Wood, Dr. Thomas J.

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University of Miami School of Law

University of Miami Law Review Volume 6 Number 3 Article 20 4-1-1952 DUE PROCESS OF LAW 1932-1949: THE SUPREME COURT'S USE OF A CONSTITUTIONAL TOOL. By Virginia Wood. Baton Rouge: Louisiana State University Press, 1951. Dr. Thomas J. Wood Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Dr. Thomas J. Wood, DUE PROCESS OF LAW 1932-1949: THE SUPREME COURT'S USE OF A CONSTITUTIONAL TOOL. By Virginia Wood. Baton Rouge: Louisiana State University Press, 1951., 6 U. Miami L. Rev. 517 (1952) Available at: https://repository.law.miami.edu/umlr/vol6/iss3/20 This Book Review is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. BOOK REVIEWStime has been spent by Cooper in the preparation and assembling of thesematerials, as evidenced by several hundred cases advantageously used toemphasize his opinions. The author has used clear and concise language.He has approached the subject matter from a very practical point of view.In my opinion Mr. Cooper's book would serve a useful purpose in thelibrary of the student, the practitioner and the theorist.G. Huco \VEIDHAAS ATTORNEY AT LAwMEMBER OF THE FLORIDA BARDUE PROCESS OF LAw 1932-1949: THE SUPREME COURT'S USE OF A CONSTI-TUTIONAL TOOL. By Virginia Wood. Baton Rouge: Louisiana StateUniversity Press, 1951. Pp. ix, 436. $6.00.This is a valuable study of the work of the Court in an era in which asubstantial percentage of its work has been concentrated during the pasttwo decades and in which there are fewer than usual signposts in the Con-titution to guide the justices in their deliberations. The principal purposeof Professor Wood in her analysis of the Court's interpretation of thedue process clause is to demonstrate that the "Constitutional Revolution"of 1937 was already well under way five years earlier insofar as this part ofthe Constitution was concerned. Emplo)ing the categories of the freedomsof the First Amendment, socio-economie legislation, criminal proceedings,administrative actions and the tax power, she finds that in each of theseareas the Court had laid down the precedents which enabled it in 1937 andthereafter to build a new structure of values for due process.While it has been generally recognized that the pre-Roosevelt Courtconsiderably extended the scope of the due process clause to the freedomsof the first amendments and the rights of the accused in criminal proceed-ings, this reviewer for one had not fully realized that in the other areas-socio-economie legislation and administrative action (the dividing line herebeing most tenuous)-the great majority of decisions favored the states inthe first four or five years of the period under consideration. Starting withJustice Sutherland's statement in Stephenson v. Binford (1931) that theCourt would not overrule the legislative judgment as to the necessity of agiven economic policy, Professor Wood builds up a line of decisions inwhich the Court displayed willingness to permit a greater degree of economicexperimentation by the states. She states that after 1932 "generally speaking,a majority of the justices . . . had held that our constitutional system doesnot require judicial protection of the free enterprise, laissez-faire system."There are, it is true, few exceptions to this statement but the patternthey seem to form is interesting and has not been noted by Professor Wood,although she has written that they are some of the most momentousdecisions of the 1930's. The exceptions as listed by the author are Carter v.MIAMI LAW QUARTERLYCarter Cod Co., Louisville Joint Stock Land Bank v. Radford, RailroadRetirement Board Y. Alton R.R., and Morehead v. Tipaldo (a fifth muchless important case is Thompson v. Consolidated Utilities Corp.). It isworth noting that the first three of the important four involve federal legis-lation and that the subject matter in the Carter, Tipaldo and Alton casesis the employer-employee relationship. In her list of decisions favorable tothe legislatures prior to 1937 Professor Wood has none applying to theemployer-employee relationship and only one involving a federal law. Thereis some indication, therefore, that the justices, while permitting the legisla-tires to regulate more aspects of business, such as minimum prices, werestill reluctant to allow substantial alteration of the existing relationshipbetween employer and employee or to permit the federal government towiden its sphere of economic regulation. The employer-employee relation-ship represented the last citadel of laissez-faire which the Supreme Courtalmost perished in defendingThe other purpose-that of showing that the present Court is as lackingin definite standards and is as capricious as the pre-1932 Court in its useof the due process clause-is a more familiar one but the author has accom-plished it quite skillfully, especially in the area of criminal proceedings.She has collected a number of beautifully impressive clauses by which theCourt has sought to explain what the Constitution guarantees to the indi-vidual in a criminal proceeding in a state court. Due process is said to be"the consensus of society's opinion," to comprise "fundamental notions offairness and justice embedded in the feelings of the American people," to bea "compendious expression of all the rights which are basic to a free society,"and to require procedures compatible with "the immutable principles ofjustice which inhere in the idea of a free government." In such circum-stances the author says the Court may select "its rule from among anumber of alternatives, all equally vague and general. It applies the ruleto the indefinite phrase 'due process of law' and the result can be protectionor no protection without contradictions."But this is not a new position for the Court, which has always tried toprotect through the use of this clause that which it felt to be reasonableand fair. The post-1932 justices simply have had different standards-standards which permit substantial economic regulation, broad use of statetaxing power, a freer hand for state administrative agencies and moreprotection for the individual's political and civil liberties.As is frequently and perhaps inevitably the case in studies of the Courtwe are told only what the Court did; the more important question of whythe Court did it is for the most part left unanswered. Professor Wood hadbriefly referred to the economic pressures of the depression and to thepolitical pressures of 1937. She has made a very cursory examination of thephilosophies of three-Black, Douglas and Frankfurter-of the twenty-onejustices who sat on the Court during this period. But she has not found itBOOK REVIEWSpossible within the scope of this book to analyze deeply the reasons for thechanging use of the due process tool. A partial explanation lies in the factthat the legislatures and the justices saw eye to eye on most matters duringthese years. Equally important is the conviction on the part of most of thejustices that the Court in these areas should not try to substitute itsjudgment for that of the legislature. As the pressure of international tensionsdrives legislatures to more incursions on the freedoms of the first amend-ment the Supreme Court will perhaps be forced to reveal which of theseexplanations is sounder. Decisions of the last few years apparently indicatethat the majority of the Court, though doubtful of the wisdom of certainideas, will find nothing in the Constitution to prevent their enactment.Two small omissions slightly impair the usefulness of this book. Theabsence of an introductory chapter summarizing the development of dueprocess in the field of economic legislation prior to 1932 handicaps thenon-specialist who is unacquainted with the judicial history of the previoushalf-century. This is only partially overcome by occasional references toseveral of the leading cases of the past. The other deficiency is the lackof a table showing the number of cases decided in each category in eachyear and whether the decision was favorable to the governmental action.Certainly the quantitative approach has its limitations but here it wouldbe a justifiable supplenent to the qualitative analysis. This reviewer foundhimself much more convinced of the early tendency toward change in theeconomic field after constructing one for himself.DR. THOMAS J. WOOD AssoCiATE PROFESSOR Or COVENMNTUmVrrrT oF MIAMFREE ENTERPRISE AND T=E ADMINISTRATIVE STATE. By Marshall E. Dimock.University, Alabama: University of Alabama Press, 1951. Pp. 179. $2.50.The author, a teacher of political science in several of the outstandinguniversities of this country and Puerto Rico, who is also a writer of manyworth-while books on business, government, administrative agencies andpolitical enterprises, approaches the subject with a wealth of personallygained knowledge, experience and study.He approaches the subject by first establishing his interpretation of"Free Enterprise" as the system in which the predominant characteristicsare individual ownership, competition, and managerial freedom, and the"Administrative State" as the control of economy by government or bypublic administration.The book deals with a series of related problems and is divided intofive "essays" (as the author chooses to designate them) or chapters: thefree enterprise system, what it is and what causes it to change; the problemsof monopoly and antitrust laws, with the conclusion that administrativefactors will be the center of any lasting solution; consideration of the

DUE PROCESS OF LAW 1932-1949: THE SUPREME COURT\u27S USE OF A CONSTITUTIONAL TOOL. By Virginia Wood. Baton Rouge: Louisiana State University Press, 1951.

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DUE PROCESS OF LAW 1932-1949: THE SUPREME COURT\u27S USE OF A CONSTITUTIONAL TOOL. By Virginia Wood. Baton Rouge: Louisiana State University Press, 1951.

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