SUPREME COURT OPINIONS: The Hughes Court (1930 - 1941)

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OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.
1931 Stromberg v. California, 283 U.S. 389
C.J. Charles Evans Hughes, J. Holmes, J. Van Devanter, J. Brandeis, J. Sutherland, J. Stone, J. Roberts
Dissent: J. James C. McReynolds
Dissent: J. Pierce Butler
OOOStromberg brought symbolic speech — in this case a red flag — under the protection of the 14th Amendment.
OOOStromberg was convicted for the display of a red flag under a California statute which forbad such display "...as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character..." Holmes pointed out that, in the instruction to the jury, the trial court had asserted that Stromberg could be found guilty for violation of any one of the three elements of the statute: 1) opposition to organized government, 2) invitation to anachronistic action, or 3) seditious propaganda. Upholding the constitutionality of parts 2 and 3 of the statute, he could not do so for part 1. Simple opposition to the government could take many forms, including the legitimate and peaceful dissent essential to a democracy. Such "speech" was, of course, constitutionally protected. In light of this, since it was impossible to know under which part of the statute the jury had convicted, it was possible they had done so under part 1, making the guilty verdict unconsitutional. Hughes overturned the conviction.
OOOBoth McReynolds and Butler pointed out a technical problem: that since Stromberg was charged with all parts of the statute, and since Stromberg's council had never specifically objected to the jury instructions, then the specific question on which Hughes had ruled was not properly before the Court. As McReynolds wrote: "This Court often has announced, and scores, perhaps hundreds, of times has applied the rule, that it may not pass upon any question in a cause coming from a state court which the record fails to show was there determined or duly presented for determination."
OOOButler's dissent went further, betraying a deep skepticism of the meaning of Hughes' ruling: "It seems to me that...the Court is not called on to decide whether the mere display of a flag as the emblem of a purpose, whatever its sort, is speech within the meaning of the constitutional protection of speech and press, or to decide whether such freedom is a part of the liberty protected by the Fourteenth Amendment, or whether the anarchy that is certain to follow a successful "opposition to organized government" is not a sufficient reason to hold that all activities to that end are outside the "liberty" so protected."
1931 Near v. Minnesota, 283 U.S. 697
C.J. Charles Evans Hughes, J. Holmes, J. Brandeis, J. Stone, J. Roberts
Dissent: J. Pierce Butler, J. Van Devanter, J. McReynolds, J. Sutherland
OOONear greatly expanded the 1st Amendment right to a free press against state governments. Near, a publisher of a newspaper containing admittedly scurrilous attacks on elected officials in Minneapolis as well as the local Jewish community, was prosecuted under a Minnesota statute enjoining such publication. Under the statute, publication might be enjoined for a) obscenity or b) for being "malicious, scandalous and defamatory". For actions under (b) defense was allowed for the truth "published with good motives and for justifiable ends".
OOOIn writing for the Court, Hughes underlined a long history of press freedom based on the principle that one may say or write what one likes without prior restraint, but that the speaker or writer must bear the responsibility for their words. Hence laws against libel or slander. Hughes admits certain exceptions, for example obscenity (as in the (a) clause of the statute), for certain classes of speech during time of war, and for words causing incitement or having the effect of force. It was, instead, the banning of speech under clause (b), for which Near was prosecuted, that Hughes takes issue.
OOOHughes sets down a long list of what he considers specific flaws in the statute, but states at the outset a broad principle: "...the power of the State stops short of interference with what are deemed to be certain indispensable requirements of the liberty assured..." The very essence of press freedom, so far as Hughes was concerned, was the freedom to call to account public officials — such a freedom was the indespensible requirement of the liberty. Without that minimum, it was meaningless. Yet that was precisely what the statute endangered: the exposure of incompetence, corruption or malfeasance among elected officials was, by definition, scandalous and defamitory — and quite likely to be malicious — and so by definition was liable to prior restraint under the act. Hughes called this the very essence of censorship.
OOONor, Hughes wrote, did the statute's allowal of a "truth, good motives or justifiable ends" defense save it, as this just gave to the legislature, in deciding for itself in each case what those things were, the same power of prior restraint given to the courts, the power to judge for themselves what might be said about them.
OOOButler's dissent avoided the broader meaning limned by Hughes, and focused instead on the specific issue of Near's publications, which were indeed malicious, likely false and possibly engineered to blackmail those he attacked. Deferring to the "police power" of the state — its right to protect the health, safety and morality of its citizens — Butler found the statute entirely reasonable. Nor, Butler urged, was this actual prior restraint because Near had published several editions of his paper. The Minnesota trial court had merely forbad him publishing more. (Hughes had pointed out that this was irrelevant as the statute could just as easily censor the first issue as subsequent ones.) Finally, Butler insisted that if Hughes accepted prior restraint for obscenity — clause (a) — then he was bound to accept it for clause (b) as the essence of both was the protection of public safety and morals; interests which the minorty believed trumped Near's right to publish.

1932 Powell v. Alabama, 287 U.S. 45 (The First Scottsboro Case)
J. George Sutherland, C.J. Hughes, J. VanDevanter, J. Brandeis, J. Stone, J. Roberts, J. Cardozo
J. Pierce Butler, J. McReynolds
OOOThe Scottsboro Cases involved the conviction of nine African-American men and boys — ranging in age from 13 to 21 — for the rape of two white females on a train crossing Alabama. The question before the Court was whether the nine had been adequately represented by counsel before and at trial, and in a larger sense, whether the Constitution required representation in state courts as it did in federal courts under the Sixth Amendment.
OOOSutherland found generally that, in some instances, a lack of counsel did violate the "due process" requirement made incumbent upon the states by the Fourteenth Amendment. This was especially true in capital cases like Powell. (The rule would not be applied on a wholesale basis until Gideon v. Wainwright in 1963.) Sutherland further found that, to the extent counsel was provided — one out-of-state lawyer who refused to take charge of the defense and a local lawyer who proposed to assist him — it was wholy inadequate to the task of defending the accused. The ruling was overturned and the case sent back to Alabama for retrial.
OOOIn dissent, Butler agreed with the overall due process argument, but countered that counsel in the case had indeed been adequate, and the trial fair.
OOOOn retrial, the defendants were again found guilty with the case returning to the Court, on a new question, in Norris v. Alabama.
1934 Homebuilding & Loan Assn. v. Blaisdel, 290 U.S. 398
C.J. Charles Evans Hughes, J. Brandeis, J. Stone, J. Roberts, J. Cardozo
Dissent: J. George Sutherland, J. Van Devanter, J. McReynolds, J. Butler
OOOHomebuilding pitted the private right of contract against the police power of the state, i.e., the state's power to legislate in the best interests of its citizens. The case stemmed from a Depression-era Minnesota staute which extended - with certain conditions - the contractual redemption period on foreclosed motrgages. (The redemption period is the time, after foreclosure of a property, that a creditor may, by paying all or part of the debt, regain his property.) Homebuilding, which held the debt and foreclosed on Blaisdel's property, sued when the state extended the redemption period of the original mortgage, claiming that the statute which allowed the change was a violation of the contract clause [Art.1, § 10] of the Constitution. The clause forbids the states' "imparing the obligations of contracts"; in this case, the mortgage.
OOOWriting for the majority, Hughes first addressed the emergency of the Depression and the disaster it brought to everyone, especially borrowers, who often found that the steep decline in property values meant that the value of the property foreclosed did not cover their debts. He observed, "Emergency does not create power", but he added that it may "furnish the occasion" for its use. The power at stake was Minnesota's power to provide relief to its citizens.
OOOAs to the contract clause, Hughes makes several observations: 1) while some provisions of the Constitution are "...so particularized as not to admit of construction...", the contract clause is so broad as to need interpretation; 2) that interpretation had to go beyond the intent and circumstances of the framers to consider the history of Court opinions; 3) that Court opinions proved the prohibition was not absolute. He also stated that all contracts partake of the time and circumstances of their making, and that part of those circumstances is the prevailing legal order. As the state's police power is part of that order, then explicitly or implicitly, that power is read into, and becomes a qualification of, every contract. In short, the mortgage contained within it the power of the state to alter its terms.
OOONext, Hughes made a distinction between "obligation" and "remedy". Hughes argued that the statute did not change the obligations of the contract: what each party owed the other under its terms, and what the Constitution specifically enjoined the states from impairing. Instead, he wrote, that the statute only altered the remedy, i.e., the means by which the obligations were enforced. He argued that since remedy is ultimately created and enforced by state laws, then the state had to power to change laws effecting it.
OOOFinally, Hughes stated that the power of the state to protect its citizens was simply "paramount" to any private contact between individuals, concluding that, "The question is not whether the legislative action affects contracts incidentally, or directly, or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end. " For Hughes, the emergency of the Depression made the statute reasonable, and its narrowness narrow focus on remedy made it appropriate. Modern society, he concluded, required a "...rational compromise between individual rights and public welfare."
OOOIn dissent, Sutherland took up the theme of original intent and judicial conservatism: the meaning of the Constitution did not change, it was what those who wrote and ratified it said it was. Only its application was, as Sutherland called it, "extensible". While it was certainly true that some of the Constitution's provisions might prove inconvenient, or even destructive, the answer was amendment, not false construction, as under the latter course the Constitution would eventually become meaningless.
OOOSpecifically, Sutherland pointed out that the contract clause was written in response to precisely the kind of situation at hand during the Depression: the economic distress at the end of the Revolution which governments had attempted to relieve by altering the contracts of debtors. Fearing that such a course would destroy both the credit of the country and public confidence in all contacts, the Framers forbad the states' intereference. Highlighting the irony of the majority's opinion, he wrote: "The defense of the Minnesota law is made upon grounds which were discountenanced by the makers of the Constitution and have many times been rejected by this court. That defense should not now succeed, because it constitutes an effort to overthrow the constitutional provision by an appeal to facts and circumstances identical with those which brought it into existence. With due regard for the processes of logical thinking, it legitimately cannot be urged that conditions which produced the rule may now be invoked to destroy it."
OOOSutherland conceded Hughes' point that contracts partake of the prevailing legal order, but insisted that contracts can only be extinguished by changes in that order (he uses the example of contracts for liquor sales being voided during Prohibition). However, so long as what is contracted for remains legal — as borrowing and mortgages certainly were — then the state had no power to alter the contract.
OOOFinally, Sutherland rejected Hughes distinction between obligation and remedy: "A statute which materially delays enforcement of the mortgagee's contractual right of ownership and possession does not modify the remedy merely; it destroys, for the period of delay, all remedy so far as the enforcement of that right is concerned. The phrase, "obligation of a contract," in the constitutional sense, imports a legal duty to perform the specified obligation of that contract, not to substitute and perform, against the will of one of the parties, a different, albeit equally valuable, obligation."

1935 Norris v. Alabama, 294 U.S. 587 (The Second Scottsboro Trial)
C.J. Charles Evans Hughes
OOONorris reversed the convictions in the retrial (ordered by Powell v. Alabama, above) of the African-American men charged with the rape of two white women in 1931. The reversal was based on the Court's findings that African-Americans were totally and systematically excluded from jury service in the counties where the accused were indicted and tried. This, Hughes found, was a denial of their rights under the equal protection clause of the Fourteenth Amendment. (Interestingly, this argument had been brought before the Court in Powell, but Sutherland, who wrote the opinion, chose not to consider it.)
OOOIn the end, five of the original nine "Scottsboro Boys" were convicted in a third trial (charges against the others were dismissed), and while none received the death penalties originally handed down, all served substantial prison sentences.
1937 Grosjean v. American Press Co. Inc., 297 U.S. 233
J. George Sutherland
OOOGrosjean extended the press freedoms as applied to the states begun with Gitlow and Near. The case concerned a Louisiana statute taxing the advertising revenues of any publication - newspapers, magazine and periodicals — having a circulation of 20,000 or more per week. The companies effected sued, charging that the law infringed their right to a free press under the due process clause and their rights under the equal protection clause of the 14th Amendment.
OOOSutherland began by setting aside certain objections brought by Louisiana. One of which was whether corporations had rights under the 14th Amendment. Sutherland replied that the Court had already decided that, while privileges and immunities clause did not apply to corporations, the due process and equal protection clauses did. He also pointed out that the Court had already made freedom of speech and of the press part of the idea of due process incumbent upon the states. The only question was whether taxes such as Louisiana had levied infringed those freedoms. Sutherland decided that they did.
OOOThe tax, Sutherland found, restricted both the revenues from advertising and restricted circulation, since the tax, at high enough rates, could ultimately destroy the publication. Such a possibility, he wrote, went to the heart of why early Americans had resisted English taxes on the colonial press, and why the Framers had written freedom of the press into the 1st Amendment. In doing so, Sutherland concluded, the Framers had gone beyond the common law prohibition against mere previous restraint on the press — the principle that had underlain Near — to embrace a wider idea of what might be considered press restraints. In the light of history, it was clear to Sutherland that this included taxation. Having found it violated due process, Sutherland did not find it necessary to rule on the equal protection charge.
OOOIn concluding his opinion, Sutherland forcefully stated the case for a free press in a free society: "The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity, and, since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves."
1937 West Coast Hotel Co. v. Parrish, 300 U.S. 379
C.J. Charles Evans Hughes, J. Brandeis, J. Stone, J. Roberts, J. Cardozo
Dissent: J. George Sutherland, J. Van Devanter, J. McReynolds, J. Butler
OOOWest Coast Hotel, in upholding a Washington state law settting a minimum wage for women, explicitly overruled Atkins v. Children's Hospital, decided only 14 years before.
OOOThe case originated with the suit of Elsie Parrish to recover wages from the West Coast Hotel Company owed her under the requirements of the statute. West Coast countered that the statute, in light of the Atkins decision, infringed its liberty of contract rights without due process, and was therefore unconstitutional under the 14th Amendment.
OOOIn writing for the Court, Hughes pointed out that the Constitution did not explicitly guarantee a "liberty of contract", and that even if it did, no liberty is absolute: "...liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." Thus Hughes found that liberty of contract did not trump the state's police power, i.e., its ability to make reasonable laws and regulations for the benefit of its citizens.
OOOThat the minimum wage law was such a reasonable regulation Hughes had no doubt. Both the health and morality of women required they be paid a living wage. Moreover, the legal assumption of equality between the "contracting parties" - women and their employers - was a fiction, as had been pointed out in dissents since Lochner. Women were especially disadvantaged in this respect, and that fact for Hughes not only justified the minimum wage, but also justified its specific application to women workers. That aside, however, Hughes pointed out it was not for the Court to rule on the wisdom of a particular policy: the purpose of the law was within the power of the state to pass on, and that, "...if such laws have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.."
OOOIn dissent, Sutherland, who had been the author of Atkins, begins with an eloquent discussion of the responsibilities of judges, the power of the courts, legislatures and executives, and the place of the Constitution in changing times and circumstances. Legislatures may pass laws for changing times, but those laws must conform to the Constitution, which does not change. The courts must decide that conflict in favor of the Constitution, and when such decision become onerous to society, then there is only one recourse: "If the Constitution, intelligently and reasonably construed...stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it according to its terms. The remedy in that situation - and the only true remedy - is to amend the Constitution." It was for the people, not judges, to do that: "The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation. To miss the point of difference between the two is to miss all that the phrase "supreme law of the land" stands for, and to convert what was intended as inescapable and enduring mandates into mere moral reflections."
OOOSutherland goes on to reiterate his insistence on the primacy of liberty of contract and his belief in contractual equality.
OOOAs to the statute, Sutherland argued that it was indeed arbitrary. It set a wage without any consideration of the productivity of the employee, or of the nature, hours or circumstances of her work. Moreover, it ignored the needs and circumstances of the employer: the value of the work done, the changing exigencies of the market and the economic circumstances of the individual business: "The feature of this statute which, perhaps more than any other, puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract, or the work the employee engages to do."
OOOFinally, Sutherland found it outrageous that private employers should take on a social responsibility outside the needs of their own business: "To the extent that the sum fixed exceeds the fair value of the services rendered, it amounts to a compulsory exaction from the employer for the support of a partially indigent person, for whose condition there rests upon him no peculiar responsibility, and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anybody, belongs to society as a whole." This remains one side of an ongoing argument, the other represented by Hughes in the majority opinion: "The exploitation of a class of workers who are in an unequal position with respect to bargaining power, and are thus relatively defenceless against the denial of a living wage, is not only detrimental to their health and wellbeing, but casts a direct burden for their support upon the community. What these workers lose in wages, the taxpayers are called upon to pay. The bare cost of living must be met....The community is not bound to provide what is, in effect, a subsidy for unconscionable employers. The community may direct its lawmaking power to correct the abuse which springs from their selfish disregard of the public interest."
1937 National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1
C.J. Charles Evans Hughes
OOONLRB upheld the most important piece of labor legislation ever passed by Congress, the National Labor Relations Act of 1935. The act guaranteed to those employees in industries "affecting commerce" the right to organize and to collectively bargain with employers, and banned certain "unfair labor practices", among them the firing of employees for union activities. It was for precisely this latter that Jones & Laughlin was found to be in violation, and ordered to reinstate and reimburse for lost wages those workers it had terminated.
OOOJ & L challenged the order, alleging that the act was unconstitutional. Its primary argument, harkening back to the decision in U.S. v. E.C. Knight Co., was that the act affected "manufacture" - outside the power of Congress to regulate - and not "commerce" - which the Constitution made well within that power.
OOOHughes reply was that first, where there was doubt about the constitutionality of legislation, the Court's duty was to give Congress the benefit of the doubt. Second, Congress had specifically limited the act to unfair labor practices "affecting commerce", and that the act should be taken at its word. He wrote: "The grant of authority...does not purport to extend to the relationship between all industrial employees and employers....It purports to reach only what may be deemed to burden or obstruct that commerce, and, thus qualified, it must be construed as contemplating the exercise of control within constitutional bounds. It is a familiar principle that acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power."
OOOTo the challege that labor relations, by definition, were outside the scope of Congressional control, Hughes replied that the right of employees to self organize and to choose representatives to bargain for them with employers was "fundamental" and might anyway be subject to "...competent legislative authority." However, that they might affect commerce put them squarely within Congress' power, and it was beyond doubt that labor strife brought about disruptions in commerce. If Congress believed that labor organization and collective bargaining brought about labor peace in the interests of commerce, they had the right to legislate to that end. Its power was "...plenary, and may be exerted to protect interstate commerce "no matter what the source of the dangers which threaten it."
OOOTo the specific case, J & L argued that the labor relations in one plant did not affect commerce. Hughes rejected this: "...the fact remains that the stoppage of [plant] operations by industrial strife would have a most serious effect upon interstate commerce. In view of respondent's far-flung activities, it is idle to say that the effect would be indirect or remote. It is obvious that it would be immediate, and might be catastrophic...When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war?"
OOOBoth the act and the Court's decision again recognized the essential fallacy behind the "freedom of contact" approach of the court enshrined in Lochner v. New York, the assumption that the single employee and the employer were equal parties. As Hughes wrote: "Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that, if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers opportunity to deal on an equality with their employer.", and later, "Respondent [J & L] asserts its right to conduct its business in an orderly manner without being subjected to arbitrary restraints. What we have said points to the fallacy in the argument. Employees have their correlative right to organize for the purpose of securing the redress of grievances and to promote agreements with employers relating to rates of pay and conditions of work.".

1938 Johnson v. Zerbst, 304 U.S. 458
J. Hugo Black, J Brandeis, J. Stone, C.J. Hughes, J. Roberts
J. Reed concurred
J. McReynolds and J. Butler dissented
J. Cardozo took no part in the consideration or decision of the case
OOOJohnson established the right to counsel under the Sixth Amendment of the Constitution in federal courts, stating definatively that when that right is waived it must be 1) done "intelligently and competently, and 2) it is the duty of the trial court, as a matter of record, that such waiver meets those conditions.
OOOThe case involved the arrest and conviction of two men, Johnson and Bridwell, for counterfeiting. While they had been represented by counsel at the preliminary hearing before being brought up before the grand jury, they had none at trial. There, "Upon arraignment, both pleaded not guilty, said that they had no lawyer, and — in response to an inquiry of the court — stated that they were ready for trial. They were then tried, convicted and sentenced..." Later, while in jail, both their own ignorance of the system and the exgencies of incarceration prevented a timely application for appeal. The two men finally filed for review of the case under habeas corpus, but the appellate court found that, while the two men may have been deprived of their right to counsel, the deprivation was a result of mere trial errors which could not be reviewed under habeas corpus, which pertains only to questions of constitutionality and jurisdiction. Petitions for appeal covered errors, and they were too late.
OOOBlack pointed out first what he considered the obvious fact that most laymen were not competent to conduct their own defense opposite experienced and "learned" prosecutors. Second, a right designed to protect a defendant from his own ignorance at trial, must also stand to protect him from his own ignorance in waiving it. Third, the trial court is equally responsible for both ascertaining the actual waiver and ascertaining the competency of the defendant to waive. Finally, in an interesting turn, Black stated that when the trial court does not fulfill this responsibility, it effectively voids its own jurisdiction to try the case: "Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty....If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed."
OOOBy centering the argument on jurisdiction, Black legitimated Johnson and Bridwells habeas corpus petition and remanded the case back to the appellate court for review based on that petition.
1940 Cantwell v. Connecticut, 310 U.S. 296
J. Owen J. Roberts
OOOCantwell applied to the states the religious liberty guarantees — both the free exercise and establishment prohibition — of the First Amendment to the Constitution.
OOOThe case involved the arrest and conviction of Newton Cantwell and his two sons, Jehovah's Witnesses, for soliciting door to door without a legally required permit, and further the arrest and conviction of Newton for breach of peace. Writing for the Court, Roberts first found the statute which required the permit unconstitutional and second, that Newton Cantwell's conduct did not constuitute a breach.
OOOAs to the statute, Roberts allowed that states had a right to make general, non-discrimanatory laws regulating such things as the time, place and manner of solicitations, and that moreover, they had a right to protect their residents from theft and fraud. Roberts problem with the statute was that it vested in a state official the right to determine whether the solicitation was for a real religious, charitable or philanthropic purpose before issuing the needed permit. Giving the state the power to make such a determination, Roberts wrote, placed a prior restraint on Cantwell's constitutional right to freely practice his religion.
OOOAs to the breach of peace, Cantwell had been convicted after playing on a public street a phonograph record which contained anti-Catholic statements, and which had caused two men to threaten him with violence. Again, Roberts allowed that a breach of peace may be found to have occured not only when an individual commits such a breach, but also when he has incited others to do so. However, Roberts found no breach of peace on Cantwell's part, nor any intention to incite it. Moreover, as the content of the record — a statement of the tenets of Cantwell's religious beliefs — was constitutionally protected speech, the state could not prohibit or punish its utterance except under circumstances of "clear and present danger" which Roberts found not to exist.
1941 United States v. Darby, 310 U.S. 100
J. Harlan F. Stone
OOODarby upheld the wage and hour provisions of the Fair Labor Standards Act as a legitimate power of Congress under the Commerce Clause [art. 1, § 8] of the Constitution. In doing so, the decision explicitly overruled Hammer v. Dagenhart.
OOOThe FLSA required that all employees engaged in the manufacture of goods intended for interstate commerce be paid a minimum wage, overtime for work over a maximum number of hours, and that records be kept detailing this. Darby, a Georgia lumber company owner, violated the Act. He argued that in passing it, Congress had exceeded its powers under the Commerce Clause: that conditions of labor within a state pertained to manufacturing — a state concern — not commerce.
OOOStone swept aside Darby's objection by repeating the Holmes dissent in Hammer. Congress' power to regulate interstate commerce was plenary. So long as a regulation had a reasonable purpose — in this case, protecting states which paid a living wage from unfair competition from those which did not — then Congress had the power to employ any appropriate means to that purpose, even the direct regulation of wages, normally a perogative of the states. He wrote, "The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end..." He concluded, "Congress having by the present Act adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards, it may choose the means reasonably adapted to the attainment of the permitted end even though they involve control of intrastate activities."
OOOStone's decision opened wide the door to government regulation through the Commerce Clause, a process begun by Chief Justice John Marshall in 1824 with Gibbons v. Ogden.