Evening star., 1933-04-06
The Political Mill
By G. Could Lincoln.

by y. Gould LINCOLN.
The preent Congress seems to be In
q fair way to provide the United States
Supreme Court plenty to do. Moving
with great rapidity, the Congress, at
the beheSt Of the administration, Is put
ting through a farm bill whose con-
stitutionality has been attacked by
Representative James M. Beck of Penn
sylvania, former solicitor general Of
the United States. 1t has given the
President authority to compel persons
who have gold and gold coins to place
the gold in the banks. And now 1t Is
proposed to pass bill compelling fac
tories, canneries and other establish
ments to limit the hours of their work.
ers to 80 hours a week. based on
five-day week Of hours a day. Under
Robinson Of Arkansas, Democratic
leader of the Senate. the number of
hours would be increased to So. Sem
ator Borah Of Idaho. who has declared
himself to be sympathetic with the
purposes of the bill limiting the hours
of labor. nevertheless has questioned
its conStituttonality. He has laid his
finger on the mails issue-the author
ity Of Congress to exclude from inter-
state commerce ordinary commodities.
That is what Is proposed in the pend
ing 30-hour bill. During the debate
In the Senate the Idaho Senator has
said:
whether the Congress Of the United
States has the competence to exclude
from interstate commerce any COM
ought to be excluded for any reason Is
a question which Is squarely and fairly
presented by this bill. and Senators
will all agree, I think, that that is
about as important question as could
possibly be presented as constitu-
tional question and with reference to
the interstate commerce clause. The
court has never yet held that the Con-
gress had power to exclude ordinary
commodities from interstate commerce
It has held. by a divided court, that 1t
it not within the power OF Congress to
exclude from interstate commerce COM
modities which were not In some way
hurtful, harmful, deleterious or in
furious to the public"
Senator Lewis Of Illinois, replying to
Senator Borah, has taken the position:
THE time has come stoutly to insist
that, instead Of asking that we first
read in the Constitution authority to
do an act until it can be pointed out
that In the Constitution the act Is for
hidden the right is within the people
to execute the act whenever it Is found
necessary for the welfare Of the Nation" !"
\ \
To this Senator Borah replied that
1t has been universally held unless the
power is found in the Constitution
delegated to the national Government
that the national Government cannot
exercise that power; that the national
Government Is one Of delegated powers
and can enjoy no powers other than
those expressly delegated or such pow
ers as may be implied from the dele
gated powers. He added that such
has been his own view. Senator Reed
Of Pennsylvania pointed out that the
tenth amendment to the Constitution
expressly provides that "the powers not
delegated to the United States by the
Constitution are reserved to the States,
respectively, or to the people"
y
The Supreme Court, in the child
labor case, by 5-to-4 decision held
the effort of Congress to prevent in
terstate commerce in goods made by
child labor to be unconstitutional on
the ground that the Congress was seek
Ing really to exercise a police power
reserved to the States.
Senator Borah, however, took the DO
sition that he is not bound by a 5-to-4
decision OF the Supreme Court on the
constitutionality of legislation, and
therefore Let me say that if the
emergency feature is stricken from this
bill, myself shall not be averse to
seeing this proposed law 60 to the Su-
preme Court OF the United States, be-
cause I think It is an open question in
the Supreme Court Of the United States
as to the power which Congress has to
exclude from interstate commerce ordi-
nary commodities. say this for the
reason that the child labor case was
decided by q 5-to-4 decision Five
judges held that it was not within the
power Of Congress to exclude COM
modities from interstate commerce un-
less they were hurtful and harmful In
some way to the community Four
judges seemed to hold, as construe the
opinion Of Mr.. Justice Holmes, that it
was within the competency Of Congress
to exclude from interstate commerce
any commodities which 1t, in its wisdom,
thought ought to be excluded. So we
really have, Mr.. President, constitu-
tional construction resting upon 5-to-4
decision.
"A 5-to-4 decision, so far as legis-
lator Is concerned, is an unsatisfactory
guide. 1t settles the controversy be-
tween the litigants; 1t establishes the
law as to those who are In court: but
in determining the wisdom of bill or
as governing Congress in discharging its
duty in legislating a 5-to-4 decision Is
very poor guide for the legislator.
have never been willing as a legislator
to surrender my views on a constitu-
tional question on the strength of a
5-to-4 decision. That, In my opinion,
Is no unsound principle. We as legis-
lators must construe the Constitution.
and it has never seemed to me I should
yield my construction to q decision Of
that nature"
The Idaho Senator suggested to the
Senate that if the Supreme Court
should uphold the constitutionality of
the 30-hour week bill ON the ground
that under the interstate commerce
clause Of the Constitution the Congress
had power to limit commodities going
into interstate commerce which were
not Of themselves injurious. it also
would have the power to compel the
payment Of living wage" to workers
whose products went into interstate
commerce. In this connection, he said:
There has long been in this coun-
try discussion Of the question Of the
living wage; and presume 1t will be
conceded that II we may exclude from
interstate commerce commodities which
have been produced by 6-day-week
labor, We may also exclude from inter-
state commerce IL that principle IL
sustained, commodities which have been
produced at wage which we deem to
be below living wage. In other words,
II We can exclude commodity be-
cause we think that the 5-day week
should alone be utilized In producing a
commodity, We can also exclude a COM
modify II We think the wage is tco low.
I mention this to indicate the wide
sweep Of the problem before U.S."
y X
IN the HrVu hsun fhoir u,ox, ~. g.,