FEDERAL STATES

Evening Post, Volume CXXII, Issue 82, 3 October 1936, Page 25

FEDERAL STATES

RIGID CONSTITUTIONS

- DISABILITIES DISCUSSED

EXAMPLES OVERSEAS

, ■/■;';■: The of a' rigid Constitu- . / tion in Federal' States such as U.S.A., Canada, and Australia were discussed JV by Dr. A. G. Butchers in a W.E.A. lee- ; ture at'the Trades Hall, Vivian Street, , on Monday night. ■v": The* progress of scientific invention ■ today; said Dr. Butchers, was scarcely •'■■less-.rapid than the progress of.nations , tbwards; social justice and a planned The World War had found .: the Constitutions of Federal States :such as U.S.A., Canada, and Australia ; equal to the-emergency, because pro- -: vision-was ,made for the exercise of ':; supreme power by national governor merits in such circumstances, , But! ■■ ;\yhen the world financial depression v' undermined the foundations of the old I ■economic order, the situation was altogether, different, and measures subse:';quently declared unconstitutional had vibeen adopted in all three countries in ■iorder to assist national recovery, pro- ; tect national industries, and secure '~ social justice for the working classes. ■//•The crash of American financial : houses, bringing, down with it every kind of business, so stunned the United States that they welcomed Roosevelt II as a presidential dictator and saviour of his country. So urgent indeed was the crisis that, with the help of his carefully-chosen "Brain Trust" of young professors and of an obedient Congress, the new President ■ was able during the so-called "hundred days" to rush through the series of enactments known as the New Deal. These Acts, particularly tha National Recovery Act, were skeleton 'Acts which authorised the: executive by the exercise of authoritarian powers ' to implemehtr.the statutes by the promulgation: of orders. Codes were imposed regulating conditions of industry without regard to the paramount rights of the State Governments' to. legislate within their own boundaries in regard .to the matters .dealt with. That the legislation was not challenged at the time 'by the States was the strongest evidence of the gravity of the emergency. ' CHALLENGE TO PRESIDENT. Now that confidence was in a measure restored the conservative elements were challenging President Roosevelt's enactments in the Supreme . Court, the Judges of which, known as the "Nine ■ Old r Men," ranged from 61 to. 80 years of age, their average age being 71. .-At.least four of the members, for the most part the oldest, were generally considered to have been appointed rather for their political than for their legal qualifications. When the A.A.A. (Agriculture Adjustment Act.) was declared invalid by a 6to 3 majority of the Court it was significant that • the three admittedly best lawyers on the Bench were in the minority. This evoked serious doubts in the minds of the people as to the legal soundness of the systematic invalidation of New Deal legislation, 'upon which sihe Court seemed to have embarked. At any rate the President deliberately challenged the Court to continue the same policy by asking Congress to enact fresh. laws which on the face of them invited similar action. The N.R.A. (National Recovery Act) had been declared invalid because by it the Legislature handed over the function of legislation to the administrative organ of the Government. The efforts made by Roosevelt to assist the farming community had been invalidated on another ground, namely, that the power of imposing taxes was'being used, not with the object of raising revenue for the general purposes of , government, .but in order to accomplish by indirect means what the Constitution rendered impossible .of achievement by direct means that would have involved an infringement of the States' rights. In other words, the majority of the "Nine Old Men" alleged that it was a misuse of the taxing powers of the National Government to raise money by taxing the manufacturers (and through them the public) in order to obtain funds wherewith to pay bounties and subsidies to those producers who agreed to restrict production, in order to help maintain prices and so keep the farming industries afloat. In New Zealand, Dr. Butchers observed, the Government had adopted other financial measures, notably the raising of the exchange rate, in order to achieve the same object. LEGISLATION CONTINUES. With a continuing stream of New Deal legislation, the President was forcing the Court into the position of a definite and consistent obstacle to social and national progress. He was too astute to fight the Presidential election on the ground of constitutional amendment, for which he felt the country was not yet ready. Every President, once re-elected, showed greatly-increased firmness and vigour in the furtherance of his policy, said Dr. Butchers, and it was unlikely that Roosevelt would prove an exception. It was not improbable that time would help him by removing at least two or three of the oldest justices, thereby opening the way to the appointment of able lawyers more nationally minded. It had to be remembered that in America Political considerations were of paramount importance in making appointments, and Roosevelt would only be following well-established precedent by taking advantage of such an opportunity to ensure a more favourable attitude of the Supreme Court towards his legislation. Failing that, he might be driven to ask the country to amend the Constitution either in the direction of definitely giving wider powers to the National Government or by providing machinery for overhauling the Court's decisions by the re-enactment, in a prescribed manner, of the legislation complained of.

In Canada recently the then Premier, the Rt. Hon. R. B. Bennett, who was the head of the Conservative Government of the Dominion but whose brother-in-law was Canadian Ambassador at Washington, suddenly startled the nation by announcing over the air a New Deal policy for Canada. In rapid emulation _of Roosevelt, he enacted a Marketing Act, a Minimum Wage Act, an Hours of Labour Act, an Unemployment Insurance Act, and other legislation aimed at the alleged unethical practices of "big business.'1 When the swing of the elections last year replaced his Government by that led by the'present Liberal Premier, Mr. Mackenzie King, these laws were referred to the Supreme Court, which after five months' deliberation declared them all invalid. Appeal was then made to the Privy Council in England, and there the matter lay for the time being, with the Dominion thrown right back upon separate provincial action as the only means of dealing with problems which everyone realised had become essentially national in their incidence. A proposal to ask the British Parliament to amend the British North America Act, 1867. had also been postponed, so that lor the time being no relief could be expected, along the line of an amendment to the Canadian Constitution, which was embodied in that Act.

In Australia the High Court had stood fairly firmly behind the National Government in liberally interpreting in

its favour appeals made by States' rights advocates on.various points. An amendment of the Constitution was no less difficult to secure in Australia than in America. West Australia had sought to petition the British Parliament and restore her. independence, but the Commonwealth Constitution itself declared the union to be indissoluble and under the Statute of Westminster it was impossible for the British Government to amend the Australian Constitution Act except at the expressed request of the whole Australian people through the Federal Parliament. '. ','■■'-■

New Zealand was fortunate! in not having a rigid Constitution. With a clear majority, the present Government was in the enviable position of being able to go straight ahead with the task of implementing, its policy by legislative and executive action, whereas in the United States and the great sister Dominions the obstacles imposed by the rigidity of their Constitutions were .almost insurmountable. The consequence of this freedom was that, in a world filled with unusually interesting national and social experiments in so many different countries, New Zealand had for the second time in its history leapt into prominence as a social laboratory of the utmost importance to mankind. The subject of the next lecture will be "Latin America and an American League of Nations."