Evening star., 1938-07-11
Justice CardOzO and
the Constitution
To the Editor Of The Star:

To the Editor Of The Star:
In the newspaper stories of the life,
character and judicial career Of Justice
Cardozo, Just deceased, 1t Is stated that
in his opinions he made clear his con-
viction that the Constitution must not
be construed as a rigid framework, but
as living organism, which must grow
to meet the needs of the Nation; and
from quoted statements taken from his
writings and judicial opinions the con-
clusion is that. the growth of the Con-
stitution to meet the needs Of the Nation
in its social, economic and political de-
velopment was the function of judicial
Interpretation. While the idea is not
entirely novel it involves a judicial phil
osophy which is the negation of popular
government, and which, If carried to its
logical conclusion means in the end the
utter destruction Of constitutional gov
ernment. In democracy such as ours
the people are the sole authoritative
source Of government. It is by their will,
and within the limits Of the Constitution
established by them, which is binding
upon all those who exercise authority
as their servants that the Government
functions.
According to the philosophy of Justice
Cardozo and his school of thought, this
power OF the people Is transferred to the
courts. and the Constitution becomes,
not what the people willed it to be, but
what IN the judgment of the courts It
should be to meet the needs of the
times. If and when this doctrine is ac-
cepted the Constitution will become q
dead letter, and will no longer afford
protection to the rights and liberties of
the people. Public officials will then
have to take an oath not only to support,
ETC., the Constitution as it may be at the
moment, but also as it NAV become
under the fuctuating and expanding
1mprlmatur Of the courts in their inter-
probation of 1t.
1t Is the duty Of the courts, in the
opinion OF the writer, to interpret and
Apply the Constitution as it is written,
ana II 1t has become outmoded by the
complexities of modern civilization let
the people. who are the final repository
OF us authority, change it to meet the
new needs.
ohtlI recently the courts have held
that the general welfare" clauses of
the constitution contained no grant
whatsoever OF legislative authority, and
partlcularly that said clause in that part
o! tne constitution conferring the power
OF taxation, was not a grant of power,
nut Limitation upon the power of taxa
ton. And yet the courts have sustained
all sorts Of socialistic legislation Of the
past nve years involving vast expendi-
lures OF money for what Congress- has
deemed the general welfare" legisla-
tion alien to the Federal Government.
ano tnat could not possibly have been
contemplated by the trainers of the
Constitution. But If We concede that
tne general welfare" clauses are grants
oI Aee1slative power. they do not author
A1e tne congress to enact laws there
unoer tnat nullify other provisions of
tne C0nstltution, such for example IS
tne Dill OF rights contained therein,
when congress has done. The Consti-
tutlon must be construed as q whole
ana with respect to all its parts.
one OF the most flagrant instances Of
sne courts liberal Interpretation in vio-
lstlon OF an express prohibition of the
Constltutlon was the Minnesota mora
forum case, which the court justified Is
required by the needs of the times. The
feosral Constitution says that no State
snau pass any law impairing the obliga-
lions OF a contract. The Legislature of
Minnesota passed law postponing the
payment OF interest on mortgages, and
foreclosure of mortgages for
q gwen time. This law was sustained by
the supreme Court Of the United States
unoer the liberal doctrine Of interpre-
tation That now appears to be the courts
pohcy. II this is to become the fixed
practlce OF the court under the Cardo0o
doctrine Of liberal Interpretation. tho