Evening star., 1935-12-01
LAW TESTS HINGE
ON due PROCESS"
Fresh interpretations OF
Clause in Constitution
Are in Making.
Nv the Associated Press.

NEW YORK. November 30.-The
spotlight today turns to the due proc
ess" clause as opponents of many
phases Of the New Deal prepare to
demand the test of constitutionality
before the Supreme Court.
Fresh interpretations of that much
controverted section of the CohStitu-
ton are in the making, and may go as
far or father in determining the ulti-
mate reach of the New Deal as did
the Interpretation of the commerce
clause which proved major bar to
the N r. A.
The graveyard of statutes is full of
laws found unconstitutional under the
"due process" clause, and, on the other
hand, the statute books are full of
laws that survived the same test.
due process" has been a favorite
legal weapon in the past against laws
that related particularly to wages or
hours of labor, social security, price
fixing or business regulations-subject
covered in many Of the laws coming
up for decision these days.
Two Decisions Significant.
Two recent decisions reflect the in
terest that may center upon this sec
ton. Judge William c. Coleman Of
Baltimore cited it as one of the four
grounds upon which he declared the
Federal utilities holding company act
unconstitutional, decision that may
yet be passed upon by the Supreme
Court.
Judge Elwood Hamilton of Louisville
rejected it as a ground for objection
to the Guffey coal law, sometimes de-
scribed as setting up a little N. r.
A" for the coal industry, and centered
his attention largely upon the COM
merce clause in finding the act valid.
The clause was an issue in the Su-
preme Courts N. r. A. decision, but
the court made its decision upon other
grounds and was silent regarding the
clause.
= Twice the clause appears in the
Constitution, the first time as a re-
struction upon the Federal Govern
ment, the second time as a restriction
upon the States. In language it is
simplicity itself:
Nor shall any person be
deprived of life, liberty or property
without due process of law y" says
the fifth amendment.
Nor shall any State deprive any
person of life, liberty. or property,
without due process of law" 80 =" says
the fourteenth amendment.
Person" Also Corporation.
Yet the fifth amendment has come
TO mean much more than bar against
the mere condemnation of a private
house and lot without compensation,
and the fourteenth does much more
than safeguard the rights of emanci-
pated Negroes, the purpose for which
1t was drawn.
BY judicial Interpretation person"
also is a corporation.
Into the clause, by gradual judicial
Interpretation, has been read the con-
cept of liberty of contract" which in
varying degrees has been held to pre-
vent Government interference with
wages, nOurS, prices.
Under one decision relating to the
clause was founded the entire Ameri-
can system of public utility regulation.
Under it the Supreme Court in 1882
gave black eye to so-called economic
planning" and experimental legislation.
But two years later the same court
upheld New York law permitting the
liking Of minimum price for milk.
In decision after decision passing
upon minimum wage laws, maximum
work-week laws, licensing laws, regu-.
latory laws, rice-fixing laws, the
court has attempted to mark the line
between the "due process" clause,
which would make the rights of prop
erty absolute, and the indefinite
police power" of State governments
to legislate for the safety, health,
morals and general welfare"
Attempt to Establish Power.
Many New Deal laws have attempted
TO establish a similar power of the
Federal Government to legislate, espe-
cially for the general welfare"
But Julge Coleman. in his holding
company decision, declared there is no
such thing as a national public in
terest" which permits of Federal regu-
1ation unless that regulation is exer-
ctsed under one of the powers expressly
delegated to the Federal Government
by the Constitution.
On the other hand the Supreme
Court In the New York milk case in
1884 said: "* This court (has)
from the early days affirmed that the
power to promote the general welfare
Is inherent in government"
The fate Of many New Deal laws
may turn upon that issue.
Many landmark decisions have been
set UP by the Supreme Court on the
due process" clause, mainly along two
Lines.
First, there was the celebrated
Granger cases" of 1876-in the DAYS
OF populism and greenbackism. when
the States began passing laws regu-
lating railroad rates.
The court decided the clause did
not prevent Government regulation of
private property affected with a pub
Lie interest,"" and so laid the founda.