World War I and the Constitution - Articles

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Posted by: Russell Fowler on Oct 31, 2018

Journal Issue Date: Nov 2018

Journal Name: Vol 54 No 11

Nov. 11, 2018, marks the 100th anniversary of the end of the First World War, “the war to end all wars.” The colossal conflict began in 1914, yet the United States did not enter “the Great War” until 1917. When it was over, 11 million soldiers and around 7 million civilians were dead. 20 million soldiers were wounded. 116,708 American soldiers were killed and 204,002 were wounded. 130,915 Tennesseans were enlisted in the armed forces and 3,836 were killed.[1] Tennessee also proudly produced America’s greatest hero of the war: Alvin York.[2]

The terrors of trench and gas warfare were introduced and dynasties were toppled, including those in Germany, Austria and Russia. On a lesser scale, the war brought changes to America. And, like the Civil War, demonstrated the strength of our Constitution in times of crisis. 

Progressive Democratic President Woodrow Wilson won re-election in 1916 with the slogan “He kept us out of war.” America’s entry into hostilities marked the end of the Progressive Era as the nation shifted its attention away from domestic reform to mobilization. As Congress approved a centralization of power in the Presidency concerning property rights and personal liberty, constitutional debate changed from how much government can regulate the economy to further social goals to how far the federal government can go in managing the economy and limiting individual rights to advance the war effort.

Congress Acts

In August 1917, Congress adopted the unprecedented Lever Act, which addressed anticipated fuel and food shortages and corresponding price hikes. It gave the president power to control production, distribution, prices and trade practices concerning these critical commodities. The constitutional sanction for the law rested upon war powers, not Congress’s power to regulate interstate commerce, thus signaling its temporary nature; and, perhaps, indicating that the Congress and president have greater power during an emergency than otherwise.

Congress also enacted the following measures: (1) The Selective Service Act (the draft); (2) The Trading with the Enemy Act (permitting censorship of mail, radio and cable); (3) The War Prohibition Act (approved 10 days after the armistice, outlawing the manufacture and sale of alcoholic liquors); (4) The Espionage Act (outlawing specific activities viewed as obstructive to the war effort); (5) The Sedition Act (outlawing anti-war speech); and (6) The Overman Act (empowering the president to consolidate and coordinate executive branch agencies for efficient conduct of the war).

A host of agencies, boards and commissions were established to carry out the new executive branch authority. Even though temporary, it evidenced a new recognition of a wider federal role in regulating the economy. This would help to prepare the country for even greater interventions in the future, such as during the Great Depression.

At the time, however, the only precedent for such an expansion of executive power was during the Lincoln administration, but there were major differences. President Lincoln had been faced with a domestic rebellion with no constitutional precedent as a guide. Nevertheless, at the beginning of the Civil War, Lincoln acted decisively without congressional approval. Conversely, President Wilson was confronted with a formally declared foreign war and broad congressional grants of authority. Although Congress conferred upon Wilson much more power than ever given Lincoln, Wilson was much more reluctant to use it than Lincoln.

As usual, the Supreme Court deferred to the other branches of government during wartime and did not review congressional acts and presidential actions. An exception was that the justices unanimously upheld the draft in the Selective Draft Law Cases (1918)[3] based upon the Article I, Section 8, power to “raise and support armies.”[4]

After the war, the Supreme Court upheld Wilson’s power to set intrastate railroad rates in Northern Pacific Railway v. N.D. (1919).[5] Chief Justice Edward White reasoned that war powers granted authority not available in peacetime. Likewise, in Dakota Central Telephone v. S.D. (1919)[6]  the appropriation of telephone and telegraph lines was sustained pursuant to the war powers. The Supreme Court did find a price fixing section of the Lever Act was unconstitutional in U.S. v. L. Cohn Grocery Co. (1921),[7] but not because it was unauthorized by the war powers. The court only concluded that Congress failed to set adequate guidelines as to what prices set by business were unreasonable.

Civil Liberties

There were nearly 2,000 prosecutions under the Espionage Act.[8] The most famous of these to reach the Supreme Court was Schenck v. U.S. (1919),[9] the court’s first major freedom of speech decision. Charles Schenck and other officials of the Socialist Party were convicted of conspiring to mail leaflets to drafted men urging peaceful resistance to the war and the draft, claiming conscription violated the Thirteenth Amendment’s ban on involuntary servitude.[10] 

For a unanimous court, Justice Oliver Wendell Holmes Jr., pronounced that freedom of speech is not unlimited. For instance, the First Amendment does not “protect a man in falsely shouting fire in a theatre and causing a panic.”[11] He upheld the convictions saying that “in many places and in ordinary times” such speech would be protected. Nevertheless, “[w]hen a nation is at war many things that might be said in time of peace are such hindrances to the effort that their utterance will not be endured as long as men fight.”[12] The test applied was whether the words create “a clear and present danger that they will bring about the substantial evil Congress has a right to prevent.”[13] Under this formula, courts are not to simply look at the words stated, but also their proximity to causing harm.

Just eight months later in Abrams v. U.S. (1919),[14]  the court abandoned the Holmes’s proximity test for the “bad tendency” test that only looked at the words themselves, not the surrounding circumstances, and whether the words have a natural tendency to cause outlawed consequences. In dissent, Holmes and Justice Louis Brandeis urged the application of the “clear and present danger test” to overturn the convictions under the Sedition Act for distribution of flyers calling on workers to resist American intervention in Russia against the Communist regime.[15] Holmes advocated the “free trade in ideas” unless “an immediate check is required to save the country.”[16] Holmes saw no peril in the “tall talk”[17] of “these poor and puny anonymities.”[18] Thus, ironically, Holmes’s test, originally applied to affirm a limitation of speech, would henceforth be seen as the most protective of free speech.   

Constitutional Aftermath

The debate in the Supreme Court over the appropriate test to apply to freedom of speech cases would continue for four decades, with the Holmes methodology coming in and out of favor. And as the court continued to be a bastion of conservatism until its epic collision with the New Deal in the early 1930s, World War I brought constitutional change. It was made certain governmental power can constitutionally expand and civil liberties may contract in time of war. The justices also permitted the greatest concentration of power in American history, albeit temporary to wage war. Yet the economy was never again as free of regulation as it had been before the war.

Furthermore, the war commenced a trend of concentration of power in the federal government, and within that government, concentration in the executive branch. This movement would accelerate with the New Deal, World War II and the Great Society programs of the 1960s.

An America weary of reform, war and the high idealism of President Wilson elected Republican Warren G. Harding in a landslide in 1920 on a pledge to return the nation to “normalcy.” In a constitutional sense, however, there was no turning back.

RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET) and since 1999 has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has many publications on law and legal history, including many in this Journal.


1. Margaret Ripley Wolfe, “World War I,” in The Tennessee Encyclopedia of History & Culture 1076, 1079 (Carroll Van West ed., 1998).
  2. See William J. Crocker, “Alvin C. York,” in Heroes of Tennessee 123 (Billy M. Jones ed., 1979).
  3. 245 U.S. 336.
  4. U.S. Const. art. I, § 8.
  5. 236 U.S. 585.
  6. 250 U.S. 163.
  7. 255 U.S. 81.
  8. Mary Ann Harrell, Equal Justice Under Law: The Supreme Court in American Life 67 (1975).
9. 249 U.S. 47.
10. Id. at 50-51.
11. Id. at 52
12. . Id.
13. Id.
14. 250 U.S. 616.
15. Id. at 624.
16. Id. at 630.
17. Id. at 626.
18. Id. at 629.