Evening star., 1937-09-19
The Judicial Power.

Commenting upon the powers of the
Supreme Court-or lack of powers
President Roosevelt in his Constitution
Day address said: Contrary to the be-
lief of many Americans, the Constitu-
ton says nothing about any power of the
court to declare legislation unconstitu-
tional; nor does it mention the number
OF judges for the court. Again and again
the convention voted down proposals to
give the justices veto over legislation"
This statement, made to the American
people on solemn occasion, the 15oth
anniversary of the birth of the Con-
stltution, seems to be intended to create
an impression that the Supreme Court
has usurped powers not given it under
the Constitution. 1t is true that the
President added that clearly a majority
of the delegates (to the Constitutional
Convention) believed that the relation of
the court to the Congress and the
Executive, like the other subjects treated
in general terms, would work itself out
by evolution and change over the years"
But this latter statement does not lessen
the implication that the President is
seeking to undermine the belief OF the
people that the Supreme Court should
determine whether law passed by Con-
gress and signed by the President is con-
stitutional.
An examination of the Constitution
itself shows however, that the Consti-
tuition does give the Supreme Court full
power to adjudicate cases involving the
constitutionality of legislation. If the
court in the course of such adjudication
holds that an act of Congress, or of one
of the State Legislatures, violates the
Constitution, it so states. When such
determination has been reached, such
law may not be enforced
What the Constitution says is this:
"The judicial power of the United States
shall be vested in one Supreme Court,
and in such inferior courts as the Con-
gress may from time to time ordain and
establish. The judicial power shall
extend to all cases in law and equity
arising under this Constitution, the laws
of the United States, and treaties made,
or which shall be made. under their
authority"
This is clear grant of power to the
courts, and particularly to the Supreme
Court. the court of final appeal. The
judicial power of the United States"
means all the judicial power. 1t extends,
as the Constitution says, to all cases
arising under the laws of the United
States The President failed to say in
his address that the Supreme Court does
not take up an act Of Congress or OF
one of the States as such and declare
it unconstitutional. What the court
does is to hear cases brought by indi-
viduals or by the Government against
individuals. If the law, in the opinion
of the court, is not in accordance with
the provisions of the Constitution, the
court says so. law in conflict with
the Constitution is no law. 1t is null
and void
If the President has it in mind to
undermine the Supreme Court as final
umpire between the people and the Gov
ernment when laws Of questionable con-
stitutionality are sought to be enforced,
he should state his position clearly If
he believes that the Supreme Court
should not be permitted to pass upon
the constitutionality of acts of Congress,
why not say so? What he has said so
far is a form of sniping at the court.
There are some members of Congress
who believe that the Congress-and the
President who signs the laws passed by
that body-shall constitute the whole
judicial power of the United States when
it comes to determining whether legis-
lation is in accordance with the Consti-
tuition. They wish to be the sole creators
Of such legislation and the sole judges
of it. Does the President wish to be
| counted along with these members of
Congress?