Evening star., 1935-07-19
COURTS PRESTIGE
HELD UNDER FIRE
New Deal Aim Declared to
Be to Discredit All Multi.
fiCation Powers.
BY DAVID LAWRENCE,


the Constitution.
within the last 43 hours the deci-
sion of the judges in the Circuit
Court of Appeals Ii. Boston has been
followed by he insicious comment
that two of the JUDGES who disap-
proved of the processing tax were
Republicans and the dissenting jus
tice was Democrat.
This is a reflection on the Judges
and press dispatches that make that
point in connection with the Boston
decision are simply Implying that po-
litical considerations have something
to do with judicial decisions nowadays
and that they must have been fac
tor in the processing tax case. other
wise. what would he the point OF
mentioning judges political affilia-
ton any more than lis religion, or
his financial standing or any other
extraneous matter which might. in the
eyes of the reader, cast doubts on the
integrity of the judges? II this fact
of political affiliation were of interest,
1t should have been roted that the
district judge who upheld tn. New
Deal was Republican
Attack Takes Other Forms.
But the attack on the judiciary con-
tinues In other channels, too. New
Dealers are beginning to- revive an
age old discussion OF just how the
Supreme Court has "usurped" the
right to declare acts of Congress
unconstitutional. The truth. OF
course, is that. literally speaking,
there is no express or direct pro-
vision In the Constitution which, in
SO many words, says the Supreme
Court shall or shall not declare void
any acts of Congress. But there is
no direct or express provision which
says the court shall consist of Q
men or 20 and there is no express
provision which says there shall be
marshals or clerks of court or that
restraining orders or injunctions
shall be issued. These are essential
to judicial powers.
But Chief Justice John Marshall
described the implied powers Of the
Constitution and pointed to the word
ing of the Constitution which says
that the judicial power" shall extend
to "all cases in law and equity aris-
ing under this Constitution" it was
accepted by the generation of 1903.
which included men who helped to
draft the original Constitution.
There is another clause in the Con-
stitution which says the Constitution
and the laws of the United States
made in pursuance thereof shall be
the supreme law of the land" 1t is
this quotation which is usually cited
as justifying the action of the Su-
preme Court in saying what is or is
not valid under the Constitution.
Custom Preceded Constitution.
Long before the Constitution was
adopted, the State courts had ac-
CURED the habit of declaring acts of
Legislatures void. This was the Gus
tom, and it was taken for granted in
the constitutional convention of 1887
that this custom would be followed.
But If anybody doubts the right of
the Supreme Court to interpret what
laws are and what laws are not valid
in accordance with the Constitution,
there is only one question which need
TO be asked. 1t is this: If the Su-
preme Court cannot declare acts OF
Congress to be void. who can?
Certainly. If the Supreme Court
does not have the power, then all
sovereignty rests in majority in
Congress. Such a majority could
override the Constitution and change
it at will Thus a Republican ma
jority in Congress could decide to re-
move the President If he happened to
be a Democrat, or vice versa, and the
whole system Of written Constitu-
ton would be altered and the Con-
eress would be supreme.
If the people want that kind OF
Government. they can have it, but it
may equally be argued that it means
the end OF written Constitution. for
there is nothing in the Constitution
which vests in Congress the power to
alter that document. When once the
Constitution is overridden by a ma
tional legislature, the opportunities to
ignore all its provisions are just as
tempting to a majority as to doubt
the precedents and cases that have
been built up under a few provisions.
State Courts Influenced.
Certainly. the change also would
have to run through our whole State
system, too, for, while it is not gen.
orally realized, the truth is State
Courts have a right to declare acts of
Congress unconstitutional and have
done so.
Also, If the Federal Government
aholishes the right of the Federal
judiciary to overrule acts Of Congress
not in accordance with the courts
conception OF the Constitution. so also
would the several State Supreme
Courts in due time be divested OF
their present power to pass Judgment
on the acts of State Legislatures. The
people of every State would then be
subject to the whims of a temporary
majority in a State Legislature and
the dictatorship by powerful minority
groups under our bloc system would
be supreme.
Just why the New Dealers have tried
over the radio and through the press
to foster the impression that the
Supreme Court does not have the
power to declare acts of Congress
unconstitutional, when for more than
100 years this has been the accepted
principle of our Jurisprudence, may
seem to our traditional lawyers a
poor piece of strategy in the face of
accepted practice and custom. But
the New Deal is bent on having its
way even if this means that the
Federal judiciary has to be attacked
and the constitution made scrap of
paper to achieve social objectives.'
The whole new deal has taken its
cue on this point from President
Roosevelts now famous appeal to the
House Ways and Means Committee.
In which he said of the patiently un-
constitutional Guffey coal bill:
IT hope the members of your COM
mittee will not permit doubts. however
reasonable, TO block the suggested leg