MAJOR CONSTITUTIONAL ISSUES IN 1920–1921 A NY division of constitutional issues into major and minor is necessarily somewhat arbitrary. This review of selected decisions of the United States Supreme Court handed down at the last term of court aims to include all those which add substantially to our previous knowledge of what the Constitution is construed to forbid or to permit. Each year some distinctly novel issues are submitted for adjudication. Each year certain decisions or certain opinions restrict or extend principles previously laid down. Each year a few soft spots in the law are made a little harder by the tamping of new applications of old principles. Now and then old doctrines are modified or definitely abandoned. The Constitution actually grows year by year. The record of this growth for the past year is set in the same pattern as that used for the record of the previous year. The law of the federal system is separated as distinctly as feasible from the law of individual liberty. I. THE STATES AND THE NATION A. The Scope of National Authority Exercises of the war power came before the court in a number of cases. A group of decisions held that the Lever Act regulating the prices of necessaries was void for indefiniteness. The question whether proper price-fixing is within the war power was not even raised. Technically, therefore, the issue is still open, yet the absence of any suggestion by counsel or court that Congress is without authority to regulate prices in time of war suggests a significant lack of faith in any such contention. "The Supreme Court and the Constitution, 1919-1920", POLITICAL SCIENCE QUARTERLY, vol. 35, pp. 411–439. 'The two cases in which the constitutional issue is considered are United States v. L. Cohen Grocery Co. (1921) 255 U. S., 41 Sup. Ct. 298, and Weeds Inc. v. United States (1921) 255 U. S. —, 41 Sup. Ct. 306. I Objections to the Trading with the Enemy Act and its provisions for seizing enemy-owned property were confined to the procedure for determining disputes as to ownership. In holding the objections unfounded the court indicated clearly that the statute is within the war power. There can be no doubt", declared Mr. Justice Holmes, "that Congress has power to provide for an immediate seizure in war times of property supposed to belong to the enemy, as it could provide for an attachment or distraint, if adequate provision is made for a return in case of mistake." "The statute," said Mr. Justice Van Devanter, "is strictly a war measure, and finds its sanction in the constitutional provision (article 1, section 8, clause 11) empowering Congress 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water'." The power to seize is not confined to property actually belonging to the enemy. It includes property suspected of enemy-ownership, provided there is adequate procedure for correcting mistakes. Neither case involved any question as to the ultimate disposition of the proceeds of property duly adjudicated to belong to an enemy. That the "rules concerning captures" may include ultimate confiscation as well as seizure and sale is, however, clear enough from one of the cases cited by Mr. Justice Van Devanter. The power of Congress to limit the time in which proposed. amendments to the Constitution must be ratified by the states was sanctioned in Dillon v. Gloss. The opinion of the court went further than necessary and affirmed that, even in the absence of any time limit specifically set by Congress, an amendment proposed to the states for ratification would die a natural death if not ratified within a reasonable time. Proposal and ratification were said to be contemplated by the Constitution as "succeeding steps in a single endeavor" and therefore steps that must be reasonably near each other in time. Amendments are to be proposed only when deemed necessary by Congress, from which it follows that proposed amendments are to be 1 Central Trust Co. v. Garvan (1921), 254 U. S. 554, 41 Sup. Ct. 214; Stoehr v. Garvan (1921) 255 U. S. —, 41 Sup. Ct. 293. "considered and disposed of presently." So too the requirement of ratification by three-fourths of the states looks to an expression of "the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do." These various implications are as much a part of the Constitution as if clearly expressed therein. Thus the decision, instead of confining itself to the point that the power to propose amendments includes the power to limit the period for ratification, goes so far as to deny to Congress the power to extend the period of ratification beyond a reasonable time. This seems to violate the canon of constitutional construction to the effect that the court will not pass upon constitutional questions unless they are clearly presented and must be answered in order to dispose of the controversy in hand. Such action can be regarded as justified only if the restriction imposed by Congress on the ratification of the Eighteenth Amendment could be supported on no narrower ground. Yet obviously it would require less judicial invention to assume that the power to propose includes the power to limit the interval for ratification than to discover that the Constitution itself sets such a limit. In the case at bar it was affirmed that the power to make the limit a definite one is "a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification." The seven-year limit set for the ratification of the Eighteenth Amendment was said to be reasonable, by which is evidently meant reasonably long. This is supported by reference to the fact that the first seventeen amendments were all ratified within four years and some within a single year after their proposal. No hint is given as to the span of life which a proposal of amendment might enjoy if not specifically restricted by Congress, though a reference is made to an attempt by Ohio toresuscitate one proposal eighteen years after its partial ratification and to the division of opinion expressed as to whether such revival was possible. The Eighteenth Amendment came in indirectly for consideration in another case. In Street v. Lincoln Safe Deposit Co.,' 1 1 (1920) 254 U. S. 88, 41 Sup. Ct. 31. eight members of the court thought that the Volstead Act did not mean to forbid the deposit in a public warehouse of liquor acquired by its owner prior to the Eighteenth Amendment and designed by him solely for consumption in his home by himself and guests. In concurring in the result of the decision Mr. Justice McReynolds expressed his belief that the statute prohibited such possession but insisted that the Eighteenth Amendment gave no such power to Congress, “since manufacture, sale and transportation are the things prohibited", and "not personal use." Even under this interpretation it would seem that Mr. Street would have to have his indulgence and his parties in his vault in the warehouse, unless Mr. Justice McReynolds should insist that transportation from the warehouse to his home was not transportation. How far his brethren agreed with him as to the meaning of the Amendment is not disclosed. Since the majority in the National Prohibition Cases held that the power conferred by the second section of the Amendment justifies a ban on the manufacture of liquor conceded by the pleadings to be non-intoxicating, it is unlikely that they would follow Mr. Justice McReynolds in clinging so close to the letter of the first section. 2 The important question whether Congress may regulate the nomination of United States senators was considered in Newberry v. United States and disposed of in a way to declare unconstitutional the particular statute under which Senator Newberry was convicted but to leave us in doubt as to what Congress may now do. The federal statute limiting expenditures to secure nominations for senator was passed before the Seventeenth Amendment substituted election by the people for elec Rhode Island v. Palmer (1920) 253 U. S. 350, 40 Sup. Ct. 486, POLITICAL SCIENCE QUARTERLY, vol. 35, p. 416. In a dissent to this case filed subsequent to the announcement of the decision and therefore not noted in last year's review of decisions, Mr. Justice Clarke put himself on record as agreeing with Mr. Justice McKenna that the "concurrent power" of Congress to enforce the prohibitions of the first section of the Eighteenth Amendment could not be exercised independently of the states. He objected also to congressional prohibition of liquor conceded to be non-intoxicating and insisted that "the scope of the first section cannot constituLionally be enlarged by the language contained in the second section." |