• U.S.

JUDICIARY: Underdog into Cow

7 minute read
TIME

Last week an old man died, another old man retired, a law was held constitutional. Behind these scattered but related facts was a story of greed and gold, of political intrigue and the fulfillment of an old vow. One character in the tale was a North Carolina runt, now vanished into a historical footnote; another was a great American jurist who liked yellow-backed French novels and claiity in the law, and who had an eye both for the exact word and for a well-turned ankle.

Last week, in a unanimous decision, the Supreme Court upheld the constitutionality of the Federal wage-hour law, guaranteeing minimum wages and a maximum work week to millions of workers, and outlawing child labor in interstate commerce. The decision, read with great satisfaction by jowly, wise, old Justice Harlan Fiske Stone, specifically overruled the Court’s 23-year-old Hammer v. Dagenhart decision, regarded by liberals as the farthest north in reaction. With this legal victory the New Deal was finally legitimized, its last major social reform riveted into place.

The story began at the turn of the century, when agitation was beginning for laws forbidding child labor. Nothing came of the agitation for some 15 years. Then, on Sept. 1, 1916, President Woodrow Wilson signed the Keating-Owen bill outlawing the products of child labor in interstate commerce. He said: “I know . . . what it is going to mean to the health and vigor of this country. . . .”

In Charlotte, N. C., Farmer Roland Dagenhart brooded over the support of his large family, decided that the law would kill his constitutional right to keep his two sons, Reuben and John (both under 16), at work in a cotton mill. His complaint was upheld in district court; Farmer Dagenhart found his views so appealed to industry generally that a powerful Wall Street law firm undertook his case. His opponent was Federal Attorney William Cicero Hammer, and Mr. Hammer got himself some help, too—from the Solicitor-General of the U. S., a handsome lawyer named John W. Davis. The case went to the Supreme Court.

On June 3, 1918, in the gloomy red-curtained chamber in the U. S. Capitol, where the Court sat from 1860 to 1935, spare little Justice William Rufus Day announced the decision of the Court: by a vote of 5-to-4 the child labor law was held unconstitutional. Child labor was a local matter; the law was an invasion of States’ rights. Said Justice Day: “. . . if Congress can thus regulate matters . . . our system of government [will] be practically destroyed.”

That decision made history. It refused to broaden Congress’ power and permit broad social and economic legislation. Hammer v. Dagenhart was a stunning blow to all liberals; to Congress a crusher. The opposition it aroused set in motion forces that culminated in the New Deal.

The four dissenting justices joined in what many believe to be the greatest dissent written by the greatest dissenter, Justice Oliver Wendell Holmes, of the enormous cavalry mustaches and classic wit. The dissent said in part: “. . . The Act [Child Labor] does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the State line they are no longer within their rights. … At her boundaries the State encounters the public policy of the United States which it is for Congress to express. The public policy of the United States is shaped with a view to the benefit of the nation as a whole.”

To Justice Holmes the decision was one which had to be overturned. Years later, when his days were running down, he told his promising secretary-protege, a handsome, huge-headed young Rhode Island Irishman named Thomas Gardiner Corcoran, to take up the task. Corcoran vowed, when he entered the Government in 1932, never to leave Washington until the case had been overruled. The years passed, the courts and Congress nibbled away—by last week little was left but to have a decision specifically overruling the 1918 case.

By last week three of the five majority justices of Hammer v, Dagenhart were long since dead. The fourth, James C. McReynolds, celebrated his 79th birthday in retirement last week (TIME, Feb. 3) after 26 years on the Court. The fifth, mild, urbane, ultra-conservative Willis Van Devanter, had retired in 1937. Last week, five days after the new Court unanimously overruled Hammer v. Dagenhart, old (81) ex-Justice Van Devanter died of a heart attack at Washington. On the bench in his seat sat Justice Hugo La Fayette Black, first Roosevelt appointee to the Court. With Tommy Corcoran and Benjamin V. Cohen (see p. 15), Black had devised the wage-hour law, had inserted in it the child-labor provisions as a deliberate challenge to Hammer v. Dagenhart. Now Hugo Black participated triumphantly in certifying his law’s constitutionality.

The other 1918 participants were scattered or dead. Solicitor General John W. Davis, to whose reputation the case had added, had long since become dean of conservative lawyers. Hammer served five terms in Congress, died in 1930. The Dagenharts had dropped from sight; last heard from them was in 1924 when Reuben Dagenhart, then aged 20, told Scripps-Howard Reporter Lowell Mellett (now a Presidential assistant, see p. 52): “I guess I’d been a lot better off. . . . Look at me! One hundred five pounds, a grown man and no education. . . . The years I’ve put in the cotton mills stunted my growth. … I had to stop school after the third grade.”

Justice Stone’s decision permitted the broadest interpretation of the interstate commerce clause in judicial history. The Federal Government, once regarded as a creature of limited powers, now had almost unlimited powers in economic and social legislation. The process of turning the forces from farthest north of reaction had swung the tide about to farthest south.

A farthest-south opinion, delivered the same day last week in a 5-to-2 decision, illustrated clearly the wide swing of the Court. The decision, read by Justice Felix Frankfurter, brought up the same problem in another position, one that may well involve the same branches of Government in the same struggle for supremacy.

The problem before the Court was jurisdictional labor strikes, used by unions chiefly as a means of keeping monopolistic controls. The problem was posed in the Carpenters’ case, where the A. F. of L. Carpenters union, controlled by hulking, button-eyed “Big Bill” Hutcheson, struck against the St. Louis brewers, Anheuser-Busch, Inc., in an attempt to force the company to turn over to the carpenters the millwright work already being done under A. F. of L. contract by the Machinists union.

Assistant Attorney General Thurman Arnold brought criminal action against the Carpenters on the grounds of interference with interstate commerce, argued that unions are subject to the Sherman antitrust act. Justice Frankfurter held instead that the 1914 Clayton Act and the 1932 Norris-LaGuardia Act tended to exempt unions from anti-trust law, granted labor immunity from anti-trust prosecution no matter how directly their jurisdictional disputes operate in restraint of trade.

The decision staggered Justice Owen Roberts, Chief Justice Hughes, the press —and particularly Thurman Arnold. Said the two dissenters, in language clear and vigorous as that of Mr. Holmes: “. . . Resurrecting a rejected construction of the Clayton Act and extending a policy strictly limited by the Congress itself in the Norris-LaGuardia Act, seems … a usurpation by the courts of the function of the Congress not only novel but fraught . . . with the most serious dangers. … I venture to say that no court has ever undertaken so radically to legislate where Congress has refused to do so. . . .”

The struggle was on again. The Washington Post said that the decision would “perpetuate the enormous powers” of labor racketeers. Unless Congress legislated directly, it looked as if the Court had passed a miracle: that onetime underdog Labor would be transmogrified into a sacred cow.

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