The Waterbury Democrat., 1937-02-12
Legal Sophistry Ventilated

Hence there Is no positive guaran-
tee in the presidents clever and
amusing device, however praise
worthy 1t may be with respect TO
immediate emergencies. This Is not
to say that his device Is without
merits. 1t certainly is genial and
konical answer to the platitudes,
rtises, subterfuges, and artful lodges
to which lawyers and judges resort
in gcading their ideas into the Con-
stituticn and carrying their wills into
effect.
Moreover, besides leading our pro-
feSsional tearerS Of hair into tear
ing their hair again, the presidents
message lets O gust Of fresh air
into dusty and stale atmosphere Of
legal sophistry.
For instance, 1t ventilates the
most preposterous Of all legal sophis-
tries, namely, that the judges Of the
supreme court never express any
opinions or predictions Of their own,
but merely, simply, and truly say
Just exactly what the Constitution
Is. 1t Is the almost universal preva-
lence Of this sophistry that largely
accounts for the state Of befuddle-
ment in which we now find our
selves.
Unreasonable Doubt, at S to 4
with wearisome reiteration judges
OF the supreme court declare that
they merely pronounce the law Of
the Constitution and hold acts Of
congress invalid only when these
acts conflict with the Constitu-
ton beyon.. all reasonable doubt.
This judicial platitude Is so
old and threadbare that when an
auditor In the court room hears 1t
uttered, he may be sure that ma
jority Of the judges are about to
invalidate an act which they do not
like. They even resort TO the plati-
tude when four Of the nine Judges
dissent from the proposition de.
clared TO be beyond all reasonable
doubt"
Il our lawyers and judges would
I'D themselves OF this sophistical
cloak, large part Of our troubles
would disappear. There are clauses
OF the Constitution that admit Of
no reasonable doubt as TO meaning.
For example, each state shall have
two senators. That means two. not
one, or three. but the clauses Of the
Constitution under which great acts
of congress have usually been in
validated are vague, and admit Of
many interpretations according to
the ideas and interests Of the per-
son WHO make them.
.is
Thinks Congress Needs Check
Il lawyers and judges would
adopt simple rule In keeping with
the realities Of tbs situation they
would say: Congress, which Is full
of lawyers, may know as much
about the Constitution as we do,
and every act In congress Is valid
unless It Goes In fact run contrary
to . clear and express mandate Of
the Constitution"
On the whole this was the po-
sition taken by the late Justice
Oliver Wendell Holmes; but then
Chief Justice Taft Is reported to
have said that Holmes did not know
any constitutional law.
Why not abolish checks and bal
arce-, and deprive the court Of the
power to pass upor. the constitu-
tionaiity OF acts Of congress? That
proposal. IN my opinion, places too
much reliance on the wisdom. mod.
Grafton, AMI knowledge Of congress.
It's history Is not without flaws.
Congress Not Always Alert
Only two years ago that august
body passed "the red rider" which
insults the teachers OF the District
Of Columbia. violates every prin-
cipIe OF educational liberty, and
profoundly disturhs the well.admifi-
istered schools OF the district. This
.fider was janines through BY the
conversational machine when Q large
number Of members opposed TO II
were app. .rently asleep. Nobody who