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Students of American civil liberties inevitably confront what historian Thomas Haskell has called “the curious persistence of rights talk in the age of interpretation.” Haskell’s dilemma is to explain the persistence and growth of the modern civil liberties movement in precisely the post-World War II decades in which skepticism about the truth value of rights claims spread widely among American public intellectuals. In fact, the problem is even more acute than this. A civil liberties tradition as twenty-first-century American lawyers understand it – a body of legal protections for liberties such as speech and assembly – barely existed in the United States before intellectuals and political reformers of a variety of different perspectives began to challenge the characteristic hallmarks of nineteenth-century liberalism. The civil liberties movement in American law – even the use of the phrase “civil liberties” itself – arose in precisely the years in and around World War I in which pragmatic skepticism about the status of rights claims grew strongest. Moreover, early architects of the civil liberties movement were themselves leading skeptics and even founders of modernist legal institutions that sought to consign rights talk to a nineteenth-century past.
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