Evening star., 1936-05-27

in going ahead with commitments
and plans for restoration of their
industries, which had, for the time
being, come under a Government
dictatorship through the code SyS-
. tenn.
Takes Champions Role.
While many industries had shown
an upward curve before the N. r. A.
decision was handed down, it was
generally believed in the weeks pre-
eeding May 81 that N. R. A. was on
the way out, and it needed only the
impetus of a strongly worded opinion
on constitutionality to seal the fate
of the code plan The impact Of
the unanimous decision went further,
however, than to stimulate businesses
that were merely at disadvantage
under the code system-it told all
businesses and all individuals de-
pendent on private industry for en-
ployment that the Supreme Court
was ready to function aggressively
to prevent amendment of the Consti-
tuition in any way except that which
was provided in the great charter
itself. Such assurance was fore
runner of a pickup in the total VOL
ume Of trade and employment.
There have been differences of
opinion in the court since then, but
the differences have by no means
altered any fundamental, such as the
preservation of the rights of the
States or the people. The differences
rather have turned on whether a
given statute did or did not in a
given case operate in such a way as
to appear to violate a constitutional
precept as handed down on previous
cases. Some justices have thought
the facts did not justify belief that
the constitutional principle was being
violated, other justices have thought
the facts did justify such belief-but
in all instances. the fidelity toward
the maintenance of the constitutional
balance of powers has been uniform
and unanimous.
Minority Protects Rights.
Perhaps the best illustration of this
point is to be found in a case handed
down this very week on the subject
Of municipal debt It was a to 4
decision. On its face it looks as if
five justices thought this Federal law
violated the rights of the States and
the other justices did not object to a
violation of States rights.
Actually, Justice Cardozo, who wrote
the minority opinion, expressed him
self just as zealously about protecting
the rights of States as did Justice
McReynolds who wrote the majority
opinion. The difference was in the
judgment given to the facts and the
way in which the statute had oper-
Rted or would operate.
Not only are differences of opinion
inevitable, but there must be a de-
cision to establish what is or is not
the supreme law. A 5-to-4 decision
makes the majority opinion just as
binding as when an act of Congress is
passed by margin of one vote or
when bill that has been vetoed by
one man-the President-fails to be-
come law because one member of
the Senate or the House less than the
requisite two-thirds of both houses
fails to vote to override the veto.
Future Is Factor.
"Our special concern" wrote JUS
tice McReynods, ''is with the exist
ence of the power claimed-not
merely the immediate outcome of
what has already been attempted.
And 1T is often Of first importance
that due attention be given to the
results which might te brought about
by the exercise of the power in the
future"
Thus, if municipalities can GO into
q Federal Court and with court per-
mission virtually repudiate their
debts, confidence among future in
vestors in the borrowing power of
States as well as cities will break
down. The Supreme Court ruled in
the gold clause cases that a govern
ment could not in conscience impair
its own contract. Neither can a city
or State do so with the connivance of
= the Federal authority.
But how can cities revise their debt
structure, then? Justice Cardozo
speaks of reasons of practical con-
venience" and cites the wise in which
municipalities that cannot increase
their taxing area have gotten them
selves. He refers also to the minority
OF creditors who block a settlement
and OF the relief intended to be given
against such abuse by the new Federal
statute governing municipal bank
ruptcies.
In a nutshell, Mr. McReynolds in
sists that the supreme law must be
maintained and if necessary the Con-
stitution changed in the proper way
to prevent hardship in the future.
But Mr.. Cardozo is tempted, as ap-
parently are his associates, by the
rule OF expediency. Since the question
turns on whether the States rights
are really violated, the minority of the
Supreme Court felt safe in recon-
nending that the law be held valid.
They felt States rights were amply
safeguarded.
Alternative Law Possible.
The layman will then ask if the re-
suit could have been achieved in a
constitutional way. Certainly, Gov
SAAuicut tiAdt Cdu picFcut TWO OF
more citizens from conspiring to re-
strain trade can enact laws to punish
those engaging in a conspiracy to
block reasonable settlement of claims
offered to a court or some other
arbitral body by municipality. Like
wise. States themselves have the
remedy to make voluntary debt agree
ments with creditors that could not
be successfully attacked as inequitable.
Where there Us q remedy-and In
the last resort there Is the method
= r.