Evening star., 1937-01-07

OF the National ns,
Government, thus
making unnecessary any constitu-
tional amendments to achieve the same
goal?
The first looks toward the accept
ance of constitutional precedents as
final and gives the American people
the specific opportunity to say whether
they want governmental powers over
their affairs extended. The second
looks to amendment by judicial inter-
probation. Some critics, like Donald
Richberg, call it judicial "usurpation'
because of the assumption that any
Interpretation which goes beyond the
original words is, in a sense, q use OF
the amending power.
Two Main Reactions.
From legal viewpoint there will be
many who will be shocked at the plain
warning in the Presidents message
that he expects the Supreme Court to
work in harmony with the political
branches of the Government.
But from a practical standpoint, or
rather from the aspect Of simple ex-
pediency in a crisis, there will be many
who will say the President has the
right approach. if by his message II
can be inferred that he does not want
the court to try to uphold what are
now conceded to be loosely written
laws but to sustain laws that do con-
form to precedent, however wise or
unwise they may be from an economic
aspect.
The key to Mr.. Roosevelt's thinking
must be looked for in this all
important sentence in the concluding
portion Of his address:
THE judicial branch also is asked
by the people to do its part in max
ing Democracy successful. We do
not ask the court to call non-eXistent
powers into being, but we have
right to expect that conceded powers
or those legitimately implied shall be
made effective instruments for the
common good"
It is unfortunate that Mr.. Roose-
welt dwelt so much on the N. r. A. IN
the same speech that discussed the
broad questions of judicial interpre-
tation. For it so happens that nine
justices Of the Supreme Court,
liberals and conservatives alike.
agreed that to validate the N. r. A.
meant to bring "non-existent powers
into being" and that there was
nowhere to be found any conceded
powers" or words in the constitutional
nrecedents which "legitimately i'm
piled" any such exercise of authority
as was attempted in the N. r. A.
Plainly, the present membership OF
the Supreme Court said unanimously
in the N. r. A. case that it was not
the province of the Court to amend
the Constitution, but simply to take
q statute and lay it alongside OF con-
stitutional precedent and to say
whether the law did or not conform
to the Constitution as previously
interpreted by the Court.
What Mr.. Roosevelt may have IN
mind is a disregard of precedent alto
eether. but, If he has, then the entire
structure of law, including human
rights as well as property rights,
stands in danger Of being overridden
by measures passed for political
expediency.
Legal Check Needed.
After all, some one in our system
OF government has to say whether the
legislative and executive branches are
right in their Interpretation Of the
Constitution, and the document itself
states that judicial power must be
vested in a Supreme Court which can
pass on "all cases in law and equity"
that arise under the Constitution.
The theory of the founders was
that the judicial branch would act
as a check on the other branches OF
the Government. because, if Congress
or the President were to be the sole
judges Of their own acts, the way
would be opened to arbitrary action.
In recent years the notion has been
fostered that the congressional body,
representing the people. should be
supreme Radicals have been ad-
vocating, indeed, that judicial de-
cisions should be vetoed by Congress
and the laws re-enacted If two-thirds
Of Congress agreed.
Mr.. Roosevelt does not include in
his message any measures or proposals
to interfere with the existing powers
of the courts or constitutional prac-
tice. He merely appeals for more
''liberar' Interpretation OF existing
constitutional powers that are vested
In Congress. He does not threaten
any constitutional amendment limit
ing the judicial power. His remedy,
Of course, could lie in appointing
Judges who thought as he did about
''liberalizing" the Constitution, but
here again one cannot tell what an
appointee who Is considered liberal"
might do when face to face with the
generations Of precedent laid down by
our historic court.
Brings Out Issue.
From the viewpoint Of expediency,
Mr.. Roosevelt's proposition comes
down to this: The appeal from an
unwise law is repeal by simple ma
jority Of both houses Of Congress.
either as q result Of popular express
sion or an election at the polls. But
the remedy against q constitutional
amendment adopted in the stress and
emotion Of an emergency is q long
drawn-out process of doubtful efficacy.
It takes long while to get an amend
ment out of the Constitution but it
doesn't take so long to get rid Of an
unwise law.
Still, there will be many who will
say that, If the Federal Government
k to have the power to regulate
wages, the people should have q
chance to approve or disapprove such
Q grant Of power in . special referen-
dunn called for that purpose alone.
The Presidents message Is construc-
tive In that 1t brings the issue clearly
70 the surface for public discussion,