State Constitutional Law in 1944–45

Jacobus Tenbroek and Howard Jay Graham

American Political Science Review, 1945, vol. 39, issue 4, 685-719

Abstract: For courts of forty-eight states to interpret forty-nine detailed organic acts with an eye toward maintaining limited federal government amid centralizing total war and a distracting national election, challenges not only the statesmanship of performers, but the discrimination of reviewers.Collectively, the major state court decisions in the third year of the war point toward a resurgence of judicial power, a reëmphasis upon the rights and the place of the states and upon the legislative as opposed to the executive branch, a new period of exceptional interest and fertility in the growth of constitutional doctrine.War, paradoxically, has bolstered as well as undermined the creed of states' rights. The pattern that has emerged from the small but growing number of federalism cases reveals state courts no longer content to make a virtue of necessity. “Little OPA” acts and ordinances are generally upheld. But expanded federal controls exercised administratively in fields long reserved to the states meet steadily mounting opposition—especially if they are not obviously crucial to the war effort or to the stability of a war economy. Even actions taken under those provisions of the Price Control Act which were deliberately framed to safeguard federal administrators from state-court interference have suffered nullification. Since the date of the Yakus and Willingham decisions, statutory construction has supplanted constitutional law as the medium for resolving those personal and delicate questions of the state judges' own powers under the Price Control act.

Date: 1945
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