December 9, 1933 - Article - Washington Miscellany, by Garet Garrett
Congress moved the avalanche when, on the grounds of national emergency, it authorized the President to make laws by decree, and authorized him, besides, to delegate to bureaus, boards, commissions and Government corporations the power to make laws by regulation. If there is not now a law about everything, it is only because something has been forgotten. (pg. 8)
This vulnerability of the Supreme Court, although "the fathers of the Constitution studied nothing more than to secure the complete independence of the judiciary," is acutely discovered by James Bryce in The American Commonwealth, where he says:
Suppose a Congress and a President bent on doing something which the Supreme Court deemed contrary to the Constitution. They pass a statute. A case arises under it. The court, on hearing the case, unanimously declares the statute to be null, as being beyond the powers of Congress. Congress forthwith and the President signs another statute more than doubling the number of the justices. The President appoints to the new justice-ships men who are pledged to hold the former statute constitutional. Another case raising the validity of the disputed statute is brought up to the court. The new justices outvote the old ones, the statute is held valid, the security provided for the protection of the Constitution is gone like a morning mist.
What prevents such assaults on the fundamental law, assaults which, however immoral in substance, would be perfectly legal in form? Not the mechanism of government, for all its checks have been evaded. Not the conscience of the legislature and the President, for heated combatants seldom shrink from justifying the means by the end. Nothing but the fear of the people, whose broad good sense and attachment to the great general principles of the Constitution may be generally relied on to condemn such a perversion of its forms. Yet if excitement has risen high over the country, a majority of the people may acquiesce; and then it matters little whether what is really a revolution be accomplished openly or by merely distorting the forms of law. (pg. 9)