Evening star., 1935-07-21
BY JOHN w. HESTER.

united states supreme Court ana 1CS
relation to the New Zeal program,
whether friendly or friendly; but
there has been an actual dearth Of
facts presented to support the argu-
ment. What is the record? What
it discloSeS should settle the question.
Now. there can be but little intelli-
gent discussion of this subject until
we have a definite understanding of
the nature of our governmental struc-
ture, for we can never properly ap-
praise the work Of the court until
we ascertain the structural problems
it has to deal with.
1t should be observed, in the outset,
that we have here in the United States
dual form of government, which is
unlike any other government in the
world. In the States we have NUM-
cipal and county governments, but
they are only subdivisions of the
State for governmental purposes, while
the States are the sovereign sources
of authority and may recall at will
the powers given these subdivisions.
But the States are not subdivisions
of the larger Government, which we
will call the Federal State. They
are still sovereign, except as to such
of their sovereignty as they have
ceded to the United States, or the
Federal State. They are heirs to all
that the colonies, the English Parlia-
ment and crown had prior to the
revolution, while the Federal State
is the grantee only of such powers
as the States ceded to it under the
Constitution of the United States.
The States are sovereign by inheri-
tance, the Federal Government, by
grant. For instance, the States have,
by inheritance. that attribute of
sovereignty known as the police power,
while the Federal Government has no
such power. Its powers are only
such as the States have ceded to it,
expressly or by necessary implication.
Neither Hostile Nor Friendly.
With this understanding of the
duality of our Government, it should
not be very difficult to properly ap-
praise the problems the court has had
to deal with, not only during the
recent months of New Deal legiSla-
tion, but throughout the history of
our constitutional government.
Now, does the record show the court
to be hostile or friendly to the New
Deal? If truly interpreted, it shows
neither. Considering the term New
Deal" as a governmental concept
whereby emphasis is placed upon the
obligation to aid the unfortunate vic
TINS of the depression, the court has
probably been favorable 10 the New
Deal oftener than otherwise.
On January 8, 1884, the court had
before it its first truly New Deal leg
islation for consideration in the form
Of the Minnesota moratorium law.
True, 1t was a State enactment, but
it embodied the spirit OF the New
Deal as heretofore defined. The right
OF foreclosure of mortgages was sus-
pended for a period Of the emergency
not to exceed two years. The court
received the communication of al
| New Dealers when it sustained the
act, and Chief Justice Hughes, who
wrote the opinion for the court, was
acclaimed the humanitarian jurist par
| excellence. The court held that the
State in entering the Union, or Fed
eral State, did so with the implied
reservation of the power of self-pres-
ervation; that. although it surren-
dered the power to impair the obiga-
ton of a contract, yet it reserved, i'm
/ pliedly. the power TO suspend the
remedies Hereunder during the period
of the emergency. But such reserved
power was held to abate as the emer-
gency disappeared and that contrac-
tual rights could not under the act
be arbitrarily suspended for any pc
riod of time, not for a Gay even.
Nebbia Case Recalled.
Then on March S, 1884, the popu-
| larity of the court was further en-
HANGED by the decision in the Nebbia
case, popularity known as the New
York milk case. Mr.. Justice Roberts
wrote the opinion for the court. and
he held that the phrase affected with
a public interest" can, in the nature
| of things, mean no more than that
an industry, for adequate reason, is
subject to control for the public good
This was a distinct departure from
the restricted doctrine of the Okla
| homa ice case decided March 81, 1882
New State Ice Co. VS.. Lehman, 283
u. S., 26D, wherein the court refused
to permit the State of Oklahoma to
| condition the manufacture and sale
| of ice upon q showing of the necessity
therefor at the place of proposed
manufacture, asserting that the
manufacture of ice was not affected
with the public interest" which would
warrant the treatment of the same
as a public utility. AS against this
denial on the part of tfe court tc
permit the State to thus experiment
Mr.. Justice Brandeis asserted. in q
vigorous dissent, that the court must
ever be on guard lest we erect oul
prejudices into legal principles"
The New Dealers confidence in the
court was enhanced further by the
decision of April 2. 1884. upholding
the State of Washington statute i'm
posing an excise tax of Is cents pei
pound on all sales of butter Substi-
tutes by distributors. which the State
had enacted for the benefit of the
dairying industry of the State; ano
the decision of December 3, 1884, up
holding an emergency statute ol
Maryland limiting and changing the
rights of mortgages with respect tc
foreclosure proceedings, was regarded
as further evidence that the court had
gone decidedly pro-New Deal.
All Based on State Acts.
But all these decisions involved
State enactments, which were based
upon the exercise of the inherent
police power of the States, which
power the Federal Government does
not possess, it being merely Govern
ment of limited or delegated powers
So the New Dealers were in for jolt
when it came to the enactmnts oi
the Congress; and on January Z, 1885
they received a shock, not fatal, to
be sure, but shock nevertheless, when
| the coiirt held section 0(cl of the