Constitutional issues the Supreme Court faced during world war i. The first from Supreme Court justice and then a virginia Commonwealth History professor. Im Vice President of the historical society. I want to welcome everybody here to our first lecture of the leon silverman lecture series dealing with the Supreme Court and world war i. This being the 100th anniversary of the end of world war i. We have a very interesting series tonight. Before i go further, however, i am instructed to tell you to please turn off any cell phones, apple watches, whatever other gadgets you may have so they dont interfere with our system here. As you know, our host tonight is justice sonya sowed mior. I want to thank her on behalf of the society for giving her time when we call opinion her to participate in events like this. Because its quite important to us and quite important to you. And we very much appreciate it. Tell you briefly a little bit about the justice. Shes a native new yorker, born in the bronx. Very unhappy about last nights baseball game, i guess. She did 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. And after several years there, entered private practice in new york. And was a litigator in the International Commercial law area. 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 Circuit Court of appeals judge on the Second Circuit in new york. That was 1998. And 11 years after that, she found herself here in the Supreme Court. So she and one other justice in the modern justices Charles Whitaker are the only justice thats actually served on all three levels of the federal judiciary. Justice whitaker was pinlted to his position by the same president , president eisenhower. Justice sotomayor was pinlt bid three different president s, george h. W. Bush, to the district court, president clinton to the Circuit Court, and president obama to the Supreme Court. Somehow she has also found time to write some books. About her life in particular. I recommend them to you as well. But let me just turn the program over to justice soeta mior. Its a real prif lenl for me to introduce you to her this time. Gtz. Good evening, everyone. Welcome to the court. Im delighted so many of you could join us this evening for the first lecture in the Supreme Court historical societys 2018 leon virlman lecture series which this term, as you heard, will focus on the Supreme Court and world war i. 2018 marks a century since the First World War ended. A fitting moment for the societys first series to focus on that important chapter in our nations history. It was impossible to practice in new york as i did without knowing leon silverman. 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 lek tires and all the members do, to reflect on the history of the court, my colleagues and i are very grateful. This evening, were hearing from a professor. He is professor of history at the virginia commonwealth university. 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, im sure his lovely wife will probably take umbrage with using the word retired, he teaches history here in washington, d. C. Professor is a prolific historian and scholar. He has written on many topics in constitutional 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 fellowships and grants from the National Endowment for the humanities, the American Council of learneded societies, the Virginia Foundation for the humanities, and the American Historical Association and many others. I want to briefly highlight two works. The biography published in 2009 won many accolades including the Jewish Book Council award as book of the year and ambassadors award given by the English Speaking union of the United States. And won the historical societys prize, one of only seven ever thank you. I know shes triple booked tonight. I really appreciate the time that you have taken. Since i am a historian, let me start out with what my mentor taught me many years ago. Beginning with the story. So here is the first part of the story. Alice 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 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 used as a study. Within an hour, Woodrow Wilson arrived at stonily court and went up to see the justice. While the two secret servicemen who accompanied him waited outside the door. Well 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 it had ever fought before. My had a signment tonight is to look at one particular justice. Although i will do a little of that. Or discuss one set of cases. 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, began in august 1914, a war that no one wanted and that nearly everyone predict wod never happen. There is this agreement about the total number of casualties but conservative estimates said that before the fighting ended, over eight million soldiers and 12 million civilians had died. Germany lost 1. 7 million dead and over four million wounded. The United States didnt enter the conflict until april 1917 and the traps arrived the following september. In the 14 months before the armistice in november 1918, 50,000 americans lost their lives. The last big war that the United States 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 suspension of habeas corpus, they played a minor role. Lincoln has been accused by southern sympathizers of ignoring the constitution anticipate acting as a tirade. Lifrpgson denied either. Did he 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 adescribed to it. Though had the delegated pow aerers and marshal referred to the government as one of limited authority. Sovereigners took a narrower view of federal powers than did those in the north, even the latter shared this framework. The union would collapse. The obvious answer was to aem the constitution, this route was impractical with states in succession. To support lincolns prosecution of the war, northern legal writers developed what the abolitionist scholar called the adequacy of the constitution. He and others argue that the southern emphasis on the negative constraints in the constitution hid the positive commandments for the government to act effectively. To preserve itself and the union. As george fisher, another legal writer explained, the president and congress have the power to react to kron kreet situations such as the rebellion and they 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 specified in constitutional detail. As timothy 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 ababd ond. The latter choice was unthinkable. So lincoln expanded the understanding of constitutional power. And so doing he also resolved, excuse me, the antidong debate over state sovereignty versus National Supremacy by asserting the idea of america as a unit state. One that was empowered on and enacted on the authority of the people. The famous assertion that war was fought so the government of the people, by the people, for the people, shall not parish 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 armies of doing the interian tribes and what john haig called a splendid little war against spain that left the United States with new possessions in both the caribbean and the pacific. That was what modern president s could do although he would have liked to led the nation in wartime that, task fell to Woodrow Wilson. Wilson had been a former government professor and had written popular books on the state and national governments. He undoubtedly knew the writings of scholars like ferar and fisher, but constitutionally he remained unreconstructed je jeffersonian who posed Big Government. He countered roosevelts new nationalism in which big business is controlled by Big Government with the new freedom. In which big business would be kept in check by the rules of competition strictly enforced. Wilson had little choice but to ask congress for a declaration of war on april 2nd, 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 state of preparedness should it become necessary to have to go to war. At the suggestion of secretary of war baker, congress authorized the creation of a counsel of National Defense but although hit an implied mandate of helping to mobilize the private sector for work reduction, no one really knew what it could or should do. And it had little authority at its behest. The army and navy initially saw it as a sort of shield between them and pork barrel politics but the bill passed by congress envisioned something even vaguer and with a budget of only 10,000. As far as congress xernd, the counsel would play a minor advisory role. In conversation i had a few weeks ago, a friend wondered that there were constitutional issues during the war. I assured her that indeed there were and i promised to talk about some of them tonight. So cybil, here it s here is a short list of constitutional questions that came up from the war. One. Military prescription. Although the union and confederacy resorted to drafts during the civil war, there had not been they had not been popular. Especially since excuse me since a well to do man could pay someone else to take his place. The constitutionality of the draft law in 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 christophers presentation on october 23rd. Secondly, economic regulation. The war let to increased federal regulation of economic activity. Two of the important laws passed by congress in 1917 and the 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. Both the laws should be noted formed part of the template for franklin d. Roosevelts new deal efforts to fight the great depression. Well talk more about this because some of these issues did, in account fa, come before the court. Three, labor relations. Years ago the noted historian wrote that war is the enemy of reform. Yet during the first warld wore, restorm was strengthened rather than weakened. The war labor board cochaired by william tast reduced strife and also forced management to pay workers a decent wage. The war labor policies board headed by frankfurt tried to set policy for wages, hours, and union recognition. Wilson himself took a keen interest in hourly wages. Social welfare groups played a role in training american troops and urban reformers helped build mt army cams needed to house and train soldiers. The enfranchisement of women. In an era of reform, it is Little Wonder that women saw an opportunity to finally win the sufferage. Because sufferage had always been considered primarily a matter of state power, and even so today despite the 15th amendment and the 1965 Voting Rights act, women have begun lobbying state legislatures right after the civil war. 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 from england. Adopting the technique she had learned in the mother country, she led a march on washington the day before wilsons inauguration to promote the new goal of the movement, a constitutional amendment. 11 states gave 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 sufferage. But the president found themselves in a rapidly shrinking minority. Under pauls leadership, the new womens party regularly picketed the white house and provokeded arrests 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 americans to fight and die overseas while denying the population at home. Wilson went before congress on september 30th, 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 1918 and twice in 1919. With wilsons backing, however, Congress Finally proved the 19th amendment on june fourth of 1919 and tennessee became the 36th state to ratify on august 18th, 1920. Time for women to vote in that years president ial election. Five, the prohibition of alcohol. Prohibition has such a bad name in our history. The great experiment that ultimately failed, al capone, et cetera, that we oven forget it constituted one of the most important of the progressive era reforms. The liefer act under the mandate of preserving scarce food resources authorized the president to limit or forbid the use of food stuffs to make alcoholic beverages. On this issue well 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 and that topic will be covered by professor laura winetrip in the last of the silverman lectures on december 6th. Suffice it to say for now that during the war of congress at the administrations behest, past the most restrictive laws on speech and press since the aliens act 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 between two groups, wilson and senator henry lodge of massachusetts. That scenario is only partially correct. For the agreement to go into effect it needs approval of twothirds of the senate. This is a example of the checks and balance built into our system of government by the framers. Yet, wilson took no senator with him to the powers conference and when he returned with the treaty, he essentially brushed off the senate saying now the document had been signed, the senate had to be committed to it as well. The senate jealous of the 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 might well follow a more conciliatory course, which one or two president s of unusual political have followed with the satisfactory results that were to have been expected. The league of nations covenant 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 aggression occurred . What did this imfly only congress could commit the country to war . The allies were willing to yield on this point but not wilson. Wilson with have no changes. The interpretation of president ial powers, despite what he had written earlier, would not allow him to compromise and together with the senates insistence on doing its Constitution Constitutional duty, he played into the hands of the opponents. The standoff between the two branches of government had effects and no president after wilson dismissed the role of the senate in making treaties. When harry truman went to the charter of United Nations signed, he took senators from both parties with him. Truman fit into Wilsons Group of president s with unusual segacity. Eight, the growth of president ial power. Congress delegated a great deal of power to the president. Often with many misgivings. Charles hughes justified the expansion of government power in a speech to the american bar association. 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. President s often spoke with members of the court about policy matters. In world war ii, for example, roosevelt consulted freakily with three members of the court, felix frankfurt and robert h. Jackson and douglas. In the first war, however, wilson had only one member of the court whose advice he so trusted. And he became one of wilsons closest wartime confidantes. Picking up our story from that late afternoon, the matter that concerned wilson involved railroads and the 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. They took over the rail lines and 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 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. Wilson knew shared his views on government and the economy. He understood that in wartime thing has 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 to run the railroads. Although wilson recognized his energy and talents, he needed his soninlaw 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 he 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 him as the director general. To the extent deemed highly questionable these days, members of the administration frequently consulted with the justice although they like wilson did so privately. Throughout the war he made recommendations of men to certain conditions or met with tab net members. Shortly after the declaration of war, he made the first of many trips to the apartment seeking recommendations for expanded treasury agencies but also for a commission that wilson wanted to send to russia. The former mayor of cleveland and now secretary of war had only known him slightly before the war. But he also became a regular visitor. He let it be known to wilson and others that rather than go to cape cod after the court recessed in june of 1917, he would stay in washington over the summer. As he wrote to alice, he had a very busy schedule those months. Many also found their way to the court. Brandize had Great Respect for Herbert Hoover who wilson put in charge of Food Production and distribution. The only person who seems to go forward is hoover, told his wife, yet he has no authority in law for practically anything. When he told his brother they had some ideas on how to improve the movement of food stuffs, he immediately put him in touch with hoover. Wilson recognized he would not be able to utilize the performance in any capacity while he remained on the court. He continued to talk with him on everything from organization to appointments and every time the new problem came up, people would suggest putting brandize in charge. Wilson knew that if he appealed to him as a matter, he would be deported. 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. At a meeting with the rabbi stephen wise after he complained about how hard it had been to get someone for an important post, wise said why dont ask you justice grandize . He must have surely anticipated that at least some of the administrations actions would have constitutional reprecushions and could eventually come before the Supreme Court. In that case, would he recuse him snefl did he think the advice he gave to wilson on wartime powers rested on firm constitutional ground that should the matter reach the high court the justice was overwhelmingly endorse it . As it turned out, a number of matters did come before the court. 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 cases involving life as soon as possible. But if it involves property and other matters, they put them off until after the war. Monetary payment will make Property Owners whole again. 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 because of an invalid law. The court consolidated several challenges and heard them in late 1917. The court wanted 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 he recognized that two labor cases were on the courts calendar for which he was supposed to be counsel, he worried because as a Government Official now he is unable to argue. He had been involved earlier in the cases and would have to recuse. He was no the sure majority of the remaining justices would support the laws. He made an appointment to see the chief justice and after exchanging a few pleasantries, he said my son, what brings you here . Frankfurter who knew he was a devout catholic said, mr. Chief justice, i am not at all clear that i should put to you this matter. But i come you to as though to a confessional. Leaning forward, he said, tell me, my son, just speak freely. So frankfurter did and a few days later the court turned down his request too have the cases decided on the briefs. In a similar vein, the court wanted the administration wanted the court to delay the signing an important antitrust case. During the taft administration, they began an aunty trust suit against the United States steel corporation. It slowly went the way to the lower courts and due to be argued before the Supreme Court at the october 1917 term. Whatever the other faults, the company made steel, armored plating and other products 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 the court helped. It delayed hearing the case until march 1st, 1920, nearly ten years after the complaint had been filed and then dismissed the suit. Now crusaders against drink has won the first year in congress with the passage of the web kenyan act. That measure reinforced state prohibition laws by closing offer the channels of interstate commerce to liquor destined for a state where the use or sale was prohibited. The statute did not have any provisions for federal enforcement, per se. Since many states refused to adopt prohibition, they saw this has a blueprint for the next step, a constitutional amendment. The law had a 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. It gave them a great boost. In the draft law passed in the spring of 1917, congress forbid the sale of liquor to servicemen and also prohibited alcoholic sales within five miles of military bases which had the effect of closing down dozens, perhaps hundreds of saloons in many cities. The liefer act under the mandate of preserving scarce food resources authorized the president to limit or forbid the use of food stuffs in production of alcoholic beverages. The war revenue act, discouraged drinking even without prohibition and in 1917, the tax on whiskey nearly tripled from 110 to 3. 20 a gallon and the beer tax doubled to 3 a barrel. The refusal of many local authorities to enforce prohibition especially in large cities led people them to seek an constitutional amendment to get stronger federal enforcement. In december 1917, Congress Passed a constitutional amendment and sent it to the states for ratification. Please note that in order for congress to pass a constitutional amendment, it requires a twothirds majority in both houses of congress. It was not hoisted by prohibitionists. It clearly had widespread support and as i said was seen by many people as a reform measure. It established near total prohibition. One week after the armistice, he signed the wartime prohibition act which made it illegal to sell alcoholic beverages in the domestic market. Even though the fight hg stopped and the armistice signed, a peace treaty was not signed and technically the United States remained in a state of war until that peace treaty is signed. The kentucky Distillery Company could not market whiskey it was holding in the warehouses for two years and went to court arguing since they had ended, congress could no longer exercise war powers. Under december 1919, a Unanimous Court upheld the law. As he explained although the tenth 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 the war excuse me, just because the hostilities had ceased, it did not mean they might not break out again. Congress had the responsibility for ensuring that the country would be prepared if that occurred. Because the various wartime measures had given the force az great deal of momentum, we need to follow up on this. Many ways prohibition is one of the wars constitutional legacies. The 36th state ratified the 18th amendment with nationwide prohibitions going into effect one year later n october 1919, congress over wilsons veto passed the act. Defining and intoxicating beverage as one with 0. 5 or more alcohol by volume. If you let a glass of cider sit outside for a day or two, thats about what it would be. At the beginning of 1920, the court heard a challenge and june held the law by a limb 54 decision. They went against the majority and explained that the states and legislation and judicial decisio decisions were ineffective. Since congress had the power to prohibit intoxicating liquors, they could adopt the means as concluded necessary for 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 laws which were not really prohibit the sale of intoxicating liquors but will prevent their sale. Th they rged it was not incox indicated, congress had to establish a 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 rights. The opinion was incredulous that a ban on intoxicating beer could be imposed nearly a year after the end of fighting. Food was now abundant and the ban could no longer be justified as a war measure. The idea that war powers can be exercised because a peace treaty was not signed was a none sensical fig leaf. It is important that a foreshadow 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 ban had been unable to comment on the administrations expansion of governmental powers. That expansion should have never 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 classes of men at all times and under all circumstances. The suspension of the constitutional limits of leads directly to anarchy. In the next great plan, the decade long depression that began in 1929, this view commanded 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 still a great deal of antiprohibition sentment in the country. And the wets went into court to challenge not only the implemented legislation of the act but the amendment itself. The in 1920, a distinguished battery of lawyers attacked the amendment on two grounds. They claim the constitution had not created an unlimited amending power. And the 18th amendment involved subject matter that should not be reached in the constitution. The view, by the way, that is now widely held. Second, the unique enforcement provision giving both congress and the states concurrent powers undermine the federal system. According to ruth hang on a second yep. Sticky pages. The amendment was totally inconsistent with the fundamental idea upon which the American Union space for an intruder on local self government. The interest of free government, he argued, will not entodure to many limitation of personal decisions. They argued 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. Section two did not alter the traditional lines of authority. Congress had plenty power that could reach inter and intrastate commerce, they did nothing more than supplement federal power. In essence, the court said that section two meant nothing. There was another case that came down between the attacks on the bolstead act and the 18th amendment. In june 1920, the high Court Unanimously thwarted efforts by opponents of both womens sufferage and prohibition to allow voter referendum to overr the ratification of amendments by the state legislature. In other words even if a state legislature had ratifying the suffrage of prohibition amendment, a referendum could not de vaf ate from the ratification methods prescribed by the constitution. Going back in the summer of 1916, congress as part of its preparedness lation had authorized the president to take over the wartime but wilson did not act until late 1917. After that meeting wilson had ordered the takeover and under the terms the government would run the railroad and finance new purchase equipment and compensate the owners after the war for the use of property. The law under which wilson acted did not suspend the Lawful Police regulation of the several states. And allowed states to tax the railroads. Director general mcadoo established a certificate for inter state and intra state to regulatory agencies. The north Dakota Utilities commission filed suit to block the action and won a victory in state court which ruled that the federal government had exceeded its authority under the Commerce Clause. Mcadoo appealed and 37 states joined the suit on behalf of north dakota. The Supreme Court unanimously reversed with chief Justice White writing a sweeping opinion upholding the authority of the president. In taking over the roads, the chief executive had not been 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. More over, since the government has promised to compensate the railroad owners, it had not violated the taking clause. There are several things noteworthy about this decision. First brandize did not recuse, even though his advice had a been critical in wilsons decision. Second, although did he not use the word adequate, it is within the parameters of the constitution on which lincoln relied and very much paralleled the hugh speech that professor waxman will talk about next week. Third, the court had been in no rush to hear this case. It has not been argued until may 5, 1919 and decided a month later. The case did not involve lives and the government had already promised the arld owners to compensate them. The lever act which covered distribution of food proved to be the only wartime statute to run afoul of the courts and that in only one provision. The common Grocery Company was charged 10. 07 for 50 pounds of sugar and 19. 50 for a 100pound bag, prices that were outrageously high even during the inflation that followed the war. In 1919 Congress Amended Section 4, the lever act, which criminalized the making of quote, any unjust or unreasonable rate. The law was intended to prevent rates of interest, that is rates so high as to be completely unfair and unethical but also made it illegal to charge unreasonably high rates for necessities. Congress, however, failed to define what constituted either a usurp rate of interest or a reasonable price and delegated that taskt to the courts. Cohen argued that congress could not assign legislative powers to another branch and the lever amendment were unconstitutional for having done so. The court agreed unanimously and struck down the law as overbroad and vague. To declare something is 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 do d not have to decide whether congress have unconstitutionally delegated his pourer. Second, the court made it clear that the federal government during wartime did have the power to fix food prices. Remember what brandize said about hoover. He gets things done, yet, he quote, has no authority in law for anything. In this case the court was validating what hoover and the government had done in wartime. Among the various things that the government did during the war that no administration had done before was to fix rental prices. In october 1919, note again that although hostility had seized, much of the federal government remained on wartime footing, congress established a commission to regulate rental property gates in the District Of Columbia. The size of the government had expanded during the war during the creation of new agencies but the expansion of older ones. Bernard baruch had hundreds of people working for the war industry board near a all of whom had come to washington from different places. And macadieu faced with the kplem job of financing the war also hired on hundreds of people and again most of them came from out of town. Home building had practically stopped around the country as the government took all Building Materials to erect landlords raised rent that government workers could not afford. Statute said that tennant could pay the rent and stay indefinitely. Block was a tenant in an Apartment Building on f street. He purchased the building and wanted to block the so he and his family could move in. The statute provided if the owner wanted to occupy he could evict but he had to give the tenants 30 days notice. He did not give the notice and block refused to move and the court of appeals held the statute unconstitutional block appeared to the Supreme Court. In a 54 decision written by oliver wendall holmes the court upheld the validity of the law. Wartime circumstances have clothed the letting of buildings in the District Of Columbia of with a Public Interest so great as to justify regulating by law. In times of trouble such as war, governmental action otherwise considered impermissible must be allowed. One line in holmes opinion deserves special notice. The question he declared was, quote, whether congress was incompetent to meet the emergency in the way in which has been met by most of the civilized countries in the world, unquote. He took a very broad view of federal police power. A power that many conservatives he denied even existed and extended to all of the great public needs. Could be exerted to meet whatever the prevailing morality or prepondering Public Opinion dee deems necessary, it would be adequate. As in this case and several others the Court Majority essentially said that emergencies could clothe the government with expanded powers under specific constitutional clauses but under a General Police power. The law had been carefully crafted and idea clear and tenure limited to ten years in a companion case the court upheld a similar new york statute. Not everyone agreed with holmes and whit mckenna and others dissented. Now white had argued in the cohen grocery case that emergencies did not create new powers or wipe away constitutional limits and mcken a took the same position where holmes put forward an adequaty of the constitution argument, mckenna, while admitting that war constituted an emergency, it neither created new powers nor abolished the constitution. The argument had not been settled with another emergency arose a decade later, the great depression, and once again raised the question of how far the government could do in trying to deal with it. By the time the court had heard the case, it is two year limit had already expired. The last shots had been fired on the front. Two and a half years earlier. The league of nations had been defeated by the senate and warn harding not Woodrow Wilson lived in 1600 pennsylvania avenue. Within a few months white would be dead and womenal howard taft would become chief justice. Nevertheless, the rental collision stayed in business. And in august of 1922 ordered that rents in the chastleton Apartment Building be reduced. Owner brought suit and when the case reached the Supreme Court holmes again with a unanimous bench the emergency had passed, he wrote, and gofts could no longer exercise the power that had come into being with the war. The great war as you could see left an indelible constitutional footprint on American History and 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, no one questions 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. And it needs refinement. Although mcreynolds and other conservatives wanted to treat the war as a constitution al alan constitutional anomaly. In addition the Supreme Court in the 1920s solely began the incorporate of the bill of rights to the 14th amendments due process clause so applied protections against the states as well as the national government. That debate began with the wartime speech cases in 1919. During the great war one person paying very close attention to how the Governments Authority expanded to meet the crisis was the young assistant secretary of the Navy Franklin roosevelt. As we in shown 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 a, quote, broad executive authority, to wage war against the emergency, as great as the power that would be given to me if we were, in fact, invaded by a foreign foe, unquote. The key legislative proposal and the National Industrial recovery act was modelled on the war industry board and roosevelt, like lincoln before him, intuitively understand that the constitution would be adequate to meet the demands both of the depression and war. Thank you. [ applause ] youre watching a special edition of American History tv. Airing now during the week while members of congress are working in their districts because of the pandemic. Tonight at 8 00 eastern, the Virginia Museum of history and the university of Oklahoma Center for the study of American Indian law cohosted a symposium on John Marshall and the Supreme Courts decisions in cases involving the forced relocation of the cherokee nation. American history tv now and also watch over the weekend on cspan 3. Television has changed since cspan began 41 years ago. But our mission continues. To provide an unfiltered view of government. 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