Omaha daily bee., 1919-01-27
The Constitution During the
War and Afterward.
By Henry Wollman in The Annalist.
IN THREE PARTS-PART I.

The United States may be said to have two
constitutions, one made for times Of peace and
one for wartime. The peace constitution may
| be said to be designed to protect the people
may be said to be designed to protect the gov
ernment against the people.
The question is asked. What laws did the
! United States pass and what measures did it
! adopt during this war that it would be well for
! the people to adopt in the era of peace, upon
which we are about to enter? / would say prac-
! ticay none, for the reason that those laws were
! passed and measures undertaken to meet tenn
! porary crisis, and were practically all based
wholly on actual military necessity, and had as
! a sole reason for their enactment the country 5
imperative demands. brought about by the ex-
| istence of war They were not designed to
solve nor could they aid at all in solving, any
of the governmental, economic or social prob
! lens of a nonwar era, but merely to find a
way, regardless of the rights of individuals,
| municipalities or states OF overcoming an en-
lemy whose existence was an absolute menace
to the existence of this nation.
The constitution gives congress power ito
declare war" and ito raise and support armies, .
| and provides that 1.-The president shall be COM
fnander-n-chief iof 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" While those provisions are
in actual and active operation. nearly all OF the
REMAINDER OF the OBSERVATION-DISCLOSURES Isl lHOSC
parts with reference to the relation between
government and ctizen-is temporarily put in
the scrap heap
If it were not for the fact that pretty nearly
anything and everything that the government
does in time of war is constitutional, one would
say that a large percentage of things that were
authorized by congress to be done and were
done were unconstitutional Consequently,
when the war provisions of the constitution again
become inactive and peace puts the remainder
of the constitution in operation, there would lie
10 way OF sustaining the greater percentage OF
the so-called war measures.
Under the constitutional provisions above
quoted, practically every right of a citizen may,
in time of war, be taken when the properly
authorized officials deem it necessary that they
should be taken. Courts, during the time Of
war, practically recognize no law, except the
law of necessity, of which they permit the milf
tary authorities to be the judges. United States
Judge Hunt who often holds court in this
(New York; city, speaking for the United States
Circuit Court of Appeals at San Francisco, on
July ! last, in Pappens against United States,
252 Fed. SIS, and referring to the power exer-
cised by the government during the war, said:
- 1t is obvious that, to avoid calan-
ity to the nation, the powers referred to in their
greatest strength must be upheld as indispens
ably incidental to the power to declare wa"
In Wainwright against Pennsylvania R. Co, 253
Fed. Rep 400, United States Judge Tr.eber, on
November last, at St. Louis, sustained a CO.
tain provision in the law, authorizing the ;lizu
of railroads, on the theory that "the act and
regulations may we'll be sustained upon the
ground that 'salus populi suprema lex est the
welfare of the people is the paramount law"
The government in war time can lawfully
tear up contracts between individuals, because
it may require the material for the manufacture
of which those contracts were made and the
federal law then ends those contracts. 1t can,
without minutes notice, dispossess owners
from their homes because it deems them neces-
sary for governmental use. The secretary Of
war is really given legislative power to silence
state laws and municipal ordinances; he can
say that this or that, which states or manicipai-
ties only in time of peace have the power to
prohibit, shall not be done in a certain terri
tory, the boundaries of which may be one, 10
or even 100 miles in every direction from al
military post and which he in his unappealable
discretion, fixes. The government says to the
citizens: "You cannot eat this" you cannot
use that; you cannot charge this and You cam
not pay that" Practically every country rec
ognizes property rights Of individuals. but in
a free country the most cherished right is that
of free speech and probably the most important
right is the freedom Of the press" but during
this war those rights were drastically curtailed
All of those things, and many more, en-
croaching upon the peace-time rights Of the
citizens, were regarded by everybody as lawful
and right, because they were necessary to aid
in bringing victory Nobody chafed No right
thinking man complained. No good citizen
cared or asked whether these measures, taking
from him his prior constitutional rights, were
valid. He neither argued nor reasoned. He
knew it was necessary, and without one thought
of complaint, he gracefully bowed in amiable
submission.
Now, however, that peace, in effect, though
not technically, has been declared, and the ne
cessity for the deprivation of the citizen of his
constitutional rights has vanished or will van
ish, he demands their fullest recognition and
restoration.