misleadingly subsume under the general title of McCarthyism. (Senator McCarthy was only prominent for a few years at the end of a larger story). That is a huge story, which I touch on in my 1999 book The Cold War at Home: The Red Scare in Pennsylvania 1945-1960.

It wasn’t that few people resisted these earlier wars, but rather that their opportunities to do so publicly were so drastically constrained. That prevented core anti-war militants evolving into mass movements.

Assume that I am a person of leftist or left-liberal sentiments who wishes to oppose the Korean war publicly in 1950, perhaps by organizing a mass meeting or publishing a newspaper. I face several daunting obstacles, but by far the most significant come from state laws and authorities. Most states had draconian laws against sedition, a term that in practice covers any activity or speech that courts can deem hostile to the United States, and they enforced them severely and systematically. Penalties were very severe. Most of the political repression that we think of in this era tended to be a state, rather than federal, function.

I would also stand an excellent chance of being pulled up before a legislative committee, either at state or federal level. The famous exemplar of this was the House Un-American Activities Committee, HUAC, while Senator McCarthy had his Senate Subcommittee on Investigations, or SISS. State legislatures meanwhile had many equivalent bodies. These committees were so terrifying because of the Alice in Wonderland rules under which they operated. The committee asked you a question, such as the notorious “Are you now, or have you ever been, a member of the Communist Party?” If you answered that question at all, in any form, then you were deemed to have forfeited your privilege against self incrimination in any and all subsequent interrogations.

Suppose that the committee asked if you had ever been a Communist Party member. You have no concerns about that, and admit that you were a member ten years ago, but grew disenchanted and resigned. You were young and stupid, and anyway, you really were not all that involved. So what? But then the next question is “Now, tell us the names of everyone you knew in that Party organization? Every friend you knew to be a Communist?” That would be a much more difficult question, but you can no longer refuse to reply. If you do, you will be charged with contempt of Congress. If you denied the fact of membership, then the committee had at its disposal a legion of witnesses it would call on to refute you – some genuine ex-Communist defectors, but also a great many criminals and professional perjurers. And then you face perjury charges. Perjury or contempt of Congress were the charges most commonly used to destroy witnesses in the “McCarthy Era.”

Your only option, then, was to refuse to answer any and all questions and plead the Fifth Amendment, which made you sound like a criminal.

By the way, I am not denying that HUAC and McCarthy (and their state counterparts) were often targeting quite genuine Communists and subversives, and sometimes outright Soviet spies, but the legal tactics they were using were reprehensible. Also, many innocent people were suffering as collateral damage from the larger campaign

The Red Scare declined steeply after the fall of McCarthy in 1954, and at this point the US federal courts began picking over some of the outstanding cases from the era. Adding to the pressure for change, Earl Warren became Chief Justice of the US Supreme Court in 1953. Liberal judges were appalled at much of what had gone through the era, and were particularly shocked by the misdeeds of professional anti-Red “witnesses,” many of whom were now being exposed in the shadiest possible terms. That reaction found expression in two key cases in the US Supreme Court, namely Quinn and Nelson.

In the 1940s, US authorities had both fought Communist activism in certain unions, especially the United Electrical Workers. In 1949, Thomas Quinn was one of a group of union officials interrogated before HUAC about Communist Party membership, and all duly refused to answer on the grounds of the First and Fifth amendments. Quinn, however, phrased his reply as part of answers given by his colleagues, so that on technical terms, he forfeited his rights against self-incrimination. In 1955, the US Supreme Court not only overturned his conviction, but offered a wide-ranging critique of the workings of the legislative committees:

The power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate. Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary. Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights, such as the Fifth Amendment’s privilege against self-incrimination which is in issue here. (Quinn v. United States, 349 U.S. 155 (1955)

Tracing the history of the right against self-incrimination, the decision proceeded, “To apply the privilege narrowly or begrudgingly, to treat it as an historical relic, at most merely to be tolerated, is to ignore its development and purpose.” In order to convict, a court must show that a respondent had a deliberate criminal intent not to answer a question. Any such question must moreover be pertinent to an investigation, rather than merely a fishing expedition. And yes indeed, a question about Communist Party membership was an attempt to incriminate the witness.

Quinn neither destroyed nor invalidated HUAC and SISS as such, but it put them on notice that the courts would be paying close attention to their work. Politically, too, memories of the McCarthy investigations had made any such Congressional activities deeply suspect. When HUAC tried to carry out hearings in San Francisco in 1960, it met widespread dissent and open resistance. It never returned to anything like the status or power that it held before 1954.

The other leading case involved veteran Communist militant Steve Nelson, who was anything but a misunderstood liberal – in fact, he was certainly in touch with the Soviet NKVD. In 1950, Nelson was convicted under Pennsylvania’s Sedition Act, and sentenced to twenty years imprisonment. The US Supreme Court reversed the conviction in Pennsylvania v. Nelson, 350 U.S. 497 (1956), on the grounds that the area of sedition was a matter for the federal government alone. Nelson could still be prosecuted under a federal law like the 1940 Smith Act, but states had no right to legislate in this area: federal law pre-empted them. That simple decision voided all the state measures in this area, and effectively prohibited much of the political repression that had been such a mainstay of American political life since 1917.

Racial concerns played a potent underlying role in this process. 1954 brought the desegregation decision in Brown v Board of Education, and over the next decade, issues of race and civil rights occupied center stage in the concerns of the US Supreme Court, and of lower federal courts generally. (This was by no means a matter of the efforts of Earl Warren alone, or a few of his elite colleagues). Those concerns spilled over into issues of criminal justice, and of rights to free speech and protest. The courts were deeply sensitive to any possible attempts by states to limit legitimate protests by civil rights movements, or to stigmatize them as Communist, and therefore subversive. Federal courts thus tended to limit the powers of states in issues of individual rights, and First Amendment matters generally.

So fast forward to 1966 or 1967, and imagine that the courts had not made these various decisions. In this hypothetical world, Vietnam protesters would assuredly have encountered the heavy hand of state sedition laws, which would at least have kept them tied up in the courts for years. Nelson meant that they faced no such danger. The federal government could in theory have charged dissenters with sedition, but any such charges would have profoundly alienated the liberal wing of the Democratic coalition, and the Warren Court was becoming ever more liberal. At the height of the war and the anti-war campaign, the decision in Brandenburg v. Ohio, 395 U.S. 444 (1969) vastly increased First Amendment rights, declaring that government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That reversed half a century of ever-tightening restrictions on political speech, dating back to the repression of the First World War.

Meanwhile, HUAC and like bodies had entirely lost their powers to terrify. In 1967, the Committee foolishly subpoenaed flamboyant anti-war activists Jerry Rubin and Abbie Hoffman, who vastly enjoyed the opportunity to create a public circus.

Taken together, the activism of the Supreme Court and the gutting of congressional committees meant that anti-war militants in 1967 faced none of the penalties that would have crippled their work in 1918, or 1943, or 1951 (or indeed, 1863). They could thus propagandize and demonstrate without fear of legal consequences. As dissent about the war naturally grew, it could take the most overt and aggressive forms. That even extended to the flying of NLF/Viet Cong flags in street demonstrations, which even many liberal Americans found appalling. But no effective legal apparatus remained to prevent even the most outrageous expressions of protest.

Without understanding the legal dimensions, and the reaction to the earlier Red Scare, you can’t understand popular responses to the Vietnam war, and specifically the success of the anti-war movement. It is a critical, and untold, part of the story. It also explains what made the Vietnam experience different from previous American wars.

 

 

 

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