sustaining an antisyndicalist
statute, the Court adopted _arguendo_ the proposition which it had
previously rejected, that "liberty" in Amendment XIV renders available
against the States the restraints which Amendment I imposes on Congress.
For fifteen years little happened. Then in 1940, the Court supplemented
its ruling in the Gitlow Case with the so-called "Clear and Present
Danger" rule, an expedient which was designed to divest state enactments
restrictive of freedom of speech, of press, of religion, and so forth,
of their presumed validity, just as, earlier, statutes restrictive of
freedom of contract had been similarly disabled. By certain of the
Justices, this result was held to be required by "the preferred
position" of some of these freedoms in the hierarchy of constitutional
values; an idea to which certain other Justices demurred. The result to
date has been a series of holdings the net product of which for our
Constitutional Law is at this juncture difficult to estimate; and the
recent decision in Dennis _v._ United States under Amendment I augments
the difficulty.[74]

A passing glance will suffice for the operation of the due process
clause of Amendment V in the domain of foreign relations and the War
Power. The reader has only to consult in these pages such holdings as
those in Belmont _v._ United States, Yakus _v._ United States, Korematsu
_v._ United States, to be persuaded that even the Constitution is no
exception to the maxim, _inter arma silent leges_.[75]

In short, the substantive doctrine of due process of law does not today
support judicial intervention in the field of social and economic
legislation in anything like the same measure that it did, first in the
States, then through the Supreme Court on the basis of Amendment XIV, in
the half century between 1885 and 1935. But this fact does not signify
that the clause is not, in both its procedural sense and its broader
sense, especially when supplemented by the equal protection clause of
Amendment XIV, a still valuable and viable source of judicial protection
against parochial despotisms and petty tyrannies. Yet even in this
respect, as certain recent decisions have shown, the Court can often act
more effectively on the basis of congressional legislation implementing
the Amendment than when operating directly on the basis of the Amendment
itself.[76]

Resume

Considered for the two fundamental subjects of the powers of government
and the