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Transcriber's notes:

[=o] represents the vowel "o" with a macron in this text.

The original editor's comments are enclosed in square brackets [].

Notes unique to this edition are also enclosed in square brackets,
but are preceded by the words "Transcriber's Note".

A complete list of all changes made to the text is included at the
end of the file.

Variations in spelling were left as in the original.

82d Congress } SENATE { Document
_2d Session_ } { No. 170



Annotations of Cases Decided by the Supreme Court of the United States
to June 30, 1952

Prepared by the Legislative Reference Service, Library of Congress



United States Government Printing Office Washington: 1953
For sale by the Superintendent of Documents, U.S. Government Printing
Washington 25 D.C. - Price $6.25


JOINT RESOLUTION To prepare a revised edition of the Annotated
Constitution of the United States of America as published in 1938 as
Senate Document 232 of the Seventy-fourth Congress.

Whereas the Annotated Constitution of the United States of America
published in 1938 as Senate Document 232, Seventy-fourth Congress, has
served a very useful purpose by supplying essential information in one
volume and at a very reasonable price; and

Whereas Senate Document 232 is no longer available at the Government
Printing Office; and

Whereas the reprinting of this document without annotations for the last
ten years is now considered appropriate: Now, therefore, be it

_Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled_, That the Librarian of Congress
is hereby authorized and directed to have the Annotated Constitution of
the United States of America, published in 1938, revised and extended to
include annotations of decisions of the Supreme Court prior to January
1, 1948, construing the several provisions of the Constitution
correlated under each separate provision, and to have the said revised
document printed at the Government Printing Office. Three thousand
copies shall be printed, of which two thousand two hundred copies shall
be for the use of the House of Representatives and eight hundred copies
for the use of the Senate.

Sec. 2. There is hereby authorized to be appropriated for
carrying out the provisions of this Act, with respect to the preparation
but not including printing, the sum of $35,000 to remain available until

Approved June 17, 1947.


By Honorable Alexander Wiley

_Chairman, Senate Foreign Relations Committee_

To the Members and Committees of the Congress, the Constitution is more
than a revered abstraction; it is an everyday companion and counsellor.
Into it, the Founding Fathers breathed the spirit of life; through every
subsequent generation, that spirit has remained vital.

In more than a century and a half of cataclysmic events, the
Constitution has successfully withstood test after test. No
crisis - foreign or domestic - has impaired its vitality. The system of
checks and balances which it sets up has enabled the growing nation to
adapt itself to every need and at the same time to checkrein every bid
for arbitrary power.

And meantime America itself has evolved dynamically and dramatically.
The humble 13 colonies, carved out of the wilderness in the 18th
Century, emerged in the 20th Century as leader of
earth - industrial - military - political - economic - psychological. Yet the
broad outline of the Supreme Law remains today fundamentally intact.

It is small wonder that W.E. Gladstone described the Constitution as
"the most wonderful work ever struck off at a given time by the brain
and purpose of man." He knew, as should we, that the Constitution's
words, its phrases, clauses, sentences, paragraphs, and sections still
possess a miraculous quality - a mingled flexibility and strength which
permits its adaptation to the needs of the hour without sacrifice of its
essential character as the basic framework of freedom.

Congress has long recognized how necessary it is to have a handy working
guide to this superb charter. It has sought a map, so to speak, of the
great historical landmarks of Constitutional jurisprudence - landmarks
which mark the oft-times epic battles of clashing legal interpretations.
A first step was taken toward meeting this need by publication of Senate
Document 12, 63d Congress in 1913. Ten years later, in 1923 another
volume was issued, Senate Document 96, 67th Congress, and it was
followed in turn by Senate Document 154 of the 68th Congress.

In 1936, Congress authorized a further revision, this time by the
Legislative Reference Service. Mr. Wilfred C. Gilbert, now the Assistant
Director of the Service, was the editor of this volume which became
Senate Document 232, 74th Congress, and he has given counsel throughout
the development of the present edition of this volume.

After another decade of significant and far-reaching judicial
interpretation, the Senate Judiciary Committee reported out Senate Joint
Resolution 69 of the 80th Congress calling upon the Librarian of
Congress for the preparation of the new work. However, because of the
increase in responsibilities of the Legislative Reference Service, it
was no longer feasible for it to undertake this additional burden with
its regular staff. The Director of the Service, Dr. Ernest S. Griffith,
suggested therefore that Dr. Edward S. Corwin be engaged to head the
project with a collaborating staff to be furnished by the Legislative
Reference Service.

In my capacity at the time, as Chairman of the Senate Judiciary
Committee, I was delighted to give my approval to this arrangement, for
I recognized our particular good fortune in obtaining the services of an
acknowledged authority for this highly significant and delicate

I should like now to express our thanks and appreciation to Dr. Corwin
and to his collaborators from the Service, Dr. Norman J. Small,
Assistant Editor, Miss Mary Louise Ramsey, and Dr. Robert J. Harris, for
all their prodigious and skilled labors.

Moreover, for their considerable efforts in connection with the detailed
legislative and printing arrangements for the publication of this
volume, I should like to express appreciation to Mr. Darrell St. Claire,
Staff Member for the Senate Rules Committee, as well as Chief Clerk for
the Joint Committee on the Library of Congress; and Mr. Julius N. Cahn,
previously Executive Assistant to me when I was Chairman of the
Judiciary Committee and now Counsel to the Senate Foreign Relations

Initiated in the Republican 80th Congress, the project was undertaken
With funds supplied by the succeeding Democratic 81st Congress, while
the Democratic 82d Congress extended its coverage to include Supreme
Court decisions through June 30, 1952. The document thus represents
Congressional nonpartisan activity at its best, as should ever be the
case in our fidelity to this great charter.

In the present volume, in addition to the annotations indicating the
current state of interpretation, Dr. Corwin has undertaken to supply an
historical background to the several lines of reasoning. It is our hope
and expectation that this introduction will prove of immense benefit to
users in understanding the trends of judicial constitutional

It is our further hope that this edition as a whole may serve a still
larger purpose - strengthening our understanding of and loyalty to the
principles of this republic.

In that way, the Constitution will remain the blueprint for freedom. It
will continue as an inspiration for us of this blessed land, and for men
and women everywhere; for they look to these shores as the lighthouse of
freedom, in a world where the darkness of despotism hangs so heavily.

_May 30, 1953._

[Illustration: Alexander Wiley signature]


For many years the Congress has felt the need for a handy, concise guide
to the interpretation of the Constitution. An edition of the
Constitution issued in 1913 as Senate Document 12, 63d Congress, took a
step in this direction by supplying under each clause, a citation of
Supreme Court decisions thereunder. This was obviously of limited
usefulness, leaving the reader, as it did, to an examination of cases
for any specific information. In 1921 the matter received further
consideration. Senate Resolution 151 authorized preparation of a volume
to contain the Constitution and its amendments, to January 1, 1923 "with
citations to the cases of the Supreme Court of the United States
construing its several provisions." This was issued as Senate Document
96 of the 67th Congress, and was followed the next year by a similar
volume annotating the cases through the October 1923 Term of the Supreme
Court. (Senate Document 154, 68th Congress.) Both of these volumes went
somewhat beyond the mere enumeration of cases, carrying under the
particular provisions of the Constitution a brief statement of the point
involved in the principal cases cited.

Thirteen years of Constitutional developments led Congress in 1936 to
authorize a revision of the 1924 volume, and under authority of Senate
Concurrent Resolution 35 introduced by Senator Ashurst, Chairman of the
Judiciary Committee, such a revision was prepared in the Legislative
Reference Service and issued as Senate Document 232, 74th Congress.

This volume was, like its predecessors, dedicated to the need felt by
Members for a convenient ready-reference manual. However, so extensive
and important had been the judicial interpretation of the Constitution
in the interim that a very much larger volume was the result.

After another decade, in the course of which many of the earlier
interpretations were reviewed and modified, the Senate again moved for a
revision of the Annotations. Senate Joint Resolution 69 introduced by
the then Chairman of the Judiciary Committee, Senator Alexander Wiley,
again called upon the Library of Congress to undertake the work. The
confidence thus implied was most thoroughly appreciated. To meet his
responsibilities, the Librarian called upon Dr. Edward S. Corwin to head
the project. The collaborating staff, supplied by the Legislative
Reference Service, included Dr. Norman J. Small as assistant editor,
Miss Mary Louise Ramsey, and Robert J. Harris.

This time, more than ever, the compilers faced a difficult task in
balancing the prime requirement of a thorough and adequate annotation
against the very practical desire to keep the results within convenient

Work on the project was delayed until funds were made available. In
consequence the annotations have been extended to a somewhat later date,
covering decisions of the Supreme Court through June 30, 1952.

Ernest S. Griffith,
_Director, Legislative Reference Service._


The purpose of this volume is twofold; first, to set forth so far as
feasible the currently operative meaning of all provisions of the
Constitution of the United States; second, to trace in the case of the
most important provisions the course of decision and practice whereby
their meaning was arrived at by the Constitution's official
interpreters. Naturally, the most important source of material relied
upon comprises relevant decisions of the Supreme Court; but acts of
Congress and Executive orders and regulations have also been frequently
put under requisition. Likewise, proceedings of the Convention which
framed the Constitution have been drawn upon at times, as have the views
of dissenting Justices and occasionally of writers, when it was thought
that they would aid understanding.

That the Constitution has possessed capacity for growth in notable
measure is evidenced by the simple fact of its survival and daily
functioning in an environment so vastly different from that in which it
was ordained and established by the American people. Nor has this
capacity resided to any great extent in the provision which the
Constitution makes for its own amendment. Far more has it resided in the
power of judicial review exercised by the Supreme Court, the product of
which, and hence the record of the Court's achievement in adapting the
Constitution to changing conditions, is our national Constitutional Law.

Thus is explained the attention that has been given in some of these
pages to the development of certain of the broader doctrines which have
influenced the Court in its determination of constitutional issues,
especially its conception of the nature of the Federal System and of the
proper role of governmental power in relation to private rights. On both
these great subjects the Court's thinking has altered at times - on a few
occasions to such an extent as to transcend Tennyson's idea of the law
"broadening from precedent to precedent" and to amount to something
strongly resembling a juridical revolution, bloodless but not wordless.

The first volume of Reports which issued from the Court following
Marshall's death - 11 Peters (1837) - signalizes such a revolution, that
is to say, a recasting of fundamental concepts; so does 100 years later,
Volume 301 of the United States Reports, in which the National Labor
Relations Act [The "Wagner Act"] and the Social Security Act of 1935
were sustained. Another considerable revolution was marked by the
Court's acceptance in 1925 of the theory that the word "liberty" in the
Fourteenth Amendment rendered the restrictions of the First Amendment
upon Congress available also against the States.

In the preparation of this volume constant use has been made of "The
Constitution of the United States of America Annotated," which was
brought out under the editorship of Mr. W.C. Gilbert in 1938. Its
copious listing of cases has been especially valuable. Its admirable
Tables of Contents and Index have furnished a model for those of the
present volume. If this model has been approximated the contents of this
volume ought to be readily accessible despite its size. The coverage of
the volume ends with the cases decided June, 1952.

A personal word or two must be added. The Editor was invited to
undertake this project by Dr. Ernest S. Griffith, Director of the
Legislative Reference Service of the Library of Congress, and his
constant interest in the progress of our labors has been a tremendous
source of encouragement. To his able collaborators the Editor will not
attempt to express his appreciation - they share with him the credit for
such merits as the work possesses and responsibility for its short
comings. And I am sure that they join me in thanking Miss Evelyn K.
Mayhugh for her skill and devotion in aiding us at every step in our
common task.

Edward S. Corwin.


It is my purpose in this Introduction to the _Constitution of the United
States, Annotated_ to sketch rapidly certain outstanding phases of the
Supreme Court's interpretation of the Constitution for the illustration
they may afford of the interests, ideas, and contingencies which have
from time to time influenced the Court in this still supremely important
area of its powers and of the comparable factors which give direction to
its work in the same field at the present time.

As employed in this country, Constitutional Law signifies a body of
rules resulting from the interpretation by a high court of a written
constitutional instrument in the course of disposing of cases in which
the validity, in relation to the constitutional instrument, of some act
of governmental power, State or national, has been challenged. This
function, conveniently labelled "Judicial Review," involves the power
and duty on the part of the Court of pronouncing void any such act which
does not square with its own reading of the constitutional instrument.
Theoretically, therefore, it is a purely juristic product, and as such
does not alter the meaning. To those who hold this theory, the Court
does not elaborate the instrument, as legislative power might; it
elucidates it, bringing forth into the light of day, as it were, what
was in the instrument from the first.

In the case of judicial review as exercised by the Supreme Court of the
United States in relation to the national Constitution, its preservative
character has been at times a theme of enthusiastic encomium, as in the
following passage from a speech by the late Chief Justice White, made
shortly before he ascended the Bench:

... The glory and ornament of our system which distinguishes
it from every other government on the face of the earth is
that there is a great and mighty power hovering over the
Constitution of the land to which has been delegated the awful
responsibility of restraining all the coordinate departments
of government within the walls of the governmental fabric
which our fathers built for our protection and immunity.[1]

At other times the subject has been dealt with less enthusiastically,
even skeptically.

One obstacle that the theory encountered very early was the refusal of
certain Presidents to regard the Constitution as primarily a source of
rules for judicial decision. It was rather, they urged, a broadly
discretionary mandate to themselves and to Congress. And pursuing the
logic of this position, they contended that while the Court was
undoubtedly entitled to read the Constitution independently for the
purpose of deciding cases, this very purpose automatically limited the
authoritativeness of its readings; and that within their respective
jurisdictions President and Congress enjoyed the same correlative
independence as the Court did within its jurisdiction. This was, in
effect, the position earlier of Jefferson and Jackson, later of Lincoln,
and in recent times that of the two Roosevelts.

Another obstacle has been of the Court's own making. Whether because of
the difficulty of amending the Constitution or for cautionary reasons,
the Court took the position, as early as 1851, that it would reverse
previous decisions on constitutional issues when convinced they were
erroneous.[2] An outstanding instance of this nature was the decision in
the Legal Tender cases, in 1871, reversing the decision which had been
rendered in Hepburn _v._ Griswold fifteen months earlier;[3] and no less
shattering to the prestige of _stare decisis_ in the constitutional
field was the Income Tax decision of 1895,[4] in which the Court
accepted Mr. Joseph Choate's invitation to "correct a century of error".
The "constitutional revolution" of 1937 produced numerous reversals of
earlier precedents on the ground of "error", some of them, the late Mr.
James M. Beck complained, without "the obsequious respect of a funeral
oration".[5] In 1944 Justice Reed cited fourteen cases decided between
March 27, 1937 and June 14, 1943 in which one or more prior
constitutional decisions were overturned.[6] On the same occasion
Justice Roberts expressed the opinion that adjudications of the Court
were rapidly gravitating "into the same class as a restricted railroad
ticket, good for this day and train only".[7]

Years ago the eminent historian of the Supreme Court, Mr. Charles
Warren, had written:

However the Court may interpret the provisions of the
Constitution, it is still the Constitution which is the law
and not the decision of the Court.[8]

In short, it is "not necessarily so" that the Constitution is preserved
in the Court's reading of it.

A third difficulty in the way of the theory that Judicial Review is
preservative of the Constitution is confronted when we turn to consider
the statistical aspects of the matter. The suggestion that the
Constitution of the United States contained in embryo from the beginning
the entirety of our national Constitutional Law confronts the will to
believe with an altogether impossible test. Compared with the
Constitutional Document, with its 7,000 words more or less, the bulk of
material requiring to be noticed in the preparation of an annotation of
this kind is simply immense. First and last, the Court has probably
decided well over 4,000 cases involving questions of constitutional
interpretation. In many instances, to be sure, the constitutional issue
was disposed of quite briefly. In some instances, on the other hand, the
published report of the case runs to more than 200 pages.[9] In the
total, it is probable that at least 50,000 pages of the United States
Supreme Court Reports are devoted to Constitutional Law topics.

Nor is this the whole story, or indeed the most important part of it.
Even more striking is the fact that the vast proportion of cases forming
the corpus of national Constitutional Law has stemmed, or has purported
to stem, from four or five brief phrases of the Constitutional Document,
the power "to regulate ... commerce among the States," impairment of
"the obligation of contracts" (now practically dried up as a formal
source of constitutional law), deprivation of "liberty or property
without due process of law" (which phrase occurs both as a limitation on
the National Government and, since 1868, on the States), and out of four
or five doctrines which the Constitution is assumed to embody. The
latter are, in truth, the essence of the matter, for it is through these
doctrines, and under the cover which they afford, that outside
interests, ideas, preconceptions, have found their way into
Constitutional Law, have indeed become for better, for worse, its
leavening element.

That is to say, the effectiveness of Constitutional Law as a system of
restraints on governmental action in the United States, which is its
primary _raison d'etre_, depends for the most part on the effectiveness
of these doctrines as they are applied by the Court to that purpose. The
doctrines to which I refer are (1) the doctrine or concept of
Federalism; (2) the doctrine of the Separation of Powers; (3) the
concept of a Government of Laws and not of Men, as opposed especially to
indefinite conceptions of presidential power; (4) and the substantive
doctrine of Due Process of Law and attendant conceptions of Liberty.
What I proposed to do is to take up each of these doctrines or concepts
in turn, tell something of their earlier history, and then project
against this background a summary account of what has happened to them
in recent years in consequence of the impact of war, of economic crisis,
and of the political and ideological reaction to the latter during the
Administrations of Franklin D. Roosevelt.



Federalism in the United States embraces the following elements: (1) as
in all federations, the union of several autonomous political entities,
or "States," for common purposes; (2) the division of legislative powers
between a "National Government," on the one hand, and constituent
"States," on the other, which division is governed by the rule that the
former is "a government of enumerated powers" while the latter are
governments of "residual powers"; (3) the direct operation, for the most
part, of each of these centers of government, within its assigned
sphere, upon all persons and property within its territorial limits; (4)
the provision of each center with the complete apparatus of law
enforcement, both executive and judicial; (5) the supremacy of the
"National Government" within its assigned sphere over any conflicting
assertion of "state" power; (6) dual citizenship.

The third and fourth of the above-listed salient features of the
American Federal System are the ones which at the outset marked it off
most sharply from all preceding systems, in which the member states
generally agreed to obey the mandates of a common government for certain
stipulated purposes, but retained to themselves the right of ordaining
and enforcing the laws of the union. This, indeed, was the system
provided in the Articles of Confederation. The Convention of 1787 was
well aware, of course, that if the inanities and futilities of the
Confederation were to be avoided in the new system, the latter must
incorporate "a coercive principle"; and as Ellsworth of Connecticut
expressed it, the only question was whether it should be "a coercion of
law, or a coercion of arms," that "coercion which acts only upon
delinquent individuals" or that which is applicable to "sovereign

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