Evening star., 1935-12-12
Overriding the Court.

The Constitution may become an issue
in the coming presidential campaign.
That is to say, the methods and manner
OF its Interpretation and its amendment
in enlargement of the powers of Congress
and the Executive. The recent repeated
adverse interpretations by the Supreme
Court with reference to enactments that
have sought to carry out the New Deal
have stimulated proposals for departures
from the established methods, and these
will doubtless provide ammunition for
the contest. The latest proposition to
this effect is one advanced by Justice
Ferdinand Pecora of the New York Su-
preme Court, who figured conspicuously
in Investigations few months ago. He
was speaking at q luncheon meeting in
New York, and in the course of his re-
marks, which he acknowledged were ex-
temporaneous and without the benef1t
of the studied research which they war
rant" he said:
my suggestion is that an amendment
10 the Constitution might be made TO
enable Congress to repass law passed
by a previous Congress and set aside as
unconstitutional, provided it was re-
passed by the same two-thirds majority
which is required to pass law over the
Presidents veto"
Of course, such a change as Justice
Pecora suggests would require, as he ad-
mits, an amendment to the Constitution,
itself proposed by a vote of two-thirdS
of the House and Senate and ratified by
three -fourths Of the States. Since the
adoption of the Constitution numerous
efforts have been made to amend 1t in this
respect. None of them has received
much consideration by Congress. In 1917
an amendment was proposed declaring
that the Supreme Court should have no
power to declare unconstitutional law
signed by the President. But where the
court did so declare Congress had merely
to pass it anew by a two-thirds vote.
Other amendments have been offered to
require unanimous judgment by the
Supreme Court to modify an act OF
Congress.
The power of the Supreme Court to
declare laws unconstitutional Is not
specifically granted by the Constitution.
Indeed, it is regarded as merely an i'm
piled power. So often and so effectively,
however, has the court so expressed itself
without causing any curtailment OF Its
authority in this respect that the prin-
ciple of Supreme Courts final jurisdic-
ton over such questions been accepted
as established.
In explanation of his suggestion Jus
tice Pecora emphasized that an act over
riding the court must be voted by two
thirds majority of each house OF the
succeeding Congress and not the same
Congress which enacted the law in ques-
ton. Thus in the interval the electorate
would have had the opportunity to de-
clare an opinion and the new Congress
would have q direct mandate from the
people. This would be in effect a Nation
wide referendum with the action Of the
Supreme Court as a direct issue before
the people But such an issue could not
be clear-cut and distinct, with numerous
other questions involved in the selection
of national legislators. Only by a specific
reference of the case to popular vote apart
from all other questions could there
be such a referendum on the conStitu-
tionality or the ultra constitutional valid
Ity of an act of Congress.
Such a piecemeal and indirect refer
ence to popular vote of particular cases
would be cumbersome and of doubtful
efficiency. An amendment to the Con-
stitution granting Congress the power
of overriding adverse rulings Of the Su-
preme Court, which would require two
thirds vote in each house and a three
fourths vote by the States for ratifica-
tion, would be more direct and surely
effective remedy-if a remedy is needed,
which is decidedly doubtful.
Sporting analyses cannot fall to sug-