Evening Star Newspaper, March 23, 1937, Page 4

A—4 #x K THE EVENING STAR, WASHINGTO EX-JUSTICE SEES COURTPLANVALID Seven Previous Changes in Size of Tribunal Cited by J. H. Clarke. BY the Associated Press. SAN DIEGO, Calif., March 23— John Hessin Clarke, only living retired Supreme Court justice, told she Na- tion last night that President Roose- velt’s judiciary reform proposal fis *“plainly within the powers granted to the Congress and therefore clearly constitutional.” Clarke, who became associate justice in 1916, resigned from the Supreme Court in 1922 to devote his time to cultivating public opinion favorable to world peace. Addressing a Nation-wide radio (N. B. C.) audience, he said he yielded to no one in his “confidence in and estimate of the great value of the Supreme Court as a department of our Government, and I shall not eriti- cize in any manner either any of its recent decisions or the proposals of the President. “Would a conditional increase of the number of judges of the Supreme Court by act of Congress, as recom- mended by the President, be constitu- tipnal or not?” Clarke asked. “I shall confine myself to that naked legal question. “No rule of law is better established than that great weight must always be given by the courts to early—con- temporaneous—construction of the | Constitution by the legislative or ex- | ecutive departments of the Govern- ment, especially when such construc- tion has been repeated, acted upon and long accepted by the country. Six Judges Appointed. “Let us apply this rule to the history of the action of Congress and of many | residents with respect to our subject. “The Government under the Con- stitution was organized in April, 1789, and five months later, in September, by act of Congress, approved by President Washington, provision was | tions have shown HE statement of Raymond Moley before the Senate Judiciary Committee today follows, in part: In presenting the reasons for my op- position to the propesal of the Presi- dent to provide far new appcintments to the Supreme Court, I should like to pass over the original arguments ad- vanced for this plan—the idea that the court is inefficient, the notion that age is related to efficiency and even the contention that age and conserva-~ tism inevitably go hand in hand. Debate is now on quite a different basis. It is frankly admitted that the real purpose of the plan is to secure within the letter, though, I submit, not within the spirit, of the Constitution, a court that will lift the cloud of doubt from a number of New Deal measures now in process of preliminary adjudi- cation and to provide in advance for favorable action by the Supreme Court upon a number of measures not yet formulated. The main premise of this argument is that the court may be ex- pected to strike down these now in-| choate legislative proposals when they finally come before it, on the basis of the same economic and political theo- ries on which the majority has acted in the immediate past In stating their case, the proponents of the President’s plan have embraced | a series of economic and political ideals | with which all but the most hardened reactionary must agree. I, for one, deny the validity of this assumption. I deny further that fail- ure to agree with this specific plan necessarily implies a disposition to defend those judgments of the Su- preme Court which, we all agree, have been the proximate cause of the whole issue. I believe that curative meas-‘l ures have flowed in abundance from Mr. Roosevelt’s leadership, that more national laws are needed to supple- ment them, that three successive elec- that Americans believe in the soundness of his ob- Jectives, that our Constitution was | not intended to impose rigid limita- | tions upon progressive legislation in the public interest, that the Supreme | Court should use every effort to make | the Constitution a living charter, that the present court as a whole has held made for the organization of the Su- preme Court and the number of judges was fixed at six. “This action of Congress in deter- mining the number of judges of the | Supreme Court was accepted by the country as obviously constitutional, the judges were appointed by Presi- dent shiggton and proceeded to | act, under it “The number of judges remained at six for 11 years, until in 1801 when Congress reduced the number to five | by an act approved by John Adams, our second President. The number of five judges continued for only one vear, when, by act of Congress, ap- proved by President Jefferson, our third President, the number of judges was restored to the original six. ‘With this number of six judges the court continued for five years, when | again by act of Congress, also approved by Jefferson, the number was increased to seven. “With this numher of seven judges the court continued in the discharge of its high duties for 30 years, when the growth of the country and of the business of the court led Congress to add two more associate justices, in an act approved by President Andrew Jackson, thus with the Ghief Justice making the number nine. With this number the court continued for 26 years, until 1863 when the number was increased from 9 to 10 by act of Con- gress approved by President Lincoln. Number Again Changed. “This fifth change to 10 continued for only three years, when, in 1866, | shortly after the death of President Lincoln again by act of Congress it was provided: ‘That no vacancy in the | office of associate justice of the Su- preme Court shall be filled by appoint- ment until the number of associate justices shall be reduced to six,” mak- ing seven with the Chief Justice. “This potential reduction of the total number of judges from 10 to 7 also lasted only three years, when, Gen. Grant, being eleeted President, by act of Congress, approved by him, in 1869, the number of associate jus- tices was restored to 9, at which number it has continued to our day. “Thus in 80 years of our history the number of judges of the Supreme Court was first determined by act of Congress; twice the number has been reduced and five times it has been increased, always by act of Congress, and never before has the power of Congress under the Constitution to thus legislate been questioned, cer- tainly not in the courts. “It is confidently believed that few, if any, other important powers of Congress have been so early and so often exercised with the entire ap-| proval of our country, our Presu"len!.si and our courts as this of determining | the number of judges of the Supreme | Court. Constitution Cited. “This history alone, were there no other reason, would warrant the| courts, indeed would compel any court to approve as constitutional such exercise of power by Congress as the President proposed “Consider now for a moment the specific provisions of the Constitu- tion on which this long line of con- gressional and executive action, which we have recalled, has been based. They are only two, and they are very short. “First—The Constitution declares: *The judicial power of the United Btates shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,’ and “Second—After providing a very limited original jurisdiction for the Supreme Court, the Constitution de- clares: ‘In all other cases before men- tioned the Supreme Court shall have appellate jurisdiction * * - with such exceptions and under such regulations as the Congress shall make.’ . . . And that is all. “While the Constitution thus de- clared we shall have a Supreme Court no provision whatever was made for its organization, and it was at once apparent that the only department of government which could provide for such organization was the Congress and accordingly the long course of congressional action with regard to the membership of the court which we have just recalled was promptly entered upon, was accepted, and by acting under it, approved by the court and the country. Power Frequently Exercised. “But in addition to this, in the provisions of the Constitution quoted, the Congress also found obvious war- rant for regulating in all respects the appellate jurisdiction of the court, and this power of Congress over the Supreme Court has also been fre- quently exercised—always with the approval of all three bganches of the Government. “No amount of argument could make this grant of power we are con- too narrow a view of congressional | power, that its interpretation of the | Constitution has often been deter- | | mined by its own economic predilec- tions and that “we must find a way | to take an appeal from the Supreme | Court to the Constitution itself.” Had Been Outspoken tions an indication that a generation of education had finally resulted in a popular mandate to bring to realiza- tion the aspirations of more than 25 years. The danger in taking a short-cut now, when the consummation of this progressive evolution is at hand, 1s that its entire consistency will be dis- torted or destroyed. And yet without reference to the institutional tradi- tions under which it was possible for liberalism to make the immense progress it has made during the past generation, and without the common counsel of members of this Congress who have given so much of their lives to the progressive movement, a pro- posal has been made which imposes upon one man—the present Chief Executive—the almost sole respon- sibility of determing the final objectives of liberalism, and which divides not only a party, but a movement. It seizes the great enthusiasm and unity of a popular mandate and squanders it for the mirage of a solution, not a solution. It seems to nfe that this proposal will not do the job for a number of reasons. First, it is based upon emergency— or if you will, crisis-psychology. It is submitted as a make-shift, unsatis- factory panacea accompanied by apologies that a better solution is not possible. But must we always have legislation for reform based upon the existence of a crisis? Must we always have emergency measures? Second, this proposal does not offer & permanent Solution. It does not prevent the recurrence of exactly the same evil it is designed to remedy. I believe in the purposes of this New Deal. But I am not for this New | Deal alone I am for future New Deals &s well, unhampered by the | dead hand of the past, even if that | past be our resplendent present. I | am not just against the dead hand represented by the majority of this court. I am against all dead hands through which the past seeks to con- trol the future. Our New Deal will be an Old Deal sometime. Even the six justices that the President now wants to appoint will become old, and, as the President says, will wear glasses fitted to the needs of another genera- tion. I do not want Presidents then to feel free to remake that court again and again and again—as Presi- dents will, if we set this bad example. Leaves Congress Without Needed Powers. ‘Third, I believe that this proposal | in Criticizing Court. I should like to emphasize the fact | that no one has been more outspoken than I have been in criticizing the | court for its arbitrary refusal to find a | is inadequate because it will still | leave the Congress without the specific | powers it needs to regulate industry | and agriculture in the public interest. | It seems to me that sound states- way to modify the law and to preserve | Manship would dictate that the kind its continuity and unity so far as ;o( reform that the new court is ex- Moley's Views on Court Constitution must always be what the Judges say it 1s? Is our constitutional destiny, from generation to genera- tion, to be vested in a long succes- sion of reinvigorated courts? It I read correctly, the testimony presented here by two of the learned exponents of this plan, Assistant At- torney General Jackson and Prof, Corwin, it means that they are grieved by the cloud which now rests upon much of the New Deal legislation, This is a strange position indeed. Stated concretely, it means that they are grieved by the fact that citizens are exercising their constitutional right to bring litigation before the courts with reference to enactments of Congress. A lusty blow by Babe Ruth which drives the ball over the fence must, in fairness, rest under a temporary cloud until the umpire has decided whether it is within the foul line, Up to this time I have said very little about the fundamental and basic principle underlying our entire gov- ernmental system—the division of power between the execative, legisla- tive and judicial branches of govern- ment. It is true that circumstance and the frailties of men have at times in the course of our history thrown out of nice balance the actual au- thority of these three branches. There have been periods, such as that imme- diately following the War Between the States, when Congress seemed to be supreme. There were other times, in the midst of great crises, when presi- dential authority rose to dizzy heights. But a deliberate attempt by one branch of the Government to weaken another branch has very few parallels in our history. And none of them is credit- able. Will Have to Answer To Consciences. We will have to answer to our con- science and to future generations if we abandon the American method which, despite minor flaws, has proved to be the truest and best avenue to the achievement of desirable ends. That method, the American method, is to tell the public in an orderly fashion precisely what is necessary in the way of economic and social change, to seek to convince the people of its wisdom and then to ask approval of the change. The ends which Mr. Roose- velt has so courageously made his own can be achieved within the grand mosaic of the American con- stitutional tradition. But to seek to achieve them through the destruction of the American tradition is to open the way to the death of the ideals | that gave them birth. And now, if I may, I should like to describe the reasons for my third main objection to the present pro- posal. I believe that there is a better way to achieve the objectives toward | terpretation. D. C, TUESDAY, MARCH 23, 1937 it meant. T am not dispose. to ac- cept these objections without some argument. In the first place, I know of no real attempt in the past year to bring about agreement among the congres- sional leaders who favor amendment. But let us return for a moment to the second argument that is used against amendment at this time—the argument that amendment will take too long. The advocates of the Pres- ident’s plan -ite the child labor amendment as the horrible example. There has been no united party sup- port for the child labor amendment and while leaders of the party have expressed themselves favorably with respect to it, the party itself, I be- lieve, avoided definite commitment on the subject in its platform of 936. And this brings us to the third ar- gument against amendment—the ar- gument that even if amendment were obtained the justices might twist and distort its meaning to thwart the will of the people. It is a fillacious argu- ment whose logical conclusion is that we must have no more change by amendment, but only by judicial in- The time is ripe for a basic and fundamental restatement of the law to make possible the attainment of the humane objectives of progressive thought. I deeply regret to see the golden moment pass. We have, as the President pointed out, a rendezvous with destiny. Let us make democracy work by working through the instru- ments of democracy. Blast - (Continued From First Page.) public an opinion on its findings and | will not do so unless specifically re- quested by Gov. James V. Allred Hawley said “this tragedy would not have happened if certain r(‘qula(ory‘ measures had been taken.” He urged legislation that would include a State electric law, a State boiler safety code, | a State exit code and other general | safety measures. | “And give the State authority to | make 'em behave,” he added. Martial law was lifted as Dr. 8choch concluded his lengthy opinion and the court adjourned Two possible theories for ignition of the gas advanced by Dr. Schoch in- cluded the ‘“‘throwing” of a light switch and possible sparks from elec- tric equipment. Definite origin of the | explosion was not given, but the pro- | fessor pointed out “it could have been | on any one of the 72 radiators.” Supt. of Schools W. C. Shaw, whose son was killed in the blast, testified in reply to the statement by D. L. Clark, field foreman for the Parade Gasoline | Co., that the school “tapped” in on a | company line without his knowledge Said S8haw “I conferred with Mr. Earl Clover, superintendent of Parade, and he did not give us specific permission. He | | possible in a period of striking, al- most unparalleled social and economic change. I wish to refer briefly to the record on this point. Three weeks before the decision in the Schechter case, in commenting on the 5-to-4 decision declaring the rail- road retirement act unconstitutional, T said: “Judicial supremacy which | pected enthustastically to approve should be determined in advance. Finally, I have grave doubts as to | whether the present proposal will com- | | pletely fulfill the requirement of haste | | which seems to be one of the major |arguments of its proponents. This | proposal cannot conceivably be ap- | proved for some months. There must | then be reckoned the time required for | warned we were liable to be cut loose } at any time, but I concluded that he | did not particularly object.” | Judson Wyche, school board mem- ber, was asked to describe what he | which the President is striving. That way is amendment. We have been told that we who ad- vocate amendment are misguided, first, because it is impossible io frame ‘ one agreeable to the various advocates = Saddlery and of amendment; second, because it is TRU"KS- ery o virtually impossible to secure the Repairing of Leather Goods | President’s proposals have been more | itself to a consideration of those eco- | | court | can be expected to consent to the | Of that session will be required. Then | | plan to “reinvigorate” the court? | the selection of the judges and the | approval of the Senate. Perhaps I am carrying coals to Newcastle when I remind a Senate committee that this is not always expeditiously performed. to determine legislative policy is | That will take us, it seems to me, to tyranny.” | the end of this session of the Seventy- | Neither the Attorney General nor | fifth Congress. The second session of | the learned law deans who support the | this Congress will undoubtedly devote | curbs arbitrary action may be the bulwark of liberty. But judicial | supremacy which arrogates to itself | arbitrary power and usurps the right | outspoken in their warnings to the \nomic measures that the new couni that if it persisted in this |is expected to approve and, in view of course it would inevitably provoke | the wide difference of opinion that I reckless and arbitrary change. | have already mentioned as to the gen- As early as May 18, 1935, T said: “No | €ral nature of economic reform, it may democratic community such as ours b assumed that a considerable part | interposition, by the judiciary, of its | there will come the process of litiga- | own ‘arbitrary judgments as to. the | ton. It therefore seems to me that ultimates of legislation in place of the | It 15 a fair inference that the present judgments of the community’s demo- | so-called crisis cannot possibly be met cratically elected representatives.” and definitely liquidated until the be- Why, then, feeling as I did and still | 52008 of 1939, do, with reference to Mr. Roosevely's | Assume for the moment () humane objectives and the obstruc- | ProPosal Will relieve a temporary sit- | tionism of the court, do I oppose his uation. What will be the cost of this 2 | temporary relief? I think it is | within the realm of reason to assume I view this proposal not so much | that we may buy such temporary with alarm as with a deep regret that, | relief at too high a price. after a period of many years, during | i which progressive ideas have been tak- | Difficulty With Court ing shape and have been moving | Held in Human Beings. | toward the achievement of somewhat | “Qur difficulty with the court to- fundamental changes in our economic | day,” said the President, “rises not | system, a proposal has been injected | from the court as an institution, but | into the situation which is not only | from the human beings within it.” | wholly inadequate to meet the present | Let us suppose that it is entirely accu- situatlon, but is so destructive of the | rate to say that our trouble rises from institutional consistency of this re- | public that it may obstruct progressive | development in the future as well. Many Years of Battle for Stable Civilization, A good many of us can remember the many years of battle during which great men labored heroically for the achievement of a more just and a more stable cixilization in this coun- try. « * * Progressiveism did not begin in 1932. But progressivelsm found in the im- the human beings within the court. | How would the President remedy the | | defect? By the selection of other | human beings to sit on the court, | reading their personal economic | predilections into the law. | | We who “honestly believe” in the | purposes of the President, but oppose | his reorganization of the court, can- not help but see in his course the perpetuation of a basic wrong. Does the President mean that we shall have no more amendments to the Constitu- tion? Does he mean that in the | g0t an amendment, the amendment would still mean what the judges say WHLB,E TO DINE. The Cuergreen 1106 Maryland Ave. S.W. 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Ave. N.W. 1354 F St. N.W. 1317 E St. N.W. Store saw when he reached the blast scene Thursday. “I didn’t go in. little girl—" He halted. The court excused him. NO CAUSE TO PROSECUTE. They told me my Member of Military Inquiry Reports to Gov. Alired. AUSTIN, Tex., March 23 (#)—A National Guard ofidcer who partici- pated in a court of inquiry into the New London school disaster informed Gov. James V. Allred today the in- vestigation had uncovered nothing to Warrant prosecution. The report was made informally by Capt. Edward Clark, who also is secretary of State, just returned from New London with Assistant Adjt. Gen. Gaston Howard. Gov. Allred said martial law tech- nically was lifted at 4:20 p.m. yes- terday, although a few officers and men had been left until experts of the | Federal Bureau of Mines completed certain tests in efforts to determine the cause of the explosion. Roosevelt (Continued Prom First Page.) as being virtually balanced the Presi- | dent bases his judgment upon ability | to keep the relief appropriations with- in the one bilion and a half, originally estimated in his budget. ‘Washington nearly two weeks ago for | this brief vacation at his “second home” he had a careful check, and double check, made by his lieutenants on the Hill to determine definitely his | strength in the Senste, and it 4s un- derstood the resulta were such as to make the President feel confident. There was no guesswork to these re- ports. They were positive. ‘While the President himself has not discussed the subject publicly or given any public hint as to the number of votes he is counting on in the Senate for his Supreme Court plan, the mini- mum figure borne out by this careful check places his strength at more thag 60 and the maximum figure well over 70. 922 N. Y. Ave. American BRAKEBLOK Li Used Exclusively MILLER-DUDLEY/ 1116 144 ST.N. 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