JURIST Guest Columnist William G. Ross of Samford University’s Cumberland School of Law discusses the constitutional legacy of the First World War…

American entry into the First World War one hundred years ago, on April 6, 1917, generated significant constitutional changes that resonate a century later. The war enormously expanded the economic regulatory powers of the federal government, laid the foundation for the emergence of the modern administrative state, aggrandized presidential powers, expedited women’s suffrage, sowed the seeds of the civil rights movement, and provided a catalyst for modern civil liberties law.

Participation in the war constituted an abrupt departure from the American tradition of non-interference in disputes that did not affect the Western hemisphere. President Wilson, who had valiantly tried for nearly three years to keep the United States out of the European conflagration, reluctantly asked Congress to declare war only after Germany announced a policy of unrestricted submarine warfare that threatened American shipping. Since Germany had no intent or ability to invade the United States, the declaration of war did not necessarily require the United States to send troops overseas. The Wilson Administration quickly decided however, to commit the full resources of the nation to a thirty-fold expansion of the military forces, raising an army of nearly three million men that ultimately secured the defeat of Germany in November 1918.

Such massive military mobilization required mobilization of economic and social forces never before seen in the United States. Like Lincoln during the Civil War, Wilson claimed that the United States was fighting for the preservation of democracy, even though Germany was not significantly less “democratic” than were the Allied nations of Britain, France, and revolution-torn Russia. Germany had made major strides toward representative government during the pre-war years and held far fewer persons in colonial subjugation than did Britain or France. As the war continued, federal, state and local authorities became increasingly strident in their insistence that civilization itself was at stake, a contention that they used again and again to justify extraordinary measures that would have been politically and constitutionally unthinkable before the war.

Since remarkably few men volunteered for military service, Congress quickly instituted a draft that ultimately conscripted two million men. Mindful of the widespread resistance toward much more limited conscription during the Civil War, Congress approved the Espionage Act that criminalized attempts to interfere with conscription.

The Espionage Act also reflected anxieties about potential opposition toward the war among powerful segments of the American population. German-Americans, the nation’s largest ethnic group, were an obvious source of dissent, as were Irish-Americans, many of whom were hostile toward Britain, which opposed Irish independence. Labor unions, committed to international working class solidarity, were another source of potential opposition toward the war, as was the large and growing socialist and pacifist movements. Although it became clear early in the war that most members of these groups would support the war, the federal government remained so anxious about the prospect of opposition that Congress in 1918 enacted a Sedition Act that criminalized “disloyal” or “abusive” language about the Constitution and the American form of government or any “word or act” that opposed the American cause in the war.

Even though conscription generated surprisingly little resistance, its constitutionality was promptly challenged in a series of cases that culminated in unanimous Supreme Court decisions sustaining the draft. The court held that the congressional power to raise armies and support navies necessarily presupposed a power to provide men for those forces. The court petulantly brushed aside in a single paragraph the allegation that conscription constituted involuntary servitude in violation of the Thirteenth Amendment. Although there is no reason to suppose that any of the Justices doubted the constitutionality of conscription, the court could hardly have ruled otherwise without striking a horrible blow to its institutional powers and prestige since Congress and the President would almost surely have defied any decision that would have had the practical effect of calling a halt to the war.

Meanwhile, in a sharp departure from the nation’s laissez faire tradition, a blizzard of congressional legislation and presidential orders minutely regulated agriculture, manufacturing, mining, transportation and retailing. The federal government seized control of the railroads, telephones and telegraphs, dictated prices for a wide range of commodities, and became the world’s largest insurer by providing insurance for military personnel and their families. Interjecting itself into labor-management relations, federal authorities established guidelines for labor practices, adjudicated labor disputes and created a national employment bureau. Wartime restrictions on the consumption and sale of alcohol led directly to the federal prohibition amendment of 1919, which was repealed in 1933. No detail was too petty to escape the attention of federal authorities, who boasted that they were able to build two warships by persuading clothing manufacturers to remove metal from women’s corsets.

Although legislation such as the Pure Food and Drug Act of 1906 had expanded federal regulatory powers during the Progressive Era even before the war, the magnitude of federal economic activity eclipsed any previous initiatives. Congress spent more money during the war than the total of what it had spent since 1789. It financed the war through aggressive sales of war bonds to tens of millions of Americans, precipitous increases in the income tax and a steep inflation. The war permanently shifted the bulk of taxation from consumption taxes (particularly tariffs and liquor excises) to levies on incomes. The modern estate tax [PDF] was introduced for the first time.

This transformation of governmental powers generated remarkably little resistance from regulated industries or consumers. Although the government sometimes coerced compliance, business and consumers usually cooperated because they prospered in the wartime economy and they believed that the war promoted their long-term interests, especially because the United States had loaned so much money to its allies. Large businesses tended to benefit, often at the expense of smaller competitors, from regulations that they helped to formulate and administer. Unable to assemble a large bureaucracy overnight, the federal government relied heavily upon corporations for advice and assistance and many business leaders – “dollar a year men’–served for nominal compensation in federal agencies that regulated their businesses. Various private enterprises also benefited from large infusions of public capital. The government, for example, invested billions of dollars in the ailing railroad industry, whose shareholders received generous dividends from Uncle Sam. In addition to providing positive incentives to support regulation, the suppression of speech through the Espionage and Sedition Acts and other measures provided reminders of the perils of criticizing economic regulation.

Although this radical shift in the role of government generated a veritable seminar of constitutional law questions involving federalism, separation of powers, the commerce clause, taxation and due process, members of Congress tended to stifle their qualms, often explaining that they would rather risk violating the Constitution than losing the war. Most war measures never were tested in court, partly because the duration of the war was so short. The US Supreme Court sustained the constitutionality of nearly of all of the few statutes that it reviewed, sometimes on technical or other narrow grounds that side-stepped more fundamental issues. The court balked only once, in a postwar decision holding that price controls were too vague. The radical wartime extensions of federal power did not immediately alter judicial skepticism about economic regulatory legislation, for the court in July 1918 struck down the federal child labor law on the ground that goods manufactured by children were not part of interstate commerce.

Even though the federal government suspended most of its regulations shortly after the war, federal expenditures never receded to anything close to pre-war levels. New attitudes toward the role of government were demonstrated during the 1920s by federal regulation of the nascent aviation and radio industries and federal relief during the disastrous Mississippi River floods of 1927. Wartime programs provided the template for many New Deal measures during the Great Depression of the 1930s. Congressional delegation of powers to the president during the war permanently altered the relationship between the president and Congress and laid the foundations for the modern administrative state. The aggrandizement of federal powers also profoundly affected federalism by shifting regulatory authority away from the states.

The war also hastened the enactment of the women’s suffrage, which became the law of the land in the Nineteenth Amendment in 1920. Although many states had enacted at least partial suffrage for women before the war, the momentum of the suffrage movement had slowed by 1917. Although social progress made enfranchisement of women inevitable, the war accelerated support for it because a nation that purported to fight for democracy could not without hypocrisy deny the vote to half its population on the basis of gender. The war also generated support for suffrage because the important contributions of women in households, factories, farms, offices, and hospitals demonstrated that women were responsible citizens who could be trusted with the ballot. Although suffrage did not result in the rapid elevation of the social, economic and legal status of women that many proponents of suffrage had hoped and expected, it was a necessary predicate for the enormous advance of women’s rights during the final decades of the century.

Federalism was the principal argument against the suffrage amendment, for its opponents insisted that it intruded upon the power of the states to regulate their elections. This argument lost much of its power, however, because opponents of suffrage tended to support the prohibition amendment, which interfered with the tradition of allowing states to regulate the purchase, sale and transportation of commodities, including alcohol. Although the prohibition amendment was a more radical constitutional measure because it was the only part of the Constitution that has ever regulated personal behavior, both amendments were consistent with the expansion of federal powers that helped to transform the relationship between the federal government and the states, which enabled the federal government later in the century to further expand the economic regulatory powers of the federal government and protect the rights of women and racial minorities.

The advancement of the rights of racial minorities during the civil rights revolution that began during the 1930s and reached its apex during the 1960s had at least some of its origins during the war. Many African Americans welcomed the war because they hoped that their military valor and their important economic contributions would encourage whites to break down racial barriers. Blacks provided significant support for the war and brushed aside German propaganda that called attention to racial injustices, even though African Americans suffered from much discrimination in the military and received virtually no relief from prejudice anywhere else. Indeed, the start of the “Great Migration” of blacks to the North during the war exacerbated racial tensions among blacks and whites who competed for jobs in the North. The war, however, promoted the later civil rights movement by bolstering the self-confidence of blacks and providing them with experiences and heightened expectations that proved useful in their coming struggles. To at least some extent, the war had the same effect on Native Americans, Hispanics and Asian Americans.

The war similarly set back civil liberties in the short-term but helped to advance them in the longer term. Federal and state governments suppressed personal liberties more extensively and more harshly during the First World War than at any other time in American history. Although “only” approximately two thousand persons were prosecuted under the Espionage and Sedition Acts, the mere prospect of prosecution chilled and stifled speech against the war, particularly because federal and state officials, legions of members of private quasi-patriotic organizations and countless nosy neighbors were eager to report any sign of “disloyalty.” By warning that no one could question the need for the war, but could criticize only the manner in which it was conducted, Wilson and other federal officials choked off any meaningful debate about the constitutionality of virtually all wartime measures. Numerous Americans received prison sentences merely for expressing opposition to American participation in the war or suggesting that the nation was fighting to protect economic investments rather than democracy. In one of the most absurd cases, Robert Goldstein was sentenced to ten years in prison for producing a patriotic film, “The Spirit of ’76,” because it portrayed British atrocities against Americans during the American Revolution. Courts often used the Espionage and Sedition Acts to silence socialists and other political radicals, particularly Eugene V. Debs, rather than to prevent any realistic threat of interference with the war effort.

The government also censored or withheld mailing privileges from countless ethnic and socialist publications, which caused hundreds of such journals to forever cease publication. During so-called “slacker raids” in the summer of 1918, approximately fifty thousand men in cities throughout the United States who could not immediately produce draft registration documents were snatched from streetcars, theaters, restaurants and other public places and incarcerated in jails and armories until they could produce such documentation or prove that they were not subject to the draft. Only about three percent were found to have evaded registration.

Meanwhile, the government churned out floods of pamphlets, posters and films that convinced most Americans that any opposition to wartime measures, much less the war itself, was unpatriotic and treasonous. Senator Hiram W. Johnson of California, who supported the war but deplored the suppression of civil liberties, brilliantly mocked such hyper-patriotism in a private letter feigning fear that he and his wife were guilty of treason for praying that their son would return home alive from fighting in Flanders.

State and local officials, often assisted by zealous vigilantes, also helped to suppress criticism of the war and coerce cooperation with war efforts. Officials often menaced persons who failed to fly the flag, purchase war bonds, plant so-called “victory gardens” or otherwise demonstrate patriotism and assist the war effort. Some states and communities enacted constitutionally questionable measures requiring all able-bodied adults to work. In the South, these laws sometimes were used to force African American women to work outside their homes for a pittance as domestic laborers for white persons.

German Americans suffered enormous abuses during the war that forever eradicated their pre-war role as an important political and cultural force. Many states and localities enacted laws that prohibited or restricted the speaking or teaching of German, the governor of Ohio issued an edict banning the public use of any foreign language and federal officials suppressed German language journals. Some German-American Lutheran churches were burned, many were vandalized and far more received curt and often menacing messages from local officials and vigilantes demanding that they immediate cease any use of the German language.

Federal and state courts lacked precedent for protecting personal liberties because few previous laws had suppressed speech or publications and the Supreme Court had not yet held that the First Amendment was binding upon the states. Bar associations and law professors tended to provide spirited constitutional defenses of the suppression of civil liberties, often citing the ancient maxim the law is silent in times of war and arguing that suppression of liberty was necessary to save liberty. Only a few lawyers spoke out against repressive measures and their opposition formed the basis for what became the American Civil Liberties Union.

The Supreme Court sustained the constitutionality of the Espionage Act in several cases shortly after the war (see also, here and here). Although the first decisions were unanimous, Justices Oliver Wendell Holmes, Jr. and Louis D. Brandeis in later cases wrote prophetic dissents in which they pointed out the link between free speech and democracy and argued that the Constitution does not permit government to repress speech unless it can to demonstrate a very close proximity between speech and imminent unlawful action. These dissents limned the outlines of the modern doctrines of freedom of speech and freedom of the press.

The war also helped to generate the court’s modern role as the guardian of noneconomic personal liberties. In Meyer v. Nebraska, a landmark case arising out of the widespread wartime animus against German Americans, the Supreme Court in 1923 invalidated various state statutes that prohibited the teaching of German in elementary schools. Although the court based its decision on property rights, the court in dicta declared that the due process clause of the Fourteenth Amendment protected a raft of other liberties, including the right to marry, raise children and worship according to one’s conscience. This case helped to provide the predicate for the court’s gradual nationalization of the liberties prescribed by the Bill of Rights, beginning with freedom of speech in Gitlow v. New York in 1925. The incorporation of the Bill of Rights into state law greatly expanded liberty even though state constitutions contained mostly the same rights, because federal judges at least until recently have tended to interpret the scope of the federal Bill of Rights more broadly than state judges interpreted analogous language in their state constitutions.

At the start of the war, Charles Evans Hughes, the future Chief Justice, proclaimed that the Constitution would adapt itself to the “novel and complex” exigencies of the war because “the Constitution marches” and “we have a fighting Constitution.” The war, however, generated so many repressive and constitutionally questionable measures that it might be more accurate to say that the Constitution was on furlough during the war. The war ultimately, however, made the Constitution more adaptable to measures that improved the lives of Americans by providing precedents for the far-reaching economic regulatory legislation that followed later in the century, hastening women’s suffrage, planting many of the seeds of the civil rights movement and generating cases that transformed civil liberties law.

William G. Ross is the Lucille Stewart Beeson Professor of Law at the Cumberland School of Law at Samford University in Birmingham, Alabama. He has written several books about early 20th Century American constitutional history, including World War I and the American Constitution (Cambridge University Press, 2017).

Suggested citation: William G. Ross, The Enduring Constitutional Legacy of the First World War, JURIST – Academic Commentary, Apr. 5, 2017, http://jurist.org/forum/2017/04/William-Ross-first-world-war.php