Evening Star Newspaper, March 8, 1937, Page 6

FOUR SOLUTIONS T0 JUDICIARY ROW President Seems to Prefer One Which Holds Fight Is Due to Personnel. BY CHARLES S. COLLIER, George Washington University. How can a reconciliation be effected the constitutional doctrines | on the one hand and the progressive movements in contemporary political opinion on the other?> Four chief solutions can be suggested. The first solution is essentially that politics should surrender to the law. The second is that the law should surrender to politics. The third is that politics and law should work together by the method of securing constitu- | tional amendments. The fourth is that politics and the law be harmonized by altering the judicial personnel 'Let us consider each of lutions. PFirst, it may be said that the task . of reconciliation must be left entirely ! to the judiciary itself: that the judges imust be the final arbiters as to the boundary line between law and politics, “and that where the judges find that | one of the new socially-motivated measures trenches upon constitutional traditions, this ruling should be abso- Jutely final, and should be perma- nently acquiesced in by all parties. This view, extreme as it seems, rep- resents essentially the actual position of many conservatives in the current dispute, for while opponents of the President state frequently that they would be willing to accept constitu- tional amendments to validate New Deal legisiation, yet this concession seems purely argumentative. It does not represent their real view as to what should actually be done. Position Seems Unsound. The fundamental position above de- scribed seems unsound, for the reason that it does not allow sufficiently for the factor of social and economic change which may require correspond- ing legal and constitutional changes As Dean Pound has well expressed it, ~Law must be stable, and yet it can- | not stand still.” We need both sta- bility and change. and it seems that we need them both at the same time. ‘The principal factor in producing legal change under our contemporary Amer- jean conditions is legislation by popu- larly elected assemblies. The political forces that lie behind these assemblies demand changes of a fundamental nature throughout the whole sphere of economic relations. It seems psycho- logically impossible that these forces should be entircly dissipated by a se- ries of hostile judicial pronouncements. It would be most harmful to the men- tal and political health of the Nation 1f these powerful forces were wholly frustrated and prevented from achiev- ing their objectives under legally ad- mitted forms. There is a limit to the price that men will pay for “law and order.” The new social forces must receive some measurable satisfaction. and this demands important changes. either in the constitutional text or in constitutional interpretation, or in both, It cannot be expected that these changes will be sanctioned as a mat- ter of constitutional interpretation by the present controlling judicial groups If they remain true to themselves. The solution of the fundamental conflict eannot, therefore, be left to the work these so- | constituted, for this would obviously not be a free reconciliation of law and politics, but a delivery of all the key positions into the hands of one of the contending elements. And it may be added that this remedy of maintaining the judicial supremacy altogether untouched in any respect has in fact been tried during the last four or five years without real suc- cess, for the gravity of the present crisis indicates the degree to which this conservative solution of the con- fiict has proved unsatisfactory. The Second Standpoint, The second standpoint from which the main problem may be approached | is that of the constitutional reformer | who urges that the special powers which the judiciary have acquired in the United States, with reference to | determining with final authority the | constitutionality of legislation, should | be wholly abrogated. It has often been | pointed out that our American system | is really unique in this respect. It is | urged that it is not necessary, to judge from English experience, for example, | to maintain the judiciary with powers | that involve a complete check upon | the action of even the co-ordinate na- | tional legislature. The conclusion | | suggested is that private legal inter- ests could and would be adequately protected without according to the | | judiciary such great powers of an essentially political nature The answer to this line of argument is that the legal power of the judiciary to review constitutional issues and to exercise an independent judgment thereon has become fully established | in this country, and is a fundamental part of our American system of Gov- ernment. The solution of the current conflict between law and politics can- | not be found in the complete aban- | donment of law in favor of politics, any more than it can be found in the complete abandonment of politics in favor of law. What we are seeking is a practical reconciliation between law and politics. Such a reconciliation cannot be found in the complete sur- render of one of these great forces in ' our national life to the other. Both must be permanently maintained, and, ! by some stroke of statecraft, harmony | must be established between them The third standpoint is that of those who hold that nothing can be done to | solve the present crisis except through | explicit constitutional amendments, It is true that, if the time factor were of no importance, it would be possible to attempt to meet each important | reactionary judicial decision with re- lation to modern social legislation by an appropriate constitutional amend- ment that would change the formal text of the Constitution and hence perhaps bring about the ultimate ac- ceptance of advanced social policies. Of course, the objections from the practical viewpoint to this procedure are obvious. The special majorities requisite for constitutional amend- ments, and the necessity of submititng | complicated issues to numerous, rather discordant, State Legislatures or State conventions, place a heavy handicap on the development of social legisla- tion. The case of the child labor! amendment, which was submitted to the States in 1924, and which has not vet been ratified, is an illustration of | the way in which a meritorious con- stitutional change may be shipwrecked through misunderstanding and the dispersion of constructive social opin- ion on the subject. Some Ratified Quickly. It is true that several amendmenis submitted during the last 30 years have been ratifled fairly rapidiv. But with the possible exception of the sixteenth amendment. which authorized an unapportioned Federal income tax. these earlier amendments involved matters as to which there vi fairly complete consensus of { | port | prerequisite of any desired political THE _EVENING public opinion, such as the direct popular election of Senators, or the repeal of prohibition. They did not involve directly any of the economic issues which constitute the main field of earnest controversy today. The amendments that would have to be submitted to secure the express vali- dation of the Roosevelt program would obviously resemble the child labor amendment, rather than the amendments prohibiting discrimina- tion sgainsi women as voters or the “lame duck” amendment, in respect to the extent of serious controversy that they would generate. It is note- worthy that the ratification of the income tax amendment, a more con- troversial matter, occupied three and one-half years, although it was ad- vocated by the most prominent con- servative leaders, such as President Taft, Senator Blihu Root and Sena- tor Aldrich of Rhode Island. Of course, this amendment had the sup- of the more progressive ele- ments. Yet its adoption was a matter of doubt and difficulty. This case in- dicates much more accurately what the fate of the Roosevelt amendments would be likely to be than the com- parison of the exceptionally har- monious action of the States in re- pealing the prohibition amendment. Of course, where a formal consti- | tutional amendment is a necessary action, sich a constitutional amend- meini must be sought. But if there are other methods, such as direct legis- lation by Congress within the limits | of its existing constitutional authority, | by which accepted political policies can be measurably advanced, it seems legitimate to utilize this reserve legis- | lative power, even if its exercise Is| somewhat novel. The President’s pro- posal is of this character. His project | as to the appointment of new judges is by no means inconsistent with the | submission of new constitutional amendments validating specifically various parts of the New Deal, or establishing broad new principles. But the mere formal prescription of changes in constitutional authority will not prove sufficlent, if the new | grants of authority are to be inter- preted in a reluctant and hostile | spirit. We might have another dis- astrous case of new wine in old bot- tles. The President could, with pro- priety, quote the words of Bishep Hoadly, first written in 1717, but still full of light in 1937. “Nay, whoever hath an absolute authority to inter- pret any written or spoken laws, it is he who is truly the law giver to all intents and purposes, and not the person who first wrote or spoke them.” Factor of Personnel. Fourth, we may take the view that the central cause of the whole malad- justment is the factor of personnel. Judges, like other men, are not per- fectly objective in their opinions, and in order to have judicial decisions in the field of constitutional interpreta- tion which in general fit the contem- porary political tendencies, we must Delicious and Convenient "SALADA TEA-BAGS SCIENCE ADDS THRILLING NEW INGREDIENT T0 TOOTH POWDER! PEPSODENT POWDER alone contains IRIUM — new scientific ingredient that banishes dull film and gives amazing luster to teeth. e among e ns IRIUM rs contal BECAU pepsoden’ Contains NO t : GRIT.-- cience turns thumbs-down on old-fashioned methods of clean- ing teeth! It demands a smoother, more thorough action in tooth powders— and finds it! Now IRIUM~the amazing tal discovery—brings the modern way to remove dull, dingy film, make teeth sparkle, keep mouth clean and fresh. Pepsodent alone of tooth powders contains this totally new kind of foam- ing ingredient that softens glue-like film and floats it away like magic! (o) as" SOAP. pL‘}-llCE-' __Safe! radiant than you dentifrices, IRIUM with saliva in your mouth to form new deposits of film and tartar. That's why teeth look brighter, feel clean so much longer after using new den- Pepsodent Powder So effective is IRIUM that a good brushing with Pepsodent Powder leaves enamel cleaner and more experienced. Unlike soap in many have ever before does not combine containing IRTUM. Yet Pepsodent Powder is SAFE, be- cause it contains NO GRIT, NO PUMICE. So refreshing is Pepsodent containing IRIUM that a wholesome tingle rejuve- USE PEPSODENT POWDER! ...t atone contains IRIUM — for thril!ing luster on teeth! STAR, have judges drawn from the contem- porary scene who understand the ideals and aspirations of the day. The controlling judicial groups today are composed of elderly men whose legal philosophy and whose general political reactions were determined in previous generations, even more remote from the life of youth and early middle age today than the mere difference in years would lead one to suspect. The President has apparently taken the fourth of the chief positions just described. He has chosen to facili- tate his path toward his legislative objectives by the method of altering the judicial personnel. From the point of view of history, there is nothing so astonishing in this procedure. His- torically, all forms of government are temporary, and are subject to change under the pressures of particular exegencies, The American judiciary, from the historical point of view, is | no more sacred than the English House of Lords, or the royal power in | France before the revolution, or the | former power of the Roman Catholic Church in Mexico or Spain, or the | power of the present Fascist hierarch- ies in Italy and Germany, which seem to be in an unstable position and ex- posed to ultimate reformist attacks of a fundamental nature. The method | of changing the personnel is obviously less radical than that of abolishing the | institutions, or abrogating its chief powers. It is the “least possible means that is adequate” to the fumw damental purposes which actuate the | dominant political elements in the | United States of today. It is vastly | less radical in essentials than Sena- | tor Wheeler's proposal to endow Con- | gress with the power to repass over | the judicial veto measures held by the Supreme Court-of be unconsti- | tutional. 3 The Lawyer’s Point of View. But from the point of view of the American lawyer, the position of the | judiciary in American life seems to be a unique fact, and the undeniable political elements in judicial action | are covered over with a thick garment | of sentimental phrases whose rhetori- cal force is sufficient to convince many people that if any finger is laid upon- judicial power, even in a great social and political crisis, the outcome will be the total abolition of | private liberty and the replacement | of the American system by an ex- | ecutive despotism. ! In all fairness, these arguments, as applied to the proposal advanced | by President Roosevelt, are surely much exaggerated. These discus- | sions seem to imply that the Presi. dents ought to have no hand what- ever in" naming the judges of the Supreme Court, lest the independence | of the judges should be undermined. | But the fact is that if any of the present judges should die tomorrow, | the right of the President to nominate | a successor would be unquestionable. | The Constitution provides that the President should appoint the judges, by and with the advice and consent of the Senate. Why is it so funda- | WASHINGTON, | that the re nates your mouth, your sense of taste, with every brushing. Try Pepsodent Powder containing IRIUM. See how it shows up any other toothpowderyou everused—BAR NONE! Proof is that people have already boughtnearly 10,000,000cans! So tryit! All Pepsodent now on sale contains IRIUM mental that the appointing power should come into application only upon the death of one of the aged incumbents? This introduces an accidental phase into the operation of the appointing power, a reverence for which can only be regarded as superstitious. If six of the judges should die during the next six months, or if six should voluntarily | resign, the President would have ex- actly the same power which he now seeks with reference to the Supreme Court without waiting for deaths or believe. Real Opposition “Political” | It is an interesting and significant | termined many of the decisjons of fact that there has been very little | the Supreme Court on novel issues, oppositoin to the President’s retire- ment plan as applied to judges of a different, and somewhat less ocon- inferior courts. This indicates servative, direction. 1 opposition to the plan | the is “politic: It is actuated by the | fear that the controlling majority | on the Supreme Court might be changed by the new appointments. | What becomes of the confidence in | | appoint will less objective on the resignations. The difference between | ,,‘;me in t.h‘:r Eoplnlo’na than the the two factual situations is not 50 | present incumbents, but rather that radical as many people profess 10 the subjective and personal factors, | which are never entirely absent, and the objective character of judicial | action which eritics of the President | seem to admit might be measurably maintained in the case of the new | judges of the inferior courts? While | been so great in England that some for those who hold that judicial de- of the heavily endowed orphanages termination will depend on subjective | are reported to be half empty. ADVERTISEMENT. .Stomach 'Ulcers Formula Attracts Much Attention Scientific Facts of Hyperacidic Conditions Made Known Four important functions should be ob- tained to help conditions of this kind (1) excessive acid must be reduced. (2) Drotective coating over stomach walls | prevents irritation, promotes healing. (3) elimination alded. (4) proper foods taken. This is exactly what the Toma Tablets course endeavors to do. If you suffer from stomach ulcers. ®as pains. heartburn. indigestion Deosia. ditions induced by hyperacidity. investi- gate the Toma Tablet course. as it is proving a palliative and sympfomatic aid for these conditions. Toma Tablets are recommended as a course to take consistently according to directions over dy wastritis, | stipation and associated con- | a reasonabie period. as well as adhering | D. . MONDAY, MARCH 8, 1937 factors in the case of the newly ap- | pointed justices, we may ask, is not the political bias of the present con- trolling group on the Supreme Court an obvious fact, while the prediction that newly appointed justices will be biased equally rests on conjecture, and in any event would involve noth- ing fundamentally new? The real ground for the loud alarums on the part of critics of the President’s proposal is not that the new justices whom he is likely to which appear actually to have -de- will henceforth lead the justices in [This is the second of a series of timely and thought - provoking articles on the President’'s Supreme Court proposal. The third and last will appear in The Star tomorrow.]} Orphanages Half Empty. Demand for children to adopt has ADVERTISEMENT. to the food suggestions included in each bottle. Thousands of sufferers after un- satisfactory experiences are amazed at the benent derived from fhis distinc- tively different formula ecid stomach condition for years. O R_Brown of Toledo. writes: "'The showed uicers of the stomach. ien a friend told me of Toms Tablets. I gained weight. siept like a log. and soon ate like a youne wolf. Mv friends t what Toma Tablets have done Don’t delay start taking them Go to vour druggist: insist on s wenuine Toma Tablets: stubbornly se anvihine else “1f your druggist does not have a supply on hand he can quickly get them {rom his wholesaler Save monev buy_the big economicai regular bottle at $3.00 or try the in- troGuctory size at $1.00. ee—Informative_bookiet “Your Stom- h and You' Write The Dobbs Co.. Ligonier. Pa. After battling X-R This Mileage Test THOUSANDS of motorists in Marpland and the District of Columbia have switched to Betholine. 'Why? They have found that, because Betholine weighs THAT THOMAS GROWS HAIR HE above photo- raphs show how homas_treatment re-grows hair even in extremely serious® cases of complete baldness. ‘Within five weeks after Mr. Beckmann was ac- ceptedfor treatmentin aThomas office, new hair was visible on hig scalp. Perhaps the condition which is causing your loss of hair may not be as serious as was Mr. Beckmann's. Regardless as to what the cause ay be, it will surely lead yo® to baldness un- less you promptly take proper The above photog been authen ted unretouched, and signature of Jerome H. Pin- cus appears on or:ginal copies. Wm. Beckmann (As he istoday) steps to overcome it. Dandruff, for example, is the most common and most deadly enemy of hair health. Thomas treatment effectivel overcomes dandruft, stops falling hair, itch- ing scalp and promotes hair growth on thin and bald spots. In fact, The Thomas’ success- fully treat all of the 14 local scalp disorders which are re- sponsiblefor 907, of all baldness. Come in today and have a talk with a Thomas expert. No charge is made for a complete scalp examination nor for con- sultation. (Scalp examination, consultation, and treatment are always in private.) ®The cause of baldness in this cise was “alopecia areata.” World's Leading Hair and Scolp Specialists == Forty-Five Offices Swite 1050-51 Washington Building (Corner N. Y. Avenue and 15th St. N.W.) HOURS—#® AM. to P.M. SATURDAYS 1o 3:30 P.M. IEMIUM WAS REDUCED S 3 Koonon onls 28 ‘aone i gawiars I Shows Why Ask for FREE Test Chart “How to Make an Accurate Test of Motor Fuels"—at your neigh- half a2 pound more a gallon than gasoline, it gives extra mileage that makes up for the slight €xtra cost —that Betholine’s extra performance is FREE Make a mileage test. Prove to youfsclf that if you are now using straight gasoline, you pay no more for Betholine’s extra performance. If you use a premium motor fuel, prove Betholine actually saves you money. BETHOLINE IS A SHERWOOD PRODUCT borhood Betholine Dealer.