Ten Years of the Supreme Court: 1937–1947: IV. Due Process of Law*

Robert J. Harris

American Political Science Review, 1948, vol. 42, issue 1, 32-42

Abstract: The disintegration of due process of law was somewhat advanced prior to October, 1937, as a result of judicial reversals of opinions on price-fixing and minimum wage legislation. As the process of transformation continued, it took four major forms. They were: (1) the withdrawal of substantive due process as a limitation on social legislation, taxation, rate-making, and regulatory action generally; (2) an expansion of substantive due process in cases involving freedom of expression, assembly, and religion, including rights of labor through the application of new concepts of freedom of speech; (3) the curtailment of procedural due process as a limit on administrative action except in cases involving the deportation of aliens; and (4) the use of procedural due process in such a way as to provide greater protection on the whole to persons accused of crime. This transformation has been accompanied by changed assumptions which accommodate governmental activity.Thus, on the assumption that so long as one is free to possess the fruits of agricultural production there is no denial of due process of law, the Court has sustained rigid restrictions on the marketing of agricultural products even when retroactively imposed and when the quotas were so applied as to include the wheat produced by a farmer for his domestic consumption. On a further assumption that since Congress has the power to decide the issue of the advantages and disadvantages of holding companies, the Court not only sustained the Public Utility Holding Company Act, but in so doing asserted that the judiciary could not question the propriety of Congress' decision.

Date: 1948
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