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    The Supreme Court and the Constitution
    Robert E. Cushman, The Supreme Court and the Constitution (Public Affairs Pamphlet, No. 7, 1936) pp. 1-36.


    Publishing Information

  1. The average citizen has a very wholesome respect for the Constitution of the United States. His respect does not usually come from any clear or accurate knowledge of the document itself, but grows out of the belief that the Constitution sanctions those policies which he approves and forbids those which seem to him dangerous or oppressive. His reaction to the Supreme Court is similarly direct and forthright; its decisions are sound if he likes them and unsound if he does not. While this solution of our constitutional problems by the "hunch" method has the advantage of simplicity, it is rather too simple to be helpful in answering two very vital questions now before the country: (1) Is our Constitution adequate to the demands of our present day national life? (2) Is the Supreme Court preserving our Constitution or obstructing its normal and healthy expansion?

  2. It is well to remember that the "fathers" who framed the Constitution were no more competent to manage their affairs than we are to manage ours. They relied upon what political experience they had, but much of their work was frankly experimental. Some parts of the Constitution in which they took the greatest pride, such as the intricate method of electing the President, failed completely to work as they intended.

  3. Certain inadequacies in the original document, as interpreted by the Supreme Court, had to be met by constitutional amendments. But the basic features of the Constitution of 1936 are those of the Constitution of 1787. For purposes of the present discussion those basic features may be summed up as follows: 1. The Constitution set up the outlines of a structure of national government, while at the same time it left intact the state governments. 2. The Constitution worked out a division of powers between the new national government and the states. It did this by delegating to the new national government the powers deemed necessary for national purposes, and by declaring that the powers not thus given to the new nation were left to the states unless specifically forbidden to them. The national government had only the powers positively given to it; the states kept all the powers not taken away from them. 3. The Constitution, with its added amendments, carefully listed certain vital civil liberties which the new federal government might not invade. Most of these were set out in the Bill of Rights added in 1790. Other guarantees of civil liberty were set up as limitations upon the states. Here we find prohibition against impairment of the obligation of contracts and later the all-important due process and equal protection clauses of the Fourteenth Amendment. 4. The new Constitution declared itself to be the "supreme law of the land a fundamental law binding upon state and federal officers alike. To make effective this concept of the Constitution, the Supreme Court, after putting out one or two hesitant feelers, boldly announced in 1803 in the case of Marbury v. Madison [1] that it was the organ of government to maintain the supremacy of the Constitution and that in the exercise of its judicial work of applying the law in cases brought before it, it would invalidate acts of Congress which were in conflict with the Constitution. Since the Constitution itself declared its supremacy over conflicting state legislation, the power of the Supreme Court to invalidate state law deemed to violate that Constitution were even easier to defend. Whether the framers of the Constitution intended the Supreme Court to exercise this power of "judicial review" in enforcing the supremacy of the Constitution, or whether the Court "usurped" it, has evoked bitter argument which we need not enter into here. Whether "usurped" or not, and the weight of historical argument is against the charge of "usurpation," the Supreme Court has exercised this important power of declaring statutes unconstitutional ever since Marshall established the precedent in 1803, and it is now as much a part of the working American Constitution as the provision that Senators shall be chosen for six years or that the President may veto bills sent to him by Congress.

    Nation Changed since 1789

  4. Thus the basic nature of our constitutional system has not changed since 1789. But the nation which it governs has vastly changed. From a fringe of jealous and struggling colonies on the Atlantic seaboard it has become a great continental empire, national in its thinking and its impulses, with an economic life pulsating through nationwide systems of markets, transportation, and communications. Congress still has its delegated power to regulate commerce, and we are told that the power is unchanged; but what a difference between the commerce of 1787 and 1936! And so with the other delegated powers: they have not shrunk, they have not expanded, but they apply to concrete problems and situations beyond the wildest imagination of the founding fathers.

  5. This is also true of the guarantees of civil liberty found in the Constitution. No longer do they restrict the simple activities of an 18th century government, but they are used to measure the validity of the many complex rules and restrictions which the modern nation and state impose upon the daily life of the citizen. What many thoughtful people have been asking is: How adequate is the old Constitution to the needs of a 20th century nation? Are the delegated powers broad enough to permit the federal government to deal with all truly national problems? Are the old limitations in behalf of civil liberty too strict or too loose? To what extent has the Supreme Court in construing the Constitution been able to adapt its provisions to the demands of modern life? If the Constitution, as interpreted by the Court, prevents the proper solution of our social and economic problems, should we do something to the Constitution to meet the difficulty, or should we do something to the Supreme Court? . . .

    Proposals for Constitutional or Judicial Reform

  6. Whatever we may feel about the wisdom of the statutes involved it is a sobering thought that Congress cannot proceed with its program for agriculture rehabilitation because six of our nine Supreme Court justices so rule, and the neither the nation nor the states can protect women and children from starvation wages because five of the same nine justices find something in the words "due process of law" which prevents it. And this pushes to the front the question whether, viewing the whole situation, we think something ought to be done about it. And if we assume that something ought to be done, that raises a whole row of questions as to what can be done. Let us, then, examine the various position which an intelligent citizen might take on this important question and see what ways are open to him to make his view effective. 1. In the first place there is the view point that the Constitution is fully adequate to present day needs and that the Supreme Court is performing wisely and efficiently its difficult task of interpreting it. Those holding this opinion, and there are many, will naturally propose no changes in our constitutional or judicial system, but will, on the contrary, fight any changes that may be proposed. 2. In the second place there are those who view with concern the whole constitutional picture presented in the earlier pages but who feel that no change in the Constitution is needed and that any "tinkering" with the Supreme Court will be dangerous and unsatisfactory. These critics of the present system believe that the Constitution with its broad and generous clauses is sufficiently flexible to meet the changing demands of the modern nation. That flexibility must be recognized and accepted by the Supreme Court in the work of constitutional construction. And we must "educate" the Court through criticism, public discussion, and the various techniques of an informed public opinion to a more enlightened view of their task. A person thus minded is apt to quote Mr. Dooley's comment that the Supreme Court follows the election returns and, if more fully informed, alludes to the fact that the Supreme Court has actually reversed or drastically modified its decisions in about forty cases. [2] This shows that judicial opinions can be and sometimes are changed gradually and it is urged that such a process of evolution and adjustment is likely to be more satisfactory than any jerky and uncertain results attained by altering either the Constitution or the Court. In reply it is urged that few, if any reversals of the decisions of the Court have come about in answer to any immediately expressed public opinion, that the recent decisions indicate a trend toward judicial ruthlessness rather than judicial tolerance of legislative policies, and that such a program of judicial education is at best slow and uncertain. This, however, is no valid argument against employing the method as vigorously as possible in the hope of securing substantial results. 3. A third position is that the Constitution, properly interpreted, is fully adequate to our present day national needs, that the Supreme Court is at fault either in assuming the vast power it exercises, or in the way in which it uses it, and that we should, therefore, let the Constitution alone and reform the Court. Having agreed that something ought to be done to the Court, these reformers split up into at least five groups on the question of what to do.

    "Packing" the Court

  7. One thing that can be done to the Court is to "pack" it. By this is meant to increase the number of judges on the Court and fill the new places with men who have a more "liberal" point of view. For those who like speedy action this plan has the advantage of getting immediate results and of being a change which can be made by Congress without the aid of a constitutional amendment. The Constitution provides that there shall be a Supreme Court but leaves it to Congress to determine its size by statute. We started out with six justices, we have had as many as ten, and since 1869 we have had nine. There is no constitutional reason why we should not have fifteen or twenty-five. This scheme to "pack" the Court has a certain child-like simplicity. If we have judges whom we regard as bad, let us add to the Court enough good judges to outvote the bad ones and all will be well.

  8. In 1870 the Supreme Court declared the Legal Tender Act invalid by a vote of four to three. [3] There were two vacancies on the Court at the time. President Grant filled these places with two men who promptly voted with the minority of three to reverse the decision by a vote of five to four. [4] Historians still argue as to whether Grant "packed" the Court, a question which we are not called upon to settle. It is more important to note that the incident cost the Court heavily in public confidence. Mr. Hughes calls the reversal under these circumstances "a self-inflicted wound." Those who urge that we "pack" the Supreme Court should bear in mind that packing may well be a two-edged sword. If we "pack" the Court with liberals there is nothing to prevent reprisal by the conservatives when they come into power, and the process may go on until all sound traditions of judicial independence are undermined. Furthermore, the packing of the Court with justices of a particular breed or color of view promises very uncertain results. If these men are really the kind whose judicial work will be directly governed by their political and economic affiliations, who will in short live up to the implied understanding which led to their appointment, they would appear to be unfit for judicial service. Nothing but calamity can be expected from a definitely biased Court. If, on the other hand, judicially-minded men are appointed in the expectation that their known predilections and hunches will color their work on the bench, it should be noted that experience does not bear this out sufficiently to make the method a very reliable instrument of specific reform. The history of the Supreme Court is full of cases in which Presidents appointed men to the bench in the hope that they would give effect to a certain point of view. Such efforts were almost always disappointing in their results. In virtually every case the justice so appointed failed to do his "duty" in this regard and settled down to be a judge and not a partisan.

  9. But it is not necessary to swamp the Court in order to change its personnel. Five justices are now over seventy-four years of age and a sixth is over seventy. [5] The President elected in 1936 will hardly escape the responsibility of appointing one or more justices. In doing so he will affect the trend of the Court's decisions for many years. If he appoints men with the broad judicial tolerance of a Brandeis, Stone, or Cardozo, the Constitution may prove flexible enough to meet the demands we are making on it. If he appoints hard-minded judicial dogmatists from the ultra-conservative school, we may find ourselves facing the issue of drastic constitutional revision. Those who believe the Constitution is adequate to our present needs, if flexibly construed, will do well to exert every ounce of influence toward the selection of justices who share their views, not on specific questions, but on the broad principles of liberal construction.

    Limiting the Court's Jurisdiction

  10. Another quick and easy method of dealing with the Supreme Court is to deprive it of its jurisdiction to decide cases in which constitutional questions are most likely to arise. This also may be done by act of Congress without amending the Constitution. Many who favor this plan are not wholly sure of their ground and are prone to lose track of certain basic facts. The Supreme Court has two kinds of jurisdiction, original and appellate. The original jurisdiction of the Supreme Court is fixed by the Constitution and cannot be increased or diminished by Congress. But that original jurisdiction does not figure in our present problem since it includes only cases affecting ambassadors, ministers and consuls, and cases between states of the union. The appellate jurisdiction of the Supreme Court, however, while it cannot be enlarged by Congress beyond the limits set forth in the Constitution, can be cut down or even abolished by statute. The Constitution plainly states that such appellate jurisdiction shall be exercised subject to "such exceptions and under such regulations as the Congress shall make."

  11. Congress has frequently changed this appellate jurisdiction, sometimes extending it and sometimes cutting it down. In one notable case Congress cut off the Court's appellate jurisdiction for the admitted purpose of preventing a decision on a constitutional question. This was the famous case of ex parte McCardle decided in 1869. [6] The case had already been argued in the Supreme Court on a question involving the constitutionality of the Reconstruction Act of 1867, an act which Congress had reason to suppose the Court might hold void. Before the Court could render a decision (although there is some evidence that the Court delayed to permit Congress to act) Congress repealed the statute giving the Court jurisdiction to hear the case on appeal. The Court decided that Congress had the power to do this and dismissed the case forthwith. Congress could constitutionally take from the Supreme Court all appellate jurisdiction, although this would leave a very peculiar judicial system. Or Congress could lop off the appellate jurisdiction of the Court in particular kinds of cases as it did when it made the jurisdiction of the Circuit Courts of Appeals final in all federal criminal cases not involving constitutional questions. But this vitally important fact must be kept in mind. As long as the Supreme Court is left with any appellate jurisdiction whatever, Congress cannot constitutionally keep the Court from passing upon the validity of acts of Congress in any and all cases lying within that jurisdiction in which such constitutional questions can possibly arise.

  12. Let us see why this is true. There is a difference between the jurisdiction of the Supreme Court and the judicial power exercised inside that jurisdiction The actual substantive power which the United States Courts exercise is te "judicial power of the United States, and this they get from the Constitution and not from Congress. The jurisdiction of the Courts, on the other hand, is the area of enclosure within which the judicial power is exercised. A federal judge put it very neatly when he said: [7]

    We see that Congress . . . can as a potter shape the vessel of jurisdiction, that is, the capacity to receive, but having been made the judicial power of the United States is poured into the vessel not by Congress but by the Constitution.

  13. Congress, in other words, can determine whether the Supreme Court shall have any cases to decide on appeal, but if it allows it to decide any at all, it has nothing to say about the nature of the judicial power exercised in deciding them. Now the power of the Supreme Court of the United States to pass on the validity of laws (and the same is true of lower federal courts as well) is an inherent element of the judicial power of the United States. That is the orthodox theory of judicial review. That being true the power of judicial review cannot be impaired or taken away by Congress. Congress does not confer it and may not destroy it. That power, therefore, will still be exercised by the Supreme Court, and every other federal court, within the limits of any jurisdiction, however small, that Congress may permit these courts to exercise. Congress can prevent the Court from exercising judicial review of legislation only at the price of cutting off its power to exercise all judicial power. It follows that any legislative tampering with the appellate jurisdiction of the Supreme Court is a very left-handed and unsatisfactory method of dealing with the power which the courts exercise in construing the Constitution.

    Preventing Five-to-Four Decisions

  14. Still another proposal for "reforming" the Court is to provide that no act of Congress shall be invalidated by the Supreme Court unless seven of the nine justices agree. There is no sanctity about seven as the required majority, but that is the number most commonly proposed. Since this would be a change in the Court's exercise of its judicial power, rather than its jurisdiction, it would probably be necessary to amend the Constitution in order to bring it about, although there are able constitutional lawyers who believe that Congress could make this change by statute. This proposal is aimed at the evil of five-to-four decisions and has been strongly urged from time to time. Its underlying philosophy is simple and plausible. It is an accepted principle of constitutional construction that an act of Congress is presumed to be constitutional and should not be held void unless its invalidity is beyond all reasonable doubt. It is ridiculous, urge the advocates of this seven-to-two requirement, to say that a statute is void beyond reasonable doubt when four judges or even three believe it to be valid. If the constitutional issue is as close as that, the judgment of Congress should be upheld. Such a rule (the concurrence of seven judges) would have saved the A.A.A., the Guffey Act, the Railroad Retirement Act (on its broader merits), and the Municipal Bankruptcy Act. It would not have saved the N.R.A. or the Frazier-Lemke Act.

  15. Let us examine the plan more closely. Does not the "reasonable doubt" argument, in the form used, prove too much? All the courts have ever meant in saying that the unconstitutionality of a statute should be free from reasonable doubt before the act is held void, is that there should be no reasonable doubt in the minds of the judge or judges rendering the decision. Mr. Justice Roberts ought not to hold the A.A.A. void if he has doubts about its invalidity; but if he is not doubtful why should he vote to uphold it because Mr. Justice Stone has doubts, or believes it valid? There will always be some doubt somewhere or there would be no issue in the first place. This is the reason why a court which claims to be governed by the "reasonable doubt" test of validity continues to hand down five-to-four decisions. It does not, however, prove that we ought not to prevent such decisions. The seven-to-two rule might increase public confidence in the decisions of the Court and allay resentment. Exasperation at a decision one does not like is increased when it is a five-to-four decision. Then there is the other side of the picture which would appear when an act of Congress, attacked as invalid, is upheld and enforced when six members of the Court believe it to be unconstitutional. That would hardly produce widespread confidence in such a decision. It seems probable that more acts of Congress would be upheld than at present. Which ones they would be could not, of course, be foretold. The results of the rule would be neither very serious nor very helpful; but it is doubtful if they would be important enough to warrant passing a constitutional amendment.

    Overriding the Court by Two-Thirds Vote of Congress

  16. A much more drastic change in the power of the Supreme Court would be made by those who propose that decisions of the Supreme Court holding acts of Congress invalid could be overridden by a two-thirds vote of both houses of Congress. If this were done the act would be in effect in spite of the Court's decision. This is substantially the scheme advocated by the late Senator LaFollette in his campaign for the Presidency in 1924. This appears to be a sort of short cut method of amending the Constitution on particular points brought up in particular cases. It reads into the Constitution the congressional construction embodied in the statute. It differs from the normal method of amending the Constitution in several ways. In the first place it permits amendment of the Constitution: without ratification of the states. Take a concrete example. Congress passes a law making it a federal felony to participate in a lynching. This is the exercise of a power not delegated to Congress by the Constitution. Try to find such a delegation! The Supreme Court holds the act void on this ground. Two-thirds of both houses of Congress re-enact the law over the veto of the Court and it thereby be comes valid and effective. The result is that we have amended the Constitution by delegating a new power to Congress but without giving the states their present power to ratify or reject the change. It is not our present purpose to decide 3 whether or not that is a good thing to do; but we ought to understand clearly that that is just what the proposal involves. Secondly, these short-cut amendments do not originate as proposals for amendments and are not debated as such. They begin as ordinary statutes and the effect of the overriding action of Congress is to make part of the Constitution the principle of constitutional law embodied in them. A good deal of confusion would be injected into our constitutional law by this method of piecemeal amendment. It would seem to be more satisfactory, if we want Congress to punish those guilty of lynching, to amend the Constitution by the usual process, rather than to put beyond judicial reach a statute passed by Congress and invalidated by the Court. If we need an easier method of constitutional amendment, various ways could be found of getting it. It is doubtful if the present plan would be one of them.

  17. The sponsors of this plan, however, will hardly let the argument rest here. They will emphasize that it is only our judicial tradition, and not inescapable logic, which leads us to assume that the Constitution must mean what the Supreme Court says it means, rather than what Congress says it means. We are not necessarily changing the Constitution in overriding the Court. They point out that Congress has been highly conservative in proposing amendments by a two-thirds vote. It has been possible to muster the two-thirds vote necessary to override the presidential veto very infrequently, and there is every reason to suppose that Congress would treat with great respect any really convincing opinion of the Court invalidating a law. The proposal, in short, would probably be much less revolutionary in operation than it sounds on paper.

    Curbing the Court's Power by Constitutional Amendment

  18. Lastly it is proposed that we pass a constitutional amendment which would take away from the Supreme Court (and all the other courts presumably) all power to declare acts of Congress unconstitutional. This plan is simple and thorough. It makes Congress the final judge of its own powers under the Constitution.

  19. It is foolish to urge that the country would go to the dogs or to the reds, if this important change were made. No other constitutional government in the world gives to its courts the broad power of judicial review which our Supreme Court enjoys. The British Parliament is sovereign and no English court can declare an act of Parliament unconstitutional. In France there is a written constitution under which the French Parliament functions, but no French court has the power to invalidate any act of Parliament. To say that constitutional government cannot work satisfactorily without judicial review gives the lie to the constitutional experience of all the rest of the world. But that does not mean that the abolition of judicial review would not be a fundamental change in the American system. In passing judgment on the proposal there are a number of things to remember. In our entire history less than eighty acts of Congress have been held void by the Supreme Court, but those seventy odd decisions are no index of the practical effect of the power of judicial review. Our whole law-making system is profoundly influenced by the fact that Congress does not have the last word on constitutional questions. The congressman works in the knowledge that the laws he enacts will sooner or later be passed on by the Court. That may make him conservative, perhaps too conservative, since he may be unwilling to support needed legislation which he believes the Court will invalidate. It often centers legislative debates more sharply on constitutional questions than on issues of general policy. On the other hand, the knowledge that there is an ultimate reviewing power in the Court offers the less scrupulous congressman the chance to build his political fences by supporting popular laws without worrying about their constitutionality. He has the comforting assurance that the Court will in validate them if they are enacted. He evades his own responsibility to support the Constitution and passes the buck to the Court. Those favoring the abolition of judicial review of acts of Congress would do well to make a realistic appraisal of Congress not only when it is on its best behavior, but when it is in its less inhibited moods. Does it have or can it develop a sense of constitutional responsibility anywhere near approaching that of the British Parliament?

  20. Another fact should be kept in mind. The Supreme Court does not confine itself to invalidating acts dear to the hearts of social and economic reformers. Sometimes it has occasion to hold void laws which invade the constitutional civil rights of the citizen, his freedom of speech, his religious liberty, his equality before the law, his right to a fair trial. If judicial review is abolished these rights also are left to the legislative discretion for their protection. In the Spring of 1936 the writer heard Mr. Norman Thomas declare (and herein he apparently differs from the platform doctrines of the party of which he is a candidate) that we can not afford to lose the protection which judicial review gives to our civil liberties and he was unwilling to advocate the abolition of that power. It is also well to remember that after a century and a half of political experience we have become a very "judicially-minded" people. We have not developed any very deep admiration for our legislative bodies. In fact we accord them much less respect than they deserve. And even the common citizen who feels free to criticize particular Supreme Court decisions which he does not like is going to feel very insecure when he finds that there is no Supreme Court to which he can appeal against what he believes to be a legislative invasion of his rights and liberties. The extent to which the judicial review of legislation is embedded in our fundamental American tradition and mode of thinking about our government is a factor which we cannot ignore if evaluating the merits of this present proposal. If we were starting from scratch, undeterred by our long political and judicial experience and our subconscious reliance upon our courts for the protection of our rights we might feel much freer to set up a new constitutional system without judicial review, than we can possibly feel to remove the power of judicial review from a constitutional system which has been dominated by it for so long.

    Must the Constitution Be Amended?

  21. 4. This brings us to the fourth and final position which may be taken by those who believe that our constitutional and judicial system calls for some change. This position is that we should change our Constitution to meet new demands rather than change the Court. Accepting judicial review as a going concern we can all agree that it is most open to attack where the Supreme Court is interpreting the vague and general clauses of the Constitution or is applying an ancient provision to conditions lying beyond the contemplation of the founding fathers. This is clear from our earlier analysis of the New Deal decisions. Now it is wholly intelligent to suggest that if the results we are getting from judicial review under these circumstances are not satisfactory then the thing to do is to sharpen and clarify the constitutional provisions which the Court has to interpret. Since wise men disagree as to whether the due process clause forbids the enactment of a minimum wage, a simple solution would be to put into the Constitution a definite grant of authority to fix wage and working conditions. That would take the matter out of the realm of judicial debate and put it where it belongs, in the field of political debate. Are there to be no limits to the amount of "stretching" of the delegated powers of Congress to meet the growing demands of our national life? Must they inevitably be construed to cover all the emerging problems calling for centralized control?

  22. In demanding that the Supreme Court permit the commerce clause, the taxing clause, or other constitutional clauses to serve as constitutional pegs upon which to hang new and drastic regulatory programs penetrating into hitherto unoccupied fields of governmental power we are asking them to exercise very broad discretion. If they refuse to do the necessary stretching we may well consider whether the powers of Congress ought not to be frankly and openly increased rather than stretched. The writer is one of those who finds the dissenting opinions in the A.A.A. and Guffey Act cases much more convincing on constitutional grounds than the opinions of the Court. At the same time if American agriculture and mining demand national regulation there is much to be said for giving to Congress clearly and unmistakably the powers we feel it should have. It will hardly be denied that if Congress ought to have the power to prohibit child labor we should do much better to ratify the pending child-labor amendment than to use the backstairs method of driving child labor out of existence by destructive taxation or by denying the employers of children the privileges of interstate commerce.

  23. The Court now occupies the position of exercising a very broad discretion in drawing the limits of governmental power granted in vague terms and under vague limitations. If we do not like the way it does that job it is quite possible to change the Court's job by defining those powers with some precision and sharpening the terms of the limitations. We might give to Congress, free from all doubt, the powers which it needs in order to deal with the pressing problems of present day national life. The uncertainties of the due process limitation may be met by specific clauses clarifying its application.

  24. It is no adequate objection to this proposal to point out the difficulty of drafting such amendments. It is always difficult to draft constitutional provisions which mean exactly what we wish them to mean—and no more. The difficulty, though great, is not insuperable. To refrain from making such grants of power merely because of the difficulty of phrasing them is to confess either lack of skill in the art of draftsmanship, or our inability to make up our minds what we wish to accomplish. But if we do not really know what new powers we wish to grant we should probably refrain from granting them.

  25. There are many, however, who are skeptical of this proposal. They ask whether we can give Congress enough power to control industry and handle all our truly national problems effectively without destroying the basis of federalism, without virtually destroying the states. This may be met by suggesting that we are merely making a formal transfer from state to nation of powers of economic and social control which by their very nature and scope the states have never exercised and never can. A more serious criticism is that which urges, in the light of the history of the Child Labor Amendment, that it is politically impossible to secure the adoption of any constitutional amendment affecting vital economic questions. But while argument can be made for an easier method of constitutional amendment, those who favor constitutional change by the present process of amendment will hardly be shaken from their position by being told that the amendments they propose will not be readily adopted.

    Conclusion

  26. The New Deal cases emphasize the position of supremacy which the Supreme Court occupies in the American constitutional system. Chief Justice Hughes is doubtless bored by the constant repetition of his epigram "We are under a Constitution, but the Constitution is what the judges say it is." It is a practical man's appraisal of the realities of the constitutional system under which we live. This judicial supremacy has arisen in part from the very nature of the judicial process of interpreting and applying the law, and it has been increased by the vagueness and generality of the constitutional clauses which have to be construed.

  27. If we are satisfied with the present system and its results we will naturally have no proposals to make. If we feel that the constitutional wreckage left by the New Deal decisions is due to the abuse of judicial power rather than to the inadequacy of the Constitution to modern needs, then we may logically demand some limitation on the power of the Supreme Court. We shall in this case need to be cautious to see that we do not create more problems than we solve. We may, however, feel that our present difficulties are due partly to an over-zealous extension of judicial power and partly to the failure of an 18th century Constitution to meet adequately the demands of the 20th century. In this case we may attempt to solve both problems by clarifying amendments to the Constitution. This will not only modernize the Constitution, but it will also narrow the field of judicial review by sharpening the vague clauses of the Constitution under which the Supreme Court is now engaged, almost of necessity, in the work of national policy determination.

  28. This plan might well be tried before anything is "done to" the Court, since it promises not only an immediate adjustment of the Constitution to the current of our present national life, but also a forced retirement of the Court from the fields of constitutional construction in which it faces the greatest difficulty and incurs the sharpest criticism.
    1. 1 Cranch 137.

    2. These are listed in a footnote in a dissenting opinion by Mr. Justice Brandeis in Burner v. Coronado Oil and Gas Co. (1932), 285 U.S. 393.

    3. Hepburn v. Griswold (1870), 8 Wallace 603.

    4. Legal Tender Cases (1871), 12 Wallace 457.

    5. The ages of the justices are as follows: Hughes 74, Van Devanter 77, McReynolds 74, Brandeis 80, Sutherland 74, Butler 70, Stone 64, Roberts 61, Cardozo 66. The average age is 71.

    6. 7 Wallace 506.

    7. Michaelson v. United States (1928), 291 Federal Reporter 940, 946.




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