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JO I N ;
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(126)   Document N0. 126
  May. 192.6

 The American Form of
Government
The Supreme Court and
The New Deal
S ir
, Continued emphasis placed by the New Deal
upon dissenting opinions of the Supreme Court
and the _oft—repeated phrase, "I must read all of
, the op1n1ons," clearly are prejudicial attempts to
< destroy the pronouncements of law by the Su-
i preme Court as law. The decisions of the Su-
” preme Court clearly establish that the New Deal
has contemplated and definitely attempted to
4 br1ng about fundamental changes in the Amer-
ican form of government. The New Deal laws,
» disapproved by the Court, have not been iso-
  _ _ _ lated instances of disregard of Constitutional
HEN y0u have finished with this   principles. Each is an integrated part of a step
Pempm Pm Pm it or *0 me l ?}§$i‘;d°%“§a;dW§Ol2€“£h§?§§§‘D°2f°"€"“"§“%
e ne wor o
friend or acquaintance who might be   law strikes at the essential characteristics of the
. . . . a American system. By judicial interpretation
mteYe'Sted’ caumg he attention to the   and without formal amendment to the Consti-
membership blank an page 32,   tutioéi the New Deal would tear down the safe-
? guar s against autocracy provided in the three
, coordinate branches of the Federal Government,
» l gi the dual sovereignty of the Federal and State
c ‘ overnments, and in the guaranties of individual
l liberties in the Bill of Rights.
  In defense of the American form of govern-
Q ment the Supreme Court, passing upon New
_ Deal laws has held:
{ 1. That,practically unlimited legislative power
, was delegated to the Executive, thereby de-
; stroying the protection afforded by the distri-
l bution of_ power in coordinate departments as
provided in the Constitution.
2. That Federal authority was exerted in fields
ry reserved under the Constitution to the States
  to the extent of "obliterating" the States and
l breaking down our system of a Federal union
_   gf ag1tonomous_1S(’jtates. Local self—government
as een 1mper1 e .
l _3. That individual liberties guaranteed in the
, Bill of Rights were encroached upon.
4. That the taxing power has been expanded
3

 into an instrument of coercion and a means of The 1“ee01‘d_0f the Supreme Genre Wlrll reeneer
effectuating social and economic control. to the Amerieen lerrn dr e¤v<=r¤m€¤¤ end rne
Basically, our Constitutional system sought to New Deal le» ln nrler» as relleWe*
protect individual freedom and self—government ·
against the inevitable oppression of a govern- Government and Business
ment with an unlimited and unrestrained con- NRA
centrarrlgn rg porelrer in airy Ogg poliricrlyl unite In the Schechter case decided May 27 1935
no ma er ow emocra 1c. oncen ra ion o _ _ > »
such power free from judicial accountability the Court lleld rnell thé eede Prevrelene of rne
under e written eernpnet, between the Qevern- National Industrial Recovery Act attempted to
ment and the citizen—~the Constitution—was the extend elle regnlerery l?eWer of rne Federer Gel"
real threat to freedom in the eyes of the authors ‘ eifnlnlenll ellerthpnrely lnrreuerere geneeigeerenealig
ef guy OVgrnmgnt_ V10 ia, 1011 O G SOV€I`91gI1·y O l B BS l
It is gelearly evident from the cases before the rllen to eeneenrrere rner PeWer_ln rne Exeedrrve
Supreme Court that the New Dee] pattern gf I by an unconst1tut1onal_delegat1on of legislative
government challenges this basic principle and , %e\:er-lTne_VerY e¤¤S@1’¤l1*l1¤(l1¤lSlgl)¤Ql)¤f¤lof el;
proposes a greater centralization of power over 4 e era union was V10 a e . _V1 US Y» _
the business activities and private lives of the Court found it unnecessary to consider questions
people than ever contemplated or previously at- 1“e1eed_ 1nYelVlng rene dne‘Preeeee erenee of the
tempted under the Constitution. The key meas- Constitution.
ures of the New Deal all proceed on the same The Hot gi] Casg
theory and therefore evidence a concerted at- Th C t . th P R H . CO an
tempt to alter the structure of our government. ed Qgrdu} B rm,?m?935€   Héptiog
ico cccoo co oorooorc toooco ocooococc ooo com- I Sea. §;r?On..i“¥§§£§trlgi Rechverry .€05.i.la-
lrgleg1Ce?rOlir~;leeIlemTrl{€l;;lg;? cggglmrélevrlleiillrerillgrrege . ing to oil to be a similar unconstitutional delega-
"’ 7 ) Q . . . .
exemplllled ln Italy, Germany, and Rueeleh tion of leg1slat1ve power to the Executive.
In fourteen cases laws or their application I Guifey Bituminous goal Act
have been held unconstitutional during the ` _ . .
Roosevelt administration. In eight of the cases , 1gg?oe;;t»8;l]<>e&1;ll_lpll¤l>§¤ro;;lg;oo;oJ;ellgIlcllfgycggl
t fft`thAAA' `d , '   .
§SW§¤§?S§ip2r€§nl“faWS°aaadb‘iI£§€f%tS§ §?§£   mduéey tho ¤¤co¤Sr1*¤no¤elNne· free  
Deal were declared unconstitutional while in two l denr r edneered Cengreee re pe·SS,:°hrS brr . m gprre
others the application of major laws was held _   er_ denbre> neWeVer reeeenebre eo re rrs On'
to be unconstitutional. The four other cases were l err2drrenelrr& things the Supreme Court held
f' ` t t fth h` td l rnengecerc _
iivitrliurl.;.)iivslHerr1(e.rc&Idc€nn(lllerl· Oprevreile ;re1nrrnj§re?   that the so—called exciee tax was_a penalty and
til-mS_ c   that, further, the incidents leading up to and
The eight major cases in which New Deal laws Z enlnnnelllng in rne nnnlng er eeer Were reeer rn
were held unconstitutional were those of the   ellereerer end nel? Snnleer re regnlelclen by Cen‘
NRA, the rrhot Oil" case, the Guiirey Bitulninous   gI`€SS, and   the €IrHpl.Oy€€S W€r€ not engaged
Coal Act, the AAA, the abrogation of the gold ln or ebenll commerce but Were engeged exelni
clause in Government obligations, the Railroad j S-Wely ln Prednelng e eelnrnedrrY·
. Retirement Act, the Farm Moratorium Act and l Securities Act
the Municipal Bankruptcy Act. The two chief . _ o , ,
cases involving an unconstitutional application l lggéle ggnrr gn rne creneli cage, gteelldcegrnglltrgrr (el
fN D1 t'iftdthS 't` At d ‘ . 1¤<>peSS<>¤ e en·r __
lrhe fIv;me€8Cv?1(iei·srr Irirearn Ccirrpdrzr.1trioiirSAcr:. mIn 1 the Securities Act but held that the Securities
two other cases not involving the constitution- , B end Exchange C0nnnleelen_ned_ePPlred and Wee
ality of laws, the Humphrey case and the Parker   administering the law in v1olat1on of individual
Dam case, New Deal policies were disapproved   1·1ghts_as guaranteed by the Bill of Rights of the
by the Supreme Court. Constitution.
. 4 5

 Public Utility Holding Companies Govornmont and Agriculture
The Court, on March 30, 1936, denied a re-
view of the suit of Burco, Inc., against the Amer- AAA ‘
ican States Public Service Company. The effect The Court in rho Hooooo Mills Corporation
uae re defer a rulura by rbe Supreme oeurr case decided January 6 ieee held that the
ea rbe Ceueuruueualiry ef rbe Herdiae Gere- Agribultural AdjustmentlAct invaded the ie-
gal? Aol- Jl1l(igtlloN§l§;lioroEDl§gilot agoilnrr tial served rights of the States in its plan to regulate
a imore, e 1 m . em ie C . - I - _
Burco case held the Holding Company Act to be md °°“ll°l agmcultuml pmductmn
invalid in its eiitirety. The Circuit Court of Rice Millers Case
Appeals at Char otte, North Carolina, held that _ . _
Judge Coleman’s decision had been too broad, ooolllogocoglllll (lll `l`llCllllialXA£§’ li_9Oil:iS;li2€li;lXi§Oi9o_
but decided, nevertheless, that the act was un- t ’ d to lmpolm 9 d 1% oh o g oudmonoo
constitutional as applied to concerns engaged uma Qplocessolo all me · a am ·-
· · · - , to the original Agucultural Adjustment Act did
1n mtrastate business and that, as the American - li b . .t ooh. ih l r th C H oitooion
States Public Service Company was in that cate- no llmg 1 Wl m A G Qllms O B O S '
gory, it did not have to register under the act. J Cotton, Tobacco, and potato Acts
Government in Business Following the Court’s decision in the AAA ‘
TVA ii)ase,dCongress,io1(i ilile iigecoiigiimegdgtiioin og the
resi ent re ea e - e an ea o on on-
'1`be oeurr in rbe '1`eaaeeeee Vaney Aurberirr trol Act, the llierr Tobacco Control net end the
eaee, deeided February 17, 1936, approved the ruined Control Act. The action was due to n
Solo ef Powor lroru rho Wileea Dam, which bad s recognition that all three laws were certain to
bee¤1aWfu11y eeaarruered undor War PoWorS» bur be held unconstitutional as an invasion of the
oxprosood ae ololnlon ae re the SlVn·l»uS ef any power of the States and a misuse of Federal
erber dam er Powor dovoloprnorlu taxing power for that purpose. Cases involving
The oeurb erpreeeed ae oplnlon ae re the Conr the Bankhead Cotton Control Act already were
erirurieualiby ef the Terureeeee Va11ey Aurberiry before the Supreme Court. An adverse decision
Aer er ae re the Ceuerirurieaabby ef the many involving the Kerr Tobacco Control Act had
eenarerai eurerpriaeabeins preieered and carried r been given in n lower court. The ruined Control
on in connection with the TVA development. Act had not boon oo tho gigibobo books ioog
The scope ofithe decision is sharply limited to €HOugh to be togicd in ooorb V
very narrow mes. =
Right of Eminent Domain C Farm MOmt?r1u;n_Acth F _
The Government withdrew on Marc · The ourr ro ll Case lllV° Vlllg l 8 .m‘Zl€l"
an appeal pending before the Suprerlne5lGgill1llt Lomko Acta dooldod May.2? ll935* lgllldhll glfbii
from the decision of the United States Circuit uoooosluulloool gif. gl Vlo alloll F ht B dl l
Court of Appeals rendered at Cincinnati July Alllelllllllellll lll re mg llllopelllly O l E Cm llor
15, 1935, ailirming a finding of Judge Charles I. Wuhour duo Process er loW·i li {Nos er allomirt
Dowooo oo Looiovilloi Kooiookio Tho lowoi, r at an arbitrary exercise of egis ative power y
courts held that the Federal Government had no lllg Federal G°V€l`lllll€lll‘
Constitutional power to exercise the right of .
eininenli domain (and it   clear that a taking for i Monetary Polloy
sum c earance is a pu ic use when exercised 1 .
locally and not by the Federal Government) ex- , rAl°ll°g°‘tl°ll er oeld CllluS°
oopl? when Prollorry ie to be taken for Public s The Court in a gold-clause case, decided Feb-
uSo· Proporrbf intended to _bo taken for SlU111· l ruary 18, 1935, held that Congress went beyond
olooronoo ard loW‘ooSr llouolng ProloorSi no001`d· 1 its Constitutional power in abrogating the Gov-
ing to the lower court decisions, was not for a oromciitrg Obligation to pay in go]d_ Tho do-
Publlo uSo· ~ cision was emphatic in its condemnation of
. 6 7

 repudiation of public contracts. The Court sus- constitutional on the ground that it impaired the
tained abrogation of the gold clause in private sovereignty of the states,
contracts. ‘
. . HOLC
Social Security Th C ,3. d .d d D · b 9 193-
e our macase ec1 e ecem er , 5
Pensions for Railroad Employees held that the Home Owners Loan Act, to the
On May 6, 1935, the Court held the Railroad gxgggt that $**1 pcrmltteq {be °QnV°rE,i°&° Of, Stan
Retirement Act to be unconstitutional as a viola- of t. mg im Gin assciiua 1°?S§Ft° 16 gm aSS°'
tion of the Fifth Amendment relating to the u;"Cg;1;§it§cigg;1raI¥§§IO}? 0 t are gilt was eg
taking of property without due process of law , O B f th Sta Cac men upon 8 reserve
and also beyond the power of Congress under p W YS O 8 a"€S‘
the commerce clause. P t S f N D 1
t t
Unemployment Insurance and Old . resell a us O cw ca
Age Pensions The laws held to be unconstitutional by the
. . . Supreme Court formed essential timbers in the
There 1S no doubt that the Social Security Act New Deal St,.uetu,.e Included amen them
ef 1935 Will be tested lll tl1€ COUI`tS when it b€‘· were the ehief measures spensered by %he ad-
Comes fully €ff€°t1V°· ministration with respect to industry and agri-
Exewtive US¤rr¤ti¤¤ <>f Fewer ` E`§1°F§$gei§QZ§&i§§l€°?hthE.i£iiS$€iLii0ESttti$ZtZ$
‘ The Humphrey Case V to build recovery. The adverse decisions by the
Su rem C t t`t t ` d -
The Sqpreme com on May 27, me held at of €he‘itl§W°i‘5’L2f §r§e?e?E’Z€Spt‘Zin§°§ rititii
that President Roosevelt had exceeded h1S au- departure from the American form of govern-
thority in removing the late William E. Hum- meme ‘
phrey as Sw member qf the 1`l`€d€1‘&l Trade C0m· Despite the guidance offered in the decisions
mission. This case did not involve a_New Deal of the Supreme Court the administration has
law but p1‘0t€0t€d Governmental 0Hi01&lS, m€m· failed to reshape its recovery program to accord
h€1`S of i¤d€P0I1d€¤t 00mmiSSl0¤S, acting U¤d€1` with Constitutional principles. The validityof
legislative enactments, from being removed at many New Doal laws Sm] remains in doubt.
the m€Y€ Whim of the EX€GutiV€- Tn the enactment of substitute legislation fol-
The Parker Dam Gm IEEE? h“e“1V?§S§i§l§§‘Si§§Zn`Zt`§ °t`eZEb§tét`$§t§S%i§i
The Supromo Court   on   297   I`€'€Il3$}t»IH€l'll`; ofthe CCHCl.€II]H€d pI:€d€C€SSOI`,·tll€
that the oxooutivo branch of the Government V 3i·Cl1'I1IH1SlJI`3t1OH h3»S Sl'lOWI1 Cl€3»I`ly IFS d€l`.·€I`I`I1lH3»··
exceeded the authority delegated to it under _ @1011 to make fundamental changes in our system _
title II of the National Industrial Recovery Act of g0V€I`¤m€¤t· _ _
when it made an allotment of public-works funds Th€ L3b0Y R€l&t1011S Act _0f 1935 _1S 0ne 0f
for construction of the Parker Dam on the Colo- Q thi? New Dwl m08»S11Y€S Whlch 1‘em8»mS _t0 he
rado River. Under a clause in the existing law P¤SS€d ¤P0H_ by th€ Sllpfeme C0UI`t-V It_1S BVI-
no river or harbor improvements were to be car- dent that this act and the Soil Conservation end
ried out from public-works funds unless spe- Social Security Acts, as well, are affected by the
cincally authorized by Congiéesi OK recommended ’ g€01§10g gf the SUr{E_1;%meLCteurt hnltihe Guigegg
b the Chief of Engineers o t e rmy. oa c case. e a or ea IODS c
Y has alrea·dy_been declared unconstitutional by
Dual Soverei nt certain district-court judges, and several deci-
g Y sions of the Court of Appeals are expected at
. . an
Mumclpal EB?mkruPt°Y Act , early date. Undoubtedly these courts will fol-
The Court in a decision on May 25, 1936, held ~ low the decision of the Supreme Court in the ‘
the Municipal Bankruptcy Act of 1934 to be un- Guffey case.
8 9

 The Soil Conservation end Domestic AH°t` to have an indirect eiiect upon interstate commerce,
ment Act Was enacted February _29, 1936, as the Federal authority would embrace practically all
asubstitute for the Agricultural Adjustment Act. the activities of the people and the authority of
Like the Agricultural Ad]ustment Act it 1S de- the State over its domestic concerns would exist only
signed to control agricultural production. _ by sufferance of the Federal Government/’
The Public Utility Holding Company Act 1S * ,, ,,,
certain to be passed upon by the Supreme Court H .
all an early date. Some time may Blapse before If the Federal Governmentlmay determine the
.... wages and hours of employees in the internal com-
the Socml Secumty Act IS tested m the Supreme merce of a State, because of their relation to cost
Geert The Supreme Geert eveetuellr will be eee prices eee their indirect eceee upon interstate
eelled upon te declde the Collstltutlonallty ef commerce, it would seem that a similar control
the Tennessee Valley Authority Act and the ° might be exerted over other elements of cost, also
Securities Act. In decisions relating to these affecting prices, such as the number of employees,
gots olpoody yohdoyod this yogi-, tho Court did rents, advertising, methods. of doing business, etc.
not deal with the Constitutional question. . All the PYOCBSSQS el ll"°dlF‘lg“°¥* eelgl dlsmbullog thi;
The Week Relief Ad ef lm which deleeetee $§§€2e;E"§i i{2§'ie°2“£.‘leeie‘;ZZ.1€§ eeZie°e‘;’;t§§ li itself
broad powgrihtolfihe ,FX€§ut1Y€’ luis been held the permitted object of Federal control, the extent
by many au Om IGS O G C Bar Y un9On§t1tu` of the regulation of cost would be a question of
tional. The Court of Appeals of the District of discretion and not of ooworp
Columbia gave a finding to this edect on May * * *
18, 1936 in disapproving a model community
project of the Resettlement Administration near "It is not the province of the Court to consider
Bound Brook, Now Joi~Soy_ This dooigion Wag the economic advantages or disadvantages of such
lmmodiatoly &pp]iO&b]O Only to the project lll, a centralized system._ It IS sufficient to say that
v.OlVod_ The Court of Appeals declared that the Federal Constitution does not provide for it.
the law contained _a clearly unconstitutional . _
delegation of legislative power, and furthermore, The H0f O1} Case
that Congress lacked any authority to enact In the allot Ollie Case the Court dealing vvllll
]€g1S1a‘m°n te pitt mm Opefatlon the pmpofed an unconstitutional delegation of power, said:
resettlement project. In this case the plaintiffs _ _ _
Woyo ol township and certain property Owners "If section 9(c) were held valid, it would be idle
and taxpayers. The Work Relief Act had not *9 pretend Elliat ’mYthm§ lljeugl be leltl °fdllm‘ti"
previously been involved in a test as to Con- eeeel “p°“ k. 8 pI,°W€r.° gh Ongress . ° Bfegihe
titutionality due to the unwillingness of the its &W`ma·mg uncmm - 8 masomng O `B
3 ll jc t . . b , many decisions we have reviewed would be made
eerte O En er em Suite Y taxpayers agamst vacuous and their distinctions nugatory. Instead
the gOV€I`Hm€m?· of performing its law—making function the Congress
_ _ could at will and as to such subjects as it chooses
Excerpts from Court Dcc1s10ns transfer that function to the President or other
_ officer or to an administrative body. The question
The extent to Which Netv Deal laWs represent is not of the intrinsic importance of the particular 1
departures from the American form of govern- statute before us, but of the Constitutional proc-
ment is apparent from the dooisioiio of tho l esses of legislation which are an essential part of
Supyomo Qoui-t_ our system o government?
A few excerpts from the leading decisions will
show that the cases were not decided upon tech- , Guffcy Coal Decision
nicalities but that basic issues affecting the Con- · -
stitutional foundations of our government were le the Gufiey Bmummous Coal Act Case the
involved e Court made it clear beyond peradventure that
In the Schechter Case, involving the NRA, the the regulation of prodilctllon or manufaclilure con-
Court Said: st1tutes_an 1nvas1on_o t e powers of t e states
ll · · — and is in conflict with the form of government
H If she commeivpe clause lwere construed to reach proscribed by the (]OllStitutiOl~l_
a en erprises an transactions which could be said The Court in this ooso Said:
10
11

 owe have Seen that the word dzommerce, is the of the domestic relations. The wages are paid for
. 1 t f th h ,. t f th mn the •do1ng of local work. Working cond1t1ons are
equlvll all O , E p llase lll Bllcolllse Ol ll ll obviously local conditions. The employees are not
was of we- .Pl¤2¤*y» the .¤2¤¤do¤tS loom up engaged in ou about oomoouoo, but exclusively ul
l° mid °“lml““l‘¥le lll the mmme °l °°"‘l ‘l° “°l plodllolllg ll commodity. Alla the controversies and
      eVllSl     is the Object of th€ 3.Cl] to feguladg
’. . . ’. . . ‘ and minimize, are local controversies and evils a —
gizgiliiisggxigiiertgznlilgggZillggpagztgfipgftcoql fecting local work uddertakenh to acconnplish that
lectively-——each and all constitute intercourse for ggiilngiigltnovggggr Zxiglgsxlo Etelirlloloilalilo il? ;ogol;;1_
the purposes of production, not of trade. The latter my ond indnoot An inoronso in tho éreatness of
is ll tlllllg apart lmm the llelllllloll of employer and the effect adds to its importance. It does not alter
employee, which in all producing occupations is no onnrnotorll
purely local in character. Extraction of coal from “ `
the lmine is the aim and the completed result of The Court, in holding tho {-Jox imposed by the
loca. activities. Commerce in the coal mined is · ·
not brought into being by force of these activities, _ Gullley Act   be a' penalty prcvlsmn and not ll
n but by negotiations, agreements and ci1·cumstances true t3“X’ Sal '
entirely apart from production. Mining brings the _ qt is Very clear that the ‘eXoise tax’ is not im-
subject matter of commerce into existence. Com- posed for revenue but exootod as 3, penalty to oom-
morxo d1SQl£S€S tof Ulf th f _ d f pe] compliance with the regul?t0n'y pI`0ViSi0IlS {of
eellel em llm 0 e °l`eS°m€» lm O mmly the act. The whole ur ose o t e exaction is o
cases which might be added to those already cited, ooel-oe what is oollelgl an agreement-which, of
renders inescapable the conclusion that the effect Course, is not, for it lgckg the essential element of
of the labor provisions of the act, including those oooseoo ()ne who dogs n thing in order to avoid a
lll rooooot of mllllmllm Wegeel Wage osroomootsl 00l- monetary penalty does not agree; he yields to _
ioooivo bo¤·soi¤i¤s» ood tho Loloor Board ood its compulsion precisely the elmo oo l}hO\1gh he did `
powers, primarily falls upon production and not so to avoid o term in jail_
upon commerce, and confirms the further resulting < Would Pl“°ll‘ the Hoosac Mills Corporation case the Court
cally disappear. Nevertheless, the local character Said.
of mining, of manufacturing and of crop growing °
is a fact, and remains a fact, whatever may be "The act invades the reserved rights of the States.
done with the products." It is a statutory plan to regulate and control agri-
. , , cultural production, a matter beyond the powers
Doolms llulltllcll Wlllll lillc llelallolls belweell delegated to the Federal Government. The tax,
C GIIlplOy€I` &1'lCl €IIlplOy€€S 111 l8lI1gU3lg€ Wl'l1Cll 1S the appropriation of the funds raised, Hhd the di1’€C·
pertinent to such other legislation as the Labor tion for their disbursement, are but parts of the
Relations Aet, the Court said; plan. They are but means to an unconstitutional
"Much stress is put upon the evils which come eugprom tho oooontod dootnno that tho Unitod l
from the Struggle between employers and omoloyoos States is a government of delegated powers, it fol- l
Over the matter of WagéS’ Wollllllg °°lldlll°llS* the lows that those not expressly granted or reasonably
right of collective bargaining, etc., and the result- l to bo nnnnod from Soon as are oodforrod are ,.e_ ·
ing strikes, curtailment and irregularity of produc- Sorvod to tho Stnotoo or to tho people- ipo fore_ l
tion and effect on prices; and it is insisted that Stoll any Snggostion to tho Contrary the Tenth - ·
interstate commerce is greatly affected thereby. Amondmont was adopted The Some proposition,
Bullllll addllllm io Elllathllas sllllsll bei? Salll’ tllcl otherwise stated, is that powers not granted are V
COM “SnY€h“3?W¥ gl l plot 9 evl S arena locol malls prohibited, None to regulate agricultural produc-
Soil. EVO 13201 BT}; €;;lati;;€(l;,lll;i;1l;lO;;_ll(;m§gl;;` tion is given, andtherefore legislation by Congress l
ployee is a local relation. At common law it is one for that pmposc IS fmglddeul T
12 l

 Municipal Bankruptcy Act modern business and political affairs, are permitted
· · · raduall to extend their owers by encroachments
in Wing the Municipal B¤¤kr¤Pt¤r Act lm- ieven any   nn. fundamental
cpnstltutlonal as an lmpmrment Of the eovmu rights, privileges, and immunities of the people,
elghhy ef hhe ehehee the Supreme Court Send: we shall in the end, while avoiding the fatal con-
"If obligations of the States or their political sub- S€QU€¤C€S cf 9· S¤D¤‘€m€ auwcmcyr b€00¤}€ Sul}
divisions may be subjected to the interference merged by 3 multitude cf mine? i¤V&SlP¤S _0f
here attempted, they are no longer free to manage personal rights, less destructive but no less violative
their own affairs; the will of Congress prevails over cf C0¤Sl5iliul¤10¤al gUm`3~¤UeS·”  
them; although inhibited, the right to tax might be
less sinister. And really the sovereignty of the state, POWCY Of Court
so often declared necessary to the Federal system,
deer heh exist}, * In recent attacks upon the courts there has
. . been a revival of the contention that the Su-
Thc Sccuntlcs Act Case preme Court lacks power to declare acts of Con- I
The decision of the Supreme Court in the case • g1‘€SS l1¥1<>9¤S”6ll¤11’¤l0¤9»l- _Th€ dlS0uSSl0¤S during A
of J. Edward Jones 11. Securities and Exchange the framlllg and adoptlon of the C0I1SlD1”011”010I1 p
Commission, in which it was held that in its ap- show 0l€9·1“lY that lt Was aesumeel the Supreme
plication of the Securities Act the Commission Court W0Uld PWS UPOU th<·>_va11d1ty ef ehehuhee
acted in an unconstitutional manner, reflects the just as State courts then existing were do1ng_.
Court’s abhorrence of encroachments upon the The Constitution contains two provrsions
guaranties of the Bill of Rights. which would be without significance 1f the Su-
The Court in that decisierl Said; preme Court did not possess the power to declare
-"The action of the Commission finds no support acts Pf Congress mVa“hd‘ Clause 2 Og 4(IIQHCI? VI
in right principle or in law. It is wholly unreason- i>r¤V1<1€S that the Ccnshlhutmn an G aws
able and arbitrary. It violates the cardinal precept H13»Ol€ H1 pllI`SU3»I10€ l3ll€i‘€Of shall be the supreme p
upon which the Constitutional safeguards of per- laW of the land. Sectlon II of Article III pro-
sonal liberty ultimately rest—that this shall be a vides that the judicial power shall extend to all
government Of laws-. because @0 the 1’>Y€¢iS€ ¢X’¤€¤’¤ cases arising under the Constitution. In order .
that the mem will Of M Official GY an Gfecial b°€lY to decide cases and controversies as they are
IS. Pemttcd hh lakh the place ef hhhwhhle Geclel brought before the courts, it is obviously neces-
d;S°l§°"t1°¤ Or h°dS“§°p%nt the Standmtg law as 2‘ age sary to find the law applicable to the case, and,
o uman con uc , e governmen ceases o e . . . .
one of laws and becomes an autocracy. Against Wb€n.th3'tI law hes m a' PYOVISIOQ Of tligfc Can-
the threat of such a contingency the courts have elhhuhlehg lh must heeeesamly be glveh e eeh e'
always been vigilant, and, if they are to perform cause 1t 1S expressly declared to be supreme. To
their Constitutional duties in the future, must never have any practical effect these proV1S1onS must
cease to be vigilant, to detect and turn aside the mean that the Court may hold acts of Congress
dweer at its b<=ei¤¤i¤s-" to be either in accord with or contrary to the
=•· =•= =•= ' Constitution.
"Arbitrary power and the rule of the Constitution The Supreme Court in the case of St. Joseph
cannot both exist. They are antagonistic and in- Stock Yards Company U. the United States of
compatible forces; and one or the other must of Amgyica and thg Secretary gf Agriculture, de-
heeehshy perish “’hehe"e" they are hmhghh inte il cided April 27, 1936, took occasion to assert the 1
°‘Z,’;g;‘;; ig°;Ob°§;’;; Eiga g";_r‘EO‘;gtl;g£ig§§;‘°S§,SI,g3i;1' rights and responsibilities of the courts with j
for the exercise of arbitrary power.’ Garfield v. , rcepect to lgglslatlve ehh°hh€hhS· The Court  
Goldsby, 211 U.S., 249, 262. To escape assumptions Shed:  
of such power on the part of the three primary “Legislative declaration or finding is necessarily  
departments of the Government is not enough. Our subject to independent judicial review upon the
institutions must be kept free from the appropria- facts and the law by courts of competent jurisdic-
tion of unauthorized power by lesser agencies as tion to the end that the Constitution as the supreme
well. And if the various administrative bureaus law of the land may be maintained. Nor can the
and commissions, necessarily called and being called legislature escape the Constitutional limitation by
into existence by the increasing complexities of our authorizing its agent to make findings that the
14 15 j

 agent has kept within that limitation. Legislative eralist and Anti-Federalist. An examination of all .
agencies, with varying qualifications, work in a sources of expression of public opinion (made while
field peculiarly exposed to political demands. Some writing my The Supreme Court in United States
may be expert and impartial, others subservient. History, I, pp. 255 et seq.)——newspaper editorials,
It is not diflicult for them to observe the require- letters, speeches, pamphlets, resolutions of legisla-
ments __ of law in giving a hearing and receiving tures, and toasts at banquets and public meetings--
evidence. But to say that their findings of fact discloses practically no opposition to this exercise
may be made conclusive where Constitutional rights of the power of the Court. Only two serious at-
of liberty and property are involved, although the tacks upon this function of the Court were pub-
evidence clearly establishes that the findings are lished—one by a Federalist, Zephaniah Swift, in
wrong and Constitutional rights have been invaded, 1795, in a treatise on the law of Connectic