Block v. Hirsh

Justice McKenna's dissent responded both to this decision and to Holmes' decision in the companion case Marcus Brown Co. v. Feldman (1921), approving rent control in New York City. McKenna's dissent presented an impassioned defense of the traditional and constitutional limits on arbitrary government power. Under the Fifth and Fourteenth Amendments, states cannot take property without due process of law. And Article I, section 10, specifically states that "No State shall . . . pass any . . . law impairing the obligation of contracts."

The grounds of dissent, said McKenna, are these "explicit provisions of the Constitution of the United States." Their application is so plain that no further argument is needed. Whatever the excuse, including the supposed demands of war, a violation of the Constitution "is an evil--an evil in the circumstance of violation, of greater evil because of its example and malign instruction."

These violations of the Constitution will, moreover, do nothing to advance public health or the operations of the federal government. He sought to answer the question of why these provisions were needed.

The answer is, to supply homes to the homeless . . . If the statute keeps a tenant in, it keeps a tenant out . . . Its only basis is that tenants are more numerous than landlords.

Housing is scarce, it was said, and therefore it could be taken from those who had it.

If such an exercise of government be legal, what exercise of government is illegal? Houses are a necessary of life, but other things are as necessary. May they too be taken from the direction of their owners and disposed of by the Government?

In controlling rents, the majority had argued that Congress simply imitated the laws of other countries. Have conditions in the United States and in the rest of the world, come to the point that they

are not amenable to passing palliatives, so that socialism, or some form of socialism, is the only permanent corrective or accommodation? It is indeed strange that this court, in effect, is called to make way for it and, through the instrument of a Constitution based on personal rights . . . to declare legal a power exerted for their destruction.

McKenna's dissent was eloquent, but Holmes's decision for the majority set lasting precedents. The Court, in fact, held invalid an attempt to continue rent control in the District until Chasleton Corp. v. Sinclair (1924). In this case, Justice Holmes declared that the emergency that had justified the 1919 law no longer existed. When war returned, however, Congress in 1942 set up an office to fix the prices of all residential rents and most other goods. Once again the Supreme Court placed no limits on governmental power in wartime.