Evening star. [volume] (Washington, D.C.) 1854-1972, 1958-02-02

Jencks learned that the witnesses
had previously made statements
about him to the FBI, he de-
manded the right to examine the
records of these statements.
Conviction Reversed
When the case reached the SUI
preme Court. the conviction was
reversed on the ground that the
trial judge should have permitted
the defendant to examine the
reports. In his opinion for the
court, Justice William J. Bren-
nan. jr., declared that, II the
Government did not want to show
such reports to Q defendant, it
would have to see him 60 free.
The decision stirred up q storm
in Congress. With rare speed,
both houses approved q measure
intended to nullify it. The bill
differed from what the court had
done in these significant respects:
. It provided that q defendant
could demand only reports of
which a verbatim record had been
kept.
. 1t gave the trial Judge power
to screen such reports and decide
which, if any, to turn over to the
defense.
. 1t permitted the Judge to strike
out the relevant testimony instead
of dismissing the case in the event
that the Government refused to
produce records which the court
requested.
This law could, however, turn
out to mean next to nothing.
Judges may be inclined to take
the Supreme Courts word about
what constitutes a fair trial and
not be content with the standards
set by Congress.
But even If a case should arise
in which a Federal court chooses
to follow Congress guidepoSts In
stead Of those erected by the SUI
preme Court, it may get its come
uppance from the very court it
has flouted.
For the Supreme Court could
simply declare that the standards
set by Congress just do not con-
form with the constitutional re-
quirement that q defendant be
accorded due process Of law.
Court Counterottock
This. then. is the prospect con-
fronting Congress-: If it passes q
law upsetting what the Supreme
Court has done, the court may
counter by declaring the law un-
constitutional.
And the fact is that constitu-
tional questions are involved in
every one Of the courts recent
actions to which may members of
Congress have taken violent ex-
ception. Here are few examples:
. The court has held that, under
the Smith Act, only Indictment to
action meant to overthrow the
Government by violence is illegal;
advocacy of forcible overthrow as
an abstract principle is not out
lawed. Congress can try to over
come this decision by specifically
banning what the court says has
not been forbidden until now. But
the court can then rule that any
law which prohibits the teaching
of an abstract doctrine violates
the First Amendment, which guar
antees freedom of speech and
press from governmental inter-
ference.
. The court has declared that
the House Un-American Activities
Committee must explain to wit
nesses how questions they are re-
quired to answer are pertinent to
a valid legislative purpose author
lied by the House. In the future,
the House can give clearer man
date to the committee. which in
turn can be careful to demonstrate
to witnesses the relevance of ques-
tions they are asked. But the SUI
preme Court can then hold that,
under the Constitution, Congress
can no more investigate ideas than
1t can legislate against them.
. The court has said that. in
Federal courts, confessions taken
during an unnecessary delay in
arraignment must be excluded by
the Judge. Congress can try to
reverse the court by changing the
rule of procedure on which this
decision was based. But the Court
can then hold that the defend
ants Fifth Amendment rights are
violated by needlessly delaying his
arraignment.
In other words, Congress must
face the fact that by the legis-
lative process 1t can change the
law but not the Constitution. And
1t is still the Supreme Court which.
in the last analysis. interprets the
Constitution.