Evening star., 1923-04-15
FESS FOR Changing
HIGH COURTS VOTE
"TWo-Thirds of Bench
Should Be Required to
Null Congress Acts"

Prompted by the recent decision of
the United States Supreme Court de-
claring the minimum wage law of the
District unconstitutional, Senator
Simeon d. Fess of Ohio declared his
conviction that the Constitution should
be amended, requiring a two-thirds
vote by the Supreme Court before an
act of Congress can be wiped off the
statute books as unconstitutional.
At the same time he emphasized his
firm opposition to the proposal of the
radical bloc that decision of the
Supreme Court could be reversed by
a two-thirds vote of Congress. He ex
the slightest degree impugn upon the
one all-important feature OF inde-
pendence of the courts, nor violate
the equal power of the coordinate de
partmentS, which Is the very basis or
the American system.
1t is now charged that the law of
Congress is set aside by a mere
guess, Senator Fess points out. when
nVe men vote to set II aside ana four
vote to sustain 1t. 1t does seem
important as to invalidate an act
sanctioned by two houses of Con-
gresS. composed of 531 members,
large majority of whom are lawyers
aud among whom are those capable
of being appointed upon the Supreme
bench. and the act further indorsed
by the President in consultation with
the Department of Justice that such
act should not be wiped out by the
close vote Of five to four.
Sees BENEFIT in Change.
The country would be better salts
fed. senator FeSS Is convinced and
every feature of our American sys-
TEN of independent coordinate pow
erS would be respected if it should
be decided that each result should
be reached only when two-thirds of
the court concurs-unless upon a
case to be confirmed from a lower
court where the unconstitutiouality
was decreed by at least more than ii
mere majority vote, as is provided in
the Ohio law
In explaining his line of thought
upon this subject, Senator Fess says:
Our supreme concern should be
to preserve the indepe ndence of the
coordinate departments of the gov
ernment. including that of the judici-
AIRY, which Is the one differentiating
feature of our system from ali
others. Most governments have a
judicial department but subject 10
the legislative. while ours is equal
In independence of function TO either
the leGi iSlative or executive. The
judicial is not equal in power, as it
has neither the power of the purse
or the sword to enforce its DEGREES.
The legislative is possessed of the
FORMER While the executive has the
| latter. But in the freedom of exer-
, else of function TO interpret the laws
made by the Legislative and enforced
by the executive. ii is equal to
either. In the exercise of this right
of independence the court in a series
of decisions extending over more
than century and a quarter of dura
tion has eXerted the most profound
influence in creating a stability in
government unequaled in history.
| Now comes new proposal to per-
decisions and by a two-thirds vote of
| both bodies reverse them. This goes
to the heart of our system. 1t is
merely an intermediary step and
designated TO break down the ju-
dietary as provided by the founders
| to interpret the law in the light of
| the Constitution, which is the guidance
| of all law enactment.
| Intermediary Steps.
| Not so in the matter of two-thirds
| vote of the Supreme Court to declare
| a law unconstitutional. That does not
| impinge in the slightest degree upon
| the one all-important feature of in
\ dependence of the court. and does
| not in the slightest degree violate the
| equal power of the coordinate de-
partments, the very basis of the
American system. on the other hand
| it is in keeping with the ideas OF
| founders in creating and main
| tanning a system of balanced power.