Evening star. [volume] (Washington, D.C.) 1854-1972, 1923-04-08
BY G.. GOULD LINCOLN.

Ri Us oOtLD LINCOLNs
~ HOULD the Supreme Court Of the
United States by majority de-
cree decide the constitutionality
- Of legislation enacted by Congress
or by the state legislatures?
This Is not a new question-al-
though it has been given prominence
recently by the adherence of Senator
-Borah of Idaho, reckoned a great
constitutional lawyer to the proposal
that seven out Of the nine members
of the Supreme Court must declare
a law of Congress unconstitutional
to make 1t so, and by a somewhat
similar proposal advanced by Senator
Fess of Ohio. AS early as 1923 and
1924 the matter was asitated in Con-
gress. Martin VAN Buren, reported a
bill for that purpose. In 1868 there
was passed by the House a bill re-
curing two thirds of the members
OF the court to hold a law unconsti-
tutional.
Demand Wid.r Marxin,
The proposal advanced by Senator
Borah and by Senator Fess is a vastly
different proposition than the pro-
posal in some other quarters that
the Supreme Court shall have no
power to review the laws of Congress
TO determine whether they are in con-
flict with the Constitution. Senator
Borah does not propose that the Su-
preme Court shall not pass upon the
constitutionality of the acts of Con-
he I@
is that it shall require more than a
mere majority of the court to set
aside an act Of Congress. Although
his bill as introduced does not pro-
vide that 1t shall require more than
a majority to declare a state law un-
constitutional, he is willing, and be-
GeveS, that the bill should be
amended to cover state laws as we'll
as federal laws. His position is that
decisions by the Supreme Court on
the constitutionality OF acts of Con-
gress and the state legislatures by
to 4 decisions, with one man prac-
tically holding the balance, tends to
bring upon the Supreme Court crtti-
cism from which 1t should be free.
He believes, too, that the adoption of
ton that has arisen to take from the
court the right to pass upon the con-
stitutionality Of laws of Congress and
the states.
The Senate rules committee, headed
by Senator Curtis Of Kansas. acting
under a resolution adopted by the
Senate, has had prepared for publica-
ton as a Senate document the Con-
stitution and it's amendments. with
annotations Of all the decisions Of
the Supreme Court upon the ques-
tons involving the constitutionality
Of the acts Of Congress and the
states. The compilation was made by
George Gordon Payne, acting for the
committee.
Not an Extended Record.
1t is interesting to observe that
since the beginning of the govern
ment the Supreme Court has declared
only 80 acts of Congress unconstitu-
tional. Some Of these acts have been
of much public interest, however,
notably tho child-labor laws passed
by Congress. the first income-tax law
put through Congress in 1894, the
corrupt practices law under which
former Senator Newberry of Michi-
gan, republican, was tried, and laws
relating to workmen's compensation.
There have been approximately 800
cases in which the Supreme Court has
hold state constitutions and statutes
enacted by the states to be in con-
fitct with the Constitution. Consider
Ing the number OF states, and the
number of laws eminating from the
state legislatures, the number does
not appear large. One Of the inter-
esting state laws held unconstitu-
ttonal was the so-called Lochner case,
involving a law Of New York provid-