Evening star. [volume] (Washington, D.C.) 1854-1972, 1955-09-25

To the foreign observer. judi
cial review u the most mystifytng
element In the American system.
The British political ti1eorist. Har-
old J. LAslxi. saw IN It . displace-
ment Of political democracy with
judicial democracy" At home. It
alternately has been condemned -
substituting the divine right OF
judges for the divine right Of the
people and praised Is an instru-
ment for ascertaining and applying
the sober second sense" Of the
people. Both positions find earnest
champion. In the South today in
the wake Of the recent decision
multiplying segregation In the public
schools, q decision which ranks with
the Steel Seizure case Of 1852 as
ample testimony Of the influence
which the Supreme Court Yields IN
the role In which Marshall cast It.
Secret Of Courts Power
The secret Of the power Of the
courts under Marshalls concept Of
judicial review lies In the brevity
and generality Of the Constitution.
Under such broad. underlined con-
stitutionaI terms Is commerce
due process of law" equal pro-.
lection Of the laws" and taxation"
constitutional issues become also
policy issues. Marshall could have
backed away from the area of pub
lie policy by calling cases In this
field political questions de-
vice which the court sometimes
docs use and leaving the determi-
nation % other branches 'cf the
0opcrnment.
Instead, Marshall led the court
to meet the challenge with q Wig
orous assertion Of jurisdiction. The
court told New York that 1t could
not give an exclusive charter on
the Hudson River because naviga-
ton was commerce" and thus re-
served for exclusive national con-
troll. 1t told Maryland that it could
not tax Federal bank notes. In the
same case, IL upheld the constitu-
tionality Of the United States Bank
by announcing the implied-powers
doctrine--the most pregnant tnstru-
ment for broadening national pow
ers which has yet been devised. It
told Virginia that Federal law, In
GLIDING the Constitution and
treaties, Ii the supreme law Of the
land, and cannot be tempered with
: BY the States.
These doctrines Of national SUI
premacy. fiexibility Of national
powers and reservation OF interstate
commerce to exclusive Federal con-
troll are the foundation for major
portion Of modern Federal legisla-
ton and institutional arrangements.
In the decisions finding room
within the Constitution for the
Federal power program as exemph-
fed by the Tennessee Valley Au-
thority. the Wagner Labor Rela-
lions Act, the Wages and Hours
Law, the World War II war meas
ures, to mention = few. the latter
day court was invoking the spirit
and sometimes the very language
Of John Marshall.
Core Of tie Legacy
But the inner core Of the Mar
shall legacy Is not to be found In
the substance Of particular deci-
sions, important and numerous
though they may be. The inner
core Is the bold assertion partly
accepted In his own time and
almost completely accepted since
that though the Constitution Is
"higher law" It is not so high as to
lose contact with the daily affairs
OF men. It Is living and enforceable
law, even where it rudely collides
with the majority win Of the SOW
ereign people az expressed In legis-
latures. The Constitution may grow
by Interpretation and amendment;
1t may not be ignored. Further, the
judiciary, with the Supreme Court
at its apex. is asserted to be the
natural and final interpreter OF the
whole Constitution.
It was on this point Of judicial
finality over the whole range OF
constitutional problems that many
Of Marshall's contemporaries took
issue with him. Nevertheless, when
these critics, such as Roger B.
fancy, were in Ike position they
did not hesitate to use the instru-
ment OF judicial review which they
had criticized In Marshali's hands.
Among scholars the issue ID still q
burning one. But as the defeat Of
Roosevelt's "cotrt-packing plan" In
1887 indicates, the people are not
inclined to permit tampering with
the Supreme Court. even In the face
Of unpopular decisions.
Broad popular acceptance Of the
principle Of judicial review has
given the Supreme Court It's unique
position in American democracy.
Resting on this broad popular &C.
ceptance, judicial review in return
may have provided the people with
q mechanism which is both an ex-
preston and o cause Of the stability
Of American Government, 1t Is Q
mechanism born In conflict and
nurtured by political controversy
for the progressive adaptation Of
the Constitution to new interests
and 10 new senses Of justice and
injustice.
r.