Introduction
This study examines the loss of previously held rights by certain groups and the subsequent legal mobilization of those “demoted” groups. It explores a unique window in history: the plummet in status during WWI of the Germans/German-Americans and Socialists in southeastern Wisconsin. These two groups were so thoroughly mainstreamed that their unique culture—for example, German-language clubs—had become hegemonic, and these groups held formal power throughout southeastern Wisconsin, holding such positions as mayor and parks commissioner. With the USA’s entry into WWI, both groups suddenly lost status.
Often, social scientists study groups that gain formal and informal power. These groups lost power and so this relative uniqueness makes these groups especially fascinating. The Milwaukee-area Socialists and German/German-Americans resisted both de facto and de jure marginalization by challenging the vilification of those identities, by continuing the conventional use of the law even when futile, and by expressing their protest through peaceful means using those very identities that were being used to oppress them. Because of the pervasiveness of their previous formal and informal power in the Milwaukee area, these groups’ fallen status was especially stark.
The struggle of these overlapping groups can be exemplified by the issues faced by Victor Berger, a German-speaking Austrian immigrant and leader of the Milwaukee Socialists. As a newspaper editor and U.S. Representative, he held much formal power. As a prominent member of the Socialists, he also enjoyed substantial informal power.
Yet, as the USA entered WWI, he lost both types of power. Berger was sentenced to federal prison for anti-war editorials that, in purportedly harming the war effort, violated the Espionage Act. His newspapers were denied most US postal mailing rights. Elected in 1918 as the U.S. Representative of the Fourth District of Wisconsin, the House refused to seat him while his conviction under the Espionage Act was on appeal.
Berger’s supporters—other Socialists and Germans/German-Americans—came to his support: Some offered their homes’ property deeds to post his substantial bail to keep him out of prison while his case was appealed. A network of Milwaukeeans hand-delivered mail for the newspaper. He was reelected in a special election by the largest vote he ever received before or after.
In reaction to their mistreatment by the law, the relationship of Socialists and Germans/German-Americans to the law changed. Their marginalized treatment left them with a sense of eroded justice on the part of the government. Unlike other groups with little status before the law, they did not abandon action, nor embrace violence. They utilized legal and peaceful extralegal strategies; their nonviolent resistance was possible because they embraced the very identities these government actions were marginalizing. Analysis of this historical episode advances present-day understanding of legal consciousness and legal mobilization by increasing our understanding of how marginalized groups might still rely on their rights even as government institutions and actors deny them those rights.
Establishment Pillars
In southeastern Wisconsin at the turn of the last century, Germans, German-Americans, and the Socialists held considerable political power and social esteem. They served in elected and appointed positions, from parks commissioner to mayor to school board (Abing Reference Abing2017; Janik Reference Janik2010; Levin Reference Levin1971; Murray Reference Murray1964). Cultural and academic German institutions and Socialist organizations were ensconced within mainstream culture, ingrained as admired aspects of Milwaukee society. However, this was before WWI.
German Identity
In discussing the vibrancy of German-American communities across the USA during the 19th century, Luebke explains:
As the largest non-English speaking ethnic group in nineteenth-century America, the Germans had the numbers to permit a rich range of societies reflective of German heterogeneity. Moreover, as the size and vigor of ethnic voluntary associations increased, so did their capacity for the perpetuation of ethnic identification (1974, 247).
Nowhere was this more true than in Milwaukee (Beck and Zeidler Reference Beck and Zeidler1982; Ortlepp Reference Ortlepp2003; Weinberg Reference Weinberg2005). Milwaukee and the surrounding area were heralded as the “German Athens” for all the German-dominant cultural institutions (Ameringer Reference Ameringer1940). Many institutions and organizations were exclusively German (Capozzola Reference Capozzola2010). The New York Times even called Milwaukee “as Germanic a city in some respects as Berlin” (November 12, 1919).
By the turn of the century, 34 percent of Milwaukee’s residents were of German descent. Among these, the greatest proportion were of Prussian ancestry, followed by Bavarian, Saxon, Hanoverian, and Hessian (Conzen Reference Conzen1976). Immigrants from German states had been especially welcomed—both informally by German-language groups already established and formally by local governments soliciting German immigrants. Milwaukee and other municipalities distributed maps in many German cities to provide specific instructions in German on how to navigate to Milwaukee and elsewhere in Wisconsin. Once in Milwaukee, German immigrants were embraced by a plethora of German-language institutions offering them entertainment, fraternity, and religion (Abing Reference Abing2017; Gurda Reference Gurda2018; Pifer Reference Pifer2017).
Milwaukee Germans not only had numbers, but culturally dominated local society (Abing Reference Abing2017). For example, noted revolutionary, politician, and reformer Carl Schurz described Milwaukee when he first immigrated in 1854:
[Germans/German-Americans] at once proceeded to enliven society with artistic enterprises [discussion of German-language theater, musical societies, social and athletic clubs]. … It is true, similar things were done in other cities where the Forty-eighters had congregated. But so far as I know, nowhere did their influence so quickly impress itself upon the whole social atmosphere as in “German Athens of America” as Milwaukee was called at the time (Staff writer 1941).
Moreover, these societies and clubs were highly influential, including innovations still embraced today, such as the first kindergarten, public school sports education, and civic support for local theater (Abing Reference Abing2017).
In addition to influencing local culture, Germans/German-Americans in Milwaukee established formal power throughout city political structures. A majority of elected positions were held by Germans/German-Americans, and candidates with German surnames were acknowledged as often having an edge over non-Germanic opponents (Bedford Reference Bedford1953; Stevens Reference Stevens1995). Unlike any other language, the School Board held that German language instruction be required, not elective, for all students in Milwaukee’s public schools (Abing Reference Abing2017). German was such a dominant language in 1900, that some stores posted signs saying “English spoken here”—not to indicate that German was not spoken, but to tell non-German speakers that customer service in English was also an option (Abing Reference Abing2017; Ameringer Reference Ameringer1940; Bedford Reference Bedford1953).
Socialist Identity
Socialists held offices across the southeastern area of Wisconsin, running parks, schools, local administrations, and the Milwaukee city and county governments (Abing Reference Abing2017; Beck and Zeidler Reference Beck and Zeidler1982). In contrast to anarchists, communists, and other radicals—and even in contrast to Socialists in Chicago or on the East Coast—the Milwaukee-area Socialists were strategically moderate and philosophically conservative. This distinction was occasionally noted explicitly, such as in the following letter written by the Socialist Party’s Wisconsin chapter:
The Wisconsin Socialist Party stands out among all other similar state organizations as one of the most conservative and most constructive. … The “Left Wing” is the radical element that stands for the spreading of a revolutionary propaganda. The “Right Wing” stands for the capturing of the Government by the ballot. … [Milwaukee Socialists] stand with the latter group. In many states of the union, Socialists have lost hope of changing things thru [sic] political action. This “hopelessness” is crystallizing into an extremely radical movement, [but not in southeastern Wisconsin] [Letter 59].
Although the Wisconsin Socialists remained highly critical of capitalism, they sought change through ballot-box reforms, not bullet-and-bomb revolution. This position drew much criticism from others within the Socialist Party (Cohen Reference Cohen2003; Finan Reference Finan2007; Murray Reference Murray1964). The Milwaukee Socialists had achieved substantial ballot-box success with party members occupying seats throughout local government, with the first of three Socialist mayors, Emil Seidel, elected in 1910 (Bedford Reference Bedford1953; Cohen Reference Cohen2003; Finan Reference Finan2007; Murray Reference Murray1964). Indeed, as Efford asserts, “Milwaukee would become famous for its socialism” (Efford Reference Efford2013).
Wartime Repression
On April 6, 1917, the USA declared war on Germany, recasting the many German immigrants of southeastern Wisconsin—and across the nation—as enemy aliens, their language and culture suddenly suspect. Two days after declaring war, Congress passed the Espionage Act of 1917, criminalizing speech against the war, the government, and military recruitment. A year later, the Sedition Act of 1918 banned any speech and expression of opinion that criticized the government or its war effort or harmed the sale of government bonds. These laws recast much pacificist, socialist, and other Leftist war resistance as illegal. Two notable Supreme Court cases, Abrams v. United States and Schenck v. United States, upheld such criminalizations. Journalists and editors—especially those of leftist or German-language newspapers—were among the thousands of people charged under the Espionage Act at that time (Gupta Reference Gupta2006). Among this number were Victor Berger and four other writers for Milwaukee’s socialist newspapers.
The elevated-then-plummeted status of Germans/German-Americans and socialists in Milwaukee presents a useful historic lens for studying legal consciousness. Often—although certainly not exclusively—law-and-society scholarship studies groups whose status is consistent, for example, by race, socioeconomic status, or whose status has recently risen, for example, the greater social acceptance and additional legal rights of LGBTQI+ communities. Less scholarship has examined how groups with diminished substantial privilege might relate to the law, the government, and legal actors in such circumstances. Research on low-status groups indicates that these groups are less likely to engage in the law or its formal procedures. For example, Tyler, Lind, and co-authors emphasize that people who feel unfairly treated or believe themselves not to be full members of the group—that is, “outsiders”—are less likely to embrace the law’s promise of fairness and trust in its possibilities for fair redress (Tyler Reference Tyler1990). When disempowered groups feel unable to utilize the law, they are more likely to either “lump it” and quietly withdraw or to embrace extralegal or illegal options, such as violence (Bumiller Reference Bumiller1988; Galanter Reference Galanter1974; Trautner, Hatton, and Smith Reference Trautner, Hatton and Smith2013; Tucker Reference Tucker1999).
Somewhat surprisingly, southeastern Wisconsinites did not react as the prior research suggests they might expect. The socialists and Germans/German-Americans did not resort to violence nor did they withdraw in acquiescence. Instead, they embraced the suddenly marginalized labels as a reaction to their loss of trust in, standing before, and neutrality from the government. Understanding this response to their sudden loss of status is enriched by first grasping the full extent of that status loss. As such, below, I first present an account of the repressive conditions these socialists and Germans/German-Americans faced before turning to their responses to these circumstances.
Germans/German-Americans: Diminished Status
The USA’s declaration of war against Germany directly affected Germans/German-Americans. With the US entry into WWI, the new laws mentioned above demonstrated Germans/German-Americans’ newfound outsider status. These new laws both imposed restrictions and removed previous legal protections enjoyed by others in society. By defining German immigrants as enemy aliens, these laws created many hurdles for both German immigrants and German-Americans.
Although many wartime laws and other policy actions applied only to those without citizenship, that legislation had profound effects throughout the German-American and naturalized immigrant communities, even to some extent on leftist and progressive initiatives. For example, Wilson’s November 1917 proclamation ordered that enemy aliens may not be within 100 yards of waterways, wharfs, docks, railroad terminals, warehouses, or canals. For a Great Lakes city like Milwaukee, such prohibitions were far-reaching (Gurda Reference Gurda2018). This law affected over 3,600 Milwaukeeans and, until modifications to the federal order were negotiated, crippled a number of businesses including tanneries, hardware and packing factories, and theaters. For example, of the twenty-six resident actors at the Pabst Theater just off the Milwaukee River, twenty-two were classified as enemy aliens (Abing Reference Abing2017).
The elevated status afforded the German language also waned. For example, before the war, German instruction was required curriculum in Milwaukee’s public schools. Yet, by 1919, public school regulations no longer stipulated that German language instruction was mandatory (Abing Reference Abing2017). Other changes had a substantial impact on these communities, such as the ostensibly voluntary removal of German references in organizations’ names. Many German culture and language institutions changed their names and activities to distance themselves from German associations and the German language. Indeed, across the USA, “[n]ames were the most obvious evidence of German ethnicity, and soon a name-changing campaign swept the land” (Luebke Reference Luebke1974, 47). For example, in Milwaukee, the Deutscher Club and the German-English Academy renamed themselves the Wisconsin Club and the Milwaukee Academy (later to become University School) (Abing Reference Abing2017; Ameringer Reference Ameringer1940; Berger and Swanson Reference Berger and Swanson2001).
The law also did not provide the protection for Germans/German-Americans that it once did—and that it continued to do for other residents. Germans/German-Americans sometimes encountered personal violence if they said anything perceived as pro-German or un-American. Abing describes a man who was known at his local tavern as being of German heritage. When he spoke against the war at this tavern, he was battered:
George Utteck apparently had had a few too many drinks at a local saloon and uttered some profanity against the US government. Bar patron William Morris took offense at the remark and punched Utteck, who staggered outside and complained to a police officer. Once the police officer heard the story, he promptly arrested Utteck instead … [the judge] found him guilty of disorderly conduct and fined him $25 (Abing Reference Abing2017, 132–33).
Rather than protecting him or arresting his assailant, the police officer arrested him and the judge fined him about two week’s wages, communicating that Utteck, both by his German surname and his anti-war utterance, was so marginalized by the law that he did not deserve basic protection from violence.
Other times, Germans/German-Americans faced pro-war mobs with little defense by legal authorities. For example, witnesses described mobs burning the barns of German-American farmers who purchased “insufficient” amounts of war bonds; horse-whipping a minister who prayed for peace and the soul of the Kaiser (among others); and tar-and-feathering a German-language teacher, a US citizen with a German surname (Bedford Reference Bedford1953; Janik Reference Janik2010). German-language book burnings were held throughout the state (Abing Reference Abing2017; Bedford Reference Bedford1953; Capozzola Reference Capozzola2010). Figure 1 shows the evidence of a book burning in central Wisconsin. The white lettering next to the heap of ashes says “Here lies the remains of German in BHS (Baraboo High School), demonstrating that the texts by German writers and about German themes had been removed from the school library and destroyed.
Book burning ashes in Baraboo Wisconsin, street writing reads “Here Lies the Remains of German in Baraboo High School”
When a German-language theater group was scheduled to perform Schiller’s Wilhelm Tell at the Pabst Theater, vigilantes aimed large weaponry at the theater to intimidate the performers and audience. Ameringer relates an old Civil War cannon being rolled down the street from its ceremonial placement at City Hall (Ameringer Reference Ameringer1940), while Luebke describes the vigilantes as “mount[ing] a machine gun” (1974, 250). With similar fervor, statues of Goethe, Schiller, Frederick the Great, Bismarck, and other Germanic heroes were painted yellow, vandalized, or torn down (Luebke Reference Luebke1974). While these violent acts were not officially sanctioned, neither were they prevented nor punished by legal authorities. As Capozzola (Reference Capozzola2010) and others have explained, such circumstances constitute state action, conceptually if not doctrinally, because the government’s inaction is so deliberate and directly permits the circumstances.
Socialists
Socialists’ political and social capital also waned as the country entered the war. They opposed the war as a “Wall Street War,” fought to protect the capital and interests of elites. To participate in the war would violate the basic socialist tenet not to fight other countries’ workers. Their anti-war speech and activities made them vulnerable to prosecution under the Espionage and Sedition Acts, which were used to prosecute protestors against the war. Yet, speaking out against acts of capitalist violence was central to these socialists’ morals. In prohibiting this speech, these Acts criminalized behavior that Leftist group members often found to be inherently laudable (Gusfield Reference Gusfield1967).
Naturalized citizens who embraced radical causes, such as Emma Goldman, were deported (Goldman Reference Goldman1970). Others were imprisoned, such as Eugene Debs, Bill Haywood, and various members of the Industrial Workers of the World (“Wobblies”) (Finan Reference Finan2007). During the 1919–1920 Red Scare, Attorney General A. Mitchell Palmer, aggressively targeted socialists. (Cohen Reference Cohen2003). The Palmer Raids demonstrated that mere assemblages of socialists were sufficient reason for arrest. In total, approximately 10,000 people were arrested for disloyal utterances, and over 800 were deported (Kennedy Reference Kennedy1980; Murray Reference Murray1964).
In addition to the law targeting socialists, the execution of the law—if not the formal law on the books—included the withdrawal of standard police protection (as discussed above for the Germans/German-Americans). Emil Seidel, Milwaukee’s first socialist mayor (1910–1912), recalled facing mob violence when he gave a speech on socialism to a group of interested farmers.
At seven o’clock, a bell tinkled. … Gangs are coming, from West Bend, Juneau, Fond du Lac, Waupun. … We kept the room dark, the shade half drawn, the curtain undraped. … [Thus] we could stand at the window seeing without being seen. … About 7:30 we could hear the rhythmic beats of a drum coming over the bridge; then within our view came the drummer, a flag bearer and the head of the procession … the square seemed packed with marchers, perhaps a hundred or more … [first they talked about Victor Berger, then Seidel, then] someone yelled ‘Get Seidel, get Seidel!’ (Seidel Reference Seidel1944, 37).
Seidel’s host hurried him out the back door in the dark as the mob approached the front. He hid Seidel by the river until he returned with his car and drove him to the home of another friend for the night. Back at the hall, the mob attacked those assembled. “They knocked hats off; they took the hall without asking; they dragged boys and men in; made ‘em kneel down and kiss the flag. They insulted everybody” (Seidel Reference Seidel1944, 37).
As was the case with attacks on Germans/German-Americans, legal authorities generally did little to come to the aid of socialists in these situations. While mob violence was not a legal activity, Capozzola argues that the clear absence of legal protection conceptually, if not doctrinally, does involve the law because the law’s inaction permits the circumstances (2010). While surely Seidel and others who identified as socialists were heartened by the farmers’ interest in socialism, facing the necessity of having to creep away under the cover of darkness in order to escape mob violence underlined how marginalized the socialists’ status had become.
Outsiders versus Insiders
During the war years, threats of legal prosecution and social pressures compelled many German-Americans to display their patriotism (Abing Reference Abing2017; Capozzola Reference Capozzola2010; Weinberg Reference Weinberg2005). Weinberg (Reference Weinberg2005, 198) explains that “[e]specially in heavily German-American regions … the consequential emotional, physical, and political need to demonstrate loyalty to the nation was intense.” Teddy Roosevelt famously stated that hyphenated Americans were not truly Americans, and Wilson warned that “[h]yphenated Americans have poured the poison of disloyalty into the very arteries of our national life. Such creatures of passion, disloyalty and anarchy must be crushed out” (Kennedy Reference Kennedy1980, 24). Nevertheless, the Germans/German-Americans and socialists in southeastern Wisconsin held fast to their identities, even though doing so branded them as “outsiders.”
Confounding the expectations of extant literature, these groups embrace their outsider status. Despite an increasing awareness that these statuses could get them ostracized, attacked, arrested, or even killed, they maintained these identities. As discussed more below, not only did they maintain these identities, but they used these group affinities to assert their needs and rights.
Extant research suggests that marginalized people, who do not feel fully accepted, would be less willing to submit to negative treatment and more willing to raise their voices against mistreatment. Instead, much research on actual rights mobilization by marginalized groups has found great reticence to assert their rights or raise their voices against oppression (Bumiller Reference Bumiller1988; Hull Reference Hull2016; Sarat Reference Sarat1990). Sometimes, less powerful groups are reluctant to assert their rights because they perceive gaps between legal ideals and realities and are cynical of the law’s potential for helping them. Other times, groups might experience a more pressing need for immediate survival and fear that asserting their rights could, at best, divert time and energy away from critical work, or, at worst, actually bring greater/additional threats to their survival.
Yet, when Milwaukee’s Germans/German-Americans and socialists lost their formal power and informal social status, they did resist the negative treatment. Even as they lost legal protections and positive social status, they asserted those vilified identities, mobilized around them, and fought back. Even while recognizing their sudden marginalization, they resisted their formal discrimination under the law and their informal mistreatment as less desirable members of society. Thus, unlike other groups of lower-status people in the relevant literature, these Milwaukee-area groups did not acquiesce—nor did they abandon their downgraded statuses.
This may be because their German/German-American and socialist identities were difficult to abandon. The literature on disputes explains that there are three main options for dissatisfied people: “exit,” for example, quit the group, “voice,” express disgruntlement to the relevant authority, or take no action of any sort and simply “acquiesce,” withdrawing from the contentious issue or learning to tolerate poor situations (Hirschman Reference Hirschman1970, 4, 31).
Hirschman argues that “the role of voice would increase as the opportunities for exit decline” (Hirschman Reference Hirschman1970, 34). Certain circumstances or statuses are very difficult to exit. One’s ethnic identity would be almost impossible to exit. One’s country or even local residence would also be laborious to leave as a form of expressing dissatisfaction. Group membership focused on one’s ideology or political beliefs might be difficult to exit without experiencing substantial self-denial. Blocked or minimal exit opportunities were the case for the socialist and German/German-American residents in Milwaukee, WI, during WWI. Scholars might, therefore, expect that, rather than exit, these groups would embrace political and legal mobilization when confronting mistreatment.
Yet, “voice” is not the obvious recourse for these groups because they would struggle with the two ways of voicing their grievances: accessing formal, legal routes, or embracing extralegal, violent routes. Given their layers of lost status after the USA entered WWI, at both formal and informal levels, the law or the government was too inaccessible for easily mobilizing on their own behalf, and many socialist and German/German-Americans had become distrustful of these legal mechanisms. When people doubt the success of legal or political action or perceive the law as unjust, they often develop heightened legal cynicism and a retreat from the law” (Sampson and Bartusch Reference Sampson and Jeglum Bartusch1998).
Alternatively, people with hurdles to voice and disinclination to acquiesce would be likely to embrace violent means, according to some scholars. Violence, being an illegal action, constitutes a rejection of legal means, yet is not acquiescence (see Calavita and Jenness Reference Calavita and Jenness2013; Smangs Reference Smangs2016; Wimmer Reference Wimmer2014). In Milwaukee, the upper Midwest, and the USA generally at that time, violent acts by radical groups were not unusual (Abing Reference Abing2017; Ameringer Reference Ameringer1940).
The police department bombing by Milwaukee anarchists in 1917 presents a clear contrast with the nonviolent stances of Milwaukee’s socialist and German/German-American residents. On November 24, 1917, a black powder bomb was planted by local anarchists at the church of a minister who had publicly opposed the anarchists and had been instrumental in having several anarchists arrested. When the bomb, intact, was brought to the local police station at shift-change time, it exploded killing nine police officers, and two civilians. This was the most fatal single event in US law enforcement history for over eighty years, only surpassed by the September 11 attacks of 2001 (Moe Reference Moe2017).
Yet, Milwaukee’s Germans/German-Americans and socialists did not resort to violence, nor did they acquiesce. They mobilized around the very statuses that were used to oppress them, using informal networks and formal legal routes, despite growing skepticism of the government. Ironically, the government actions that oppressed the Germans/German-Americans and socialists actually spurred greater collective action. Despite being persecuted for the status of Germans/German-Americans and socialists, they mobilized around these group statuses to counter oppressive government action. The government’s denial of the benefit of the law based on being Germans/German-Americans or socialists coalesced these identities for them and heightened the importance of these labels, thus, ironically, facilitating these groups’ mobilization around these labels.
Other law-and-society scholars have identified instances of groups mobilizing the law even when they have been denied rights. In examining labor and feminist groups’ agitation for gender equity in pay, McCann (Reference McCann1994) shows how failed litigation still enabled these activists to define the legal discourse in a way to further their struggle for equal pay. Lovell (Reference Lovell2012) studied citizens’ letters to the Department of Justice challenging the agency’s denials of legal claims. These letter writers used rights talk and moral arguments, often despite having no actual right to support their claims. Similarly, Woodward found that the inaction of the EEOC concerning sex discrimination violations under Title VII was critical for the formation of the National Organization for Women (NOW). This inaction by the EEOC and the subsequent mobilization to create NOW is similar to the Milwaukee socialists and Germans/German-Americans having many legal protections and rights withdrawn from them, which then contributed to these groups’ own mobilization (Woodward Reference Woodward2015). This article addresses the loss of previously held rights and privileges and the subsequent legal mobilization of these suddenly vilified groups.
Identity, Law, and Tactics of Resistance
Importantly, their relationship to the law shifted. Now, as outsiders to mainstream society, the law and formal government both penalized them for their identities and provided less standard legal/governmental protection because of these identities. Marginalized socialist and German/German-American groups became less likely to acquiesce to what the law did, what it banned, or what it permitted. Indeed, as discussed in more detail below, they engaged in active resistance, both in formal political acts and through informal mobilization. Sometimes this could involve directly using the law and legal forums; other times this encompassed less formal mobilization. Throughout, these groups remained engaged and resistant, neither withdrawing nor becoming violent. Yet, they reasserted their identities—and the legitimacy of those identities—by remaining engaged in the conventional use of the legal system (for example, courts and elections) and remaining committed to conventional, peaceful means of protest (for example, letter writing and financial donations), since, ironically, in compelling them to unite around these identities, the law effectively forced them to reassert the very statuses that it was punishing. Similar to the findings by Woodward, Lovell, and McCann, the law’s denial of rights directly furthered these group’s mobilization.
Withdraw of the Law: Denied Permits, Absent Police Protection
While it usually was negative government action that communicated their diminished status to the Milwaukee socialists and Germans/German-Americans, sometimes sudden withdrawal of resources and protection usually afforded to the general public communicated their vilification. For example, Seidel recounted a socialist meeting just outside of Milwaukee, where the mayor withdrew the group’s permit at the last minute. They moved the event to a private home but, then, as the meeting was concluding, they heard a “frightful racket” outside.
A mob of a hundred or more had quietly gathered on the lawn bent upon breaking up the meeting. Then those in the farthest room came out gagging and coughing. Someone had thrown a bottle with a noxious chemical through the window. Our comrades went out to reason with the crowd. … I was presented with a warrant by a constable, arrested, and locked up in jail. … [He was only released after a supporter] knew the judge, roused him out of bed, and got an order releasing me (Seidel Reference Seidel1944, 16).
When violence occurred and no law enforcement was present to offer protection, Seidel’s supporters stepped in to negotiate and try to keep the peace. When Seidel was wrongly arrested, his supporters located a contact to free him from jail.
When the Socialist Party national secretary, Adolph Germer, well known for his stance against the war, spoke at the University of Wisconsin in Madison, he faced an angry crowd that threatened him with tar-and-feathering. As reported in the LaCrosse Tribune:
[S]cores of wild yells … broke forth from a mob of seven hundred university students. [Germer had made no mention of the war, but when] the entire audience pledged themselves to the [wartime] loyalty pledge, Germer hedged, [and the hall became suddenly] crowded with students who demanded that he pledge his support to the government.
Pandemonium broke loose as Germer refused to answer questions fired by the audience, protesting that he had taken the pledge long ago. [University of Wisconsin] Dean Scott Goodnight from the rear of the hall demanded that he answer yes or no to the student interrogations. … He was finally forced to [do] it by the students. A pot of tar and sack of feathers had been handily situated before the meeting. The plan was hatched during the military review in the afternoon: The students gathered on the lower campus at seven o’clock and went in a body to the socialist hall (Walker Reference Walker1918, 7).
With no police present to protect Germer, a contingent of socialists hurried to the stage, hustled Germer out of the auditorium, and whisked him away by car. Germer and rescuers returned to Milwaukee before actual violence occurred (Ameringer Reference Ameringer1940). Here, Germer’s comrades mobilized to ensure his safety, working together to afford the protection that the law usually would provide.
Bulk Mailing Status
In October 1917, Postmaster General Burleson removed the bulk mailing status from the socialist daily newspaper, the Milwaukee Leader, and the German-language weekly, Vorwärts! (“Forward!”) Newspapers without this status were crippled because distribution via first-class mail was prohibitively expensive, costing several times the bulk rate, and was essentially impossible for newspapers. The Leader lost approximately 18,000 out-of-town readers (Ameringer Reference Ameringer1940; Berger and Swanson) The paper appealed the decision, ultimately up to the Supreme Court, which upheld the postmaster’s action. The paper would not regain its bulk mailing status until after the war, 2001. (Abing Reference Abing2017; Glende Reference Glende2008; Levin Reference Levin1971; Murray Reference Murray1964; Seidel Reference Seidel1944).
However, this denial of what had been understood as a right of the newspapers substantially mobilized Milwaukee socialists and supporters. To ensure minimal disruption in the paper’s circulation, supporters of the paper worked collectively to ensure uninterrupted delivery for subscribers. Milwaukee-area subscribers took turns hand-delivering to subscribers in their neighborhoods. Distribution to out-of-town subscribers utilized the only bulk-mailing option remaining: mail could still be sent by bulk postage to Wisconsin’s creamery stations. Once at the creamery stations, paper supporters organized shifts and “delivered [them] in person. Pressure from Washington finally stopped even [delivery to the creamery stations]” (Ameringer Reference Ameringer1940, 316). When creamery stations could no longer be used, bundles of the paper were mailed via American Express, and hand-delivered by supporters to areas outside of Milwaukee. Eventually, American Express refused service. Finally, supporters with cars or access to cars drove boxes of the paper each day to other supporters across southeastern Wisconsin; recipients of the boxes then personally delivered copies to subscribers (Berger and Swanson Reference Berger and Swanson2001).
In addition to losing the right to send out papers by bulk mail, the newspaper lost the right to receive mail delivery as well. Again, supporters stepped in while the papers’ appeal of this decision worked its way up the legal system (Berger and Swanson Reference Berger and Swanson2001). Officially, all letters sent to the Leader and Vorwärts! were returned to sender, stamped by the Post Office with “Undeliverable under the Espionage Act.” However, the paper still received “an underground depository of whatever mail [its] friends among the postal employees could snatch and deliver after working hours,” with some postal employees passing the newspaper’s mail on to others to eventually reach the paper (Ameringer Reference Ameringer1940, 325).
Identity Expression as Means of Resistance
The government’s action and inaction did not silence these marginalized groups or cause them to exit, deny, or resist their group identities. In fact, these groups gained collective strength and resolve. Socialist newspaper editor Victor Berger’s elder daughter, Doris, described this in her memoir:
[My father] was a Socialist. He couldn’t change. [None of them] could … [Moreover,] they were German. They could no more change from Socialism than to stop knowing German. These facts did not make them popular. (Hursley, Unpublished)
They could not or would not exit the groups whom the law marginalized, nor would they be silent, so they embraced “voice” by pursuing established legal channels and creating extralegal solutions to the law’s marginalization.
Recognition of Marginalization
Sometimes the law’s twin targets of both Germans and socialists resulted in a synergy of identities, with some Germans who had resisted socialism becoming socialists themselves, or at least socialist sympathizers. Their new statuses as marginalized residents were not just symbolic slights but were accompanied by legal proscriptions and restrictions (Abing Reference Abing2017; Ameringer Reference Ameringer1940). An active socialist in Milwaukee at the time, Oskar Ameringer, described how 72-year-old Civil War veteran Mr Barsch became aligned with the socialists once he realized that his German identity had already marginalized him.
[Mr. Barsch] had left Germany when not quite sixteen. Two years later, he answered Lincoln’s first call for volunteers, [and] was severely wounded in the battle of Lookout Mountain … [and] received his honorable discharge with the rank of major. Like his neighbors, he had never taken out naturalization papers. He said he had been under the impression that serving Uncle Sam in years of war had automatically established him as a citizen. [As a good citizen, he always voted and had even] risen to the high position of Republican boss of his township (330–331).
Nevertheless, once the USA entered WWI, a patriotic committee came to his house and demanded to see his naturalization papers. When he lacked them, they took him to the county seat and assigned him a number as an enemy alien, photographing and fingerprinting him. Periodically, these same committee members approached him, pressuring him each time to purchase more Liberty bonds. He did make these purchases but resented it greatly.
The final injury to Mr Barsch was that, as an enemy alien, he was not allowed more than one mile from his house after 9 p.m. Unfortunately, the town tavern was just over a mile away, he explained to Ameringer, “so I can’t even get a beer anymore” (Ameringer Reference Ameringer1940, 333). By the time he met Ameringer, he declared that he was so disgusted with how he had been treated by the law, that he donated all his Liberty Bonds to a cause and a party whom he had never previously supported.
Rallies to buy war bonds, “Liberty Bonds,” could sometimes provoke great anger, threatening behavior, and actual violence against Germans/German-Americans and socialists. Members of these groups realized that often they could perform no act of loyalty to counter-weigh the negative stigma of their labels (Ameringer Reference Ameringer1940). Although the purchase of Liberty Bonds was officially a voluntary act, unofficially, their purchase was sometimes used as a weapon against those deemed insufficiently loyal—especially Germans/German-Americans and socialists (Ameringer Reference Ameringer1940). Rallies and marches to generate purchases of bonds were frequent across the USA, including the greater Milwaukee area, and were often occasions to spur crowds into patriotic frenzies. Such crowds sometimes turned their scrutiny on these marginalized groups, questioning their loyalty (Abing Reference Abing2017; Capozzola Reference Capozzola2010).
These marginalized residents would demonstrate that they already had purchased bonds, but any purchase would be deemed insufficient. With harsh and bigoted language, Liberty Bond sellers would pressure them to buy more war bonds, citing their marginalized status as evidence of their disloyalty. Sometimes these Germans/German-Americans and socialists eventually bought enough Liberty Bond to assuage the crowds. However, other times, whether due to resistance against buying more bonds or because no amount of bonds would have satisfied, these marginalized groups faced threats of violence and actual violence, including tar-and-feathering and burning property of those who did not buy enough bonds (Ameringer Reference Ameringer1940; Bedford Reference Bedford1953; Janik Reference Janik2010).
Realizing that they were perceived as disloyal because they were Germans/German-Americans and socialists, despite deeply held patriotism or acts of loyalty, members of these groups eventually embraced these marginalized labels more strongly, even when they had not at all previously. Like Mr Barsch, above, they donated their Liberty Bonds to the Socialist Party. Although some of them might not have comprehended the extent to which these previously praise-worthy labels had become demonized, these Milwaukeeans eventually recognized that they could not escape marginalization because of these very labels.
In this way, the “identity lines” became more starkly drawn (see Abraham and Maney Reference Abraham and Maney2012). While initially buying the war bonds might have been felt by them as a demonstration of patriotic love of country, the compelled buying of bonds became a symbol of their outsider status (Ameringer Reference Ameringer1940; Bedford Reference Bedford1953; Janik Reference Janik2010; Seidel Reference Seidel1944). Although these Wisconsinites could not refuse to purchase bonds, by donating them to the socialist cause, they were able to circumvent the meaning that the Liberty Bonds came to hold.
When people perceive authorities as acting unfairly, obedience becomes less likely. Without relational justice, people are more likely to resist laws, government orders, and actions by legal actors. Not only is general compliance less likely, but “concerted noncompliance” may become heightened when relational justice wanes (Suchman Reference Suchman1997, 488). Relational justice, in particular, may be affected by how one perceives one’s identity and how one understands authorities to be interacting with those labels. When actions by the law, legal actors, or legal institutions violate how civil society believes the law should work, the legitimacy of legal institutions and of the law, itself, deteriorates (Headworth Reference Headworth2020; Tyler Reference Tyler2012; Young Reference Young2014; Young Reference Young2016).
The Defense of Victor Berger
Greater examination of the law’s treatment of Victor Berger and his supporters’ subsequent mobilization is particularly instructive as he represented both groups whom war-time laws and patriotic fervor targeted: Germans and socialists. Berger, an immigrant from Austria, began in Milwaukee as a German-language public school teacher, frequently writing for German- and English-language newspapers: the English-language daily, the Milwaukee Leader, and the German-language weekly, Vorwärts! In 1897, he established the Socialist Party of America, along with Eugene Debs and others, and, running on that ticket, became the first socialist to serve in the U.S. Congress when elected to the House of Representatives in November 1910 (Stevens Reference Stevens1995).
Later, as editor of the Milwaukee Leader and Vorwärts, Berger wrote many editorials, including some opposing the USA’s entry into WWI. Seen as harming the war effort, Berger’s editorials were the basis of his conviction under the Espionage and Sedition Acts. While free on bail awaiting his appeal, Berger ran and was elected to the U.S. House of Representatives. However, citing his conviction, the House refused to seat him.
Berger’s struggles were strongly symbolic for his supporters. His difficulties resonated with the social and legal difficulties they, too, experienced as a result of their newly marginalized identities. For his criminal sentencing and the denial of his congressional seat, many Milwaukee socialists and Germans/German-Americans rallied around him, sharing not only the identities that he exemplified but sharing their time and money also. In doing so, they embraced their shared, vilified labels to resist the law’s marginalization of those very identities.
Strengthened Commitment
The following letter from a Milwaukee resident to the House Committee on seating Berger articulated the commitment to elect Berger once again.
As one of the constituents of Victor L. Berger, I want to protest against the action of Congress in keeping him out of his seat. We elected him as our representative from the Fifth District, and by depriving him of his vote, you deprive us of representation. This is a gross injustice to the voters of the Fifth District.
We knew Berger’s opinion when we voted for him. We knew that he represents our views and that we are entitled to having them presented on the floor of Congress. If he is unseated, we will elect him again. If then he is shut out of Congress, we will elect him again. And so on ’till he takes his place in Congress to which he is justly entitled. We are not going to give up.
Letter 61; Joseph Gross; Milwaukee, WI
Berger’s growing number of supporters were committed to electing him to Congress, even if that meant no one would be there to represent them—tantamount to forfeiting their right to representation altogether. In the above letter, Mr Gross aligns with Berger’s (most likely) anti-war, socialist stances views and, speaking in the plural, expresses the commitment of anti-war socialists to mobilization reelect him.
Rather than being silenced, or exiting and denying their group identities, Milwaukee’s socialists and Germans/German-Americans experienced the opposite: more people embraced identification with the marginalized groups—through voting, letter writing, financial support, etc.—even as the government’s actions/inactions continued. Seeing recent legal and government action as unjust, many previously disengaged people began to recognize their own newly stigmatized labels and aligned themselves with the socialists and Germans/German-Americans. They recognized that these labels could not or would not change. Their disappointment with the law and government was so substantial that it propelled them toward embracing the marginalized groups’ status. Thus, as the government became more associated with the persecution of these groups and lost legitimacy, these marginalized groups’ resolve grew—as did their numbers.
Leavenworth
Like President Wilson and much of the United States initially, Berger, the Socialist Party, and its newspapers opposed entry into WWI. However, as US involvement in WWI escalated, Berger, the newspapers, and the party continued their opposition to the war, unlike most of the USA. This brought Berger political, personal, and financial difficulty (Edelman Unpublished; Hursley Unpublished; Thomas Unpublished). As editor, he wrote against the draft, enlistment, and entry into WWI.
The Espionage Act (Title I, Section 3) banned any “attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States … shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” The Prosecutor for the Northern District of Illinois used this new law, along with the Sedition Act that furthered the Espionage Act’s reach, to charge Berger and four other editorial writers with press agitation and other anti-war activities. On February 20, 1918, the federal court found Berger and the four other editorial writers guilty. The judge sentenced them to lengthy sentences in Leavenworth Prison.
Supporters rallied their resources to keep them out of Leavenworth while their cases were on appeal. To post the $20,000 bond per defendant, supporters not only contributed cash but brought their house deeds to the court for bail. Although many supporters came forward with deeds, most deeds were refused by the court—only house deeds without mortgages could be used for bail collateral. Sometimes, these supporters turned back with their mortgages and returned with the unencumbered deeds of siblings, neighbors, or parents to offer toward bail. Enough money and deeds were contributed to keep all five defendants out of Leavenworth (Ameringer Reference Ameringer1940; Berger and Swanson Reference Berger and Swanson2001).
Their convictions had far-reaching consequences for the socialist and German/German-American residents in Milwaukee. This trial demonstrated that socialism could be punished even in Milwaukee with a strong socialist presence. Moreover, many noted that all but one of those convicted newspapermen were German/German-American—Berger, Germer, Engdahal, Kruse, and Tucker. These government actions heightened these groups’ shared identity and spurred even greater collective action among these communities (Abing Reference Abing2017; Ameringer Reference Ameringer1940).
Other scholars have noted that prosecutors seldom go after high-profile cases that they doubt they’ll win or that they think will be unpopular. (Baker et al. Reference Baker, Amin, Karla Dhunana, Pickett, Golden and Gertz2015). This implies that the decision by the Northern District of Illinois to charge Berger and the four others at the Leader demonstrates that he felt that Berger and the others were suitable targets: a prosecution he could win and defendants who would not reap too much public support. This assessment illustrates the downfall of the socialists’ power during the war.
The Special Election
Shortly after being convicted under the Espionage Act, Berger ran for the House of Representatives and won. Citing his conviction, the House of Representatives refused to seat him and demanded that southeastern Wisconsin hold a special election to choose a “more suitable” replacement. Berger’s opponents, who believed that he only won because the Republicans and the Democrats divided his oppositional vote, felt that a Republican-Democrat fusion candidate was needed to beat Berger, as this article explained:
It is very doubtful whether [Berger] could be reelected, in even Milwaukee, after his conviction by an American jury, and rejection by an American Congress as unfit for membership. This Milwaukee socialist owed his election last November to the failure of the American voters in his district to get together in support of a single American candidate. They divided their votes between two candidates and Berger, profiting by their folly, was elected by a plurality (January 1, 1919). Times-Picayune.
For the special election, the Democrats and Republicans supported a co-sponsored candidate, State Senator Henry M. Bodenstab. The Wisconsin governor warned that, if Berger were elected again, and again was barred from Congress, Wisconsin would not pay for yet another special election. This meant that Berger’s seat would go vacant (Staff writer 1919). Yet, despite this risk, his supporters strengthened their commitment to him (see McCann Reference McCann1995; Mizen Reference Mizen2015; Oyakawa Reference Oyakawa2015 for a discussion on strengthened resolve in other elections).
Not only did Berger’s supporters in the Fifth Wisconsin District refuse to select another candidate, but more voters—residents who had not supported him previously—voted for him (Bedford Reference Bedford1953; Hursley Unpublished; Miller Reference Miller1973). He won more votes in the special election than he had in the election for the seat initially, as Table 1 shows. In fact, this was the greatest number of total votes at any point in his career.
Voting totals for both elections
source: New-York-Times. December 20, 1919. “Berger Elected by 4,806 Majority: Fifth Wisconsin District Disregards His Rejection by the House.” Pp. 1-2 in The New York Times.
Wisconsin voters’ refusal to elect a different person to represent them was a defiant act of “concerted noncompliance” (Suchman Reference Suchman1997, 488). They did not withdraw or learn to tolerate the law’s new treatment and their vilified status. Nor did they attempt violent means. In fact, when the House debated as to whether or not to seat Berger, his supporters reacted with one of the most peaceful means of protest: they wrote to Congress.
The letter from the Roeslings, a Milwaukee couple, expresses their frustration with Congress’s refusal to seat Berger.
Mr Berger was elected by a large majority of men who evidently knew whom they wished to have represent them, and to our personal knowledge, they were not all socialists either. And we can assure you that the average people are waking up and watching the farce and keeping a close watch on their representatives and someday there will be a reckoning.
We wish to know that when a man is honestly elected by a majority, he will be allowed to represent them—whether we agree with him or not—and from now on true American Freedom [sic] of speech, press, and peaceable assemblage must be returned to us, or we will know the reason why. Believe us, the people are not as stupid as you think. Americanism used to stand for fairness, but if this gross injustice is perpetuated, it may indeed form a boomerang.
Will you do your share to bring truth and honor again to the people by seating their [sic] representative, Victor L. Berger?
Letter 78; Mr and Mrs Roesling, Milwaukee
This letter, like many others sent, engages impassioned language that contrasts the actions of Congress with American ideals; for example, farce and injustice versus fairness, truth, and honor.
Other scholars who examined letter writing to government agencies have also found that writers drew on extralegal themes. For example, Woodward’s examination of individual women’s letters to the Equal Employment Opportunities Commission (EEOC) “reflected rising expectations for change in the wake of the [Civil Rights Act of 1964, 716].” Yet, while inspired by the Civil Rights Act, the claims “rais[ed] issues that the agency was not prepared to decide and rule on” (2015, 716). Nevertheless, these individuals’ claims eventually caused the agency to address these women’s issues, especially protective legislation.
Lovell’s work, similarly, found individuals making extralegal claims in their appeals to government agencies for redress. Analyzing letters written to the Justice Department during the Great Depression, Lovell found many extralegal claims, such as rights and entitlements beyond what had been understood as legally mandated. These extralegal claims employed rights talk to challenge the Department’s stated position in order to create a more expansive view of rights (Lovell Reference Lovell2006).
Disappointment with the Law and Government
Southeastern Wisconsinites reacted with diminished trust in their government, doubts in their standing as full citizens before the law, and skepticism about receiving fair and neutral treatment. Tyler and coauthors found that, if people feel that authorities are fair, they believe they can obey authorities’ directives without fear (Tyler Reference Tyler1990; Tyler Reference Tyler2000; Tyler and Lind Reference Tyler, Lind, Sanders and Hamilton2000; Tyler Reference Tyler2012). Many in the greater Milwaukee area did not feel that the authorities had acted fairly. Assessment of fair treatment depends on whether the person (1) trusts the authorities involved (“trust”), (2) feels that s/he is seen by the authorities as having full status in the group (“standing”), and (3) believes that s/he received nondiscriminatory, neutral treatment (“neutrality”) (Tyler and Lind Reference Tyler, Lind, Sanders and Hamilton2000). These were lacking for many German/German-Americans, socialists, and other supporters of Berger in southeastern Wisconsin.
The correspondence written to the Congressional Committee on Berger’s seating demonstrates feelings of outsider status. Many of these Milwaukee letters talk of feelings of betrayal (no trust), experiencing a diminishing of social status (no standing), and perceptions of governmental discriminatory treatment (no neutrality). The extant literature has found that diminished relational justice often correlates with a decreased willingness to accept the law and government action or to obey legal authorities. Indeed, in the case of Milwaukee’s Socialists and Germans/German-Americans, they did not accept the mistreatment from the government and acquiesced in silence, but resisted both through formal legal avenues, however unsuccessful, and through extralegal mobilizations of group members.
Trust reflects the authority’s character, assures (or fails to assure) the individual of the authority’s future behavior, and is linked to inferences about the authority’s earnestness (Tyler and Lind Reference Tyler, Lind, Sanders and Hamilton2000). Mr. Schmidt, below, wrote to Congress that he trusted in the supremacy of the U.S. Constitution and its protections, yet the implication in his letter is that, if Berger is not seated by the House, this trust would be dashed.
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 [sic], 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 and faith in your Hon. Committee to do justice to our District as well as to its legal representative, the Hon. Victor L. Berger.
Letter 65; Charles V. Schmidt; Milwaukee, WI
Mr Schmidt addresses his trust in the legislative branch of Congress. However, other letter writers also mourned lost trust in the executive and the judiciary, citing the Espionage Act in particular. Mr. Schmidt and others called on the law to move beyond their marginalized status and allow them to choose their representative, as non-marginalized groups were enabled to do.
Standing in the group is strongly linked to one’s perceived treatment; if an individual feels poorly treated by the authority, the implication is that s/he is not a valued, full member of the group (Tyler and Lind Reference Tyler, Lind, Sanders and Hamilton2000). Illustrating the issue of standing, Mr Erber’s and Mr Schilling’s letters to Congress state that “the People”—citizens and voters—should have the standing to have the government’s elected officers carry out the directives of the voters.
Thirty-six years ago now I came to the U.S. I was informed that the People rule by right of the Ballot and that elected officers are the servants of the People. It seems to me that our servant in Congress ignores the will of the People by refusing a duly-elected congressman his seat.
Letter 63; August Erber; Milwaukee, WI
I was a Union solder at 17 and voted for Lincoln two weeks after I was 21. … [I] voted for Berger, whom you disbarred before the House was organized, thus violating the law that you claim to uphold. The sovereign people of our district elected him and congress has no right to dictate a choice to us.
Newspaper open letter 3; Robert Schilling; Milwaukee, WI
Because these men voted for Berger, a socialist opposed to WWI, their status as voters and citizens was diminished. No longer did they have the status to elect a candidate and have that majority vote honored.
Neutrality involves “honesty, unbiased treatment, [and] consistency,” and the perception of a “level playing field” (2000, 76). Many people from MilwaukeeFootnote 1 wrote of how Congress’s actions lacked neutrality and appeared as discriminatory and unfair. For example, the letter from Mrs Sheff, below, accuses Congress of mistreatment because of Berger’s socialist commitment.
Have the American people lost all rights in this free country? Have we, the laboring class, got to give up our right of vote when we know we vote for an honest, upright man who has won the seat in Congress by an honest vote[?] Mr. Victor L. Berger has been insulted and disgraced by people who are not as good in straightforward, honest, upright ways as he is. First because he is not in for capitalism, he is for the working class. Given up his best years of his life for the laboring class. Now some who would defie [sic] us our daily bread take his place.
Letter 75; Mrs Helen Sheff; Milwaukee, WI
Her class-conscious writing asserts that barring Berger was not only unfair to the specific voters who elected him but to working-class interests, more generally.
This betrayal of trust diminished standing, and discriminatory and non-neutral treatment diminished the relational justice these marginalized Milwaukeeans perceived. Yet despite this alienation, they did not withdraw or disengage from the law, nor did they resort to extralegal violent means. They both engaged the law and legal institutions and also mobilized extralegal efforts to combat what they perceived as unfair, biased treatment by the law. In doing so, they used the very labels that the law targeted in marginalizing them.
The increased vote Berger received in the Special Election illustrates numerically how the marginalization by the law actually created greater resolve and spurred mobilization. People who did not initially vote socialist voted for the socialist ballot when the law was seen as more oppressive toward Berger and his supporters, as Table One, above demonstrates. Letter writers, too, expressed this concept: “[Not seating Berger is] a good way to turn thousands more Wisconsin voters to the Socialists. Keep it up” [letter 84].
Indeed, the government’s actions not only galvanized his supporters but created more followers—sometimes even from earlier detractors, as this letter illustrates:
I, for one, having been a Wilson man all the time, would not again vote for a man whose party took an active part in denying [Berger] his seat and I would work with heart and soul to defeat any candidate who was against our [democracy] [Letter 64].
In this letter to Congress, Edward Jaeschke explains that, even though he has always been a Democrat, he would abandon this party if it failed to seat Berger.
The campaign ad poster shown in Figure 2 provides an example of the Socialist Party’s efforts to capitalize on voters’ outrage over Congress’s actions. In doing so, the authors of the ad hoped to generate “concerted noncompliance” (Suchman Reference Suchman1997, 488) against the directions of the Congress to elect someone other than Berger. This campaign poster for the special election says, “They have silenced the voice of freedom, but votes speak louder than words.”
Campaign Poster #1 for Berger during Special Election of 1919
This ad copy positions Congress as opposing the earlier decision by Berger’s constituents, calling on them to resist this “silencing” by supporting the socialist candidate.
The poster in Figure 3 reads, “They have insulted you by unseating your choice. Prove your right to choose your own man. Reelect Victor L Berger. He stood by you. You stand by him. For freedom and against persecution.”
Campaign Poster #2 for Berger during Special Election of 1919
The ad’s copy explicitly links the law’s treatment of Berger with the mistreatment of his marginalized supporters. By refusing to seat him, Congress did more than deny Berger his place in the House; it denied his constituents their right to their chosen representative: his oppression was their oppression. The ad calls for his constituents to unite around the socialist label, despite its sudden marginalization, and resist this treatment.
Similarly, the government’s actions against The Milwaukee Leader not only failed to terminate the paper, but they had the opposite effect: its circulation within Milwaukee increased, and some advertisers who had initially pulled their contracts with the paper, returned (Ameringer Reference Ameringer1940). While many other socialist periodicals folded or went dormant until after the war, The Leader, continued until 1939. Thus, in reaction to their status—expressed in this instance as the rights of their main newspaper—being demoted, the socialists in Milwaukee heightened their efforts around this now marginalized identity.
Conclusion
This article builds on and extends research on how marginalized groups mobilize as rights-bearers by focusing on the distinctive situation of groups that suddenly lose their positions of relative security and status. For Milwaukee socialists, Germans, and German-Americans, group identity that had been a source of strength became, after American entry into World War I, an object of vilification by the majority community. Legal and political systems that they had used to advance their interests now were turned against them. Their response was to mobilize around their group identities and to protect their interests through both working through and around the law. To voice their concerns, they embraced the law, as they would have done when they held more privileged status in the pre-war years. Doing so held substantial symbolic power. This tenacious engagement with the law, even when ineffective, was an important form of active resistance against their marginalized status.
When legal routes failed, they augmented their efforts with extralegal nonviolent strategies. They collected bail money for anti-war editorial writers, distributed newspapers that had been denied bulk postage rates, delivered mail sent that the U.S. Post Office refused to deliver to socialist newspapers, reelected Berger to Congress despite no hope of his being actually being seated, and protected socialist speakers from threats of violence. In response to the denial of previously held legal benefits, they mobilized around those very identities—socialist, German, German-Americans—that had been the reason they had been marginalized. Publicly asserting these identities was a key form of resistance to their marginalization. A better understanding of this historic dynamic—a dynamic that still continues today in various ways—demonstrates how marginalized groups might continue to seek out their rights even when those rights have been denied by government institutions.
Acknowledgments
The author wishes to acknowledge the support she received from the NSF/ASA Fund for Advancement of the Discipline, Midwest Sociological Society Endowment Committee, Purdue University Faculty Incentive Program, and the Institute for Legal Studies at the University of Wisconsin Law School. She would like to thank the following friends and colleagues whose feedback on this project: David Atkinson, Scott Barclay, Rachel Einwohner, Howard Erlanger, Brian Gran, Kathy Hull, George Lovell, Anna-Maria Marshall, Elizabeth Nisbet, Robin Stryker, Michael Yarbrough, and Kathryne Young, as well as the fellow panelists and audience members 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, the Tamiment Library-Wagner Archives, and the Wisconsin Historical Society also deserve much thanks. Finally, many thanks are owed to the editor and the anonymous reviewers at Law & Social Inquiry for their helpful advice.
Funding information
NSF/ASA Fund for Advancement of the Discipline, Midwest Sociological Society Endowment Committee, Purdue University’s Faculty Incentive Program.
Legislation
Sedition Acts. An Act to Amend Section Three, Title One of the Act Entitled “an Act to Punish Acts of Interference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States, to Punish Espionage, and Better to Enforce the Criminal Laws of the United States, and for Other Purposes”; May 16, 1918, Article Enrolled Acts and Resolutions (1918).
Espionage Act. (Act of June 15, 1917). Ch. 30, title I, §3, 40 Stat. 219, amended by Act of May 16, 1918, Ch. 75, 40 Stat. 553–54, reenacted by Act of Mar. 3, 1921, Ch. 136, 41 Stat. 1359, (codified at 18 U. S. C. §2388).
Litigation
Abrams v. United States, (1919). United States Supreme Court. 250: 616.
Schenck v. United States, (1919). United States Supreme Court. 249: 47.
Open access
