Evening star., 1937-05-25
Climax of a Trilogy.

Climax of a Trilogy.
Yesterdays decisions upholding valid
ity Of contested provisions Of the social
security act are OF great Importance in
themselves, setting as they do the final
seal of approval on the most far-reach-
ing of the National Governments expert
ments in social legislation.
But in a larger sense yesterdays de-
cisions are even more important than
approval of the particular statute on
which they were made. For the decisions
constitute the third part Of trilogy
on the new Interpretation of the Consti-
tuition written by the Supreme Court in
the historic term that comes to close
next week.
This term has witnessed established
conceptions of the powers OF legislative
bodies-both Federal and State-and
the division Of such powers between the
Federal and State governments, con-
ceptions based on long line Of court
decisions, changed II not swept away.
There has come, for better or for worse,
new deal in the courts reading OF
the Constitution. Old frontiers, beyond
which 1t was dangerous to tread under
previous decisions, have been pushed
toward q distant horizon which Is As
yet only dimly defined.
In the minimum wage decision the
court reiterated, but nevertheless en-
phasized with extraordinary force, the
limitations imposed on judicial powers
in the Interpretation Of due process"
The courts, the opinion declared, are
not concerned with the substance OF laws
which is the province Of the legisla-
tures-as much as with the procedure OF
their enactment and administration. So
much social legislation has been success
fully attacked under the due process
clause that the courts decision in effect
removed a barrier in this field which
had been steadily strengthened by judi
cial decree since the Civil War.
In the decision on the Wagner cases
the court did not go SO far, perhaps, as
to write new definition Of the inter-
state commerce that is subject to Fed
eral regulation. 1t did not, perhaps, so
much as reverse its previous dictum that
manufacture Is not commerce. But it
did enunciate the broad principle that
manufacture which substantially Affects
interstate commerce, even though the
effect be indirect, is subject to Federal
Regulation.
And now, in the valuation OF the
social security act the court has broad
ened considerably its previous construc-
tions of the power to tax under the
general welfare clause OF the Constitu-
ton. This power is still subject to liml-
tation. "The line" as Justice Cardozo
said In the opinion on the old-age benefit
section OF the act, must still be drawn
between one welfare and another, be-
tween particular and general Where
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through formula In advance Of the
event. There is a middle ground or
certainly a penumbra in which discre-
ton is at large. This discretion, how
ever, is not conf1ded to the courts. The
discretion belongs to Congress, unless the
choice is clearly wrong, a display Of
arbitrary power, not an exercise of judg-
ment. This is now familiar law" But
it is only recently familiar law.
Senator Wagner, that sturdy pioneer
in unemployment insurance legislation
as well Is the labor legislation which
bears his name, has hailed the decision
as striking OF these shackles" imposed
by previous decisions Of the court Affect
ing due process and interstate COM
merce. He says, with full right to his
enthusiasm, that through the national
labor relations act decisions and the
social security act decisions, the Federal
Government stands ready and able in the
full plenitude Of the power originally
CONFERRED upon IL IN 116v 10 le81Sl0te
for the welfare Of the whole American
people"
Does not the President agree with
Senator Wagner? Does not the courts
decision in the social security cases,
coupled with its decisions affecting inter-
state commerce and the due process
clause, once and for all do away with
the discredited court-packing plan? The
American people will approve and rec
oncile q change in the courts point Of
view with q change In the nature of our
society and its problems and with new
conceptions of governmental RESPONSE
bility resulting from such changes and
problems. But they will not approve 4