Female symbol of America holding torch in front of Bill of Rights and standing on "150 years" pedestal. Pastel drawing by Howard Chandler Christy, 1941. Library of Congress.

Balancing Acts

Claiming Rights in America

With the Supreme Court ready to rule any day now on gay marriage rights, Brian, Ed and Peter wade into America’s long history of struggles over rights. How have Americans claimed, framed and changed their rights over time? Where do we think “rights” come from anyway… is it God, nature, the government, the founding documents? Join the hosts as they explore moments from the past that reveal how Americans have asserted their rights and — sometimes in the same breath — denied them to others. We have stories about freedom suits, religious liberty, labor law and… smoking rights?

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ED: This is BackStory. I’m Ed Ayers. In the flag-waving fervor of World War II, the Supreme Court came to the defense of Americans who refused to pledge allegiance. The court’s logic?

FEMALE SPEAKER: When we start punishing dissenters for such mild behavior as refusing to salute, we wind up eliminating the dissenters themselves.

ED: Over the years, group after group has laid claim to the rights spelled out by the founders. Some of those claims have been more of a stretch than others. Take, for instance, big tobacco’s attempt to prevent the creation of non-smoking sections.

FEMALE SPEAKER: The smokers, because of the way smoke wafts, are asked to sit-in the back of the bus, which is, of course, too tantalizing of an image for the tobacco industry to simply let pass by.

ED: Coming up on BackStory, a history of rights claims in America. Stick around.

PETER: Major funding for BackStory is provided by an anonymous donor, the University of Virginia, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations.

ED: From the Virginia Foundation for the Humanities, this is BackStory, with the American Backstory hosts.

BRIAN: Welcome to BackStory. I’m Brian Balogh.

PETER: I’m Peter Onuf.

ED: And I’m Ed Ayers. Our show begins today with a love story. The narrator– a man named Tony Sullivan. The scene, Los Angeles, 1971.

TONY SULLIVAN: I met Richard Adams in a bar called The Closet, appropriately enough, on Sunset Boulevard. I was traveling through the United States as a tourist, and was on my way to England, and then back to Australia.

ED: The very next day, Sullivan and Adams took a road trip. It would alter the course of their lives forever.

TONY SULLIVAN: He took me for a drive along the Pacific Coast Highway. And I remember on that journey, I whistled the theme for Black Orpheus, where Orpheus sings up the sun in the morning. And by the end of that night, we were much more involved. And I stayed for several months, before going on to England.

ED: Sullivan soon returned to LA, and moved in with Adams. They were in love, and wanted to be together. But this was the 1970s, and so that was easier said than done.

TONY SULLIVAN: The immigration laws did not allow gay and lesbian people into the country as tourists, did not allow them to get green cards. And if they had been naturalized, would strip them of naturalization, and expel them from the country.

PETER: For a few years, Sullivan played a game of cat and mouse with border agents, slipping in and out of Mexico to renew his tourist visa, and worried he might one day be deported back to Australia. Then, in the spring of 1975, Sullivan and Adams got some extraordinary news. The county clerk in Boulder, Colorado had started issuing marriage licenses to gay couples. They quickly realized that this could be their ticket to a green card for Sullivan.

ED: And so the couple flew to Boulder, and got a marriage license– one of six that this clerk would issue before state officials shut her down. Adams and Sullivan filled out the paperwork, and were married on April 21, 1975, in a hallway outside the clerk’s office.

TONY SULLIVAN: Richard petitioned, the very same day, for the immigration to grant me residence as the spouse of a US citizen. And the immigration, in the following November, responded with a decision, which said, you have failed to establish a bona fide, a marital relationship between two faggots– that’s their words.

BRIAN: I God– what was your reaction?

TONY SULLIVAN: First of all, disbelief. I rang the immigration director’s office, and confirmed that, indeed, it was a real letter from the immigration, not some fraud. And we decided to release it to the press.

ED: Outraged by their treatment, Adams and Sullivan decided to sue the government. Never before had a gay couple sought to have their marriage rights upheld in an American court of law. And Sullivan said he knew their fight would be as political as it was personal.

TONY SULLIVAN: I wanted to stay with Richard. We were standing up against an injustice. But our goal was to be able to stay together, and also, we had realized, there was an injustice. And yes, we did want to correct the injustice that existed for all gay and lesbian people.

PETER: But court after court rejected their claims. And after 10 years, their case ended in a federal appeals court. Writing for a two-one majority, a judge there noted that separating long time partners could cause, and I’m quoting, “personal distress and emotional hurt.” Nevertheless, he ruled against the couple on a narrow reading of immigration policy. That judge’s name? Anthony M. Kennedy.

ED: That’s right, the same Anthony Kennedy who would go on to become a Supreme Court justice, and the author of the decision that overturned the Defense of Marriage Act. Kennedy’s ruling basically adopted the same logic that Sullivan and Adams had advanced decades earlier. Here he is, in 2013, reading his decision.

ANTHONY KENNEDY: No legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection, and treating those persons as living in marriage as less respected than others, section three of DOMA is in violation of the Fifth Amendment. This opinion–

ED: Richard Adams didn’t live to hear that news. He died of cancer a few months earlier, with Tony Sullivan at his side, in the LA apartment where they’d always lived.

PETER: When they lost their immigration appeal in 1985, Sullivan and Adams left the country. But they soon snuck home, living on in what they called the immigration closet. Sullivan worked under the table, avoided traveling on airplanes, and never collected Social Security. But today, at the age of 73, and armed with a ruling from the judge who once rebuffed him, Sullivan is once more asking for a green card. This time, as the widower of an American citizen.

TONY SULLIVAN: In the last couple days of his life, we had a couple of very important conversations. One about how much we loved each other, and one about the way that the fight for marriage equality was going. And there was other conversation I had, and that is, I said, Richard, we won. We won– they never managed to separate us.

And he looked at me, and he thought about it. And he said, you’re right. We won.

ED: Any day now, the Supreme Court is expected to weigh in once more on gay marriage. Supporters of one side in this latest battle say it’s the right of states and their citizens to decide, through the democratic process, who can and cannot marry. The other side, meanwhile, is hoping that Kennedy and the rest of the court recognize the right of gay and lesbian couples to be treated the same as everybody else.

TONY SULLIVAN: The fact is that we take no rights away from anyone. All we ask for is an expansion of rights to ourselves. And it’s a right that we deserve as human beings.

PETER: Tony Sullivan may be Australian by birth, but his appeal for an expansion of rights to a group with whom he identifies taps into a very long tradition here in America. For the rest of the hour today on BackStory, we’re going to be exploring that tradition. We’ve got stories about a range of struggles over rights– struggles that involve slavery, public education, even cigarette smoking. As we’ll hear, resolving these skirmishes has often meant weighing one set of rights claims against another.

BRIAN: When we think about rights today, we tend to think about the Bill of Rights. And we take for granted protections against any level of government– local, state, and federal. But that’s not what the founders had in mind. They were concerned specifically about overreach by the federal government. And it wasn’t until the 1940s that the Supreme Court started considering those first 10 amendments in light of the actions of states. One of the cases that helped forge this transformation focused on, of all things, the Pledge of Allegiance.

ED: In 1935, a pair of siblings named Lillian and William Gobitas were expelled by their Pennsylvania school for refusing to recite the pledge. They were Jehovah’s Witnesses, and as such, had been taught that saluting the flag of any government amounted to idolatry. The family sued, arguing that their religious freedom had been violated. The case worked its way up to the Supreme Court, which in 1940 ruled eight-to-one against the Gobitas family.

BRIAN: Historian Sarah Barringer Gordon has written about this case. And she points out that the author of the majority opinion, Justice Felix Frankfurter, had been born into a Jewish family in Austria.

SARAH BARRINGER GORDON: What he said was, this is the way you attach a child to the United States. This kind of ritual– this kind of ritual, engaged in, with other children, in allegiance to a powerful symbol, such as the flag, was what tied Americans together, and made them a nation.

BRIAN: So it was the state’s right to promote citizenship among children?

SARAH BARRINGER GORDON: Exactly. And it’s fair to say that, in the buildup to the Second World War, there was a great sense of danger to the country. And most states enacted mandatory flag salute rituals to do just that.

BRIAN: The ruling set off a wave of violence against Jehovah’s Witnesses, who were accused of being unpatriotic in a time that demanded national unity. But a mere three years later, the court agreed to hear a case with a set of virtually identical facts. And in West Virginia Board of education v Barnett, the court reversed its earlier ruling, siding this time with the Jehovah’s Witnesses, on freedom of speech grounds. I asked Gordon about this remarkably rapid turnaround.

SARAH BARRINGER GORDON: In Supreme Court time, three years is a nanosecond. Very dramatic. It is fair to say that, when Frankfurter handed down his opinion, several of his clerks were very distressed by what had happened. And over the next couple of years, justice after justice gave hints that they might like to reconsider the opinion. In part, this was motivated by the violence around the country that embarrassed the United States and its officials.

Also though, the conduct of World War II made an enormous difference. By 1943, it had become clear that something terrible was happening in Germany. Nobody quite knew the extent of the Holocaust, but it was clear that Hitler was engaged in widespread violence against minorities– not only Jews, Jehovah’s Witnesses. 10,000 were sent to concentration camps in Germany. So this was–

BRIAN: Because they refused to–

SARAH BARRINGER GORDON: Heil Hitler. Exactly, exactly. So partly, the court and the country had learned, from the violence at home and the violence abroad, directed against minorities of all kinds, especially religious minorities.

BRIAN: Did the decision– who wrote that decision, and did it refer explicitly to either what had happened at home, or what was going on in Germany?

SARAH BARRINGER GORDON: It was Justice Jackson, who was well known after the war for his important role at the Nuremberg Trials. Jackson referred both directly and indirectly– I think, in some of the most quoted and quotable language from the Supreme Court. The eloquence of the opinion is stunning. He said, once we start looking for unanimity in these ways, we achieve only the unanimity of the graveyard.

Really powerful, dark language. When we start punishing dissenters for such mild behavior as refusing to salute, we wind up limiting the dissenters themselves. That’s the road he saw. In a footnote, as well, he referred to the fact that the salute closely resembled the salute to Hitler. This was that a raised arm, but palm up salute, before placing the hand on the heart, where Heil Hitler was a palms-down, straight arm.

BRIAN: Is that how people used to salute?


BRIAN: And what was the reaction to this decision, which, in essence, was the opposite of Gobitas?

SARAH BARRINGER GORDON: So it’s very difficult for the Supreme Court to do such a thing, and hold onto its prestige and influence and respect around the country. And the Supreme Court clearly understood this. The decision was announced on Flag Day. So in part, this was about deference to considerations of the flag, as well as the conclusion that we don’t need to punish schoolchildren whose religion dictates otherwise– that small minority groups, who are not themselves violent, have the protection of the Constitution when they exercise their religion. And, I think, the deep desire among Americans to distinguish themselves from Hitler– to say, we are not like that– produced widespread satisfaction.

BRIAN: So this was a well-received decision.

SARAH BARRINGER GORDON: It was. The New York Times headline ran, blot removed.

BRIAN: And how do we get such a concern for individual rights at the very time that the state is growing? The product of the New Deal itself, and then of course, World War Two, and the Cold War that ensues. It strikes me as two different trends.

SARAH BARRINGER GORDON: It’s often said that war is the health of the state. And certainly, World War II was very healthy for the power and economy of the United States. Nonetheless, the Supreme Court– which had been, in the mid 1930s, in the business of overturning New Deal economic legislation– had really gotten out of the business of overturning such legislation, and very soon thereafter, sent hints through footnotes in economic opinions that it would begin to take the rights of discrete and insular minorities seriously, going forward. In other words, protecting constitutional rights against this very powerful new government.

BRIAN: So it’s because the state’s so powerful that the court said, we’ve got a new role here.

SARAH BARRINGER GORDON: Indeed it is. Indeed it is. It’s about what kind of government we want, given how large it’s going to be, and what the limits are we want to place on that power– an ongoing battle, one that’s never really over.

BRIAN: Sarah Barringer Gordon is a historian at the University of Pennsylvania. You can read more about this story in her book, The Spirit of the Law, Religious Voices and the Constitution in Modern America. Earlier in the show, we heard from Tony Sullivan, an artist, activist, and apartment manager in LA. His story is the focus of Limited Partnership, a documentary airing this month on PBS. You can find out more about it on our website, backstoryradio.org.

PETER: It’s time for us to take a short break. But stick around– when we get back, a court battle of epic proportions. The right to liberty takes on the right to property.

ED: You’re listening to BackStory. We’ll be right back.

BRIAN: We’re back, with BackStory. I’m Brian Balogh.

ED: I’m Ed Ayers.

PETER: And I’m Peter Onuf. Today on the show, balancing acts. We’re looking at the history of struggles over rights in America.

ED: And when you think about enslaved people securing their freedom, you probably think about the Underground Railroad, and the stories of fugitive slaves who fled north. But some slaves managed to liberate themselves not by running away, but rather by taking a stand in a court of law. These somewhat exceptional cases were known as freedom suits.

JEANNINE DELOMBARD: The idea of a freedom suit is that you are wrongfully enslaved, and you’re asking the court to recognize that you are a free person.

ED: This is Jeannine DeLombard, a professor at UC Santa Barbara. She explains that the logic behind a freedom suit was basically that of mistaken identity. For example, if a free person had been kidnapped– think about the plight of Solomon Northrup in the film 12 Years a Slave, for example– that was one basis for a case. But DeLombard says these cases often centered not on who a person was, but where they had been.

JEANNINE DELOMBARD: One of the main reasons for a freedom suit is people move around, right? People are asked– forced– to move around, to cross borders, all of those things. And that can be the basis for a freedom suit, that you’ve lived in a free territory, or free jurisdiction, a free state.

ED: This was known as the once free, always free doctrine. And to be clear, it didn’t apply to runways– only to enslaved people, carried over state lines by their masters. The basic idea was that owners forfeited their property rights by taking their slaves to a place where they weren’t considered property. And in the first half of the 19th century, one state in particular became a hot spot for these cases.

JEANNINE DELOMBARD: Missouri is completely surrounded by either free states, like Illinois, or free territories, like Iowa. And so Missouri, being this place that’s surrounded by free jurisdictions, places where slavery was not recognized, that became a really crucial basis for asserting your own freedom.

ED: Between 1812 and 1865, more than 300 freedom suits were filed in Missouri. The one we know most about involved an enslaved teenager in St. Louis, named Lucy Delaney. Delaney’s memoir, published decades after the fact, recounts how she and her mother, Polly Wash, dreamed of the day they would be free.

FEMALE SPEAKER: No schemes were too wild for us to consider. Mother was especially restless. Mother was always planning and getting ready to go. And while the fire was burning brightly, it but needed a little more provocation to add to the flames.

ED: That provocation came when Polly Wash was sold away and separated from her daughter. In 1839, she filed a freedom suit, claiming that one of her former masters had taken her to the free state of Illinois. While the court was still mulling the case, Polly Wash filed another freedom suit– this one on behalf of her daughter. The status of a child as free or enslaved was commonly accepted to follow that of the mother. So if Polly Wash had the right to be free, so did her daughter Lucy. Of course, their rights claims weren’t the only ones in play.

JEANNINE DELOMBARD: It’s been said that freedom suits are for, in some ways, the ultimate contest of the slave holder’s right to property– which is incredibly central to Anglo-American law, not just for slaveholders, but for all of us– still today, that as a property holder, you have been a remarkable array of rights. And that, the freedom suit, seems to bring up this incredible conflict between the individual property owner’s rights, which are often quite extensive, with the right to liberty, which is also a crucial bedrock in Anglo-American law, going back to the English Common Law.

ED: And yet, says DeLombard, it was always clear which of those rights reigned supreme. As an example, she points to a speech by Lucy’s lawyer, Edward Bates, who would go on, incidentally, to serve as Abraham Lincoln’s Attorney General.

JEANNINE DELOMBARD: There’s this fascinating moment where he says, gentlemen of the jury, I’m a slaveholder myself. But thanks to the Almighty God–

MALE SPEAKER: I’m above the base principle of holding anybody a slave that has as good rights to her freedom as this girl has been proven to have. She was free before she was born. Her mother was free, and no free woman can give birth to a slave child, as it is in direct violation of the Laws of God and man.

JEANNINE DELOMBARD: And that sounds wonderful, right? But the problem is the logic of saying no free woman can give birth to a slave child, as it is in direct violation of the Laws of God and man, is to imply that all kinds of enslaved women can, and they’re not offending the laws of God or man. And so here, what he’s saying, he has no problem here with slavery– with holding slaves. The problem is holding the wrong people as slaves.

ED: In the end, Lucy and her mother did win their freedom, as did about half the claimants in the Missouri freedom suits. But DeLombard says it would be a mistake to see freedom suits as a challenge to the entire institution of slavery.

JEANNINE DELOMBARD: Because the logic of the freedom suit says, it’s fine. There is something called slavery. It’s absolutely fine for most people to be enslaved. This individual person should not be enslaved. And so freedom suits reinforced the property rights of all slaveholders against people who hold their slaves, perhaps you might say, irresponsibly, by taking them into places where they’re not recognized as property, and then creating this situation where there can be challenges to their rights as property holders.

ED: Jeannine DeLombard is an English professor at UC Santa Barbara. If you want to read sections from Lucy Delaney’s memoir, From the Darkness Cometh the Light, you’ll find them at backstoryradio.org. hosts, I’m a little puzzled about something. Maybe you can help me figure it out. Seems to me that we’re living in the golden age of rights, right now. It seems to me that more people have more rights in more facets of their life than we’ve ever had before.

You know, whether it’s the right to vote for African Americans, or its right to a living wage, or right to marry– over and over again. But the problem is that those rights only come if the government gives them to you– either the courts or Congress or the president. But in order to get them, you have to say, the government is deeply flawed in some way.

BRIAN: Yeah, because they didn’t give you any rights.

ED: Yeah, exactly. So, I mean, 40 people get traction in this kind of slippery environment.

PETER: Yeah, well I think the key, Ed, is idea of progress– that the government may be defective now, but it can be better in the future. And one of the measures of its progressive improvement is that more rights claims are recognized and enforced. I think it’s a nice story, and it’s the story we tell about American history.

But if you go back to the very beginnings, the original right claims, of course, are against the legitimate government of the time, and it’s not just that the British imperial government is flawed– it’s fundamentally wrong and despotic. And you have to kill the King. So, here we have–

ED: You need less government to have more rights, is what you’re saying.

PETER: That’s right. This is where the idea of the stative nature, writing constitutions, beginning the world anew– that’s what Americans cherished, in the revolutionary idea that somehow, they were starting from scratch, and they could get it right. They could respond to the higher call from nature and nature’s God to create a government that would be truly representative, that would be a people’s government, that would be the great enforcer of rights.

ED: Nature’s God. What do they mean by that?

PETER: Well they mean that there’s some kind of higher law, against which you measure all governments. Now that’s great when you’re revolutionaries, and you’re looking for reasons to destroy an old government, but then it could be turned against you. And I think that is the American story.

BRIAN: And Peter, is that where individual rights come from? From that Nature’s God, from that higher law?

PETER: That’s right. And the real challenge in the revolutionary period to get people out there fighting and dying for the common cause. And you do it because everything is at stake for them. It has to be deeply personal. But here’s the paradox– it’s deeply personal, and a social cause. They’re mobilizing to make war, and they are, in effect, creating a new government, and dying for it, in order to overthrow an old one to establish their new regime, which will presumably protect their rights.

ED: And as soon as they make this new government, then other people are saying, whoa, you’ve compromise way too much. Nature’s God would say there shouldn’t be slavery.

PETER: That’s right.

ED: But the slave holders say, but, that Constitution grants me these rights in property. And the Civil War is the result.

PETER: Well, Ed, they’d go beyond that. They’d say, it’s not just the Constitution, because it’s both Southerners and Northerners rejecting the Constitution– that is, the rights that have been codified, written down. And they’d say, we have a property right in human beings, in our slaves, because it’s a positive good. It’s meant by nature. They’ll still use God– that’s why religious leaders are so crucial to the Confederate mobilization, because God is on their side, too. So this notion of a higher law can cut both ways. And I think that’s the story of rights in America.

ED: So we have this tough situation. The Civil War gives us the 13th Amendment to end slavery, the 14th Amendment to grant citizenship, the 15th amendment to grant voting rights. And it’s followed by a great period of inequality, injustice. And what happens? The Supreme Court says, hey, that 14th Amendment– that’s really about corporations. If you find who steps up to take advantage of these new powers, ironically, it’s people who aren’t even people. It’s corporation. So–

BRIAN: Yeah, they say the government’s flawed, because we’re not being given our rights– corporations.

ED: Exactly. And there’s a great sense that maybe this system is so flawed that we can’t really use it anymore to advance social justice. And that’s maybe why there’s such a long period without amendments.

BRIAN: Yeah, but when we get back to amending the Constitution, Ed, women say, you know, what kind of government is this, that can leave out half the population? By the way, half the population that has been training men to vote, and be soldiers, and be good citizens for centuries. We, too, are good citizens. We are absolutely entitled to the right to vote.

This government is flawed. We’re going to fix with the 19th Amendment. And then, we’re going to turn to that government to enforce that set of rights.

ED: Yeah. And it starts to mean, Peter, that they’re appealing to the rights of the Declaration of Independence that you were talking about– Nature’s God. Not only are they saying are we the better half of the population, training up all the men, but it’s also the case that all people, regardless of arbitrary things such as their gender, should have rights.

PETER: Well, it sounds as if we’re moving toward this golden age that Ed started with, in which the government– the great enforcer of rights– is flawless. Well, somehow it doesn’t feel that way, does it? And why doesn’t it feel that way?

I think we should go back to the original premise, that if we think of rights not as coming from the government, but some claims that we’re making against the government, then I think that sets up a different dynamic. And we still have a sense, this deep unease, that we’re not able to act together, collectively, and control the government in ways that serve our purposes and larger purposes. And that’s deeply frustrating. And it leads to apathy, and turning away from government, as if government were the problem, not the means of addressing our problems.

ED: So you find that, both from the left and the right, people feel the same way? The Tea Party says the government’s the problem. The people on the far left are saying, there are human rights that actually transcend all this compromised machinery of government. That’s what we need to appeal to. So it strikes me we’ve kind of come full circle.

This is just the same issue that the founding fathers were wrestling with. You have to build a machine to enable rights. But as soon as you build a machine, it’s flawed. It’s an inadequate conveyor of the nature’s bestowal of rights. Seems to me that we’re kind of stuck in sort of a box.

If you’re just joining us, this is BackStory, and we’re talking today about the history of rights claims in America. Now, as we’ve just been discussing, we usually think about our rights as things the government can’t take away from us. These are often referred to as negative rights.

BRIAN: But when we consider the protections laid out in the state constitutions, we get a very different version of rights, because those documents are chock full of positive rights– things like the right to an eight hour day, and a minimum wage. One of the first was a right to free education. It showed up in the Massachusetts constitution, all the way back in 1780.

That clause would provide the model for the common school movement of the 19th century. That was the northern-based movement that argued that citizens of all kinds were entitled to a good public education. I sat down to talk about positive rights with historian Emily Zackin, who has written about the rights we tend to overlook.

EMILY ZACKIN: So very early, before we even have a Bill of Rights, saying the government should stay away– no searching our houses, no quartering troops in our homes– state constitutions are saying things like, we have to cherish education. We have to support schools and towns.

BRIAN: As the common school movement spread across the nation, did it cite Massachusetts’ constitutional provision?

EMILY ZACKIN: It did, but they innovated. They added many different kinds of provisions to state constitutions, to deal with the particular problems of the state that the movement was in. So actually, the Massachusetts provision was copied into a few early constitutions but constitutional provisions about education change over the course of the 19th century. So they begin to include provisions about taxation. So in Pennsylvania, in the late 19th century, the common school movement gets into the new state constitution– a provision that says, the legislature will spend a million dollars annually on education.

BRIAN: And that dollar amount is written right into the–

EMILY ZACKIN: Right into the Constitution. And another reason people think these provisions aren’t important is that they’re detailed like that. They associate that sort of number, dollar amount stuff with statutes. And what I say is, there was a real problem here, that needed to be solved. Legislatures did not want to raise these taxes. They didn’t want to spend this money. And people looked at constitutions as solutions to that problem. They said, well, if we’re going to have trouble getting money from the legislature, we’re just going to have to put in the Constitution a mandate to spend this much money every year.

BRIAN: Do you think the founders imagined the very role for states that you’re describing? In other words, they did focus on the Bill of Rights, when they got around to amending the Constitution, knowing that– when it came to positive rights– the states would answer the bill.

EMILY ZACKIN: I do think that. I think it’s actually even– I would reverse it. So I think rather than thinking, well, we’ll set up the federal government this way, and then states can do the other stuff. States were already doing that stuff–

BRIAN: They were there first, after all.

EMILY ZACKIN: They were there first, right. And, I mean, states were governing. And so the Bill of Rights is a response to a fear about adding an additional federal government, on top of that. And that’s why it says, this federal government better stay really small. But we’ve gotten confused, since. Especially post- New Deal, in the 20th century.

When we look at the Bill of Rights, people think, oh, it must be that Americans really want government– all government– to stay very small. Look at all these provisions about keeping government away from us. And I say, no, no, no. Read that in the context of already– there are already governments existing, governing, when that’s written. That’s just about the federal government.

BRIAN: Right. I think most people say, oh, the US Constitution, the Bill of Rights. I’ve heard of that. That’s kind of the major league of rights.

But you’re saying that, especially in the 19th century and at the founding, it was the state constitutions that called the shots. Those were, in many ways, the major leagues. And this US Constitution is added on alongside it.

EMILY ZACKIN: Yeah– to understand the restraints, the parts of the Bill of Rights that say, government should do less. To understand that is really saying the federal government should do less, not, we don’t want any government. Because we had these governments.

BRIAN: Emily Zackin is a political scientist at the Johns Hopkins University, and author of Looking for Rights in All the Wrong Places.

PETER: It’s time for another break. When we get back, a Hollywood mogul goes to the mat for his right to work.

BRIAN: You’re listening to BackStory. We’ll be back in a minute.

PETER: This is BackStory. I’m Peter Onuf.

ED: I’m Ed Ayers.

BRIAN: And I’m Brian Balogh. Today on the show, we’re anticipating a ruling in the big marriage rights case of the Supreme Court, with an hour about the history of rights claims in America. We’re going to turn now to another rights struggle that has been in the news recently. And that’s the right to work.

PETER: Right to work laws started cropping up in the 1940s, as a sort of backlash against the National Labor Relations Act of a few years earlier. That law allowed labor unions to create so-called closed shops, where workers were required to join the Union. But these new state laws said, no, workers had the right to work for an employer, regardless of their union status.

BRIAN: In 1944, a proposed right to work law showed up on the California ballot. It was known as Prop 12, and quickly found a very vocal supporter. Someone you’ve probably heard about in a different context– Cecil B. DeMille. The wildly famous radio host and filmmaker, known for blockbusters like The Ten Commandments was a union member. He had joined the American Federation of Radio Artists, or AFRA, to work in radio.

But when AFRA demanded that each of its members contribute $1 to fund a campaign against Prop 12, DeMille was outraged. He refused to help support a lobbying effort he didn’t even agree with. And so, the Union suspended him.

CECIL DEMILLE: As a result of that suspension, I lost my right to work in radio and television.

BRIAN: This is from a right to work propaganda film DeMille made, years later.

CECIL DEMILLE: The loss of my radio job did not bankrupt me, but it woke me up with a terrible jolt to my responsibility, and to your responsibility, to work for legislation that will protect men and women to whom the loss of a job might mean disaster. In the near–

BRIAN: Sophia Lee is a legal historian at the University of Pennsylvania, who’s written about the campaign DeMille would go on to wage. It began with a lawsuit, accusing AFRA of violating his liberty of contract. That’s a legal doctrine, protecting the right of workers and employers to enter into an agreement, without the interference of union bosses. But Sophia Lee says that he quickly realized his lawsuit would face an uphill battle in the pro-labor courts of the time. And so, he took his battle to the court of public opinion.

SOPHIA LEE: What he did was he used his story– a story in which he was jut this humble man who didn’t want to pay his dollar, and didn’t want to sell out his constitutional rights. And he took that story to the airwaves. One of his conservative allies bought him, on Saint Patrick’s Day, 1945, a full hour of national radio time. Newspaper editorials printed and told his story.

And so, what DeMille quite modestly set out to do was change the political spirit of the time to one that was more anti-labor, with a very specific goal of an outcome that would, down the road, change the way the Supreme Court and the courts of the land understood the Constitution.

BRIAN: Did DeMille or his lawyer cite any other rights in their challenge to the union?

SOPHIA LEE: So one of the interesting things that happened to DeMille’s argument over the course of the 1940s was it changed. I mean, every single court– the trial court, the court of appeals– all said, I’m sorry Mr. DeMille, but your rights have not been violated– that DeMille remained perfectly free to support, financially, the right to work law, to vote for the right to work law. So DeMille, I think, again, being such a sharp salesman and a guy who knew how to package a winning message, started to shift his claims more in line with First Amendment minority rights claims.

So he still claimed a right to work. But he also started to talk in a way that shifted from, there was this great mass of people who were like DeMille, and there was this small minority of bad union leaders, who they were up against. He started flipping that rhetoric to there being this big mass of bad union people out there, and this small minority of people like DeMille, who needed to stand up to them. So he also kind of more broadly shifted to minority rights, kind of rhetoric.

BRIAN: Sophia, that proposition 12 that DeMille supported– one that would have imposed a right to work law in California– did that pass?

SOPHIA LEE: It lost. And to this day, California does not have a right to work law. It was one of the first states to try to pass one, and it is one that has never done it since, though the law has spread steadily in the South and upper Midwest, over the course of the 1940s and 1950s.

BRIAN: Sophia, if you step back, it seems like DeMille lost, in a narrow sense, here. He certainly lost in the courts. Yet, you talk about all this cultural work he does, or political culture– trying to change public attitudes, towards unions. Did he succeed in the long run?

SOPHIA LEE: I think he succeeded quite dramatically. And I think you can see the sort of short term effects in this cultural shift going on by the fact that, in the 1946 election cycle, Republicans sweep control of Congress. And one of the very first pieces of legislation they take up in 1947 is a number of measures to reform the National Labor Relations Act that conservatives had been trying to get pushed in Congress for about 10 years, at that point. And one of the people called to testify about these amendments is Cecil B. DeMille, who gives what he calls, his brief, on the right to work to Congress. And one of the provisions of that law is that it bans the closed shop.

So after 1947, that particular form of union security agreement is no longer allowed. The other thing it does is it specifically says that if states want to pass right to work laws, and bar all forms of union security, they have the legal room to do that, as well. And that– the adoption of that law– is sort of a green light. And in its wake, a number of states adopt these right to work laws. So that’s one way he was successful.

BRIAN: Yeah, that legislation is the Taft-Hartley Act. And how many states passed right to work laws in the wake of the Taft-Hartley Act of 1947?

SOPHIA LEE: Well, if you skip ahead to, say, the mid 1950s, by– I think 1955, there were somewhere between 17 and 20 right to work laws across the country. And from zero to nearly half the states was a pretty dramatic transformation, in what was really just a little over 10 years.

BRIAN: Sophia Lee is a historian at the University of Pennsylvania Law School. Her book is The Workplace Constitution, from the New Deal to the New Right.

PETER: If you’re just joining us, this is BackStory. We’re talking today about the tradition of Americans making claims to the things they want, and the language of rights. We’ve talked about marriage, we’ve talked about religion, we’ve talked about labor. But our show wouldn’t be complete if we didn’t talk about smoking.

ED: That’s right– smoking. This story gets going in the 1970s. At the time, there wasn’t a lot of science linking secondhand smoke to health problems, but there were a growing number of people vocal about having to sit in restaurants, shop in stores, and travel in planes surrounded by a noxious haze of other people’s making. In 1970, Congress passed the Clean Air Act. Finally, thought the anti-smoking crowd, a law that codified their right to breathe clean air. And they framed their case for designated non-smoking sections in terms of rights– civil rights, in fact. Was there any difference, they asked, between being unable to sit at a lunch counter because you’re black, and being unable to sit at a lunch counter because it was clouded with other people’s smoke?

BRIAN: Of course, as we’ve heard today, where there are rights claims, there tend to be equal and opposite rights claims. Historian Sarah Milov has written about big tobacco’s counterattack. She says, it was in part a slippery slope argument– that smoking restrictions would pave the way for all manner of infringements on individual rights.

SARAH MILOV: And the image that the tobacco industry drew upon was a, quote, “shower adjuster.”

BRIAN: Hold on– shower adjuster?

SARAH MILOV: What a shower adjuster was would be somebody who knew what temperature your shower should be at, and so this government bureaucrat would come into your bathroom while you were in the shower, and adjust the temperature for you, because he knew best. Just like a government entity deciding it knew best how to regulate the air.

BRIAN: But Milov says this rights talk went even further. Anti-smokers may have seized on civil rights imagery, but smoking’s defenders claim that their side was much more in line with that earlier rights struggle.

SARAH MILOV: Smokers were, after all, a minority of Americans.

BRIAN: Ah, I see where you’re going.

SARAH MILOV: You’ve got the language of minority rights. You’ve got the language of segregation of smokers and nonsmokers. And you have the image of smokers literally being asked to go to the back of the bus– which is, of course, too tantalizing of an image for the tobacco industry to simply let pass by. Actually, the president of the tobacco Institute, at the time, speaks in 1975, and says the trend toward smoking restrictions– if unchecked– will result in millions of Americans becoming second class citizens, relegated to the back of planes, trains, and buses, restricted in their access to public places, and limited in their employment opportunities. It seems incredible that many politicians who support and fought for civil rights are willing to erect new barriers that divide our people into opposing camps on the basis of smoking or non-smoking.

BRIAN: That’s incredible

SARAH MILOV: Well it also speaks to the preferred method of resolution, that the tobacco industry hoped for, which was– of course– not government intervention, but a return to mere civility and common courtesy.

BRIAN: Right. So how did big tobacco play out their civil rights arguments?

SARAH MILOV: Well aside from pointing out all of the ways in which smokers were being constructed as second class citizens, they actually recruited a fairly prominent civil rights attorney, named Charles Morgan, into the fight. And Morgan gets involved in a dispute in the city of Newport News, Virginia, over that city’s anti-smoking ordinance, which just said that there had to be a non-smoking section in restaurants.

He argued that this violated basic constitutional rights– the right to property, the right to freedom of association– by not allowing the commingling of smokers and non-smokers– freedom of speech, and that the uneven enforcement of anti-smoking laws violated restaurants’ right to equal protection.

BRIAN: Is anybody in the government advocating for non-smokers?

SARAH MILOV: Yeah, so nonsmokers kind of find their greatest champion in the Surgeon General, a man named Jesse Steinfeld. And in 1971, on an anniversary of the 1964 Surgeon General’s report that very famously connects smoking to cancer, argues that it’s time for a non-smoker’s bill of rights. And he calls non-smokers the great silent majority of Americans.

BRIAN: So he was adapting Nixon’s use of his base, as he saw it– the silent majority of regular Americans– and applying it to millions and millions of non-smokers.

SARAH MILOV: Right. And Steinfeld would frequently– and any time he spoke about this, he would be at pains to point out that the vast majority of Americans– over 50% of men and over 70% of women– were nonsmokers, so that the laws should reflect their rights, just as much as the right of smokers to inhabit space, however they saw fit.

BRIAN: So in a way, this is almost the push back against minority rights. We’ve paid too much attention to the rights of minorities– it’s a time to assert, or reassert, the rights of those quiet Americans, who, as Nixon would put it, pay their taxes, go to work, are good family people. We need to hear from them– we need to protect them.

SARAH MILOV: Absolutely. But at the same time, it’s an acknowledgement that the word right has become a tool– a very powerful tool, with which even everyday Americans, who pay their taxes, who go to work, who don’t smoke– you can use to get the government to act on their behalf. Though an addendum to this story is that Steinfeld was asked to resign at the beginning of Nixon’s second term, apparently under pressure from the tobacco lobby.

BRIAN: Well, some minorities have special rights. Thank you so much for joining us today on BackStory.

SARAH MILOV: Thank you.

BRIAN: Sarah Milov is a historian at the University of Virginia. She’s working on a history of tobacco in the 20th century called Growing the Cigarette.

MALE SPEAKER: [SINGING] I’ve got a right to sing the blues. I’ve got a right to feel low down.

PETER: That’s where we’re going to leave things today. But we’d love to keep the conversation going online. Let us know what you thought of today’s show. Share your thoughts on the shows we have in the works. We’ve got one about satire, one about fire, and yet another about the history of happiness.

You can leave a comment at backstoryradio.org, or send an email to backstoryradio@virginia.edu. We tweet @backstoryradio. Whatever you do, don’t be a stranger.

MALE SPEAKER: [SINGING] I’ve got a right to sing the blues. I’ve got a right to moan and sigh.

BRIAN: Today’s episode of BackStory produced by Tony Field, Nina Earnest, Andrew Parsons, Kelly Jones, Emily Gattick, and Robert Armengall. Jamal Millner is our engineer. We had help from Henry Wiencek.

ED: BackStory’s executive producer is Andrew Wyndham.

PETER: Major support for BackStory is provided by an anonymous donor, the University of Virginia, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations. Additional funding is provided by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment, and by History Channel– history, made every day.

FEMALE SPEAKER: Brian Balogh is Professor of History at the University of Virginia. Peter Onuf is Professor of History, Emeritus, at UVA, and senior research fellow at Monticello. Ed Ayers is President and Professor of History at the University of Richmond. BackStory was created by Andrew Wyndham for the Virginia Foundation for the Humanities.

MALE SPEAKER: [SINGING] I’ve got a right to sing the blues.

MALE SPEAKER: BackStory IS distributed by PRX– the Public Radio Exchange.