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The Court Disposes

Covici Friede Publishers
1937


Chapter I
Judges Rule Us

Our government differs in one respect from other representative governments. The difference lies in the power wielded by our Supreme Court.

In the United States, as in other democracies, we elect the men who make our laws, and those in charge of administering them. We criticize as freely as we please. Their terms in office are limited. At regular intervals they must present themselves and their policies for approval or rejection. In the United States alone the decisions arrived at and the actions taken by the representatives of the people, no matter how thoroughly debated or widely approved, are never final. They may be overruled at any time by a majority of the Justices on the Supreme Court of the United States.

A worker harassed by poverty may wonder why the Court should decide that minimum wage legislation would curtail his liberty. The Constitution does not say so. A farmer who watches the prices on the Liverpool and Chicago market nervously, the value of his crop dependent on their fluctuations, may wonder why the Court should deice that agriculture is a local problem. The Constitution does not say so.

The manufacturer and the mine-owner often ask help of the federal government. A protective tariff enables them to charge more for their products than they could under conditions of free competition. The Constitution does not mention a protective tariff. Yet the Court has held the protective tariff constitutional. Here it finds manufacturing and mining properly of national concern.

But when the federal government seeks to protect the earnings of labor as well as of capital in manufacturing and mining, the Court says these are local matters, beyond the jurisdiction of Congress. The Constitution does not say so. Wheat as well as steel is produced on a world market. A protective tariff enables the steel-maker to levy on the consumer. A processing tax enables the what grower to levy on the consumer. The Supreme Court says the protective tariff is constitutional but the processing tax is unconstitutional. The Constitution mentions neither.

Constitutional law has a formidable sound. When it begins to touch our lives so deeply, we must all, in self-defense, become constitutional lawyers. This is a book by a layman for laymen. It is an attempt to understand government by judges, and the remedies proposed for misgovernment by judges. In our day the power of the Supreme Court has become so great, the views that dominate it so backward, as to jeopardize the security of our society by blocking adjustment to changing conditions.