Evening star., 1935-10-10
ADVISORY COURT
.OP|N|ON DEBATED
Proposal for Advance Find
ings on Legality Brings
Wide Discussion.
RY DAVID LAWRENCE.


Why shouldn't the Supreme Court
determine whether laws are or are not
constitutional before they are put into
effect, and thus save great deal OF
economic loss and damage?
It is this question, repeatedly asked
In recent months, which no doubt
gave rise to the latest proposal by
Gov. Hoffman of New Jersey, Republic
an, that the Constitution should be
amended so as to require the Supreme
Court to render advisory opinions as
to the constitutionality of laws passed
by Congress.
Apparently the New Jersey Gov
ernor sought way out of the dilemma,
and, to him, as to other people, the
simplest way appeared to be to get
advisory opinions in advance.
Opinion of Former Jurist.
Once propounded the same ques-
tion Informally to distinguished
jurist, who at that time was on the
Supreme Court. He answered my
query thus:
ssWhen I was at the bar, was
frequently asked by my clients to give
an opinion in advance as to whether
o. certain step was or was not lawful
Invariably, when the step had been
taken and lawsuit developed, the very
combination of circumstances which
caused the lawsuit had not been fore
seen in my memorandum OF advice
To put it another way, the Supreme
Court itself has always decided actual
cases, believing that the circumstances
In each instance deserved examination
by the courts, so that a petitioner
would know whether he had a cause
for complaint. But again and again
the Supreme Court refuses to review
cases decided by the lower courts be-
cause the principle has already been
Established or d similar set Of cir
EimstanceS has already been passed
upon.
~ Prominent Advisory Opinion.
eProbably the most comprehensive
advisory opinion ever rendered by the
Supreme Court of the United States
was handed down on May 27 last IN
the famous Schechter case invali-
dating the N. r. A. In that case were
stated fundamental principles SO
plainly that for Congress to 60 ahead
and pass laws in conflict with those
principles, as it did, in the last ses-
sfon, is, of course, a technically legal
right, hut moral evasion. Hence,
ID might well be asked what extra
value or use would Gov. Hoffman's
amendment be if, after decision by
the Supreme Court, the executive
branch of the Government, for in
stance, issued regulations which now
Adays have the force Of law and ii
those regulations disregarded the de-
cisions of the Supreme Court?
Much criticism was directed al
President Roosevelt after the N. r. A.
decision because, in spite of its broad
pronouncement, he insisted on push
ing through Congress various meas
ures. Notwithstanding the grave doubts
that existed among competent con-
stitutional lawyers that the proposed
statutes were valid under the Consti-
tuition.
Discussed Before Bar Association.
The most interesting suggestion
that has yet been made with reference
to the best way TO handle the prob
lem OF advisory opinions was pre-
sented before the American Bar Asso-
citation at its last annual meeting at
Los Angeles when James M. Beck,
former solicitor general and a noted
authority on constitutional law, rec
commended that the Senate and House
Judiciary Committees should select a
commission OF 10 outstanding lawyers
who are authorities on constitutional
law and consider them an advisory
council.
Other committees of Congress, as,
for example, the House Ways and
Means and the Senate Finance Com
mlttees, do not hesitate to en-
gage experts in matters of taxa
ton, so it would be in line with prec-
edent to have an advisory commits
sion Of distinguished members of the
bar who are familiar with constitu-
tional law.
But would Congress pay any more
attention to such advice than it does
today to the thousands of briefs filed
by attorneys of note on pending leg
islation? Perhaps Congress would be
influenced by public opinion that
attached weight to the findings of an
advisory committee or council. And
II such a council were divided and
there seemed to be considerable
weight in favor Of legislating in the
direction sought by Congress, there
might be less criticism over such a
course than in the attempt by Con-
gress to enact laws that every we'll
informed lawyer knows are plainly
unconstitutional and that every
thoughtful observer of political trends
knows are passed with the full ex-
pectation that the Supreme Court
will, in due time, invalidate them. but
not, in point of time, before certain
political advantages have accrued to
the sponsors of the legislation.
(Copyright. 1935)