Down in Texas, 1n 1934, there were girls working in pecan factories, getting less than four cents an hour. Some workers in a cigar factory struck for the right of collective bargaining.

Most of these girls were Mexican-Americans. An owner of a pecan factory testified at a Labor Relations Board hearing that ten cents a day was high enough wage for any "Mexican." The cigar factory owner said any attempt to force him to deal with the employees was "unconstitutional."

I thought people ought to get more than four cents an hour, and people should be protected in their right to bargain together. This was before I was in Congress. But not many months after the employers made their assertions, they were held morally and legally right by the High Court. Their right to work girls at four cents an hour or less was affirmed by the courts, as well as their right to prevent workers from enforcing collective bargaining, or even mediating their troubles.

A ruling of this kind was just not sensible from either the business or labor viewpoint. It seemed ot point straight to anarchy. It is, however, only one example. For many decisions affect the daily life of millions of people, decisions which deprive them of the opportunity of using their government for their ordinary protection.

The creating of "voids" and No Man's Lands by the Court is a hard story to tell. The legalist rushes on the scene and ropes you with more words.

But the point I am trying to put over is simple: government is supposed to light the way and prevent chaos. When the courts prevent the Government from executing laws protecting its own citizens, the responsibility of anarchy and chaos lies with the courts.

That is the reason the citizen must study his own Constitution. I have met people who think the Constitution is a big, long document; some even think it is like a thick law book. The truth is, anybody can read it and understand it who has an elementary education.

That makes me think of one of my Yankee brothers-in-law, who is educated to a Queen's taste, and whom I see once every few months. We like each other. But he is a mining engineer, still has faith in the Great Engineer, Mr. Hoover, and has worked several years in London.

He visited me in Washington not so long ago, and across his face I saw written in painful lines, the Supreme Court of the United States. Being in good humor, I eased the subject around the Court, so I could make a speech and so he let loose.

"The Supreme Court," he pondered, "is the last resort, the protector and bulwark of our liberties. . . ."

"Yes," I said respectfully.

". . . And we should respect the courts as they do in England."

I never got such a break in my life. I said, "The courts in England have no power to declare an act of Parliament void. . . ."

This seemed natural to him, and he registered neither surprise nor horror.

Then I said: "The American Supreme Court has no authority in the Constituion to declare an act of Congress unconstitutional."

He looked at me as though I had made a facetious remark which was not funny at all to him. Since he had always lectured me as a boy, I delivered one to him. He listened attentively, for he is a good fellow. I started something like this:

"Louis, the Constitution is a very simple document. It has a little over four thousand words. Millions of words—and lately billions of words—have complicated the discussion, but this does not necessarily make the Constitution complicated.

"It is not a series of Thou Shalt Nots, like the Ten Commandments. It is a charter to authorize the government to work. And while you admire English judges, let me remind you that their job is to enforce the will of the peole through their representatives, the Parliament. As a result, the uncertainty, the instability of our American courts is thus eliminated. In England, of those indicted for high crimes such as robbery and murder, eighty percent are convicted; in the United States, only 11.4 percent.

"The English judges attend to their business."

So I continued my talk, which was about as follows:

The preamble to the Consitution plainly sets out that its purpose is to "promote" the general welfare of the people. Then, in order to make this perfectly clear, it is stated that "Congress shall have power . . . to provide for . . . the general welfare." That is in Article I, Section 8, Clause 1. A lot of lawyers will tell you that these words don't mean what they say. But all you and I need to do is read them.

In addition, the Constitution says that Congress can make all laws necessary for the carrying out of these powers. That is in the same Article and Section, but is in Clause 18.

There are two schools of thought about the Supreme Court's power to declare acts of Congress unconstitutional. Some say that our forefathers intended that the Supreme Court should have the power to declare national laws unconstitutional, and others say not. But the actual facts are that not only was "the power to declare an act unconstitutional" not even mentioned at the Constitutional Convention, but the proposition of giving the Supreme Court even limited power of veto was repeatedly denounced. The Court at present exercises an unlimited and retroactive veto, termed "declaring an act unconstitutional." This unlimited veto constitutes a refusal by the Court to enforce the acts of Congress.

It seems reasonable to believe that if the writers of the Constitution had wished the Court to have power, they would have put it there.

But whatever may be our argument, nowhere in the Constitution does it say that the Supreme Court has the power to declare Acts of Congress void and unconstitutional.

The Constitution says (read it yourself in Article I, Section 7) that after a bill has passed both houses it shall be presented to the President "before it becomes law."

When he signs, it becomes law.

The veto power is given to the President in the same Article I, Section 7, meaning if the President does not sign it, but sends it back with a veto, it does not become a law.

That is a check on the power of Congress.

Yet, if Congress cares to do so, it may pass the act over the President's veto. It then becomes a law without his signature.

That is a balance against the power of the President.

But when a case comes before the Supreme Court, it exercises the power to say the law is no law, that it is "unconstitutional." This means that, though the Constitution say it is law since it has been signed by the President, has passed through the two houses of Congress, it never was a law, but was void in the first place, just as if Congress had never passed it and the President had never signed it.

That is a check forever on both Congress and the President, who are the representatives of the people—and with no balance.

Everyone knows the functions of our branches of Government—the court's is judicial, the legislature's is legislative. The powers of Congress are written in the Constitution in very broad terms, and specific problems are not mentioned. Flying machines, radios, modern transportation, modern sanitary problems, and a host of other things are not mentioned. The simple reason is that such things did not then exist. The frame work of the Constitution certainly does not prohibit dealing with problems as they accrue.

Also, there are no prohibitions against making legislation for economic and social ends, though the Supreme Court has frequently declared such legislation unconstitutional.

The Constitution does have specific prohibitions against the violation of civil and religious liberties. These are largely contained in the Bill of Rights, which, as we already know, was tied on to the end of the Constitution.

No one has ever criticised the Court for protecting the liberties set out in the Constitution. Everyone expects it to do so, and wants it to do so.

In this connection, we must understand that the judicial power for a long time was understood to be and should be only to decide cases brought before it, and not to determine matters of policy or judgment adopted by the people through their representatives.

We must realize that the Supreme Court, although provided for in the Constitution, was set in operation, and is kept in operation, entirely by Congress. Its life is, therefore, dependent on Congress. One time it did not meet for a whole year, because Congress would not allow it to do so.

Also, the appellate jurisdiction of the Supreme Court is entirely determined by Congress.

This means that Congress can decide what cases shall be brought before the Supreme Court. Once, shortly after the Civil War, Congress passed a law taking a case away from the Supreme Court by not allowing the appeal. The Supreme Court held this was perfectly proper, and that they had to respect the will of Congress.

That was about the extent of the speech to my brother-in-law. I loaded him down with more printed speeches, and a copy of the Constitution. I offered him a prize of one million dollars if he would show me where it says the Supreme Court can declare an act of Congress unconstitutional. I have not heard from him. Maybe I did some good.

But while we are on the subject, let us finish it out. It will only take five or six more minutes. Below is an excerpt from Article III, Section 2, of the Constitution. Please not that for distinction the original jurisdiction of the Court (that is, cases that are started in the Supreme Court) is shown in ordinary type and the appellate jurisdiction (that is, cases brought up from the lower courts), is shown in italics:

"In all cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases . . . the Supreme Court shall have appellate jurisdiction, both as to law and to fact, with such exceptions and under such regulations as the Congress shall make."

This short provision is as self-explanatory and plain as if it were written by the average man in ordinary business.

As we all know, the practice of "declaring acts unconstitutional" was a political trick of Chief Justice John Marshall. It was not then accepted by public opinion, by the President, or by Congress. The power was not exercised concerning national legislation at all after that until the case of Dred Scott, fifty-four years later.

The doctrine, then, of "unconstitutionality" and the power to declare it, was gradually, built up on public opinion—and misunderstanding—alone, because IT IS NOT IN THE CONSTITUTION.

Then how can it be removed, or modified?

In the same way—by public opinion, vigorously expressed.

It is quite useless merely to say the judges have no such power, for as a matter of fact they still exercise it. Just how they exercise their power is what we want to know.

Every American is willing to have, and wants to have, the Supreme Court as a final tribunal against the arbitrary use either of government or private power, for the protection of individuals. On the score of Government oppression, the Court's duty is to protect a citizen in his right of fair trial, free speech, the right to get out of jail if falsely imprisoned, and so on.

When laws protecting citizens in health, hours of labor, safety, unemployment insurance and Social Security are declared unconstitutional, the court often reverses the purpose of the Constitution. In such situations the Court strikes down the Government's effort to protect the individual citizen from crushing exploitation by blind economic forces and selfish men with great money power. When that happens, the government simply does not work.

It is not the business of the High Court to decide whether an act is wise or not. If it had been the intention of the framers of the Constitution to give them the power to pass on the wisdom of acts, and on policies, undoubtedly they would have been made responsible to the people by election. But no such provision was made.

Usually people hear of a "politician" making speeches; but the judges do this also. These speeches, although in mysterious words, are just as partisan as speeches made by other politicians. In fact, they make these speeches from the High Bench. Sometimes a speech is made in which it is pretended that individual rights are being protected, but the pretense is absurdly thin. When this is done the Court does not use the plain terms of the Constitution, but usually digs up words that no one understands.

The Guffey Coal Act, for instance, violated no liberty. It was a case where a father owned stock in a business controlled by his son. The son wanted to obey the law, or at least said so in court; no one was asking for protection of "States' Rights." In fact, States filed briefs favoring the law and asked the law be declared valid and constitutional.

Yet the Court, pretending to be protecting the rights of coal miners to work, and the rights of states to legislate, knocked the Act out.

The tendency of such decisions has been toward anarchy, and the opposite of orderly government. It has been detrimental not only to labor, but to business as well! Some future historian, free of the taboos of today, will look on this in amazement as an example of the curious perversions of logic of the Middle Ages.

Similarly, in the Agricultural Adjustment case, no States were complaining, no farmers were asking for anything, and no citizens were losing their liberties. But Mr. Justice Roberts made a speech from the bench, said the Government was encroaching on the rights of the States, and "coercing" the farmers.

It must be understood that the destruction of a law directly affects the lives of millions, and makes other legislation doubtful. The tendency is to break down the power of the people to make laws through their own representatives. It breaks down the ability of a government to adjust its own troubles.

The pet theories, opinions, and prejudices of the judges have no place in an opinion. But the judges, by including this improper matter in their opinions, have made the Constitution in many respects unworkable. If the process continues unchecked, the Constitution will become a useless document. Revolutions grow out of governmental neglect and lack of direct representative government.

John Marshall, who played the first trick of declaring an act unconstitutional, had sense enough to see the danger of the imposition of pet theories by judges. He said, in Gibbons vs. Ogden:

"Powerful and ingenious minds, taking as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction, into the narrowest possible compass, and that the original powers of the states are retained, if any possible construction will retain them, may, by a course of well-digested, but refined metaphysical reasoning, founded on these premises, explain away the Constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use."

Other justices have seen this with equal clearness. The late Mr. Justice Holmes understood it clearly. Some of the justices understand it today.

The Court has always lost its prestige as a judicial body when it has attempted to dictate or formulate national policy, which is none of its business.

The Court lost prestige for going beyond its powers in Jefferson's time; again in the wholly unnecessary Dret Scott decision, and it has lost prestige today. The reason is that all the Court can do is slow down processes, obstruct the laws, or keep the Government from compromising and adjusting the problems of its own citizens.

If we assume the Court has the power to declare acts of Congress unconstitutional, it would appear that the power was given to it to protect human rights, and certainly not for the purpose of preventing the people from maintaining human rights.

Declaring a law unconstitutional is only one of the ways of paralyzing the Government. A lengthy discussion of these methods properly belongs in a real treatise—but we can understand the general idea easily enough. For instance, the Court can grudgingly admit the constitutionality of the law, but violently attack it in an opinion.

The Gold Devaluation case is an example. The Court did not expressly hold it unconstitutional, but said it ought to be, and made war on the legislation in a fashion which was not required, or properly a part of the decision. The judges thundered about moral obligtations; Mr. Justice McReynolds in a dissenting opinion said the law was unconstitutional, that the Constitution was dead—that it existed no more.

The effect was to confuse the Government's financial policy, because no one knew what the Court would do next. The decision was 5 to 4, and with a one-vote change, anything might have happened.

I think we should study the record of the Court in the matter of civil liberties. It has never declared unconstitutional an act of Congress infringing on liberty of speech or press.

The Sedition Acts which nearly destroyed the Government just as Jefferson was inaugurated were never declared unconstitutional by the Supreme Court, and men stayed in Federal jail for years. When Jefferson, the new President, came in, he, not the Court, declared the Act unconstitutional. He said:

"The law is unconstitutional, and I shall not enforce it."

During the World War, every challenged sedition or espionage act was declared valid and constitutional. After the war, the State syndicalism acts, allegedly preventing unpatriotic acts by "radicals," but really preventing liberty of speech and press, were held constitutional.

In recent years five of the justices have apparently recovered from much of the war hysteria that did the damage. This is indicated by the case of the young Negro, Angelo Herndon, freed from a conviction under an unjust state law of Georgia, which violated the right of freedom of speech. Here Mr. Justice Roberts sided with the majority, and wrote the opinion. There is also the De Jonge case of Washington.

Concerning both these cases, however, two things can be said. Neither opinion is direct or strong, and both can be used against any future defendant if the Court wishes; the cases are so written as to permit that without an admitted change of viewpoint. The other is, the Court merely performed a routine duty.

Plain duty performed is often praised as some divine and kindly deed. This praise is given by many who ought to know better, and who set the High Court up as a fetish.