Evening star., 1936-02-13
NEW DEAL SHES
AT CURB|NG COURT
Congress Reticence Over
Amendment Seen as Move
for New Justices.
BY DAVID LAWRENCE.

sage OF laws Uy COIlSEcSS LIAlltlAlS oHo
restricting the judicial power of the
Supreme Court. He also favors a
constitutional amendment to give
Congress the right to deal with agri-
culture as a national problem.
There is no way Of knowing to what
extent Mr.. Norris reflects the purposes
of the New Deal, but it is significant
that the attack on the Supreme Court
by Secretary Wallace continues, and
also the Nebraska Senator referred
specifically to the same idea that was
mentioned by Mr.. Roosevelt in his
message to Congress about the power
of Congress to protect its legislative
acts against review by the courts.
Effort to Punish Court.
The speech by Senator Norris and
remarks being made from time to
time by other members Of Congress
make it apparent that an effort is
to be made if possible to punish the
Supreme Court for its opinions and
that the system of Government which
has prevailed for nearly 135 years,
whereby acts of Congress have been
declared unconstitutional by the Su-
preme Court, is to be transformed by
the New Deal If possible.
The principal argument being made
Is that the Constitution does not have
q line in it giving the right to the
Supreme Court of the United States
10 declare acts of Congress invalid.
This is an old controversy, but it has
never been emphasized except when
some decisions of the umpire happen
to 60 against the parties at interest.
The Constitution speaks of "legisla-
tive power" in telling what Congress
is to do and it speaks Of judicial
power" in specifying that the Supreme
Court alone is to exercise that
function.
= As for a definition of Legislative
power" there is not a line in the
Constitution which enables Senator
to speak indefinitely and keep legisla-
ton from being enacted, as the late
Huey Long did last Summer.
There Is not a line in the Constitu-
ton that enables member of Congress
to use the mails free of charge.
There is not line in the Constitu-
ton which permits senatorial COM
mittees to exercise administrative or
espionage functions or to snoop around
In the private affairs of the citizen.
And there is not line in the Con-
stitution which enables Congress to
levy taxes that confiscate the property
Of the citizen.
Congress Increases Own Power.
Congress has gradually construed its
own legislative power and increased it
over the span of years.
The answer made by Senator Norris
Is that the people can defeat a Con-
gress every two years. But can they?
Under the system of organized minor
tiles, the majorities are helpless. Also
o President of the United States Is
more powerful, especially when he has
unlimited funds at his disposal, than
almost two-thirds of both houses of
Congress. A President might be de-
feated once in four years, but the party
to which he belongs can under the
present system perpetuate itself in
power by the use of the very spoils
system which Senator Norris con-
denns.
One man II the President - has
greater power than one justice of the
Supreme Court in a 5-to-4 decision.
Against a President who refuses to
sign law repeating some statute that
he originally favored, the Congress
must marshal at least two-thirds Of
both houses. The President is thus
stronger than a majority of both
houses.
AS for the Supreme Court, whose
members are appointed for life SO as
to remove them from politics, there is
an appeal. 1t is by constitutional
amendment.
Amended in Nine Months.
2 Mr.. Norris says it takes years to
amend the Constitution. 1t took nine
months to repeal the eighteenth
amendment when once two-thirds Of
both houses agreed to it. Only II
months were required, after Congress
had submitted Senator Norris own
'lame duck" amendment to the States,
for the requisite hree-fourths of the
States to ratify it.
There is nothing to prevent Mr..
Roosevelt from urging constitutional
amendment broad enough to include
the powers he sought under the N. r.
A and the A. A. A., and if both
houses of Congress want such an
amendment, it is significant that no
such proposal has been reported out
of committee of either house since
the Supreme Court decision of last
year on the N. R.. A. or the A. A. A.
decision of O month ago.
The people in as short a time as
nine months have amended the Con-
stitution and they can overrule the
Supreme Court at any time they
choose in the way specified in the
Constitution itself.
> But what the defenders of consti-
tutIonal law insist is that the New
Dealers shall not try to amend the
Constitution by stampeding the Su-
preme Court into inserting phrases in
the Constitution that do not belong
there. The court. it is agreed, should
not be asked to take responsibility for
adding to the Constitution something
that the people alone have right to
add.
Judicial Power Defined.
The judicial power" Is described by
the words Of the Constitution as fol-
lows:
"The judicial power of the United
States shall be vested in one Supreme
Court, and in such inferior courts as
the Congress may from time to time
ordain and establish"
Now Congress can abolish the lower
courts. But 1t cannot abolish the
State courts. which must interpret for
themselves the meaning of the Con-
stttution, subject to review by the
Supreme Court. The Constitution