Evening star., 1937-09-22

laws: After my $
message 20 h
Congress on the n,,,ar.ursn..
rejuvenation of
the judiciary, the odd man admitted
that the court had been wrong-for
all these &c years-and overruled him.
self" The truth is Justice Roberts,
who cast the deciding vote, did so in
December, 1886, after the case was
argued. This was several weeks be-
fore the Presidents judiciary message
was delivered on February S, 1887.
The actual opinion of the court was
not announced until April, 1887, due
to the absence of Justice Stone, who
had been i'll, and Mr.. Stone did not
overrule himself, because he concurred
the previous year in an opinion OF the
minority of the court holding State
minimum wage laws to be constitu
tional.
Belief Of Delegates.
T. Mr.. Roosevelt stated that the
majority of the delegates" Of the
Constitutional Convention believed
that "the relation of the Supreme
Court to the Congress and the Execu-
tive. like other subjects treated IN
general terms, would work itself out
by evolution and change over the
years" He stated that the convention
had voted down judicial veto" His
torians of even the left-wing school,
among them Charles A. Beard, deny
in their published works the accuracy
Of Mr.. Roosevelts statement, Thus
Mr.. Beard lists 19 members of the
convention as showing definitely that
they comprehended the doctrine of ju-
dicial review and others frankly ap-
proved it, or at least acquiesced in it,
and that there were six others who
were favorable to it. Frank E. Melvin,
another noted historian, says seven
others should surely be added" to
Boards list, and that the evidence
would indicate that 80 to 40 out OF
IS delegates upheld or accepted the
right OF the courts to disregard as law
any unconstitutional legislation"
8. The President declared the Con-
stitution says nothing about any
power Of the court to declare legisla-
.tion unconstitutional" Justice Stone,
q liberal" who has been recorded as
unfolding the New Deals contention
as to constitutionality of legislation
brought before the Supreme Court in
the last four years, has said in a pub
lie address that the Constitution does
specifically by "the language of the
Constitution itself, in Article W." give
the Supreme Court the right to exer-
else its judicial power in declaring
acts of Congress unconstitutional.
Mr.. Stone said the subject was mo
|. longer debatable" not only for the
foregoing reason but because of the
facts contained in the history Of the
judicial function before the Constitu-
ton was adopted"
4. The President said judicial
veto" had been voted down again and
again by the Constitutional Conven-
ton. but he did not state that the
judicial veto" was an entirely diff
ferent proposition from the present
method Of declaring laws unconstitu-
.tional. 1t WAS proposal to give the
President and the Supreme Court to-
eether the right to veto legislation
after Congress passed it and then the
Court was later to have second
chance to pass on constitutional ques-
tions arising out of the law when
lawsuits developed.
Seen Counter to Record.
When the President endeavors to
give the impression that the power of
the Supreme Court to declare acts of
Congress unconstitutional was not
understood before the Constitution
was adopted, he runs counter to the
record of statements made before the
various State conventions which rati-
fed the Constitution. There were then
xonly 13 State conventions, but in at
least of them the subject came up
and was fully debated. Explicit ac-
acknowledgements of the Supreme
Courts power to intalidate legislation
are to be found in the debates in the
conventions of North Carolina, Mary
land. Virginia, Pennsylvania, New
I York and Massachusetts,.
Alexander Hamilton, writing in the
Federalist OF certain papers urging
upon the people of the State OF New
York the ratification of the Consti-
tuition, pointed out that mo legisla-
tive act contrary to the Constitution
can be valid"
William r. Davie said to the North
Carolina convention:
There Is no rational way of enforc-
Ing the laws but by the instrumentality
OF the judiciary. 1t appears to me
that the judiciary ought to be COM
petent to the decision of any question
arising out of the Constitution itself"
Ellsworth Statement.
Oliver Ellsworth said to the Con-
necticut convention:
"If the General Legislature should
at any time overleap their limits the
judicial department is constitutional
check. If the United States go be-
yond their powers, if they make law
which the Constitution does not au-
thorize, it is void; and the judicial
power the judges, who, 10 secure their
impartiality, are to be made inde-
pendent, will declare it to be void.'
George Nicholas said to the Virginia
convention:
What Is to determine the extent
of such power? say, the same power
which, in all wel1-regulated cominuni-
ties, determines the extent of legislative
powers. If they exceed these powers
the judiciary will declare it void, OF
else the people will have right to
declare it void"
Patrick Henry said to the Virginia
convention: Il take it as the highest
encomium on this country, that the
acts of the Legislature, if unconstitu-
tional, are liable to be opposed by the
judiciary"
John Marshall Qater Chief Justice)
told the Virginia convention: IF they
i