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tv   U.S. Supreme Court During World War I  CSPAN  March 19, 2019 11:19pm-12:18am EDT

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cspan3 every weekend. wednesday night we will focus on women's history month with programs about women soldiers and feminism in the '60s and '70s and the suffererage movement almost 100 years ago. watch american history tv in prime time. 2018 marked the end of world war one, next author and historian melvin described the constitutional issues the supreme court faced during the war. he is introduced by current justice at an event hosted by the supreme court historical society. i am the vice-president of
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the historical society. welcome everybody here to our first lecture of the 2018 lecture series which is dealing with the supreme court and world war one. this being the 100th anniversary of the end of world war one. way have an interesting lecture. before i go further however i am instructed to tell you to please turn off any cell phones, apple watches, whatever gadgets you have so they don't interfere. thank you. as you know our host tonight is justice sodamyor. we are pleased to have her with us tonight. we want to thank her when we call upon her to participate in events like this because it is
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quite important to us and you and we appreciate it. i will tell you about the justice. she is a native new yorker born in the bronx and very unhappy about last night's baseball game i guess, boston red sox. undergrad at princeton and went to yale law school and joined the da's office. after several years entered private practice in new york and was a lit gator in the international and commercial lawyer industry. she had become a federal district judge in new york. six years later she became a circuit court of appeals judge on the second circuit in new york. that was 1998. 11 years after that she
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found her self here on the supreme court. she and one other justice in the modern era are the only justices who served on all three levels of the federal judiciary. justice whitaker was appointed by the same president, president eisenhower and justice was appointed by three different presidents, george h.w. bush, the district court, president clinton to the circuit court and president obama to the supreme court. she has found time to write books somehow about her life in particular. let me just turn the program over to her. it's a real privilege to introduce her at this time.
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it was a miserable night last night. good evening. welcome to the court. i am delighted so many of you can join us this evening for this first lecture in the supreme court historical society 2018 lecture series, which this term as you heard will focus on the supreme court and world war one. 2018 marks a century since the first world war ended, a fitting moment for the society's series to focus on that important chapter in our nation's history. this series is named for the historical society's late chairman and president, leon silverman who is a titan of the new york legal word.
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it was impossible to practice in new york without knowing leon. 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 the 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 it's members do to promote the history of the court. this evening we will hear from professor melvin. he is professor of history at
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virginia commonwealth. he directed vcu's administration and chaired the history department. you should know that history was my major in college. before that he received his ba and phd from columbia university and today since he semi retired in 2003 i'm sure his lovely wife will probably take umbrage with using the word retired he keeps himself nimmable by teaching history at american university in dc. he is a prolific historian and scholar and has written on many topics on history and has served for the past 25 years as the chairman of the board of editors of the journal of supreme court history. over the years he has held many
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fellowships and grants from the endowment for humanities and the american historical association and many others. i want to highlight two of his works, his biography of justin brandice won many accolades including the jewish book counsel's award as the book of the year and ambassador's award given by the english speaking union of the united states and one the historical society world prize, one of seven ever awarded. his latest work, descent in the supreme court, he just told me i will have to read it now. i could continue to list his
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many accomplishments, but i fear it would leave no time for his insights and i am looking forward to hearing what he has to say about the world war one. i hope you will join me in welcoming professor melvin. thank you. i know she is triple booked tonight so that i really appreciate the time you booked. let me start out with what my mentor taught me many years ago. begin with a story. here is the first part of the story. alex brandice was in her
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apartment in a cold december day catching up on boston news with her old friend elizabeth evens when the phone rang. who is there she asked the operator. the president. when alice asked who was calling again the operator says president wilson. realizing it was no joke she told the girl to transfer to call to 809, the small apartment upstairs justice brandice used as a study. within an hour wilson arrived and went up to see the justice while the two secret service men 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 unlike any they ever fought before. my assignment tonight is not as it has often been to look at one particular justice although
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i will do a little of that or discuss one set of cases and 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 the series. the great war as it is still called in europe began in august 1914, a war that no one wanted and nearly everyone predicted would never happen. there is disagreement about the total number of casualties, before the fighting ending over 8 million soldiers and 12 million civilians had died. germany lost 1.74 million wounded. the united states did not enter the conflight until april 1919 and the first troops arrived in france the following september. in the 14 months following, 50,000 americans lost there
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lives. now the last big war that the united states had fought before then was that between the states from 1861 to 1865. while the conflict remains a number of issues, the emancipation of slaves, for the most part court decisions played a relatively minor role. lincoln has been accused by southern simp thesers of ignoring the constitution. he did stretch the constitution. before the civil war the accepted view held the constitution created add government of restricted patterns. under john marshal the supreme court broadly interpreted the reach of delegated powers but
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marshal often referred to the government as one of limited authority. while southerners took a narrow view of federal powers, even the ladder shed this framework. if true, the government had no powers to wage a war against the succession of states and the union would collapse while the obvious answer was to amend the constitution this route was tactical with the united states. to support the prosecution of the war, northern writers developed what the abolition legal scholar called the adequacy of the constitution. they argued the southern emphasis on the negative constraints in the constitution hid the positive commandsments for the government to act effectively to preserve it's
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and the union. george fissure explains the president and congress had the power to react to concrete situations and they had the discretion to choose the most effective means to do so, preserving the union constitute add positive requirement of government even if the particular means not been specified in constitutional detail. as timothy explained in his recent study of issues in the civil war, the constitution would need to be adequate to meet the needs or be abandoned and the latter choice was unthinkable so lincoln expanded the understanding of constitutional power in his reaction to succession and he also resolved the antibellum
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debate over state suvernity by asserting the idea of america as a unitary state, one empowered by and athed on the authority of the people, the assertion the war was fought so quote government by the people, for the people shall not perish from the earth. the federal government grew in size and power during the war years after the end of reconstruction in 1877 the old theory of limited government returned. between 1878 and 1917 the only war the country faced involved the army subduing the indian tribes and a war against spain that left the united states
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with new possessions. roosevelt's use of the puppet, although he would like to have lead the nation in war time that fell to wilson. wilson had been a former government professor and had written popular books on the state of national government and he knew the writings of scholars like farrar and fissure but he remained an unreconstructed jefferson that opposed big government. in the 1912 election wilson counted roosevelt's national ism in which big business is kept in check by the rules of competition. when germany resumed unrestricted boats, a neutral shipping going to the allies
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which included american boats, wilson had little choice but to ask congress for a declaration of war. 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 of preparedness should it become necessary to enter the war. at the suggestion of secretary of war, baker, congress authorized the creation of national defense but although it had an implied mandate of helping to mobilize the private sector for war production, no one knew what it could or should do. it had little authority, the army and navy sorted the shield between them and politics but the bill passed envisioned something vaguer and when the budget of $10,000, as far as
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congress was concerned the counsel would play a minor advisory role. a friend wondered if there were constitutional issues during the war. i assured her there were and promised to talk about some of them tonight. here it is. here is a short list of questions that came up in the war. military constriction. although both the union and confederacy had resorted to drafts there had not been popular and since the well to do man could pay someone else to take his place. the draft came before the supreme court but i will say little about it because that's
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the subject of professor christopher's presentation on october 23. secondly economic regulation. war lead to increased federal regulation of economic activity, a combination of statutes and executive orders let the government regulation of areas as diverse as agriculture, manufacturing, mining, rail roads and telegraphs and represent control. two of the most important laws passed by congress, the weber act and the oberman act of 1918 gave the federal government enormous control over agriculture and industry and never before seen in history. both these wars formed part of the template for roosevelt's new deal efforts to fight the
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great depression. three, labor relations. years ago the historian richard huffstetor noted war is the enemy of reform. during the first war the reform was strengthened. the war worked to reduce labor management strife and forced manager to pay workers a decent wage. wilson himself took a keen interest in hourly wages. welfare groups played a role in training troops and urban reformers help build the many army camps needed to house and
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train soldiers. four, infranchisement of women. it is little wonder women saw an opportunity to win the suffrage. because suffrage had been considered a matter of state power and today despite the 15th amendment and the voter rights act women had begun mobbing state legislations after the civil war. the wyoming territory gave women sufferrage but by 1900 only four states allowed women to vote. the movement picked up steam in 1912 when a social worker returned from the suffrage of england. when they broke up the pray
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they had the publicity they needed. by 1916 the republican party endorsed a women's suffrage amendment and 11 states had given women the franchise. wilson opposed giving women the vote. he appears to endorse insisting states should control the suffrage. the women's party chained themselves to the fence and went on hunger strikes in prison. when the united states entered the war, allegedly the same democracy wisdom dictated one could not send americans to fight and tie overseas while denying it to half the population at home. wilson finally went before
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congress on september 30, 1918 to recommend the constitutional amendment. congress turned down similar proposals and while the house passed it easily the senate rejected the proposal in 1918 and twice in 1919. congress finally approved the 19th amendment on june 4 of 1919 and tennessee became the 36th state to rat phi in time for women to vote. the prohibition of alcohol. prohibition has a bad name, the great experiment that bailed al capone that we forget it constituted one of the most important of the progressive reforms. the leaver act under the mandate of preserving scarce
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food authorized the president to limit food stubs to make alcoholic beverages. we will have extensive participation by the court on this issue. six, personal liberties we have to deal with emerging modern notions of free speech and press. that will be covered in the last of the lectures on december 6. during the war of congress the administration has passed the most restrictive laws on speech and press since the alien act at the end of the 18th century. seven, the league of nations. too often the fight over american entry is portrayed as a spitball fight. wilson and senator lodge of
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massachusetts. that is only partially correct. the constitution gives americans treaty making powers but needs approval of 2/3 of the senate. this is a typical example of the checks and balances built into our system by the framers yet wilson took no senator with him and when he returned with the treaty he brushed off the senate. saying the document had been signed and the senate had to be committed. the senate jealous of its powers did not agree. wilson should have known better. in his book he wrote that when faced by a stubborn senate a president might follow a course which one of two presidents of unusual political have followed with the results that were to
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have been expected. the senate had legitimate questions. one stood out more clear than article 10 which called for collective action against aggression. did this mean that if the east ratified the treaty and joined the league it automatically had to go to war. this implied the constitutional requirement that only congress could commit the country to war. wilson's stubbornness would have no changes. his interpretation of presidentple showers would not allow him to compromise and together with the senate on doing its constitutional duty of reviewing treaties he played into the hands of his
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opponents. the stand off between the two branches of government had important effects. when truman went to the conference in 1945 with the carter of the united states would be sign he took senators from both parties with him. he would have fit into wilson's group of presidents. eight, the growth of presidential power. congress delegated a great deal of power to the president, hughes who had been the republican candidate in 1916 justified the expansion of government power in a speech to the american bar association, the importance of his argument was explored by a professor one week from tonight. now all of these issues
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presented questions but not all of them came up bef the court. until fairly recently presidents often spoke with members of the court about policy matters, in world war ii franklin roosevelt consulted with three members of the court, jackson and frankfurt and william douglas. wilson had one member of the court whose advice he trusted and brandice became one of his closest. the matter that concerned wilson involved rail roads and there seeming inability to move raw materials to plants or
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desperately needed finished supplies to ports so they could go to the troops in europe. people clamoring for the government to take over the rail lines turning them into a unified system and give one man the authority to run it. although the attorney general assured the president such a step is legal sense congress empowered the president to do so wilson had his doubts. both about taking over the lines and setting up a powerful government agency. he went to see the one man whose advice he would trust, the man called the art tect of the new freedom. brandice understood that in war time things had to be done differently.
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and reassured the president that not only would the take over be legitimate but he should name secretary of the treasury to run the rail roads. although wilson recognized his energy and talent, he needed his son in law at the treasury department to cope with the problems of financing the war. giving his well known view to run enterprises the justice told wilson he could do both jobs and do them well. less than a week later the white house announced government would take over the rail roads for the duration of the war and wilson named him as the director general. to an extent that would be deemed highly questionable these days members of the administration consulted with the justice although they did so quietly. throughout the war brandice make recommendations of men to certain conditions or met with
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cabinet members. after the declaration of war he made the first of many trips to the apartment, seeking recommendations for expanded treasury agencies and for commission that wilson wanted to send to russia. he became a regular visitor. brandice let it be known that rather than go to cape cod after the court recessed in june of 1917 he would stay in washington over the summer. he had a very busy schedule those months. when baker asked frank to prepare a memorandum on dealing with strikes frank submitted it with a note that brandice had read and approved it.
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henry, general crowder, brook, and many others found their way to stone lee court. brandice had great respect for hoover who wilson put in charge of food production. the only person who seems to go forward is hoover brandice told his wife yet he quote has no authority on law for anything. when brandice told his brother they had ideas on how to improve moving food he put him in touch with hoover. hoover asked him to join the food administration as the special assistant. although wilson recognized that he would not be able to utilize brandice's talents in any formal 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 suggest putting brandice in
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charge. wilson knew if he appealed to brandice, he would leave the court. but it had been too great a struggle to get him on to the bench and the president had no intention of taking him off. after wilson complained about how hard it had been to get someone for an important post he said why don't you ask justice brandice. i need him everywhere but he must stay where he is. brandice must have anticipated at some of the administration's actions would have repercussions and could come before the supreme court. how would he explain it or did he think the advice he gave wilson rested on such firm ground should the matter reach the high court the justice
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would endorse it. 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 war time. it will hear cases involving life as soon as possible but property and other matters were put off until after the war. it the government exceeded its authority monetary payment makes property owners whole again but if bribes were involved that was another story. they wanted to hear challenges of the draft. if the high court found the draft law unconstitutional the government did not want anyone to die because of an invalid law. the court had several
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challenges and heard them in late 1917. the court wanted within limits to be as helpful in the warefforts as it could. when they recognized the two labor cases were on the courts calendar for which he was supposed to be counseled he worried he would be unable to argue them. the attorney general was willing to the court to decide on the basis for the briefs but brandice had been involved earlier. frank was not sure the majority of the remaining justices would support the law. he made an appointment to see douglas white and white says my son what brings you. frankfurt says mr. chief justice i am not at all clear
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that i should put to you this matter but i come to you as though a confessional. white said tell me my son, just speak freely. so he did and the court turned down the request to have the cases decided on the briefs. the court wanted the administration to delay deciding an important antitrust case. during the administration the justice department had begun an antitrust suit against the united states steel corporation and slowly went towards the lower courts and due to be argued before the supreme court at the october 1917 term. the company made steel, plating and other products needed by the army and navy. the wilson administration was not willing to abandon the case but neither did it want a
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decision in the middle of war that if the government won would lead to the brake up of the great corporation. the country needed the steel and the court helped. it delayed hearing the case until 10 year after the case had been filed and dismissed the suit. crusaders won their year in congress with the passage of the web ken act that reinforced state laws from interstate commerce. the statute did not have any provisions for federal enforcement per se, up up the this point the prohibition intended states should enforce and a divided court upheld that
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law in 1917. since many states refused to induct prohibition, they saw web canyon for the next step, an amendment the war had an enforcement provision, it could be enforced by state and federal power but under an amendment the federal power would be exercised. the war gaves them a great boost. in the draft law passed in the spring of 1917 congress forbid the sale of liquor to service men and prohibited the sale of alcohol within 5 miles of a base. the leaver act authorized the president to limit or forbid the use of food stubs for the
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production of alcoholic beverages. in 1917 the tax on whiskey tripled from $1.10 but the accusal of local authorities lead them to seek an amendment to get stronger enforcement. in december 1917 congress passed an amendment and sent it to the state. please note that in order for congress to pass a constitutional amendment it requires a 2/3 majority in both houses of congress, in the house and senate. the 18th amendment was not on the country by a small prohibition, it had widespread support and as i said was seen by many as a reform measure.
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wilson issued a series of war proclamations that in effect established near total prohibition. he signed the war time prohibition act which made it illegal to sell alcohol in the domestic market. the fighting had stopped a peace treaty had not been signed and technically the united states remained in the state of war until that treaty was signed. the kentucky company could not market whiskey it had been holding in its warehouse and went to court arguing since the war ended congress could no longer exercise war powers, the law violated it claimed the 10th amendment. a unanimous court upheld the law. although the 10th ameantment normally conveyed the power to regulate alcohol, congress had
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an interest in maintaining war time mobilization. just because the hostilities had seized did not mean they might not break out again. congress had the responsibility for insuring the country would be prepared if that occurred. because the various war time measures had given the dry forces a great deal of momentum we need to follow up because in many ways prohibition is one of the constitutional legacies. in january 1919 the 36 states ratified the 18th amendment with nation wide prohibition going into effect one year later. congress over wilson's veto passed the act defining an intoxicating beverage as one
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with zero percent .5% alcohol by volume. >> the court upheld the law by a slim four to five decision.
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