◆ SpookStack

z, *. a * + . at aes _ Le . y 7 * ‘ . oy aw ¢ The question, ~My it a constitution or is ite a sham?” _ : ° was asked at the Conference of State Chief Justices in - @ report approved last month by a vote of 36 to 8. It severely criticized recent decisions of the Supreme Court of the United States. :~ a ere When the Chief Justices of three quarters of the. States of the Union declare that the present Supreme Court is overstepping its bounds, such a pronounce- a ee «Apert Sore Foret _OR IS ITA SHAM?" _ Ss f ment is well worth the attention of the American people. . Because of the Supreme Court’s ruling last week dis- regarding the Tenth Amendment to the Constitution, | added significance attaches to the following excerpts from the conclusions reached by the 36 State Chief Justices —David Lawrence, Editor) . ~. En We believe that in the fields with which we are con- cerned, and as to which we feel entitled to speak, the Supreme Court too often has tended to adopt the Tole of_policy-maker without proper judicial restraint. We - feel this is particularly the case in both of the great fields we have discussed-—-namely, the extent and ex- — tension of the federal power, and the supervision of State action by the Supreme Court by virtue of the — Fourteenth Amendment. In the: light of the immense power of the Supreme Court and its practical non- reviewability in most instances no more important obligation rests upon it, in our view, than that of careful moderation in the exercise of its policy- making role. a We are not alone in our view that the Court, in many © cases arising under the Fourteenth Amendment, has assumed what seem to us primarily legislative powers. See Judge Learned Hand on the Bill of Rights. We do not believe that either the framers of the original Constitution or the possibly somewhat less gifted drafts- men of the Fourteenth Amendment ever contemplated that the Supreme Court would, or should, have the al- most unlimited policy-making powers which it now exercises. It is strange, indeed, to reflect that under a constitution which provides for a system of checks and balances and of distribution of power between national and State governments one branch of one government —the Supreme Court—should attain the immense, and in many respects, dominant, Power which it now wields... 0 25: It has long been an American boast that we have ‘é government of laws and not of men. We believe that any study of recent decisions of the Supreme Court will raise at least considerable doubt as to the validity of that boast. . ee ee ese ro toate : . er ot ee - We further find thet | the Court does not accord final- | ity to its own determinations of constitutional ques- tions, or for that matter of others. We concede that 2° slavish adherence to sfare decisis could at times have unfortunate consequences; but it seems strange that under a constitutional doctrine which requires all others to recognize the Supreme Court's rulings on constitutional questions as binding adjudications of the meaning and application of the Constitution, the! Court itself has so frequently overturned its own de- cisions thereon, after the lapse of periods varying from one year to seventy-five, or even ninety-five years... The Constitution expressly sets up its own proce- dures for amendment, slow or cumbersome though they may be. If reasonable certainty and stability do not attach to a written constitution, is it a constitution or is it a sham? _ These frequent differences and occasional over- rulings of prior decisions in constitutional cases cause us grave concern as to whether individual views as to what is wise or desirable do not unconsciously over- ride a more dispassionate consideration of what is or ig not constitutionally warranted. We believe that the latter is the correct approach, and we have no doubt that every member of the Supreme Court intends to adhere te that approach, and believes that he does sa. But te err is human, and even the Supreme Court is not divine. .. ; It is our earnest hope which we respectfully express, that that great Court exercise to the full its power of judicial self-restraint by adhering firmly to its tremendous, strictly judicial powers and by eschewing, so far as possible, the exercise of essentially legislative powers when it is called upon to decide questions involving the validity of State action, whether it deems such action wise or unwise, The value of our Jocal matters which it embodies, should be _ kept peal in mind, as we believe it was by those who ramed our Constitution. ... — Surely, it is no less incumbent upon the Supreme Court, on its part, to be equally restrained and to be as sure as is humanly possible that it is adhering to the fundamentals of the Constitution with regard to the distribution of powers and the separation of pow- .ers, and with regard to the limitations of judicial power which are implicit in such separation and distribution, and that it is not merely giving effect to what it may deem desirable. system of federalism, and of local self-government in . oe ™ u. s. NEWS aw WORLD REPO REPORT s SEPTEMBER 19, 1938=-