Evening star., 1935-01-02
NEW DEAL FACES
SHAPING BY COURT
Supreme Tribunal Expected
to Make History by RuI.
ingS in 1885.
BY DAVID LAWRENCE.

If In this season of looking ahead
and looking back, one were asked to
say what single event in the coming
~ months will most profoundly influ-
ence the recovery process in America
the answer which this writer would
give would be: The decisions of the
United States Supreme Court.
The fundamental issue Is whether
the Federal Government shall become
all-powerful. whether 1t shall super
sede the rights and sovereignty of the
States. or whether the New Deal shall
be held strictly within the original
limits of our constitutional system.
Whichever way the Supreme Court
decides, it will mean the high point
in the evolution of the New Deal and
a clarification of national policy upon
which business and industry will find
it necessary to build For, underlying
the great struggle going on between
capital and labor, between Govern
ment regulation by codes and the re-
siStance to code uniformity, is a con-
viction that the courts somehow have
not passed upon the matter.
Clarification to Fellow.
II the Supreme Court says the
commerce clause gives the Federal
Government power to regulate COM
merce within a State as well as be-
tween the States, it would be just as
If the Nation had adopted coasti-
tutional amendment to that effect.
If, on the other hand, the Supreme
Court says commerce within a State
is something for each State to regu-
late and that mining and pants press
ing are not Interstate commerce, even
though the coal or the clothes travel
subsequently in interstate commerce.
then public interest will turn to the
best way to get the several States to
enact laws supplementing or clarifying
the New Deal.
This will involve campaigns in the
States. State constitutions and prece-
dents have to be taken into considera-
ton.
There's the all-important fact that
even the States, whether forbidden
or not by their own constitutions.
cannot arrogate to themselves powers
which are reserved to the people them
selves.
The prevailing theory OF conStitu-
tlonal government for many genera
ti0ns has been that the powers of the
Federal Government are specifically
enumerated. that certain powers are
guaranteed to the States. but that all
other powers are reserved to the people
fhot oil IN,rt ho
process Of making a constitutional
amendment can change the Federal
Constitution.
Servant or Ruler.
It has also been emphasized for
many decades that the Federal Gov
eminent is. therefore, the servant or
agent of the people and not their
master. Will the Supreme Court Of
the United States uphold that view
or will it take into account the social
unrest and the demand of the lib
erals for an elastic Interpretation of
the Constitution?
The Supreme Court could. Of course,
twist words around and approve SUBJ
terfugeS on the Machiavellian theory
that the end justif1eS the means. but
the men on the highest court Of our
land are not of that caliber. They
have deep convictions, and they do
not seek the easiest way out Of
dilemma like the politically minded
members Of the other branches of the
Government. These justices doubtless
realize that If the courts cannot be
relied upon to state the law fairly
and diSinterestedly, then the road to
tyranny has been opened which must
some day awaken the revolt of men
and stir egain the spirit that has
won by revolution the battles of Anglo
Saxon history.
The principles of law and consti-
tutionS are immutable-they are the
result of centuries of debate and dis
cussion as to what is fair and equitable
in a democratic form of government.
Emergencies are recognized for what
they are; namely, opportunities to
bring into aggressive action unused or
dormant powers, but not as opportuni-
ties to change the rules of the game
when the same happens to take an
unfortunate turn.
Will Make History.
The Supreme Court-nine men
tested in many a decision as to their
integrity, their patriotism and their
devotion to what is right, irrespective
of how the verdict affects the parties
at interest-will make history in 1885.
If one may be permitted a guess
based on precedents alone, the New
Deal is in for major surprise when
it tries to apply the powers of the
Federal Government to the regulation
of all business and industry both
within and without the confines of
single State. Also, it is in for another
surprise when it attempts to define by
Federal law the relations of employers
and employees not engaged in inter-
state commerce. And it is in for a
third surprise when it tries to use for
various unspecif1ed purposes Federal
funds or Federal power delegated in
vague terms by Congress to the eXecu-
tive branch of the Government.
Last year no cases testing Federal
legislation and touching these major
issues were decided by the Supreme
Court. The Roosevelt administration
adopted a policy of avoiding tests in
the high court, feeling it would gain
more by trying more experiments and
compromising wherever possible with
those who tried to carry the cases
higher. Now, however. the cases in
the Federal courts are piling up. Some
of them will have to be decided in
the Spring term and some in the
Autumn term of the Supreme Court.
And when the Supreme Court has
spoken the New Deal will have re-
ceived its real instructions and in
dustry its guidance.