Law and War: Individual Rights, Executive Authority, and Judicial Power in England during World War I
Vorspan, Rachel, Vanderbilt Journal of Transnational Law
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
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. …