Evening star., 1934-12-23

linen tIle members OF CIle industry
who wrote the original draft make the
changes dictated by N. r. A. at Wash
ington. Thereafter, when the code is
written to the satisfaction of both the
members of the. industry and NJ r. A.
headquarters, the latter o. ks it and
passes 1t on to President Roosevelt.
The President signs it. The code is
then, as Gen. Johnson put it, "the
law of the land" At least it is the
law of the land until, and If, the
Supreme Court says it is not.
Now a primary question here in
volved is whether a code SO written
can be described as having been writ
ten by the members of the industry
or by the N. R. A. authorities. Be-
tween these two groups there is basic
difference which, before the Supreme
Court, imagine, will make about all
the difference in the world.
The members of the industry are
private citizens, the officials of N. r.
A. at Washington are Government
officials. If we regard the code as hav-
ing been written by public officials,
that is one thing. If we regard 1t as
having been written by private citi-
zenS, that is quite another thing. For
it is extremely doubtful-indeed it is
hardly doubtful at all, it seems almost
a truism-that group of private citi-
zenS cannot write a law under which
another citizen can be haled before
the criminal courts.
Powers Limited.
Let us assume. first, that from the
facts as here outlined the codes are
written by Government officials. If so
the codes may have favorable stand
lng-but by no means water tight
one. 1t is true that Government Off
cialS can write regulations under
which citizens can. be prosecuted
criminally. The Secretary of the
Treasury is empowered, for example,
to make such regulations about in
come taxes. But the power of any ex-
ecutive official of the Government to
write regulation under which a citi-
zen may be jailed is extremely limited.
Such a power is always carefully scru-
tlnlzed both by the courts and by Con-
greSS. When Congress writes a stat
ute giving to an executive official the
power to write penal regulations for
enforcing the Statute-in such cases
Congress is careful to limit the power
strictly. And, because giving to an
executive official the authority to write
penal regulations is dangerous in any
form OF government other than au-
of that the courts
are even more meticulous in inter-
pretlng such statutes than Congress
is in writing them.
The net of this is that If, from the
facts, 1t can be said that N. R. A.
codes are written by Government Off
cIals, in that case the codes should
have a favorable standing before the
courts, though not necessarily COM
pletely sound one. There are many
regardless of authorship. on
which the Supreme Court might find
N. R. A. unconstitutional.
What of Claims?
But can we say, on the facts as here
outlined, that the N. R. A. codes are
written by public officials? Are we
not obliged to say that they are really
written by the private citizens who
actually do the writing? If the codes
are written by public officials-then
what becomes of that resounding
phrase often used by Gen. johnson
and still used by Mr.. Donald Rich
berg, ''self-government in industry?
Can Mr.. Richberg say, for purposes
OF propaganda, that N. R. A. is self
government in industry" and there
after say, for the purpose of litigation.
that each N. r. A. code is an official
act OF the Government? If the codes
are written by public officials, if they
are acts of the Government, clearly
,he word self" must be crossed out
If "Self-government in industry"
To say the codes are written by the
public officials who merely check them
ana Q. K. them seems a bubble The
codes could only be written by persons
having intimate and detailed acuuaint-
ince with the industries they cover.
The purpose of each code is to lay
lown minute rules for it's industry.
The effect of each code is to give to a
majority within each industry the
power to make rules for the whole
If the industry-and cause the minor
ty. the dissenter, to go to jail If he
'ails to obey the majority That, to
American habits of thought, does not
sound good. We are accustomed to
,hink that laws under which we may
De hauled before the criminal courts
can only be written by congresses
and legislatures which represent all
he people, and are duly elected by
al the people.
Liberty at Stake.
A defense of N. r. A. sometimes
made by ingenious New Deal propa-
5andists is that it is right for the
majority of an industry to govern the
that this is an American
and democratic way. They say that
this is the point they rely on-ma-
jority rule already exists in all sorts
u institutions, clubs, societies, corpo-
rations.
True. But here is the difference
and it Is all the difference in the
world: In a club or corporation or
society, all that majority can do to
the minority, to a dissenter, is to
eXpel him, or some similar form of
discipline. But under the N. r. A.
codes the dissenter can be hauled be-
fore the criminal courts. That is what
goes against the American tradition
Of liberty.
There is much talk just now about
what liberty is. How would this do
Is a definition: Liberty is measured by
he degree of the citizens immunity
from compulsion by the State.
(Copyright. 1894. New York Tribune. Inc.)
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