The same 5-4 lineup in the Supreme Court which supported the government in the Minnesota mortgage moratorium has given its approval to the new statute for price fixing in the milk industry. It is impossible to read Justice Roberts' majority opinion, with its weighty talk of the due process clause, without feeling that the due process clause is only another name for gum elastic; the things which the court says in favor of price fixing are justified by the same clause which once defeated child labor legislation.
After the Minnesota mortgage case, the nation's press raised its voice to welcome the new liberality of the court, its new philosophy of government and of society. The milk decision has given rise to the same comment, in crescendo, and we are told that the rights of property must now give way to the rights of individuals. But, just as in the Minnesota case, he decision was given on emergency grounds, the present decision frankly bases itself on Justice Holmes' ideas of legislative supremacy. In other words, it is liberal only insofar as legislatures tend to be more liberal than courts; if legislatures become reactionary, it would be a reactionary philosophy of law. The distinction is an all-important one; it was the chief distinction between Justices Holmes and Brandeis, who were loosely grouped together as liberals, and it is the chief distinction between the present position of the Court and a position really dictated by fundamental social beliefs.
It is surely no very cynical asperity that sees in the dodges of due process and absence of "arbitrary and discriminatory motive" the symptoms of intellectual bankruptcy, of an incapacity to realize the issues which the Roosevelt administration has created. Obviously Congress is unable to see those issues; the Court merely says, when a concrete matter is put up to it for decision, that we must abide by the rulings of Congress, because our government is founded on the sovereignty of the legislature. When then, is there room for calling the Court liberal or reactionary, for calling any decision made on these grounds a harbinger of social change?
I have said that Congress was unable to see the issues; I do not think that the most careful reading of the Congressional debates will uncover a single passage in which the basic issue of private production has been placed squarely before the house. There has been much talk of regulating industry, and a great deal about the right of self government in industry, and about securing the rights of labor, and preserving the rights of the employer. How about the self government of industry? Surely the minimum essentials are deciding what is to be produced, how much of it is to be produced, and at what price it can be sold. Yet we see that the government is asserting its right to decide each of these things, and to decide them without accepting, as the private producer must, the responsibility for its decision. And the right which it asserts is one supported only by a de jure Austinian sovereignty, without a whit of de facto sanction.
Perhaps the administration can bully the milk producers into letting it fix their prices; perhaps it can order private industry to shorten working hours and increase its payroll, perhaps it can enforce its codes and throw recalcitrant employers into jail. But, if it starts to do these things, it will not be long before its present legislative support has stolen away, and it will have to decide whether it is going to continue to do them without that support. Rule without the check of parliamentary method has a name, dictatorship. It should not frighten anyone. But it should make people think, and decide whether they want a fascist (reactionary) dictatorship, or the socialist dictatorship of freedom.