Evening star., 1937-03-02


President granted
to Arthur Krock of the New York
Times occurs this paragraph:
Suppose, he (the President) says,
the reader begins his perusal with re-
membrance that Washington wrote
the words in 1896 before the Supreme
Court had attempted to override an
act of Congress without the specific
warrant of the Constitution. 1t is
then, in his opinion, wholly logical to
read the warning words of the Father
Of his Country against usurpation as
q criticism of the course the Supreme
Court has followed in many decisions
since it assumed the power of in
validating"
The argument is a familiar one,
but has never before been attributed
to any President of the United States.
Gov. La Toilette of Wisconsin last
week repeated the charge and so have
many radical professors who have
frankly wanted to see the Supreme
Court shorn of its power. The con-
tention is, because nowhere IN the
Constitution is there a sentence say
ing the court shall declare acts OF
Congress constitutional or unconstitu-
tional, therefore Chief Justice John
Marshall was unwarranted in 1903 in
the famous Marbury versus Madison
case in assuming for the first time
the right of the Supreme Court to
declare acts of Congress invalid.
Specific Mention Made.
But the Constitution does definitely
mention that the judicial power OF
the United States shall be vested in
one Supreme Court" Likewise, IN
another article, the Constitution says
"the judicial power shall extend to all
cases in law and equity arising under
this Constitution, the laws OF the
United States, and treaties made, ETC..
In a third place in the Constitution
will be found the words: This Con-
stitution and the laws of the United
States made in pursuance thereof
shall be the supreme law of the land
From these phrases it has always
been the established view OF JurlStS
that only laws made lin pursuance"
of the Constitution were constltu-
tional, and that, since in the Supreme
Court was vested the judicial power In
all cases in law and equity that arise
under the Constitution, it was the duty
of the Supreme Court to pass upon
the validity of acts of Congress.
Renders Enforcement Intellectual.
AS a matter of fact, to be strictly lit
eral about it, the Supreme Court
really never declares an act of Con-
gress to be unconstitutional as SUCH.
It merely adjudicates a law suit in
which a citizen declares himself to be
aggrieved or injured by statute, and
the effect of a Supreme Court de-
cision is really to render Intellectual
the enforcement of a law that was
passed without sanction of the con-
stitutional precedents of the past.
The Importance of having law
suit in which right or liberty of a
citizen is definitely affected was never
better illustrated than in a famous
case known as Commonwealth VS..
Massachusetts. Said the court in its
former opinion, which was delivered
in 1928 by Justice Sutherland:
The functions Of government un-
der our system are apportioned. To
the legislative department has been
committed the duty of making laws,
to the executive the duty of execut-
ing them and to the judiciary the
duty of interpreting and applying
them in cases properly brought before
the courts.
No Power to knnul.
''We have no power per Sc to review
and annul acts of Congress on the
ground that they are unconstitutional.
That question may be considered only
when the justification for some direct
injury, suffered or threatened, present.
ing justiciable issue, is made to rest
upon such an act. Then the power
exercised is that of ascertaining and
declaring the law applicable to the
controversy.
1T amounts to little more than
the negative power to disregard an
unconstitutional enactment, which
otherwise would stand in the way of
the enforcement of a legal right. The
party who invokes the power must
be able to show not only that the
statute is invalid but that he has sus-
tanned or is Immediately in danger of
sustaining some direct injury as the
result of its enforcement, and not
merely that he suffers in some indefi-
mite way in common with people gen.
orally.
Here the parties plaintiff have no
such case. Looking through forms of
words to the substance of their COM
plant, it Is merely that officials of
the executive department of the Gov
ernment are executing and will exc
cute an act of Congress asserted to
be unconstitutional, and this we are
asked to prevent. To do so would
be not to decide judicial controversy,
but to assume a position Of authority
over the governmental acts Of an
other and co-equal department, an
authority which plainly we do not
possess"
Thus, for instance, there Is no place
In the Constitution where the Presi-
dent or Congress Is given directly or
indirectly the right to Ak the size Of
the Supreme Court of the United
States. Congress assumed this right
In 1889, and it has been respected
as a precedent ever since. But 1t
would take a law suit of some kind
to bring such a question actually be-
fore the Supreme Court, and it would
have to be shown that some indi-
vidual was definitely injured by the
action separate from any general in
3ury that might be suffered.
So there are undoubtedly many acts
Of Congress which go beyond the
spirit If not the letter of the Consti-
tuition that never have been re-
strained, and the remedy against un-
wise laws or acts of officials Is to be
found at the polls. lust as the remedy