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Today in Washington

Washington, March 6, 1934.

THE Supreme Court of the United States keeps its ear to the ground. Confronted with an issue that permitted it, by reason of a long line of precedents, to decide either way, the court chose to support an emergency milk law enacted by the Legislature of the State of New York.

Not long ago the Supreme Court by the identical division of 5 to 4 upheld the right of the State of Minnesota to suspend the operation of a certain phase of a morigage foreclosure law.

Now we have two instances in which the police power of the sovereign States has been upheld in the economic emergency. A close reading of both decisions would seem to lead to the conclusion that one of those days we shall be surprised with a decision from the Supreme Court holding unconstitutional the national industrial recovery act in so far as it transcends the power of the Federal Government and seeks to regulate commerce within a State, for in its latest decision the Supreme Court's majority opinion significantly points out that the Federal Government is final within its own sphere and the States are dominant with respect to powers interested to them by the Constitution.

The principles involved in the New York milk case are not new. They have been up many times in the evolution of American law. Indeed, the Supreme Court of the United States in many a base has stated its position exactly the everse of what was handed down yesterday. Again and again it has been fuled that certain businesses were not lothed with the public interest or that he State Legislature could not fix prices, but all these precedents are swept aside is the majority declares that the Constiation "does not guarantee the unrestricted privilege to engage in a business conduct it as one pleases."

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The court insists that regulation that may be valid for one sort of business or given circumstances "may be invalid in another sort," but it does say the milk-control law is a valid and not an arbitrary use of legislative power.

The court is careful to point out that the test is whether the regulation by a State is unreasonable or arbitrary and the order in question "appears not unreasonable or arbitrary or without relation to the purpose to prevent ruthless competition from destroying the wholesale price structure on which the farmer depends for his livelihood and the community for an assured supply of milk."

This can only mean that every case will have to stand on its own bottom, but, broadly speaking, that the States of the Union are likely to be upheld when they seek to regulate competition within the States. It is especially important to note, that the States are held by the Supreme Court to be able to "regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells."

In many respects the decision is the strongest yet rendered as to the power of government over the individual. Were the doctrine written into law by the forty-eight States and supplemented by the Federal Government as to its sphere, it would be perfectly possible to introduce Fascism or Communism or any other form of State control and still stay within the Constitution. But it is significant that the court lays stress on the police power being vested in the forty-eight States. It will take action by forty-eight governments to give us Fascism or Communism, and each of these States could repeal the experiment whenever it pleased.

The Constitution is certainly elastic in the sense that the power of government over the individual is supreme, but it is also to be noted that the Supreme Court of the United States firmly upholds he dual sovereignty idea which was the basic concept of the Constitution as written by our forefathers. The decision is therefore a milestone in the direction of definition of fundamental constitutional rights, in America.

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