Milford chronicle., 1937-10-15
Individual Liberty and Group
Order Under the Constitution"
(Continued from page ninel

huc last interpretation is not IN the
nature of an amendment to the Con-
stitution but rather is declaratory of
the Constitution; and this because
neither Interpretation is purposive
by giving a meaning now different
from that when first written or ar
bitrary by not applying that meaning
now as then to similar situations,
but both interpretations are the con-
scientious opinions of Independent
and oath-regardful judges. When,
however, the Congress, at the re-
quest of the President, creates new
judges for the declared purpose of
sustaining as constitutional legisla-
tion similar to that which the Su-
pTeme Court heretofore in proper
discharge of its functions had strick-
er down as unconstitutional, then
the statutory increase in the num-
ber of judges and their change of the
meaning or of the application of the
words of the Constitution is not in
depreciation but in fact and effect is
an amendment to the Constitution
because, made for that avowed pur-
pose.
The essentials or a representative
democracy are that the people shall
orGain a fundamental law which es-
tablishes a government with SOW
ereignty vested in the popular will,
exercised for the general welfare
and which functions through agents.
There can be no democracy with
representation without either the
traditional assent of the people or,
after referendum to them, their orig
inal adoption or subsequent amend
ment of the Constitution.
The power that makes the court
can unmake American democracy. III
a President can persuade or coerce
a Congress or a people to accept as
truth his unwarranted assumption
that the Supreme Court by arbitrary
Interpretation wrongfully mas
amended the Constitution, he thus
ma ymake use of a constitutional
remedy aimed against judicial usur-
patton and a safety valve against
violent revolution to destroy the ul-
innate sovereignty of the people.
The Senate, however. refused to |
accepted the assumption of the peo-
nle's mandate to change their Con-
stitution by mere executive approval
of the action of a bare Congression-
al majority, and the President mas
met this challenge by his declared
purpose to seek at the next Con-
eressional elections their expliclt
mandate to change the personnei OF
the Supreme Court. If this is done
then will go to the people the issue
most vital to their supremacy; Tor
II the then elected representatives OF
the people so will Congress and the
President by statute may then
change the personnel of the Supreme
Court without offending the letter OF
he Constitution, whatever the Vio-
ence to its spirit, and this because
after referendum the statute Is IN
accord with and gives erect to the
will of the people and under the Am
erican system of jurisprudence their
mandate cannot be legally wrong.
The full import of the Presidents
Instant challenge should be empha-
sized. for such authority in the brute
mower of a majority may be exer-
Used only against the fundamental
,nirit of the Constitution, which is
hat it shall be modified or amendeo
,nly by the will of the people ana
hen only in the manner provided by n
he Constitution itself. 1t is submltt-
d that no mere Congressional ma
gritty and executive action were ever
to amend the fundamental {
aw of the land. The power to
.bange the number of the judges I
means nothing more than the order q
v creation and appointment OF i
udees under our constitutional sys-
EN- and at most was contemplated t
,nly to control possible usurpations a
# arbitrary courts. Its purpose was il
,ot to destroy an essential depart t
nent of government, nor to procure e
of an executive social u
m deconomic plan through the ap- C
,ointment of new judges whose a
minds and convictions reflect the ex- {,
cutive will, or through the coercion Il
# the minds and wills of sitting
udges whose only offense is to dlf- q
er with an executives conception of e
he meaning of the Constitution. O
(2) ii
Now to the second peril. The con- o.
eption of the rule of the masses by III
heir direct action on the proposals bl
f the Executive, or in the words of et
IS present utterance of periodic it
mandate from the majority is at IL
ariance with the self-government of n,
he people through their representa- tn
ives under the self-imposed limita-
cns of their fundamental law for ps
ne restraint of the majority and the m
rejection of all minorities. The la
additional conception of our Gov tu
rnment under our Constitution is tn
ne of continuous functions with W,
over coming from the whole peo- fa
lie and not from a majority only; M
nd which guarantees rights to every az
tizen which no majority can take nj
ON him. The proposal that the bu
ants of the people shall be sug- he
ssted by executive plan or must" ed
-ogram, and its ratification by a MI
ajority of the people gives more &c
and is its ultimate ex- It
'ession, is opposed to the tradition wi
conception of American constitu- of
onal law. 1t is revolutionary in its its