11 Monthly Bull. Int'l Jurid. Ass'n 1 (1942)

handle is hein.journals/injasmb11 and id is 1 raw text is: 


                         MONTHLY BULLETIN
Vol. 11, No. 1                                      JULY, 1942                   357             Price $2 a year

     Is  Liberalism a Disqualification
              for  Public Service?
  The   ideal figure that would cosily fit the American
Gestapo  measuring stick has a closer resemblance to the
basic character of a good clean Fascist than it has to a per-
son  passionately interested in driving Fascism from the
earth.                         -JOSEPHINE   HERBST

  Contrary  to the prevalent assumption, the tenure rights
of federal employees have never had sufficient protection
in law. Whatever statutory safeguards exist are completely
inadequate. The courts have declined consistently to inter-
vene. Administrative procedure with regard to discharges
varies among  agencies and  departments and  affords an
employee  little protection. The result is that dismissals
are practically in the free discretion of the head of the
department  or establishment.'
  From  the aspect of a scientific public personnel admin-
istration, this raises serious questions. A rationally qualified
tenure is the very core of sound personnel administration.
That  the civil service should be responsive to executive
direction and control does not diminish the necessity for
adequate  institutional guarantees. The result is as might
be  expected. The past  few years have  seen a growing
trend of discharges for reasons beyond the sphere of legiti-
mate administrative interest. The activities of investigating
committees  and other agencies are having effect on the
administrative branch of the government, and an  unfor-
tunate  feeling of insecurity is filtering through. Dis-
charges because of personal opinions pertaining to politi-
cal, social, and economic issues, unrelated to official obliga-
tions, have no legitimate justification; for the civil service
cannot fulfill its functions with promptness and regularity
if its status is uncertain, if it is exposed to shortsighted
political meddling, and if it must bow to the caprice of
partisan forces.... 2 This is not to deny that there may
be appropriate limitations on the political conduct of the
employee; but there is an equally important restriction to
be placed on the interference by legislators and higher ad-
ministrative officials with the fundamental personal liber-
ties of the subordinate public employee.
  From  the political point of view, the trend poses ques-
tions equally as important. It is evident that the attack has
been aimed  at liberals in the government service. This is
particularly apparent in the case of active members  of
government  unions, many of whom  have undergone offen-
sive personal investigations, despite the long established
acknowledgment  of the beneficial role of such organiza-
                 (Continued on page 142)
  1. White, Introduction to the Study of Public Administration
(1939), p. 299.
  2. Marx,  F. M., Comparative Administrative Law: Public
Employer-Employee Relationships (1940-1), 4 U. of Detroit L. J.,
p. 60, 61.

   Picketing As Constitutional Right-
  With   Thornhill's case (April 1940)  a workingman's
right to picket came to be thought within that liberty of
communication   which is secured to every person. The
Meadowmoor2 case (February 1941) introduced qualifi-
cations but the Swing3 case  (February 1941)  reinforced
Thornhill's essential holding. Peaceful picketing was said
to be a mode of speech appropriate for assuring the right
to utterance for workingmen;  it was the workingman's
means  of communication;  the Federal Constitution shel-
tered it from mutilation by state or nation.
  Naturally the doctrine of these cases has had profound
influence upon state courts. There has been whole-hearted
compliance; there has been grudging, formalistic compli-
ance; there has been  resistance and mutilation.4 All this
was well within the range of reasonable expectation. But-
and this was not yet within the range of reasonable expec-
tation,-there has this year been retreat by the Supreme
Court  itself,-a wide retreat,-an important retreat.
                     Ritter's Case5
  Ritter's cafe had a union contract with its cafe employees
but  when  Ritter undertook the  construction of a new
building some distance away  from the cafe, he gave the
contract to a contractor employing non-union labor. The
carpenters' and painters' unions thereupon picketed the
cafe with a placard stating the facts. As a result cafe busi-
ness dropped, and the cafe employees and teamsters mak-
ing deliveries to the cafe declined to cross the carpenters'
picket line. No violence attended the said picketing of
the cafe. The union's plea of free speech was  rejected
and an injunction against all picketing granted. A motion
for rehearing based upon  the Swing  and  Meadowmoor
cases was overruled by the Texas  court6 on the ground
that where the union's acts-even  if they take the form
of speech-involve  such conduct as the state is author-
ized to declare unlawful, an injunction may properly be
granted. Here, the Texas court felt, the picketing was in
the nature of a boycott or violation of the Texas anti-
trust laws,- and the constitutional right of free speech
  1. 310 U.S. 88. See Picketing: From Sinister Name to Con-
stitutional Right, 8 I.J.A. Bull. 113 (May 1940); 41 Col. L.
Rev. 89.
  2. 312  U. S. 287. See Picketing as Constitutional Right-
1940, 9 I.J.A. Bull. 121 (May 1941); 41 Col. L. Rev. 99; 41
Col. L. Rev. 727.
  3. 312 U.S. 321. Supra, n. 2.
  4. See Peaceful Picketing and the Constitutional Guarantee
of Free Speech Since the Swing Case, 90 U. of P. L. Rev. 201;
The Court of Appeals Faces the Constitution, 10 I.J.A. Bull. 9
(Aug. 1941).
  5. Carpenters and 7oiners Union of America v. Ritter's Cafe,
149 S.W. (2d) 694, aff'd 62 S. Ct. 807. The most valuable dis-
cussion of this case we have so far seen is Freedom of Speech in
Secondary Picketing, 51 Yale L. J. 1209.
  6. 4 Labor Cases §60,400.


What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?