Overruling the Supreme Court
Cohen, Prof. Morris R.
Overruling the Supreme Court A Plea for Abolishing the Judicial Veto Demolishing Arguments for Permitting the Supreme Court to Nullify Legislation, Morris Rafael Cohen, Outstanding Authority On...
...tain and Sea ¦¦igraasd our political life...
...Before we can do anything intelligent about this, we must get rid ef the current fallacies about the nature of the Constitution and the Supreme Court...
...In this particular case the majority of the Supreme Court professed to protect the sovereignty of the states against the Federal Government...
...Ludlow, the outcome of a feudal capitalism in the mining industry of Colorado, is the most revolting of these class wars with men, women and children shot down by hired mercenaries of the coal barons and a state government supinely permitting the authors of the bloody carnival to go unprose-euted and unhung...
...After the verdict against Hauptmann, a campaign was started to show that the convicted kidnapper and murderer was a victim of the Jews—a real hero...
...New York: Har-court...
...For no one knows tit*, reliable certainty haw the court* will rule on a Congressional enactment and the result is that instead or discussing issues on their merits, we alaraas them in terms af what a few elderly goattomsa aa the Supreme Coast will think wf their Constitutionality...
...And the notion that they Sii down certain principles from Which every decision of the Su-Sntoe Court is deduced with abaft** rigor and without regard to ** personal opinion of the judges, ssst be pronounced ridiculous by *• logic of modern science...
...The English people, however, discovered that such restraints were exercised always in the interests of a given class and therefore curbed that power to delay legislation...
...However, the num^-ber of proved murders and crimes committed by a race, the number of whose Immoral acts is'far greater than any other's, is demonstrated by accounts which fix ritual mtutdem at the" following times and places . . . titaal Murder Obsession \" A list of supposed ritual murders follows, beginning to the year 418 and ending with a "ritual murder" at Paterborn in Germany in 19S2...
...One has only to recall Justice McReynolds dissent in the Gold Case or the passionate outburst of Chief J us tie Chase and the minority in connection with the second Legal Tender Case...
...For the mistakes of Congress can be corrected more quickly, while to overcome the mistakes of the Supreme Court, as in the Income Tax Case of 18957 took 15 years...
...No one really bafiems that the human beings W» adapted the Constitution in the eighteenth century foresaw all oar modem conditions and made ssasjrtakable provision as to what Gssgress may or may not enact ¦to law...
...JS certainly not through the will * tie people and the express y* ef the Constitution that the to regulate interstate com-Sfffc menidea the power to pro-¦** lotteries but not to regulate warsBee, to prohibit the passage JM*** from some states to oth-|ge> td compel railroads to in-¦Pjsrtain safety appliances, but m to prohibit them from posting Jgii that they will discharge flF*»ao join trade unions...
...And the fiction that judges only pass on the law and not on the facts makes them satisfied to decide issues by listening to two lawyers argue for a few hours on submitted briefs, which is hardly an intelligent way of determining any great issue or the affairs of a nation...
...So we may likewise curb the power of our Courts to suspend Congressional legislation until the people go, through the elaborate process of a Constitutional Amendment...
...After three full years of the Hitler dictatorship, it is faced in its own country by an opposition randy to brave death in fighting it...
...v', As can be seen, Stretcher's "material" is not despised by the Nazis in the United States...
...the fallacy of non lessopr...
...At its close', the leaflet turns to address the Jews, who are supposedly perse-, curing the "Aryan" Hauptmann...
...At the beginning of 1986, the Third Reich's National Socialist and anti-semrtic organizations to the United States found their hero and martyr in the person of Bruno Richard Hauptmann, who was sentenced to death for the kidnapping and death of Col...
...Charles A. Lindbergh's son...
...U The author of the bedk is only fliirry/years old and we believe it is his first book...
...Liberty fa Exploit The trouble with Congress is not always its haste but more often its cumberous slowness...
...They march ia uniform through the street* of American cities...
...It cannot hold prolonged hearings...
...Defending Haaptmaaa The American National Socialist League made the Hauptmann case an excuse for raising the cry of "ritual murder...
...There is no trace of the smartaleck reading into these struggles of^parlor Bolshevik interpretations that are too often found in much of the literary output of university-trained men in the past ten years...
...At all meetings of the American Legion, Daughters of the American Revolution and World War Veterans, the members shall stand at salute, while the chaplain reads the Declaration of Independence, the first ten amendments to the Constitution of the United States and the Kellogg-Briand Peace Pact...
...There are many ways of overcoming this absurd obstacle to national legislation, hut we must first of all recognise that the power of the courts rests on the popular illusion that the judges are not giving us their own views but are stating what the Constitution explicitly provides...
...After these three years -ef the Hitler dictatorship the world aeaa that the number of Hitler's opponents ia the Third Raich has net dscriased, hat that, est the coa-irary, their power and militancy have been strengthened...
...ttt the main -fallacy is the dgiBuenf that since the Constitu-040 set Is leu itself to be the su-peme law of the land, therefore CsufTss* and the Executive mast tesip: the courts' interpretation of it, tHiifh they arb supposed to fci ui»id'wstf and not subordinate pswen...
...The most important point in the regulation code of these organizations is the article requiring, members, in case of arrest at any of these places, to deny any affiliation with the Order Services, and to pose as vacationers who have come to bathe and play and eat sauerkraut...
...Yellen is sympathetic with the underdog iti the struggle and be does not attempt to conceal it...
...In a leaflet, of which many thousand copse*' were circulated, the thousand-times repeated anti-semitic lie of ritual murder was used to ^how that Lindbergh's child had been slaughtered by Jews at their Purim festival in 1932...
...Actually, however, the Order Services are the "strong arm" detachments of the Nazi organizations, terrorizing dissentions and attacking anti-Hitlerites...
...Overruling the Supreme Court A Plea for Abolishing the Judicial Veto Demolishing Arguments for Permitting the Supreme Court to Nullify Legislation, Morris Rafael Cohen, Outstanding Authority On Legal Philosophy, Declares That Congress Is More Responsive to Popular Needs Than a Pew Elderly Gentlemen Answerable to No Earthly Authority—Holds Judges Write Their Social and Economic Prejudices into Law and More Often Protect the Liberty of Vested Interests to Exploit the Poor...
...For the court cannot institute investigation...
...It is a fine book, an excellent presentation of ten important labor struggles, a number of which shocked millions out of their complacency...
...By James Oneal American Labor Struggle...
...ta-aid...
...obey the Con-mtntioR, and how can they make Ispi si id treaties under it without isafrUteting its meaning...
...Ta is ia...
...Supreme Court, which may not hi a majority even - of all the jsdges that pass on the act...
...The following is a specimen from one of them: . The question aa to who murdered the Lindberg baby /till remains unanswered an* wil) remain so until a Justice that does not allow itself to-be influenced by hardened and malicious lawyers is found...
...Again direct and unmistakable violations of the Constitution such as the refusal by Congress for ten years to apportion representation according to the latest census, the Supreme Court has proved powerless...
...Naturally, most of their victims are German-Americans or Jews...
...Thus, they claim that it is a necessary part of oar Anglo-Saxon liberties, but Asfio- Saxon England has geter allowed this power to its ~SpBban*9 argument that it folds from the nature of written Agitations is obviously refuted 5SS constitutions of Prance and another countries where life, ljb-rf^ and property are as safe, if sjt safer, than they are here...
...A Constitution is adopted by *e people, who ought to Iraf was: they vote for, and this cannot exclude the people's representatives the Congress, and in ^Executive, mostly lawyers anyiiaQr' Wast the Constitution in fact lass.say is that it and the laws Sd treaaes of the United States Bade in pursuance of it should be the supreme law of the land...
...Provincial Leader of the Middle West: George Froboes...
...but the courts nay more attention to obsolete political theories and Marshall's dictum that the power to tax is the power to destroy, a,dictum however, which they disregarded, when they allowed...
...history shows unmistakably that SSHaioas on constitutional issues **ad oa the political, social and ¦isssuuc opinions of the judges...
...and tw argument that Federal Gov-sttstat is impossible without it, Mores the Swiss and other fedaststttes...
...We from Waste and McReynolds ftSB Holmes...
...That at both the opening and closing of all meetings of the American Legion, Daughters of the American Revolution and World War Veterans, all members present shall take an oath of allegiance to the Declaration of Independence, to the Constitution of the United States, with special reference to the Bill of Rights, and to the Kellogg-Briand Peace Pact...
...From the confusion into which the traditional doctrine has thrown us, there is no escape until ear people realise that the judges 'make our constitutional T»W...
...The rights and liberties of the people cannot really be protected by courts but only by the intelligence and vigilance of the voters...
...Any Sunday on Route 25A, one can see trueks and motor cars, filled with men m\ Nazi uniforms, traveling there, not to mention motorcycle squads and couriers importantly bustling to and fro...
...When the people after the Civil War adopted the 14th amendment to safeguard the rights of the Negroes, the latter got very little real protection from it, but it became instead aa instrument to prevent the format free states from protecting their white laborers by regulating hours, wages, and the like...
...The worst af all passible systems of government is that which divorces power from responsibility, sad that" i* what we de when we give the last word to judges who are not answerable to any earthly satkarity, I saSim — — i m ¦ sa I sa^ A snn,a^Mn,aaa imiwi prwrwjng m m eitomeifrs It is vain to say the people can amend the Constitution...
...Somehow no such road was found for the very good reason that it did not exist...
...three, the anthracite strike of 1902, the Lawrence textile strike of 1912, and bloody Ludlow, occurred in the era of corporation capital;, and three, the steel strike in 1919, the southern textile strikes of a few years ago and the San Fraamseo aetaaral strike of last year, belong to the post-war period of the greater capitalism linked with the big financial oligarchy...
...The police confiscated the greater part of these leaflets, but a new edition was immediately supplied from another source— the National Socialist Workers' Party of America...
...The story of these great battles of labor makes one fact vivid over the whole period, the anti-social and anarch policies of the masters of American capital...
...To this day, with few exceptions, they have never become reconciled to the organization of workers into unions...
...Aside from the official drilling grounds, there are others camouflaged as vacation camps add winter sports clubs...
...Those of us who lived in the period of that brutal massacre still have vivid memories of the grief and the shock that came to Socialists and union men when the news of the butchery flashed out of the Colorado hills...
...This sort of action possibly may ' not turn out so well for yon...
...Morris R. Cohen Alt power of the Supreme a* Court to declare acts of rongress unconstitutional does Jj2.ni practice, exist in any odter civilized country...
...The members wear the same rank Insignia and are under the same system of detachments...
...Moreover, the assumption that all restraints on Congressional action are good is thoughtless...
...On the other hand, Ludlow and several other struggles provided just that "chaos and confusion" which our modern romantic Utopians think is favorable to the "road to power...
...Provincial Leader of the East: jtudi Markmann...
...It "was a case where miners fled to the hills with rifles in hand and they were fully justified in this defense...
...A. Is Exposed...
...The people recalled the courts' decision, of 1895 when they empowered Conv gress to tax incomes from what* ever source derived...
...and the Pullman strike in 1894, fall into the individualist phase of American capitalism...
...The military organizations, both ¦ of Haegele's American National Labor Party and the Friends of New Germany, number about 16,-000 (end of 1935...
...Believers In collective organization and action in their own field they have painted attractive pictures of the "liberty" that must be the lot of the workman who could be induced to reject collective organization and action...
...of government" in the OnaSilHion must be left to Con-fies'sad the Executive, fcrforeteea Conditions Le* us get behind legalistic hair-ijiitaag and look at the question is the light of common sense and tat kgic that ia no respecter of SKJitronal dogmas...
...American Labor's Struggles During the Past Half Century First Volume by Samuel Yellen Tells Viuid Story of Labor Battles From the Railroad Strike of 1877 to the San Francisco General Strike of 1934—Class War and Its Bloody Toll Pictured...
...Now, tse members of Congress and the Bsseutive swear to...
...3.50...
...He took part in Hitler's "beer putch" fiasco in Munich in 1923, and with Hitler fled from the scene of the shooting...
...The methods used by the Order Services to cover up their forays are very reminiscent of the Storm Troop practices...
...One might as well say that it is a goad thing to tie us to stones so as to prevent as from running sad possibly breaking our necks...
...And who honestly y» that if the personnel of the to change tomorrow, Mirlriaai wanU be different...
...may want to consult them...
...The persecution of Catholics has caused the Catholic camp to rise against National Socialism...
...They do not provide the material and economic basis for that organized discipline, control and reasoning that are required for purposeful and intelligent action...
...The liberty which the asseSs have protected has mere' often been the liberty of powerful vested interests to exploit the peer who work fur a living—witness the minim ass wage esses, the child labor case, the enforcement of yellow Sag contracts and iniquitous injunctions, and the like...
...The organisation of his material and presentation of the subject are creditable to one of his age and students of labor and economic history will find it well worth possessing...
...Brace and Co...
...The| first .four struggles, the railroid strike of 1877, the Haymarket hfcl886, the Homestead strike of 1892...
...Such conditions provide swamps and ambushes, not roads...
...The result is that over six decades strikes have often been embittered by hysteria, savage reprisals, broken heads and a bloody toll of victims...
...is Psv" JaflHrw-weird to suppose Oat human passion...
...that they are m fact a continuous constitutional convention, and that this power should be either abolished or its results subjected to ratification or . rejection by < She people, without the cumbrous process of constitutional amendments...
...Regardin g the Guffey Decision The Supreme Court's .nullification of the Gruff ey Act should serve to call attention to the fact that ft is utterly hopeless to try to achieve any kind of social and industrial readjustment so long as a few elderly judges have the practically unlimited right of vetoing anything they do not like on the very vague ground of "unconstitutionality...
...Congress through heavy taxation' to drive out oleomargerine and state notes...
...Military Organizations Have Many Drilling Grounds and Camps Here Which Are Patterned After the Storm Troops—The Attempt to Save Hauptmann by Raising 1 the Cry of "Ritual Murder" The leadership of the Friends of New Germany now presents the following picture: ¦ .National Leader: Fritz Kuhn, former provincial leader of the Middle West...
...This is vouched for by a man who was a member of one of these Order Services...
...The Nasi movement abroad has caused the formation of powerful opposition movements...
...1^^** rests on a number of un-^j?*'*»B.mpti<>n...
...They have at their disposal numberless drilling grounds* exercise hails and meeting places...
...Provincial Leader of the West: Herman Schwinn...
...The power of the courts to declare lsglslstion unconstitutional, has in fact made ear law uacexy...
...Nazi Plot to Import Fascism Into the U.S...
...The anti-Hitler movement inside Germany aa well as the wash* atiasgss eases af Us aaal defeat...
...Is your feverish activity' against the accused Bruno Rich- • ard Hauptmann anything else than an attempt to vent your' desire for revenge against Germany, whose representative you t consider Hauptmann to be...
...Some of these struggles—the Homestead lockout, the Pullman strike, bloody Ludlow—reveal a heroism in the face of great odas tha,t will match anything of its kind in any of the old depotisms of Europe...
...gf'Jjnd a thousand other subtle ?™»ttions are points on which j^oformed men and even judges differ and it is unbeliever**1 the framers of the Con-in 1787 had settled these S^*** beyond a reasonable doubt, -^.therefore, a majority of the ^Wersts that there is no doubt, 2*4m piain meaning of the Con-b-jJ*0*1 »eaves no rational alter-J^*" *rir sense of humor as 3U*» of courtesy to their fellow 3F~y *^ to the coordinate pow-Xs l0e government is rather |^*» Personal Ratio ^^¦der now the practical argu-iKM** Oie judicial review...
...Actually Otero* have been very few acts .of Congress that have been felt to be unjust or unconstitutional by a majority of our people, and from which the Courts have saved us...
...advocated by students of Rollins College at a peace demonstration held here recently...
...Thus, when to* people adopted the eleventh amendment prohibiting a foreign citizen from suing a state, it was practically nullified by Marshall permitting such suits against the officers of the state...
...the Supreme-Court itself s^sfjBs it When it admits that to ejwnng of the term "Repeb-i 3eu> twr...
...After reciting the disregard of these groups for the constitutional guarantees of civil liberties, the students adopted toe following program "in order to counteract this subversive tendency on the part of professional patriots": "1...
...By Samuel Yellen...
...In * any case, it is safer to be subject to accidental majorities of a Congress that is in touch with and responsive to popular needs than to be at the mercy of an accidental and very small majority of the Supreme Court...
...Moreover, if an individual state tried to pass such an act, the courts would probably declare it unconstitutional as interfering with the liberty of contract...
...The life of the judge does not permit him to be fully cognisant of all that is going on in our modern complicated civilisation...
...In Bavaria, in 1919,' he was a member of the notorious c o.u n t * r-rewolutionary Epp Volunteer Corns, later he joined the similar Obertand Corps...
...Concerning the ritual murder which, a» some Aryan papers have «tnpha» sized has really occurred, no investigation has yet been sat under way...
...Eighteen illustrations illuminate the text and the references to sources consulted by the author - _ will be helpful to others who...
...Not only is that process very cumbrous, requiring three quarters of the state* rather than a majority of the people, but no one knows what-the courts will make of the Amendment when it is passed...
...they can be seen at steamship piers where German ships does, greeting or saying farewell to Nasi leaders...
...The murder of 3,000 Socialists and Communists has not brought the opposition work in Germany tea4 standstill and has net won the Social Democratic workers to the Hitler regime...
...And say must they disregard their esa conscientious reading of the ^Destitution because a different junior, is held by a majority of the...
...Restraints aa Congress Even more important is the fact that oar courts are so constituted that then* deliberation cannot possibly be based on adequate knowledge...
...The words from whatever source derived are as plain as human words can be...
...IN , this well-written history - of class struggles, the author has selected ten over a period of nearly six decades, beginning with the great railroad strike in 1877, and concluding with the San Francisco general strike in 1934...
...The author is the son of Sidney Yellen, former member of the Socialist Party in Ohio who resigned from the party when it began to contract united fronts with the Communist Party...
...The coal producing states explicitly urged this upon the Supreme Court...
...The units of the so-called Order Service are organised on the pattern of the Storm Troops and Schuts-Staffel...
...Individuals are ordered to assume complete responsibility for any crime or misdemeanor committed in carrying out orders, and under no circumstances to implicate or compromise the organization...
...i>By Prof...
...The fact however is, that the coal industry cannot be put on a sound basis by the action of any state...
...Uniforms, military music, "military evenings" and barked commands play the same part among tre American Nazis as -in the Reich...
...Nevertheless, the courts do not allow the taxing of incomes from child labor and other sources, thus creating a privileged class free from taxation...
...IB *** been defended as a neces-M>peai from the passion and S*_ Congress to the calm and jjrjr*1* Jodgment of the Courts...
...differed from Marshall...
...For example, the Friends of New Germany own Camp Siegfried at Yaphank, Long Island, which* during the Great War was a training camp for U. & army recruits...
...Those sffrne for its* necessity _jy op old actions and ignore facts...
...The ostensible purpose of the Order Services is to serve as ushers and attendants at meetings, to eject hecklers and prevent disorder...
...Curbing the Courts Indeed, this argument for the necessity of restraints on the people's representatives is precisely the argument that used to be advanced in England for the House of Lords...
...That would haraly be good when oar noose ia on fire or someone is to be rescued from danger...
...Legalistic Hairsplitting -The notion that the court meat stcessarily have the exclusive and Inai power to declare what the CansutBuoB mesas is neither his-Mcally nor logically tenable...
...New leaflets concerning toe "ritual murder" were circulated...
...Usually a piece of land is rented from a farmer, or a hotel or camp, with J woods, leap and fields, it losisii for several summers...
...Roll ins College Students Offer Loyalty Oaths For Professional Patriots WINTER PARK, Fla.—Legislation requiring loyalty oaths from Legionnaires, Daughters of the American Revolution and World War Veterans was...
...After three full years of the Hitler dictatorship, the Third Reich is struggling desperately to rid itself of international political isolation...
...To insure this "liberty" for the wage worker, the private thug, the spy and the provocateur have been too often employed to enforce it...
...A Typical Leader Fritz Kuhn has the typical past of a Nazi leader...
...A Weird Assumption J^f recently this power to reg-WT^erstato commerce was held ? awiode the power to establish U^T™ °f workmen's compensa-Sf-sut not a • pension system...
...On the other hand, Mr...
Vol. 19 • May 1936 • No. 22
