Evening star. [volume], March 01, 1937, Page A-14, Image 14

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

Image provided by: Library of Congress, Washington, DC

                
LONG CALLED FOR
t Close Decisions and Power
Over Acts of Congress
Subjects in 1800.
The story of the Supreme Court
—its origin, its development and
, issues it has raised in the history
of the United States—is told here
in a series of articles, of which this
is the fifth, until the object of
throwing light on questions raised
in the momentous political battle
note being waged m Washington
as a result of President Roosevelt’s
program for court reorganizations.
BY WILLIAM C. McCLOY.
No sooner had the general public !
begun to appreciate the importance
of the Supreme Court in the affairs of
the Nation than it sought to change j
the structure and power of the court.
This was about 1800. The first
changes suggested had to do with the
Justices’ term of office, close decisions
and the courts power over acts of
Congress.
With the rise of the Republicans—
progenitors of the present Democratic
Young Washington
President has learned to his dismay
that justices, once on the Supreme
bench, feel little or no obligation to
ward the man who named them.
As the slavery problem began to
attract greater attention, the agita
tion to limit the Jurisdiction of the
Supreme Court increased. During the
decade 1820-1830 nearly ail of the
proposals to alter the Supreme Court
that are being presented today were
discussed In Congress and out of it.
Ex-President Jefferson advocated
limiting the tenure of the Justices to
six years without reappointment ex
cept by agreement of both houses
of Congress. In 1921 Richard M.
Johnson of Kentucky offered a reso
lution in the Senate to give that body
appellate jurisdiction in cases calling
for constitutional interpretation.
In 1822 and 1823 Representative
Stevenson of Virginia sought to de
prive the court of the right of judicial
review of acts of Congress and. in
1824, Senator Johnson proposed a
bill requiring the concurrence of five
out of seven justices in constitutional
cases—a proposal that was favorably
reported from the Committee on
Judiciary by Senator Martin van
Buren.
Nine Proposals in 45 Years.
Proposals for the concurrence of
more than a majority of the Supreme
Court to hold an act of Congress un
constitutional have appeared in Con
gress every now and then since 1824.
More than nine times from 1823 to
1868, proposals |-ere made requiring
concurrence of more than a ma
jority of the court to hold a State
of seven justices out of nine to pro
nounce an act of Congress uncon
stitutional. In 1935, the Senator told
why he changed his views. In a letter
to Mr. Warren, July, 1935, the Sena
tor said:
“In 1923, I felt very strongly and
I feel now that, if there is any prac
tical way to avoid these five-to-four
decisions upon constitutional ques
tions, it should be done. But, after
introducing the bill and studying the
subject with considerable care, I could
see no practical way to bring this
about. The more I considered the
subject, the more I concluded that
the majority rule had to obtain in
the courts as elsewhere in our Govern
ment. There were other objections
which seemed (insurmountable. It
was also doubtful whether the result
could be reached by statute or in
any other way than by a constitu
tional amendment."
Minority Rule Illustrated.
Mr. Warren also gives a cogent
Illustration of how "the minority
rule" works. The State Constitution
of Ohio provides that "no law shall ■
be held unconstitutional and void by ;
the Supreme Court of the State with- !
out the concurrence of at least all
but one of the judges”—of six out of
seven. In a suit attacking the validitv '
or the workman’s compensation act,
five judges held it unconstitutional
and two thought it constitutional.
The views or two judges, under the
rule, prevailed—two-sevenths ot the
court outvoted five-sevenths!
There was no question in the earlier
days regarding majority rule in the
Supreme Court. The views upon thus
matter of the two outstanding leaders
of the two major political parties were
identical:
"To give a minority a negative upon
the majority, which is always the case
where more than a majority is requi
site to a decision, is, in its tendency, i
to subject tlie sense of the greater
number to that of the lesser.”—Alex
ander Hamilton.
"The first principle of Republican
ism is that the law of the majority
is the fundamental law of every so
ciety of individuals of equal rights:
to consider the will of the society
enounced by the majority of a single
vote as sacred as if unanimous is the
first of all lessons in importance, yet
last which is thoroughly learned.”—
Thomas Jefferson.
(Copyright. l!i:iT by the North American
Newspaper Alliance Inc.)
England's 1.152 co-operative so
cieties now have 7.435.307 members
DON'T
party—the country became office-con- |
scious. Everybody was in politics, in-1
eluding the justices of the Supreme
Court, some of these campaigning
openly for their respective parties. In
the last days of John Adams' admin-!
Istration, his party, under the judiciary
act of 1801. created 16 Circuit Court
judges and. under a supplementary
law, 42 justices of the peace for the
District of Columbia.
When the Jeffersonians came into
power in Congress, they repealed the !
judiciary act of 1801 and anticipated
a possible unconstitutional ruling of
the Supreme Court by suspending the
court. This was accomplished by set
ting aside the court's next term of
meeting until February. 1803. The
conduct of Justice Samuel Chase was
particularly obnoxious to President
Jefferson and he sought to have Chase !
Impeached Justice Chase was ac
quitted in 1805.
Randolph Introduced Rill.
John Randolph, on advice of Presi- !
dent Jefferson, then introduced a bill
In Congress, providing that the judges
of the Supreme Court and of all other
courts of the United States shall be
removed by the President on the joint 1
address of both houses of Congress. “
The Republicans—Jeffersonians—were
so disappointed over the result of the
trial of Aaron Burr that another
amendment—again with the Presi
dent's approval—was proposed in Con
gress limiting the tenure of all United i
Spates judges to a term of years. The !
bill,also provided for their removal by
the President on petition from two
thirds of both houses.
The object of these amendments
was to wrest control of the Supreme
Court from the Federalists and place
It with the Republicans (.Jefferson
The rotogravure section of The Sunday Star attracts the at
tention of a winsome student at the Takoma Elementary School
kindergarten. The child is Donna Belle Robinson, daughter of
Mr. and Mrs. Carl H. Robinson, 808 Philadelphia avenue. Silver
Spring. Md. Tomorrow—Janice Elaine Bregman, daughter of
Mr. and Mrs. David Bregman, at the Truesdale School.
—Star Staff Photo.
iansl. Up to 1804 the Federalists
fully controlled the court. In that
year the resignation of Justice Moore
enabled Jefferson to appoint the first
Republican-Democrat to the Supreme
Court. He was William Johnson of
South Carolina, age 32, the youngest
man ever appointed to the Supreme
bench. The death of Justice Patter
son and the addition of a new cir
cuit gave President Jefferson two more
justices.
With the hope of getting control of
the court in a lawful way, the Jef
fersonians abandoned their plans of
changing the court's structure and
the tenure of offlre for the justices.
But Jefferson was destined to dis
appointment in his desire to control
the court. The Chief Justice. John
Marshall, was too clever for him.
At the time the justices all lived
under the same roof, and the cul
tured intelligence of Marshall proved
more potent than the politics of the
President. Jefferson's justices wouldn’t
stay hitched.
Two Opposed Sponsor.
Both Justice Livingston and Jus
tice Johnson, Jefferson’s own ap
pointees. went against their sponsor
in opposing the embargo act prohib
iting the selling of food to European
nations at war—an act as unpopu
lar as the Volstead law a century or
more later. Pour years later, when
President Madison revived the em
bargo act, Joseph Story, Madison’s ap
pointee to the Supreme bench, ruled
vigorously against it. President after
1 ^
statute unconstitutional.
Nothing the Supreme Court has
done in the last two decades has oc
casioned more discussion than its
five-to-four decisions. The greatest
good that will result from the pres
ent agitation will be that the gen
eral electorate will have a clearer idea
of why the framer of the Constitution
adopted the majority rule.
Charles Warren, in an exhaustive
review of this subject, relates the
story of Senator Borah's conversion
to the rule of majority opinions. In
1923. the Senator introduced a bill In
the Senate reauiring the concurrence
_..
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