Evening star., 1935-06-24
OATH VIOLATIONS
QUESTION RAISED
Enactment and Approval OF
Invalid Laws Viewed as
Trust Breach.
BY DAVID LAWRENCE.

The Roosevelt administration is
likely to achieve the doubtful distinc-
ton of having violated the Constitu-
ton more times than any otner ao-
ministration IN American history.
Having already been formally re-
corded as going beyond the Constitu-
ton in five separate instances, tne
Congress is about to complete and Mr..
Roosevelt is about to approve 1our
other measures which are plainly un-
constitutional.
While Congress is primarily at fault
in passing legislation that Is suose-
uuently declared unconstitutional, the
influence and pressure Of the CHIEF
Executive are so great that for all
practical purposes the executive ana
legislative branches of our Govern
ment nowadays may be regarded as q
unit.
The strategy of the New Deal Is to
pile up all these unconstitutional laws
in the hope of developing a wide
spread sentiment in favor OF an
amendment to change the Constitu-
ton so as to give the Federal Govern
ment complete power over business
and commerce, whether inside or out
side State lines.
Taft Opinion Recalled.
This means that, with the execu-
tive and legislative branches OF the
Government practically unit, there
are only two branches of the Gov
ernment-the judicial being ranged
In an unfortunate position OF oppo-
sition to the other two. This con-
tingency was once commented upon
bv William Howard Taft, the only
man who occupied both the office OF
President of the United States and
also Chief Justice. He had judicial
temperament that enabled him TO
render well-balanced opinions on con-
stftutional law. In communication
to Congress dated February %, 1918,
when vetoing a bill, he wrote:
But it is said that this is a
question with which the Executive
or membe4s of Congress should not
burden themselves to consider or oe-
eide. 1t is said that it should be
left to the Supreme Court to say
whether this proposed act violates the
Constitution. I dissent utterly from
this proposition.
The oath that the Chief Execu-
tives takes, and which each member
of Congress takes, does not bind him
anv less sacredly to observe the Con-
stitution than the oaths which JUS
tices of the Supreme Court take. It
is questionable whether the doubtful
constitutionality of a bill ought not
To furnish a greater reason for voting
against the bill, or vetoing 1t, than
for the court to hold it invalid.
THE court will only declare a Law
invalid where its unconstitutionality Is
clear, while the lawmaker may very
well hesitate to vote for bill ol
doubtful constitutionality because oi
the wisdom of keeping clearly within
the fundamental law.
Sees Custom an Abuse.
"The custom of legislators, ane
executives having any legislative func-
ton, to remit to the courts entire ane
ultimate responsibility as to the con
stitutionality of the measures which
they take part in passing is an abus'
which tends to put the court con-
stantly in opposition to the Legisla.
tnre and executive, and, indeed, tc
the popular supporters OF unconsti'
tutional laws.
IF, however, the legislators and the
executive had attempted to do theil
duty, this burden of popular disap.
proval would have been lifted from
the courts, or at least considerably
iessened."
There is an even more pertinent
quotation written by Cooley, the cele-
brated commentator on the Constitu,
ton, in his Principles of Constitu.
tional Law" which applies to what il
happening in Congress today:
= Legislators have their authority
measured by the Constitution. They
are chosen to do what it permits, anc
nothing more, and they take a solemn
oath to obey and support it. wher
they disregard its provisions, they
usurp authority, abuse their trust, anc
Violate the promise they have con-
firmed by an oath.
ITO pass an act when they are
IN doubt whether it does not violate
the Constitution. is to treat as of nc
force the most imperative obligation
any persons can assume. A busi-
ness agent who would deal in that
manner with his principals business
would be treated as untrustworthy
A witness in court who would treat
his oath thus lightly, End affirm things
concerning which he was in doubt
would be held a Criminal
righteousness Shown.
Members Of Congress justify what
they are doing in various ways. Some
of them do not profess to be constitu-
tional lawyers, but follow a few o1
their colleagues who may be ingenious
in trying to stretch the law. But the
real truth Is that neither the Senate
nor the House has insisted upon ar
explicit declaration from the Depart-
ment of Justice on every provision oi
doubtful eonstitu.ionality. The mem.
bers of Congress would prefer no.
to ask the Attorney Generals of.
fee for fear they would be told they
could not do what they wished.
AS for the President, he too ha!
succumbed to the theory of mcderr
politics; namely, that it is best t.
legislate first and litIgate afterwards
But the issue created by this con
ception Of politics, as contrasted will
craftsmanship, az it was practicet
in other generations OF the republic
may raise an issue in the next cam
paign that will turn entirely on wha
the oath of Office really means.
fronvrIoht 1oQSl