The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1936-01-27
ATTACKING THE COURT

u smashing AAA, was "a shining and warning
example of judicial supremacy at its worst" in the
opinion of Howard Lee McBan, Columbia Univer-
sty graduate dean and professor of constitutional law
An article by Prof. Mccain in the New York
Times expressing this and other critical of the
courts action, has provoked wide discussion in
Washington and elsewhere.
Curiously, the Liberty League simultaneously
issuing white list of lawyers critical of the New
Deal, in which Mr. Mccain was quoted as saying
that the most serious charge against President
Roosevelt was that in crisis giving wide oppor-
tunity for reform "he has chosen for personal and
party interests to play the usual game of putrjd
party politics"
Of the Hoosac decision, Mr.. Mccain writes that
"an unbiased mind hardly escape the cor ;lusion
that the court was determined to kill this law no
matter what sacrifice of logic and reasoning
necessary in the process of torturing the Constitu
ton to the end"
The article also interprets the extreme language
of the three dissenting justices challenge" Of
the motives of the six majority Justices and a
charge" that they stepped outside their proper
function guardians of the Constitution and
usurped the role Of arbiters Of legislative policy
Justice Roberts statement for the majority that
the court was passing only on the law and not on
sort of whistng in the moral dark in the final
dread hour of laws execution"
His major criticism is that the court sdestepped
the power of Congress to impose taxes for the gen
eral welfare" and rejected AAA as an invasion of
the reserved powers of the states.
"VXTHO ever heard of states exercising any such
w right to control farm productions" he asked
"a more udicrous policy for any state to attempt on
IFS own could scarcely be imagined. 1t would be
difficult to discover inappropriate subject OF
law as a text for the courts spread-eagle remarks
on the danger of destroying the local sefgovernment
of the states and 'obliterating the constituent
bers of the Union"
An unbiased mind he said, "is driven almost in
spite of itself to suspect that the court was not
prompted and governed, as it should have been.
solely by the desire and purpose to apply to the law
rational Interpretation of the Constitution This sus-
pcion would be justified if the dissenting JUS
tees had been accusatory in their Implications
why was the general welfare clause avoided?" he
asks and then answers: Possibly because it would
have been palpably absurd to declare that nation
wide relief for the distress of agriculture was not for
the general welfare but possibly also because of the
magnitude of the implications of such doctrine as
applied to numerous other laws of Congress, invov-
ing both in retrospect and prospect untold billions
OF dollars"
Mr.. NdcBan believes that because the tide is run
ming against the New Deal there will be repriSal
Immediately against the court, but he warns omi-
nously that the decision will rise to torment the de-
tenders judicial supremacy long after the issue of
farmers relief has become a historical episode"
"It may ultimately have more profound effect
upon American Institutional development than all of
the New Deal experiments rolled into one"