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39 Wash. L. Rev. 4 (1964)
Justice Douglas on Freedom in the Welfare State--Constitutional Rights in the Public Sector

handle is hein.journals/washlr39 and id is 24 raw text is: JUSTICE DOUGLAS ON FREEDOM IN THE WELFARE STATE CONSTITUTIONAL RIGHTS IN THE PUBLIC SECTOR HANS LINDE* I. THE TURN TO THE PUBLIC SECTOR Twenty-five years, in constitutional law, is a long enough span that at its end a generation is apt to confront the problems created by its solutions to the tasks it inherited at the beginning. In the years before Mr. Justice Douglas took his seat on the Supreme Court in 1939, the attention of the whole nation had been held by an epic of constitutional history-the decision whether American government had the constitu- tional power to cope with the economic and social crisis of a breakdown in the private economy. In 1937, the Supreme Court had unlocked the federal arsenal. The previous year, in the very course of striking down the first AAA, the Court had given its blessing to a broad, Hamil- tonian reading of the spending power,' and it had repulsed an attack on the TVA.' It looked as if with the opening page of the 301st volume of its Reports, the Court was turning over a new leaf: the commerce clause was held to support regulation of labor relations in industrial production;3 and an ingenious use of taxes, credits, and payments permitted the nation to place its financial credit rather than that of near-bankrupt and mutually competitive states behind unemployment and retirement benefits through the Social Security Act.4 The Federal government was not again to be held to lack the tools for an economic task. If the vindication of federal powers had been the most dramatic, it had not been the only reevaluation by the Court of the role of government in an economy capable of the Great Depression. Contrary to the dichotomy invoked in the conventional legal arguments, the Justices who had resisted using and ultimately had withdrawn the judicial veto of federal action were also sympathetic toward the states. The due process clause was the chief but not the only battleground. When Thomas Reed Powell spoke to the Washington State Bar in * Professor of Law, University of Oregon Law School. ' United States v. Butler, 297 U.S. 1 (1936). 2 Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936). 3N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 4 Steward Machine Co. v. Davis, 301 U.S. 548 (1937) ; Helvering v. Davis, 301 U.S. 619 (1937). This approach is said to have been suggested by Mr. Justice Brandeis; see SCHLESINGER, THE COMING OF THE NEW DEAL 302 (1958).

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