Constitutional Law Commons^™

Mayers: Shall We Amend The Fifth Amendment?, B. J. George Jr.

Michigan Law Review

A Review of Shall We Amend the Fifth Amendment? ? By Lewis Mayers

Constitutional Law- Due Process- Conviction Without Evidence Of Guilt, Donald A. Slichter

Michigan Law Review

Petitioner was convicted in the Police Court of Louisville, Kentucky, of two offenses. After seeing petitioner "dancing by himself" on the dance floor, the police charged him with loitering; when he became argumentative about this arrest, he was also charged with disorderly conduct. Although he protested that he had come into the restaurant where he was arrested to "wait on a bus" and have a meal, he was nevertheless taken into custody. At the trial the arresting officer testified that the manager had told him that petitioner had been there "a little over a half hour and that he had …

Constitutional Law- Search And Seizure- Search Incidental To An Administrative Arrest, James J. White

Michigan Law Review

As a preliminary to deportation proceedings, defendant, Rudolf I. Abel, was arrested in his hotel room by Immigration and Naturalization Service agents who acted pursuant to a valid administrative arrest warrant. After the arrest, but without a search warrant, the INS searched Abel's room and seized evidence later used in his trial for espionage. In the district court Abel moved to suppress this evidence on the theory that the search violated the fourth amendment. The district court's denial of the motion was affirmed by the Court of Appeals for the Second Circuit. On certiorari to the United States Supreme Court, …

Constitutional Law - Governmental Immunity - Immunity Of Agent Of Federal Government To State Taxation, Robert M. Steed S.Ed.

Michigan Law Review

E. I. du Pont de Nemours and Company contracted with the Atomic Energy Commission to construct and operate the Savannah River Project for development of the hydrogen bomb for a fee of one dollar. Under the contract du Pont was to purchase all materials and supplies with funds furnished by the United States, title to vest in the government immediately when it passed from the vendor. South Carolina attempted to apply its sales and use taxes to these purchases. In an action by the United States and du Pont before a statutory three-judge district court to enjoin collection of these …

Constitutional Law - Due Process - Right Of Second Offender To Pre-Sentence Hearing Regarding Prior Conviction, John Edward Porter S.Ed.

Michigan Law Review

Relator was convicted of burglary in 1953 and of voluntary manslaughter in 1954. While passing sentence after the latter conviction, the court declared that it was exercising its discretion under the Habitual Criminal Act by imposing a double penalty on the relator. Neither relator nor his counsel objected to the procedure or demanded a hearing regarding the prior conviction. On petition for writ of habeas corpus, which was denied by the lower court, relator admitted the fact of his prior conviction. He asserted, however, that although the habitual criminal statute in terms contains no provision granting alleged second offenders notice …

Constitutional Law - Civil Rights - Restrictions On The Use Of Legal Materials By Prisoner, Russell A. Mcnair Jr.

Michigan Law Review

Plaintiff prisoners brought separate actions against the warden of the Oregon State Penitentiary, alleging that the enforcement by prison officials of restrictions on the availability, use and purchase of law books resulted in a denial of full access to the courts. It was further alleged that each of them must do by himself all or part of the legal preparation necessary to contest his detention or to defend criminal charges pending against him in a state or federal court. In proceedings brought in the federal district court under the Civil Rights Act to enjoin further enforcement of these restrictions, held …

The Constitutions Of West Germany And The United States: A Comparative Study, Paul G. Kauper

Michigan Law Review

The purpose of this article is to present a descriptive overall picture of the fundamental features of the system established by the Basic Law and at the same time point up significant comparisons and contrasts by reference to the Constitution. Eleven years have now elapsed since the Basic Law went into effect, and significant decisions of the Federal Constitutional Court (Bundesverfassungsgericht ) noted at the appropriate points, serve to illuminate the working of the system established by it.

Constitutional Law - Due Process - Zoning Restrictions Requiring Land Owners To Provide Off-Street Parking, Eldon Olson

Michigan Law Review

In 1956 the City of Denver passed an ordinance requiring land owners to provide off-street parking if and when they erect new buildings or make structural alterations or change the existing use of the land. The restriction applied to a district adjacent to the traditional downtown district which was in the process of changing from residential to commercial. The ordinance did not specify whether the property owners retained control over parking areas, but the city argued that parking could be restricted to persons using the property. Plaintiff property owners alleged the ordinance was unconstitutional and were granted a declaratory judgment …

Greenberg: Race Relations And American Law, Spencer L. Kimball

Michigan Law Review

A Review of RACE RELATIONS AND AMERICAN LAW. By Jack Greenberg.

Free Will In The Frontiers Of Federalism, John R. Brown

Michigan Law Review

In an assembly dedicated, as this one is, to frontiers in law and legal education in celebration of the centennial of this great Law School and forecasting what is to be expected in the next one hundred years, the idea of states' rights-of the federal-state relationship-has seemed almost ironic.

Search And Seizure - Suppression Of Evidence - Judicial Attitude Toward Enforcement, John B. Waite

Michigan Law Review

The "numbers game" is today the most profitable of the wide-spread gambling rackets. And like all organized gambling it is a focal source and the financial support of far more serious crimes. At the same time it is one of the most difficult forms of crime for the police to control. It needs no costly installations which the police can confiscate or destroy. Unlike "house" gambling it cannot practically be harassed out of business. It can be operated by one man alone, if he survives failure to pay off for lack of capital; or by a syndicate with capital enough …

Civil Rights - Elections - Federal Injunction Against Racial Discrimination, Robert Jillson

Michigan Law Review

In September 1958, in its first complaint under the Civil Rights Act of 1957, the United States sought to enjoin certain election registrars and deputy registrars in Terrell County, Georgia from continuing racially-discriminatory practices in their registration of voters. The defendants, claiming the 1957 statute to be unconstitutional, moved for dismissal. The district court granted defendants' motion, rejecting government arguments that the subsection authorizing suit by the United States was limited to cases, like the case before the Court, of discrimination by the state. On direct appeal to the Supreme Court, held, reversed. Because the alleged racial discrimination by …

Constitutional Law - Substantive Due Process - Statute Prohibiting Use Of Contraceptives, Erik J. Stapper S.Ed.

Michigan Law Review

A Connecticut statute prohibits the use of contraceptives to prevent conception. Plaintiff-doctor sought a declaratory judgment to have the statute declared unconstitutional as an unreasonable restraint on his right to practice his profession inasmuch as his advice would render him an accessory to a violation of the statute. Three companion cases were also brought, one by a patient to whom another pregnancy would present serious danger, and two by married couples who could not give birth to normal children. The patients claimed that the statute deprived them of the doctor's best medical advice which would relieve them of a dangerous …

Constitutional Law - Due Process And Right Of Confrontation- Jencks Act, Robert J. Margolin S.Ed.

Michigan Law Review

The Jencks Act like the rule it purportedly reaffirmed, was designed to insure "justice." Although the stated purpose of the act was to preserve the rights of any defendant under due process of law, the question remains unresolved whether, in articulating the rule in terms of "justice," the Court in Jencks v. United States incorporated it into the requirements of due process. To be sure, the underlying intent of both the Court and Congress is unclear, but of far more concern than the intent is whether the Jencks Act, in fact, violates the constitutional mandates of the Fifth and Sixth …

Civil Rights - Due Process - Action For Civil Conspiracy Based On Section 1983, James B. Blanchard

Michigan Law Review

In an action for damages based on sections 1983 and 1985 of the Civil Rights Act, plaintiff alleged that a county health officer and his deputy, pursuant to a conspiracy, forcibly took plaintiff to a mental hospital and confined him there for a period of two months in willful violation of a state court order requiring plaintiff to be brought before the court for a sanity hearing. Plaintiff also alleged a false return of citation to the court by the officers and an intentional suppression of facts by the officers and the examining physician regarding plaintiff's illegal detention. Plaintiff contended …

Constitutional Law - Due Process - Summary Dismissal Of A State Employee Who Invokes Fifth Amendment Before A Congressional Committee, John L. Peschel

Michigan Law Review

While employed as a social worker by the County of Los Angeles, Globe was subpoenaed to appear before a subcommittee of the House Un-American Activities Committee. California law imposed a duty on public employees to appear before certain tribunals and answer questions within specified categories, including an inquiry by a committee of the United States Congress as to past or present membership in the Communist Party. Failure to comply with the statute constituted insubordination, which would result in dismissal "in the manner provided by law." Because Globe had not yet acquired tenure, he was not entitled under civil service rules …

Constitutional Law - Separation Of Church And State - Bible Reading In The Public Schools, Henry B. Pearsall

Michigan Law Review

Plaintiffs, as parents of children in the public school system, sought to enjoin and have declared unconstitutional the practice of reading aloud to students each day ten verses of the Holy Bible as required by a Pennsylvania statute. The plaintiffs contended that this practice constituted an establishment of religion and a prohibition of the free exercise thereof and was therefore a violation of rights guaranteed by the First Amendment to the United States Constitution. By a three-judge district court, held, for plaintiffs. The statute violated the United States Constitution because the Bible is essentially a religious book and the …

Meiklejohn: Political Freedom, Paul G. Kauper

Michigan Law Review

A Review of Political Freedom. By Alexander Meiklejohn

Labor Law - Labor-Management Relations Act - Constitutionality Of The Emergency Strike Provisions, James N. Adler

Michigan Law Review

In an effort to settle a nationwide steel strike the President invoked the "national emergency" provisions of the Taft-Hartley Act. Having made the requisite finding that the strike would "imperil the national health or safety," he appointed a board of inquiry to investigate the dispute. Upon receipt of the board's report the President directed the Attorney General to seek an injunction against the strike. Basing its determination largely upon the strike's hindrance of the national defense program, the district court found the strike would "imperil the national health or safety" and granted the injunction The court of appeals, affirming, rejected …

Constitutional Law - Congressional Investigation Of Political Activity-Watkins V. United States Re-Examined, Avrum M. Gross S.Ed.

Michigan Law Review

It is the function of this comment to examine the traditional scope and limitations of congressional investigations, with particular emphasis on these two cases.

Constitutional Law- Civil Rights - Union Use Of Dues For Political Action, Paul Hanke

Michigan Law Review

Defendant unions under the authority of section 2, Eleventh of the Railway Labor Act obtained union shop agreements from defendant railroads. Non-union employees sought to enjoin enforcement of the agreements because the unions used periodic dues, fees, and assessments to support political doctrines and candidates opposed by plaintiffs. The trial court dismissed for failure to state a cause of action, but the Supreme Court of Georgia overruled the dismissal and remanded. The lower court then ruled that petitioners were denied constitutional liberties and issued the injunction. On appeal, held, affirmed. Enforcement of union shop contracts requiring employees to pay …

Constitutional Law - Due Process - Retroactive Application Of Uniform Principal And Income Act, Thomas E. Kauper S.Ed.

Michigan Law Review

The trustee of a trust created prior to the 1957 enactment of the Uniform Principal and Income Act petitioned for instructions as to whether a stock dividend received by it subsequent to the passage of the act should be allocated to principal or income. The Uniform Act provides a rule for the treatment of stock dividends contrary to the judicial rule previously adopted in Wisconsin, and is expressly made applicable to trusts existing on its date of enactment. The county court, finding the act could not be constitutionally applied to trusts created prior to its enactment, ordered the allocation of …

The Supreme Court - October 1958 Term, Bernard Schwartz

Michigan Law Review

The Supreme Court, reads a famous passage by Bryce, "feels the touch of public opinion. Opinion is stronger in America than anywhere else in the world, and judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken."

The history of the highest Court bears constant witness to the truth of Bryce's statement. Supreme Court action which has moved too far in one direction has always ultimately provoked an equivalent reaction in the opposite direction. Even an institution as august as the high tribunal cannot escape the law …

Constitutional Law- Equal Protection - Right To Counsel In Appeal By Indigent Person, Gertrude S. Rosenthal S.Ed.

Michigan Law Review

Following his conviction for assault with intent to commit rape, defendant gave notice of appeal. Declaring he was indigent but with meritorious grounds for prosecuting an appeal, he petitioned the appellate court for the appointment of counsel to present his case by brief and oral argument. No information concerning the defendant's age, education or experience was given by the petition, nor were specific grounds for review alleged. Appeal is a matter of right in criminal cases in the jurisdiction. Held, petition denied, two judges dissenting. No action will be taken until a transcript of the record is filed. The …

Conflict Of Laws - Custody Decrees - Jurisdiction To Modify And Effect In Sister States, Donald R. Jolliffe S.Ed.

Michigan Law Review

Husband and wife were divorced in Wisconsin in 1956 by a judgment which awarded alimony, custody of the children, and support money to W. The custody decree provided that W be permitted to remove the children to California but that they be allowed to visit H each summer. While H was visiting California in October 1957, he was served in an action commenced by W seeking absolute custody. H returned to Wisconsin and on November 5 asked the Wisconsin court to modify its divorce judgment by awarding custody of the children to him. That court set a hearing and …

Constitutional Law - Due Process- Residence Substituted For Domicile As Basis For Divorce Jurisdiction, Paul Gerding S.Ed.

Michigan Law Review

Plaintiff husband brought a divorce action under an Arkansas statute, which granted state courts divorce jurisdiction on the basis of residence of one of the parties within Arkansas for three months, to terminate a marriage performed in another jurisdiction. Defendant wife, domiciled in California, filed a cross complaint for separate maintenance and attacked the court's jurisdiction to grant the divorce. The lower court held the act unconstitutional in eliminating domicile of one of the parties as a jurisdictional requirement in a divorce action, and, finding that the plaintiff was not domiciled in Arkansas, dismissed the suit. On appeal, held, …

Constitutional Law - Import-Export Clause - Power Of State To Tax Foreign Imports Supplying Current Operating Needs, Stevan Uzelac

Michigan Law Review

Appellant imported from five countries iron ore which was stored at its processing plant and drawn upon to fill the current operational needs of the plant. When the ore arrived it was originally stored in stock piles containing a three-month supply. As needed, ores were conveyed from the stock piles to "stock bins," holding one or two days' supply and located in close proximity to the plant, from which the ores were used in the operation of the plant. The State of Ohio collected a personal property tax upon all the imported ore. In a companion case petitioner imported from …

Constitutional Law - Commerce Clause - Power Of States To Levy Net Income Tax On Businesses Engaged In Soley Interstate Commerce, John C. Peters S.Ed.

Michigan Law Review

Appellant, an Iowa corporation, maintained a sales office in Minnesota and employed salesmen who solicited orders from dealers within that state, though all of its sales contracts were made at the corporation's home office in Iowa. In accordance with a Minnesota statute, a state net income tax, fairly apportioned to the state's share of the corporation's interstate business, was levied upon appellant. In a suit brought by the state to collect this tax, appellant contended that the statute as applied violated the commerce and due process clauses of the Federal Constitution because it taxed the net proceeds of a business …

"Federal Question" Jurisdiction -- A Snare And A Delusion, Ernest J. London

Michigan Law Review

Poorly defined criteria in the area of jurisdiction are especially wasteful, generating as they often do expensive and protracted litigation over threshold issues, rather than promoting the speedy determination of lawsuits on their merits. One of the most perplexing exercises in American law practice is the effort to define with certainty the original jurisdiction of the lower federal courts in matters where there is no diversity of citizenship. Although this general head of federal jurisdiction has persistently and pervasively been characterized as "federal question" jurisdiction, it is doubtful whether there is, in fact, original jurisdiction in the lower federal courts …

Constitutional Law - Courts - Martial - Power Of Congress To Provide For Military Jurisdiction Over Retired Servicemen, Stephen B. Flood

Michigan Law Review

A retired naval officer was charged with violations of the Uniform Code of Military Justice based upon acts of sodomy occurring after his retirement. At arraignment he challenged the jurisdiction of the military tribunal on the ground that Article 2(4) of the U.C.M.J., providing for court-martial jurisdiction over retired servicemen, contravenes the Fifth Amendment. The court-martial and the board of review overruled this objection, and the accused was convicted and sentenced. On appeal, held, while jurisdiction is proper, reversed on other grounds for further proceedings. A retired member of the armed forces who is entitled to pay is a …