Pritchett, C. Herman

English

University of Chicago Law School: Chicago Unbound

BOOK REVIEWSenriched with the old Chinese proverb that the first result of any war is that theadversaries exchange vices, and reminded of the man who wanted to unite Heaven andHell by combining the best features of each. To the suggestion that all this intellectualactivity is perhaps unnecessary since some men attain bliss through ignorance, "wereply that success in a lottery is no argument for lotteries." And we are reminded ofHegel, while the Battle of Jena was raging on his doorstep, writing his Pzenomenologywhich "for good or evil will last for many years." We are told that "after all, the usefulhas no intrinsic value." And in an essay written in i919 on philosophy in wartime:"And when people begin to admonish me that if everyone did as I did, etc., I answerthat humanity would probably perish from the cold if everyone produced food, andwould certainly starve if everyone made clothes or built houses."Finally, in one of the concluding essays there is an admonition that has perhapsspecial relevance today for those in law and in the social sciences: "He who wishesto preach to those in the market place must see more than the market place."HARRY KALvEN, JR.*The Constitution and What It Means Today. (8th ed.) By Edward S. Corwin. Prince-ton: Princeton University Press, x946. Pp. 263. $2.50.This is the eighth edition of a book which, first published in 192o, has long beenaccepted as one of the most useful commentaries on the American Constitution. Thelast previous edition appeared in 1941. The intervening period has been overwhelming-ly preoccupied with the fact of war. And since, as Corwin says, in wartime "interpreta-tion of the Constitution falls much more largely to the political branches of the govern-ment than to the judiciary," considerable attention is given in this new edition "toexecutive and legislative acts illustrative of the war power and suggestive of its effectboth on private rights and constitutional structure."Professor Corwin is not disposed to be too critical of wartime infringement of nor-mal constitutional standards. As he says, "Total War is itself a highly justifying, not tosay compulsive circumstance, in the presence of which judicial review is apt to beproperly self-distrustful, and hence ineffective." And so he apparently hesitates tocriticize the Supreme Court for failing to declare illegal the army's evacuation ofJapanese residents from the West Coast, though he expresses his own skepticism as tothe necessity for such measures. He believes that the destroyer deal with Englandviolated several statutes, but was sanctioned by public opinion and later congressionalaction. He disapproves of President Roosevelt's threat on Labor Day, 1942, to disregardcertain statutory provisions unless Congress repealed them by the following October i,but adds that "any candid person must admit the possibility of conditions arising inwhich the safety of the republic would require the waiving of constitutional forms."He expresses no opinion on the use of presidential seizure powers in the MontgomeryWard case,' though referring to Judge Sullivan's "informative" opinion; 2 the reversalof this decision by the circuit court came too recently to be noted in this book.* Assistant Professor of Law, University of Chicago.' United States v. Montgomery Ward & Co., i5o F. 2d 369 (C.C.A. 7th, 1945).2 United States v. Montgomery Ward & Co., 58 F. Supp. 4o8 (Inl., 1945), reversed onappeal; see note i supra.THE UNIVERSITY OF CHICAGO LAW REVIEWApart from problems relating to the war power, major interest in the volume maywell center on three fields singled out for special comment by Professor Corwin in hispreface. The first is that of judicial decisions pertaining to labor. In the 194i edition ofthis book Corwin wrote: "Constitutional law has always a central interest to guard.Today it appears to be that of organized labor." The period from 1941 to 1946 has seenthis interest further developed-in some respects too far, Corwin infers. The extensionof freedom of speech to cover picketing, and the "substantial repeal" of the ShermanAct as applied to labor reveal the Court as adopting the role of "a sort of superlegisla-ture in the field of labor activities." Corwin sees this trend reaching a climax in therecent decision in Hunt v. Crumboch,3 where the Court held that the Sherman Act wasnot violated by the refusal of a labor organization to admit to membership the employeesof an interstate trucking company, though the actual and intended effect was to forcethe company out of business. Corwin aligns himself with Jackson's biting dissent in thiscase, a dissent in which the late Chief Justice and Justice Frankfurter joined. Corwinconsiders, however, that the claim of these two latter justices "on one's sympathy isnot great," considering that they helped initiate the present trend by authoring theApex4 and Hutchesons cases, respectively.Corwin is equally critical of the Court's tendencies in a second field of considerableinterest-the freedom of religion cases arising chiefly out of the fanatic zeal of Je-hovah's Witnesses. The decisions in several of these cases Corwin regards as obviousdepartures from "common sense and common law." He refers to the "erratic" recordof the Court in its quick reversal of the Gobitis6 and Opelika7 decisions. He believes thatthe Supreme Court has not thought these new aspects of the religious freedom issuethrough, and speculates that perhaps the Court's curious disposition of the Ballard'case, involving prosecution of the head of the "I Am" cult for mail fraud, was a "stall"to permit the Court "to set its thinking on the general problem of religious liberty inbetter order, something very much needed." As for himself, Corwin is quite clear that"the right of people to resort to their own places of worship and listen to their chosenteachers" does not stand on "a constitutional level with the right of religious en-thusiasts to solicit funds and peddle their doctrinal wares in the streets, to ring door-bells and disturb householders, and to accost passersby and insult them in their re-ligious beliefs."In a third field of recent activity, involving decisions where the Court has defended"the principles of fair trial, fair play, and equality before the law in behalf especially ofpersons of color," Corwin is in the happier position of having little but praise for theCourt. He singles out the extremely important Screws civil rights case and the Steele-'3 325 U.S. 821 (1945).4 Apex Hosiery Co. v. Leader, 3i0 U.S. 469 (i94o).s United States v. Hutcheson, 312 U.S. 219 (i941).6Minersville School District v. Gobitis, 3io U.S. 586 (i94o).7 Jones v. Opelika, 316 U.S. 584 (1942), reversed on rehearing, 3 i U.S. 103 (1943).' United States v. Ballard, 322 U.S. 78 (i944).' Screws v. United States, 325 U.S. 91 (i945).10 Steele v. Louisville & Nashville R. Co., 323 U.S. 192 (1944).BOOK REVIEWScase invalidating a collective bargaining agreement against Negro firemen as decisionsin which "the Court appears in its best light and its great powers find their realvindication in terms of democratic ideals."Naturally, not every student of the Constitution will agree with all of ProfessorCorwin's appraisals or conclusions. His judgment that the Supreme Court's 1937 polltax decision "logically settles" the validity of that tax overlooks some important ques-tions. President Roosevelt's conclusion that the legislative purge of Messrs. Lovett,Watson, and Dodd from the federal payroll by an appropriation act rider constituted a"bill of attainder," Corwin regards as of "doubtful propriety"; but the U.S. Court ofClaims has already upheld Mr. Roosevelt and overruled Mr. Corwin on this point.Nor will the author find unanimity for his belief that Congress "obviously" has au-thority to recover power delegated to the President, by means of a concurrent resolu-tion taking effect without the President's signature. And one may wonder what purposeis served by the footnote reference to Justice Byrnes as one "who at the moment occu-pied a seat on the Court." Surely the action of Byrnes in resigning from the Court afterone year to take on almost the heaviest wartime responsibilities assumed by anycivilian merits no such derogatory reference.The book is, of course, practically irreproachable in its accuracy on matters of fact.However, the Securities and Exchange Commission was not created by the SecuritiesAct of 1933, but by the Securities Exchange Act of 1934. The "Hot Oil" cases" weredecided in 1935, not 1934. The date of the Darby- decision is given in one reference as1937 instead of 1941. A check of the list of cases reveals that it is not infallible.This reviewer has concentrated upon the more controversial aspects of the bookbecause of their greater contemporary interest, and because most readers are familiarwith the earlier editions. To redress any unintended distortion resulting from this em-phasis, the reviewer wishes to state clearly that this work offers probably the most fair-minded, understandable, and generally useful discussion of the Constitution available.Corwin understands the basic role of the Supreme Court in constitutional interpreta-tion, and if he finds it necessary to criticize tendencies of the present Court, he does itcalmly and urbanely, without loss of historical perspective. When the Court makes astupid decision, as in the second Williams v. North Carolina'3 divorce case, Corwinmerely notes that the Court can hardly "make much permanent headway" in thatdirection. And while he disagrees with the present pro labor emphasis on the Court, hecan explain it by comparing "these decisions with those in which a generation ago theCourt thrust forward the 'due process' clause as a shield and buckler of the right ofemployers to the unrestricted use of their economic superiority in bargaining withlabor, for thus is illustrated the political quality, in a broad sense, with which much ofconstitutional law has always been infused and probably will always be."C. HEm PmcE=*"Panama Refining Co. v. Ryan, 293 U.S. 388 (I935)."2United States v. Darby, 312 U.S. zoo (1941).'3325 U.S. 226 (T945).*The University of Chicago.

Review of \u3ci\u3eThe Constitution and What It Means Today\u3c/i\u3e by Edward S. Corwin

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Review of \u3ci\u3eThe Constitution and What It Means Today\u3c/i\u3e by Edward S. Corwin

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