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No. 126 "The American Form Of Government, The Supreme Court And The New Deal," May 28, 1936. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_126 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 126 "The American Form Of Government, The Supreme Court And The New Deal," May 28, 1936. American Liberty League. American Liberty League. Washington, D.C. 1936. This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 1 of the TEI in Libraries Guidelines. Digital page images are linked to the text file. JOIN THE AMERICAN LIBERTY LEAGUE The American Liberty League is organized to defend and uphold the Constitution of the United States and to gather and disseminate information that (1) will teach the necessity of respect for the rights of persons and property as fundamental to every successful form of government and (2) will teach the duty of government to encourage and protect individual and group initiative and enterprise, to foster the right to work, earn, save, and acquire property, and to preserve the ownership and lawful use of property when acquired. The League believes in the doctrine expressed by George Washington in his Farewell Address that while the people may amend the Constitution to meet conditions arising in a changing world, there must "be no change by usurpation; for this * * * is the customary weapon by which free governments are destroyed." Since the League is wholly dependent upon the contributions of its members for financial support it hopes that you will become a contributing member. However, if you cannot contribute it will welcome your support as a non-contributing member. ENROLLMENT BLANK American Liberty League National Press Building Washington, D. C. I desire to be enrolled as a member of the American Liberty League. Signature Name .................................. Street .................................. Town .................................. County .......................... State. Enclosed find my contribution of $...... to help support the activities of the League. THE AMERICAN FORM OF GOVERNMENT THE SUPREME COURT AND THE NEW DEAL â˜… â˜… â˜… "In thirty'four months we have built up new instruments of public power.'' Franklin D. Roosevelt January 3, 1936 "We don't want any autocrats, either in or out of office; we wouldn't even take a good one." Alfred E. Smith January 25, 1936 AMERICAN LIBERTY LEAGUE J^ational Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 126 May, 1936 The American Form of you have finished with this pamphlet, please pass it on to some friend or acquaintance who might be interested, calling his attention to the membership blan\ on page 32. Government The Supreme Court and The New Deal â˜… Continued emphasis placed by the New Deal upon dissenting opinions of the Supreme Court and the oft-repeated phrase, "I must read all of the opinions," clearly are prejudicial attempts to destroy the pronouncements of law by the Supreme Court as law. The decisions of the Supreme Court clearly establish that the New Deal has contemplated and definitely attempted to bring about fundamental changes in the American form of government. The New Deal laws, disapproved by the Court, have not been isolated instances of disregard of Constitutional principles. Each is an integrated part of a step taken toward a new pattern of government. Viewed as a whole, the New Deal network of law strikes at the essential characteristics of the American system. By judicial interpretation and without formal amendment to the Constitution the New Deal would tear down the safeguards against autocracy provided in the three coordinate branches of the Federal Government, in the dual sovereignty of the Federal and State Governments, and in the guaranties of individual liberties in the Bill of Rights. In defense of the American form of government the Supreme Court, passing upon New Deal laws, has held: 1. That practically unlimited legislative power was delegated to the Executive, thereby destroying the protection afforded by the distribution of power in coordinate departments as provided in the Constitution. 2. That Federal authority was exerted in fields reserved under the Constitution to the States to the extent of "obliterating" the States and breaking down our system of a Federal union of autonomous States. Local self-government has been imperiled. 3. That individual liberties guaranteed in the Bill of Rights were encroached upon. 4. That the taxing power has been expanded 3 into an instrument of coercion and a means of effectuating social and economic control. Basically, our Constitutional system sought to protect individual freedom and self-government against the inevitable oppression of a government with an unlimited and unrestrained concentration of power in any one political unit, no matter how democratic. Concentration of such power free from judicial accountability under a written compact between the Government and the citizen the Constitution was the real threat to freedom in the eyes of the authors of our government. It is clearly evident from the cases before the Supreme Court that the New Deal pattern of government challenges this basic principle and proposes a greater centralization of power over the business activities and private lives of the people than ever contemplated or previously attempted under the Constitution. The key measures of the New Deal all proceed on the same theory and therefore evidence a concerted attempt to alter the structure of our government. Its trend is strongly toward economic and political dictatorship. These are common characteristics of Fascism, Nazism, and Sovietism as exemplified in Italy, Germany, and Russia. In fourteen cases laws or their application have been held unconstitutional during the Roosevelt administration. In eight of the cases (two cases affecting the AAA being considered as one) important laws enacted under the New Deal were declared unconstitutional while in two others the application of major laws was held to be unconstitutional. The four other cases were of minor importance, two of them having to do with 'laws enacted under previous administrations. The eight major cases in which New Deal laws were held unconstitutional were those of the NRA, the "hot oil" case, the Guffey Bituminous Coal Act, the AAA, the abrogation of the gold clause in Government obligations, the Railroad Retirement Act, the Farm Moratorium Act and the Municipal Bankruptcy Act. The two chief cases involving an unconstitutional application of New Deal acts affected the Securities Act and the Home Owners' Loan Corporation Act. In two other cases not involving the constitutionality of laws, the Humphrey case and the Parker Dam case, New Deal policies were disapproved by the Supreme Court. The record of the Supreme Court with respect to the American form of government and the New Deal is, in brief, as follows: Government and Business NRA In the Schechter case, decided May 27, 1935, the Court held that the code provisions of the National Industrial Recovery Act attempted to extend the regulatory power of the Federal Government over purely intrastate transactions in violation of the sovereignty of the States and then to concentrate that power in the Executive by an unconstitutional delegation of legislative power. The very Constitutional structure of our Federal union was violated. Obviously, the Court found it unnecessary to consider questions raised involving the due-process clause of the Constitution. The Hot Oil Case The Court in the Panama Refining Company case, decided January 7, 1935, held a section of the National Industrial Recovery Act relating to oil to be a similar unconstitutional delegation of legislative power to the Executive. Guffey Bituminous Coal Act This act, declared unconstitutional on May 18, 1936, was an attempt to revive within the coal industry the unconstitutional NRA. The President requested Congress to pass this bill in spite of "doubts, however reasonable" as to its Constitutionality. Among other things, the Supreme Court held that the so-called excise tax was a penalty and that, further, the incidents leading up to and culminating in the mining of coal were local in character and not subject to regulation by Congress, and that the employees were not engaged in or about commerce but were engaged exclusively in producing a commodity. Securities Act The Court in the Jones case, decided April 6, 1936, did not pass on the Constitutionality of the Securities Act but held that the Securities and Exchange Commission had applied and was administering the law in violation of individual rights as guaranteed by the Bill of Rights of the Constitution. Public Utility Holding Companies The Court, on March 30, 1936, denied a review of the suit of Burco, Inc., against the American States Public Service Company. The effect was to defer a ruling by the Supreme Court on the Constitutionality of the Holding Company Act. In the Federal District Court at Baltimore, Judge William C. Coleman in the Burco case held the Holding Company Act to be invalid in its entirety. The Circuit Court of Appeals at Charlotte, North Carolina, held that Judge Coleman's decision had been too broad, but decided, nevertheless, that the act was unconstitutional as applied to concerns engaged in intrastate business and that, as the American States Public Service Company was in that category, it did not have to register under the act. Government in Business TVA The Court in the Tennessee Valley Authority case, decided February 17, 1936, approved the sale of power from the Wilson Dam, which had been lawfully constructed under war powers, but expressed no opinion as to the status of any other dam or power development. The Court expressed no opinion as to the Constitutionality of the Tennessee Valley Authority Act or as to the Constitutionality of the many collateral enterprises being projected and carried on in connection with the TVA development. The scope of the decision is sharply limited to very narrow lines. Right of Eminent Domain The Government withdrew on March 5, 1936, an appeal pending before the Supreme Court from the decision of the United States Circuit Court of Appeals rendered at Cincinnati July 15, 1935, affirming a finding of Judge Charles I. Dawson at Louisville, Kentucky. The lower courts held that the Federal Government had no Constitutional power to exercise the right of eminent domain (and it is clear that a taking for slum clearance is a public use when exercised locally and not by the Federal Government) except when property is to be taken for public use. Property intended to be taken for slum-clearance and'low-cost housing projects, according to the lower court decisions, was not for a public use. Government and Agriculture AAA The Court in the Hoosac Mills Corporation case, decided January 6, 1936, held that the Agricultural Adjustment Act invaded the reserved rights of the States in its plan to regulate and control agricultural production. Rice Millers Case The Court on January 13, 1936 ordered $200,-000,000 of impounded AAA processing taxes returned to processors and ruled that amendments to the original Agricultural Adjustment Act did not bring it within the terms of the Constitution. Cotton, Tobacco, and Potato Acts Following the Court's decision in the AAA case, Congress, on the recommendation of the President, repealed the Bankhead Cotton Control Act, the Kerr Tobacco Control Act and the Potato Control Act. The action was due to a recognition that all three laws were certain to be held unconstitutional as an invasion of the power of the States and a misuse of Federal taxing power for that purpose. Cases involving the Bankhead Cotton Control Act already were before the Supreme Court. An adverse decision involving the Kerr Tobacco Control Act had been given in a lower court. The Potato Control Act had not been on the statute books long enough to be tested in court. Farm Moratorium Act The Court in a case involving the Frazier-Lemke Act, decided May 27, 1935, held it to be unconstitutional as a violation of the Fifth Amendment in taking property of the creditor without due process of law. It was an attempt at an arbitrary exercise of legislative power by the Federal Government. Monetary Policy-Abrogation of Gold Clause The Court in a gold-clause case, decided February 18, 1935, held that Congress went beyond its Constitutional power in abrogating the Government's obligation to pay in gold. The decision was emphatic in its condemnation of repudiation of public contracts. The Court sustained abrogation of the gold clause in private contracts. Social Security Pensions for Railroad Employees On May 6, 1935, the Court held the Railroad Retirement Act to be unconstitutional as a violation of the Fifth Amendment relating to the taking of property without due process of law and also beyond the power of Congress under the commerce clause. Unemployment Insurance and Old Age Pensions There is no doubt that the Social Security Act of 1935 will be tested in the courts when it becomes fully effective. Executive Usurpation of Power The Humphrey Case The Supreme Court on May 27, 1935, held that President Roosevelt had exceeded his authority in removing the late William E. Humphrey as a member of the Federal Trade Commission. This case did not involve a New Deal law but protected Governmental officials, members of independent commissions, acting under legislative enactments, from being removed at the mere whim of the Executive. The Parker Dam Case The Supreme Court held on April 29, 1935, that the executive branch of the Government exceeded the authority delegated to it under title II of the National Industrial Recovery Act when it made an allotment of public-works funds for construction of the Parker Dam on the Colorado River. Under a clause in the existing law no river or harbor improvements were to be carried out from public-works funds unless specifically authorized by Congress or recommended by the Chief of Engineers of the Army. Dual Sovereignty Municipal Bankruptcy Act The Court in a decision on May 25, 1936, held the Municipal Bankruptcy Act of 1934 to be un- constitutional on the ground that it impaired the sovereignty of the states. HOLC The Court in a case decided December 9,1935, held that the Home Owners Loan Act, to the extent that it permitted the conversion of State building and loan associations into Federal associations in contravention of State law, was an unconstitutional encroachment upon the reserved powers of the States. Present Status of New Deal The laws held to be unconstitutional by the Supreme Court formed essential timbers in the New Deal structure. Included among them were the chief measures sponsored by the administration with respect to industry and agriculture. It was upon the foundation established by these laws that the administration proposed to build recovery. The adverse decisions by the Supreme Court constitute a sweeping condemnation of the New Deal program as being a radical departure from the American form of government. Despite the guidance offered in the decisions of the Supreme Court the administration has failed to reshape its recovery program to accord with Constitutional principles. The validity of many New Deal laws still remains in doubt. In the enactment of substitute legislation following adverse decisions, which substitute legislation has in many instances been a substantial re-enactment of the condemned predecessor, the administration has shown clearly its determination to make fundamental changes in our system of government. The Labor Relations Act of 1935 is one of the New Deal measures which remains to be passed upon by the Supreme Court. It is evident that this act and the Soil Conservation and Social Security Acts, as well, are affected by the decision of the Supreme Court in the Guffey Coal Act case. The Labor Relations Act has already been declared unconstitutional by certain district-court judges, and several decisions of the Court of Appeals are expected at an early date. Undoubtedly these courts will follow the decision of the Supreme Court in the Guffey case. The Soil Conservation and Domestic Allotment Act was enacted February 29, 1936, as a substitute for the Agricultural Adjustment Act. Like the Agricultural Adjustment Act it is designed to control agricultural production. The Public Utility Holding Company Act is certain to be passed upon by the Supreme Court at an early date. Some time may elapse before the Social Security Act is tested in the Supreme Court. The Supreme Court eventually will be called upon to decide the constitutionality of the Tennessee Valley Authority Act and the Securities Act. In decisions relating to these acts already rendered this year, the Court did not deal with the Constitutional question. The Work Relief Act of 1935, which delegates broad powers to the Executive, has been held by many authorities to be clearly unconstitutional. The Court of Appeals of the District of Columbia gave a finding to this effect on May 18, 1936 in disapproving a model community project of the Resettlement Administration near Bound Brook, New Jersey. This decision was immediately applicable only to the project involved. The Court of Appeals declared that the law contained a clearly unconstitutional delegation of legislative power, and furthermore, that Congress lacked any authority to enact legislation to put into operation the proposed resettlement project. In this case the plaintiffs were a township and certain property owners and taxpayers. The Work Relief Act had not previously been involved in a test as to Constitutionality, due to the unwillingness of the Courts to entertain suits by taxpayers against the government. Excerpts from Court Decisions The extent to which New Deal laws represent departures from the American form of government is apparent from the decisions of the Supreme Court. A few excerpts from the leading decisions will show that the cases were not decided upon technicalities but that basic issues affecting the Constitutional foundations of our government were involved. In the Schechter case, involving the NRA, the Court said: "If the commerce clause were construed to reach all enterprises and transactions which could be said 10 to have an indirect effect upon interstate commerce, the Federal authority would embrace practically all the activities of the people and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government." "If the Federal Government may determine the wages and hours of employees in the internal commerce of a State, because of their relation to cost and prices and their indirect effect upon interstate commerce, it would seem that a similar control might be exerted over other elements of cost, also affecting prices, such as the number of employees, rents, advertising, methods of doing business, etc. All the processes of production and distribution that enter into cost could likewise be controlled. If the cost of doing an intrastate business is in itself the permitted object of Federal control, the extent of the regulation of cost would be a question of discretion and not of power." "It is not the province of the Court to consider the economic advantages or disadvantages of such a centralized system. It is sufficient to say that the Federal Constitution does not provide for it." The Hot Oil Case In the "hot oil" case the Court, dealing with an unconstitutional delegation of power, said: "If section 9(c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its law-making function. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its law-making function the Congress could at will and as to such subjects as it chooses transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the Constitutional processes of legislation which are an essential part of our system of government." Guffey Coal Decision In the Guffey Bituminous Coal Act case the Court made it clear beyond peradventure that the regulation of production or manufacture constitutes an invasion of the powers of the states and is in conflict with the form of government prescribed by the Constitution. The Court in this case said: "We have seen that the word 'commerce* is the equivalent of the phrase 'intercourse for the purposes of trade.' Plainly, the incidents leading up to and culminating in the mining of coal do not constitute such intercourse. The employment of men, the fixing of their wages, hours of labor and working conditions, the bargaining in respect of these things whether carried on separately or collectively each and all constitute intercourse for the purposes of production, not of trade. The latter is a thing apart from the relation of employer and employee, which in all producing occupations is purely local in character. Extraction of coal from the mine is the aim and the completed result of local activities. Commerce in the coal mined is not brought into being by force of these activities, but by negotiations, agreements and circumstances entirely apart from production. Mining brings the subject matter of commerce into existence. Commerce disposes of it. "A consideration of the foregoing, and of many cases which might be added to those already cited, renders inescapable the conclusion that the effect of the labor provisions of the act, including those in respect of minimum wages, wage agreements, collective bargaining, and the Labor Board and its powers, primarily falls upon production and not upon commerce, and confirms the further resulting conclusion that production is a purely local activity. It follows that none of these essential antecedents of production constitutes a transaction in or forms any part of interstate commerce. Schechter Corp. vs. United States, supra, p. 542, et seq. Everything which moves in interstate commerce has had a local origin. Without local production somewhere, interstate commerce, as now carried on, would practically disappear. Nevertheless, the local character of mining, of manufacturing and of crop growing is a fact, and remains a fact, whatever may be done with the products." Dealing further with the relations between employer and employees in language which is pertinent to such other legislation as the Labor Relations Act, the Court said: "Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby. But, in addition to what has just been said, the conclusive answer is that the evils are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. At common law it is one 12 of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity. And the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result. Such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the greatness of the effect adds to its importance. It does not alter its character." The Court, in holding the tax imposed by the Guffey Act to be a penalty provision and not a true tax, said: "It is very clear that the 'excise tax' is not imposed for revenue but exacted as a penalty to compel compliance with the regulatory provisions of the act. The whole purpose of the exaction is to coerce what is called an agreement which, of course, is not, for it lacks the essential element of consent. One who does a thing in order to avoid a monetary penalty does not agree; he yields to compulsion precisely the same as though he did so to avoid a term in jail. "The exaction here is a penalty and not a tax within the test laid down by this court in numerous cases." The AAA Decision With respect to control of agricultural production under the Agricultural Adjustment Act in the Hoosac Mills Corporation case the Court said: "The act invades the reserved rights of the States. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the Federal Government. The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end. "From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the States or to the people. To forestall any suggestion to the contrary the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden." 13 Municipal Bankruptcy Act In holding the Municipal Bankruptcy Act unconstitutional as an impairment of the sovereignty of the states the Supreme Court said: "If obligations of the States or their political subdivisions may be subjected to the interference here attempted, they are no longer free to manage their own affairs; the will of Congress prevails over them; although inhibited, the right to tax might be less sinister. And really the sovereignty of the state, so often declared necessary to the Federal system, does not exist." The Securities Act Case The decision of the Supreme Court in the case of J. Edward Jones v. Securities and Exchange Commission, in which it was held that in its application of the Securities Act the Commission acted in an unconstitutional manner, reflects the Court's abhorrence of encroachments upon the guaranties of the Bill of Rights. The Court in that decision said: "The action of the Commission finds no support in right principle or in law. It is wholly unreasonable and arbitrary. It violates the cardinal precept upon which the Constitutional safeguards of personal liberty ultimately rest that this shall be a government of laws , because to the precise extent that the mere will of an official or an official body is permitted to take the place of allowable official discretion or to supplant the standing law as a rule of human conduct, the government ceases to be one of laws and becomes an autocracy. Against the threat of such a contingency the courts have always been vigilant, and, if they are to perform their Constitutional duties in the future, must never cease to be vigilant, to detect and turn aside the danger at its beginning." "Arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces; and one or the other must of necessity perish whenever they are brought into conflict. To borrow the words of Mr. Justice Day there is no place in our Constitutional system for the exercise of arbitrary power.' Garfield v. Goldsby, 211 U.S., 249, 262. To escape assumptions of such power on the part of the three primary departments of the Government is not enough. Our institutions must be kept free from the appropriation of unauthorized power by lesser agencies as well. And if the various administrative bureaus and commissions, necessarily called and being called into existence by the increasing complexities of our 14 modern business and political affairs, are permitted gradually to extend their powers by encroachments even petty encroachments upon the fundamental rights, privileges, and immunities of the people, we shall in the end, while avoiding the fatal consequences of a supreme autocracy, become submerged by a multitude of minor invasions of personal rights, less destructive but no less violative of Constitutional guaranties." Power of Court In recent attacks upon the courts there has been a revival of the contention that the Supreme Court lacks power to declare acts of Congress unconstitutional. The discussions during the framing and adoption of the Constitution show clearly that it was assumed the Supreme Court would pass upon the validity of statutes just as State courts then existing were doing. The Constitution contains two provisions which would be without significance if the Supreme Court did not possess the power to declare acts of Congress invalid. Clause 2 of Article VI provides that the Constitution and the laws made in pursuance thereof shall be the supreme law of the land. Section II of Article III provides that the judicial power shall extend to all cases arising under the Constitution. In order to decide cases and controversies as they are brought before the courts, it is obviously necessary to find the law applicable to the case, and, when that law lies in a provision of the Constitution, it must necessarily be given effect because it is expressly declared to be supreme. To have any practical effect these provisions must mean that the Court may hold acts of Congress to be either in accord with or contrary to the Constitution. The Supreme Court in the case of St. Joseph Stock Yards Company v. the United States of America and the Secretary of Agriculture, decided April 27, 1936, took occasion to assert the rights and responsibilities of the courts with respect to legislative enactments. The Court said: "Legislative declaration or finding is necessarily subject to independent judicial review upon the facts and the law by courts of competent jurisdiction to the end that the Constitution as the supreme law of the land may be maintained. Nor can the legislature escape the Constitutional limitation by authorizing its agent to make findings that the 15 agent has kept within that limitation. Legislative agencies, with varying qualifications, work in a field peculiarly exposed to political demands. Some may be expert and impartial, others subservient. It is not difficult for them to observe the requirements of law in giving a hearing and receiving evidence. But to say that their findings of fact may be made conclusive where Constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and Constitutional rights have been invaded, is to place those rights at the mercy of administrative officials and seriously to impair the security inherent in our judicial safeguards. That prospect, with our multiplication of administrative agencies, is not one to be lightly regarded. It is said that we can retain judicial authority to examine the weight of evidence when the question concerns the right of personal liberty. But if this be so, it is not because we are privileged to perform our judicial duty in that case and for reasons of convenience to disregard it in others. The principle applies when rights either of person or of property are protected by Constitutional restrictions. Under our system there is no warrant for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of Constitutional authority." Charles Warren, in his book Congress, The Constitution, and the Supreme Court, published by Little, Brown and Company, Boston, 1935, summarizes the situation with respect to the famous case of Marbury v. Madison as follows: "Opponents of the Court frequently contend that Chief Justice Marshall, in his opinion in Marbury v. Madison in 1803 holding an act of Congress invalid, was usurping a power not granted to the Court and not before exercised. This charge is largely the result of lack of knowledge of American history and especially of the newspapers, letters, and other writings of the period of the decision. The power to pass on the validity of acts of Congress had been exercised by Justices of the Supreme Court sitting on Circuit in at least two cases, and the Court itself had considered and upheld the Carriage Tax Act in 1796. These Justices on Circuit had also passed the validity of State statutes in many cases. Judges of State courts had asserted or exercised the power with reference to State statutes in over twenty cases in eleven out of the fifteen States between 1789 and 1802. As shown supra (Chapter Four), in every Congress for twelve years, the power had been not only recognized but endorsed by members of both political parties Fed-16 eralist and Anti-Federalist. An examination of all sources of expression of public opinion (made while writing my The Supreme Court in United States History, I, pp. 255 et seq.) newspaper editorials, letters, speeches, pamphlets, resolutions of legislatures, and toasts at banquets and public meetings discloses practically no opposition to this exercise of the power of the Court. Only two serious attacks upon this function of the Court were published one by a Federalist, Zephaniah Swift, in 1795, in a treatise on the law of Connecticut, and the other by an Anti-Federalist, Charles Pinckney of South Carolina, in a series of newspaper letters in the campaign of 1800; and as to Pinckney's attack, a number of subscribers to a leading Anti-Federalist paper wrote that if Pinckney's views 'were to grow into general opinions, they would be infinitely more alarming to the liberties of the people than any of the doctrines which he attempts to refute.' It was not until the debate in Congress in 1802 over the repeal of President Adams' Judiciary Act that the power of the Court was questioned, and then only by Congressmen from Kentucky, Virginia, North Carolina, and Georgia. Far from exercising a usurped power in 1803, Chief Justice Marshall's decision in Marbury v. Madison was in line with what the courts were generally expected to do; and an extensive survey of the newspapers during the year after the decision discloses the fact that there was practically no assault whatever upon the decision for holding an act of Congress invalid, although Anti-Federalist papers attacked it on other grounds." Decisions in Other Years Prior to the Roosevelt administration there were 65 cases in which the Supreme Court held either acts of Congress or their application to be unconstitutional. During the Roosevelt administration there have been 14 similar cases, 12 of them relating to laws enacted during this administration. Of the 14, 10 were of significance as involving important laws enacted under the New Deal. The other four related to the validity of a tax, the application of laws on judicial salaries and on veterans' benefits, two of the four having to do with laws enacted in former administrations. Except for the repeal of three agricultural-control laws and the withdrawal of the appeal in the eminent-domain case; it is reasonable to assume that there would have been four additional decisions of an adverse character. A review of all the cases in which the Supreme Court has held acts of Congress or their application to be unconstitutional indicates that at no other period of the history of the United States has there been such a concerted attack upon the American form of government as under the New Deal. It is fair to say that none of the acts held unconstitutional by the Supreme Court prior to the New Deal was the result of any conceived plan to undermine or destroy the Constitution of the United States. After the case of Marbury v. Madison in 1803 there were no further decisions of the Supreme Court holding laws unconstitutional until the Dred Scott case in 1857, which involved the issue of slavery. Only three laws enacted prior to the Civil War were held unconstitutional. One, which was involved in the Marbury v. Madison case, was placed on the statute books during the Washington administration; another, involved in the Dred Scott case, in the Monroe administration; and a third, involved in a public-land case decided after the Civil War, in the Madison administration. Twenty-three laws enacted during the Lincoln, Johnson, and Grant administrations were declared unconstitutional. Several of these involved Civil War amendments to the Constitution. Also among them were legal-tender and income-tax cases as well as a number relating to court procedure and other matters in which no important economic or political issue was involved. In the years since the Grant administration the only President rivaling Franklin D. Roosevelt in the signing of unconstitutional laws was Woodrow Wilson. In thirteen cases affecting laws enacted during the Wilson administration the Supreme Court held either the laws or their application to be unconstitutional. Several of these cases had to do with the exercise of wartime power. Only in a very few cases decided prior to the present administration were questions at issue at all comparable to those relating to New Deal laws. Among such earlier cases were two concerning attempts of Congress to prohibit child labor in the States, two dealing with the sale of grain futures, one affecting minimum wages, and several affecting taxation. According to a classification by David Lawrence of the United States News, acts of Congress declared to be unconstitutional prior to the present administration included only twelve involving social and economic issues. Of the twelve, three were signed by President Wilson, two by President Harding, and one each by Presidents Washington, Monroe, Lincoln, Cleveland, McKinley, Taft, and Theodore Roosevelt. In no earlier administration was the total of unconstitutional laws involving social and economic issues equal to the number in the present administration. Contrary to the popular impression, only a relatively few acts of Congress have been held to be unconstitutional by five-to-four votes. Out of 79 decisions, the total of cases in which Federal laws or their application have been held to be unconstitutional by five-to-four votes is only 11. Among the cases decided during the present administration only two those affecting the Railroad Retirement Act and the Municipal Bankruptcy Act were by a five-to-four vote. The decision in the NRA case was unanimous, while those in the AAA and Guffey Coal Act cases were by a vote of six to three. List of Decisions Following is a summary of decisions by the Supreme Court either holding acts of the Congress or their application to be unconstitutional: 1. Marbury v. Madison A section of a judiciary act authorizing the Supreme Court to issue writs of mandamus was held unconstitutional as an attempt to enlarge the original jurisdiction of the Supreme Court. (Decided 1803; enacted 1789, Washington administration.) 2. Scott v. Sandjord A provision of law prohibiting the existence of slavery within the Louisiana territory north of Missouri was held unconstitutional in the Dred Scott case. (Decided 1857; enacted 1820, Monroe administration.) 3. Gordon v. United States Relating to Court of Claims. (Decided 1865; enacted 1863, Lincoln administration.) 4. Ex parte Garland Relating to pardoning power of the President. (Decided 1867; enacted 1865, Lincoln administration.) 5. Reichart v. Felps Affecting public land. (Decided 1868; enacted 1812, Madison administration.) 6. The Alicia Relating to court jurisdiction. 19 (Decided 1869; enacted 1864, Lincoln administration.) 7. Hepburn v. Griswold Legal-tender case. (Decided 1870; enacted 1862, Lincoln administration.) 8. United States v. DeWitt A law applying to illuminating oil was held unconstitutional as an interference with trade within the separate States. (Decided 1870; enacted 1867, Johnson administration.) 9. The Justices v. Murray Relating to court procedure. (Decided 1870; enacted 1863, Lincoln administration.) 10. Collector v. Day Application of income-tax acts to salaries of judicial officers of the States was held unconstitutional. (Decided 1871; enacted 1864, 1865, 1866, and 1867), Lincoln and Johnson administrations.) 11. United States v. Klein Relating to the pardoning power of the President. (Decided 1872; enacted 1870, Grant administration.) 12. United States v. Railroad Company Relating to taxation. (Decided 1873; enacted 1864, 1866, Lincoln and Johnson administrations.) 13. United States v. Reese Relating to legislation for enforcement of the Fifteenth Amendment. (Decided 1876; enacted 1870, Grant administration.) 14. United States v. Fox Relating to bankruptcy proceedings. (Decided 1878; enacted 1867, Johnson administration.) 15. Trade Mark Cases. (Decided 1879; enacted 1870 and 1876, Grant administration.) 16. United States v. Harris Relating to conspiracies to deprive persons of equal protection under the laws. (Decided 1883; enacted 1871, Grant administration.) 17. Civil Rights Cases Relating to enforcement of the Thirteenth and Fourteenth Amendments. (Decided 1883; enacted 1875, Grant administration.) 18. Boyd v. United States A law relating to production of papers was held unconstitutional under the Fourth and Fifth Amendments applying to unreasonable search and seizure and to a witness against oneself. (Decided 1886; enacted 1874, Grant administration.) 19. Baldwin v. Franks Relating to equal protection under the laws. (Decided 1887; enacted 1871, Grant administration.) 20 20. Callan v. Wilson Relating to trial by jury in the District of Columbia. (Decided 1888; enacted 1870, Grant administration.) 21. Counselman v. Hitchcock Relating to judicial proceedings. (Decided 1892; enacted 1868, Johnson administration.) 22. Monongahela Navigation Company v. United States Relating to condemnation proceedings. (Decided 1893; enacted 1888, Cleveland administration.) 23. Pollock v. Farmers' Loan and Trust Company Relating to income taxes. (Decided 1895; enacted 1894, Cleveland administration.) 24. Wong Wing v. United States Relating to punishment and deportation of Chinese. (Decided 1896; enacted 1892, Benjamin Harrison administration.) 25. Kirby v. United States Relating to embezzlement. (Decided 1899; enacted 1875, Grant administration.) 26. Jones v. Meehan Relating to Indian lands. (Decided 1899; enacted 1894, Cleveland administration.) 27. Fairbank v. United States Relating to a stamp tax on export bills of lading. (Decided 1901; enacted 1898, McKinley administration.) 28. James v. Bowman Relating to enforcement of the Fifteenth Amendment. (Decided 1903; enacted 1870, Grant administration.) 29. Matter of HefJ Relating to sale of intoxicants to Indians. (Decided 1905; enacted 1897, Cleveland administration.) 30. Rasmussen v. United States Relating to Alaska. (Decided 1905; enacted 1900, McKinley administration.) 31. Hodges v. United States Relating to enforcement of Thirteenth Amendment. (Decided 1906; enacted 1870, Grant administration.) 32. The Employers' Liability Cases Relating to liability of interstate carriers. (Decided 1908; enacted 1906, Theodore Roosevelt administration.) 33. Adair v. United States Relating to discrimination of interstate carriers against members of labor organizations. (Decided 1908; enacted 1898, McKinley administration.) 34. Keller v. United States Relating to aliens. (Decided 1909; enacted 1907, Theodore Roosevelt administration.) 21 35. United States v. Evans Relating to criminal proceedings. (Decided 1909; enacted 1901, McKinley administration.) 36. Muskrat v. United States Relating to the jurisdiction of the Federal courts and the Indians. (Decided 1911; enacted 1907, Theodore Roosevelt administration.) 37. Coyle v. Oklahoma Relating to the admission of new States. (Decided 1911; enacted 1906, Theodore Roosevelt administration.) 38. Choate v. Trapp Relating to Indians. (Decided 1912; enacted 1908, Theodore Roosevelt administration.) 39. Butts v. Merchants Trans. Company Relating to civil rights. (Decided 1913; enacted 1875, Grant administration.) 40. United States v. Hvoslef Relating to taxation of exports. (Decided 1915; enacted 1898, McKinley administration.) 41. Thames & Mersey Ins. Company v. United States Relating to a tax on marine insurance. (Decided 1915; enacted 1898, McKinley administration.) 42. Hammer v. Dagenhart In this child-labor case the Court held the law to be an interference with the control by the States over industry and thus exceeded the interstate-commerce power of Congress. (Decided 1918; enacted 1916, Wilson administration.) 43. Eisner v. Macomber Relating to income taxes on stock dividends. (Decided 1920; enacted 1916, Wilson administration.) 44. Knickerbocker Ice Company v. Stewart Relating to admiralty jurisdiction. (Decided 1920; enacted 1917, Wilson administration.) 45 Evans v. Gore Relating to taxes on incomes of judges. (Decided 1920; enacted 1919, Wilson administration.) 46. United States v. L. Cohen Grocery Company Relating to wartime regulations. (Decided 1921; enacted 1917, Wilson administration.) 47. Newberry v. United States Corrupt-practices act applying to senatorial primary. (Decided 1921; enacted 1910 and 1911, Taft administration.) 48. United States v. Moreland Relating to prosecutions for wife desertion in the District of Columbia. (Decided 1922; enacted 1906, Theodore Roosevelt administration.) 49. Bailey v. Drexel Furniture Company Second child-labor act. The Court held that a tax on net profits of industries employing children was unconstitutional on the ground that it was a penalty rather than a tax, and an attempt to interfere with powers reserved to the States under the Tenth Amendment. (Decided 1922; enacted 1919, Wilson administration.) 50. Hill v. Wallace A tax upon grain-futures contracts was held not to be sustainable as an exercise of the commerce power of Congress, not being limited to or leading to obstructions of interstate commerce. (Decided 1922; enacted 1921, Harding administration.) 51. Lipke v. Lederer Relating to penalty taxes. (Decided 1922; enacted 1919, Wilson administration.) 52. Adkins v. Children's Hospital The Court held the District of Columbia minimum-wage law to be unconstitutional as an interference with the right of freedom of contract guaranteed by the due-process clause of the Fifth Amendment. (Decided 1923; enacted 1918, Wilson administration.) 53. Keller v. Potomac Electric Power Company Relating to public utilities in the District of Columbia. (Decided 1923; enacted 1913, Taft administration.) 54. Spalding & Brothers v. Edwards Relating to a tax on exports. (Decided 1923; enacted 1917, Wilson administration.) 55. Washington v. Dawson & Company Relating to admiralty jurisdiction under workmen's compensation laws of States. (Decided 1924; enacted 1922, Harding administration.) 56. Small v. American Sugar Refining Company Relating to prosecutions under the wartime food-control act. (Decided 1925; enacted 1917, Wilson administration.) 57. Miles v. Graham Relating to taxes on incomes of judges. (Decided 1925; enacted 1919, Wilson administration.) 58. Truster v. Crooks A tax on options under the Future Trading Act was held unconstitutional on the ground that the imposition was a penalty and in no proper sense a tax. (Decided 1926; enacted 1921, Harding administration.) 59. Myers v. United States A law relating to tenure of office was held unconstitutional so far as it attempted to prevent the President from removing executive officers appointed 23 by him by and with the advice of the Senate. (Decided 1926; enacted 1867 and 1876, Johnson and Grant administrations.) 60. Nichols v. Coolidge Relating to taxation of estates. (Decided 1927; enacted 1919, Wilson administration.) 61. Untermeyer v. Anderson Relating to taxes on gifts. (Decided 1928; enacted 1924, Coolidge administration.) 62. National Life Insurance Company v. United States Relating to taxation of insurance companies. (Decided 1928; enacted 1921, Harding administration.) 63. Indian Motorcycle Company v. . United States Relating to a tax on sales to a municipality. (Decided 1931; enacted 1924, Coolidge administration.) 64. Heiner v. Donnan, Handy v. Delaware Trust Company Relating to taxes on gifts. (Decided 1932; enacted 1926, Coolidge administration.) 65. Burnet v. Coronado Oil and Cas Company Relating to a tax on income under a lease of oil lands owned by the State of Texas. (Decided 1932; enacted during War period, Wilson administration.) 66. O'Donoghue v. United States Application of an appropriation act was held unconstitutional insofar as it reduced the salary of a judge of the Supreme Court of the District of Columbia. (Decided May, 1933; enacted 1932, Hoover administration.) 67. Booth v. United States Application of an appropriation act was held unconstitutional insofar as it reduced the salary of a retired United States Circuit Judge. (Decided 1934; enacted 1933, Roosevelt administration.) 68. Lynch v. United States An act of March 20, 1933, was held unconstitutional if applied to valid policies of war-risk insurance. (Decided 1934; enacted 1933, Roosevelt administration.) 69. Panama Refining Company v. Ryan the oil section of the National Industrial Recovery Act was held unconstitutional as an invalid delegation of legislative power to the President. (Decided 1935; enacted 1933, Roosevelt administration.) 70. Perry v. United States The joint resolution abrogating the gold clause was held uncon- 24 stitutional insofar as it applied to obligations of the United States. (Decided 1935; enacted 1933, Roosevelt administration.) 71. Railroad Retirement Board v. Alton Railroad The Railroad Retirement Pension Act was held unconstitutional as a violation of the Fifth Amendment in taking property without due process of law and also as beyond the power of Congress to regulate commerce among the several States. (Decided 1935; enacted 1934, Roosevelt administration.) 72. Schechter v. United States The code provisions of the National Industrial Recovery Act were held unconstitutional as an invalid delegation of power to the President, and codes involved in the case at issue were held unconstitutional in their application to intrastate commerce. (Decided 1935; enacted 1933, Roosevelt administration.) 73. Louisville Joint Stock Land Bank v. Radford The Frazier-Lemke Farm Mortgage Act was held unconstitutional as taking property of the creditor without due process of law in violation of the Fifth Amendment. (Decided 1935; enacted 1934, Roosevelt administration.) 74. Hopkins Federal Savings and Loan Association v. Wisconsin Banking Commission The Home Owners Loan Act was held an unconstitutional encroachment upon the reserved powers of the States to the extent that it permits the conversion of building and loan associations from State to Federal charters in violation of State law. (Decided 1935; enacted 1933, 1934, Roosevelt administration.) 75. United States v. Cuy L. Constantine A tax on illicit liquor dealers in dry States was held to be a clear invasion of police power inherent in the States, reserved from the grant of powers to the Federal Government by the Constitution. (Decided 1935; enacted 1926, Coolidge administration.) 76. United States v. William M. Butler, et al., Receivers of Hoosac Mills Corporation Control of agriculture under the Agricultural Adjustment Act was held to be outside the authority of the Federal Government under the Constitution. This decision was supplemented by that in the Rice Millers case in- 25 volving the refunding of impounded processing taxes and holding that amendments to the original act did not bring it within the Constitution. (Decided 1936; enacted 1933, Roosevelt administration.) 77. J. Edward Jones v. Securities and Exchange Commission Application of the Securities Act was held in the case at issue to be in violation of guaranties of the Bill of Rights. (Decided 1936; enacted 1933, Roosevelt administration.) 78. J. W. Carter v. Carter Coal Company, et al. The Guffey Bituminous Coal Act was held unconstitutional as an invasion of the powers of the states. (Decided 1936; enacted 1935, Roosevelt administration.) 79. C. L. Ashton et al. v. Cameron County Water Improvement District No. 1 The Municipal Bankruptcy Act authorizing municipalities and other subdivisions of states to scale down indebtedness under Federal bankruptcy laws was held unconstitutional as an impairment of state sovereignty. (Decided 1936; enacted 1934, Roosevelt Administration.) of social and economic planning, "desirable objectives" have been made the test of Constitutional power in Congress a more or less deliberate, though subtle, purpose to persuade the people that the Constitution and the Supreme Court are thwarting the will of the people, largely through want of recognition of the law, as law, when pronounced. Conclusion The Constitution is the supreme law of the land. Changes in fundamentals, namely, separate powers, State and Federal; the separation of powers, legislative, executive, and judicial; and guaranties of personal liberty our governmental system are involved in the objectives of the New Deal's social and economic planning. On the basis of the decisions of the Supreme Court, the present administration is the first in the history of the United States to initiate a carefully planned and comprehensive movement to accomplish fundamental changes in the system of Government. The movement has been doubly dangerous because of the subtle efforts to cireumvent the Constitution without proposing amendments. Those responsible for the new pattern of government have preferred to avoid submission to the people of the questions involved. They seek to attain their purpose through usurpation or judicial interpretation rather than through the orderly process of amendment. Further, to carry out the New Deal's policy 26 PAMPHLETS AVAILABLE Â£OPIES of the following pamphlets and other League literature may be obtained upon application to the League's national headquarters. Statement of Principles and Purposes American Liberty League Its Platform Inflation The Holding Company Bill Expanding Bureaucracy Lawmaking by Executive Order Dangerous Experimentation Economic Planning Mistaken But Not New Work Relief The AAA and Our Form of Government Alternatives to the American Form of Government A Program for Congress The 1937 Budget Professors and the New Deal Wealth and Income The Townsend Plan The Story of an Honest Man The New AAA The President's 1936 Tax Proposals New Work Relief Funds The President Wants More Power (leaflet) The Townsend Nightmare (leaflet) A Farmer Speaks (leaflet) Will It Be Ave Caesar? (leaflet) Our New Spoils System (leaflet) The Magi and the Showdown (leaflet) Government by BusybodieB (leaflet) Gratitude in Politics (leaflet) 28 Facts About the New Deal (leaflet) New Labels for Old Poisous (leaflet) An Open Letter to the President By Dr. Neil Carothers The Duty of the Church to the Social Order Speech by S. Well* Utley Two Amazing Years Speech by Nicholas Roosevelt The Duty of the Lawyer in the Present Crisis Speech by James M. Beck PAMPHLETS AVAILABLE (continued) The Constitution and the Supreme Court Speech by Borden Burr Inflation is Bad Business Speech by Dr. Neil Carothers The Fallacies and Dangers of the Townsend Plan^Speec/i by Dr. Walter E. Spahr What of 1936? Speech by James P. Warburg Americanism at the Crossroads Speech by R. E. Desvemine The Constitution and the New Deal Speech by James M. Carson The American Constitution Whose Heritage? Speech by Frederick H. Stinchfield The Redistribution of Power Speech by John W. Davis Time to Stop Speech by Dr. Neil Carothers The Facts In the Case Speech by Alfred E. Smith The Townsend Utopia Speech by Dr. Ray Bert Wester field Inflation and Our Gold Reserve Speech by Dr. E. W. Kemmerer The Constitution The Fortress of Liberty Speech by James A. Reed Entrenched Greed Speech by Dr. G. B. Cutten Should We Amend the Constitution to Grant the National Government General Welfare Powers? Speech by W. H. Rogers The New Inquisition Speech by Jouett Shouse It Can Be Done Speech by Merrill E. Otis The Voice of the Constitution Speech by Arthur H. Vandenberg The Need for Constitutional Growth by Construction or Amendment Speech by R. E. Desvernine Shall We Have Constitutional Liberty, or Dictatorship? Speech by James A. Reed An American Philosophy Speech by Jouett Shouse The Liberty League Old Friendships Destroyed Speech by Daniel O. Hastings A Federal Union National and State Responsibilities Speech by Fitzgerald HaU Constitutional Heresy Speech by R. E. Des- You Owe Thirty-one Billion Dollars Speech by Jouett Shouse