ASAP AMERICAN LEGAL HISTORY

Tonight’s Timeframe . . . Civil War & Reconstruction → 1860 - 1877

Gilded Age → 1870s - 1900

Progressive Era → 1890s - 1920

American Imperialism → 1880s - 1914

World War I → 1914 - 1918

The Roaring Twenties → 1920 - 1929

Great Depression & New Deal → 1929 - 1941

World War II → 1941 - 1945

Post-War Boom → 1946 - 1959

Cold War → 1945 - 1991

Civil Rights Movement → 1954 - 1968

New Frontier & Great Society → 1960 - 1968

Vietnam War - 1954 - 1975

Era of Social Change - 1960 - 1980

End of the Century → 1980 - 2000

New Millenium → 2001 -

American Legal History II Civil Liberties in Wartime - World War I

What is the role of law in society? How does law impact society? How does context impact law?

What do we value as a society? What are our ideals?

Do we live up to our values/ideals?

What is the impact of war/crisis on a nation?

If the history of the 14th Amendment has been a steady march toward a more free and equal American society, have other

laws followed suit?

"Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be

violated."

Do the ends justify the means?

What is the balance between liberty and security?

How and why has the status of civil liberties in wartime evolved?

The Constitution and Military Power

● Article I, Section 8 (Powers of Congress): ○ Congress shall have the power to:

■ Declare war ■ Raise and support armies ■ To make Rules for the Government and Regulation of the

land and naval Forces ● Article I, Section 9 (Limitations on Congress):

○ The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The Constitution and Military Power

● Article II (The Executive): ○ The President shall be Commander in Chief of the Army and

Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

○ He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur

U.S. Constitution - First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

World War I → American Involvement and Concerns

● Lusitania (1915) ● Zimmerman Telegram (1917) ● “Safe for democracy . . .” ● Selective Service (1917) ● Expansion of the federal

government ● Committee of Public Information

○ Americanization ○ Coercive Patriotism ○ Pro-War

World War I → American Involvement and Concerns (Cont’d.)

● Fears of Communism and Anarchism → Russia ● American Protective League, Slacker Raids ● America’s Foreign-Born Population:

○ 9 Million German-Americans ○ Foreign born and disloyalty?

● Opposition to the war

World War I → American Involvement and Concerns (Cont’d.)

● Year Population Percentage of foreign-born population ● 1850 2,031,867 92.2% ● 1860 3,807,062 92.1% ● 1870 4,941,049 88.8% ● 1880 5,751,823 86.2% ● 1890 8,030,347 86.9% ● 1900 8,881,548 86.0% ● 1910 11,810,115 87.4% ● 1920 11,916,048 85.7% ● 1930 11,784,010 83.0% ● 1960 7,256,311 75.0% ● 1970 5,740,891 61.7% ● 1980 5,149,572 39.0% ● 1990 4,350,403 22.9%

World War I → The Espionage Act (1917) ● Restrict anti-war/draft speech ● Postmaster General ● 2000 Charged/Over half convicted ● Disloyalty → Repression ● Focus on “Interference” ● Also, subversion and traditional

espionage. ● Questionable Efficacy ● 1st Red Scare

Schenck v. U.S. (1919) - Issues and Decision ● 1917 - Russian Revolution ● Socialist leaflet distribution ● Socialist/Anarchist ● Urged peaceful draft resistance ● Targeted Servicemen ● Unanimous Decision:

○ Excerpts

World War I → The Sedition Act (1918) ● Alien and Sedition Acts → 1798

○ Virginia and Kentucky Resolutions

● "disloyal, profane, scurrilous, or abusive language"

● Flag, government, armed forces ● Amendment to Espionage Act

Debs v. U.S. (1919) - Issues and Decision ● Debs:

○ Socialist ○ IWW ○ 5-Time Candidate ○ Prior arrests

● Anti-Draft/Recruitment Speech & Conviction ● Question → Did Debs' conviction under the Espionage Act of 1917 violate his

First Amendment rights to freedom of speech? ● Unanimous Decision:

○ Excerpts

Abrams v. U.S. (1919) - Issues and Decision ● Leaflets, Manhattan ● Russian Revolution intervention ● Advocate general strike ● Appealed during Debs and

Schenck decisions. ● 7 - 2 Decision:

○ Lower court conviction upheld.

○ Holmes Dissent

Subsequent Applications of the Espionage Act

New York Times Co. v. U.S. (1971) - Context ● Context:

○ Vietnam ○ Protest ○ Top secret “history” (1967) ○ Leak

● NY Times and Washington Post publication ● Administration’s response and prior restraint ● Section 793 of the Espionage Act ● Question → Did the Nixon administration's efforts to prevent the publication of

what it termed "classified information" violate the First Amendment? ● 6 - 3 Decision

U.S. v. Manning (2013) ● Context:

○ Late 2000s - Iraq and Afghanistan ○ Military challenges ○ Growing public opposition

● Over 500,000 war reports/two videos ● Chelsea Manning:

○ Truth of war ● Wikileaks ● Prosecution:

○ Aiding the enemy? ○ Espionage Conviction

What is the balance between liberty and security?

What should be the status of civil liberties in wartime?