THE New Zealand Herald TUESDAY, DECEMBER 18, 1923. AND DAILY SOUTHERN CROSS. TUESDAY, DECEMBER 18, 1923. CONGRESS AND THE COURT.

New Zealand Herald, Volume LX, Issue 18585, 18 December 1923, Page 8

THE New Zealand Herald TUESDAY, DECEMBER 18, 1923. AND DAILY SOUTHERN CROSS. TUESDAY, DECEMBER 18, 1923. CONGRESS AND THE COURT.

Senator Borah, by his proposal affecting tho power of the United States Supreme Court to declare unconstitutional any Acts of Congress, is taking up again his role of lightning-conductor. It is presaged by the cable message that a bitter I fight will occur in Congress over it. That can well be imagined. The project touches the tendered spot in American politics. If it be true that latterly the idea of limiting the power of the Court has made great headway, that it is sponsored by publicists throughout the States, and that the Republican insurgents favour it, there is a reasonable likelihood that it may be carried in Congress; but even that will not end the controversy. It will still be open to the Court to declare this particular Act of Congress ■ unconstitutional, and raise a further issue to be placed before" the whole nation for its vote; and in the settlement of that issue there will be involved a strenuous and heated battle engaging immense forces. Ever since the Constitution was I framed there has been keen divergence of opinion about the powers of the Court. The Constitution was a compromise between conflicting views, and jealousy toward the judicial department has been from time to time displayed by both the legislative and the executive elements in America's tripartite government. When some case of wide national interest has been the occasion of the Court's veto this disposition to criticise it has passed into denunciation. Resentment at the Court's findings has found expression in resolutions submitted to Congress. ; One of these, proposed in 1824, was designed to abolish the Supreme Court altogether ; and in 1867 and the following year Bills on the lines of Senator Borah's proposal were introduced. However, after the. most thorough canvassing and - discussion, . these 'proposals were all emphatically rejected by the Legislature. ' . *T V -

* It is not .difficult to understand this . recurrent agitation against the Court. ■ It has great powers. It .is a co-ordinate part of the United States'' Government, given explicitly a definite part of sovereignty in the nation. None of the three departments can be, by the theory of the Constitution, subject to any one of the others. The President, cannot. be compelled to make a treaty, nor to appoint to office anyone whom 7 he does not wish to appoint. The Legislature alone can pasß laws. . The judiciary has the sole right to construe them, and to enforce them by proper process of the various Courts. Supreme above them all is the written Constitution, whose power resides in the people as a whole. Each depository of the people's will has its field of action, and all things rightfully done by any of them is binding upon the others. That is the theory, a theory that has commanded admiration from De Tocqueville to Viscount Bryce; but it is inevitable that' in practice it should encounter difficulties. The weakness of the provision for three departments oS government, each with its scope ,more or less sharply defined, is that it allows of conflict where the several rights and responsibilities impinge'. Machinery of this kind may easily get out of order. But advocates for the system may Well claim that other methods of government get just as easily out of order. Even the British method has allowed of fierce conflicts about the relative rights of Crown and Parliament, as history clearly tells; our present arrangement works smoothly as an outcome of past friction. The British method has the advantage of adjustment unhindered by a rigid Written statement aiming to cover all contingencies. In the United States? on the contrary, the written Constitution was designed to furnish a complete manual of political practice, and the final appeal, short of an alteration to it by the express will of the nation, must be to the written word. As to what that may mean, the Supreme Court, is thechosen arbiter. Naturally, when in the exercise of this designated function the Court declares an Act of the Legislature unconstitutional, the Legislature is up in arms, and . seeks to whittle away the judiciary's powers.

The case for Congress, or rather that part of Congress resentful toward the judiciary's action— so far there has been found no legislative majority against the Court has strengthened in recent years. Along with the great and rapid increase in the population of the United States, and an attendant advance in economic development, there have arisen social problems of unprecedented magnitude and urgency. Active propaganda in the nation has pressed upon Congress a mats of social legislation, . much of it admirable in purpose, but some ■ of it. prejudicial to wide national and dictated by party-politi-

cal: considerations. The Court, in the;. performance of its functions, Jbas felt compelled to declare some of • this; legislation as unconstitutional and „ beyond the ; powers of Congress to epact, and in a number of instances the decision has been th§ considered opinion 'of but a bare majority of the nine judges. Hence the proposal jtihaU, in the exercise of this function, * its powers be curtailed by the requirement that seven out of ' the nine must concur in order to declare any legislative enactment—of Congress or State Legislature—unconstitutional. It cannot be reasonably claimed that the judiciary is suspect; its personnel is remarkable for high integrity and ability. But the wish to speed up certain measures of legislative advance, finding the Court in the way, has turned to animus against it. The authority of Congress to change the procedure of the Court is based, its critics assert, ,on a section of the Constitution which gives the Court " appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make." But the champions of the judges view this reservation in favour of Congress as applying only to its right (to make regulations governing appeals to the Court from the decisions of subsidiary tribunals in ordinary legal process between x individuals, the Court's original jurisdiction in all political matters being untouched by it. As to the decision being " in the hands of one man," to quote the Court's critics, these champions retort that Congress settles important business by. a bare majority of a quorum, and the President's veto is a one-man decision. Hitherto, at all events, the nation as a whole has been content to repose confidence in the Court, and when appeal is made to it, supposing Senator Borah's proposal is carried in Congress, popular judgment may refuse to have the Constitution altered.