The Charlotte News

Monday, April 27, 1942

FOUR EDITORIALS

Site Ed. Note: For the fourth night in a row, as reported on the front page, Rostock was bombed by the RAF, again targeting the Heinkel aircraft factory.

The President announced new measures to stem inflation and the rising cost of living, prime among which was a proposal to raise taxes so high on individuals that no one would be permitted to keep more than $25,000 per year in income. Wages would be frozen along with prices on virtually everything. The President asked that Congress repeal the bill which had recently been passed to allow farm prices to rise to 110 per cent of parity, the average price of goods between 1909 and 1914. Rationing would be expanded. Federal taxes would be imposed on state and local bonds, formerly tax exempt.

Well, with a controversial program like that, it is likely that many in Congress hoped that the Presidentís registration for the draft into war production industries, along with the rest of those 45 to 65, would land him squarely behind a metal lathe in an airplane engine factory.

Hitler decided to appoint himself Supreme Master of the Reich to add to his many other titles, giving him supremacy to trump the law which he, himself, made to begin with. Why not? Once he realized how stupid he was, he had to find some way to master his own stupidity after all.

In a 5 to 3 decision, Goldman v. U.S., 316 US 129, with Justice Murphy dissenting, and Chief Justice Stone and Justice Frankfurter tacitly dissenting, based on their willingness to overrule the decision on which this case was based and to which Chief Justice Stone had previously dissented, the Supreme Court allowed introduction of evidence acquired through FBI eavesdropping via "detectaphone" from an adjoining room, based on their decision in Olmstead v. U.S., 277 US 438 (1928). This was so despite there having been a trespass into a private office to plant the listening apparatus. The Court found, however, that the trespass, while in another case perhaps supplying the ground for Fourth Amendment challenge for an illegal search, did not arise to that level in this case because it was found in the courts below that the trespass did not significantly aid in the interception of the conversations sought to be suppressed at trial.

The 5 to 4 Olmstead case, the opinion in which was delivered by Chief Justice and former President Taft, with four active dissents, of Justices Holmes, Brandeis, Butler, and Stone (who became Chief in 1941), involved wiretaps of telephone lines made without any trespass. The Court there had held that the protections extended under the Fourth Amendment to private documents and the mails did not extend to telephone conversations and thus refused to hold the wiretap to be a search or seizure subject to the probable cause provision of the Fourth Amendment.

As hinted by Chief Justice Stone and Justice Frankfurter, the dissenting view of Justice Murphy in Goldman would eventually prevail in this context. Katz v. U.S., 389 US 347, an 8 to 0 decision delivered by Justice Potter Stewart, held in 1967 that the protections afforded by the Fourth Amendment turn on whether there is a reasonable expectation of privacy in the thing searched, applying this doctrine to a wiretap of a public phonebooth which the Court held was entitled to Fourth Amendment protection, therefore requiring a warrant or probable cause for the wiretap. The police could not simply randomly set up a wiretap in a public phonebooth and thereby intercept and use in subsequent prosecutions any conversation the tap happened to record. The minimum requirements for probable cause, that a specific person or thing be searched based only on reasonable, articulable facts justifying reasonable suspicion that criminal activity was taking place, were not satisfied in such a random search, that warrantless searches, except under certain limited exceptions, such as where exigent circumstances apply to prevent destruction of evidence, are per se unreasonable under the Fourth Amendment.

The Court specifically overruled in Katz the trespass doctrine enunciated in both Olmstead and Goldman, holding that for Fourth Amendment protection to inhere, it is no longer a requirement that there be a seizure of physical objects or a physical trespass. No more use of detectaphones without a warrant.

It is to be noted that, while Justices Douglas and Black had been in the majority in Goldman, their view had shifted, along with the rest of the Court, by the time of Katz 25 years later.

The editorial column in "Fateful Decision" advocates that a second front be initiated in Europe to relieve Russia in the coming spring offensive. It would not occur until November with the American invasion of North Africa. First, the way had to be closed from the south before an invasion could be undertaken successfully of France or Norway.

Dorothy Thompson this day may have been a little overly awed by a sentimental gesture of a reader in providing such high praise to the Victorian Age when the British Empire reigned supreme. It was not all quite so idyllic as she suggests it. Consult the workers in the diamond mines, for instance, who were little more than slaves in the African colonies to the wealthy industrialists. It is an uncharacteristic piece of fluff from Ms. Thompson and one obviously stimulated by the sympathy engendered anew for Britain from the readerís personal magnanimity toward her.

But, as Roosevelt himself once remarked to his son Elliott, the whole motivation for the war likely would have been cut off at its root had it not been for the empire interests pervading in Africa, in the Middle East, in the Near East and the Far East from Britain, the Netherlands, and France through the nineteenth century, still persisting, albeit to a lesser degree, into the twentieth. There would simply have been no recent enough precedent to warrant the treatment of any of the expansionist notions promulgated among extreme nationalists by Hitler, Mussolini, and Tojo as anything but the product of the flailing madness of megalomaniacs.

Herblock provides this day the better take on matters.

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