FDR - Jean Edward Smith [464]
70. United States v. Curtiss-Wright, 299 U.S. 304 (1936). The decision (7–1) was authored by Justice Sutherland, the intellectual powerhouse of the Court’s conservatives. As he described the president’s powers: “He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As [Chief Justice John] Marshall said in his great argument of March 7, 1800 to the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations’ ” (Sutherland’s emphasis). Marshall was a representative from Virginia at the time and spokesman for the Adams Federalists in the House.
71. The rule that the Bill of Rights applied only to the national government, not to the states, was first articulated by John Marshall in Barron v. Baltimore, 7 Peters (32 U.S.) 243 (1833), and reaffirmed after adoption of the Fourteenth Amendment in Hurtado v. California, 110 U.S. 516 (1884). That was the law when the Court (5–4) changed course in Near v. Minnesota, 283 U.S. 697 (1931), and overturned Minnesota’s statute, which permitted a trial court judge to enjoin publication of a newspaper he found “obscene, lewd, and lascivious” or “malicious, scandalous, and defamatory.” Said Chief Justice Hughes for the Court, “It is no longer open to doubt that the liberty of the press … is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by State action” (at page 706).
72. In Powell v. Alabama, 287 U.S. 45 (1932), the Court (7–2), speaking through Justice Sutherland, held that the due process clause of the Fourteenth Amendment required fairness in criminal trials and that the right to counsel was an integral part of the process, particularly in capital cases. This too was a groundbreaking decision, expanded in Gideon v. Wainwright, 372 U.S. 335, in 1963 to include all criminal cases.
73. Norris v. Alabama, 294 U.S. 587 (1935). “For this long-continued, unvarying, and wholesale exclusion of negroes from jury service we find no justification consistent with the constitutional mandate [of the due process clause],” said Hughes for the Court.
74. During the Red Scare after World War I, California enacted legislation prohibiting the public use or display of a red flag. Yetta Stromberg was convicted for violating the statute at a youth camp in 1929, and the Supreme Court (7–2) reversed. Chief Justice Hughes, for the Court, held the flag to be a symbol of political protest protected by the First Amendment and applicable to the states under the due process clause of the Fourteenth. Stromberg is doubly important for its extension of the concept of speech to include symbolic statements as well as those made orally and in writing. Stromberg v. California, 283 U.S. 359 (1931).
75. DeJonge v. Oregon, 299 U.S. 353 (1937). Dirk DeJonge had been convicted of violating Oregon’s criminal syndicalism law, another relic of the Red Scare.
76. Professor G. Edward White of the University of Virginia provides an insightful antidote to traditional historiography in The Constitution and the New Deal (Cambridge, Mass.: Harvard University Press, 2000), especially in his chapter “The Canonization and Demonization of Judges.” To characterize Justices Van Devanter, McReynolds, Sutherland, and Butler as reactionary is “grossly inaccurate,” wrote White. “They repeatedly upheld police powers legislation against due process and Contract Clause challenges. They regularly sustained the taxing and spending powers of the state and federal governments. They voted to sustain several New Deal statutes regulating economic activity. They consistently upheld the powers of administrative agencies against constitutional challenges. And they demonstrated considerable solicitude for civil rights and civil liberties.… In short, a comprehensive treatment of the constitutional decisions of each of the Four Horsemen