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CHAPTER TWENTY-TWO
Your Job, Your Business, Your Estate—and Murder
But it is not only in its softness on the Red conspiracy that the Warren Supreme Court has played so skillfully into the hands of the socialist revolutionaries in America. Along with this has gone a continuation of the practice of the Roosevelt-packed Court in taking from the states and their citizens control over their own resources and their own livelihood. And the Court has not hesitated even to tell an American citizen the manner in which his estate must be disposed of after he dies—no matter what his will says. The Court has even handed (I know this is hard to believe, but it is true) a new “charter of liberty” to murderers and rapists.
In 1954, the Court seized (in Phillips Petroleum v. Wisconsin) from the southwestern states control of natural-gas production and handed it to the federal bureaucrats in Washington. Today it is natural gas; tomorrow it could be your corner filling station or grocery store—or local newspaper.
In 1957, the Warren Court ordered the duPont Company to divest itself of the stock it held in the General Motors Corporation. This was hailed by all the “liberals” as a great “antimonopoly” decision, though none of them has yet explained how one corporation has a “monopoly” over another when it owns less than 25 percent of its stock. They haven’t explained either just what is the “monopoly” General Motors enjoys as it engages in terrific competition with several other great motor companies, and a number of smaller ones, to sell its products.
In the duPont decision (U.S. v. E. I. duPont de Nemours Co.), the Court went its merry way ignoring the language and purpose of the original law (the Clayton Anti-Trust Act), forty years of administrative rules by the Federal Trade Commission in administering it, and all other precedents except one District Court decision. Justice Burton, who dissented, even charged his colleagues with applying the wrong section of the law to the case and declared: “The Court cites no authority in support of its new interpretation of this 40-year-old statute.”
The decision was reminiscent of Justice Frankfurter’s declaration years earlier that an elevator operator running his elevator up and down in a building was crossing state lines and so was in “interstate” commerce. The Clayton Act applied to what are known as “horizontal” stock acquisitions—those by which a company buys stock in a competing company—but not to “vertical” acquisitions, whereby a company buys stock in another one which is not a competitor. The duPont Company, chemical manufacturers, obviously is not in competition with General Motors, automobile manufacturers. But, as one legal cynic put it, there was nothing surprising about the Court’s decision: “It was neither illogical nor unexpected that this Supreme Court could declare that horizontal and vertical mean the same thing. The Supreme Court has done it before.”
The Warren Supreme Court, of course, has not ignored the labor field either. In 1956, Mr. Justice Douglas wrote an opinion (Ry. Employees Dept. v. Hanson), concurred in by the entire Court, ordering three citizens of the sovereign State of Nebraska to join a union if they wanted to keep their jobs. Thus the Court capped a whole series of previous decisions establishing over the rank-and-file of American workers what Donald Richberg has so aptly called the “Labor Union Monopoly.”
In 1957, another unanimous decision (Penna. v. Bd. of Directors of City Trusts)—an unsigned one—did away at one fell swoop with a principle which has been imbedded in our law since the beginning of the Republic. It is a principle governing charitable trusts and has to do with the right of any American to dispose of his private property for the benefit of anybody he chooses.
There is a school in Philadelphia called Girard College. It never has been, and is not now, supported by public funds of any kind. The college is 125 years old. It was set up to fulfill the specifications of the will of Stephen Girard, a wealthy Philadelphian. The college always has been supported by a trust fund set up by Girard in his will. The trust fund, under wise administration, is now somewhere in the neighborhood of a hundred million dollars, and the school itself takes care of about a thousand youngsters a year. In his will, Stephen Girard directed that the bulk of his estate be put into a perpetual trust and the trust was directed, also in his will, to set up and maintain “a school for poor white orphan boys.” That is what the trust has done for 125 years.
But, you say, what has the Supreme Court to do with all this? Hasn’t a man a right to dispose of his money any way he chooses? And wasn’t Girard carrying out a noble and humane purpose in leaving his fortune for the education of poor white orphan boys who might not otherwise have the advantages he provided?
Well, let us see what happened. You will learn quickly how far our Supreme Court is willing to go in its lawlessness. In order to be certain that the provisions of such wills and trusts as Stephen Girard’s are carried out according to the donors’ wishes, the City of Philadelphia did what many other states and cities have done for the protection of its citizens. It named a Board of Directors of City Trusts—a board of trustees—to carry out the terms of wills and estates left in perpetual trust in that city. Of the fourteen members on the board, twelve were named by the Court of Common Pleas. The other two were ex officio members—one the president of the City Council and the other the city’s mayor. This is similar to the practice in many states where private institutions of various types operate under a state charter and the governor of the state is named an ex officio member of the board of trustees or directors.
In 1954, two Negroes tried to gain admission to Girard College. The Board of Trustees turned them down because, under Girard’s will—of which they were the trustees—they could admit to the college only “poor white orphans.” In fact, a clause in the will stated that, if the trustees administered the fund in any way other than that specified in the will, the money would be forfeited— which, of course, meant the college would close down.
The two Negroes took the case to court, and the highest court of the State of Pennsylvania upheld the Board of Trustees, stating emphatically that “it is one of our most fundamental legal principles” that an American citizen has a right to dispose of his own property in any way he sees fit, and that this right is so inherent and so protected that it must be enforced no matter how much others may disapprove of it. The Pennsylvania Supreme Court said specifically: “He [the man who makes a will] is entitled to his idiosyncrasies and even to his prejudices.”
At least that was the case until a packed Supreme Court started legislating for Americans. The lawyers for the two Negroes asked the Supreme Court for a writ of certiorari—for the Court to hear arguments in the case and decide it. Attorneys for the Board of Trustees, of course, opposed this plea. There were no arguments on the merits of the case, but the Court agreed to accept it on its merits. Would it not be interesting if we could have a look at the memoranda and recommendations on this petition by some of those “bright young men” we have previously considered, through whose hands all such pleas must pass?
In a brief unsigned opinion, to which there were no dissents, the Supreme Court reversed the Pennsylvania high court and declared Girard College must admit the Negroes because, even though the Board of Trustees was acting as a trustee for the Girard trust fund, it “is an agency of the State of Pennsylvania” and therefore its refusal to admit the Negroes amounts to “discrimination by the State.” The Supreme Court so declared, despite the fact that the lower court pointed out that Girard’s will “was never administered by the City in its governmental or sovereign capacity.” It was administered by the Board “solely in the capacity of a fiduciary or trustee, governed, bound and limited by the directions and provisions of Girard’s will.”
The Board’s attorneys, following the Supreme Court’s unsigned five-and-a-half-line decision, asked for a rehearing on the merits of the case. The Court summarily refused it. What were they afraid of? That argument by competent attorneys would force them to reverse themselves?
The incalculable harm possible from this decision of the Court—depriving the free American of his right to dispose of his estate as he chooses—can be seen from the words of the Pennsylvania high court. It pointed out that private trusts for charitable purposes “abound in overwhelming numbers.” Then it said:
We have charitable trusts for ministers of various church denominations, for foreign missions, for churches, priests, Catholics, Protestants, Jews, whites, Negroes, for relief of the Indians, for widows or orphan children of Masons or other fraternities, for sectarian old-folks homes, orphanages and so on.
Certainly no one would contend that a donor or testator could not establish a charity, the beneficiaries of which were to be those whom he designated—persons of any prescribed race, creed or color, or however otherwise differentiated.
Maybe “no one would contend” so, but the Supreme Court of the United States not only contends but says its ruling is the law.
You may think that in this long string of decisions, the Supreme Court has gone about as far as it can go. But you would be mistaken. One of the chief reasons why free men set up governments is to protect the majority of decent, law-abiding citizens amongst them against the minority of those who insist on living without the law. Absence of government in such a case means anarchy. Now, you say, certainly you are not going to accuse the Supreme Court of trying to bring about a condition of anarchy. No, I’m not. I simply ask you to draw your own conclusion after reading the facts in the following case.
In 1954, in Washington, D.C., a woman was doing her washing in the laundry room in the basement of her apartment house. A man named Mallory, with a mask over his face, went into the laundry room and attacked and raped the woman. The police were called, and the next day they brought Mallory, who lived in the janitor’s quarters of the apartment house, into the police station for questioning. He agreed to take a lie-detector test and then said he wanted to talk. He made a complete confession of the crime. Even when faced with the woman against whom he committed the crime, he again repeated his confession. He had been brought to the police station at first only as a suspect—the police did not have sufficient evidence on which to go before a magistrate and have him arraigned. His confession came only seven hours after his arrest. He was indicted, tried, and found guilty, and the jury recommended the death penalty. Mallory never contended that any force, threats, promises, or coercion were used to get his confession. But he appealed his conviction on the ground of illegal detention and unnecessary delay in arraignment.
The United States Court of Appeals in Washington threw out his contention for what it was—an obvious subterfuge to get a confessed rapist off the hook—and said his conviction should stand. But his lawyer appealed the case to the Supreme Court.
Justice Frankfurter (in Mallory v. U.S.), for a unanimous Court, did not find Mallory innocent of rape, though Justice Frankfurter referred to him tenderly as a “19 year old lad.” The Court did not even suggest there was any doubt about his guilt. But it made a new rule. It said the police had no right to question a suspect before arraignment. Since the police had questioned him—and got a confession with no hint whatever of any “third-degree” methods—the Court ordered that he was to have a new trial. Whereupon the prosecuting attorney threw up his hands, declaring that the wording of the Court’s decision made it impossible to retry the case with any hope of conviction. The rapist Mallory walks the streets today a free man—free to rape again—thanks to the Supreme Court of the United States.
The chief of the Justice Department’s criminal division has said that the Mallory decision “clearly demonstrates that a great many very serious crimes will go unpunished . . . not because the truth cannot be ascertained, but because of the procedures that have to be followed to develop the facts.” He went on: “The place where the impact of this decision will be greatest is in the gangster crimes. It is the real hardened professional criminals who will take advantage of this.”
The Washington Evening Star quoted a proponent of this fantastic decision as explaining it this way: “Police can question people if they want to be questioned as long as they are free agents. A suspect can be brought to headquarters and questioned as long as he is free to walk out at any time. But as soon as he is under arrest, it is ‘unreasonable delay’ in arraigning him if police use any time to make a case against him.” As Senator William E. Tenner pointed out on the floor of the Senate, this means that “a suspect cannot be questioned before his arrest unless he agrees, and if he is arrested he cannot be questioned afterwards.”
The results of this decision are already being felt in many places. A man confessed to murdering a girl. He was convicted and sentenced to death. But an appeals court was obliged to say, under the Supreme Court’s new rule, that the confession can’t be validly used because there was too long an interval—sixteen hours—between arrest and arraignment.
In Washington, Chief of Police Robert V. Murray pointed to another Eastern case involving the rape and murder of an eight-year-old girl. Thirty detectives were at work on the case. Over a thousand people were questioned about the crime. But, said Chief Murray, “What good will it do to bring in a good suspect, question him, and get a confession if this decision stands? This decision says he must be arraigned immediately and not questioned after we arrest him.”
And Chief Murray put his finger on the Court’s overpowering concern for the rights of the criminal while the rest of our law-abiding citizens can go hang. He said: “Innocent persons in great numbers would, of necessity, have to be arraigned and the stigma of a police record placed against them unless there is reasonable time to clear them by interrogation and investigation before arraignment.” But to the “liberal” Supreme Court, so very much concerned about the “civil liberties” of communists and criminals, this means nothing.
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