I hope that you have re-read the Constitution of the United States in these past few weeks. Like the Bible, it ought to be read again and again.
For nearly twenty years there was no conflict between the congress and the Court. Then, in 1803, Congress passed a statute which the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it. He said: "It is but a decent respect due to the wisdom, the integrity and the patriotism of the Legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt."
But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and by State Legislatures in complete disregard of this original limitation, which I have just read.
In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy making body.
When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these Acts of Congress - and to approve or disapprove the public policy written into these laws.
This is not only my accusation. It is the accusation of distinguished Justices of the present Supreme Court. I have not the time to quote to you all the language used by dissenting Justices in many of these cases. But in the case holding the Railroad Retirement Act unconstitutional, Chief Justice Hughes said in a dissenting opinion that the majority opinion was "a departure from sound principles," and placed "an unwarranted limitation upon the commerce clause." And three other Justices agreed with him.
In the case holding the Triple A unconstitutional, Justice Stone said of the majority opinion that it was a "tortured construction of the Constitution." And two other Justices agreed with him.
In the case holding the New York Minimum Wage Law unconstitutional, Justice Stone said that the majority were actually reading into the Constitution their own "personal economic predilections," and that if the legislative power is not left free to choose the methods of solving the problems of poverty, subsistence and health of large numbers in the community, then "government is to be rendered impotent." And two other Justices agreed with him.
In the face of these dissenting opinions, there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.
The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third House of the Congress - a super-legislature, as one of the Justices called it - reading into the Constitution words and implications which are not there, and which were never intended to be there. We want a Supreme Court which will do justice under the Constitution - not over it. In our courts we want a government of laws and not of men.
I want, as all Americans want, an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written - that will refuse to amend the Constitution by the arbitrary exercise of judicial power - amendment. In other words, by judicial say-so.
Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.