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5 Monthly Bull. Int'l Jurid. Ass'n 1 (1936-1937)

handle is hein.journals/injasmb5 and id is 1 raw text is: INTERNATIONAL JURIDICAL ASSOCIATION MONTHLY BULLETIN Vol. 5, No. 1 JULY, 1936 426 Price, $1 a year JUDICIAL SUPREMACY When the Supreme Court of the United States on June 1, 1936, declared the New York Minimum Wage Law uncon- stitutional,' it made clear its real objection to social legislation. Previously in striking down federal laws-the A.A.A.2 and the Guffey Coal Act' and restricting the scope of the T.V.A.,4-the majority claimed to be defending the federal system of state and national government. None of these de- cisions relied upon the due process clause to protect estab- lished economic interests. The court's defenders argued that the majority was historically correct in implying that, with- uniL endent to the Constitution, social lcgislation must be left to the states.' In support of this contention, they pointed to Justice Roberts' opinion upholding the New York law fixing the price of milk to dairy farmers and consumers, which declared that the due process clause was no obstacle to the choice by a state of whatever economic policy may be appropriate.6 But the majority decision in the minimum wage case reasserts the court's domination and veto power over the choice of economic policy. The dissenting opinion of Chief Justice Hughes shows that the law could clearly have been held constitutional on accepted doctrines of con- stitutional law. The other dissenting justices concurring in the opinion by Justice Stone did more than disagree on doc- trines of law; they protested the court's usurpation of the exclusive right to govern. THE DECISION The New York minimum wage law came before the court after the New York Court of Appeals had held it uncon- stitutional.7 That court declared that there was no difference between a statute which fixed minimum wages solely on the basis of a minimum standard of living and one which fixed wages on the basis of the value of the services rendered where- .i rshe re~- b)klow a minim.m ct ndard of living Hence it declared the previous ruling of the Supreme Court in the Adkins case in 1923 was controlling and left it to the (Continued on page 14) 1. Morehead v. New York ex rel. Tipaldo, 80 L. ed. (Adv.) 921, June 1, 1936. For the background of the case and a full dis- cussion of the facts, see 1. J. A. Bull., Vol. 4, No. 11a, p. 7. An application for rehearing is now pending but will not be determined until the fall. 2. United States v. Butler, 56 Sup. Ct. 312, discussed in Con- stitutional Bars to Social Legislation, I. J. A. Bull., Vol. 4, No. 8, p. 1. The N. R. A. was declared invalid in Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). 3. Carter v. Carter Coal Co., 80 L. ed. (Adv.) 749, May 18, 1936, discussed in The Guffey Decision, I. J. A. Bull., Vol. 4, No. 12, p. 1. 4. Ashwander v. Tennessee Valley Authority, 80 L. ed. (Adv.) 427, Feb. 17, 1936. Discussed in Constitutional Amendments for Social Legislation, I. J. A. Bull., Vol. 4, No. 9, p. 1. The utilities have already banded together in an attack upon the T. V. A. as a whole. 5. For a criticism of this theory, see Charles Grove Haines, Judicial Review of Acts of Congress and the Need for Constitutional Reform, 45 Yale L. J. 816 (1936). 6. Nebbia v. New York, 291 U. S. 502 (1934). 7. Peopc ex rel. Tipaldo v. Morehead, 270 N. Y. 233; see, 1. 1. A. Bull., note 1 supra. 8. Adkins v. Children's Hospital, 261 U. S. 525 (1923). RECENT ITEMS OF INTEREST POLITICAL CRIMINAL CASES Georgia Supreme Court Upholds Herndon's Conviction. On June 13, the Georgia Supreme Court reversed Judge Dorsey's decision releasing Angelo Herndon on a writ of habeas corpus from a sentence of 18 to 20 years on the chain gang.1 The ground of his decision was that Section 56 of the Georgia Penal Law, under which Herndon had been con- victed for attempting to incite insurrection was in conflict with the due process clause of the Fourteenth Amendment to the federal constitution and with various sections of the Georgia Constitution in that it was too vague and indefinite to provide a sufficiently ascertainable standard of guilt.2 The State of Georgia appealed from so much of Judge Dorsey's decision as sustained the writ of habeas corpus and Herndon filed a cross-appeal from Judge Dorsey's failure to hold the statute unconstitutional upon the other grounds before the judge. The Georgia Supreme Court sustained the appeal taken by the State of Georgia and dismissed the appeal taken on Herndon's behalf. The appellate court cited no authorities in support of its decision but merely stated: Neither as expressed, nor as it was construed by this Court, is the above statute void, as violative of the fourteenth amend- ment of the Federal Constitution for the alleged reasons (1) that it 'denies and unduly restricts freedom of speech and of assembly'; (2) 'it is too vague and indefinite to provide a sufficiently ascertainable standard of guilt'. The statute was likewise held not to violate the state consti- tution. The appellate court, evading the entire question of the extent to which the right of freedom of speech and of as- sembly is protected by the constitution, merely said: The foregoing provisions of the constitution do not guar- antee freedom of speech or the right of assembly in the per- petration of a crime.3 The case wsill be appealed to the United States Supreme Court. Since both Judge Dorsey and the Georgia Supreme Court expressly passed upon the constitutionality of the statute as construed and applied in the case, the United States Supreme Court cannot again evade the issue of constitution- ality by dismissing the appeal on technical grounds for want 1. Judge Dorsey's opinion is unreported. It is summarized in Herndon Released, I. J. A. Bull., Vol. 4, No. 7, p. 1. 2. In the opinions in Herndon v. State, 178 Ga. 832, as explained in rehearing in Herndon v. State, 179 Ga. 597, 598, 600, the statute was construed as follows: It is immaterial whether the authority of the State was in danger of being subverted or that an insurrection actually occurred or was impending . . Force must have been contemplated, but the statute does not include either its occurrence or its imminence as an ingredient of the particular offense charged. Nor would it be necessary to guilt that the alleged offender should have intended that an insurrection should follow instantly or at any given time, but as to this element it would be sufficient if he in- tended that it should happen at any time within which he might reasonably expect his influence to continue to be directly opera- tive in causing such action by those whom he sought to induce. 3. Lowry, Sheriff v. Herndon; et vice versa, Georgia Supreme Court, Nos. 11216 and 11226. All concur except Russell, C. J., not participating. The two appeals were disposed of in a single opinion. Judgment was reversed on the State's appeal and affirmed on the defendant's appeal.

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