Evening star., 1937-02-18
No Compromise.

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The proposal advanced by Senator
Wheeler Of Montana and Senator Bone
of Washington which would make 1t pos
sible for Congress, by q two-thirds vote,
to override decision Of the Supreme
Court is neither new nor sound. Its
effect, If the plan were written into the
Constitution as proposed by the two
Senators, would be to make it possible
for the Congress, political body, to
override the judiciary. Its further effect
would be to enable Congress to make
changes in the Constitution by q two
thirds vote of that body without refer
ence to the States.
The Constitution Of the United States
set up three branches of government, the
legislative, the executive and the judicial.
1t was distinctly understood that they
should operate within their own particu-
lar spheres, while at the same time
acting as checks upon the domination
of the Government by any one of the
three. Thomas Jefferson in his Notes
on the State of Virginia wrote: "All the
powers of government, legislative, exec
utive and judiciary, result to the legis-
lative body. The concentration of these
in the same hands is precisely the deflni-
ton of despotic government. 1t will be
no alienation that these powers will
be exercised by plurality of hands, and
not by a single one. One hundred and
seventy-three despots would surely be
as oppressive as one. An elective
despotism was not the government we
fought for; but one which should not
only be founded on free principles, but
in which the powers of government
should be so divided and balanced
among several bodies of magistracy, as
that no one could transcend their legal
limits, without being effectually checked
and restrained by the others"
The proposal advanced by Senators
Wheeler and Bone, If it becomes law,
would make possible legislative usurpa-
ton. And if the Chief Executive was so
powerful as to dominate the legislative
branch-as he does today-the ultimate
result would be usurpation by the
Executive.
The two Senators suggest that the
recall of judicial opinions by action of
the Congress shall only take place in a
Congress elected after the Supreme
Court shall have handed down O deci-
sion holding invalid law of Congress.
Their idea is that the people in the
succeeding election will be governed by
their own desires with regard to the
wisdom and validity OF the judicial
opinion In question. The multiplicity OF
issues in a political election in this
country is common knowledge. BY their
multiplicity they could easily prevent an
accurate decision of the people on q
judicial decision-which might in the
minds of many of the people be inferior
to other issues involved in the election.
In the last Congress the Democrats
had huge majority. In the succeeding
Congress, which sits today, their ma
jority is even more swollen. They have
not only two-thirds but three-fourths
and more of the membership of each
house. Under the whip and spur of
partisan political leadership it would be
an easy matter to muster q two-thirds
vote to override a decision of the
Supreme Court handed down in the last
Congress holding law of that Congress
unconstitutional.
Senator Wheeler and Senator Bone
are quoted as describing their proposed
amendment to the Constitution as a
compromise" which will be acceptable
both to the supporters Of the Presi-
dents plan to revamp the Supreme
Court and to its opponents. 1t cannot,
in reality, be termed compromise. It
is complete surrender to the idea that
the legislative branch of the Govern
ment, and perhaps the executive, shall
dominate the judicial branch. Senator
Wheeler and Senator Bone have no such
idea in mind, 1t is true, but that would be
the effect. If there is to be a con-
stitutional amendment, by all means let
it be direct to the issue, and that is
whether Congress shall have the power
to enact laws which it now does not
have under the Constitution.
The Constitution itself is very positive
regarding the powers Of Congress, for
it says: "All legislative powers herein
granted shall be vested in the Congress
of the United States" The words here
in granted" are the key. There is no
such limitation placed, however, on the
Supreme Court, for the Constitution
says: "The judicial power of the United
States shall be vested in one supreme
court and in such inferior courts as the
Congress shall from time to time ordain
and establish"