Evening star., 1936-03-03

of the bench to "big business" they
totally forgot how equally shocked
big business" had been when the
same court in 1897 found that rail-
road pools" were illegal under the
same act.
Woos No Constituency.
So it always has been and will be-
The Supreme Court honorably and
conscientiously goes Its unruffied way
and bravely functions under its con-
stitutional responsibility. 1t does not
seek to please an electorate. 1t woos
no constituency. Its only master is
the Constitution whose only master
is the people. 1t may be popular or
otherwise; it may be right or wrong;
but one thing Is certain-it Is abso-
lutely indispensable to the American
system and to the preservation of
American liberty
Carry the inquiry a little farther.
Suppose Congress and the Executive
concluded to perpetuate themselves:
to extend their terms; to cancel elec-
tions. What is to prevent? The
Constitution. How? Through the
Supreme Court. Is there any other
veto? No. Suppose you strike down
the court and let Congress review its
own works. Suppose you make Con-
gress and the Executive supreme.
What becomes of the peoples sover-
eighty?
tn hot
hypothesis Is fantastic or that it
would be too revolutionary to be
stopped even by the court. Exactly
this sort of thing has happened else
where. The founders of the Amer
ican system were near enough to
these examples to know their menace.
The British Parliament-unchecke
by a written constitution, rendered
articulate by supreme court-on
several occasions changed the period
OF election; in one instance continuing
itself in place four years beyond the
term for which elected by the people.
Indeed, under the British system Par
lament can do no wrong. A recent
book by former British cabinet men,
ber has said:
Parliament could pass a law that
every red-headed man should be
hanged. and the courts of law would
have to carry out its bidding"
Is This Desirable?
Is that sort of thing. or any part
of it, desirable substitute for the
American system? I repeat, it is no
answer to say that no American
Congress and no American Executive
would so far transgress the constitu-
tional order. An excellent test Of any
proposition Is to assess its ultimate
and extreme possibilities. No man
knows what would happen If we
should let down the bars-particularl
at an hour when the whole world
is; restless with new relationships.
We might revert to type. Once upon
time the State of Pennsylvania had
Council of Censors" to inquire
whether the Legislature and the ex-
ecutive had exceeded their constitu-
tional powers. 1t found many such
occasions-even that constitutional
trial by jury had been violated"
Can it possibly be progressive to
invite an American Renaissance of
these outrages upon our conception of
a peoples government? Can there be
any logical liberalism in emasculating
the peoples primary defense of their
own sovereignty under the American
nag? This layman does not think so.
He believes that all these threats to
the existing independence Of the Su-
preme Court and its right to call Con-
gress and the Executive to account
In the name Of the Constitution, no
matter how nobly meditated, are
threats to the fundamental liberty of
the people themselves.
This conclusion by no means sup
poses greater patriotism in the court
than in the Congress. It only recog-
nizes the reality that their functions
are separate and different. The court
could no more be trusted both to
legislate and to judge than can the
Congress. It is the separation and
division of these prerogatives that
counts.
This conclusion by no means sup
poses a superiority Of the judicial to
the legislative power. 1t only sup
poses that the power of the people
Is superior to both; and that where
the will of the Legislature, declared
in its statutes, stands in opposition to
that Of the people, declared in the
Constitution, the people have q right
to rule. Their only reliance at such
q moment Is an untrammeled SUI
preme Court. This does not make the
Supreme Court the actual ruler Of
America. That Is q subtle, self-serv-
ing sophistry. 1t does not put the
court above Congress. It merely puts
the Constitution above both-and that
Is precisely where It belongs, and
where it Is going to stay If the re-
public shall survive.
You can never make tyrant out