Evening star., 1936-01-15
STATE HAS POWER
IOBALK S.LAWS.
Curb on Lower Federal
: Courts Held Useless as
.. Bar to Suits.
Ry DAVID LAWRENCE.

Liberals In Congress, disturbed oy
the A. A. a. decision, are discussing
bills to deprive the Federal District
courts and Circuit Courts of Appeal
of any power to declare laws uncon-
stitlltional so the Supreme Court alone
would have the task Of construlng the
validity of legislation.
Generally overlooked, however, is
the fact it isn't necessary to go
through lower Federal courts to get
Judgment declaring Federal law un-
constitutional. This can be done
through the State courts as well. In
deed, from 1902 to 1875 the CUSTOM
ary channel for the consideration OF
constitutional questions was through
the State courts. from which the ap-
peals were taken to the Supreme
Court
It might be thought Congress could
pass a law depriving State courts, as
well as lower Federal courts. of any
jurisdiction over Federal statutes, but
to- accomplish this objective a con-
stitutional amendment would be re-
uuired. This is because Article OF
the Federal Constitution expressly
tells the judges of the States they
must regard the Constitution as the
supreme law Of the land and must
"be bound thereby
Breakdown Possible.
To get a constitutional amendment
which would disturb the entire judi
cial system of the 48 States would
seem to be an almost insuperable task
politically because, if the jurisdiction
over State courts were placed in the
hands of Congress, the entire system
OF. local government might break
down.
It would seem to be futile, then, to
pass a Federal law curbing the Juris-
diction of the lower Federal courts to
grant injunctions and pass on the
ccnstitutionality of Federal laws, when
this would merely encourage all kinds
of lawsuits in State courts whereby
citizens would begin to sue each other
to restrain the operation of laws be-
Ieved to be invalid.
Take the Bankhead cotton control
act, which is believed to have been
thrown into the doubtful constitutional
class by the words of Justice Roberts,
speaking for the majority of the Su-
preme Court in the A. A. A. case. The
railroads are forbidden by Federal law
to accept cotton for shipment unless
tagged in conformity with the Bank
head law. A cotton shipper in Texas
could sue railroad of that State for
damages for refusal to accept the cot
ton, and could argue that the Federal
law is invalid This would raise the
constitutional question and the rail-
road might be compelled by lower
court in Texas to accept the shipment.
Could Act in Other States.
Naturally, the matter would not be
finally adjudicated until appeal to the
Supreme Court of the United States,
but the opportunity for rendering
imperative a Federal statute Is just
as great as if lower Federal court
had restrained it. For as soon as one
State court handed down decision
similar suits would be started in other
States and the precedent in the eX-
ample given above would be cited and
doubtless would have considerable
weight.
The justices of the State courts
have the solemn duty under the Fed
eral Constitution to examine every
Federal law, in a case arising under
it, to determine whether the statute
tnvades the constitutional rights of
the citizen. This means laying the
law alongside the article of the Con-
stitution that has been invoked. All
the decisions of the Supreme Court
itself, then, are taken into considera-
ton.
The method of bringing constitu-
tional questions to a head might be
q little different in the State courts,
but there are so many aspects of
contract law in which challenges of
constitutionality or invalidity might
be brought that we would merely be
going back to the more or less con-
fusing circumstances that existed be-
tween 1901 and 1875.
If a constitutional amendment Is
adopted to deprive the Supreme Court
Of the power to declare invalid the
acts of Congress it must be remem-
bered that restraint would have to
be applied at the same time to all
the State courts. This is but another
way of saying that the States would
have no redress any time a majority
Of both houses of Congress. with the
cooperation of President, decided
to take away powers of the States.
The Constitution, for instance, speci-
fies just what are the powers of
the Federal Government, but when
there is no check-no tribunal to say
whether transgression has occurred
there is no opportunity to question the
acts of the central Government.
When the American people un-
derstand what is involved in tinkering
with the judicial system they will
consider seriously the dangers of de-
priving the citizen of his day in court.
Copyright. 1936.)