Evening star., 1937-02-18

the idea of giving the legislative
branch increased powers was made
by Justice Harlan Stone in speech
delivered while he was member OF
the Supreme Court bench. The occa-
sion was the meeting of the American
Bar Association in Seattle in July,
1928 Justice Stone pointed out that
he was not discussing whether the
power to override decision; should or
should not be given, but he was out
lining lin gathering of lawyers the
effect of the suggested limitations on
the judicial power. He said in part:
1T has been suggested that stat
ute might be made to prevail over
constitutional objections if it we're
passed by the legislative body twice.
It has also been suggested that II
statute whose conStitutionality was
contested were upheld by a minority
of two or three of the members OF
the court, it should become law de-
spite all constitutional objections.
State and National Questions.
"When any such device is applied to
the function which the court exercises
as the arbiter between the rival claims
of governments or the separate
branches of the National Government,
the question at once arises: Shall it
be applied equally to statutes passed
by Congress and to statutes passed by
State legislatures, or shall it be ap-
piled to only one, the acts Of Con-
gress? If applicable only to one, 1t
IL apparent that the sovereign State
and the National Government no
longer can stand on plane OF
equality in matters Of constitutional
right or immunity, but the way is
opened for the gradual curtailment
Of the constitutional powers granted
to or reserved by one through the
enactment Of statutes by the other,
which, whenever their constitution
ality Is assailed, have greater weight
before the court than the Constitution
itself.
But II the device of the weighted
statute were to be supplied both to
the acts Of Congress and to State
statutes in the field of conflict of
powers OF government under our dual
system, then each would be given the
opportunity to extend its conStitu-
tional power in particular fields at the
expense Of the other by the enactment
of statutes which. before the Supreme
Court. must be given weight greater
than is given to other forms of gov
ernmental action or to the provisions
Of the Constitution itself.
Problem Becomes Involved.
"But governments do not always ex-
ercise their sovereign powers through
the enactment of statutes. Under our
system they may act with equal COM
potency through the executive or the
judicial power, and such action when
it Is supported by the Constitution is
as authoritative as If the Government
spoke through legislation alone. The
consequences e these proposals, there
fore, would be to give a weight and
effect to legislative action which would
not attach to other forms of govern
mental action when it is asserted that
both are sanctioned by the Con-
Stitution.
"In a controversy between States,
founded upon diverse claims of con-
stitutional right, greater weight must
needs be given to the statute of one
than to the executive action of the
other, merely because governmental
action in one case has found express
sion in q statute, rather than through
some other equally competent agency.
1.-The same inequality between the
different types of responsible govern
mental action would occur with
respect TO the three branches of the
National Government. Under such
scheme, the executive action of the
President of the United States or the
judicial action of courts, each founded
upon a claim of constitutional rights,
would have less weight than the action
OF the legislative branch. In prac-
tice the device of the weighted statutes
could only operate to effect a gradual
transfer of constitutional powers from
the executive and judicial branches
Of the Government to the legislative.
Would Bring Redistribution.
sThese are but illustrations in some
what elementary fashion of the truth
that under our system Of the distri-
button of constitutional powers, the
power vested in one branch or agency
Of the Government cannot be sub
tracted from one litigant without add
ing to that of the other, and that CIV
ing artificial weight to one form OF
governmental action wherever it comes
into conflict with the other forms, or
with the Constitution itself, can only
result in an inevitable shifting of gov
ernmental powers as they have been
distributed by the Constitution. And
that redistribution of power would
take place, not as result of judicial
action based on the provisions of the
great document itself but by increas-
ing the power of one at the expense
Of the other by resort to its own leg
islative action"
Already, of course, what Justice
Stone foresaw nine years ago has come
to pass in the demand for greater and
greater legislative power or greater
executive power, both at the expense
Of the judicial power. The plan to
override decisions of the Supreme
Court by act of Congress voted upon
by two-thirds will lead to a proposal
for ma ajority vote: Indeed, it is being
sponsored already as compromise in
the event that the administration
objects to two-thirds vote as means
of overriding the Supreme Court.
Political Oligarchy Might Result.
Such plans mean only that their
sponsors want to make the legislative
power supreme and that 53l politically
elected persons would be asked not
only to make the laws but sit as judges
on their own acts in interpreting the
Constitution. A simple act to take