Evening star., 1937-09-20

has no right to ~
pass upon the
&C nstitutionality "''u 'e"ie"'e'
of acts of Congress. After $50 years
of custom and usage the validity of
the doctrine of judicial review is
formally denied for the first time by
President of the United States.
Mr.. Roosevelt went step further
He declared that judicial veto" itself
was voted down by the Constitutional
Convention. In this he is stating
only half truth, and it is most re-
grettable that Mr.. Roosevelt, who, it
is well known, doesn't prepare all of
his speeches, but takes memoranda
from persons with prejudices that fit
his purposes, should have let himself
IN for an inaccurate statement. He
did N>t investigate Mr.. Blacks men,
bership in the Klan, and today he has
put on record a speech which, had he
beforehand Investigated history, he
would have found in error.
Book by Charles Warren.
The most authoritative work on the
history of the Supreme Court and the
Constitution is that by Charles War
ren, Democrat, once Assistant At
torney General under President Will
son. In his book. entitled THE Con-
Eress, the Constitution and the Su-
preme Court" first published in 1925.
Mr.. Warren tells the story of the So
called judicial veto" episode in the
original Constitutional Convention:
Some who now oppose the court
emphasize the fact that the conven-
ton of 1887 rejected four times a
proposition urged strongly by Madison
and others, that the Supreme Court
should have a power of veto with
the President) of bill after its pas
sage.
But this proposition to make the
court part of the law-making body
was very different proposition from
the power of judicial review, which
the convention acknowledged the
Court possessed. -.
There was general admission by
the members of the convention that
the court would have power, eventual
~, to pass upon the validity of the
acts of Congress; and, therefore, many
did not believe it right that the court
should have double chance. It will
be seen, therefore, that the defeat of
the proposal for veto by the court
did not imply that the convention was
opposed to power of judicial review
but rather the contrary"
Roosevelt Is Quoted
This has been said again and again
In debates in Congress and Mr.. Roose-
welt has verified this by having at his
side an impartial investigator of the
history of the Constitution. Yet here
Is what Mr.. Roosevelt said in his
speech on the 150th anniversary of
the signing Of the Constitution:
Even the Supreme Court was
treated with that purposeful lack of
specification. Contrary to the belief
OF many Americans, the Constitution
says nothing about any power of the
Court TO declare legislation unconsti-
tutional. nor does it mention the num-
Der of judges for the court Again
and again the convention voted down
proposals to give justices o. the court
a veto over legislation. Clearly a
majority of the delegates believed
that the relation of the court to the
Congress and the Executive, like other
subjects treated in general terms.
would work itself out by evolution
and change over the years"
Does this mean Mr.. Roosevelt feels
1t is proper now asa step in his theory
of evolution and change for the Su-
preme Court to cease ruling hereafter
as to whether acts of Congress or of
the States are void?
The President told his radio audi
ence that the Constitution says MOTH
ing about any power of the court to
declare legislation unconstitutional. "
In saying this he ignores what every
President of the United States before
him has conceded. He overlooks the
plain language of the Constitution it.
self. which first vests "the judicial
power" in one Supreme Court and
then goes on in Article VI to say that
only laws made in pursuance of tse
Constitution" shall be the supreme
Law Of the land"
Mr. Roosevelt did not tell his radio
audience that the same men who
made the Constitution passed in 1888
the judiciary act in which the Supreme
Court was specifically given power to
decide whether treaties and statutes
were in conflict or whether they were
"in pursuance Of the Constitution
Power of Judicial Review.
To revive at this late date the con-
troversy about the power of judicial
review can only have one object--to
attempt to convert the American
people to the belief that they can now
virtually abolish the Supreme Court
merely by having the Executive con-
troll Congress and letting Congress
without seeking sanction of constitu-
tional change, write the constitutional
changes
The lack of historical basis for what
Mr.. Roosevelt said last Friday night
is even more strikingly revealed in G
quotation from an address by Justic,
Harlan F. Stone before the American
D"A FASHSSiobAoAa oiAiiu@A tOAlNtDtADi
in 1928. Mr.. Stone was known then
as now, as one OF the liberals on ths
Supreme Court. He said
These differences of opinion as Il
the scope of the police power in it
application to particular social prob
lens have revived in the last 25 year
the discussions of earlier days, of tn,
power of the court to declare laws n
the States and of Congress uncon
stitutional.
While the exercise of this powe
has been strongly challended as judi
cial usurpation, the history of tn,
judicial function before the adoption
the Constitution, the language o
<1e Constitution in itself in Article vi