The Evening Star FRIDAY, FEBRUARY 12, 1937. COURT AND CONSTITUTION.

Evening Star, Issue 22571, 12 February 1937, Page 8

The Evening Star FRIDAY, FEBRUARY 12, 1937. COURT AND CONSTITUTION.

Artemus Ward described the world as revolving on its axis once in twentyfour hours, “ subject to the Constitooshun of the United States.” A proportion of his countrymen may even have accepted the statement seriously. But whether or not the physical laws were designed to work so harmoniously with the Constitution the “ New Deal ” laws of President Roosevelt have clashed very badly with it. One special enactment after another of the President has been declared “ ultra vires,” and therefore invalid, by the Supreme Court, whose function it is to interpret and guard the Constitution, making the necesssity to depend on voluntary agreements, instead of compulsory laws, for drastic changes of existing systems held to be required in combating depression. Voluntary agreements, on a nation-wide basis, are not easy to get where industrial and economic matters of the first importance are concerned. They work with more friction than compulsory laws. It has been a bad trial for the President. Assuming that the “ New Deal’s ” special enactments, which have met with so much obstruction, were truly required, the question arises: Which has been at fault, the Constitution or the Supreme Court? The Constitution, framed in a different world 150 years ago, has always been sacred to most Americans. The Supreme Court has been only a shade less sacred. The conflict of two such sanctities makes a parlous problem. A criticism of the measures which President Roosevelt is taking now to break the deadlock is that he did not give a hint of such a scheme in his speeches during the election campaign. The matter was very much discussed a little earlier, however, when his “New Deal 'enactments were going down like skittles before the judgments of the Supreme Court. It was the Constitution which the President appeared then to think required change. At a Press conference which he convened te explain his difficulties he described it as a Constitution of the “ horse and buggy ” days, outmoded by social and economic events. Opinion throughout the nation was divided, but the outcry grew in important quarters against any tinkering with the sacred work of Hamilton, Madison, and Jefferson. It was not regarded that those statesmen differed among themselves on all sorts of points, and reached their agreements by argument and compromise as men do to-day. No sacredness was allowed to the word of a later American, that “ Time makes ancient good uncouth.” At any time it is the hardest matter passing amendments to the Constitution.

President Roosevelt, upon reflection, has chosen what he may well consider as the easier way, though it is only by comparison easy. He will amend the Supreme Court. It may be a fact that the court has been more at fault than the Constitution. Its function is to interpret the foundation law, but there is room in most matters for different interpretations. Those of the Supreme Court may have been too conservative by tradition. There have been famous cases where its interpreters have differed from one another. Americans would appear to live in a different world from New Zealanders when a Supreme Court judgment can say (as one did recently) that an Act to give pensions to railwayman denied due process of law “by taking the property of one and bestowing it upon another,” and that the provision of such pensions lay beyond the power of Congress to regulate interstate commerce. Chief Justice Hughes was a dissentient from that judgment. President Roosevelt thinks that he may get a more liberal interpretation of the Constitution and more sympathy for new laws in a new time if there are younger judges. He is seeking discretionary powers for the President to increase the Supreme Court by a maximum of six more justices, and wants retirement at the age of seventy years. Six of the present nine Supreme Court judges are over seventy, as are also a number of English judges whose capacity no one questions. The retiring age in New Zealand is seventy-two. If the new plan is approved and effects its purpose probably it will not be so much because the judges are younger as because they are chosen by the President from men sympathetic to his views. So the charge of “ packing the Bench ” is inevitably raised by opponents. An immense storm has been caused by the proposals, but it is expected that Mr Roosevelt will get them through.