Evening star., 1940-02-14

brought into the
Charles G. Ross. state in the
tanks Of motor buses and trucks,
holds the greatest interest.
BY a divided vote the court threw
out the tax on the ground that it
constituted direct and unreason.
able burden on interstate commerce.
Justices Black, Frankfurter and
Douglas, three of the Roosevelt ap-
pointees, dissented. There was an
odd circumstance here, indicative
perhaps of the solidarity among the
three. Under the usual practice q
dissenting opinion is by one speci-
fled judge, with those OF like mind
being announced in concurrence
With his views. In this instance.
though, Justice Black announced
the opinion, all three were joined
at the top as the authors, and the
opinion began, I'VE take different
view."
Strong Emphasis Placed.
What is of prime significance,
though, is the strong emphasis
placed by the dissident judges-and
in all likelihood their views are
shared by the newest member, JUS
tice Murphy-on the right OF Con-
gress and the State legislatures to
pass laws with a minimum of in
reference by the courts. This doc
trine of judicial self-restraint, which
perceptibly has guided the court
since the spring of 1887, is stated
and restated in the opinion bv
Justices Black, Frankfurter and
Douglas.
AT the outset there is a pointed
reference to "the oft-repeated ju-
dicial rule that every enactment of
Legislature carries presumption
OF constitutional validity" The
fact is then stressed that Congress.
sole constitutional legislative re-
posltory Of power over commerce"
among the States, has passed no
law prohibiting Arkansas from levy.
ing the disputed tax Attention Is
called to the "incalculable variants"
involved in fixing such tax as the
one In question, and the conclusion
is drawn that the "exacting adjust
ments" required by this process are
the business of legislation, not of the
courts. The limited responsibility"
OF the Supreme Court is under.
scored in the opinion.
Courts Not Legislatures.
Again, the opinion quotes from
the finding of the court in another
case that courts do not sit as leg.
islatures. either State or national.
They cannot act as Congress does
when, after weighing all the con.
flicting interests, State and Ma.
tional, 1t determines when and how
much the State regulatory power
shall yield to the larger interests Of
national commerce."
Finally, there is a automatically
worded but nevertheless patent dig
at the majority of the court for
having assumed "a burden of cal.
culation and speculation 80. In the
exercise of the judicial function
which should be left to the Legisla.
lures OF the States and the Con.
gress."
The opinion of the minority In
the Arkansas case is no brief for the
setting up Of State barriers to inter.
state commerce. Quite the con.
trary. The point is simply that the
States have a right to put into eff.
feet regulations which Congress has
not forbidden to them under its
powers over interstate commerce.
1t Is not for the court to say wheth.
er these State regulations are de.
sirable; indeed, the opinion strongly
suggests that many of them are not.
1T is not for U.s." says the opinion,
ito approve or disapprove." All Of
which comes down to q reiterated
assertion by the three justices that
the making of policies is no part Of
the judicial function.
Does Not Isolate Them.
This expression by Justices Black,
Frankfurter and Douglas does not,
Of course, isolate them from their
colleagues. All of the court are
against judicial policy making. Diff.
ferences arise in the Interpretation
of the doctrine. The significant
thing is the emphasis which these
three-and not always these three
alone-are at pains to lay upon the
rights Of legislative bodies to experi-
ment within the broadest possible
field. 1t is the shift of emphasis
in this direction which marks the
difference between the "old" and
the new" court.
So far from being an indorse.
ment of State barriers to interstate
commerce. the minority opinion
constitutes clear invitation to
Congress to exercise its overall
powers with respect to interstate
commerce and ION the basis of full
exploration of the many aspects Of
complicated problem devise q
national policy fair alike to the
States and our Union" Until this
is done, the dissenters feel that such
regulations as the Arkansas tax,
hurtful though they may be to
interstate commerce, must be sus.
tanned when there Is no clear show.
ing Of conflict with national powers.
In the particular case at bar,
only three Of the court voted to
sustain. but the general trend of the
court Is one Of self -denial-of limi.
tation Of the judicial function.
There is no fact Of greater long
range significance in the relations
Of the thfee coordinate branches
Of the National Government. One
lesson stands out: That as increas-
ing restraint is put by the courts
upon themselves, there is increasing
need for elf-discipline on the part
Of executive officers and legislators.
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