The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1935-06-05
Liberal Viewpoint
by DIR. HARRY ELMER BARNES -

CEN. HUGH S. JOHNSON says that the Su-
W preme Court decision on the NFA brings
us back to Hoover. This is a reasonable and
fairly accurate Judgment and certainly no more
damning verdict could be rendered on the dec1-
sion of the court and its implications for Amer
lean economic life.
1t is obvious that the status quo ante in
American society is hopeless new deal of
some sort is inevitable 1t will come in one OF
two ways: % BY progressive and experimental
legislation, such that sponsored by President
Roosevelt; or CD through a collapse of the older
order and radical dominion over the ruins.
The Supreme Court is certainly heading us
toward the second alternative. Only radicals
can logically find delight in its practices If the
court forces revolution, it will destroy the sys-
tenn which sustainS the conservatives. A pro-
gressive and liberal regime might preserve some
part of the capitaliStic order for reasonable
period.
The foundation of the activities of the court
in obStructing progress is its assertion of the
right to set aside Federal and state legislation
unconstitutional.
This right is first claimed away back in 1903
in the case of Marbury vs. Madison. For 1870
years it has used this power with ever increasing
frequency. Whenever the court believes that a
law does not square with the Constitution, as
interpreted for the moment by as few five
out of nine judges on the bench, it is declared
invalid and of no account.
Until 1886, however, the court was relatively
~ restricted in its field of operation in declar-
ing laws unconstitutional 1t had to be shown
that the law in question clearly violated some
explicit provision of the Constitution.
Shortly after the Civil War a judicial per-
version of one of the Reconstruction amend
ments (the Fourteenth) gave the court much
greater leeway when it wished to run amuck
against popular will in the service of the vested
interests.
In order to protect the Negro against return
to Servility, the Fourteenth amendment was add
ed to the Constitution. 1t directed that no state
should deprive any person of life, liberty prop
erty without due process of law.
A drive was made at once to get corpora
tons admitted as persons" under the meaning
of the Fourteenth amendment. Success came
in 1886 in the Santa Clara County case when
the court unanimously decided to include cor
porati0lls in its Interpretation of the Fourteenth
amendment and due process" of law.
This let down the bars AS due process of
law" is, quite literally, anything the Supreme
Court decides it to be at any moment, there
is no limit whatever to its power to invalidate
legislation Whatever runs counter to the eco
nomic social or political philosophy of five
judges can be set aside quite casually, no matter
what the popular demand for the measure.
A Prof. E. S. Corwin has observed: " Due
L y process of law is not regular concept at
all, but merely rowing commission of judges to
SINK Whatever legislative craft may appear to
them, from the standpoint Of vested interests, to
be of piratical tendency"
The only sensible method of remedyng the
situation is to put through a constitutional
amendment eliminating judicial review of leg
islation. The court should be retained as ju-
dicial BODY. but it should cease to function as
the third and most conservative house of our
national Legislature.
The usual liberal attitude is that we should
wait and hope for liberal majority in the SUI
preme tribunal The aspiration to pack the
court with liberals, IS however, futile. A liberal
President may wish to do so, but he may have
few or no vacancies to fill
Few judges die and fewer resign. The aver
age term of Supreme Court justices is 1872 years.
Four justices have served for 81 years each
A batch of appointments may fall to reaction
airy President and the damage is then done for
years ahead. liberal minority, as we saw last
Monday, may actually be harmful in arousing
false hopes relative to the court
Moreover, as the NFA decision proved all too
well, even progressive judge can not always
be relied upon to put aside legalistic perspective
in the interests Of social justice and progress.
The elimination of judicial review is the only
rational and effective solution. This will open
the way to orderly social progress and reduce
the probability of revolution. It will lessen the
attacks on the court and the demands for its
abolition. The court will thus save both its
rightful judicial function and its deserved dig
nifty without irnperilling the country