The Charlotte News

Thursday, January 23, 1941



Site Ed. Note: Justice James McReynolds, one of the "nine old men", as Roosevelt came to call them for their rulings against New Deal programs, became a chief target of Roosevelt's February, 1937 "Court-packing plan" to increase the size of the Court to as much as 15, (by offering full retirement to any justice over age 70 and, if the justice refused retirement, allowing for an assistant justice to be appointed), and thereby dilute the power of McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler, the four justices who most consistently opined against the New Deal, and when joined by either Owen Roberts or Chief Justice Charles Evans Hughes, formed a majority of the Court. The National Industrial Recovery Act, which sought to enable the President to regulate fair competition in key industries, was the first major legislation held by the Court to be unconstitutional as an improper delegation by the Congress to the President of a legislative function, as well as an impermissible attempt to regulate intrastate business via the interstate commerce clause of the Constitution. (See, e.g., Panama Refining Co. v. Ryan 293 US 388 (1935); Schechter Poultry v. U.S. 295 US 495 (1935)) Other New Deal programs to receive the consitutitonal axe would be the Agricultural Adjustment Act, (see, e.g., St. Joseph Stockyards Co. v. U.S., 298 US 38 (1936)), and the Bituminous Coal Act, (see Carter v. Carter Coal Co., 298 US 238 (1936)). (The other members of the Hughes Court were long-respected jurists Louis Brandeis and Benjamin Cardozo, and Harlan Stone, later elevated by Roosevelt to chief in 1941. Brandeis and Cardozo, whom McReynolds personally detested, became the great dissenters on the Court and voted usually to uphold the constitutionality of New Deal legislation.) While the Court expansion plan provoked calls from Republicans in Congress for impeachment of Roosevelt, the furor settled down when some of the justices began to retire.

McReynolds had just announced his retirement in January, 1941 and Hughes would join him later in the year. (An editorial cartoon by Fitzpatrick appeared in the News of this day with the line "Father Time Solves Many Problems", with same holding his packet of "Supreme Court Appointments".) Van Devanter had been the first to retire in 1937, then Sutherland and Cardozo (who died) in 1938, Brandeis and Butler (who died) in 1939. Thus while depriving FDR of any appointment in his first term, the Court gave up five of the nine seats in the second term, three of which had been troublesome to FDR, and two more of the troublesome seats in the first year of the third term. In all Roosevelt would appoint eight justices, plus the elevation of Stone to chief, including two to one seat when James Byrnes of South Carolina resigned in 1942 after one year on the Court to join the Administration's war effort.

And of course the conservative forces in this country were bemoaning that fact for decades until the early 1970's. Since, the Court has been swayed to the conservative view, with Republican Presidents maintaining since President Ford a 7-2 majority of the appointments, the longest one party has held such a majority of appointments on the Court in our history. Since 1969, Republican Presidents have appointed ten justices, including one chief, plus the elevation of a justice to chief. Meanwhile, for the Democrats, President Clinton got to appoint two justices and President Carter, none. On average through the country's history, each President has appointed two justices per four-year term.

As duly pointed out in "From the Past", the opinions of justices, however, are not always predictable by party affiliation or the party philosophy of the President who appointed them.

Which, crotchety and persnickety though it may seem, may be one reason why North Carolina appropriately still bans the sale of fireworks...

Fireworks Ban

Bill To Forbid Sale in the State Should Be Passed

State Fire Marshall Sherwood Brockwell was very emphatic in his endorsement of the bill, introduced by Senator Stringfield of Fayetteville, to forbid the sale of fireworks throughout the state.

And with good cause. As the law stands at present, it is a mere farce. Nearly all municipalities in the state have forbidden the sale of fireworks within their limits. But the result has simply been that filling stations or stands along the roads just out of the towns have taken over the business.

Fireworks are easily obtainable by anybody who wants them. The police make no active attempt to enforce laws against shooting them in towns--would have to be crickets if they did. Last Christmas firecrackers were being set off almost constantly within a few feet of Independence Square and the whole town sounded as though it were under a heavy bombardment.

Charlotte is by no means the worst town in the state in this respect. In some of the smaller towns, it is the custom for young men and boys to toss canon crackers at every passerby and even into automobiles.

It is an infernal menace for adults who are not moronic and who have to have their sleep. But what is worse, it is dangerous. Every year many children--sometimes adults--are blinded or otherwise permanently injured as a result of playing with fireworks. And the fire hazard is obviously very great.

By common consent of civilized adults fireworks have no place in modern life save for displays under controlled conditions. And North Carolina should get out of the group of six backward states which still allow their open sale.


Staged Revolt?

Hitler May Have Provoked Rumanian Uproar for Purpose

What is going on in Rumania is anybody's guess.

So far as any sense can be made out of the dispatches, they seem to indicate that the Iron Guard got too high and mighty with its brutality and came into collision with the regular Rumanian army.

Behind that, in the case of the execution of a Nazi major by some private hand, flies the suggestion that some Rumanians are prepared to resist the efforts of the Nazi to swallow up their country by the only means at their disposal--by harassing the Nazis and making their lives unhappy by assassination and other violent means.

What is not to be overlooked, however, is that the whole thing may have been deliberately staged by the Nazis to the end of getting more complete control of the country. The execution of the Nazi officer might well have been fortuitous, for the reports indicate that he was a particularly arrogant swine, but it is not too much to suspect that the men who burned the Reichstag and executed their own companions to further their quest for power would be quite capable of executing one of their own officers if it served their ends. Anyhow, once he had been killed, the Iron Guard could be counted on to make it an excuse to go just as far as their Nazi masters wanted them to go in trying to provoke the people and the army to resistance and retaliation.

So long as Hitler merrily occupies Rumania for "protection" and at the "invitation" of a stooge "government," he must make some pretense of regard for it--cannot enslave its people as ruthlessly as he likes. The pretense of putting down a rebellion against "order" would give him the opportunity he wants.


From The Past

It Is a Long Time Since McReynolds Was a Liberal

When Woodrow Wilson appointed James Clark McReynolds to the Supreme Court bench in 1914, he did it specifically on the ground that he was a liberal.

It seems incredible now, and is a measure of how far we have traveled in the 26 years since. McReynolds may not have been so liberal as Wilson thought, even for his time. But it was a simple thing to be a liberal in those days. What it meant was that you believed the existing world to be not perhaps the best of all possible worlds but one which could be made the best of all possible worlds by a few minor and obvious operations.

You had begun to suspect that the great wealth did not always regulate itself and serve the highest common good as infallibly as Adam Smith had once thought, but you had to be careful not to dry up the spring of enterprise at the source by too much regulation. And to entertain any doubt about the necessary nature of the laissez-faire economic system was to take yourself out of the liberal class at once and brand yourself as a strange, long-haired radical who might have come from Russia or Germany but not from Tennessee. Such things as pensions for the old aged and the unemployed, Government promotion of labor unions, etc., were strange European enormities and no more thinkable for the United States than an invasion from Mars.

It was, you see, a very long time ago--longer than you perhaps think. On Feb. 1, 1914, when McReynolds was commissioned, the name of Sarajevo was still only something on a map which nobody had heard of. A sword rattled occasionally, but Europe looked back upon the long golden time from the fall of Napoleon, and did not really suppose that the Nineteenth century world could ever really pass away. In America there were white picket fences and iron deer and many more horses and buggies than automobiles. And Franklin D. Roosevelt was one of the nice young men in the Navy Department. And great armies of unemployed, the loss of the cotton market, and Adolf Hitler were as improbable as the sudden repopulation of the earth by the gigantosaurus.

Cantankerous old James Clark McReynolds stands up like a gaunt column of one of those fallen old Roman cities in the African desert--is as certainly a relic of something which has passed forever, as though he belonged to Memphis or Thebes in 30th century B.C. Once, incredibly, he was called a liberal.


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