The Great War, the Constitution, and the Court

Abstract

The Great War, the Constitution, and the Court MELVIN I. UROFSKY As I am a historian, let me do what my mentor, Bill Leuchtenburg, taught me: “Begin with a 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. “Who is there?” she asked the building operator. “The President.” When Alice again asked who was calling, the opera­ tor said “President Wilson.” Realizing it was no joke, she told the woman to transfer the call to 809, the small apartment Justice Louis D. Brandeis rented 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.1 We will get to what they talked about shortly, but first we have to set the context— the United States in a war unlike any it had ever fought before. My assignment is not, as it has often been in the past, to look at one particular Justice—although I will do a little of that— or discuss one set of cases, although I will do some of that as well. Rather, my task is to provide an overview, a context for the three remaining talks in this series of Leon Silverman Lectures. The Great War, as it is still called in Eu­ rope, began in August 1914: a war that no one wanted and that nearly everyone predicted would never happen. There is disagreement about the total number of casualties, but conservative estimates say that before the fighting ended, more than eight million sol­ diers and twelve million civilians had died. Germany lost 1.7 million dead and another four million were wounded. The United States did not enter the conflict until April 1917, and its first troops arrived in France the following September. In the fourteen months before the armistice in November 1918, 50,000 Americans fell in battle.2 The last big war the United States had fought was between the states from 1861 to 1865, and while that conflict raised a number of constitutional issues—such as the legitimacy of the blockade, the emancipation 252 JOURNAL OF SUPREME COURT HISTORY of slaves, and the suspension of habeas corpus—for the most part Supreme Court decisions played a relatively minor role. Abraham Lincoln has been accused, primar­ ily by southern sympathizers, of ignoring the Constitution and acting as a tyrant. Lincoln did neither, but he did “stretch” the Constitution.3 Before the Civil War, the accepted view held that the Constitution had created a government ofrestricted powers, which could act only in those areas specifically ascribed to 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 people in the North, even the latter shared this conceptual framework. If true, then the government in Washington had no powers to wage a war against the secessionist states, and the Union would collapse. While the obvious answer was to amend the Constitution, this route was impractical with eleven states in rebellion.4 To support Lincoln’s prosecution of the war, northern legal writers developed what the abolitionist legal scholar Timothy Far­ rar called the “adequacy of the Constitu­ tion” theory. Farrar and others argued that the southern emphasis on the negative con­ straints in the Constitution hid the positive commandments for the government to act ef­ fectively to preserve itself and the Union. As Sidney George Fisher, another legal writer, explained, the President and Congress had the power to react to concrete situations such as the rebellion and they also had 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 spelled out in constitutional detail.5 As Timothy Huebner explained in his recent study of constitutional issues during the Civil War, the Constitution would either need to...