March 14, 1936 - Editorial - The Constitutional Issue, by George Lorimer

When discussion becomes highly excitable there is wisdom in keeping very close to facts and allowing the storm of opinion to rage. The Constitutional issue is now so highly surcharged with emotion that even a member of the Cabinet, Mr. Wallace, in addressing a radio audience, has referred to the disposal of processing taxes by the Supreme Court as a "legalized steal."

Many of those persons whose purposes and aspirations, real or supposed, have been thwarted by recent decisions have joined in a hymn of hate against the Supreme Court. Other persons who wish to keep their heads clear amidst this clamor should cling to three facts:

1. Threats against the Court, to clip its wings and curb its power, are not new. They have been heard at various times for well over a century, and the Court's influence has not been curtailed. This fact does not prove that abridgement will never occur in the future, but it is more significant than many of the critics, who have apparently just discovered the Supreme Court for the first time in their lives, seem to realize.

The point is that those who denounce the Court at one period are likely to defend it later on when issues and political influences change. The demand for a reduction in the Court's authority has not come, over long period of time, from the same group. Everything depends upon whose ox is gored, which fact is good presumptive evidence that the Court has, on the whole, proved an essential stabilizing influence in American life and institutions.

2. It is false to say that the country is under the absolute rule of "nine old men" or that they have complete veto power over legislation. Even a child in grammar school must know that the people created the Constitution as their supreme law and made the acts of Congress inferior thereto. The people can change their own supreme law, and have done so a score of times.

The Supreme Court declared an income tax unconstitutional, but the people wanted an income tax and amended the Constitution, with the result that we have had an income tax ever since.

The Supreme Court declared Prohibition to be Constitutional, but the people decided they wanted it repealed, and there has been no Prohibition since. Only the utter ignoramus or the demagogue or the man whose temporary pet ox has been gored says that the Supreme Court has absolute rule over the country.

3. The most important practical fact to bear in mind is that those who try to get around the Constitution, instead of proposing a direct and specific amendment, must either be very muddy in their thinking or else afraid to go before the people with their proposal. If the Constitution is out of date, why abuse the Court or suggest a curtailment of its powers? Why not propose at once a specific amendment to accomplish the particular legislative ends desired?

If modern conditions really demand greater Federal power, they demand it in a permanent form which only a Constitutional amendment can give, and not merely in the temporary acts of one Congress, which are never binding upon another Congress. If this is so, then it is plain that the real issue is not whether the Court has too much power, but whether Congress and the Executive should have more power than the people have yet given to them.

But apparently those who denounce the Court are afraid to put this real issue before the people. Either they do not know exactly what they want or else they want new powers so great that they do not dare ask the people for them. (pg. 26)

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