Evening star. [volume], February 23, 1937, Page A-11, Image 11

About Evening star. [volume] (Washington, D.C.) 1854-1972

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State Courts
Also May Be
Governors Might Fol
low Precedent If Roose
velt Plan Wins.
BY DAVID LAWRENCE.
IP CONGRESS can assume the
right to fix the size of the Supreme
Court to conform to the desires
of the Executive, why cannot a
State legislature, at the request of a
Governor, do the same thing with re
apect to State supreme courts?
This question has come to me from
several persons In various parts of the
country, many or
whom live In
States where the
State constitu
tions do not pro
vide against tam
pering with the
judicial power.
The answer is
that in the ab
sence of a State
constitutional re
striction on the
subject, the pre
cedent will be
fully established
If President
Roosevelt's pro
David Lawrence.
posal to enlarge the supreme court
should be adopted by Congress. The
various State legislatures and Gov
ernors would then be able to add
Judges in State supreme courts at will
w henever the decisions of the existing
number of judges happened to be
politically or economically unpalatable
to the party in power.
The average layman is unfamiliar
With the extent to which what
happens with respect to the rules and
procedure and customs that surround
the United States Supreme Court is
taken as a justifying precedent for
similar action in the judicial branches
of the 48 State governments. If Gov
ernors of States followed the pre
cedent set by the President, they could,
with the co-operation of a majority of
both Houses of the State legislatures,
find it unnecessary to change their
State constitutions whenever decisions
of the supreme court of their States
i held State acts to be invalid. The
simple process then might be to
change the justices by adding enough
to get a desired majority on the
bench.
No Explicit Power.
As a matter of fact. Congress has
ho explicit power to fix the size of the
Supreme Court. Nowhere in the Fed
eral Constitution is there any mention
made of the size that the Supreme
Court is to be. The Constitution does
, say that the “judicial power” is to be
vested in a Supreme Court and it
does say that Congress may establish
“inferior courts,” now commonly called
“lower courts,” but the framers of the
Constitution failed to grant Congress
the specific power to fix the number
of justices of the Supreme Court.
What happened was that Congress in
1783 passed the first judiciary act and
pet the number of justices at five.
From that assumption of power by
Congress, the precedent has been de
veloped that Congress may, at any
time, fix the size of the Supreme
Court.
But while Congress has at different
times altered the .size of the court there
is absolutely no precedent for the set
ting up of a court of fluctuating size
and one wherein the number of jus
tices is directly related to the fact
of life tenure. The framers of the
Constitution wanted judges to be free
from politics so they assured them of
life terms.
Today, what the Congress is asked
to do is to set another precedent—to
fix the size of the Supreme Court con
tingent upon the age of the justices—
something with which Congress has
really no constitutional right to inter
fere by any limitation, direct or in
direct.
New Question Arises.
May Congress assume the right to
make the Supreme Court of fluctuat
ing size and may the Chief Executive
constitutionally ask Congress to alter
the size of the court when the deci
sions of that court displease the ad
ministration in power? This is the
new question that has arisen and since
no warrant for the exercise by Con
gress of its Initial action, in 1789, fix
ing the size of the court on a definite
basis can be found in the Constitution,
the passage of the President's pro
posal now means a precedent which
would give Congress what some day
may be known as ‘'contingent” author
ity to make the size of the court de
pendent on any circumstance which
the National Legislature may select.
Thus, If Congress can, as is pro
posed in Mr. Roosevelt's bill, delegate
to the President the authority to ap
point new justices whenever certain
judges reach the age of 70, authority
can also be conferred on the Presi
dent to appoint certain extra judges
whenever “in the public Interest,” or
in promotion of tlje “general welfare,”
the Chief Executive may deem it de
nr able to increase the size of the court
bo as to neutralize or render ineffec
tive the decisions of a majority of the
existing justices of the Supreme Court.
Age Standard Arbitrary.
The use, in other words, of the
wards ”70 years of age" as a justifi
cation for altering the size of the
court hardly constitutes a legislative
standard for the exercise of the ap
pointing power by the Chief Execu
tive when in fact no limitation on
age, either as to the appointment of
justices in the first instance or their
retirement, is covered by the Constitu
tion itself.
Congress, it will be noted, has not
been asked to pass a law preventing
the Executive from appointing justices
who happen to be 69 years old, or even
TO. The appointing of new judges is
to occur only when the existing judges
have reached the age of 70 and also
•hall have served 10 years on the Fed
eral bench. Should they be 69 years
old and not have served on the Fed
eral bench they are plainly eligible for
appointment and can serve 10 years,
namely, until they are 79, before an
additional justice can be named un
der the President's plan to relieve
them, so to speak, of the alleged con
gestion of their work.
But the fact that the President’s
bill wu aimed only at the particular
six men over 70 years of age, all of
whom have already served 10 years
or more on the Supreme Court bench,
Is no longer disputed in official quar
ters because the speeches of the ad
ministration spokesmen are openly
discussing the views of the justices as
a basic reason for the new legislation.
Thus Important precedents affect
ing in the long run the judicial power,
not only of the Supreme Court of the
United States, but the highest courts
In the various States, are about to
be considered by Congress at the'be
hest of the President.
(Copyright, 1837 J
News Behind the News
Speech Resettlement Head Wasn’t Allowed to
Deliver Rebuked Southerners.
BY PAUL MALLON.
DON’T whisper a word of It to the Southern congressmen, hut a
slightly rare, If not raw, speech concerning them was not de
livered by Rural Resettler W. W. Alexander In Des Moines a few
days back. •> ^
You cannot get a copy of It around the Agriculture Department far
#100. Advances furnished to news dispensing agencies have been con
fiscated, canceled, recalled and suppressed. Pals of Agriculture Secretary
Wallace rushed about and borrowed the few remaining copies from the
hands of unsuspecting newsmen. These have been now permanently mislaid.
It it obvious that Mr. Wallace is not going to let that classic opus
fall into congressional hands at a time when President Roosevelt is
trying to soothe the brows of Southern Senators, ruffled by his Su
preme Court repacking plan.
But what makes suppression
triply desirable is that Dr. Alex*
ander, the successor to Prof. Tug
well, Intended to deliver It to a
conference of farm leaders called
to promote harmony between the
South and West.
If you Inquire what happened,
you will be Informed officially Dr.
Alexander decided at the last
minute that perhaps this was not
the time and a West-South har
mony conference was not tne place to reopen tne uivu war.
However, that Is not exactly the way it happened.
It seems the speech was prepared in the Rural Resettlement
Administration and sent over to the Agriculture Department for an
okay. Advance copies were circulated in the usual routine way. No
one paid much attention to it, until a few hours before it was to be
delivered. Then, some one near Mr. Wallace here discovered the
possibilities of a bad reaction. Conferences were hastily called. The
speech teas ordered killed.
* * * *
A perusal of the lost speech indicates that most Southerners probably
cannot read anyway, so it may be safe to relate to the rest ot the country
that Dr. Alexander's viewpoint looks up "Tobacco Road.” He Is a former
Southern minister, but his undelivered masterpiece contains assertions that
the Southern farm standard of living is 30 to 50 per cent below the
national level, that sanitary facilities are most primitive, that houses are
the poorest, that the good-for-nothingness of the tenant farmer is really
Illness due to underleeding.
To the administration’s harmony conference (the first annual
National Farm Institute), Dr. Alexander u-ould have said, had he
been permitted: "Security for the farm population is more important
for the South than other sections of the country. Yet our farm
leaders in recent years have come from the Middle West."
Note—Dr. Alexander must have forgotten Agriculture Chaimen Jones
In the House and Smith in the Senate; Ed O’Neal, head of the Farm
Bureau Federation, who hails from Alabama, Senator Bankhead, et al.
"The farmer Is always first in the minds of the Middle West states
men. Such is too often not the case with Southern statesmen.
"Southern leaders must recognise agriculture as the most vital force
In the life of the South for before anything can be done materially to
improve conditions in the South, it must develop a sound agriculture.
Any realistic political affiliation for gaining these aims must be with other
farming regions.”
Note—If Vice President Garner, Floor Leaders Robinson and Rayburn
ever find out about this, there will certainly be some more suppressed
“LEfA SLEEPIN<
DOG LIE"
remarks lorrncoming aoour carper
bagging politics.
* * * *
The suppressed text continues:
“The policy of the South toward
the problem causing and growing
out of farm tenancy has been to
let them alone.
“The growth of white tenancy,
the loes of foreign markets, the
widespread depletion of soil fertility
and the recent depression have
j forced many to face tne promems ana see me necessity xor planning
as their solution for agricultural problems.
"Many Southern leaders, however, still cling to the belief that indus
try will repeat its wonders for the South. Because of this, and the fact
that the credit system of the South is controlled by Northeastern capital,
their political affiliation has been with these regions rather than with
other progressive farming regions.'fc
Dr. Alexander also thought it tragic that so few people voted
in the South. His statistics indicated only 14 per cent of South
Carolina citizens over 21 took the trouble to vote in 1936; Georgia
19 per cent; Alabama 20 per cent; Virginia 25 per cent.
He neglected to point out that the result would not have been dif
ferent if 101 per cent had voted, as was suspected in some of the machine
laden precincts of the large Northern cities.
The most horrible aspect of the speech from the standpoint of Mr.
Wallace’s friends here lies in their contemplation of what remarks like
these might do to his 1840 presidential candidacy.
They are saying that Mr. Wallace Is about ready to transfer Dr.
Tugwell’s old bureau back to the molasses tycoon, or even to Spain.
(Coprrisbt. 1837.)
CTHE opinions of the writers on this page are their oton, not
necessarily The Star's. Such opinions are presented in
The Star’s effort to give all sides of questions of interest to its
readers, although such opinions may be contradictory among
themselves and directly opposed to The Star’s.
Revolution of Jeers
Sharp Break in Continuous Pattern of Precedent
Requires Discrediting Old Symbols.
BY MABK SULLIVAN.
THE somber significant* of
President Roosevelt's court
proposal Ilea In Its relation to
the new conception of society
now fermenting throughout the world.
It lies in the parallel between what is
attempted here and what has been
done in those countries In which the
new conception has established Itself.
The new conception hates courts.
xi. nates courts
for the obvious
reason that courts
protect the citi
zen against the
government. In
any controversy
between the citl
sen and the gov
ernment, courts
In America and
Britain hold the
balance even be
tween the two;
to the courts, the
citizen and the
state are equal.
O o u r 18 uphold
Mark Sullivan.
me rignis oi me ciuzen.
This the new conception cannot
endure, because to it the citizen has
no rights that the state need respect.
The "authoritarian state” Insists upon
unlimited power of compulsion upon
the Individual. To It. the courts, as
far as they are permitted to exlat,
must be mere agenclee through which
the state exerts Its power upon the
Individual. The courts must be as
submissive as every other Institution
or person within the state.
Custodian of Precedent,
Besides that obvious motive, the
new conception hates courts for an
other reason. They hate courts be
cause courts are the custodians of
precedent, and therefore of continuity.
And the destruction of continuity with
the old Is necessarily the first step of
any new conception.
In America and In Britain, the
achievement of liberty through law
has been a process which, as Tennyson
put It, "slowly broadens down from
precedent to precedent." The courts
use precedents as the record and
guide to principles and usage, which
they extend and adapt to new condl
LiUiiB CMS BllflC.
The framework of society, ts we
think of it, is a kind of fabric—a
fabric which Is constantly In process
of weaving, ever in the loom. The
completed part of the fabric consists
of precedents, and the patterns of
principle which these precedents form.
But on the edge where the weaving Is
•till in process, courts are constantly
modifying the pattern. Bver keeping
the fabric whole, never making a
break, they nevertheless move grad
ually from the old precedents to the
new conditions. Often they introduce
entirely new strands. But In It all
the essential and precious quality is
continuity.
Modern Revolution Technique.
This the new conception of society
hates. For the direct purpose of revo
lution Is to destroy the old fabric
utterly, to tear up the old pattern and
Impose a new one. The process is one
of destroying the old, thereby bring- I
“Jonathan! Stop playing this instant—
your cup of Wilkins Coffee is getting coldJ”
inf ferment and welter and chaos,
and then shaping the fragments and
shards into the new pattern that Is
desired. Consequently, in the tech
nique of revolution, a primary strategy
Is to destroy precedents, to destroy
Indeed the very Idea of proceeding
through .precedent. The essence of
revolution of the modem type Is to
get the people away from old ways of
thinking, away from accepted princi
ples, away from tradition, away from
those things for which the people have
old affection.
The aim of revolution Is to make a
sharp break with the past. In that
aim, those who bring about revolutions,
as part of their earliest tactics, set
their faces savagely against old sym
bols of every kind. These they tear
down and then set up new ones. In
Russia, the old national emblem was
pushed away; in Its place was set up
the hammer and sickle. The church
and all that went with It, its symbols
and associations, were ruthlessly
rooted up and destroyed. In Ger
many the old double-eagle flag was
supplanted by the swastika, accom
panied by an elaborate new ritualism
of salutes and uniforms. In Italy the
fasces was set up as the new symbol.
Even In America, in our early and
comparatively mild first step toward
revolution, our familiar national sym
bol, the golden eagle, was supplanted—
briefly, thanks to the Supreme Court—
by a Blue Eagle, to which, I suspect,
the older bird would not acknowledge
any relation of paternity.
uHincuon dj jeers.
Bo with us, the attack upon the
court* has, of course, the fundamental
purpose—In part consciously, In part
instinctively—of depriving the courts
of their share of power, so aa to bring
about the lodging of all power ulti
mately at one point, aa in the totali
tarian state everywhere. But the at
tack has also the purpose of discred
iting a symbol one for which there
has been respect and loyalty and faith.
In the new conception of society there
must be only one object of respect,
only one source of authority.
So observe the bitterness with which
the court is assailed, the Jeering de
scription of it as "nine old men.” In
any adequate future history of this
American period, if the historian has
insight, he will point out the signifi
cance of that play of a few years
ago, a bitter comedy satirically en
titled "Of Thee I Sing.” in which the
Supreme Court was put upon the
stage, the justices singing a comic
song while their gowns swirled about
them in a grotesque dance.
(Copjrrisht. 1837.1
FLYER BRAVES BLIZZARD
RESCUING SICK WOMAN
Trapper'B Wife Taken From
Cabin North of Arctic Circla
to Canadian Hospital.
BY the Associated Press.
FORT SIMPSON, Northwest Terri
tories, Canada, February 23.—An air
man braved a 45-mile-an-hour bliz
zard yesterday to bring a seriously ill
We, the People
Migration of Industry to South Focuses Attention
on "Sweat Shop" Charge in Report to Roosevelt.
BY JAY rR AN KLIN.
ONE of the many fires whloh the administration has burning
under balky politicians who oppoes Mr. Roosevelt’s plan to re
form the courts is the threatened ruin of Northern and Eastern
Industries by sweated labor In the South.
For certain Industries—such as cotton textile*—the South enjoys
definite economic advantages: Nearness to raw materials, plenty of water
power, low taxes and living costs and a much lower standard of living for
people generally.
Southern labor la rendered leas efficient than Northern labor by a
low diet, an enervating climate and the prevalenoe of such diseases as
buucruuiusu, maiaria, uuva*wurm,
syphilis and pellagra. So, lower
Southern wages are partly offset by
lower labor productivity, but on the
whole the South has the edge over
the North.
Moreover, the race problem, the
general political and economic con
ditions resulting .from the Civil
War, and other social traditions
have tended to prevent unionisa
tion In the South and have en
oouragea sirise-weaxing, nignt-naing, tic., nanng up in tne action or
Ocrv. Talmadge of Georgia In throwing white women into concentration
camps for the “crime” of picketing.
* * * ♦
In addition, many Southern comm uni tie* have offered special in
ducements. such as tax-exemption and free factories, to Northern manu
facturers who wish to cut costs. In Tennessee, where the public was
shocked to learn that it was legal for a 8-year-old girl to marry a full
grown mountaineer, there is little horror at the thought of 9-year-old
children working long hours at cotton spindles.
All these things combined to drive down Southern wages in
comparison with Northern wages. At the low point of the depression
the South paid its textile workers 30 per cent lest than did the North.
Under the N. Jt. A. codes, this differential was cut to about 15 per
cent, a point at which the North could hold its own. Since the North
cut its own throat by demanding repeal of N. R. A. wage arrange
ments, via the Supreme Court, the difference has risen to about 25 per
cent—a difference achieved by cutting Southern wages to the bone.
This Is producing a dangerous social crisis. The crash of the gTeat
Amoskeag mills, in New Hampshire, shook New England to the core.
Now the hosiery industry is deserting Philadelphia and is moving
South—to the Carolines and to Tennessee—where the poor whites can be
sweated with Impunity and where politicians can be counted on to raise
the Negro or the Communist bogy whenever there is danger of union or
ganisation.
* * *
At first It only meant that new factor 14s were built in the South
instead of in the North, but now the Northern factories are shipping
their machinery South and closing down whole towns. The American
Federation of Hosiery Workers has already abandoned all hope of a
national wage scale and Is trying for regional and district agreements.
The Northern communities thus abandoned are left with
stranded populations which muit be supported by relief, move away,
or else try to get employment in any of the fly-by-night, "terial
bankruptcy" outfits which prey on this industrial wreckage.
After the death of N. R. A. the President appointed a special com
mittee under the chairmanship of Capt. W. P. Robert of the United States
Navy, to Investigate the effect of the Supreme Court’s ruling on hours and
wages of labor.
The report, soon taken into camp by the Department of Commerce,
was falsified in one Important particular. Protesting minority virus were
suppressea so as nor 10 emorrass
the President,” and the report Itself
was given minimum circulation,
after being delayed for two and a
half months by the Secretary of
Commerce, before forwarding it to
President Roosevelt.
Messed up though this forgotten
document was, It showed clearly
that industry was back to its old
game, and the new industrial areas
of the South were becoming a na
tional sweat shop, and that Northern industry must nenceiorth aDanaon
hope of decent labor conditions In many lines of economic enterprise.
This situation has already become grave enough to have caused
congrealonal restlessness. But unless—by hook or crook or both—the
Federal Government can get around the Supreme Court's singularly irre
sponsible rulings on N. R. A. type legislation, the North might Just as
well plow under Its light Industries and alt back to watch the Southern
mountaineers take It on the chin from migratory manufacturers who get
their profits at the expense of their employee.
(Coprrtsht, 1097.)
woman out of the Arctic to a hoapital
at this outpost on the Macke nil*
River, 650 miles north of Edmonton.
When Oon Farrell of Canadian Air
way* arrived at Fort Norman, 100
miles north of the Arctic Circle, on a
southbound flight he was met by
Frank Rivett, a trapper, who had
mushed in to seek aid for his wife,
suffering from peritonitis In their
cabin 28 miles away. Farrell flew to
the cabin, picked up Mrs Rivett and
flew her the >00 miles to Fort Simp
eon.
An American
You Should
Know
Marcellus C. Sheild
Once Dubbed 'Appro
priation Committee.'
BY DELIA PYNCHON.
HE House Appropriations Com
mittee functions In an atmos
phere of money pleas. Mar
pellus C. Sheild Is cleric ot this
committee and has seven assistant
clerks. Clerks do not change with
changing politics, even though the
original appointment may have been
political. Chairmen find that they
need men well versed In past per
formance.
Such a man Is Sheild. He came
to Washington from Minnesota in
President “Teddy” Roosevelt’s ad
ministration, and here he has re
mained. He 1s a quiet man and ad
mittedly as ahy as the proverbial violet.
This quality In Washington public life
usually reaps a harvest of friends.
Members of the House and 8enate
nave both respect and affection for
this Important and shy man.
Sheild Is regarded as a living
encyclopedia of Information on ap
propriations and appropriation laws.
The late Speaker Byrna realized hia
great ability. He dubbed him "the
Appropriations Committee." The title
implied that they could not function
wlthouk him.
Finds Relaxation In Work.
Every one has their moments of
relaxation. Sheild takes his Inter
mittently. HLs chief amusement and
avocation is really his work. Fre
quently during sessions of Congrqjs
he is at his office in the Capitol until
10 o’clock at night. Sometimes he
goes fishing or plays golf.
In 71 years there have only been
three clerks of the House Appropria
tions Committee. Once the commit
tee functioned as the Ways and Means
Committee. Then taxes, revenue and
budget were untangled in one gigan
tic effort. In 1865 Thaddeus Stevena
of Pennsylvania Introduced a resolu
tion to sever the connection. The
Appropriations Committee was born.
Stevens was its first chairman. Since
then 20 men have served as chairmen.
Thirty Years’ Work.
Sheild was appointed clerk by
James A. Tawney of Minnesota. Taw
ney was a Republican and chairman
at the time, but he has served un
der Democratic as well as Republican
chairmen. James P. Buchanan. Texas
Democrat, and his recent chief, died
yesterday.
Sheild has witnessed marry battles
In the Appropriations Committee. He
has aeen them come and go in Con
gress for 30 years. He has seen vast
appropriation increases. In 1907 the
Sixtieth Congress appropriated 11,
000,000,000 to run the Government.
The last Congress appropriated $10,
000,000.000.
DETECTIVE IS VICTIM
PARSONS. Kans. February 23 (A5).
—Detective Blanchard Bolander ques
tioned a pair of suspected shoplifters
yesterday, released them, and an hour
later discovered his tobacco pouch,
gloves and glasses were missing.
Quipped Police Chief Bill Miller:
"What’s more, the boys on the force
say Bolander was wearing his glasses
at the time."
To which Bolander replied: “Any
way, they didn’t get my gun.”
Highlights of the March Issue
BEWARE OF THE BOOM ...... ByRog„- W.Babton
THE LABOR LOBBY.By g.o. e. Sokohky
PROSTITUTION IN THE U. S. . . . . By Bottom Johnson
ARE INVESTMENT TRUSTS TRUSTWORTHY?
By John T. Flynn
HOW GRAND IS OPERAT...
By John B. Kennedy
THE TROUBLE WITH AIR TRAVEL...
By Lowell Thornes
UNEMPLOYMENT OR POVERTY?...
By Arthur Pound
NOBODY OWNS HIS HOME...
By Frederic Wright
THE NEW FIGHT FOR PEACE..
By H. V. Keltenbom
RUSSIA-A GOVERNMENT OF OUNMEN...
By Jos. Sbaplen
THE END OF ARISTOCRACY...
By Boake Carter
N TAMMANY ON THE TOBOGGAN?...
By Gabriel Heatter
THE TRUTH ABOUT TELEVISION...
By Alton Cook
U.S. A.-LAND OF RACKETS... o
By Frank W. Brock
"Toil CAN’T TAKI IT WITH YOIr...TbePUy of theMontb
And Many Other Lively Features
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The Commentator *101 Park Ave.,New York
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