In this Article Professor Vorspan examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on detention, deportation, conscription, and confiscation of property, the Author revises the conventional depiction of the English judiciary during World War I as passive and peripheral. She argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal freedom. Second, they relentlessly preserved their own institutional power and authority, consistently affirming the right to review government conduct through the writ of habeas corpus. Third, in stark contrast to their treatment of individual liberty, they vigoroztsly upheld property rights against executive power. Finally, they suffused their decisions with a particular wartime moral ideology based on both national origin and traditional concepts of individual "character." Their success in achieving these priorities while failing to protect individual liberty offers the troubling contemporary lesson that maintaining jurisdiction to review governmental conduct will not safeguard rights during "wartime" without a staunch judicial commitment to the substantive value of personal freedom.
TABLE OF CONTENTS I. INTRODUCTION II. LEGAL SOURCES OF EXECUTIVE AUTHORITY IN WARTIME III. JUDICIAL WARRIORS AND INDIVIDUAL LIBERTY A. Construing Emergency Statutes: Warmaking Beyond Parliamentary Intent 1. Internment: Drawing Unprecedented Inferences from Silence 2. Conscription: Policymaking Through Selective Construction a. Conscientious Objectors b. Dual Nationals 3. Deportation: Circumventing Parliamentary Restraints 4. Exclusion: Setting Minimal Standards 5. The Irish Rebellion: Manipulating Technicalities B. Stretching the Boundaries of the Royal Prerogative IV. THE FORMAL ASSERTION OF JUDICIAL POWER A. Preserving the Vitality of Habeas Corpus B. Imposing Selective Reasonableness Review C. Requiring art Adequate Factual Showing D. Applying Special Scrutiny to "Judicial" Acts of the Executive V. JUDICIAL ACTIVISM IN PROTECTING PRIVATE PROPERTY A. The Framework of Wartime Restrictions on Property Rights B. Requisitioning Private Property: The Judicial Response 1. The Compensation Controversy 2. Wartime Taxation Without Representation 3. Private Property and Judicial Access VI. THE MORAL IDEOLOGY OF THE WARTIME JUDICIARY A. The Hierarchy of Moral Respectability B. Ranking Values: Property Trumps Morality VII. CONCLUSION I. INTRODUCTION
During World War I the English government imposed severe "emergency" limitations on individual freedom based on a presumed interest in national security, justifying them under both enabling legislation and as an exercise of inherent executive power. In particular, the government for the first time pursued a policy of wide-scale preventive detention not only of aliens but of citizens. To prosecute the wars against terrorism and Iraq, the government of the United States in recent years has adopted similarly restrictive domestic policies. The English experience during the first global war of the twentieth century thus resonates with our own, and it offers some deeply troubling lessons.
This Article suggests that maintaining a judicial process to determine the legality of executive conduct will not by itself guarantee the preservation of individual liberty. The English courts during World War I were adept at conserving their formal authority to establish limits on the executive. Indeed, they decided every significant wartime case pursuant to habeas petitions and found every issue presented to be justiciable. In similar fashion, last year the United States Supreme Court upheld the jurisdiction of the courts to review executive detention. (1) But asserting the principle of reviewability constitutes no more than an essential first step, since judicial power and process can be wielded to any substantive purpose. The decisions on the merits during World War I--especially those concerning internment, deportation, and conscription--were hardly reassuring in the balance they struck between state interests and individual liberty.
In addition to being instructive on current issues, the wartime cases point to the need for a reappraisal on historical grounds of the role of the English courts during World War I. The conventional understanding of the judiciary posits its total capitulation during that conflict to executive infringements on individual liberty. As historians of English civil liberties have contended, the judges' deference to the executive during the First World War constituted a "total abdication of their role." (2) A primary argument of this Article is that the depiction of a supine and passive judiciary, one that was largely peripheral to wartime developments, is inadequate and incomplete. An exhaustive examination of eases decided during the war suggests a more nuanced and indeed more unsettling view. Although the judges were hardly protective of personal freedom, they were not simply cowed and deferential, bowing to the will of an overbearing executive. Rather, they were active, energetic, and vigilant both in advancing the government's war effort and in promoting their own policies and powers.
First, even when the judges ruled on behalf of the government, they did so aggressively and creatively. In the areas of internment, deportation, and conscription, for example, they interpreted legislation audaciously, reshaping statutes to sanction executive detention and other favored wartime strategies. Further, the judges complemented their exercises in statutory analysis with a bold elaboration of common law principles, expanding prerogative powers in novel ways to enhance the government's legal authority. Deploying innovative and questionable legal devices, members of the bench during World War I were judicial warriors, enthusiastically advancing executive and military policies that went well beyond both parliamentary intent and common law precedent.
Second, the judges staunchly promoted their own institutional power, formally asserting their authority to establish the parameters of executive conduct. The traditional "individual rights" framework that scholars have applied to judicial behavior during World War I--that is, the emphasis on substantive results in conflicts involving civil liberties between individuals and the state--has obscured another important perspective. Viewing judicial opinions through the prism of institutional powers, it is apparent that in derogating from individual rights, the courts at the same time buttressed and amplified their own autonomy and authority. Contrary to the conventional wisdom, they did not view executive actions as "non-justiciable." Indeed, perhaps the most salient characteristics of the judiciary during World War I were its eagerness to assert jurisdiction through the writ of habeas corpus and its reinforcement of the reviewability of all issues. Although substantive decisions in civil liberties cases uniformly favored the government, in rendering them the judges sustained and even accentuated their formal institutional powers.
Third, in stark contrast to their stance in liberty decisions, in property cases the judges were notably "activist," moving beyond formal assertions of power to uphold individual property claims against the executive. They repeatedly invalidated governmental efforts to levy taxes, requisition land without paying adequate compensation, and interfere with litigation seeking to recover property. Again, they skillfully employed every available mechanism to attain their objectives, generally either finding the regulatory framework to be ultra vires the enabling legislation or adapting common law precedent to invalidate exercises of the royal prerogative.
Finally, the judges imposed on the law their own particular moral ideology, suffusing their decisions with a bellicose moralism that treated a litigant's personal "worthiness" as an important factor in shaping their decisions. They created a new hierarchy of wartime respectability that blended patriotic criteria such as national origin and military service with more conventional Victorian determinants of "character." Natural-born English citizens, naturalized British subjects, foreign allies, enemy aliens, and Irishmen existed on a moral continuum, with the "genuinely" English at the top of the hierarchy and the Irish--though ostensibly equal subjects of the Crown--at the bottom. Persons situated at different positions on the hierarchy received differential treatment from the courts, with the Irish faring even worse than enemy aliens.
The judges, therefore, were activist in four respects. They vigorously prosecuted the war, safeguarded their institutional power, protected private property, and promoted a particularized wartime morality. In other words, they were warrior judges with their own distinctive substantive and jurisdictional agenda.
Part II of this Article explores the legal background relevant to this inquiry into judicial conduct, investigating the legal bases for expanded executive authority during the war. It discusses both new enabling legislation, such as the Defense of the Realm Acts, and traditional common law sources of power, such as the royal prerogative. In Part III the Article examines aggressive legal strategies that the courts employed to assist the war effort in the spheres of internment, deportation, and conscription. Part IV demonstrates that despite the pro-government nature of the decisions in personal freedom cases, the judges nevertheless preserved their formal control over the executive by maintaining the vitality of habeas review, establishing the...