The Charlotte News

Tuesday, May 2, 1939


Site Ed. Note: As Hugh Johnson's column of the same date points out, the ultimatum to Poland to which Cash alludes in "Gray May Day", was to surrender the Danzig Corridor or face invasion. Of course, we know what transpired a mere four months later. General Johnson, a favorite target of Cash for his poor judgment, (as he would be the following day for this piece, in Cash's "Against the Middle"), had advised in his column, titled "Hitler's Claims Are Logical", that the better choice, in light of the 90 percent German population in Danzig and the Corridor's cutting off of roads between East and West Prussia, would be the surrender of it to the Germans by way of conference at which Roosevelt would take a prime role. Johnson believed that Versailles had unfairly taken from the Germans territory primarily occupied by German people, depriving Germany of her natural resources; thus, to avoid war, he advised that it would be better to surrender back these territories than to risk a fight over them. Of course, this strategy would have only delayed the inevitable as Hitler was, predictably, by no means content with only Danzig--or even the Corridor or all of Poland. The following spring would so prove as he rolled his tanks over all of the western Continent.

Cash's forecast that the gray weather of the German days might prove ominous for Hitler was indeed not only correct but eerily accurate, almost--yet, even precisely--to the day, six years hence. As the Russians inched ever closer to his Berlin hidey-hole, Hitler would blow his own brains out a day before May Day, Walpurgis Night, 1945.

As to "New Court Plan", the take on newly appointed Justice William O. Douglas as "more conservative than no" would be quite disproved with time, as Justice Douglas's eventual 36-year tenure on the Court would prove him arguably the most quintessentially liberal justice in its history. So, too, would the negative view of Hugo Black, espoused here by Cash perhaps because of the Alabaman's much publicized prior membership in the Klan. Black, appointed in 1937, would in fact prove an eloquent justice, sensitive to civil rights as few had until that point in time. The "un-packing" of the sub-title of the editorial refers to the notorious Court packing plan proposed by Roosevelt in early 1937, whereby justices who did not retire by age 70 would have an assistant justice appointed, up to a total of 15 justices. The plan was in reaction to the "nine old men" who had sacked much of the New Deal, declaring unconstitutional the National Recovery Act in 1935 and the Agricultural Adjustment Act the following year. (See Schechter Poultry v. U.S. 295 US 495 (1935), the chicken-packing slaughterhouse case which held the NRA trangressed the Constitution's separation of powers, handing to the executive powers reserved for Congress, as well as attempting to regulate intrastate activity, the sale of "unfit chickens" and the regulation of wages and hours in the slaughterhouses, only indirectly affecting interstate commerce, via the the powers reserved to Congress in the Commerce Clause allowing regulation of matters affecting interstate commerce; and U.S. v. Butler 297 US 1 (1936), holding that the Agricultural Adjustment Act--authorizing the paying of subsidies to farmers to maintain idle land to reduce agricultural surpluses, subsidies to be paid by authorizing the executive to levy taxes on processors of the food products thus affected, in order to bring parity between the prices of agricultural products and the consumer goods farmers normally purchase equal to the more economically stable period of 1909 to 1914--unconstitutionally allowed Congress to usurp the rights to local control reserved to the states and the people by the Tenth Amendment.) Meanwhile, farmers in the Depression, especially in the South, continued to starve despite the solid efforts of the New Deal to the contrary. The Court-packing plan was met with hostility by both Democrats and Republicans and went down to miserable defeat in Congress, costing Roosevelt much of the political capital he had just won in the resounding defeat of Alf Landon in the election of 1936. Death and retirement of justices ultimately rendered the plan moot in any event, as Roosevelt, who had prior to 1937 not appointed any justices, was able to appoint fully nine to eight seats prior to his death in 1945--the most of any president since Washington, who had appointed twelve to the original six seats on the Court.

For a look at how the Commerce Clause proved ultimately significant in justifying the power of Congress to enact the 1964 Civil Rights legislation, see the notes accompanying, "Whose Shall Be: 'The Ultimate Power'", February 28, 1937, and "A Bit Mixed", November 7, 1940. The times did change, with time.

New Court Plan

Business Contemplates An Un-Packing Process

Mr. Henry C. Carbaugh, president of the Tennessee Egg Co. and Vice-President of the Chattanooga Chamber of Commerce, went a little far before the United States Chamber of Commerce yesterday. Said he:

"We need a better psychology about the Supreme Court. Businessmen feel that it is stacked against them. They feel that all New Deal legislation will be declared Constitutional and that a liberal interpretation of the Constitution will tend to hamper the American system of free men and free enterprise."

That seems to have been meant to say that the Supreme Court is stacked--that is, that it is made up of men who are out to destroy the American system and to do business to death. And that, of course, is simply hysterical--itself calculated to destroy faith in the American system. There is not a man on the Supreme Court, we confidently assert, who justifies any such assertion. There is one man on that bench who, we suspect, is capable of bad, emotion-inspired judgment at times--Hugo Black. There is another who is a liberal of much the same cut as the late Justices Oliver Wendell Holmes and Benjamin Cardozo and of Justice Brandeis--Felix Frankfurter. And there is still another who is a liberal in that he hasn't much respect for convention and tradition but his essential outlook seems more conservative than no--William O. Douglas. But these last two are balanced out by the presence on the court of two arch-conservatives--Butler and McReynolds. And for the rest--Chief Justice Hughes, Justices Reed, Stone, and Roberts: all of them are the mildest middle-of-the-roaders. There is not the slightest danger that such a court is going to "hamper the American system and free men and free enterprise," any more than is absolutely necessary to keep that system from strangling itself to death, as it very nearly did in the years from 1930 to 1933.

Right Turn

The New Deal Abruptly Changes Its Direction

 The New Deal took a sharp right turn yesterday. The Treasury, rather than the President, was at the wheel, but since Chauffeur Morgenthau is not in the habit of abruptly changing directions without the Chief's permission, we may assume that it all had been agreed upon in advance.

 The most revolutionary item in the four-point business stimulation program is that which would let the big rich keep 40 per cent of their top income instead of only 25. To the humble man in the street, this may seem mere arithmetical tweedledum and tweedledee, but to the affected taxpayers it represents fortunes annually. Symbolically, it represents an unmistakable recoil from confiscation and a partial return from Huey Long to Andy Mellon.

 Other items are of the same pattern, designed to encourage speculation and investment, though it will be devilishly hard to find much stimulation for corporate enterprise in an income tax of 22 per cent flat. But never mind. Business has been offered, tentatively, part of what it has been crying for. And the New Deal has at last unobtrusively reversed its field and indicated a willingness to play the game business's way for a change.

So that it might not be true, as we were saying only the other day, that Mr. Roosevelt is a man caught between a repugnance for state socialism and an obstinate unwillingness to backtrack into capitalism. Backtrack he has, and we shall see what we shall see.

A Natural

Uncle Dan Gets A Job Right Down His Alley

The appointment of Uncle Dan Roper to be Minister to Canada again illustrates the virtually iron-bound law that once you are on the public payroll, you have a vested interest in government. Uncle Dan has been there since 1894. But when he resigned as Secretary of Commerce some months ago to give place to Harry the Hop, it looked as though he might be permanently detached at last. For one thing, he had, he said, private business affairs which imperatively required his attention. For another, he emphatically had not been a success as Secretary of Commerce--though, perhaps, not entirely through his own fault. For still another he had been hard to dislocate from his post--which was calculated to leave Mr. Roosevelt a bit peeved. And for yet another, he went out under a small cloud concerning his too great success as a genial host on Coast Guard ships at Government expense.

But here he is, back again, bright and smiling, with all business affairs apparently caught up. And if you think we are going to carp about it, prepare to be disappointed. After all, somebody has to be on the payroll as Minister to Canada. What is more, we have no business with Canada which calls for weighty decisions or hard-boiled tactics or cunning diplomacy. All our business with her is one of mutual admiration, of good fellowship, of genial entertainment. In short, a job for an old smoothie, and everybody agrees that 45 years in politics and on the public payroll have made Uncle Danny one of the most charming old smoothies on record. In the closing days of his career, the old gentleman seems to have landed finally a job for which is a natural. And all's well that ends well.

Gray May Day

Perhaps It A Little Chilled Lord Hitler

For the second time in succession the sun yesterday hid its face from Lord Hitler. First in his Reichstag speech. And now in the May Day celebration. Always before it had shone out brilliantly for him--so often that those of his people who have begun to suspect that he is a god call fine days "Hitler whether." But, of course, he is not a god, and so of course the great drizzle these two days meant nothing in the cosmic scheme of things which probably takes no account of the housepainter and his dreams. Still, perhaps it did somehow seem to some of the more thoughtful of his satellites a little depressing--an ominous symbol.

Very far out on a limb has the little man, drunk with the victories of the past, already climbed. And if he should turn his demands on Poland into an ultimatum--well, no one may be sure. The Polish-French-British bloc may again recede. But the chances are more than even that Hitler is going to find himself with the choice of eating crow--a contingency which probably would mean the beginning of his collapse at home--or of making the war which he probably cannot win, and which, if he loses, means the destruction of himself and all his works.

Maybe even the little man himself may have felt a little chilled by that gray, cold May Day.


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