Topics in the News
Civil Liberties and Patriotism
The Challenge of War.
Historically, civil liberties and war have proved incompatible. Abraham Lincoln suspended the constitutional requirement that defendants be charged with crimes before imprisonment during the Civil War; Woodrow Wilson restricted free speech and open political activity during the First World War. Civil liberties during World War II were also restricted. While the government did significantly restrict freedom of speech, freedom of movement, and freedom of political association during the decade, federal officials were reluctant to engage in wholesale suspension of civil liberties Such a suspension would evoke political opposition contrary to the efficiency of the war effort and would make the distinction between the United States and its enemies—a distinction crucial to the propaganda war—too blurry. Two Supreme Court cases regarding the individual's ability to refrain from overt displays of patriotism addressed this limit on wartime coercion. In the Minersville School District Y. Gobitis case of 1940 the Supreme Court held that the government could demand individual participation in civic ritual designed to instill patriotism and a sense of unity; in the West Virginia State Board of Education v. Barnette case of 1943 the Supreme Court set limits to the degree to which the government could demand such participation.
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House Un-American Activities Committee
House Un-American Activities Committee.
The House of Representatives began its work investigating subversive activity by U.S. citizens in 1930 as the Fish Committee and in 1934 as the McCormack Committee. In 1938 the committee was revived as the Dies Committee (after the name of its chairman, Martin Dies, Jr., D-Texas) to investigate the activities of communist and fascist organizations on the home front. Despite the strong anticommunism of Chairman Dies, before and during World War II the committee concentrated on fascist organizations.
The Permanent Committee.
In January 1945 the special committee was transformed into a permanent standing committee of the House. In Public Law 601, the seventy-ninth Congress authorized HUAC to investigate the following:
(1) the extent, character and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and unAmerican propaganda that is instigated from foreign countries or of a domestic origin and attacks the principal form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any remedial legislation.
Such a vague and wide-ranging authorization opened the door to mischief by...
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The Internment of Japanese Americans
Japanese Americans to Internment Camps.
On 31 March 1942 Japanese American residents along the West Coast of the United States were directed to report to control stations and register the names of all family members. They were then told when and where to report with their families for relocation to an assembly area and then an internment camp. The times for evacuation varied from four days to as much as two weeks. The Japanese Americans were forced under the circumstances to liquidate some or all of their property within that period Many white Americans took advantage of the situation and offered pennies on the dollar to purchase possessions from those soon to be interned.
Image Pop-UpOn 19 February 1942 President Franklin D. Roosevelt signed Executive Order 9066, providing for the roundup and evacuation of all Japanese and Japanese Americans on the West Coast to internment camps.
Losses. Many Japanese Americans lost their land to foreclosure or were forced to sell at cut-rate prices. Even the U.S. government was not above taking advantage of the situation. Nearly two thousand internees were assured that their cars would be safely stored by the...
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Military Justice Reforms
The Brink of Collapse.
One of the most controversial areas of the law in the 1940s concerned the administration of military justice. The system of courts-martial that existed prior to the war was set up for a small military, comprising less than 300,000 servicemen. As many as 16.5 million people served in World War II; the existent system of military justice failed to accommodate them During World War II social scientists, using data from the 1940 census, determined that the armed forces held nearly 30 percent of the nation's potential criminals They pushed the system to the brink of collapse. Approximately 2 million court-martial convictions were handed down during the war, an average of sixty convictions a day every day. Many of these convictions were arbitrary and punitive. Military law is different than conventional criminal law, and the rights of suspects are more limited By the end of the war sensational abuses of civil rights by military courts were being publicized in the press, and a public outcry ensued. By the end of the decade the system of military justice in the United States had been radically reformed and more ably met the needs of the large, professional Cold War military.
Military justice was a key component in maintaining discipline during World War II Military tribunals and punishments, for example, were...
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The Nuremberg War Crimes Trial
Following the end of World War II, the Allies (United States, France, Great Britain, and the Union of Soviet Socialist Republics) established a military court to try Axis leaders for war crimes. The most famous of these trials were held at Nuremberg, Germany, from November 1945 through October 1946.
Origins of the Tribunal.
On 8 August 1945 representatives from the provisional government of France, the United States, Great Britain, and the Soviet Union met in London and signed an agreement that included a charter to set up an international military tribunal to try major Axis leaders for crimes against peace (such as planning war); crimes against humanity (genocide); war crimes (murder or ill-treatment of civilians or prisoners of war); and conspiracy to commit crimes listed in the first three groups. The tribunal consisted of one member, plus an alternate, from each of the four countries who had signed the London agreement. Eventually, nineteen other countries accepted the terms of the agreement.
At the first trial of Nazi leaders, twenty-four individuals were initially scheduled to be prosecuted. One committed suicide in prison prior to trial (Robert Ley), and one other was found to be physically and mentally unfit to be tried (Gustav Krupp von Bohlen...
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The Smith Act
Concern Over Subversives.
Enacted by the U.S. Congress and signed by President Franklin D. Roosevelt in 1940, the Alien Registration Act, best known as the Smith Act, was one of the most controversial laws passed in response to concerns over possibly subversive groups operating in the United States. A product of prewar anxieties, the Smith Act was proposed by Rep. Howard W-Smith of Virginia. The controversial aspects of the law were the sections that made it illegal to hold certain public opinions and that outlawed certain kinds of speech. Section I stipulated a ten-thousand-dollar fine and ten years in prison for attempting to undermine the morale of the armed forces. Sections II and III—the heart of the act and the sections which gave pause to so many civil libertarians—outlined the same penalties for anyone convicted who "advocates, abets, advises, or teaches" the violent overthrow of the U.S. government. It also outlawed the publication or distribution of any material advocating revolution and the organization or membership in any group advocating subversion. The act also had prohibitions against conspiracy to violate any provisions of the law.
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Spectacular Crimes of the 1940s
The Black Dahlia Case.
The 1947 murder of Elizabeth Short is notable in that it garnered the greatest number of spurious confessions in California history Short, who had become known as the Black Dahlia for her propensity always to dress in black, was born in 1925 By the age of twenty-two she had achieved a reputation as an aspiring actress who would go to bed with anyone who could possibly offer her a part in a movie. On 15 January 1947 her naked body was found cut in half and eviscerated in a vacant lot in a Los Angeles suburb. On her thigh were carved the initials "BD," presumably for Black Dahlia. Her murder seemed to bring out the worst among the psychologically disturbed in the Los Angeles area. The police were overwhelmed with the number of people who confessed to the murder. However, at least two tantalizing leads developed. A letter writer sent Short's social security card, birth certificate, and address book (with one page missing) to the police but never followed up with a promised letter. Another and possibly the most promising confession involved a twenty-nine-year-old army corporal who seemed to possess many facts related to her death. He was later determined to be psychologically unbalanced and was eventually dismissed as a suspect.
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The Supreme Court in the 1940s
Blows to Stare Decisis.
In law the doctrine of stare decisis (to stand by decided matters) is the policy of making contemporary judgments according to previous judgments and decisions. The doctrine is fundamentally conservative, binding the law to the past, regardless of current circumstances. In the twentieth century it was often challenged by the judicial philosophies of sociological jurisprudence and legal realism, which integrate contemporary concerns and social science into legal decisions. Beginning in the late 1930s and early 1940s, the Supreme Court began to undergo a dramatic change from stare decisis to legal realism. The effect of the Great Depression on law set these changes into motion. The Supreme Court refused to alter contractual and constitutional law to meet the economic emergency and invalidated one New Deal program after another. The Supreme Court also affirmed segregation statutes at a time when civil rights activists inside and outside of the Roosevelt administration were pressing for the dismantling of Jim Crow laws. After 1936 the Roosevelt administration and much of the public viewed the Supreme Court as obstructing progress, stifling reform through its rigid adherence to stare decisis. Roosevelt's court-packing plan of 1937 was a heavy-handed attempt to shift the Court's rulings. It failed, but as Roosevelt appointees Hugo Black (1937), Stanley Reed (1938), Felix...
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The United Nations
Legacy of Violence and Disorder.
The push for world government, or at least a code of international law, reached unprecedented heights during World War II and its aftermath. With the memory of the destruction and disillusion of World War I still widely held and the failure of the League of Nations, the outbreak of World War II gave impetus to the need for some structure which could rectify the situations which gave rise to worldwide violence.
The Atlantic Charter.
The most far-reaching attempt to codify international law began in August 1941 with a meeting between British prime minister Winston Churchill and U.S. president Franklin D. Roosevelt. The two agreed to a declaration of principles of fighting and ending World War II, of which the United States was not yet officially a participant. Called the Atlantic Charter by Churchill and Roosevelt, the declaration contained many of the ideas later used in the United Nations Charter, including the following provisions: no territorial change would occur after the war without the agreement of the people of the lands concerned; all people had the right to choose their form of government; all states would be guaranteed access to raw materials and world trade; all states could adopt the goal of abandoning the use of force. On 1 January 1942 the twenty-six nations allied in the war against...
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Frankfurter, Felix 1882-1965
ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT
Roosevelt and Frankfurter.
Felix Frankfurter joined the Supreme Court at a critical juncture in its history. Only a few years before, the conservative justices of the Court had barely survived an attempt by President Roosevelt to "pack the Court" with younger, more liberal members who Roosevelt hoped would sanction the president's New Deal policies. Roosevelt lost the battle, but he succeeded in pushing the court into a more liberal direction and gained several appointments in subsequent years. Frankfurter was one of the first new justices appointed by Roosevelt. He joined the Court when it began a shift toward approving greater civil rights for individuals and a broader, more liberal interpretation of the Constitution.
Felix Frankfurter was born in Vienna, Austria, on 15 November 1882. His father, Leopold, brought the family to New York City in 1894, where he set up shop as a linen merchant. Felix became a U.S. citizen when his father was naturalized in 1898. Felix received a B.A. from the College of the City of New York in 1902 and entered Harvard...
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Hiss, Alger 1904-
LAWYER, DIPLOMAT, CONVICTED PERJURER
Victim or Spy?
To some, Alger Hiss was a person who was in the wrong place at the wrong time. To others, he was a Communist sympathizer and spy. But whether he was unjustly accused of a crime he did not commit or whether he was a spy who escaped justice may never be truly known. What is certain is that his presence on the national scene at a critical point in American history serves to highlight the antisubversive feelings in America during the 1940s and the period leading up to the McCarthy "Red Scare" of the 1950s.
Quick Rise to the Top.
Alger Hiss was born in Baltimore, Maryland, on 11 November 1904. After graduating from Harvard Law School in 1929, he was a law clerk for Supreme Court justice Oliver Wendell Holmes between 1929 and 1930. He entered the service of the federal government in 1933 and in 1936 went to work in the State Department. By 1945 he had risen far enough in the State Department ranks...
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Houston, Charles 1895-1950
LAWYER AND CIVIL RIGHTS LEADER
Mr. Civil Rights.
While some may say that Martin Luther King, Jr., or Thurgood Marshall led the fight for civil rights in the twentieth century, most historians would agree that the real trailblazer was Charles Houston. In fact, his successor as NAACP legal counsel, Thurgood Marshall (a Supreme Court justice from 1967 to 1991), stated at the opening of the new Howard University Law School building in 1958 that Charles Houston was the rightful holder of the title "The First Mr. Civil Rights."
Charles Hamilton Houston was born in Washington, D.C., on 3 September 1895. He graduated from high school at the age of fifteen and enrolled in Amherst College, where he received his B.A. degree in 1915. During World War I, after completing the Negro officers' training camp, he was commissioned a first lieutenant in the infantry and subsequently attended the army's field artillery school. Houston entered the field artillery precisely because the prevailing "Wisdom" of the time was that African Americans were unable to complete the requirements for this branch of the service...
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Jackson, Robert 1892-1954
ASSOCIATE JUSTICE OF U.S. SUPREME COURT, U.S. REPRESENTATIVE AND CHIEF COUNSEL TO THE NUREMBERG WAR CRIME TRIALS
Robert Houghwout Jackson was born on 13 February 1892 in Spring Creek, Pennsylvania. He graduated from high school in 1910 and entered Albany Law School in 1911 but was forced to leave after one year due to a lack of funds and never obtained a law degree. He had previously clerked in the law office of Frank Mott, his mother's cousin, and resumed his clerkship after leaving law school. He was admitted to the New York bar in 1913, during an era when one could "read for the bar" after working for a period as a clerk to a lawyer or judge. During the next twenty years, as he ran a typical smalltown law practice, he became well known as a leading trial lawyer.
In 1930 Gov. Franklin D. Roosevelt appointed Jackson to a commission to study the state's judicial system. In 1932 Jackson crisscrossed the state of New York in support of Roosevelt's campaign for president. Two years later, President Roosevelt appointed him general counsel to the Internal Revenue Service. Jackson subsequently served as special counsel and as assistant attorney general in the Department of the Treasury, Department of Justice, and the Securities and Exchange Commission until 1938. In that year Roosevelt...
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Korematsu, Fred Toyosaburo 1919-
KOREMATSU V. UNITED STATES (1944)
Fred Korematsu never wanted to be famous, and he never wanted to be convicted of a crime. But he was convicted of a crime, and his name will be forever associated in the annals of American justice with the wrong that can be done when basic safeguards of the Constitution are nullified for reasons of political or, as in Korematsu's case, military expediency.
Toyosaburo Korematsu was born in Oakland, California, in 1919. He was a Nisei, or first generation Japanese American, born in the United States. He picked up the name "Fred" one year in school when a teacher who had trouble pronouncing his name called him Fred. He liked the name and it stuck. Korematsu graduated from high school in 1938 and worked in the family flower nursery. In June 1941 Korematsu and five friends went to the local post office to volunteer for service in the armed forces. Although his friends were given applications, Korematsu was turned away and was informed that the officer had orders not to accept Japanese Americans.
Executive Order 9066.
During the months leading up to the Japanese attack on Pearl Harbor, Korematsu had been dating an Italian American girl named Ida Boitano. Her parents disapproved of the mixed-race dating, but...
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Lepke, Louis 1897-1944
GANGSTER; HEAD OF "MURDER, INC."
Louis Lepke had the dubious distinction of being executed as the indirect result of founding and building a very successful, though illegal, business. A famous gangster of the 1930s and 1940s, he is perhaps best known by the name of his business, Murder, Incorporated.
Louis Lepke, as he was popularly known, was born Louis Bookhouse in Manhattan, New York. His only known occupation was as a criminal. He graduated from simple pushcart robberies at the age of sixteen to organizing protection rackets at the age of seventeen. Too short at five feet seven and one-half inches to intimidate successfully those he sought to "protect," he joined forces with Jacob Shapiro, a huge man whom he met on the day that they both attempted to rob the same pushcart. They joined the Lower East Side gang and worked in establishing control over the city's garment industry.
On 15 October 1926 Lepke machinegunned Jacob "Little Augie" Orgen to death and succeeded to the position of undisputed leader of the city's garment and business rackets. Often described as the "brains of the operation" and "shrewd," Lepke began recruiting mainly Jewish criminals from other gangs to establish his own hit teams and continued...
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Siegel, Benjamin "Bugsy" 1906-1947
GANGSTER; GAMBLING PIONEER
Bugsy Siegel believed that in order to get ahead, you had to have class. As a gangster who ran gambling rackets, he was something of a visionary. As part of an expansion of gambling activities in the West, he is credited with putting the small Nevada town of Las Vegas on the map as the king of the world gambling capitals.
Benjamin Siegel was born on 28 February 1906 in Brooklyn, New York. In a manner similiar to fellow gangster Louis Lepke, Siegel began his criminal career by preying upon pushcart vendors with a sidekick named Morris Sedway. Unlike Lepke, Siegel did not usually beat the vendors he was trying to convince to buy protection from him. Rather he would simply have Sedway pour kerosene over the vendors' merchandise and then light it on fire. It usually only took a vendor one lesson to decide to pay the "insurance."
During the 1920s and 1930s Siegel continued his climb up the underworld ladder until he became involved in a killing in the early part of the 1930s. As a result of this murder, several attempts were made on his life. With the heat turned up, he reportedly approached syndicate leaders regarding a plan to consolidate criminal undertakings in California with Jack Dragna, who...
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People in the News
In April 1941 John Arena, the editor of "La Tribuna," was shot to death in Chicago. Arena had been an American citizen for only six months at the time of his death. He had testified before Congress regarding spying activities of Ovra, the Fascist Italian secret police, who had been obtaining national defense secrets from industrial workers.
In October 1942 Associate Justice James F. Byrnes resigned from the U.S. Supreme Court to accept an appointment from President Franklin D. Roosevelt to be director of the Economic Stabilization Board, a new authority created to attempt to contain wartime inflation.
In March 1949 Frank Costello, alleged New York City gangster, was described by the California Commission on Organized Crime as the "reputed head" of a nationwide $2 billion slot machine racket that invested millions in bribing public officials. His response was to deny that he was the "boss of New York," and he stated that "I couldn't square a traffic ticket myself."
In April 1945 the Supreme Court reversed the conviction of Anthony Cramer, a German-born American citizen, for giving aid and comfort to two of eight Nazi saboteurs who landed in New York in 1942. In this first test of the treason laws of the United States, the Court held (5-4) that the federal government had not proved the charges by the definitions of the...
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Louis Brandeis, 84, retired associate justice of the U.S. Supreme Court, 5 October 1941.
Col. G. W. Burleigh, 69, soldier, church leader, and lawyer, 15 March 1940.
Al(phonse) Capone, 48, Italian American former gangster, 25 January 1947.
John H. Clarke, 87, former associate justice of the U.S. Supreme Court who resigned in 1922 to promote American participation in the League of Nations, 22 March 1945.
P. D. Cravath, 78, president of the Metropolitan Opera Association and lawyer, 1 July 1940.
Mrs. M. P. Falconer, 79, prison reformer, 26 November 1941.
I. F. Fischer, 81, U.S. customs judge in New York City, 16 March 1940.
J. S. Fisher, 73, former governor of Pennsylvania and lawyer, 25 June 1940.
E. W. Graser, 32, lawyer and radio actor who portrayed the Lone Ranger, 8 April 1941.
Grafton Green, 74, chief justice of the Tennessee Supreme Court and judge at the Scopes "Monkey" trial (creationism versus evolution), 27 January 1947.
Arthur D. Hill, 78, one of the attorneys in the Sacco and Vanzetti case, 29 November 1947.
Henry Horner, 61, governor of Illinois, lawyer...
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Catherine D. Bowen, Yankee From Olympus: Justice Holmes and his Family (Boston: Little, Brown, 1944);
Esther Lucile Brown, Lawyers, Law Schools and the Public Service (New York: Russell Sage Foundation, 1948);
Charles H. Butler, A Century at the Bar of the Supreme Court of the United States (New York: Putnam, 1942);
Edmond Nathaniel Cahn, The Sense of Injustice, a Anthropocentric View of Law (New York: New York University Press, 1949);
Robert K. Carr, Federal Protection of Civil Rights: Quest For A Sword (Ithaca, N.Y.: Cornell University Press, 1949);
Edmond Samuel Corwin, Understanding the Constitution (New York: Sloane, 1949);
Charles P. Curtis, Lions Under the Throne: A Study of the Supreme Court (Boston: Houghton Mifflin, 1947);
Erik Erikson, The Supreme Court and the New Deal (Rose-mead, Cal.: Rosemead Review Press, 1940);
Osmond K. Fraenkel, Our Civil Liberties (New York: Viking, 1944);
Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1949);
Fritz Grob, The Relativity of War and Peace, a Study in Law, History, and Politics (New Haven: Yale...
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Important Events in Law and Justice, 1940–1949
- On January 15, the Senate approves Frank Murphy's appointment to the Supreme Court.
- On June 28, the Alien Registration Act (Smith Act) is passed. This law makes it unlawful for any individual to call for the overthrow of any government in the United States by force. It also makes it unlawful to join or found any group which teaches such a doctrine.
- On January 31, Justice James Clark McReynolds retires from the Supreme Court after serving for twenty-six years.
- On June 12, Senator James F. Byrnes is nominated and confirmed on the same day to an appointment as an associate justice of the Supreme Court.
- On June 27, Justice Harlan Fiske Stone is confirmed by the Senate to replace Charles Evans Hughes as chief justice upon Hughes's retirement.
- On July 1, Chief Justice Hughes retires after serving as chief justice for eleven years.
- On July 11, Robert H. Jackson is sworn in as an associate justice of the Supreme Court.
- On January 7, Attorney General Francis Biddle announces the arrest of 3,234 Axis nationals in the United States.
- On January 12, the Supreme Court declares Georgia's contract labor law unconstitutional....
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