No Supreme Court justice can define "due process" other than to say that the words are used to strike down a law which he does not like. Here is the judge's process: a law is "arbitrary, capricious, or unreasonable"; hence the statute violates due process of law; hence it is unconstitutional. Mr. Justice Holmes once said this meant "the sky is the limit." He was right.

The methods by which the courts exercise these irresponsible powers the public cannot possibly understand. The judges divert the minds, talk in mumbo-jumbo while the rabbits of the people are pulled out of their little hats and slipped into the Big Hat of the Big Corporation. Magicians call this prestidigitation. Fromm college on, and especially recently, I have read and read, and have listened to judges and lawyers expound and expound. To try to tell you the story their technical way would set you raving mad.

So I will do my best to put it in the American language, and accurately, so an intelligent person can have a fair understanding of what the Court is up to. By simple language, I will rob the phrases of their magic, if I can.

Lawyers do not like simple language. They have witch-words they use at irreverent persons. One time I made a speech and read out of the records of a Supreme Court case, and then read the Constitution itself. Someone attacked me, said the Court controversy should be kept on a high plane, with all discussions in a dignified manner—and that I was ignorant, and did not understand the doctrine of something or other, in two Latin words.

All of which reminds me of when I was a youngster, when I went to the San Antonio Fair. There was a magician who had a big hollow pencil, and for a nickel he would put in a plain paper, and the paper would come out with your own fortune upon it.

I handed him a nickel. Putting in my paper, raising aloft his pencil, circling it around in the hot Texas sun, he intoned sonorously:

As Me Imy,
Paz Me Imy,
Antro Buddha,
Buddha, Buddha.

He handed me my fortune. I stood bug-eyed, and read: "A dark man will come into your life."

All day I ate candy-floss, peanuts, hamburgers and chile con carne. I thought of the Dark Man. That night my mother read Alice in Wonderland to me, and I will never forget the story of the Caucus Race and a Long Tale, and the type that twisted like a snake over the page. Read it, for it has a bearing on this story. You will find it on the next page.

That night all the characters of Alice in Wonderland came to me, but in addition, the Dark Man, a rank outsider whose visit had been promised by the Fortune Teller. The Dark Man came, but I could not see him. He was in the room, however, and, being both judge and jury, he shouted fiercely at me like the Queen of Hearts, "Off with his head." Child that I was, I yelled loudly for my mother. She rushed in, and turned on the light. The Dark Man vanished.

Not until I came to Congress did I really know who this Dark Man was. I have found him.

He is Due Process of Law! I will tell you how this rank outsider is summoned from the vasty deep, along with his cousins, Interstate Commerce, The Reserved Power of the State, and Delegation of Power, and how the magic pencil of the Judiciary twists and turns them around. It is a story of Alice in Wonderland. Read:

First, Due Process, the Dark Man.

As I pointed out in the beginning, the Bill of Rights was put in after the Constitution was adopted. The Fifth Amendment mentions due process of law. At the time of its adoption it only meant that a person should have his fair trial, his day in court, and only referred to procedure. After the Civil War, the Fourteenth Amendment was adopted, making a requirement that the states likewise must afford due process to any citizen. It started out by mentioning "persons born or naturalized in the United States."

The purpose, and the only purpose, was to provide fair legal procedure and not to discriminate between individuals, black or white. It intended to make sure the black man should have the rights guaranteed in the Thirteenth Amendment, which abolished slavery after the Dred Scott War of 1861-65.

Today, after a long series of decisions, the simple phrase has become the greatest protection of corporations against regulation. It has been used to prevent the fixing of minimum wages, to prevent states from legislating in regard to employment agencies, theatre-ticket scalpers and other rascals, to prevent public utility commissions from lowering rates of light and power furnished by great corporations to individual citizens, as in the Baltimore case and many others.

None of these cases has had anything to do with the freedom of individuals from arbitrary legal procedure. All of them are used to enforce a legislative policy of corporate protection against both State and Federal Governments under the ridiculous fiction that a corporation is entitled to the same safeguards as a natural person of blood and bones. Result: the real persons of blood and bones are the ones to be deprived of due process of law.

How did the High Court accomplish this? It is one of the most fantastic tales in all history. It is a type of usurpation that is easier than any other, for unfortunately, people still fall for mystery. The High Court simply says that "person" means "corporation." How a corporation can be "born" or "naturalized" has never been told. Then the Court says that gigantic corporations like the Steel Trust are individuals, persons—a legal Dark Man who does not exist, cannot exist, and is only a strange fiction of law.

For indeed, though the phrase was written to protect the rights of the dark men who had been freed, it is used now to bargain off white men and black men to great corporations, in their duchies and baronies.

The only test of Due Process is the opinion of a majority of judges, who frankly admit that whatever legislation they consider "reasonable" conforms to Due Process. Furthermore, the Court says Due Process depends on the circumstances; it may be one thing one day, and another thing the next. With the bland statement that minimum wages for women in a state are unreasonable, they knock out a law, and then later, as we shall see, reinstate it, because, outside the matter before the Court, "economic conditions have supervened."

There is, therefore, nothing under the sun which the Court may not call a violation of the due process clause if their prejudices lead them to that conclusion. Congress, according to the Court, is not supposed to have any final say as to what Due Process is.

It is like Humpty-Dumpty in Alice in Wonderland. Humpty-Dumpty was discussing words with Alice:

"When I use a word," Humpty-Dumpty said in a rather scornful tone, "it means just what I choose it to mean—neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty-Dumpty, "which is to be master—that's all!"

So when the Court uses Due Process it means just what it chooses it to mean—and the question is still who is to be master, the people or the Court.

Now for the cousin of the Dark Man, the Commerce Power.

Long before the Court began to twist the Dark Man, and in the beginning of our national history, we had the Commerce Clause. The Constitution says the national government has power "to regulate commerce . . . among the several states." No more, no less.

Now the Constitution was written in the late eighteenth century and at the time commerce meant any form of intercourse between states, and did not mean transportation alone.

Professor Walton Hamilton of Yale has shown in his recent book, Commerce According to the Constitution of 1787, that commerce was a broader word than trade, that it meant everything from buying and selling to manufacturing and protection of profit. Both the dictionaries and the current usages of the time show this, and no one denies it.

Increasingly in the last few years the great industrial corporations have demanded that they be excepted from regulation. And the Supreme Court has accomplished this by interpreting the commerce clause in a way exactly opposite to that intended by the original Constitution, and has said that Congress has nothing to do with manufacturing, even if the goods are manufactured for the sole purpose of trade between the states.

It takes no volume to prove it, but volumes have been written to show that this contraction of meaning has been plain wrong. Anyone not intimidated by heavy legal phraseology can see it for himself.

Now let us again mention the Guffey case. Coal admittedly affects the whole nation. There are over five hundred thousand persons engaged in digging, loading and shipping it; it is nearly all strictly interstate. The whole thing not only concerns the welfare of many states, but it directly concerns interstate trade.

Read Mr. Justice Sutherland, for his remarks sound like Alice in Wonderland:

"But, in addition to what has just been said, the conclusive answer is that the evils are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. At common law, it is one of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity. And the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result."

This sort of decision paralyzes all effective activity under the commerce clause.

This is really all there is to the controversy over the commerce clause: A power given by the fathers of the Constitution for the development of the nation has been misused by the Court to veto legislation; and the Court has no obligation to substitute legislation of its own, or even to tell Congress what legislation it will sustain in the future.

That is the reason that case after case goes up to the Supreme Court so that the commerce clause may be defined, and no one ever knows until each decision is handed down what the Court is going to do.

When people start making statement which are contrary to fact, as Mr. Justice Sutherland did in such Humpty-Dumpty fashion, their future reactions become completely unpredictable.

No one knows how the Queen of Hearts and the other cards will turn in the Judicial Wonderland of Alice. It's all a gamble, and the Corporation Cheshire Cat can afford to sit in his corporate tree, and laugh at the American people.

And now a cousin double-crossed: The Reserved Power of the States.

Ever since I was born, and that was only thirty years after the Battle of Appomattox, I have heard about States' Rights. When we were children at school we used to be required to put those words in capitals as a term of proper respect. But since that time States' Rights, like Alice's Humpty-Dumpty, has had a great fall—and it was the Supreme Court that pushed him over.

Working with the Dark Man of Due Process, the Court has cut down the power of the states to enact effective laws dealing with what the judges say are "obviously local conditions." The nation has been denied the power first because it is against States' Rights, and then the State has been denied the same because it is against Due Process. Result: Anarchy.

The Constitution says that the "powers not delegated to the United States are reserved to the respective states respectively, or to the people." There is no other definition of what these reserved powers are. It would seem, and the Constitution was so interpreted, by Marshall and his successors for many years, that a proper definition implies that States' Rights consist of what is left after the Congress is through enacting laws under its broad and tremendous powers.

But today, and since the AAA case, the Supreme Court has taken this vague phrase, "the reserved powers" out of thin air, and with no standards to go by, has forged it into a weapon to strike down and nullify exercise of national power.

It is no exaggeration to say that the Court has, in the last year and a half, invented an entirely new way of thwarting the will of the nation and endangering its welfare, without constitutional and legal authority to do so. Three or four of the nine justices, by their opinions, are in general agreement with this.

This new weapon is not used to give rights to the states, but to permit the operation within the United States of powerful groups which behave like Chinese War Lords, free from regulation by either the state or the nation.

The Constitution says that Congress can "lay and collect taxes . . . for the common defense and the general welfare of the United States. . . ." This meant what it said until the AAA decision, one of the most revolutionary usurpations of power in the history of the United States, was handed down. In that case, Congress was "laying a tax" and spending the proceeds "for the general welfare" by benefit payments to farmers for crop reduction. Mr. Justice Roberts, speaking for the majority of the Court, held that this kind of spending invaded the reserved powers of the states, and that therefore the tax was unconstitutional! In effect, Mr. Justice Roberts said that Congress can use its power for the general welfare—but that the use is unconstitutional if the Court has a vague idea that it encroaches on the reserved powers of the States. Or as somebody has said, "General welfare is all right, but you can't have it."

What is the test that shows whether or not the Government is invading the reserved powers of the states? As I have shown, it is nowhere defined. Mr. Justice Roberts' answer is that the Court will decide that; that the people have no right to decide their own policy.

You can see how this works. Not being defined, the doctrine means anything which the court says it means. Worse, it means there is nothing Congress can do even within its own delegated power, if the Court does not like what Congress is doing.

Congress cannot tax or lend money or use its powers to incorporate, or the commerce of power, or the mails, or anything else if the Supreme Court decides it is something that the States ought to do. One might think that this would be a protection to the States at times. Quite the contrary is true. In the exercise of this complete and arbitrary power of discretion which the Court has assumed, it pays no attention to the actual wishes of the States, nor to the practical limitations which economic conditions put upon this power. It assumes that what the State governors and legislatures want in the way of division of power between the State and the Federal Governments is immaterial.

The Doctrine of States' Rights was really advanced just prior to the Civil War; South Carolina claimed the right to nullify Federal laws it did not like. But the Civil War was supposed to have put an end to nullification.

And now, the nullification is not by the States, but by the big corporations through the instrumentality of the courts. The big corporations frankly say that they will not obey a law until the Supreme Court holds it constitutional. And it is the old idea of States' Rights, twisted from its original meaning into the absolute opposite, that is the chief weapon of the new nullificationists. States' Rights, which used to be the scourge of the corporations and the bulwark of all those, from Jackson to the Populists, who wanted to curb the power of wealth, has now suddenly become an instrument for thwarting regulation and popular control. And the American people don't realize this change has occurred. They are likely to be completely fooled by the Big Corporation in its new suit of sheep's clothing labelled States' Rights.

We will now gaze Through Alice's Looking Glass at the Jabberwockery of Due Process and the Reserved Powers of the States together.

When we consider together these two powers which we have just explained, we come to the most astounding trick of all by which the Supreme Court exercises its veto power with complete irresponsibilty and unpredictability. The way they do it is this. When Congress acts in a way which the Court doesn't like, it declares that it has exceeded its powers and encroached on the States. When the States act to fill the gap left by the inability of Congress to act, the Court declares that they are encroaching on national powers, or else that they are violating Due Process.

For example, suppose a State wishes to legislate on problems of agriculture or labor. If it attempts to maintain certain standards, it comes in competition with other States. And then, if it excludes goods of other States not complying with its standards, the Court says it is interfering with interstate commerce. But if the Federal Government tries to handle the same problems, the Court says they are not in interstate commerce, and the Federal Government is powerless. And as I have pointed out, you can never tell when the efforts of a State to deal with wages, employment agencies, public utilities or a hundred other things, will not be cut down by Due Process.

So the Court which, on the one hand, has been cutting down Federal power over large corporate enterprises and over the solution of public problems, on the other hand prevents the States from doing anything. The Honorable David J. Lewis, in a speech before the House of Representatives, pointed out that Congress had never interfered with State powers—it was the Court. He gave a long list of subjects on which the state was forbidden to legislate. It showed the state practically powerless in the face of many major problems.

There are many other ways of cutting down the power of the legislative representatives of the people. "Delegation of power" is one: in theory Congress can delegate its power to no one. Carried to its logical conclusion, Congress would have to handle personally everything done in the country, to avoid it. The judges use these words as suits them best.

Such is our judicial wonderland. But like Alice's Wonderland, sometimes it loses the appearance of reality. You remember the scene when Alice awoke from her dream.

She was sitting in the court room at the trial of the Knave of Hearts, and the Queen screamed at her, "Off with her head!" once too often.

"Who cares for you?" said Alice (she had grown to her full size by this time). "You're nothing but a pack of cards!"

And so they were—and the whole court flew up in a gust of wind and was scattered about like dry leaves.

The American people must not permit its legislative system to become pure fantasy. It must correspond to the living facts of American life. It must permit the government to work, or else, like a pack of cards, it and all the rest of our government will by swept away by the howling winds of social and economic forces.

Once in our national history this happened. That was in the Dred Scott case, and Americans ought to know how it came about that ink, squiggled on paper by a judge, set millions to fighting and killing.