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g | U.S.News & World Report ° | --«- “People must make final judgments” on Court’s role purpose of giving effect to the will of the judge; always for the purpose of gine effect to the will of the legisla- - tare: or, in other words, to the will of the bow.” Mr. Justice Frankfurter recenth wrate: “The Constitution is uot the formulation of the merely personal views of the members of this Court... .” Mr. Chief Justice Haghes said: “Extraordinary conditions du not create or enkarge con- stitutional power.” The great constitutional authority, Judge Thomas N. Coo- ley wrote: “What a court is to do, therefore, is te declare the Jaw as written, leaving it to the people themselves fo make such changes as new circumstances may require, The mean- ing of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.” Similar views often were expressed by the Court in the past. So, in 1889, it said of the object of constitutional interpreta- tion that it “is to give effect to the intent of its framers, and of the people adopting it.” In 1905, the Court declared: “The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. ... Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still exchided,” In 1936, Mr. Chief Justice Hughes wrote: “If the people desire to give Congress the power to regus. ——~"laté industries within the State, and the relations of em- ployers and employes in those industrics, they are at liberty to declare their will in the appropriate manner, but it is not for the Court to amend the Constitution by judicial decision.” These statements are expressive of the traditional concept of the rule governing Court construction of constitutional provisions, held by an earlier Court and perhaps still shared by some of its present members. This represents the doctrine of judicial restraint. Theory of a ‘Political’! Court In opposition are those on the Court, with disciples notably among the writers and professors of law, dedicated to judi- cia] activism. The theme of this group has been succinctly stated by one of the professors. It is this, “The Court cannot escape politics; therefore, let it use its political power for wholesome social purposes.” They seize upon the statement of Hughes, in his 1907 Elmira speech, that the Constitution is what the judges say it is, Can it be concluded from this that the Constitution may be made, by judicial fiat, to mean whatever the Justices want it to mean? That was not the import of the Hughes statement or speech nor does it comport with his judicial writings. It is the position of the judicial activists that the Court is free to interpret the Constitution in the light of current philosophies, psychology and political and social doctrines regardless of the original intent of its framers and adopters. One of the Justices of this group has written, “Stare decisis,”"—that is, the rule of fol- lowing precedent in the decision of cases—“must give way before the dynamic components of history.” The dean of a noted Jaw school has written: “It will not do to say that, in construing these provisions of the Constitution, the Court should be limited to the » meaning the terms had when they were written... . The scope and meaning of the provisions of the Bill of Rights ALS. NEWS & WORLD REPORT, Dec. 12, 1958 evolve, dike the meaning of other constitutional terms, and other terms inlaw. Vhey are stages in the organic process by which ideas Hourish or Leqguish as new generations find for themselves new and valid meanings for the old words.” The date Professor Thomas Reed Powell wrote of the differ- ing approach to the Lue of the bea schools of thought, that the difference between Ulem is in their conceptions of the proper scape of the judicial function, the one haya a beau ing for getting the result in the particular case as if at were a legislative choice, but the other, an the contrary, having: a leaning to respect the outlines and many of the details of an established legal system. - Gentlemen. in our consideration of the role of the courts in tomorrew’s America we bave noted, as suggested at the anitset, the place of our coustitutional beginnings and) our present position, observed trends which brought us there, and gained a glimpse of the destiny to which their continua- tion may bring us. Shall the trends be continued, retarded or arrested? Shall it be held again, as the Court once said, that “The Constitution, in all its provisions, looks to an indestruc- tible union of indestructible States”? __Threat to “Personal Rights” You, the American people, must make the final judgments on these matters. As you do, mark well what the philosophy of the judicial activists may portend for the liberties of the people and our free institutions. HM the Court is to have wide —atitude tp-detenmining-eenstitationgy) meating iid, as some suggest, may find it elsewhere than in the language of the Constitution itself or may ascribe a new meaning thereto not intended by the framers; if, as urged, the Court is to exert a political power to achieve the social ends it deems expedient, what will remain of constitutional restraints on Goverument and constitutional guarantees of personal rights and liberties? Shall not these be left, then, to the whim and caprice or, at best, the good intentions of men, be they judges, legislators or administrators of the law? It was not for this that our fore- fathers fought nor for this they framed the Constitution and its Bill of Rights. One of the chief responsibilities of citizenship, essential to survival of a government by the people, is to become informed about government, to arrive at conclusions, form convictions, and then make a worthy contribution to the great body of public opinion which ultimately makes itself felt in the halls of Government. So, if perchayge there be courts with ears to the ground, even there may the voice of an informed people be heard. Thus may the issues here considered be resolved and thus may government and constitutional rights in the future be what you, the people, want. Let me conchule with a repetition. Hf the courts are to con- tinue performing their greatest role of preservers of the people's liberty and freedom, they must have the support of an informed and understanding public opinion. As Charles S. Rhyne, immediate past president of the American Bar Asso- ciation, has said: “Our system of Boyerument is no stronger than our courts, and our courts are no stronger than the strength of the public's confidence in them.” There is no greater claim on citizenship. Gentlemen, an awesome obliga- tion is yours. The role of the courts in tomorrow's America, and the future of America itself depend on what you and Americans everywhere do about it. . Foregoing is full text of an address by Justice Dethmers before the Congress of American Industry in New York City, Dec. 3, 1958. 93 - ce renee