Constitutional History, 1945–1961

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CONSTITUTIONAL HISTORY, 1945–1961

Reconversion to a peacetime society required reestablishing balance among the branches of the government and a careful reassessment of the role of each. The same process occasioned a reexamination of the relations between government and private power. These immediate problems of reconstruction were joined by the emergence of a "cold war" with the Communist bloc of nations. Americans defined that struggle as one against totalitarian rule—the antithesis of constitutional democracy.

The wartime period had seen massive government regulation of the economy and the personal lives of citizens. Congress had authorized governmental reorganization in 1941, reenacting a world war i measure giving the President almost unlimited power to reorganize federal agencies directing the nation's resources in wartime. (See war powers act.) At the end of world war ii, Congress created a bipartisan Commission on Organization of the Executive Branch of the government headed by ex-President herbert hoover. It recommended reforms designed to reduce administrative disorder and bureaucracy. Congress in 1947 proposed the twenty-second amendment (ratified in 1951) limiting presidential service to two terms.

Although many congressional conservatives hoped to roll back various New Deal programs, few were prepared to return the nation's economy to the unregulated control of private business leaders. Depression lessons had been painful. The full employment act of 1946 declared that it was the government's task to take all steps necessary to maximize employment, production, and purchasing power. And while certain conservative congressmen were disturbed by the economic management this measure obviously necessitated, few opposed its goal of securing national economic stability. The Housing and Rent Act of 1947, continuing the wartime Price Control Act, raised an important question: does the war power continue after the shooting has ceased? The Supreme Court, in woods v. miller (1948), answered affirmatively as to legislation responding to wartime dislocations.

The issue of restraints on organized labor dissolved presidential-congressional harmony. President harry s. truman in 1946 vetoed the taft-hartley act, an amendment to the 1935 wagner act, the nation's principal labor law. Taft-Hartley sought to eliminate an alleged prolabor bias by arming management with new rights and imposing limitations on long-established trade union practices. Truman called the act "completely contrary to the national policy of economic freedom," and "a threat to the successful working of our democratic society." But Congress passed it over his veto, and thirty states also enacted antilabor statutes, including right-to-work laws and antipicketing measures. The landrum-griffin act of 1959 sought to combat growing charges of union scandal, extortion, and deprivation of members' rights by imposing more direct federal authority over internal union procedures.

Executive-legislative cooperation resulted in passage of the Cellar-Kefauver Act of 1950, authorizing more rigid enforcement of the antitrust laws against corporate mergers. Two years later, following a Supreme Court ruling striking at "fair trade" laws, Congress passed the McGuire Act exempting state-approved fair trading from the federal antitrust laws. Seen as a consumer protection law, the measure was politically acceptable at the time.

In the foreign affairs area, Congress and the President clashed. Truman had inherited a presidency whose prerogatives in foreign policy had been greatly expanded. Committed to the realization of Roosevelt's postwar programs, Truman backed American participation in the new United Nations. Such action entailed expanding presidential prerogatives at the expense of congressional power. American participation meant applying military sanctions against an aggressor state at the discretion of the United States delegate to the Security Council, who was under the control of the President. By the United Nations Participation Act of 1945 Congress recognized that the President could not commit the United States to participation in United Nations military sanctions without congressional consent, but it acknowledged implicitly that Congress's warmaking power was conditioned by the necessity of international security action. Similarly, when the United States joined the north atlantic treaty Organization in 1950, it pledged automatic intervention if any member suffered armed attack. The question was raised whether such a commitment upset the traditional balance between the executive and legislative branches in questions of war and peace.

With the invasion of South Korea by Communist forces, presidential discretion rather than congressional action provided a dramatic answer. Truman, on June 25, 1950, without asking for a formal declaration of war or consulting Congress, ordered United States police action in the area. This order brought charges from Senator robert a. taft that Truman had "usurped power and violated the Constitution and the laws of the United States." In the "great debate" that followed, Truman's actions and presidential war power generally were condoned, but not without a strong attempt, led by Senator John Bricker, to curb the treaty-making power of the President by constitutional amendment. One form of the unsuccessful bricker amendment would have declared: "A provision of a treaty or other international agreement which conflicts with this Constitution shall not be of any force or effect."

The Supreme Court ultimately eased the minds of Bricker's supporters. The circumstances were constitutionally significant. As new treaties of alliance grew in the late 1940s and early 1950s, American military and civilian personnel spanned the globe. Questions grew regarding the legal status of American citizens living abroad. Did the Constitution follow the flag? In reid v. covert (1957) the Court held that an executive agreement was subject to the limits of the Constitution, and thus could not confer on Congress power to authorize trial by court-martial of a civilian dependent of a serviceman stationed overseas. "We must not," wrote Justice hugo l. black, "break faith with this nation's tradition of keeping military power subservient to civilian authority."

Earlier, Congress had enacted a national security act, creating the National Security Council and reorganizing the means by which war powers were exercised. The measure constricted the President's foreign policy prerogatives by requiring him to consult Congress before taking certain actions. In practice, however, it did not constrain willful Presidents. The atomic energy act of 1946 sought to insure civilian control over atomic energy production and precluded dissemination of technical information to other nations. By the 1950s, however, President Eisenhower sought and obtained an amendment, as the basis for an international cooperation program, to develop peaceful applications of nuclear energy. Nuclear power was apparently to become an important bargaining chip in the international arena.

One incident growing out of the korean war revealed public feelings regarding the swelling authority of the executive and the proper nature of constitutional government. During the war, the President felt that constitutional history was on his side, given earlier validated presidential interventions in national emergency crises. He authorized his secretary of commerce to seize and operate struck steel mills, thereby insuring production of vital defense materials. His executive order was not based on statutory authority, but only on the ground that a threatened strike of the nation's steelworkers created a national emergency. When the steel companies sought an injunction against the government, federal spokesmen argued that the seizure was based upon Article II of the Constitution, and "whatever inherent, implied, or residual powers may flow therefrom." The President's actions drew sharp criticism, especially his refusal to use the Taft-Hartley Act provisions hated by his labor constituency. Before the Supreme Court, government counsel stressed expanded presidential prerogative during national emergencies, but the Supreme Court drew a line between public regulation and governmental operation of private business. In one of its most celebrated postwar constitutional decisions, the Court, speaking through Justice Black, rejected claims for presidential emergency powers and inherent powers in domestic affairs. Truman promptly announced compliance with the ruling, and the public reacted favorably to judicial activism in curtailing excessive federal power. (See steel seizure controversy; youngstown sheet & tube v. sawyer.)

Constitutional development in the Truman years had been heavily influenced by considerations of national security at home and abroad, some serious, some specious, and all heavily political. Republican and conservative southern Democratic opponents of the New Deal had begun in 1938 to "red-bait" the Roosevelt administration by associating its personnel with un-Americanism or by representing the government's extension of powers as socialistic or communistic. Wartime investigations of federal employees and postwar revelations of inadequate security procedures intensified conservative demands for a housecleaning of the executive branch. Capitalizing on this issue during the 1946 congressional elections, the Republicans secured control of both houses of Congress, insuring that the subsequent Congress would investigate the loyalty of federal employees. During this period, the house committee on unamerican activities (HCUA) was given permanent committee status, and between 1947 and 1948 Congress instituted thirty-five committee investigations of federal personnel and policies.

Lacking Roosevelt's political capital, and alarmed by leaks of classified information, Truman moved quickly to take control of the loyalty issue. In November 1946 he appointed a special presidential commission to investigate the problem, and in 1947 he formally instituted, by executive order 983 … permanent federal employee loyalty-security program. To disarm congressional opposition further, Truman appointed conservatives to the loyalty program's major administrative positions. Under this program, negative information from any source was the potential basis for a security dismissal or the denial of government service. An attorney general ' slist of subversive organizations was drawn up, with membership a basis for dismissal. The only guideline the order provided was that a designated organization must be "totalitarian, Fascist, Communist, or subversive," or one adopting a policy "approving the commission of acts of force or violence to deny to others their constitutional rights."

Civil libertarians attacked the program on constitutional grounds, charging that it presumed employees to be subversive and subject to dismissal unless they could prove themselves innocent. Critics of the program also charged that it lacked procedural protections, a charge raised chronically against HCUA. However, the administration moved with regard for justice and fair play during its loyalty probes, and by early 1951 the Civil Service Commission had cleared more than three million federal employees; the Federal Bureau of Investigation had made 14,000 investigations of doubtful cases; over 2,000 employees had resigned, although in very few cases because of the investigation; and 212 persons had been dismissed because of reasonable doubts of their loyalty. In 1948 the executive branch also sought to demonstrate concern for national security by obtaining indictments of the eleven national leaders of the Communist party under the Smith Act. A long and bombastic trial followed, ending in convictions for conspiracy to advocate overthrow of the government by force and violence. (See dennis v. united states.)

Conservative critics claimed that the Truman administration's loyalty efforts were window dressing to divert attention from more serious problems. The sensational Alger Hiss-Whittaker Chambers hearings and the resultant conviction of Hiss, a former New Deal official, for perjury in connection with disclosures of secret security information, catalyzed Congress into launching its own loyalty program. The mundt-nixon bill, seeking to force communists out into the open by requiring them to register with the Justice Department, was caught in 1948 election year politics and failed passage; but by 1950, following the reelection of Truman, the internal securityact, a similar measure, was passed resoundingly over the President's veto. The act went beyond the Truman loyalty program for government employees. It attempted to extend loyalty probes into nongovernmental areas of American life and generally assumed a need to shift the authority for security matters to congressional leadership. Civil libertarians challenged the measure as violative particularly of first amendment guarantees. But in the Korean War period, with burgeoning security apprehensions fed aggressively by Senator joseph r. mccarthy of Wisconsin, the possibility of launching a successful test case of even the act's most extreme provisions promised little success. Instead, Senator Patrick A. McCarran of Nevada, one of the measure's principal champions, persuaded Congress in 1952 to pass, over another Truman veto, a revised immigration law. The act contained provisions to prevent the admission of possible subversives, and it authorized deportation of immigrants with communist affiliations even after they had become citizens.

The expanded activities of congressional committees in legislative investigations of loyalty and security raised important constitutional questions about committee prerogatives and behavior. While practice varied, some of the more flamboyant committees, such as HCUA, Senator McCarthy's Committee on Governmental Operations, or McCarran's Senate Internal Security Committee with large, aggressive, and ruthless staffs, pried into federal activities and even investigated subversion in the movie and entertainment industries, various private organizations, the academic community, and the churches. Committee actions alarmed civil libertarians, because of growing disregard for the type of procedural guarantees and safeguards of individual liberty normally afforded any citizen in a court of law. The committees browbeat witnesses, denied a right to counsel, and afforded no opportunity to examine charges, which were often irresponsible and from dubious sources. Opportunity to cross-examine witnesses was denied. Individuals' past affiliations and activities were used as evidence of guilt, and they were expected to prove themselves innocent to an obviously biased congressional "jury." As a result many witnesses invoked the Fifth Amendment, refusing to testify on the grounds that any statement made might tend to incriminate them. This led to charges that such citizens were "Fifth Amendment Communists." Congress in 1954 passed a federal immunity act to force testimony in return for promises of immunity from prosecution. (See immunity grant.) Generally the courts, including the Supreme Court, were cautious about thwarting government measures, deciding cases on the narrowest of grounds and proscribing only the most overt abuses.

Postwar demands for greater constitutional protections for minorities within American society expanded civil rights. Many Americans believed that the United States should extend first class citizenship to all. The struggle with the Communist world for the minds of Third World people added urgency. Early in 1946, President Truman established a Committee on Civil Rights affirming that "the preservation of civil rights, guaranteed by the Constitution, is essential to domestic tranquillity, national security, the general welfare, and the continued existence of our free institutions." In 1947 the committee proposed extension of an approach initiated by Attorney General frank murphy in the late 1930s, stressing that the federal government should be a shield in protecting citizens against those who would endanger their rights, and a sword to cut away state laws violating those rights. The report called for strengthening the civil rights division of the Justice Department, using the Federal Bureau of Investigation in cases involving violations of civil rights, enacting antilynching and anti-poll tax laws, and establishing a permanent Fair Employment Practices Commission. However, with Southerners dominating many key congressional committees, prospects were dim for any program extending full civil rights to black Americans.

Truman determined to make the effort. In early 1948 he sent Congress a message calling for prompt implementation of the commission's report. A southern revolt in the Congress culminated in the secession of members from the Democratic Party. These "Dixiecrats" ran their own presidential candidate, J. Strom Thurmond, on a states ' rights platform calling for "segregation of the races" and denouncing national action in behalf of civil rights as a "totalitarian concept, which threatens the integrity of the states and the basic rights of their citizens." Although Truman won the election, in the civil rights area he had available only executive remedies. These he utilized, strengthening the Civil Rights Division and encouraging the Justice Department to assist private parties in civil rights cases. He also ordered that segregation be ended in federal employment and that the armed services be fully integrated. (See executive orders 9980 and 9981.) These developments encouraged civil rights activists to look to the courts for constitutional action in behalf of minority rights. Truman's Supreme Court appointees, however, were consistently conservative and espoused a narrow view of the judicial power. Only a few cautious rulings proscribed some forms of racial discrimination. (See shelley v. kraemer; sweatt v. painter.)

Although dwight d. eisenhower shared many of Truman's views regarding the President's vital and dominant leadership role in foreign policy, he conceived the domestic presidency in a different light. No social crusader, Eisenhower also had no desire to undo major programs of the New and Fair Deals. Rather he saw the presidency as a mediating agency, harmonizing the functioning of the team, and ratifying decisions and policies carefully prepared by responsible subordinates or by congressional leadership. Thus during Eisenhower's eight years in office Congress reasserted considerable domestic initiative, and when the President acted he usually complemented congressional desires.

During the 1952 campaign, Republicans made much of the "Communists in government" issue. Eisenhower realized that loyalty-security actions had to be taken to satisfy a nervous public. In 1953, he established a new executive loyalty program that expanded the criteria of the earlier Truman program. Discharge from federal service was now based on a simple finding that the individual's employment "may not be clearly consistent with the interests of national security." Several thousand "security risks" were dismissed. HCUA, cheering from the sidelines, then attempted to subpoena former President Truman to explain his security inadequacies. Truman responded with a polite letter giving the committee a lecture on separation of powers and the independence of the executive.

Critics of the program focused on the absence of procedural due process, the prevalence of guilt by association, and the use of "faceless informers" as sources of damaging accusations. As long as Senator McCarthy was riding high such allegations remained just that. Tired of being smeared as "soft on Communists," frustrated liberal Democrats pushed through Congress a communist control act in 1954, outlawing the party and initially seeking to make party membership a crime. The act proved virtually unenforceable. With the Senate censure and eventual demise of Senator McCarthy and the growing lack of enthusiasm of the Eisenhower administration for fueling the loyalty hysteria, security issues drifted into the background. By the late 1950s respectable bodies such as the New York City Bar Association and the League of Women Voters called for more precise standards for the federal government's loyalty-security program. With the Supreme Court also questioning aspects of that program's constitutional insensitivity, the President in early 1960 established a new industrial security program with vastly improved procedural safeguards. It included fair hearings, the right of confrontation, and the right to examine all charges under ordinary circumstances. The same spirit came to prevail in the operation of other security programs.

The Eisenhower administration showed concern for state prerogatives and the need for balancing them against the rights of the individual. The federal government's growth in size and power since the late 1930s had been paralleled in state governments. During this period the states collected more money, spent more, employed more people, and engaged in more activities than ever before. When the expenditure and employment were assisted by federal grants-in-aid, lack of state compliance with federal standards meant potential loss of federal revenues. But states acted enthusiastically on their own in areas ranging from education and social services to a struggle with the federal government over control of natural resources. In 1947 the Supreme Court ruled that the United States had dominion over the soil under the marginal sea adjoining California. That state had maintained it was entitled, by virture of the "equal footing" clause in the act admitting it to the Union, to the rights enjoyed by the original states and that those states owned such offshore areas. The Court concluded that such ownership had not been established at the time of the Constitution, and the interests of sovereignty favored national dominion. But following the victorious Eisenhower campaign of 1952, in which the Republicans had courted the West and the South with promises of offshore riches, Congress passed the Submerged Lands Act of 1953, vesting in the states the ownership of lands beneath the marginal sea adjacent to the respective states. The Supreme Court subsequently denied leave to file complaints challenging the statute's constitutionality.

At another level, states and municipalities became so concerned in the 1950s with employees' loyalty that they enacted restrictive security measures. These included prohibiting the employment of Communist party members, loyalty oaths as a condition of employment for teachers, service personnel, and candidates for public office, and measures authorizing state prosecution for sedition against the United States. State bar associations in turn moved to exclude from admission candidates who were allegedly former Communist party members or who refused to answer questions regarding former suspect affiliations. When the Supreme Court struck at such state sedition laws (pennsylvania v. nelson, 1956) and bar restraints (schware v. new mexico board of bar examiners, 1958; konigsberg v. california state bar, 1957) its actions were denounced by the Conference of Chief Justices of the States as "the high-water mark … in denying to a state the power to keep order in its own house." Bills were introduced in Congress to deny the Court appellate jurisdiction in cases of this kind.

In this atmosphere, national leaders were hesitant to push for early implementation of the Supreme Court's desegregation mandate, and preferred to interpret the command "with all deliberate speed " by emphasizing deliberation. A pattern of "massive resistance" emerged in the southern states, constituting a crazy quilt of interposition proclamations, pupil-assignment or placement laws, freedom-of-choice laws, tuition grant plans, and state statutes prescribing discipline of teachers for violation of state policies on the school segregation question. Meanwhile, federal authorities sat on their hands until after the 1956 election. Then they took cautious steps to bring the federal government more directly into the civil rights area. Eisenhower's attorney general proposed a federal statute to authorize an investigation of rights violations, particularly voting rights. The civil right act of 1957 passed after Southerners had so amended it as to make it virtually toothless. When Eisenhower signed the act into law early in September, he could have used a much stronger bill. One week earlier Governor Orville Faubus of Arkansas, an acknowledged segregationist, had ordered state troops into Little Rock to prevent implementation of a federal court order approving the admission of a handful of black students into that city's Central High School. Confronted with military defiance of federal authority, Eisenhower had no choice but to respond. He reluctantly dispatched several companies of the United States Army to Little Rock, under a provision of the United States Code, which authorized the suppression of insurrection and unlawful combinations that hindered the execution of either state or federal law. (See posse comitatus act.) He also nationalized and thus neutralized the Arkansas National Guard. Black children attended school for a year under military protection and Arkansas's massive resistance was held at bay by bayonets.

After the Little Rock case was decided by the Supreme Court in cooper v. aaron (1958), which sustained the school desegregation order, Congress also acted. The civil rights act of 1960 made it a federal crime for a person to obstruct or interfere with a federal court order, or to attempt to do so by threats of force. Other provisions expanded federal remedies for enforcing voting rights. The measure, for which the Republicans claimed credit in their 1960 platform, put Congress and the executive branch on record as committed to push ahead with rights enforcement.

For minority groups without the political constituency of blacks, little positive action was forthcoming. Women's rights in this period was a subliminal theme at best. Women's work in World War II had gone a long way toward shattering the stereotype of the helpless, weaker sex in need of protective legislation. Some leaders in Congress moved toward proposal of the equal rights amendment as a vote of thanks to women for their magnificent wartime performance. Both parties endorsed the measure at war's end, and Harry Truman spoke publicly in its support. But Eleanor Roosevelt, with the support of organized labor, insisted that protective legislation was more valuable for working women than the establishment of an abstract principle of legal rights. Despite two attempts in the Senate to pass a bill proposing the amendment in the late 1940s, and a third in 1953 with a rider specifying that no protective legislation was to be affected, the measure was not seriously revived in this period.

The rights of American Indians suffered even more. In 1953, the Eisenhower administration set out on a policy of "termination," supporting a program designed to reduce the federal government's involvement in Indian affairs and to "free" Indians from federal supervision. Specifically, termination sought to end the existing supportive federal-tribal relationship and transfer almost all responsibilities and powers from the federal government to the states. The effects on "terminated" tribes was disastrous; many tribal members were soon on public assistance rolls. Indians detested the law embodying this policy, seeing it as an instrument for tribal extinction. They expended their energies to defeat it, and finally achieved victory in 1968. The Indian Civil Rights Act of that year encouraged Indian self-determination with continuing government assistance and services.

The judicial branch in the period from 1945 to 1961 changed from a cautious and accommodating agency, under Chief Justice fred m. vinson, to an active, aggressive, and controversial storm-center under Chief Justice earl warren. Just as william howard taft had made the Supreme Court the principal instrument for the determination of constitutionality in the 1920s, Earl Warren, who assumed the chief justiceship 1953, came to play a similar role in the late 1950s. Often backlash resulted, but in Warren's case, from conservatives and not liberals. Statistically, the warren court's record was not so activist as that of the 1920s. Four acts of Congress, eighty-five state acts, and sixteen ordinances were ruled unconstitutional from 1945 through 1960, with the Justices overruling twenty-two prior decisions. But the activist image was strong because the Court entered explosive areas of sensitive public policy.

The Court's unanimous decision in brown v. board of education (1954) had shocked southern states-righters into defensive and retaliatory actions. The Court's consistent pushing ahead in the civil rights area sustained and intensified this antipathy. But Warren, supported by a liberal majority, was not prepared to stop. In the loyalty-security area, the Court limited the more sweeping provisions of the Smith Act, the Internal Security Act of 1950, and state loyalty measures. The rights of individuals and their protection from the abuses of government seemed to come first to the Justices' minds. The Court struck at departures from fair procedure by congressional committees. In Jencks v. United States (1957) it ruled that a defendant in a criminal case should have access to prior recorded statements of witnesses against him. Congress promptly sought to limit that ruling by the passage of the jencks act. By the late 1950s, the Justices began the process of critically examining state anti-obscenity and censorship laws. In Congress there was talk of the need to curtail the Court's authority through legislation limiting its appellate jurisdiction. National action by right-wing groups quickly emerged to bolster such a movement, contributing to a broad public dialogue on the Court's proper function.

Defenders and critics of the Warren Court's liberal activism debated the proper role of the Constitution in the American polity. Champions of liberal judicial activism defended the legitimacy of judicial activity to shape constitutional law in accordance with democratic values. Supporters of judicial restraint advocated deference to popularly elected legislatures with courts confined to a narrowly circumscribed role. To conservative constitutionalists, the rule of law meant more than the imposition by a liberal Court of its own ethical imperatives, with little concern for orthodox doctrinal consistency.

There were no winners in this debate. But it proved apropos to the developments of the 1950s and to the institutional interrelationships of those years.

Paul L. Murphy
(1986)