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tv   U.S. Supreme Court During World War I  CSPAN  November 10, 2018 5:30pm-6:30pm EST

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stated initially, he would have liked to have it about his life after world war i. when he came back from the war, he made several speeches to raise money for education in thatssee, and he found out just talking about education, people wanted to hear about his experiences. so i think that has something to do with him finally agreeing to go ahead and do the war portion of the movie, because he realized that that's what people wanted to see. announcer: watch the entire discussion on sergeant york, the man and the movie, tonight at 7:00 eastern here on american history tv, only on c-span3. announcer: this year marks the centennial of the end of world war i. next on american history tv, author and historian melvin urofsky describes some of the constitutional issues during the war.
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he is introduced by justice soanya sotomayor. supreme court historical society discussed -- hosted this hour-long event in the supreme court historical chamber. mr. libin: im jerry libin. i am the vice president of the historical society. i want to welcome everybody here to our first lecture of the leon silverman 2018 lecture series, which is dealing with the supreme court and world war i. this being the 100th anniversary, if you will, of the end of world war i. we have a very interesting lecture tonight, and the whole series will be quite interesting for you. before i go further, however, i instructed to tell you to please am turn off any cell phones, apple watches, whatever other gadgets you may have, so they do not interfere with our system.. here. thank you. hostas you know, our tonight is justice soanya
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sotomayor -- sonia sotomayor. we are pleased to have her with us tonight and want to thank her on behalf of the society for giving her time when we call upon her to participate in events like this. it is quite important to us and quite important to you. we very much appreciate it. i will tell you briefly a little bit about the justice. she is a native new yorker, born in the bronx, very unhappy about last night baseball game, i guess. boston red sox. did her undergraduate work at princeton and went to yale law school, then joined the district attorneys office in new york county as an assistant district attorney. after several years there and her private practice in new york and was a litigator in the international commercial law area. that attracted attention, and before long, she had become a federal district judge on the southern district of new york. six years later, she became a
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circuit court of appeals judge on the second circuit in new york. that was 1998. 11 years after that, she found herself here on the supreme court. in the one other justice modern era, justice charles whitaker, are the only justices who actually served on all three levels of the federal judiciary. justice whitaker was appointed to his positions by the same president, president eisenhower. justice sotomayor was appointed by three different presidents. george h.w. bush to the district court. president clinton to the circuit court. to thesident obama supreme court. somehow, she has also found time to write some books. about her life in particular. i commend them to you as well. but let me just turn the program
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sotomayor.tice it is a real privilege for me to introduce her at this time. [applause] justice sotomayor: it was a miserable night last night. [laughter] justice sotomayor: good evening, everyone, and welcome to the court. i am delighted that so many of you could join us this evening for this first lecture in the supreme court historical society's 2018 leon silverman which this term, as you heard, will focus on the supreme court in world war i. 2018 marks a century since the first world war ended. a fitting moment for our society's first series to focus on that important chapter in our nation's history. for lecture series is named
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the historical society's late chairman and president leon silverman, who was a titan of the new york legal world. it was impossible to practice in without, as i did, knowing leon. he was everywhere. among the many important roles he served, he was the president of the legal aid society and the american college of trial lawyers. he also worked tirelessly on behalf of our historical society. his commitment to bringing leading scholars to the court to share their wisdom is why this wonderful lecture series exists today. for these lectures and for all the historical society and its members do to promote reflection on the history of the court, my colleagues and i are very grateful. we will be hearing
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from professor melvin urofsky. professor urofsky is professor emeritus of history at virginia commonwealth university. in previous lives, he directed vcu's doctoral program in public policy and administration and chaired its history departments. you should know that history was my major in college. before that, he received his ba and phd from columbia university and his jd from the university of virginia. today, since he semiretired in 2003, and i am sure his lovely wife will probably take umbrage with using the word retired, he keeps himself nimble by teaching constitutional history at american university here in washington, d.c. professor urofsky is a prolific historian and scholar. he has written on many topics in constitutional history and has
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served for the past 25 years as the chairman of the board of editors of the historical society's journal of supreme court history. over the years, he has held many fellowships and grants from the national endowment for the humanities, the american council of learned societies, the virginia foundation for the humanities, and the american historical association and many others. i want to briefly highlight two of his works. his biography of justice brandeis, published in 2009. won many accolades, including the jewish book council's everett award as the book of the year and ambassadors award, given by the english begin union -- english speaking union of the united states. and won the historical society's world prize, one of only seven ever awarded. his latest work is dissent in the supreme court, its role in
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the court's history and the nation's constitutional dialogue. he has just told me i am in it. i will have to read it now. i could continue to list professor urofsky is many accomplishments, but i fear that would leave no time for his insights, and i am looking forward to hearing what he has to say about the court in world war i. i hope you will all join me in welcoming professor melvin urofsky. [applause] prof. urofsky: thank you, justice sotomayor. i know she is triple booked tonight, so i really appreciate the time that you took. since i am a historian, let me start out with what my mentor, bill luxenberg, taught me many
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years ago. begin with a story. so here is the first part of the story. alice brandeis was in her washington apartment on a cold december day in 1917, catching up on boston news with her old friend elizabeth evans. when the phone rang a little after 4:00. , she asked the building operator. the president. when alice again asked who was calling, the operator said president wilson. realizing it was no joke, she told the girl to transfer the call to 809, the small apartment upstairs that justice brandeis used as a study. within an hour, woodrow wilson arrived at stoneleigh court and went up to see the justice. while the two secret service men who accompanied him waited outside the door. we will get to what they talked about in a few minutes, but first we have to set the context. the united states in a war
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unlike any it had ever fought before. my assignment tonight is not, as it has often been, to look at one particular justice, although i will do a little of that, or discuss one set of cases, but i will do some of that as well. rather, i have been asked to provide an overview, a context for the three remaining lectures in this series. the great war, as it is still called in europe, began in war that no one wanted and that nearly everyone predicted would never happen. there was disagreement about the total number of casualties, but conservative estimates said that before the fighting ended, over 8 million soldiers and 12 million civilians had died. germany lost 1.7 million dead, and over 4 million wounded. the united states did not enter the conflict until april 1917, and the first troops arrived in
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france the following september. in the 14 months before the armistice in november 1918, 50,000 americans lost their lives. that thelast big war united states had fought before then was that between the states from 1861 to 1865. and while the conflict raised a number of constitutional issues, such as the legitimacy of the blockade, the emancipation of slaves, and the suspension of habeas corpus, for the most part, court decisions played a relatively minor role. abraham lincoln has been accused , primarily by southern sympathizers, of ignoring the constitution and acting as a tyrant. lincoln did neither, but he did stretch the constitution. before the civil war, the accepted view held that the constitution had created a government of restricted powers, which could act only in those areas specifically ascribed to
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it. under john marshall, the supreme court had broadly interpreted the reach of these delegated powers, but even marshall often referred to the government as one of limited authority. while southerners took a narrower view of federal powers than did those in the north, even the letter shared this conceptual framework. -- even the latter shared this conceptual framework. if true, then the government in washington had no powers to wage war against the secession of states, and the union would collapse. well the obvious answer was to amend the constitution, this route was impractical with the 11 states in secession. to support lincoln's prosecution of the war, northern legal writers developed what the abolitionist legal scholar timothy gerard ford called the adequacy of the constitution.
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ferrar and others argued that the southern emphasis on the negative constraints in the the positivehid commandments for the government to act effectively to preserve itself and to preserve the union. as sidney george fisher, another legal writer, explained, the president and congress have the power to react to concrete situations, such as the rebellion, and they also have the discretion to choose the most effective means to do so. preserving the union constituted a positive requirement of government, even if the particular means had not been specified in constitutional detail. as timothy hubner explained in his recent study of constitutional issues in the civil war, the constitution would either need to be adequate to meet the needs, or would have to be abandoned. the latter choice was unthinkable. and so lincoln expanded the understanding of constitutional
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power in his strong reaction to secession. in so doing, he also resolved -- excuse me -- the antebellum debate over state sovereignty versus national supremacy, by asserting the idea of america as a unitary state. one that was empowered by and acted on the authority of the people, the famous assertion that the war was fought so "that government of the people, by the people, for the people shall not perish from the earth." while the federal government did grow in size and power during the war years, after the end of reconstruction in 1877, the old theory of limited government returned. shared by all parts of the country. between 1877 and 1917, the only wars the country faced involved the army subduing the indian tribes and what john hay called a splendid little war against
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spain, that left the united states with new possessions in both of the caribbean and the pacific. roosevelt's use of the bully pulpit presaged what modern presidents could do, but although he would have liked to have led the nation at war time, that task fell to woodrow wilson. he had been a former government professor and had written popular books on the state and national governments. he undoubtedly knew the writings ferrarholars like and fisher, but constitutionally, he remained an unreconstructed jeffersonian, who opposed the government. in the 1912 election, he had countered theodore roosevelt's new nationalism, in which big business would be controlled by big government, with his new freedom, in which big business would be kept in check by the rules of competition strictly enforced. wilson desperately tried to keep the united states out of war.
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but when germany resumed unrestricted attacks by u-boats on neutral shipping going to the allies, which included many american boats, wilson had little choice but to ask congress for a declaration of war on april 2, 1917. to put it charitably, the united states was terribly unprepared to go to war. in may of 1916, congress, under intense pressure from the white house passed the first measure , to put the country in a state preparedness -- a state of preparedness, should it become necessary to enter the war. at the suggestion of the secretary of war, newton d. baker, congress reauthorized the creation of the council of national defense. but although it had an implied mandate of helping to mobilize the private sector for war production, no one really knew what it could or should do, and it had little authority at its
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behest. the army and navy initially founded a shell between them and porkbarrel politics. but the bill passed by congress envisioned something vaguer. and with a budget of only $10,000. as far as congress was concerned, the council would play a minor advisory role. in a conversation i had a few weeks ago, a friend wondered if there were constitutional issues during the war. i assured her that indeed there were and promised to talk about some of them tonight. so sybil, here it is. here is a short list of constitutional questions that came up in the war. one, military conscription. although both the union and confederacy had resorted to drafts during the civil war, they had not been popular, especially since -- excuse me --
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since a well-to-do man could pay someone else to take his place. the constitutionality of the draft during world war i did come before the supreme court , but i am going to say very little about it because that will be the subject of professor apizola'ser cp presentation on october 23. secondly, economic regulation. the exigencies of war led to increased federal recognition of economic activity, a combination of congressional statutes and executive orders lead to government intervention and regulation of areas as diverse as agriculture, manufacturing, mining, telegraphs, even rent control. two of the most important laws passed by congress, the lever act in 1917 and the overman act of early 1918, gave the federal government enormous control over both agriculture as well as industry, and to an extent never before seen in our history.
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both these laws, it should be noted, form part of the template for franklin d. roosevelt's new deal efforts to fight the great depression. we will talk more about this, because some of these issues did in fact come before the court. three, labor relations. years ago, the noted historian richard hofstetter wrote that war is the enemy of reform. yet during the first world war, reform seemed to be strengthened rather than weakened. the war labor board, cochaired by former president william howard taft, worked to reduce labor-management strife, and in doing so also forced management to pay workers a decent wage. the war labor policies board , headed by felix frankfurter, tried to set policy for wages, hours, and union recognition. wilson himself took a keen interest in hourly wages. groups played a prominent role in entraining
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american troops and urban reformers helped build the many army camps needed to house and train soldiers. four, the enfranchisement of women. in an era of reform, it is little wonder that women saw an opportunity to finally win the suffrage. because suffrage had always been considered primarily a matter of state power, and is so even today, despite the 15th amendment and the 1965 voting rights act. women had begun lobbying state legislators right after the civil war. the wyoming territory gave women the suffrage in 1869, but by 1900, only four states allowed women to vote. the movement picked up steam after 1912, when alice paul, a quaker and social worker, returned from an apprenticeship with the militant suffragists of england. adopting the techniques she had
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learned in the mother country, she led a march on washington of the day before of wilson's inauguration to promote the movement of a constitutional amendment. when unruly opponents broke up the parade, they had the publicity they needed. by 1916, the republican party had endorsed a women's suffrage amendment and 11 states had given women the franchise. wilson, who had extremely traditional views about women, opposed giving them the vote. he refused to endorse the amendment, insisting that states should control the suffrage. but the president found himself in a rapidly shrinking minority. under paul's leadership, the new women's party regularly picketed the white house, chained themselves to the fence, provoked the rest, and went on well-publicized hunger strikes in prison. when the united states entered the war, allegedly to save democracy, political wisdom dictated that one could not send americans to fight and die for an ideal overseas, while denying
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it to half the population at home. wilson finally capitulated and went before congress on september 30, 1918, to recommend the constitutional amendment. congress had turned down similar proposals ever since reconstruction. and while the house passed it easily, the senate rejected the proposal, once in the 1918 and twice in 1919. with wilson's back in, however, congress finally approved the 19th amendment on june 4, 1919, and tennessee became the 36th state to ratify on august 18, 1920. in time for women to vote in that year's presidential election. five, the prohibition of alcohol. prohibition has such a bad name in our history. the great experiment that ultimately failed. al capone, etc. -- that we often forget it
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constituted one of the most important of the progressive era reforms. the lever act, under the mandate of preserving scarce food resources, authorized the president to limit or forbid the use of foodstuffs to make alcoholic beverages. on this issue, we will have extensive participation by the court. six, personal liberties. here, of course, we have to deal with the emergence of modern notions of free speech and press. that topic will be covered by professor lori weintraub in the last of the silverman lectures in the series on december 6. suffice it to say for now that during the war, congress, at the administration's past, past the most restrictive laws on speech and press since the alien sedition acts at the end of the 18th century. seven, the league of nations. too often, the fight over american entry into the league is portrayed as a spitball fight
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two recalcitrants, wilson and senator henry cabot lodge of massachusetts. that scenario is only partially correct. the constitution gives the president treaty making powers. but for the agreement to go into effect, it needs the approval of two thirds of the senate. this is a typical example of the checks and balances built into our system of government by the framers. yet wilson took no senator with him to the paris conference, and when he returned with the treaty, he essentially brushed now thesenate, saying document had been signed, the senate had to be committed to it as well. the senate, jealous of its powers, did not agree. moreover, wilson should have known better. in his book "constitutional government" in 1908, he had written that when faced by a stubborn senate, a president
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might well follow a more conciliatory course, "which one or two presidents of unusual political sagacity have followed with these satisfactory results that were to have been expected." now the senate had some legitimate constitutional questions. none stood out more clearly than article 10 of the league of nations covenant, which called for collective action against aggression. did this mean that if the united states ratified the treaty and joined the league, it automatically had to go to war if aggression occurred? what did this imply for the constitutional requirement that only congress could commit the country to war? the allies were willing to yield on this point, but not wilson. and his stubbornness doomed the treaty. wilson would have no changes. his rigid interpretation of presidential powers, despite what he had written earlier,
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would not allow him to compromise, and together with the senate's insistence on doing its constitutional duty of reviewing treaties, he played into the hands of his opponents. the standoff between the two branches of government had important effects. no president after wilson dismissed the role of the senate in making treaties. when harry truman went to the san francisco conference in 1945 , where the charter of the united nations would be signed, he took senators from both parties with him. truman would certainly have fit into wilson's group of presidents "with unusual sagacity." eight, the growth of presidential power. congress delegated a great deal of power to the president. albeit often with many misgivings. charles evans hughes, who had been the republican candidate in 1916, justified the expansion of government power in a speech to the american bar association.
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the importance of hughes' arguments will be explored by professor matt waxman, one week from tonight. now, all of these issues presented constitutional questions, but not all of them came up before the court. nor, with one exception, did they involve members of the court. we should keep in mind that until fairly previously -- recently, until a fortis -- is, presidents often spoke with members of the court about policy matters. in world war ii, for example, franklin roosevelt consulted frequently with three members of the court. felix frankfurter, robert h jackson, and to a lesser degree, william o. douglas. in the first war, however, wilson had only one member of the court whose advice he so trusted. and louis brandeis became one of wilson's closest wartime confidence. picking up our story from that late afternoon in december 1917, the matter that concerned wilson involved railroads.
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and their seeming inability to move raw materials to plants or desperately needed finished supplies to atlantic ports, so they could go to the troops in europe. wilson had been besieged by people clamoring for the government to take over the rail lines, join them into a unified system, and then give one man the necessary authority to run it. although the attorney general had assured the president that such a step would be legal, since congress had empowered the president to do so in 1916, wilson had his doubts. both about taking over the lines and about setting up such a powerful government agency. so he went to see the one man whose advice he would trust, the man whom wilson's biographer called the intellectual architect of the new freedom and
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whom wilson's new shared his views on government and the economy. brandeis understood that in wartime, things had to be done differently and reassured the president that not only would the takeover be legitimate, but that he should name secretary of the treasury william macado to run the railroads. although wilson recognized mcado's talents, he needed his son-in-law at the treasury department to cope with the many problems of financing the war. surprisingly, given his well- known view on the limitations of individuals to run large enterprises, the justice told wilson that mcado could do both jobs and do them well. less than a week later, the white house announced that government would take over the railroads for the duration of the war, and wilson named macado as to an extent that would be deemed highly questionable these days, members of the
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administration frequently consulted with members of the justice, although they did so quietly. throughout the war, brandeis made recommendations for certain positions or met with cabinet members. shortly after the declaration of war, macado made the first of many trips to the brandeis apartment, seeking recommendations for extended treasury agencies, but also for a mission that wilson wanted to send to russia. the former mayor of cleveland and now secretary of war had only known brandeis before the war, but he also became a regular visitor. brandeis let it be known to wilson and others that rather than go to cape cod after the court recessed in june 1917, he would stay in washington over the summer. as he wrote to alice, he had a very busy schedule those months. when baker asked felix frankfurter to prepare a memorandum on dealing with strikes caused by the medical iww, frankfurter submitted it
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with a note that brandeis had read and approved it. henry l stinson, generally not crowded, bernard, many others also found their way to stoneleigh court. brandeis had great respect for herbert hoover, who wilson put in charge of full production and distribution. the only person who seems to go forward is hoover, brandeis told his wife, yet he "has no authority in law for practically anything." when brandeis told his brother they had some ideas on how to ,mprove moving of foodstuffs louis immediately put him in touch with hoover. after alfred made his recommendations, hoover asked him to join the food administration as hoover's special assistant. although wilson recognized that he would not be able to utilize brandeis's talents in any formal
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capacity while he remained on the court, he continued to talk with him on everything from organization to appointments, and every time a new problem came up, people would suggest putting brandeis in charge. wilson knew that if he appealed to brandeis as a matter of came up, people would suggest patriotism, brandeis would leave the court. but it had been too great a struggle to get him onto the bench, and the president had no intention of taking him off. at a meeting with rabbi stephen wise after wilson complained about how hard it had been to get someone for an important post, wise had said, why don't you ask justice brandeis? i need him everywhere, wilson responded, but he must stay where he is. brandeis must have surely anticipated that at least some of the administrations actions would have constitutional repercussions, and could eventually come before the supreme court. in that case, would brandeis recuse himself? and if so, how would he explain it? or did he think that the advice
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he gave wilson on wartime power rested on such firm constitutional ground that should the matter reached the high court, the justices would overwhelmingly endorse it? as it turned out, a number of matters did come before the court. before looking at these cases, we should note that the court has always tried to avoid getting in the way of the other branches of government during wartime. it will hear of cases involving life as soon as possible, but if it involves property and other matters, it will put them off until after the war. in economic matters, if the government exceeded its authority, monetary payment will make property owners whole again. but if lives are involved, that is another story. the administration wanted the court to hear challenges to the draft as soon as possible. if for any reason, the high court found the draft law unconstitutional, the government did not want anyone to die
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because of an invalid law. the court consolidated several challenges, and heard them in late 1917. olai said, professor capaz will discuss them in two weeks. the court wanted, within constitutional limits, to be as helpful in the war effort as it could. although none of the justices went out to enlist as frank murphy did in the second war. when felix frankfurter recognized that two labor cases were on the calendar for which he was supposed to be counseled, he worried because as a government official now, he would be unable to argue them. the attorney general of oregon was willing for the court to decide just on the basis of the briefs, but brandeis had been involved earlier in those cases when he would have to recuse. frankfurter was not sure a majority of the remaining justices would support the cause. he made an appointment to see chief justice edward douglas wright.
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after exchanging a few pleasantries, he said, i son, what -- my son, what brings you here? frankfurter, who knew white was a devout catholic, said mister chief justice, i am not at all clear that i should put to you this matter. but i come to you as though to a confessional. leaning forward, white said, tell me, my son, just speak freely. so frankfurter did, and a few days later, the court had turned down oregon's request to have the cases decided on the briefs. in a similar vein, the court wanted the administration wanted -- the administration wanted the court to delay deciding an important antitrust case. during the taft administration, the justice department had begun an antitrust suit against the united states steel corporation. it had slowly wended its way to the lower courts, and was due to be argued before the supreme court at the october 1917 term. whatever its other faults, the company made steel, armor plating, and other products
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desperately needed by the army and navy. the wilson administration was not willing to abandon the case. but neither did it want a decision in the middle of war that, if the government won, would lead to the breakup of the great corporation. the country needed that steel, and once again the court quietly helped. it delayed hearing the case until march 1, 1920, nearly 10 years after the complaint had been filed, and then dismissed the suit. now, crusaders against drink had won their first victory in congress with the passage of the webb canyon act in 1913. that measure reinforced state prohibition laws by closing up the channels of interstate commerce to bring liquor into a state where its use had been prohibited. the statutes did not have any provisions for federal enforcement per se, because up
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until this point, the prohibitionist had always intended that states should enforce dry laws. a divided court upheld that law in 1917. since many states refused to adopt prohibition, they saw webb canyon as a sort of blueprint for the next step, a traditional amendment. the law had a nascent concurrent enforcement provision, that is, it could be enforced by both state and federal power, but under a constitutional amendment, the federal power would certainly be exercised. the war give them a great boost. when the draft law passed in the spring of 1917, congress forbade the sale of liquor to serviceman, and also prohibited alcoholic sales within five miles of military bases. which had the effect of closing down dozens, perhaps hundreds of saloons and brothels in many cities. believer act, under the mandate of preserving scarce food resources, authorized the president to limit or forbid the
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use of foodstuffs in the production of alcoholic beverages. the revenue act discouraged drinking even without prohibition. in 1917, the tax on whiskey $3.20 afrom $1.10 to gallon. while the beer tax doubled from $3.00 a barrel. there are many local authorities to enforce prohibition, especially in large cities. it led them to seek a constitutional amendment in order to get stronger federal enforcement. in december 1917, congress passed a constitutional amendment and sent it to the state for ratification. please note that in order for congress to pass a constitutional amendment, it requires a two thirds majority in both houses of congress, both in the house and the senate. the 18th amendment was not foisted off on the country by a small cabal of prohibitionists. it clearly had widespread
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support, and as i said, was seen by many people as a reform measure. wilson issued a series of war proclamations from december 1917 through september 1918, that in effect, established near-total prohibition. one week after the armistice, wilson signed the wartime prohibition act, which made it illegal to sell alcoholic beverages in the domestic market. even though the fighting had stopped, and the armistice signed, a peace treaty had not been signed, and technically, the united states remained in a state of war until that peace treaty would be signed. the kentucky company could not market whiskey that had been holding in its warehouses for two years, and went to court arguing that since the war had ended, congress could no longer exercise war powers. the law, it claimed, violated the 10th amendment. in december 1919, a unanimous court upheld the law.
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as brandeis explained, although the 10th amendment normally conveyed the power to regulate alcohol in the states, congress had a legitimate interest in maintaining wartime mobilization, even though the fighting had ended. just because -- excuse me. just because the hostilities had ceased, it did not mean that they might not break out again. congress had the responsibility for ensuring that country would be prepared if that occurred. because the various wartime measures had given the dry forces a great deal of momentum, we need to follow up on this because, in many ways, prohibition is one of the world's constitutional legacies. in january 1919, the 36 states the 36th state ratified the 13th amendment with nationwide prohibition to go into effect one year later. in october 1919, congress, over
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wilson's veto, passed the volstead act. the finding in intoxicating beverage as one with 0.5 percent or more alcohol by volume. if you let a glass of cider sit outside for a day or two, that is about what it would be. at the beginning of 1920, the court heard a challenge to the volstead act and upheld the law by a slim 5-4 decision. in jacob ruppert versus kathy brandeis, they spoke to the majority and explained that the states in legislation and judicial decisions had consistently determined that prohibition laws were ineffective unless they embraced nearly all drinks that included alcohol. since congress had the power to prohibit intoxicating liquors, it could adopt such means as it concluded were necessary to the administration of the law. although the fighting had stopped, there was still no peace treaty, and so the implied war power over intoxicating liquors extends the enactment of
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laws which will not merely prohibit the sale of intoxicating liquors, but will effectively prevent their sale. the plaintiffs had argued that a drink with 0.5 percent alcohol was not intoxicating, brandeis said that did not matter. it did not concern the court. determine some standard, and the judiciary would not second-guess the determination made by congress. there is a dissent in this case, however, and it is a rare instance in which justices question the need for wartime interference with private property rates. the opinion by justice james c mcreynolds, joined by william r day, was incredulous that a ban on intoxicating beer could be imposed nearly a year after the end of the fighting. food was now abundant, and the ban could no longer be justified as a war measure. as far as these three were
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concerned, the idea that war powers could still be exercised because a piece treaty had not been signed was a nonsensical fig leaf. the dissent, however, is important in that it foreshadowed how the conservative court of the 1920s and early 1930s would behave. because the court had not heard any of the property cases during the war, the libertarian mcreynolds had been unable to comment on the administration expansion of governmental powers . as they now said, that expansion should never have taken place. "the constitution of the united states is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times and under all circumstances. the suspension of constitutional limitations during times of great exigencies leads directly --anarchy or depositions him
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or despotism." in the next great one, this view commended a majority of the court, and led to the constitutional crisis of 1937. although all but two states eventually ratified the 18th amendment, there was a great deal of anti-prohibition sentiment in the country. in to court not only to challenge the implementing legislation, but the amendment itself. in 1920, a distinguished battery of lawyers, including william guthrie and the venerable ella horoot attacked the amendment on two grounds. first, they claimed the constitution had not created an unlimited amending power. and the 18th amendment involved subject matter that should not be reached in the constitution. a view, by the way, that is now widely held. enforcement provision of section 2, giving both congress and the states
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concurrent powers undermine the federal system. according to -- hang on a second. sticky pages. the amendment was "wholly inconsistent with the fundamental idea upon which the american union is based. for it intruded upon local self-government. in the interest of free government, he argued, will not endure too much limitation of personal liberty. the court brushed aside both arguments in the seven suits consolidated in the national prohibition cases in 1920. the 18th amendment had to be treated the same as any other amendment, and section 2 did not alter the traditional lines of authority. congress had plenary power that could reach both inter- and intrastate congress. the states' concurrent power did nothing more than supplement federal power. in essence, the court said that section 2 meant nothing. there is another case that came
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down between attacks on the volstead act and the 18th amendment. in june 1920, the high court unanimously supported efforts by opponents of both women's suffrage and prohibition, to allow a voter referendum to override the ratification of amendments by the state legislators. in other words, even if a state legislator had ratified the suffrage or prohibition amendments, a voter referendum could nullify it. justice ney spoke for the unanimous court and holding that a state could not deviate from the ratification methods prescribed by the constitution. going back, in the summer of 1916, congress as part of its preparedness legislation, that -- had authorized the president to take over the railroads in wartime. but wilson did not act as we have seen until he consulted with brandeis in late december 1917. after that meeting, wilson had orders to take over, and under its terms, the government would run the railroads and the finance the purchase of new
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equipment, and compensate the owners after the war for the use of their property. the law under which wilson acted did not suspend, however, the lawful police regulation of the several states. and allow the states to tax the railroads. director general mcadoo established a rate system that covered intrastate as well as interstate service. and despite the statutory line that had no interest in submitting interstate schedules to regulatory agencies. the utilities commission filed suit to block this action and won a victory in state courts which ruled that the federal government has exceeded its authority under the commerce clause. mcafee appealed to the supreme court, and 37 states joined the suit on behalf of north dakota. the supreme court unanimously reversed with chief justice writing a sweeping opinion upholding the authority of the president. in taking over the roads, the chief executive had not been
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bound by the limits of the commerce clause, but operated under the war powers of the country, which according to white, reached as far as necessary. moreover, since the government had promised to compensate the railroad owners, it had not violated the taking clause. there are several things noteworthy about this decision. first, brandeis did not recuse, even though his advice had been critical in wilson's decision. second, although he did not use the word adequate, white's opinion is definitely within the parameters of the adequacy of the constitutional theory on which lincoln had relied, and very much paralleled the speech that professor waxman will talk about next week. third, the court had been in no rush to hear this case. it had not been argued until may 5, 1919, and decided a month later. the case did not involve bribes, and the government had already promised the railroad owners to compensate them.
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the labor act, which governed the production and distribution of food, proves to be the only wartime statute to run afoul of the courts, and that in only one provision. the grocery company was charging $10.07 for 50 pounds of sugar, and $19.50 for 100 pound bag. prices that were outrageously high, even during the inflation that followed the war. in 1919, congress amended section 4 of the labor act, which criminalized the making of any unjust or unreasonable rate. the law was intended to prevent serious rates of interest, that is rates so high as to be completely unfair and unethical. but it also made it illegal to charge unreasonably high rates for necessities. congress, however, failed to define what constituted either a you serious rate of interest or
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an unreasonable price. they instead delegated that to the courts. cohen argued that they could not assign the legislative powers to another branch and the amendments were unconstitutional for having done so. the court agreed unanimously. they struck down the law as overbroad and vague. to declare something illegal, congress had to do more than merely describe it as unreasonable. two things to note about this case. first, because the court voided the law on vagueness grounds, it did not have to decide whether congress had unconstitutionally delegated its power. second, the court made it clear that the federal government during wartime did have the power to fix prices. remember what brandeis said about hoover? he has no authority over anything. in this case, the court was judging what hoover and the
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court had done during wartime. among the various things that the government did during the war that no administration had done before was to fix rental prizes. in october, although hostilities had ceased, much of the federal government remained on wartime footing. congress established a commission with the power to regulate property rental rates in the district of columbia the -- the district of columbia. the size of the government had expanded enormously to the war to the creation of new agencies and expansion of old ones. hundreds of people was working for the war industry board, nearly all who have come to washington from other places. witharly, mcadoo, faced the complex job of financing the war, hired hundreds of people, and again, most of them came from out of town. home-building had practically stopped, not only in washington, but around the country as a government took all building materials to erect the various training posts needed to turn
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civilians into soldiers. the housing shortage in the capital led many landlords to raise the rent to a point that government workers could not afford. the statue essentially said that tenants could stay in their rented property passed the date their lease has expired. as long as the tenant paid the rent, he could stay indefinitely, and the landlord could not change the lease, including the rentals. block was a lieutenant in an apartment building on f street. block toord wanted leave so he and his family could move in. the statute provided that if the owner wanted to occupy the premises, he could evict the tenant, but he had to get the tenants 30 days notice. hersh did not give the requisite notice, block refer used -- block refused to move, hersh went to court, and the court of appeals declined the statute -- declared the statute
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unconstitutional, and he appealed to the supreme court. in a 5-4 decision, the court upheld the validity of the law. wartime circumstances had close -- with a public interest so great just by regulating bylaw. in times of trouble such as war, governmental action otherwise considered impermissible, it must be allowed. one line in the opinion deserves special notice. the question that he declared was whether congress was incompetent to meet the emergency in a way that had been met by most of the civilized countries of the world. he took a very broad view of federal police power, a power that many conservatives denied even existed, in which he claimed extended to all of the great public needs, it could be exerted to meet whatever the prevailing morality or public opinion deems necessary, and it would be adequate. in this case as in several
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others, the court majority essentially said that emergencies could close the government with expanded powers. not only those under specific constitutional clauses, but also under general police power. it was concluded that the criteria clear, and the term limited to two years. in a companion case, the court upheld a similar new york statute. not everyone agreed with holmes and some dissented. argued in the case that emergencies did not create new powers to wipe away constitutional limits. mckenna took the same position. whereas holmes that essentially put forward an adequacy of the constitution argument, mckenna admitted that while war constituted an emergency, they neither created new powers or abolished the constitution.
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the argument had not been settled with another emergency -- when another emergency arose a decade later, the great depression. it once again raised the question of how far the government could go in trying to deal with it. by the time the court had heard the case, its two year limit had already expired. the last shots of been fired on the front two and a half years earlier, the league of nations have been defeated by the senate, and warren harding, not woodrow wilson, lived at 1600 pennsylvania avenue. within a few months, white would be dead and william howard taft would become chief justice. nevertheless, the rental commission stayed in business, and in august 1922, ordered that rents in an apartment building be reduced. the owners brought suit and when the case reached the supreme court, and opinion was again delivered, this time for a unanimous bench. the emergency had passed, and government could no longer exercise the powers that come into being with the war.
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the great war, as you can see, left an indelible constitutional footprint on american history. the decisions that came before the high court would have a lasting influence. when the united states had to prepare itself for the second world war, nobody questioned the constitutional legitimacy of the draft or the huge expansion of governmental powers exercised by the administration. although we tend to think of the 1920s as a reactionary period, with the taft court striking down one reform measure after another, the picture is not entirely true. it needs refinement. although mcreynolds and other conservatives wanted to treat the war as a constitutional anomaly, the court majority upheld the expansion of federal powers even in peace times and certainly privileged federal authority over that. -- over that of the states.
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in addition, the supreme court in the 1920's slowly began the incorporation of the bill of rights to the 14th amendment due process clause. that debate began with the wartime speech cases in 1919. during the great war, one person paying very close attention to how the government's authority expanded to meet the crisis was the young assistant secretary of the navy franklin delano roosevelt. the new deal often employed the analog of war. roosevelt promised in his 1933 inaugural that if congress could not solve the problems caused by the depression, he would ask for "broad executive authority to wage war against the emergency as great as the power that would be given to me if we was in fact invaded by a foreign foe."
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the key legislative proposal, the national industrial recovery act, was modeled on the war industries board. and roosevelt, like lincoln before him, intuitively understood that the constitution would be adequate to meet the demands both of the depression and war. thank you. [applause] [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [applause] sunday,r: join c-span veterans day, live at 4:30 a.m. eastern for the 100th anniversary of the end of world war i, with trench president emmanuel macron speaking at seven -- speaking. at 7:30, washington journal is live, and american history tv on c-span3 for a special call in program about what was hoped to
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be the war to end all wars with a loyola university professor and a georgetown university professor. president -- live live coverage of president trump at a world war i ceremony in paris. at 11:00, the wreath laying ceremony at arlington national ceremony. and coverage continues at 5:00 p.m. eastern, with the liberty medal awards. eastern,3 at 9:00 historians narrate the 1921 silent film document in the journey of a world war i soldier's remains from france to arlington national cemetery. the cemeteryisit in northeastern france, the final resting place for alover 1400 american

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