Ohio History Journal

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The Fight for the

Right to Counsel



Too often the American bar has been, as Adolf Berle once

lamented, "an intellectual jobber and contractor, rather than a moral

force"; but there have been times when the bar has provided the

country with highly principled and badly needed leadership.1 In the

early 1950s, an era troubled by the anti-Communist excess known as

McCarthyism, many civil liberties and constitutional guarantees were

in danger, among them the right to counsel. In order to preserve that

right, a number of local bar associations offered to provide attorneys

to Communists who could not otherwise have obtained them. When

attacked for doing so, these lawyers not only persisted in their de-

fense of a principle in which they believed, but led by the Cleveland

Bar Association, fought back against their most outspoken critic. The

battle waged by these attorneys for the right to counsel forced the

public to confront an issue which it had until then managed to evade:

whether a successful attack on domestic Communism was more im-

portant than preserving the traditional guarantees of the American

constitutional system. Many people, deciding it was not, rallied to the

standard which the lawyers had raised, abandoning the system of

values and priorities that had supported the second American Red


During this era of anti-radical feeling, members of the Communist

Party of the United States (CPUSA) who needed lawyers often could

not retain them. The reason was public hostility arising from a widely

held belief that these dissidents were the traitorous agents of a hostile

power. The late 1940s and early 1950s were a period of intense Cold

War between the United States and the Soviet Union, and most

Americans believed that in this conflict the loyalties of domestic

Communists lay with the Russian enemy, rather than with their





Dr. Belknap is Assistant Professor of History at The University of Texas at Austin.


1. Quoted in James Willard Hurst, The Growth of American Law: The Lawmakers

(Boston, 1950), 355.