The Constitution of the United States of America: Analysis and Interpretation Part 149

[194] 221 U.S. 418 (1911).

[195] Ibid. 430.

[196] 314 U.S. 469 (1941).

[197] Ibid: 477.

[198] Ibid. 478.

[199] United States _v._ C.I.O., 335 U.S. 106 (1948).

[200] 106 U.S. 371 (1882).

[201] 19 Stat. 143 -- 6 (1876).

[202] 53 Stat. 1147 (1939).

[203] United Public Workers _v._ Mitch.e.l.l, 330 U.S. 75 (1947).

[204] Oklahoma _v._ United States Civil Serv. Comm., 330 U.S. 127 (1947).

[205] Schenck _v._ United States, 249 U.S. 47 (1919); Frohwerk _v._ United States, 249 U.S. 204 (1919); Debs _v._ United States, 249 U.S.

211 (1919); Abrams _v._ United States, 250 U.S. 616 (1919); Schaefer _v._ United States, 251 U.S. 466 (1919); Pierce _v._ United States, 252 U.S. 239 (1920); _cf._ Gilbert _v._ Minnesota 254 U.S. 325 (1920); Hartzel _v._. United States, 322 U.S. 680 (1944).

[206] 341 U.S. 494 (1951).

[207] 61 Stat. 136, 146 (1947); "Taft-Hartley Act."

[208] 339 U.S. 382 (1950).

[209] 339 U.S. 846 (1950). Answering in 1882 the objection of a pensioner to the terms of an act under which he received his pension from the Government, the Court answered: "Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute or recall, at its discretion." United States _v._ Teller, 107 U.S. 64, 68. Can it be doubted that Congress has power to repeal at any time the protection which present legislation affords organized labor?

[210] 339 U.S. 382, 394, 397 (1950).

[211] Dennis _v._ United States, 341 U.S. 494 (1951).

[212] 54 Stat. 670 (1940).

[213] 341 U.S. 494, 509.

[214] Ibid. 509.

[215] Ibid. 510; citing 183 F. (2d) at 212.

[216] 341 U.S. 494, 510-511.

[217] Ibid. 513.

[218] 341 U.S. 494, 519-520.

[219] Ibid. 525.

[220] Ibid. 527-528.

[221] 341 U.S. 494, 539.

[222] 268 U.S. 652 (1925).

[223] 341 U.S. 494, 541.

[224] Ibid. 542.

[225] Ibid. 551-552.

[226] 341 U.S. 494, 567-569.

[227] Ibid. 572.

[228] 341 U.S. 494, 586; citing 274 U.S. 357, 376-377.

[229] Anti-Fascist Committee _v._ McGrath, 341 U.S. 123 (1951) heads the list.

[230] 341 U.S. 494 (1951).

[231] 339 U.S. 382; ibid. 846 (1950).

[232] 341 U.S. 716 (1951).

[233] 342 U.S. 485 (1952).

[234] New York Laws, 1949, c. 360.

[235] 342 U.S. 485, 493. Justice Frankfurter dissented on jurisdictional grounds. Justices Black and Douglas attacked the merits of the decision.

Said the latter: "What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the cla.s.srooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A 'party line'--as dangerous as the 'party line'

of the Communists--lays hold. It is the 'party line' of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the cla.s.sroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin." Ibid. 510.

[236] 343 U.S. 250 (1952).

[237] Ibid. 258.

[238] Ibid, 259-263 _pa.s.sim_. Justice Douglas, dissenting, urged the "absolute" character of freedom of speech and deplored recent cases in which, he a.s.serted, the Court "has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate 'within reasonable length' the right of free speech. This to me is an ominous and alarming trend." Ibid. 285.

Justices Black, Reed and Jackson also dissented. Justice Jackson's dissenting opinion is characteristically paradoxical: "An Illinois Act, construed by its Supreme Court to be a 'group libel' statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites?

The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth amendment does confine the power of the State to make printed words criminal.

Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed--comforted in the acknowledgment, however, by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power.

The thesis now tendered in dissent is that the 'liberty' which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical 'freedom of speech or of the press' which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not 'incorporate' the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not." Ibid. 287-288. Proceeding from this position, Justice Jackson is able, none the less, to dissent from the Court's judgment. _Cf._ Chief Justice Stone's position in United States _v._ Carolene Products Co., 304 U.S. 144, at 152-53, note 4 (1938).

[239] 20 Stat. 355, 358 (1879); 48 Stat. 928 (1934).