The Charlotte News

Friday, January 6, 1939


Site Ed. Note: Of course, Felix Frankfurter, as discussed in "Wholly Acceptable", would go on to be easily confirmed to the Supreme Court and would serve until his retirement in 1962, succeeded by Arthur Goldberg. He replaced the liberal Benjamin Cardozo who had died in July, 1938. Justice Frankfurter had more liberal credentials to his credit coming to the Court than probably any of his predecessors; a Harvard law professor, he had helped to found both the ACLU and The New Republic. While generally liberal in his opinions, being a proponent of judicial restraint, he also upheld some government limitations on civil liberties. (See, e.g., Minersville Sch. Dist. v. Gobitis, 310 US 586 (1940), holding so as not to make the Supreme Court the "school board for the nation" that a school board or legislature may compel flag salute and pledge of allegiance as a condition of compulsory school attendance, recognizing the First Amendment Right of religious belief which conflicts with such a prescription, but deferring to the state or local governing authority to instill citizenship and national unity thusly, where the impingement on religious belief, here that of Jehovah's Witnesses, is not unconscionable; but, with the attack on Pearl Harbor having changed national opinion markedly against anything smacking of compulsion by government, in 1943, Gobitis was overruled 6 to 3, with Frankfurter dissenting, in West Virginia State Board of Educ. v. Barnette, 319 US 624, stating, on virtually identical facts, in response to the Gobitis notion of government power to achieve unity taking some precedence over civil liberty: "Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support... There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution... Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.")

Relevant to the present confirmation before the Senate of Judge Alito, is mere expression of opinion a proper ground to refuse confirmation? Cash says no. But if repeated expression of opinion of a particular nominee, stated in the context of prior judicial decision, is so out of step with traditional notions of fairness as expressed in decisions of the Federal courts generally, does that opinion not give rise to proper dissent to a nomination? We think it does.

For more decisions rendered by Judge Alito, go here. Besides Doe v. Groody, the case in which he dissented on the propriety of the search of the ten-year old and her mother, we make special reference to his troubling dissent in Bray v. Marriott Hotels, in which he found that summary judgment to the employer was proper because the employer was not unjustified in finding a white employee more qualified for promotion than an approximately equally qualified black employee, despite the majority of the court finding that it was proper instead to submit the matter to the jury to determine whether race was the decisive issue in promoting the white employee.

Unfortunately, we have yet to find the report of the decision, ballyhooed by Republicans during confirmation hearings as "standing up for the little guy", in which Judge Alito voted to uphold a man's right to possess a machine gun because Congress lacked authority under the Commerce Clause to regulate this type of "non-commercial activity".

But, aside from the fact that we fail to understand a good distinction between the sale of such a weapon, clearly commercial activity, and its eventual possessor or end-user who purchased it, we might note also, in terms of counter-balancing any proper liberty interest in such possession, that last we looked at the Second Amendment, it limited itself, insofar as the right to bear arms, by its first clause, to insure the maintenance of a well-regulated militia; it didn't say anything about machine-guns in the hands of citizens for that purpose or that such would ever be considered necessary for a "well-regulated militia", that is, of course, unless one is looking very, very broadly to some penumbral right...perhaps the right to shoot up the joint?

We might add that Federalist Paper No. 29, by Alexander Hamilton, stated, in regard to militias: "If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper... What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS?"

In other words, the Second Amendment, when ratified, assumed two things, that it was for the purpose of effecting a well-regulated militia, one well-regulated by the Federal government, to be called upon when needed, and second, that it was to be so in order to avoid the "danger" to the republic occasioned, in Hamilton's view, by a standing army. Since we have not only a standing army but a militia in the form of the National Guard, the right to bear arms is by natural consequence applicable only insofar as it is necessary for the members of those organizations to function in a well-regulated manner, that prescribed by the Federal government--that is unless one were to start into wholesale interpretation of the plain language of the Constitution, adding language which is plainly not there, much as many critique the absence of an express penumbral right to privacy, recognized in Roe v. Wade, the latter standing on far more probative inferential ground, out of the panoply of rights recognized by the First Amendment and Due Process, than any individual right to own and possess firearms to be gleaned from the language of the Second Amendment. (And the old saw that "Smith & Wesson does my talkin' for me, pardner" does not suffice to bring it within the First Amendment, Pilgrim. Remember, a gun has many holes, one of which is designed to emit a projected missile, none of which speaks any truth; human beings have a capacity for being differently constituted.)

We might also note again that Alexander Hamilton, the founder often held most near and dear to conservatives and Republicans for his having founded, together with John Adams, the Federalist Party, that party most identified with what became in 1856 the Republican Party, died fighting in a duel with a pistol, regarding Mr. Burr's perceived slight for Hamilton calling him a dangerous man, or, on another rendition, some more viscerally base accusation. He apparently forgot his own words when he said, also in Federalist No. 29: "Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?" But, when one challenges another to a duel over words, well, how could you resist?

We would not go so far as to call Judge Alito a dangerous man, though since code duello is for over 100 years banned as illegal in the states, no one fortunately might answer anyone so stating with such a challenge, it fortunately being plentifully recognized by the First Amendment, both his view and ours.

Nevertheless, we do posit that this particular judicial opinion of Judge Alito might find better acceptance in some other place. Sierra Leone, for example.

This Vicious Circle

The tenth successive year of unbalanced budgets--a decade of deficits--hoved into view yesterday with the President's fiscal message. Nor was the bad news accompanied by the cheery prediction, which had become an old Roosevelt custom, that next year the budget would be put in balance. That will-o'-the-wisp has tired of the game and subsided.

A very real and acute problem is posed by this matter of Federal spending. Business contends that if the Government would only balance its budget and give Business a break by reducing taxes, thus making the game worth the candle, Business would take up where the Government left off. There are, however, certain practical questions which raise themselves in this connection. Would there not be a hiatus between Federal spending and spending by Business during which the unemployed and the employed as well would catch the devil? Is there any assurance that there is enough purchasing power in the country to make spending by Business profitable--(and Business spends only in the hope of profits)? There is no such assurance. In fact, present productive capacity appears to be greater than the ability of the consumers to buy.

On the other hand, Administration policies of high taxes and high wages and curtailed production result in prices that themselves restrict consumption, and it must be a source of uneasiness not only to Business but to everyone that the only way we are managing to maintain our economy is by the dangerous practice of Governmental borrowing and spending. It must be fully as obvious that we cannot continue indefinitely to borrow and spend.

A ready-made way out does not, at the moment, present itself. We seem to be caught in a vicious circle from which there is no painless escape. About the only possible solution is for Business and Government to spend together, lavishly on both sides, and maybe in that case we all will be so prosperous that we won't give a durn.

Was It Irony?

In his message requesting the appropriation of $875,000,000 to keep the relief fires burning until July, the President also made:

A suggestion (look at that word!) that Congress make no change in the manner of distributing relief funds now, but that it conduct studies and hold hearings with a view to making any desired alterations apply to the fiscal year 1940, beginning this July.

The Associated Press sees that as likely to make the fur fly. But is it? In his message Wednesday the President in effect laid the relief question squarely into the lap of Congress.

"All right, boys"--so ran the tenor of the thing--"you can have your way now. Go right ahead and make all the changes you want to. But you'll have to take full responsibility if you make the relief vote mad. For myself, I shall offer no suggestions."

And this new suggestion--

There is certainly something to be said for its immediate recommendation. One of the great troubles with relief all along is that measures for dealing with it have been improvised on short notice, without any adequate study of what was necessary or desirable. And it can be argued that new improvisations now might not help things.

But also--could the President be saying something like this?

"Better take it a little slow, boys. Yes, it's true that I have a stake in that 1940 election, but so have you. All you members of the House and one-third of you men up there in the Senate are coming up for re-election that year, too, remember. And if it is true that relief is a good political machine for the New Deal, it is also true that it is a pretty good one for a lot of you. And if you should make the reliefers mad in 1939-40--whew! Yes, that's quite all right. If after you've looked into the matter carefully, you can think of some changes that wouldn't make you unhappy, I won't mind. If you can take the risk, so can I and my house!"

Wholly Acceptable

When the Associated Press reports that "the Senate immediately made it clear" that it will confirm Felix Frankfurter for the Supreme Court, it only stated what was already a foregone conclusion. There is no reasonable ground on which his confirmation might be opposed. Theodore Roosevelt, indeed, once called him a "red," but that was the same Theodore who also once called Thomas Paine, the father of the American Revolution, "a filthy little atheist," though Paine was never in his life either filthy, little, or an atheist--the Theodore who, like another Roosevelt, was apt to lose his temper and his tolerance when crossed. The crackpot Dies Committee has also "found" that Frankfurter is a member of "radical" organizations, but that committee has alleged the same thing against practically everybody who stands left of John W. Davis and Herbert Hoover.

The only rational charges that can be made against Frankfurter are that he is a liberal and a loose-constructionist of the Constitution. But the loose construction theory is nearly as old as the Constitution itself, and was invented by the great arch-conservative, Chief Justice John Marshall himself! Nobody is bound, certainly, to agree with either Frankfurter or Marshall; nobody is bound to agree with anything that Felix Frankfurter thinks. Ourselves we question some of the things he is alleged to think. But it would be a fatal precedent to make opinion a ground for barring him from the court. And for even those who hate everything he stands for there is this very great consolation: the man is admittedly not only vastly learned and brilliant, but of the highest integrity--a worthy successor to the tradition of Brandeis and Cardozo.

A Very Busy Ship

The question of Uncle Dan Roper's career as a seagoing man is a good deal older than Tuesday's report by the acting controller general. As long ago as May, 1936, Representative Bacon, from the Long Island country, was complaining in the House and in the public press about the strange voyaging of the Eala, flagship of the inspection fleet of the Commerce Department, as set down in the log of that good ship. They included, said Mr. Bacon, trips for a "Mr. Fred Roper (being Uncle Dan's son) and five guests," and for "Lieutenant Roper (being Uncle Dan's son) and family" and "Miss Wren (of Uncle Dan's secretarial staff) and guests" out to see the Chesapeake fishing grounds. And what, Mr. Bacon wanted to know, did that have to do with "inspection," save in the most untechnical sense?

More yet, said Mr. Bacon, the law showed that the Commerce Department had found it imperatively necessary to send the Eala, and for a part of the time also the All Alone, steaming south to Miami, that mighty haven of ships, for inspection service, just at the time when strangely enough Mr. Fred Roper and his guests were there assembled. But that the most assiduous search of its log failed to reveal that it ever managed to get around to doing any inspection business.

And more still, said Mr. Bacon grimly, it was just before the Eala was sent down to Miami under all main sail to attend to the pressing business there--it was just before that the Morro Castle burned and the Mohawk went down. And just at the time when the Commerce Department was explaining those disasters by saying it hadn't ships or men enough for adequate inspection! What, demanded Mr. Bacon, did President Roosevelt mean to do about that?

The answer seems plain enough from the report of the controller general yesterday. He didn't mean to do anything. At least, there is no evidence that anything was ever done. A great many things have been done in Washington since that time, too. For one thing the Administration got greatly worked up about some people who weren't paying income taxes the law didn't require them to pay, sent sleuths to pry into their returns and their papers, and pilloried them in the prints as "morally dishonest." For another thing, a man named Minton was sicked on some newspaper publishers who were alleged to have been "morally dishonest" in opposing New Deal measures.

But yesterday the controller general alleged not only what Mr. Bacon had alleged in 1936--that a member of the Cabinet and his family had been making unauthorized use of government property--but also such things as "Poland water, flowers, cigars, and cigarettes" had been charged up as "paint, provisions, and supplies!" And that in a single six months' period $9,506.72 out of total expenditures of $19,773.36, by the inspection "navy," "was not authorized under the appropriation provided by inspection services!"

Take the case, ladies and gentlemen.


Note--Since this was written, Mr. Harry Hopkins has come out with a defense of Uncle Dan in which he alleges (1) that Uncle Dan was only doing what his Republican predecessors had all done, in using the ships; (2) that he improved on them by ordering everybody to pay for all entertainment while on the ships, and (3) that the controller general has deliberately misrepresented the record to make Republican capital. As to claims 2 and 3 we can't say, though we can say that if the controller general is using his office to distort facts for partisan purposes, he ought to be fired out of hand. But as to the first--we thought it was universally agreed among all Administration supporters that the three Republican Administrations which preceded it were the most horrid examples of "moral dishonesty" the Republic has seen--the last example in the world to follow.


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