tial for injustice. * * * Working men everywhere have felt the iron hand of the courts." It is that conviction in the mind of Mr. Gompers which made him hail the Clayton Act as "labor's Magna Charta," and which in the August, 1914, issue of the American Federationist caused him to say in an editorial: "The workers have asked legislation to prevent this abuse of the writ of injunction and usurpation of power by judges. Their demands are contained in the Clayton anti-trust bill now pending in the Senate. That bill as passed by the House is the fulfillment of party platform pledges made in 1912." But Labor was doomed to great disappointment of its high hopes in the Clayton Act. In 1920 the Supreme Court considered the provisions of that law in what is known as the Duplex Printing Press Case. The Duplex Printing Press Company manufactures printing presses at Battle Creek, Michigan. It sells and installs these presses all over the United States. It had several customers in New York City. It had incurred the enmity of organized labor by refusing to operate a "closed shop." A strike had procured the withdrawal of eleven only of its 200 employees and proved unsuccessful. The plant was running under "open shop" conditions. Organized labor then attempted to compel obedience to its demands in what it deemed the "normal and legitimate" way. The Supreme Court in its opinion states the pertinent acts of organized workers in that attempt in the following language: "The acts complained of made up the details of an elaborate programme adopted and carried out by defendants and their organizations in and about the city of New York as part of a country-wide programme adopted by the International Association, for the purpose of enforcing a boycott of complainant's product. The acts embraced the following with others: Warning customers that it would be better for them not to purchase, or, having purchased, not to install, presses made by complainant, and threatening them with loss should they do so; threatening customers with sympathetic strikes in other trades; notifying a trucking company, usually employed by customers to haul the presses, not to do so, and threatening it with trouble if it should; inciting employees of the trucking company, and other men employed by customers of complainant, to strike against their respective employers in order to interfere with the hauling and installation of presses, and thus bring pressure to bear upon the customers; notifying repair shops not to do repair work on Duplex presses; coercing union men, by threatening them with loss of union cards and with being blacklisted as "scabs" if they assisted in installing the presses; threatening an exposition company with a strike if it permitted complainant's presses to be exhibited; and resorting to a variety of other modes of preventing the sale of presses of complainant's manufacture in or about New York City, and delivery of them in interstate commerce, such as injuring and threatening to injure complainant's customers and prospective customers, and persons concerned in hauling, handling, or installing the presses. In some cases the threats were undisguised; in other cases polite in form, but none the less sinister in purpose and effect." In brief the Supreme Court states the application of the Clayton Act to the facts in the case in the following language: "But there is nothing in the section (of the Clayton Act) to exempt such an organization or its members from accountability where it or they depart from its normal and legitimate objects and engage in an actual combination or conspiracy in restraint of trade. And by no fair or permissible construction can it be taken as authorizing any activity otherwise unlawful, or enabling a normally lawful organization to become a cloak for an illegal combination or conspiracy in restraint of trade as defined by the anti-trust laws." The Supreme Court then declares that the business of manufacturing presses and selling them in commerce is a property right and entitled to protection against unlawful interference and that "unrestrained access to the channels. of interstate commerce is necessary to the successful conduct of the business." (Justices Brandies, Holmes and Clark dissented, making this a six to three decision).1 Organized labor as usual seems to take direct issue with the Court's interpretation of the law. At least Mr. Gompers' first editorial in the February, 1921, American Federationist bitterly attacks the decision. The Caption of the editorial is 'Rights Judicially Purloined." In the body of the editorial are the following significant statements: "The Supreme Court in rendering its decision in the case of the Duplex Printing Press Co. versus the International Association of Machinists has joined the weight of its authority and power with the anti-union shop movement, the movement to undermine and destroy the only organizations which the working people have for their pro tection. "It will be noticed that the court has said that the machinists have gone beyond the normal and natural functions of a labor union, but has said nothing as to what are those normal and natural functions, or rights. We can not admit that the court has a right to define those rights, but we must contend that in the absence of such a definition it had no right to lay judgment against the union for the exercise of rights not theretofore denied. (Italics mine.) "The labor movement itself long ago made clear to the world its aims and purposes and stated what were its rights; this statement of rights being based entirely upon Duplex Printing Press Co. v. Deering, 254 U. S. 443. the American constitution, back of which are the great victories for liberty gained for civilization in the struggle against the oppression of thrones and barons. "The purpose of the Clayton Act was to make impossible a continuance of the curtailment of liberties by a reactionary court. By power that it has usurped the court has taken the meaning out of an act of the Congress, and in that process it has gone so far as to abrogate provisions intended purposely to limit the scope of the court's action in the curtailment of human freedom." The Danbury Hatters' case and the Duplex Printing Press case are typical of numerous other cases. The quotations from Mr. Gompers' editorials are typical. The literature of organized labor is replete with such sentiment. The difference between organized labor and the Supreme Court is clearly demonstrated. Organized labor contends that the methods used by it in these two cases are "normal" and "legitimate." The Supreme Court holds that such methods are not "normal" or "legitimate" but are unlawful. Organized labor refuses to "admit" that the Supreme Court had any authority "to define those. (labor's) rights." On the contrary it makes the naive assertion that labor itself has "stated what were its rights." The Supreme Court holds that it has authority to define the rights of organized labor under the law in the same way it may define the rights of other organizations or individuals. Organized labor claims the right to be the judge of its own case. It proclaims any interference with its claimed right to judge its own case, as "judicial usurpation." The difference is irreconcilable. It is apparent that these two cases are of vital concern to organized labor. If the Supreme Court had sustained the right of boycott in the Danbury Hatters' case, labor's power over industry would have been practically irresistable. By such methods it could have brought any employer of labor to terms. It could have irretrivably injured any business man who dared oppose its program. It could have compelled every working man to join a union, pay dues and submit to its discipline or suffer substantial banishment from industry. In the Duplex Printing Press case, if the Supreme Court had interpreted the law as absolving labor unions from all liability under the anti-trust statutes, then the effect of the decision in the Danbury Hatters' case would have been avoided and organized labor could have focussed its entire economic strength upon each independent employer or workman in turn to compel obedience to its fiat. Admitting as we must labor's sincerity of purpose in its own program, we must also admit that labor is consistent in its criticism of the courts. Organized labor had given its ultimatum in the language of Mr. Gompers' editorial written in August, 1916, con cerning a similar decision of the Supreme Court of Massachusetts. "The organized labor movement will see to it that the judges either learn their lesson or that they are removed from places so potential for injustice; that the people through their legislatures will restore to the workers the masses of the people-the rights and freedom of which the Massachusetts court has undertaken to rob them." It had also expressed itself in the resolution unanimously adopted by the 1919 Convention of the American Federation of Labor part of which is: "The power of our Courts to declare legislation enacted unconstitutional and void is a most flagrant usurpation of power and authority by our courts and is a repudiation and denial of the principle of self-government recognized now as a world doctrine. The continued exercise of this unwarranted power is a blasphemy on the rights and claims of free men of America. "The fate of the sovereignty of American people again hangs in the balance. It is inconceivable that such an autocratic, despotic and tyrannical power can long remain in a democracy. One or the other must ultimately give way, and your committee believes that this convention should declare that, as wage-earners, citizens of a free and democratic republic, we shall stand firmly and conscientiously on our rights as free men and treat all injunctive decrees that invade our personal liberties as unwarranted in fact, unjustified in law and illegal as being in violation of our constitutional safeguards, and accept whatever consequences may follow." In the Duplex Printing Press case the Supreme Court had shown it was giving no heed to these warnings. The Coronado case decided by the Supreme Court late in 1922 is another case in which organized labor takes sharp issue with the courts. This was a case in which during a coal miners' strike battles were fought, lives were lost, business suspended, and much property destroyed by fire and explosives. One of the chief questions involved was whether the union as such was liable in damages for the unlawful acts of its members in a strike called, conducted and financed by the union. On this point the Court after reciting several ways in which the union organization, the union funds, the union label, etc., were protected by the law of the land said: "It would be unfortunate if an organization with as great power as this International Union has in the raising of large funds and in directing the conduct of 400,000 members in carrying on, in a wide territory, industrial controversies, and strikes out of which so much unlawful injury to private rights is possible, could assemble its assets to be used therein free from liability for injuries by torts committed in course of such strikes. To remand persons injured to a suit against each of the 400,000 mem bers, to recover damages and to levy on his share of the oughly analyzes and very bitterly denounces the so-called strike fund, would be to leave them remediless."2 Commenting on this case Mr. Gompers in his editorial in the July, 1922, Federationist under the headline: "Freedom's Legalistic Octopus," says in part: "The Supreme Court of the United States has decided that voluntary organizations of workers, organized not for profit, and issuing or owning no stock, may be sued as organizations and their treasuries levied upon for damages occurring during strikes. "The Supreme Court can not crush this movement without endangering the foundations of society. The workers will not accept slavery, therefore they will not accept that which makes slavery either likely or possible. They will find a way to preserve those liberties which they have and to gain more as time passes. "As these lines are written the decision is fresh in the public mind. There is still amazement at the enormity of the thing. There is still wonderment that the Supreme Court should have followed such a course of stupendous error and retrogression. The convention of the American Federation of Labor is beginning its annual sessions. It is there that the voice of labor will be raised in answer to this assault upon our existence and upon our usefulness to society." Political Leadership Senator La Follette seems to be the recognized champion of the movement to limit the power of the courts. He was one of the principal speakers at the Convention of the American Federation of Labor held in Cincinnati in July, 1922. He made a strong address and seems even to "out Herod Herod" in his program for the placing of the legislative above the judicial department of government. The address is long and I can quote from it only in a very brief way. Among other things he said: "By a process of gradual encroachments, uncertain and timid at first, but now confident and aggressive, sovereignty has been wrested from the people and usurped by the courts. "Today the actual ruler of the American people is the Supreme Court of the United States. "The law is what they say it is and not what the people through Congress enact. Aye, even the Constitution of the United States is not what its plain terms declare, but what these nine men construe it to be." This seems to be Senator La Follette's general approval of the views of labor with regard to the Danbury Hatters', the Duplex Printing Press Company, the Coronado and numerous other decisions attacked by labor. But the Senator does not stop at that. He very thor 'United Mine Workers v. Coronado Coal Co., 259 U. S. 344. Child Labor Decisions. One cannot read his address, and no doubt one could not have heard it, without feeling that he is making the charge that the Supreme Court of the United States has joined the heartless exploiters of child labor and given its approval to the oppression of little children in mines and factories. The address in this regard is significant for what it omits rather than what it states. Can such a conclusion properly be deduced from the two so-called Anti-Child Labor Decisions of the Supreme Court? The first was rendered in a case brought under a law passed in 1916 which prohibited the transportation in interstate commerce of the products of mines or factories in which children of certain ages were employed. It would seem evident that Congress itself realized the fact that it could not under the Constitution regulate child labor within the states. It, therefore, attempted to do indirecly what it could not do directly. The Supreme Court decided by a five to four decision that the Act of 1916 (quoting from the syllabus) "attempting to regulate child labor in the states by prohibiting the transportation in interstate commerce of certain child made goods, is invalid, being an invasion of the powers of the states, whose inherent power to regulate their own local affairs has never been delegated to the general government." In other words, the court found, what is apparent in the language of the statute, that the exclusion from interstate commerce was for the purpose of compelling the states to enact such a child labor law as Congress would approve. (Justice Holmes, McKenna, Brandeis and Clark dissented).3 The second decision was rendered upon a later statute which imposed a tax of 10% on the net income of a person employing child labor. Ten per cent is a very heavy tax -two and a half times the normal federal income tax. This evidently was another and a very drastic attempt by Congress to regulate child labor within the states by indirection. In that case the Supreme Court by an eight to one decision held (quoting from the syllabus) "the child labor tax law which was designed to regulate child labor and not to collect revenue as is manifest from its provisions, cannot be sustained as a valid exercise of the taxing power." (Mr. Justice Clark alone dissented from this opinion).** Hammer v. Dagenhart, 247 U. S. 251. 'Bailey v. Drexel Furniture Co., 259 U. S. 20. Senator La Follette's bitter denunciation of the Supreme Court because of these decisions seems to me strangely unfair in view of the fact that every state in the Union has legislated upon the subject matter of the employment of children, forty-seven of the states fix the age limit of children employed and forty-six require school certificates before children may be employed, and the proponents of antichild labor statutes could have as free access to the state legislatures as to the Congress. But Senator La Follette does not stop with the Child Labor Decisions. He denounces the Supreme Court for its decision in the Abrams case and for sustaining the Act of Congress known as the "Espionage Act" passed for the protection of the government during the war. He says of that decision in his address to the Labor Convention: "To my mind this case, involving the fundamental right of freedom of speech, best illustrates the extreme length to which the court is prepared to go under the influence of its prejudices and passions." He then makes the following statements: to be no clear indication that it goes with the Senator in his sentiment as to the Espionage Law. Summary Three principal causes seem to be productive of the present campaign to discredit the courts and to limit their power. 1-The decisions which limit the power of organized labor to dominate the industry of the country by means of industrial warfare. 2-The alleged invasion of free speech and free press "We have never faced the fundamental issue of Judi- by such decisions as in the Abrams case. cial Usurpation squarely. "The time has now come to do so. It would require a dozen constitutional amendments to correct the evils of the decisions which the court has handed down within the past three or four years. "The time has come when we must put the axe to the root of this monstrous growth upon the body of our government. The usurped power of the Federal courts must be taken away and the Federal judges must be made responsive to the popular will." Pertinent facts in the Abrams case stated by the court follow: All of the five defendants were born in Russia. They were intelligent; had considerable schooling and at the time they were arrested they had lived in the United States terms varying from five to ten years but none of them had applied for naturalization. Four of them testified in their own behalf and of these, three frankly avowed that they were "rebels," "revolutionists," "anarchists;" that they did not believe in government in any form and they declared that they had no interest whatever in the government of the United States. The fourth testified that he was a socialist and believed in "a proper kind of government, not capitalistic." The literature they were printing and distributing, printed in English and in Yiddish, denounced President Wilson as a "hypocrite" and a "coward" and called upon the proletarians to arise and put down the government by force, and cease to purchase savings stamps or other bonds. So Senator La Follette is not to be satisfied by leaving the court to the exercise of its power to declare acts unconstitutional, or by the removal of this power. He criticizes the court alike for sustaining or for overthrowing acts of Congress. It seems that the law itself—the maintainance of its supremacy-does not interest him. He, like the king at the trial of his enemies and like the "multitude" at the trial of Christ, is interested in the decision and not in the preservation of the law of the land. Surely then, the Senator must abhor a judiciary which is beyond reach of the fear and favor of men. It is but fair to organizel labor to say that there seems 3-The refusal of the Supreme Court to sustain laws of Congress which by indirection attempt to compel the states to enact such Child Labor Laws as Congress may approve Based upon these causes the issues are so presented as to appeal to about four groups of our citizenship. 1-Organized workers. 2-Uninformed anti-child labor enthusiasts. 3-A group hard to describe consisting of socialists, extreme pacifists, people who oppose the least restrictions of free speech and free press, and malcontents generally. 4- Many business and professional people who may per mit their minds to be misled and their votes influenced by the constant propaganda against the courts. The causes herein enumerated may not be the only ones which provoke criticism of the courts. The courts are not perfect or above criticism. It is apparent that, in the selection of judges, a strict adherence to the Mosaic standard is essential. It may be admitted that the relation be tween the federal and the state governments is yet provocative of honest differences of opinion and that some learned and patriotic men believe the Supreme Court has at times taken jurisdiction of causes which properly belonged to the states alone. But there seems to be no reason to believe such men to be in collusion or sympathy with persons conducting the present intensive campaign so to amend the Constitution as that the courts no longer shall be independent but shall be made subservient to the congress and to the chances, influence and vicissitudes of a constantly shifting political battle therein. The dominant causes and the forces behind this campaign are apparent. The object to be attained is tersely expressed by Senator La Follette in his address to the Annual Convention of the American Federation of Labor at Cincinnati, July, 1922, in which he dramatically declared "the Federal judges must be made responsive to the popular will." His proposed amendment to the national constitution would make the will of congress the "popular will." The danger that the age old fight for a fearless and independent judiciary may be lost and the will of the congress may be made subservient to special economic and political interests is a real danger. Restriction of Immigration The House Committee on Immigration has reported its bill. The accompanying report (Report No. 176) summarizing the proposed measure says that it: "Preserves the basic immigration law of 1917. "Retains the principle of numerical limitation as inaugurated in the act of May 19, 1921. "(c) An immigrant who has resided continuously at least 10 years immediately preceding the time of his application for admission to the United States in the Dominion of Canada, Newfoundland, the Republic of Mexico, the Republic of Cuba, countries of Central or South America, or adjacent islands, and "Changes the quota base from the census of 1910 his wife, and his unmarried children under 18 years to the census of 1890. "Reduces the percentage from 3 to 2, plus a small base quota for each country. "Counts certificates, not persons. "Provides for preliminary examination overseas. "Exempts wives, children under 18, and parents over 55, of American citizens. "Reduces classes of exempted aliens. "Places burden of proof on alien rather than on the United States. of age, if accompanying or following to join him. "(d) An immigrant who continuously for at least two years immediately preceding the time of his application for admission to the United States has been, and who seeks to enter the United States solely for the purpose of, carrying on the vocation of minister of any religious denomination, or professor of a college, academy, seminary, or university. "(e) An immigrant who is a skilled laborer, if labor of like kind unemployed can not be found in this coun "Meets the situation with reference to admission try. of persons ineligible to citizenship. * "(f) The wife, or the unmarried child under 18 "Carries numerous sections to lessen hardships of years of age of an immigrant admissible as a minister, immigrants." Concerning the limitation of quota immigrants, that is, those who come to take permanent residence in the United States, the report says: "Decision by the committee to limit admissions of 'quota immigrants' to 2 per cent, based on census figures of 1890, instead of 3 per cent based on the census figures of 1890, instead of 3 per cent based on the census of 1910, was reached after long and careful consideration of every element of the entire immigration problem. An impelling reason for the change is that it is desired to slow down the streams of the types of immigrants which are not easily assimilated. Naturalization does not necessarily mean assimilation. The naturalization process can not work well with the continued arrival in large numbers of the socalled new immigration. The new type crowds in the larger cities. It is exploited. It gains but a slight knowledge of America and American institutions. It has grown to be a great undigested mass of alien thought, alien sympathy, and alien purpose. It is a menace to the social, political, and economic life of the country. It creates alarm and apprehension." Nonquota immigrants are defined as: "(a) An immigrant who is the unmarried child under 18 years of age, father or mother over 55 years of age, husband or wife of a citizen of the United States. * * "(b) An immigrant previously lawfully admitted to the United States who is returning from a temporary visit abroad. professor, or skilled laborer. "(g) An immigrant who is a bona fide student over 18 years of age. Discussing the alleged need for unskilled labor which it is asserted can only be satisfied by immigration, the report says: "The prosperity of the United States does not depend upon additional unskilled alien laborers coming to this country. Industry and activity have survived the slackened immigration caused by the European war and the quota law (the two covering a stretch of almost 10 years), and the United States has had one spell of great unemployment during that period. Our gain in population through natural sources is large-10,0000,000 in the period 1910-1920. Some thought must be given to the welfare of the coming generations. "Farming is declining. The number of farms is decreasing. The farm population is leaving for the cities. To pass a restrictive act, with an exemption for farmers and their families, is to defeat restriction. Farm organizations, labor organizations, the American Legion, and patriotic societies generally have declared by firm resolution for suspension or restriction." In the statistical information accompanying the report the effect of a 2% quota based on the census of 1890, 1900, 1910 and 1920 is shown. The 2% quota would admit from Great Britain and Ireland based on the census of 1890 62,645 immigrants and on the census of 1920, 43,729. That is, the quota based on the earlier census will admit 19,000 more immigrants |