War Powers - WWI

Woodrow Wilson, who was elected on the promise to remain neutral in the conflict in Europe, demanded congress declare war in response to German U-boat attacks on US supply ships. Interestingly, the US, not Germany, had broken International law by sending supplies to England while professing neutrality. The Lusitania, an ocean liner sank by Germans, was carrying ammunition and the Germans had the right under international norms to sink it. The economy had been in a recession, and the US was making money off its neutrality by selling supplies. As Randolph Bourne said, "War is the health of the state." (Irons, 102,103) The declaration came after Wilson was inaugurated in his second term, again as a neutral candidate.

Wilson used propaganda and a compliant press to make the shaky case for war. He did so by invoking the evocative language of humanitarian intervention. This masked the true reasons America would enter the war; to make sure the global economy didn't collapse and keep the natural resources flowing from British and German colonies. Politicians and business leaders used the phrase "making the world safe for democracy" to cloak the economic imperatives. (Irons, 106)

The issue of the balance of war powers between executive and legislative branches was raised again when Wilson sought US involvement in the League of Nations. This international body would use parliamentary procedures among member nations to resolve international disputes. Dissent to the formation of this body was expressed by Senator Henry Cabot Lodge on the grounds that it gave further war-making powers to the executive. Wilson didn't approve of the power congress had been delegated by the constitution over executive foreign policy decision making. The formation of the League was a part of the Treaty of Versailles to end the war, but this treaty was rejected time and time again by Congress. The dissenters didn't disagree with the aims of the League, the wanted only to uphold the Constitutions explicit statement that war-making powers cannot be delegated to the executive, even through Congressional consent. (Irons, 111)

Opposition to the war was high, with Socialists aiding draft resisters and publicly calling the war "a crime against the people of the US." The Wilson administration took a hard line that betrays the importance of public sentiment to the war effort. The Espionage act was passed in 1917 with harsh sentences for anyone aiding in the resistance of the draft and enlistment efforts. The Socialists used the indirect methods of speeches and pamphlets, acts that were Constitutionally protected.

The Supreme court case dealing with limits on free-speech and dissent during war was the Schenck case. Schenck prepared a pamphlet that was sent to men who had been drafted or were going to be. The pamphlet contained information about constitutionally protected free speech and encouraged people to help repeal the draft by coming to meetings and petitioning the government. It asked people to assert their rights, not to take any other actions than voicing objection. Schenck and four others were arrested and charged under the Espionage act with obstructing "the recruitment and enlistment services of the US." (Irons, 114)

The case was decided by the Supreme court after the war was over with Justice Oliver Wendell Holmes writing the unanimous decision. Holmes made the blasphemous ruling that free speech depended on circumstances, and that the circumstances of the Schenck case made questionable what would have otherwise been protected free speech. His vague and obfuscating metaphor about the limits of free speech is very well-known,"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." He also felt that the government didn't need to prove his pamphlet had induced draft resistance, the intent was enough.

The distinction between peacetime and wartime free speech was in direct conflict with the earlier ruling in Milligan. "The Constitution of the US is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." None of its provisions "can be suspended during any of the great exigencies of government" (Irons, 117) The Holmes standard of "clear and present danger" was later overturned during the Vietnam war with the ruling that only speech "directed to inciting of producing imminent lawless action" could be considered criminal.