Evening star., 1935-07-21
HIGH COURT CRITICS
FAIL TO PROVE CASE
Tribunal Neither for nor Against New
Deal Legislation, Record of
Numerous Rulings Shows.

i-Eally With the New Deal, the decision
sustaining the railroad bankruptcy
amendment to the general bankruptcy
act was cited with great glee.
But the favor that the court had
won in New Deal circles by its gold
clause and railroad bankruptcy deci-
sions was short-lived. On May 6, 1885,
the court held the railroad retirement
act unconstitutional, which caused
New Dealers to doubt the friendlinesS
Of the court for the New Deal pro-
gram. But the solar plexus, or knock
out blow, was to come some three
weeks later when the court rendered
its devastating blows-a blow in each
eye and a bump upon the nose all in
one action, as it we're. Then the vail
went to high heaven that the court
had gone reactionary, that it had
strait-jacketed the country and re-
turned 1t thus bound to the out
moded "horse-and-buggy" period.
No Justification for Plant.
However, the court had merely
held that the conditions of produc-
ton, manufacture and distribution
were not covered by the commerce
clause of the Constitution That, in
substance. was the decision of the
Schechter or sick-chicken. case. 1t
merely held that the arbitrary sus-
pension Of the mortgages rights In
farm mortgages for period of five
years was unreasonable and therefore
invalid, which was the case Of the
Frazier-Lemke farm mortgage act.
And the further holding that the
President could not remove at will q
member from a quasi-judicial and
quasi-legislative commission, such as
the Federal Trade Commission. This
was the Humphrey removal case.
OF course, if one wants to conclude
that the court is anti-New Deal or
reactionary, he can find justification
for his belief in the holdings Of the
court in the railway retirement, the
Schechter or sick chicken, the Fra
zier-Lemke farm mortgage and Hum
phrey cases; but only one who ac-
tually wants to find such a justifica-
ton can do so. There has been no
surprise experienced by those who
have made a serious study of the ma
ture Of the Federal State or the
National Government. They have
realized all the while that we were
riding for a fall. that the National
Government had no emergency power
as such upon which to base the New
Deal program.
But the court has been disposed to
give the New Deal latitude in which
to work out its program. In the oil
cases it exacted only a compliance
with the constitutional requirement
that the Congress do the legiSlating,
leaving to the Executive. board or
commission, as the case might be, the
power 10 make rules and regulations
for the enforcement OF the laws; but
it did hold that the Congress should
declare a policy and establish a
standard for the administrative
agency.
Cardozo'S Opinion Cited.
No one can fairly quarrel with the
court on that score. In fact, no one
can read the concurring opinion of
Mr.. Justice Cardo1o in the Schechter
case without getting the feeling that
he was writing under feeling Of re-
sentiment toward the Congress for
completely abdicating its legislative
function, for he lashes, as it were.
with scorpion the failure of legiSla-
tive function. And no man. in fair
ness. can deny the Social-mindedness
of Mr.. Justice Cardozo, yet he and the
other liberals of the court concur in
the three opinions which knocked the
New Dealers groggy.
No, the court is not reactionary or
anti-New Deal. 1t has done what it
has always done-construe the law in
the light of the Constitution and make
it conform thereto. The fact that the
court has frustrated a portion Of the
New Deal and will probably Illustrate
more is no reason to get mad with it.
For the first 10 years of the history
OF the Government it was quarreled
with because it upheld the acts of
the Congress against the wishes of a
large portion of the people. Now that
it holds invalid some of the acts of the
Congress it naturally offends those
who SympathiZe with such enact
mentS. But a Constitution without
court to make its provisions effective
Is meaningless. Constitutions are
adopted for the purpose of prevent
ing the execution of unwise and dan
gerous laws by requiring that the laws
conform to the basic principles laid
down in the constitutions, or in short,
to prevent the people from doing the
Samson stunt of pulling the temple
down in the constitutions, or, in short,
anger or pique. The court is func-
tioning as intended. Let's support it
as both the great shield and guide
that it is and has always been.