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Friday, March 15, 2024

What Was in the Scandalous Brief?

My last post explained that in 1918 the Supreme Court rejected a constitutional challenge to the World War I draft and criticized petitioner's brief for its intemperate and scandalous remarks. 

Here are some of the subheadings:

RULES OF CONSTRUCTION THIS COURT MUST FOLLOW IN PASSING UPON THE PRESIDENT'S MONSTROUS CLAIM OF
AUTOCRATIC MILITARY POWER SET UP UNDER THE ACT OF MAY 18, 1917.

SHALL THE EXISTING POLITICAL DICTATORSHIP BE TRANSFORMED INTO A MILITARY DICTATORSHIP BY A JUDGMENT OF THIS COURT?

Here is part of what the Solicitor General wanted stricken: 

"Such autocratic control as that over the private life and private property of the people was never assumed by the monarchy in France, even in the darkest days that preceded the French Revolution. This court must further take judicial notice of the fact that under some claim of authority based on some one of the group of war-statutes, the Executive Power has suddenly seized and taken into its possession and control, without any judicial proceedings whatever, thousands of millions of private property belonging to the railroads of the country, which it is now operating and which it proposes to hold and operate either indefinitely or for a long period after the war has terminated, thus clearly indicating the fact that the existing Dictatorship is to continue after the war has ended. The court must further take judicial notice of the fact that there is now pending in Congress a bill, backed and urged by the Executive Power, which, if it takes on the forms of law, will at least, as a de facto statute (it cannot possibly be anything more) sweep into the hands of the President "as Commander-in-Chief of the land and naval forces" (that is the language of the pending bill) such an aggregation of powers as no monarch ever wielded in any constitutional government that ever existed."

Seems pretty tame by modern standards, though I can't speak to the norms in wartime over a century ago.

 

Posted by Gerard Magliocca on March 15, 2024 at 09:52 PM | Permalink

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