Evening star., 1924-01-18
Views Held Erroneous.
Statements By Ex.Vice President Mar
shall CHALLENGED.

To the Editor OF The Star:
Ex-vice President Marshall. in a
syndicated letter published in The
Star on Sunday. takes two positions
which. should not, think, be allowed
to 60 without challenge. ..
In the first place, he feels. appar-
entity, that Congress should not. inter-
fere with the decisions by the Su.
prems Court by q bare majority de-
stroying, legislative acts as uncon-
stituuonalA He believes an attempt
by Congress- Cor, presumably. by con-
stitutional amendmenD to prohibit
tho Supreme, Court from declaring
such acts Unconstitutional by q two
thirds or seven -ninths vote to be de-
structive of ."the principle of major-
ity rule" which he holds necessary
to- our government. He thinks the
court has the same right that other
branches Of the government have to
decide matters on the principle Of a
bare majority. 80. 80 80
The ex-vice President seems to be
obliyioust to the fact that the, decla-
ration Of Legislative acts as uncon-
'stitut1onaL is one of the most impor-
taut jurisdictions a court can exer-
cise,- and that with regard to other
branches OF the government, when
matters Of the, highest Importance
arise the vote Of a bare majority
does not determine. Z, To. illustrate,
the body oyer which he presided may
not ratify and confirm a treaty save
by a two-thirds vote, nor impeach q
President except by a like vote.
Congress. itself cannot, propose an
amendment. to the Constitution ex-
cept by a two-thirds' vote, nor may
It be adopted save by vote of three
fourths Of the states. At the present
moment the Supreme Court passes
upon constitutional questions. con-
trary to tho wishes of Congress. by
vote OF fve to four, even though
the four have back Of them the opin-
lon of a majority Of Congress. and.
ordinarily, also Of the President. Amy
one OF the. five creating such a ma
jority, therefore, exercises a power
which he and four Of his associates
use to:destroy the. action Of the en-
tire law making body Of the govern
ment. 1t would seem that If a two
thirds or a three-fourths majority
were required in the classes Of cases
above cited It would not be at all
out Of the way to prohibit the Su-
preme Court from defeating the
wishes OF Congress. which generally
reflect the wishes Of the majority of
the people in the country,;by at least
a seven-ninths vote, although 1t may
be doubtful whether Congress can
do this by mere legislation.
1 need but remind you that the
power now exercised by the Supreme
Court is dangerous and has been de-
structive. Six of the nine members
in the Dred Scott decision contrib
hasten our civil war Five at one
time declared the legal tender act
to be unconstitutional: again, five de-
stroyed the old income tax. law; five
destroyed the child labor law and
FIVE nullifled the first federal en-
period five declared the minimum
wage law in the District Of Colum-
bia to be unconstitutional, thereby
incidentally compelling large num-
even. bare subsistence. 1t would be
easy to argue. in fact, that every one
of these decisions has. carried with
1t mfschfevouS results.
The ex-Vice President again errs
in saying that "the law which per-
mdts the United States courts to in
terfere by- way, of injunction with
the decisions of the various utility
commissions of -our cities and: tat es
is a source OF great irritation" This,
he thinks. should be changed. The
difficulty aboNt this statement Is that
there is no suMh law. The courts in
terfere with she decisions of public
utility commissions and OF legislators
on Que<tions Of rates, etc,
on the theory THAI the legislating
bodies have acted without due proc
ess Of law" or hav& denied equal
protection of the laws" orshave yio-
lated the obligation Of contract or
in some other manner interfered with
constitutional rights. Mr.. Marshall,
therefore. in his subsequent argu-
ment has. I think, failed to address
himself to conditions as they are.
The fact Is that the Supreme Court
or some other body should exercise
the power 1t now exercises to restrain
the violation on the part of the
states of the several constitutional
provisions. but IL does not follow that
the Supreme Court should do this by
bare majority, nor does 1t follow
that Its power should extend to de-
claring acts Of Congress unconstitu-
tional. JACKSON H. RALSTON.