xt7wwp9t2q46_113 https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/mets.xml https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/59m61.dao.xml American Liberty League 37 linear feet archival material English University of Kentucky This digital resource may be freely searched and displayed.  Permission must be received for subsequent distribution in print or electronically.  Physical rights are retained by the owning repository.  Copyright is retained in accordance with U. S. copyright laws.  For information about permissions to reproduce or publish, contact the Special Collections Research Center. Jouett Shouse Collection (American Liberty League Pamphlets), No. 116 "A Layman Looks At The Supreme Court" Speech of Hon. Arthur H. Vandenberg, United States Senator from Michigan, broadcast over the National Broadcasting Company network on March 2, 1936 text No. 116 "A Layman Looks At The Supreme Court" Speech of Hon. Arthur H. Vandenberg, United States Senator from Michigan, broadcast over the National Broadcasting Company network on March 2, 1936 2013 https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/59m61/59m61_116/Am_Lib_Leag_116_001/Am_Lib_Leag_116_001.pdf section false xt7wwp9t2q46_113 xt7wwp9t2q46 THE AMERICAN LIBERTY LEAGUE   * *
The American Liberty League is organized to defend g A   Y    
and uphold the Constitution of the United States and to Q
gather and disseminate information that (1) will teach §   A I U  
the necessity of respect for the rights of persons and §
property as fundamental to every successful form of gov- E
ernment and (2) will teach the duty of government to E        
encourage and protect individual and group initiative  
and enterprise, to foster the right to work, earn, save, E
and acquire property, and to preserve the ownership and §
lawful use of property when acquired. Q `
The League believes in the doctrine expressed by E * * *
George Washington in his Farewell Address that while §
the people may amend the Constitution to meet condi- § A
tions arising in a changing world, there must “be no E
change by usurpation; for this * * * is the customary  
weapon by which free governments are destroyed.” E Speech °f
Since the League is wholly dependent upon the con- § HON. ARTHUR H. VANDENBERG
_ tributions of its members for financial support it hopes g United States Senator from Michigan
, that you will become a contributing member. However, Q A
if you cannot contribute it will welcome your support as Q over the network of the
a non-contributing member. E •
Q National Broadcasting Company
''“"``'`'``"''''""""`'' '   Mami. 2, 1936
Enrollment Blank  
Date ..................  
I desire to be enrolled as a member of the   v_`.r·€ €`.q4’
American Liberty League. 5  
5 Q gr  _ u
§ vé cf
Stgnature .......................................... § #?,.Y U Lev
Name ............. . ............................. g
E i
AE Street •·•..••....•...••....••.••.••.•••.••••.•••.• E
ts » :
iq Town ............................................ § AMERICAN LIBERTY LEAGUE
g National Headquarters
County .......................... State ........... ; NATIQNAL PRESS BUILDING
é WASHINGTON, D. C.
Enclosed {ind my contribution of 5 ..........   * *
to help support the activities of the League. § -
(116) g Document No. 116
E .

 A Layman Looks at the
Supreme Court
ir
I RESPOND to the subject "A Layman Looks r
at the Supreme Court." I am not a lawyer. This
‘ P is neither a boast nor an apology. It is simply
a statement of fact. Lawyers usually monopo-
  lize the discussion of constitutional questions.
But there are many more laymen, fortunately,
than lawyers. Therefore, a layman’s view may
be tolerated in the present discussion which
A rumbles up and down the country and intermit-
i tently breaks hotly in the Congress and the
t White House.
“ The cause of these discussions is that the Su-
preme Court is repeatedly stopping Congress
. and the President in enterprises which violate
the Constitution. This has happened 10 times
VR/HEN you have finished with this since March 4, 1933. In anticipation of similar
_ inevitable denunciations, Congress itself has re-
pamphlct please pass It °"' to Some pealed a number of its other recent laws.
friend or acquaintance who might be Promptly an age-old controversy resumes. Since
interested, calling his attention, to the the foundation of the Republic whenever Con-
. _ . I gress and the Court have thus clashed, impa-
membership blank an page I2' tient agitation has argued that the Supreme
Court’s authority over the constitutionality of
L _ I i acts of Congress ought to be abolished. Al-
V though the Court has repudiated only 62 acts
out of 24,300 public laws since the beginning,
each time it happens there is a cry that Congress
  must be released from this Court veto. In this
4 7 layman’s view, if any such movement ever suc-
_ i ceeds, it will be a sad day for popular govern-
  ment and for the perpetuation of American
I liberties.
IT WILL simplify our thinking if we realize l
that when an act of Congress is thus rejected it
is the Constitution which is speaking. That
means, in turn, that it is the people speaking.
The Supreme Court in such instance is only the
Constitution’s voice. The judges are not pass- i
ing their opinions upon the intrinsic merits of
the law. Their sole responsibility is to reject
3

 the law if it violates the Constitution. The Hwa to trahaieht P°1ilicS° The C0nSutuu0rT——
judges are human. Their judgments may ern and its sacred guarant1es——would hecome w at-
But somewhere, somehow, sometime in our ever each succeeding Congress m1ght want tg
American system somebody must speak for the make ih It wmhd change with thc ebb an
Constitution in this precise fashion or, mani- haw of each ele°u°h' The melewhcncc we ale
festly, the Constitution becomes mute and im- i hewh w°hla_ hemmc the Shlftme saudhlt m
potent. Better to risk occasional error gf in. which the rights of the people could sink to
\ tcrprctation than to risk the loss ei Ordered destruction. 'lhe founders discussed It very
liberty. This is our choice. franlil}'-
It is our theory of government that the Con- ` s
stitution belongs exclusively to the people. They PATRICK HENRY, who was the great liberal
fought for it- They died for it. They wrote its of his time, said in the Virginia Constitutional
guarantees. Into it they put those inalienable “ a‘ Convention:
warrants which Set American liberty apart and, "I take it as the highest encomium that the acts of
make it the grahdeat thihg Oh earth- To make /» the legislature, if unconstitutional, are liable to be
certain that the people should never be robbed opposed by the 5u¢li¢i¤tY· * * '°° Th? l“'h°i“'Y are the
of its protection, the founders provided that none S°l° P"°ff°a°h against a tymamcal cxccumu of
but the people can ever change it. They pre- an laws'
scribed in the Great Charter itself just how it Remember that warning! The Supreme
may be amended. It thus has been amended 21 Court protects tho Pggplg against tyranny!
thhee That makes ef it a h"h'g¤ Pregmeeeihg John Hancock, who wrote his name upon our
thihaa But it is hhpheghahle te ahY attack Sal"? Declaration of Independence where all timeS
H by the people themselves; and any time it loses shall soo and honor it, said:
this granite character it will be the people who u arrest the pride of Omce or me hand Ol lawless
have heeh Vletimizem It may be ehahgedv hut it power should rob the people of their constitutional
must not be cheated. security, a proper balance is provided in the judicial
department.”
NOW, IN ORDER to protect this popular r Hamilton and Madison, collaborating in the
right, the founders realized they had to pro- production of the illuminating and authentic
vide checks and balances. They had to defend Federalist Papers to expound the new American
the Constitution against nulliiication and usur- system, said:
Pati0h· So they wiee1Y_ae every leeeeh of the H "An elective despotism was not the government
Years has lh`eVed—SePa1`ated the exeeutivet 1€giS· ~ we fought for. * * * For this reason the Constiruiion
lative, and judicial functions. They set up the required that the legislative- cxccutgvgighgciuggetig
legislature to legislate and the executive to ex- zipa*;;*:1htEhirhlfilgliXc';c;a§a$;°p;;€rS or more than
ecute;`then they provided an independent judi- •* Ompor them at the Same timer,
ciary to require each to respect the rights of the
other, and to require both to respect the rights _ _ ,
of the people. Thus the Supreme Court became ARE _WE SUCH cgousts ln thm haw dag that
the voice of the Constitution which, remember, we thlhh t° escape the mlhhcauom . 0 ls
· · · v isdom? Listen: ‘°An elect1ve despotism was
1s, 1n turn, the VOICC of the peeople. Todays W f ht r ,, N0_ and it
recurrent question is: Shall this voice be stifled? het the government we che hole i ’ r th
The founders of America knew exactly what is het the gavcrhmeut Whlche igggop 6.0 6
they were doing. They knew that if Congress Umtea States Wlll embrace m it m {my
could decide whether its own acts are constitu- other Year lf they {mend to protect t $$86 VSS
tional, the entire American System would he · against the tyrannical trends toward ictator-
4 5

 ship which are enguliing the balance of the curb your religious freedom dare equally to
world. validate its own act? Would not this be elec-
. The Federalist Papers wisely said: tive despotism?
··tt.......s.... ...t.   i.. ..........t t., the   Yee believe ee e ieee   ie ee the we"-
whose duty it must be to declare all acts contrary to Spnng ef d€mOcracy‘ What guarantees Its free`
the Constitution void. * * * Without this, all out dom? The Constitution. Who speaks for the
rights and privileges would amount to nothing.” Constitution in behalf of this guaranty? The
_ Supreme Court. Would you think it safe or
. . . wise to strike down this vi ilant sent ? Time
I TAKE? Irlj that no 1(iy`?1 Amcmcan cluzcu “ and again the Court has regcued freediiim of the
want? his lights mild P""“1"’§* to amfmnthto , press from its assailants. Only last week the
n0thmg' HGH? he IS put on lmxliinoticc t St   Court rescued it from a State legislature which
he heeeeee then. tos? when hc WO Pinson t C * would have put it in chains. No other agency
constitutional jurisdiction of the courts. . could rescue it. It was the C0m_t_0r nothing.
tcfs Itliigglil; Qiiitbgogfgcisggi);Il;(;?ty;l;1Sc;?Di;- Translate that same situation into Federal leg-
me the eeeeeeee eeeee eee eeeeee Ceeeeeee ee ZF;Zi§Z”t..`i.ZZi§i Jiiisiiiiidiii ZZ ifi ii{°.I”iZ-°ZZi
decidethe constitutionality of its own acts. It dom of the press? would not an; Such aSSai1_ q
:;0i:53;,':°il;ii;;;n?aYr;i;1;; tllgggg tlggzigilliigisjlisgglik (gint ineslritably insiigt gh? his tyranny was orthqi
particularly at a time when amazingly unbeliev· t;1;:; ? mspecta ci S that not the Way Wit
able things ar? happ€ning_uudcr every Hag on So it is all down through the Bill of Rights-
earth: The prtcclcsé fuflcucm Of our Own COB- your right of petition; your protection against
?utuu°n_and Its Voice m tl}? Supreme COurt— search and seizure; the sanctity of your home;
1S to see that- no opportun1ty for such perver- your right of trial by jury; your right to Own
S1°;;;I;;];I;’;S;)urp right of frac Speech- what private property; your protection against cruel
_ _ _ and unusual punishment; your ballot; your en-
seeeeeteee It te you? Th? Consutuuom Sup` tire American heritage. Whether you know it or
P_°S° Ceeeeeee were ee abmdgc ee destroy ymui not you are relying upon the Constitution for
· right of free speech. Where could you go for these Privileges, and you are relying upon the
mdrcss? Te the Supreme _Cciurt' But Sup- Supreme Court to make the Constitution vocal
pose the Supreme Court be eliminated and Con- and Effective in your behalf.
gress be permitted to decide the constitutional-
ity of its own acts. Would not a Congress which ' 1
was brazen enough to rob you of free speech be   WOULD IT BE Pi`ti*i€iit to toss this P1‘0t6€ti011p
equally brazen in finding excuses to validate its 1 aWaY ,JuSt ieeeeuee eemetimes Ytm tiisiikc tim
tyranny? . Court s decisions? Most of the t1me you are so
completely in tune with it, and you subcon-
E sciously rely so completely upon its vigilance,
YOU BELIEVE in freedom of religion. It is that you scarcely realize it is functioning at all.
a cardinal American right. Where do you get Those who dislike its conclusion on the A. A. A.
it? From the Constitution. Suppose it is as- suddenly discover that it is a pretty dependable
sailed by law——as is the case tonight in many tribunal when it passes on T. V.; A. This phe-
another land. Where would you go for protec- nomenon has been constant through the years.
tion? To the Supreme Court. But suppose Those who are inclined most vehemently to
Congress decides for itself what is or is not con- complain at one moment usually live to see the
stitutionai. Would not a Congress which dared day when, at some other moment they whole-
· 6 7

 heartedly applaud. Thus the great South. supreme court, on several occasions changed the
which originally was the chief critic of the period ef election; in one instance continuing
Court’s so-called usurpation in decisions ampli- itself in place 4 years beyond the term for which
fying Federal authority at the expense of State elected by the people. Indeed, under the Brit-
sovereignty, turned to the Same Court in recon- ish system, Parliament ean do no wrong. A re-
; struction days and gratefully gained protection cent book by a former British Cabinet member
from it against an improper exercise of this has said;
Sams amplified auth0rity' ThuS’ tO0’ when “Parliament could pass a law that every red-headed
l8b01‘ ¥1Bi0D$ W€I`€ shocked in 1908 when the man should be hanged, and the courts of law would
Court found that a labor boycott violated the l have to carry out its bidding.”
Sherman Act,.and proclaimed it an eyidence of IB that Sort fof thing, 0 1_ any pan of it, a dc_
the Scrvlhty of the bench to. hg buS}DcSS’ They i sirahle substitute for the American system? I
mtauy forgot how equally Shockefi blg business repeat, it is no answer to say that no American t
had bdrm Wm dw sdm? com m 1897 found Congress and no American Executive would ee
ddd rddmdd Pods was dldgdd dude dw dams far eeeeeeeee the eeeeeeeeeeei order. An ex.
act' _ _ cellent test of any proposition is to assess its
Se It always had been and WIH be' The Su` ultimate and extreme possibilities. No man
preme Court honorably and conscientiously goes knows what would happen if wc Should let
its ewn Untamed Way and braveiy funetiene down the bars—particularly at an hour when
under its constitutional responsibility. It does the Whole world is restless with new dictamb
not seek to please an electorate. It woos. no ShiPS_ We might revert to type. Once upon a
constituency. Its only master IS the Constitution, time the State of Pennsylvania had a eecouncil
Whose may master IS the Pe°P1e‘ It may be of censors” to inquire whether the legislature
Popular or etherwieei it may be right er wrong; and the executive had exceeded their constitu-
but one thing is certain, it is absolutely indis- tional P0w61,S_ It found many Such 0ccaSi0nS__
Peneable te the Amemean System and te the even that “constitutional trial by jury had been
preservation of American liberty. violated},
CARRY THE INQUIRY a little further. Sup- CAN IT POSSIBLY be progressive to invite an
pose Congress and the Executive concluded to American renaissance of these outrages upon
perpetuate themselves; to extend their terms; our conception of a people°s government? Can
to cancel elections. What is to prevent? The there be any logical liberalism in emasculating
Constitution. How? Through the Supreme y the people’s primary defense of their own sov-
Court. Is there any other veto? No. Suppose » ereignty under the American flag? This lay-
you strike down the Court and let Congress re- man does not think so. He believes that all
view its own works. Suppose you make Con- · these threats to the existing independence of
gress and the Executive supreme. What be- the Supreme Court and its right to call Con-
comes of the people’s sovereignty? gress and the Executive to account in the name
It is no answer to say that such hypothesis is of the Constitution, no matter how nobly medi-
fantastic or that it would be too revolutionary tated, are threats to the fundamental liberty of
to be stopped even by the Court. Exactly this v the people themselves.
sort of thing has happened elsewhere. The This conclusion by no means supposes a
founders of the American system were near greater patriotism in the Court than in the Con-
enough to these examples to know their men- e gress. It only recognizes the reality that their
ace. The British Parliament, unchecked by a I functions are separate and different. The Court
written constitution, rendered articulate by a could no more be trusted both to legislate and
8 9 '

 to judge than can the Congress. It is the separa- Thus one-ninth of the Court would outweigh
tion and division of these prerogatives that eight-ninths. All of these schemes would in-
counts. crease the presumptions in favor of Congress
This conclusion by no means supposes a su- and relatively decrease them in favor of the
’ periority of the judicial to the legislative power. Court.
It only supposes that the power of the people This layman believes that the direction, even
is superior to both; and that where the will of more than the length, of such proposed steps is
the Legislature, declared in its statutes, stands subversive of the American system. The extent
lin oposition to that of the people, declared in to which the judiciary can permanently usurp
the Constitution, the people have a right to legislative power is utterly limited, because the
f rule. Their only reliance at such a moment is people can amend their Constitution if, as, and
an untrammeled Supreme Court. This does not when they please, and the Congress can impeach
make the Supreme Court the actual ruler of the Court if it misbehaves. Furthermore, the
America. That is a subtle, self-serving sopb- Court has no power to enforce its decisions save t
istry. It does not put the Court above Con- the power of a loyal and enlightened public
gress. It merely puts the Constitution above opinion. It commands neither the arms nor
both; and that is precisely where it belongs and the purse of the Nation. But the extent to
where it is going to stay if the Republic shall which the Legislature and the Executive can
survive. usurp judicial power, in the absence of these
' American checks and balances, is wholly with-
YOU CAN NEVER make a t rant of the Su- out any limits whatsoever. They command
Y every implement of tyranny. Therefore, though
prcmc _C°urt' It lacks one Smglc power sf some may think that the former evil exists in
allirmauve enslavement. It cannot take one Some degree, the people will fmd it infinitely
Smglc Stcp wwsrd °hger°hY° But y0u ce? make the lesser of two evils if they are wise in the
any sort of monster, su1ted to the preva1l1ng ap- Vigilance with which they defend and Preserve
petite of the ruling passion, out of a supreme their birthright. *
Congress which is above all things and all men. If we hamstring this function of the judiciary,
Again I quotc the Federalist Papas: we deliver ourselves to a new formula under
“To accumulate in a single body all the most im- Whifih “Sp6Ci8l p1‘iVilCge” would have t0 con-
portant prerogatives of sovereignty is to entail upon trol but one congressional election in order to
our Posterity one of the most execrabte forms ot dominate the United States and write its uncen-
. government that human infatuation ever contrived.” V Bored ultimatum into the lives Ol. a defenseless
Proposals to escape the existing jurisdiction 0 PeoP1e· 0r We de]-rvor 0urse1Vos to 3 formula
of the Supreme Conrt nerrodieally take differ, under which a revolutionary order need but cap-
, ing formss Sometimes it is urged that Congress ture a single November referendum in order to
be freed entirely from restraint. Sometimes it biod our Nation ro Whstovsr surwerstori tho Pas'
is urged that more than a majority of the Court sion of sm i¤fi¤mod moment might Prescribe-
be required to stop a congressional invasion of This toYmerr rejeets smY such invitation to
the Constitution; perhaps that a unanimous .leoPerdY· Therefore this toYmsm looks uP0r\ ‘
Court be required. These latter propositions the SuPreme Court with deePest sttaohmont and
differ only in the matter of degree. The same l respect, not because it is a court, not alone be-
tnnrmrty, from the neonle¤s viewpoint, attaches cause of the consistently high character of its
proportionately to all_ For example, if a n_nanr_ personnel, but because it is the voice of the Con-
mons Court be demanded, one lnsttoe out of stitution, which in turn is the voice of the
nine could stifle the voice of the Constitution. Amertotm PeoPte themsetVes·
I 10 V ll