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    Publishing Information

    Washington Weekly

    By Paul W. Ward

    The Nation
    January 16, 1937
    Vol. 144, No. 3, P. 63-64

    Washington, January 10

  1. The week past has produced forceful proofs that the Supreme Court is not the least democratic of our government's three branches and that both the executive and the legislative are its peers if not its superiors in distrusting the people who support them. President Roosevelt's message to Congress was filled with undemocratic adoration of the democratic process; he bespoke his love of the common people and his trust in their ability to choose wisely the nation's proper course of action on all issues. But he did not trust them enough to lay before them a clear statement of his own intentions, nor did he respect them enough to submit himself to the discipline of having to prepare a complete and rounded program for their benefit. Furthermore, he followed up his message on the state of the nation with a budget message that was insolent in its attempted deceits; what he presented as a budget that "only captious accountants" would say was not balanced was a budget actually no more in balance than the last. The pretense of equilibrium between income and outgo was achieved by a cruel whittling of proposed relief appropriations and the omission of other appropriations that Congress is almost certain to vote. A group of progressives led by Senator Bone has served notice that they will fight to increase appropriations for relief. The record peacetime appropriation for munitions and armaments that Roosevelt proposed offers them a talking-point of which they have not availed themselves as yet.

  2. Congress's exhibition of no faith in the electorate was less obvious than the President's. It made its appearance in some forty bills and resolutions aimed ostensibly at hampering or stopping the Supreme Court in performing the duty intrusted to it by the Founding Fathers, the duty of standing as the last indomitable bulwark against attempts by the people to govern themselves as they, the people, think best. But none of these bills or resolutions was designed to achieve complete freedom for the democratic process. Their authors, while prating of their respect for the will of the masses, apparently feared either to give that will free rein or to trust the electorate to know its own mind.

  3. The measures themselves were merely the froth on the ferment of constitutional reform now brewing noisily in Washington. Two meetings on this theme were sponsored here in the last few days by Richard W. Hogue and his Independent Legislative Research Bureau. They were heavily attended by federal officials and members of Congress. The presence at both of that lethargic conservative, Senator Bulkley, and the impassioned speech in behalf of constitutional amendment made at one by that tory Democrat, Senator Adams, were impressive evidence of the depth and breadth of the interest in the theme.

  4. The major product of these meetings, however, was overwhelming proof that the Congress now organizing for business here is ready to take any step toward constitutional reform the White House will permit, that there is tremendous confusion and disagreement as to the precise nature of the step or steps that should be taken, and that leadership, plus crystallization of a definite plan of action, is all that is needed. In the near future an attempt to achieve such crystallization and to provide the necessary impetus and leadership is to be made here by the calling of a national conference to which all persons who might conceivably be interested or helpful will be invited. The group of laymen and lawyers who for months have been laying plans for the conference are, for strategical reasons, keeping their identities hidden for the present. For weeks and weeks they have been angling in roundabout diplomatic fashion to get Senator Norris to take the chairmanship of the conference. Approached by a forthright and undiplomatic reporter here yesterday, Senator Norris said he would be glad to take the job.

  5. Among those who have added their voices publicly in the last few days to the clamor over constitutional reform are Senator Ashurst, who promised that his Senate Judiciary Committee will hold hearings on his proposed amendment giving Congress "power to make laws to regulate agriculture, commerce, industry, and labor"; John L. Lewis, who announced his willingness to back any "sound" program and added that he deduced from the President's message that the White House is against constitutional amendment and is considering other remedies; Senator Black, who proposed that every conceivable remedy including amendment be tried at one and the same time; Merle Vincent, former NRA official and unsuccessful candidate for Senator Costigan's seat, who proposed as an essential beginning the conference route with Senator Norris as chairman; Senator O'Mahoney, who proposed his own bill with its four-point attempt to fool the Supreme Court; Representative Lewis of Maryland, the House's "Old Integrity," who suggested defying the court by repassing measures it holds unconstitutional; and Senator Norris, who, directing his fire at judicial tenure and limitation of appellate jurisdiction, reminded his hearers that, even if the Supreme Court be tamed, the minor judiciary will remain in position to do incalculable harm and therefore must be tamed along with the rest.

  6. The talk wanders over an enormous variety of proposals, which have for their lowest common denominator an implicit if unspoken belief on the part of nearly all the foes of judicial usurpation of the legislative power that a clear and sweeping amendment of the Constitution would not meet with the approval of the electorate. Those who do not take that view seem to be mired in the belief that there is such a thing as giving the people too much power. They believe the majority should rule but only if the majority rules as they—and they include radicals and conservatives, plutocrats and intelligentsia—think best. They do not want the majority left free to pass a Tydings-McCormack military-disaffection bill if it wants to, or to decree that all professing Communists shall be guillotined; and quite plainly they fear that the majority, unchained, would do just that sort of thing. They love and trust the masses, but with limitations, and these limitations differ only in degree from those that animated the Founding Fathers.

  7. The closest approach thus far made to a truly democratic remedy is a proposal that Morris Ernst put forward at the second of Mr. Hogue's meetings. The principal speaker at the gathering at which John Lewis and Senator Norris also spoke, Ernst prefaced his proposal with a brilliant autopsy of the Constitution and the Supreme Court, in the course of which he demonstrated the inanity of nearly all proposals save his own. He went back to James Madison and John Marshall for his own suggestion. He recalled that Marshall, dickering to save Chase from impeachment, suggested that Congress might give force to any law held unconstitutional by the Supreme Court by reenacting it. He recalled, too, that Madison in the Constitutional Convention of 1787 had proposed that Congress be given power to repass a bill by a two-thirds' vote over a judicial veto. Ernst combined the two suggestions into a proposal that Congress be given power to override a Supreme Court decision on constitutionality by repassing the measure by a two-thirds' vote, with the further privilege, if the President then vetoed the measure, of passing it over his veto by a three-fourths' vote. This, as Ernst pointed out, would provide all the various checks and balances necessary to allay the qualms arising in the breasts of those who fear to give the basic element of democracy—majority rule—full play. It would place the supreme power in the hands of the people's elected representatives on all questions of public policy, and hence represents the closest approach yet made to a truly democratic solution of the most pressing problem before the nation. It falls short of being a completely democratic solution only in its mathematics. Ernst defends them only on grounds of strategy. He believes that an amendment embodying them would appeal to the American public's sense of fair play and not be as confusing as others proposed. For his own part, he is quick to confess, he would gladly omit the "two-thirds" and "three-fourths" and take his chance on the electorate's knowing what to do with the power bequeathed it by the Declaration of Independence and burgled from it by the Constitution.

  8. Ernst made two other suggestions which need circulation, for they were aimed at dramatizing the issue and thus helping the fight along. One was that the members of the Supreme Court be summoned, not merely invited, to appear before the Senate and House Judiciary Committees and submit to public cross-examination when hearings are held on any of the proposed amendments or other remedial measures. He bulwarked that suggestion by pointing out that members of the court have made such appearances in the past and, in the past, have not hesitated to take an active part in the legislative process as lobbyists. His other suggestion was that the impending Supreme Court test of the Wagner Labor Relations Act be dramatized by having John L. Lewis in the flesh inject himself into the proceedings and join personally in the pleadings with a layman's statement of the issue.