The Debate Begins: The Supreme Court vs Congress

Dorothy Thompson

Great Falls Tribune/February 21, 1937

Senator Burton K. Wheeler of Montana has introduced into the Senate a version of the Madison amendment, so named because something like it was once sponsored by James Madison, said to be the actual author of the Constitution. The issue which Senator Wheeler’s amendment raises was warmly debated in Congress in 1802, when exactly the same objections to the Supreme Court’s final control over legislation were raised that have been made during the last four years, and the same defense was urged.

Senator Wheeler’s amendment has much merit, and the provision that a congressional election must ensue with the invalidated congressional law as a popular issue, before Congress can override the measure by a two-thirds vote, is evidence of the senator’s scrupulous belief in the will of the people.

The objection which will be raised against it by possibly a majority in the present Congress will be that it is too slow and will repeatedly slow up legislative action. This column has no great objection to slowness, being convinced, in the first place, that the possibilities of legislation as a real aid to the economic well-being of the people are very limited indeed, and that one arrangement, voluntarily arrived at by negotiation between workers and employers in a given industry, is worth a pile of laws. That, however, is a personal opinion.

Politically speaking, anything which will accelerate speed will alleviate tension, and the alleviation of tension is desirable. It will be the sheerest and most criminal blindness on the part of the opposition to the president’s program to refuse to admit any constitutional crisis at all. This nation is unquestionably moving toward national consolidation, and the very forces which have been most violently opposing national political consolidation have been those which have contributed most to its necessity, namely the great industrial and banking interests.

There is justice in the charge that they champion states’ rights only because the application of that doctrine puts them outside the operations of regulatory law. That was demonstrated with startling clarity when the New York state minimum wage law for women was declared unconstitutional by the United States Supreme Court.

This column regrets the whole tendency toward the control and regulation of economic life by the state, but is clearly aware that working men and women are taking refuge in the state only because they prefer control by an instrument in which, at least, they have votes to complete economic disfranchisement in the activities most important to their lives—namely their work.

“If the question is finally posed as to whether a man prefers to be dictated to by a government which he elects or dictated to by an industrial or financial oligarchy in which he has nothing whatever to say, there is no question what—in this period of history—his answer will be. He will choose the government.”

That statement was made in a private gathering last week, not by a new dealer but by an extremely important Republican. The statement is true, and anyone who bases his rebellion against what has happened in Washington upon a defense of the status quo is standing upon extremely dangerous ground, if at the same time he professes to believe in democracy.

The people want to have something to say about the economic conditions under which they live; that, we think, was proved by the last election. A believer in democracy must work to see that the means of constitutional legislation are given them, always bearing in mind that democracy is not only threatened by the extension of executive powers but is also threatened when a dynamic social movement confronts a stone wall of unyielding legal dicta. Either there must be channels open into which the public will can flow or public feeling will burst the banks and, despairing of legal means, resort to direct, illegal and violent ones.

What form of alleviation of the crisis is most desirable is a question for the most careful thought. Mr. Lippmann has presented, in the last days, arguments against allowing Congress under any circumstances to override judicial decisions. He thus presented, in advance, the arguments against Senator Wheeler s proposed way out. One argument for Senator Wheeler’s proposal rests in the theory—which is, indeed, Mr. Lippmann’s own—that it will be almost impossible to frame a constitutional amendment which will cover the case.

But I believe a satisfactory amendment could be framed. Certainly it is defeatism to admit that anything of the kind is beyond the capacity of human intelligence and good will, if the objective is kept clearly in mind.

I, certainly, should like to hear expert opinions on the merits or demerits of the proposals advanced by Dean Clark, the liberal dean of the Yale Law School. Dean Clark thinks that the dilemma could be solved by a group of three amendments. One which would define commerce to include the manufacture, production and distribution of articles designed for interstate commerce; one to define the due process of law clause to mean what it certainly originally was intended to mean, restriction to matters of procedure and fair trial. And, finally, a very necessary amendment to extend to the states the prohibition of restrictions on freedom of speech and religion—the provisions of the First Amendment—which our more careless liberals constantly forget have been enforced on the states by the Supreme Court under this same due process clause they so despise.

As to the theory that it will take years and years to get through any amendment—with the child labor amendment repeatedly cited as proof—that will depend on the awareness of the people of necessity and the willingness of all patriots to forget party alignments, evidences of which are already gratifyingly showing themselves. The child labor amendment is not analagous to this situation. But that is another column.

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