ter, apparently for the purpose of added centralization of power at Washington. If the plan were adopted, the opinions of three justices voting against six would be the law of the land. Six justices might vote to sustain the Constitution, yet the Constitution would go down. The plan would introduce minority rule, and there is nothing which is more hateful in a court or elsewhere.

The argument in favor of the plan involves a distorted view of the Constitution and of the function of the Supreme Court in maintaining it. Under the Borah plan Congress might act by a majority of one in each branch and the Supreme Court stand two to one for the Constitution, yet the Constitution would be a dead letter. If you will allow your imaginations a moment's play, you will perceive some of the many anomalies which would result.

It is argued that Congress is a co-ordinate branch of the Government, is bound by the Constitution, its members are sworn to regard it, and hence a presumption of constitutionality arises. We know that too often this is a legal fiction in the teeth of the facts. We know, too, that this presumption of constitutionality is given by the courts greater weight than the facts justify. But when, with all respect to the action of a co-ordinate branch, the branch of the Government having the final duty to decide under and enforce the Constitution, arrives, by a majority vote, at the conclusion, clear to the consciences and intellects of the majority of the justices, that the Constitution has been violated, there can be no answer except to enter judgment for the Constitution, and against Congress. To permit a minority to rule in the Supreme Court only in cases in which the citizen claims rights under the Constitution, and to permit the majority to rule in all other cases, is to sink the Constitution to the lowest category, from which it can never again arise to its present high estate.

But it is argued, the Supreme Court has struck down acts of Congress by a five-to-four vote, and this fact has lessened respect for the Court and for the law. In view of exaggerations and misstatements, let us examine the facts. There have

been less than fifty acts of Congress declared unconstitutional in nearly 140 years. There have been only seventeen five-to-four decisions (or majority of one decisions) on acts of Congress. There have been in the history of the Court only nine cases in which the Constitution was sustained by a majority of one, and eight cases in which the aegis of the Constitution was denied by a vote of one. There have been dissents in other cases, but in the main the Court has been unanimous. And if you were to examine today the five-to-four decisions upholding the Constitution, I believe you would wonder at the dissents in most of the cases, for the history of the Supreme Court is the history of our Nation, and the Supreme Court has been obliged to decide cases involving questions enshrouded in partisan bias and popular clamor. What lawyer would say today that the five justices of the Supreme Court were not right in ex parte Garland1 when, over the dissent of four of their brethren, they struck down as ex post facto and void an act of Congress which sought to require, as a condition precedent to practise at the bar of the Supreme Court, an oath that the attorney had never taken up arms against the Union.

We know that the Supreme Court of the United States only decides actual cases. In cases in which the right claimed arises out of the Constitution, the Supreme Law of the Land, the method of decision must be the same as in other cases, or in effect we shall have added a new and startling proviso to Article 6: This Constitution shall be the Supreme Law of the Land"provided that seven out of the nine justices of the Supreme Court think it is."

III.

Numerous arguments have been advanced in favor of the proposed changes.

That the power to sustain the Constitution was a usurped power. The bibliography of this curious misunderstanding has grown considerably in the last ten years. But to one who has

14 Wall. (U. S.) 333 (1866).

examined the records and the indisputable evidence that the power was intended to be conferred and that the adoption of the Constitution, already in great doubt, would probably never have taken place except for the belief that the States would be protected in their rights by the rulings of the Supreme Court sustaining the Constitution, there seems to be something almost perverse in the persistent misunderstanding of a small group. The remarks of the framers against a veto by the Supreme Court and the Executive, have been distorted into a disavowal of the judicial power of the Supreme Court in respect of construing the Constitution in actual cases. The power of the Supreme Court is not that of veto. Its exercise involves no political decision or power. It involves merely the ascertainment of the meaning of the supreme law.

That the proposed Borah plan does not mean minority rule because Congress is a large body and Congress has spoken. There have been curious attempts to avoid the apparently unanswerable thesis that whenever a decision is entrusted to, and necessarily to be exercised by, a body of more than two constituent parts, the decision must be by the majority. (Thus, in the Constitution of the World Court, a casting vote is given to the President Judge.) Any machinery by which a minority rules is prima facie an abnormality, if not an absurdity. But it is argued that this is not a case of minority rule, because Congress, a very numerous body, has already passed on the question and has ruled in favor of the constitutionality of its own act. Of course, the argument ignores the difference between the function of Congress and the function of the Supreme Court. The politicians in Congress make their decisions from political considerations. They may believe that the proposed bill is a good thing for the country, or for the public, or that it is a good thing for the record of the individual who voted for it; militant minorities have a well-known stimulating effect on the vote of politicians. Theirs is not the final duty to pass upon the constitutionality of the act. They are not obliged to give, nor do they always give, reasons for the faith that is in them. Their vote on one act, involving an implied assertion of their

belief in its constitutionality, will not return to plague them in respect of another.

Contrast the situation in a Court, in which the Judges have no political axes to grind, nor any desire save to comply with their oaths of office. In written judgments they must give reasons for their decisions, and these reasons are exposed to criticism by the profession and by the public. The pressure to decide in accordance with the majority in Congress and the wishes of the then administration must be very great, even as against the sanctity of the oath of office. At any rate, in passing upon the meaning of the Supreme Law, they are functioning purely as judges. The politicians sitting in Congress, in making the same decisions for themselves, are functioning as political judges. A political judge, in or out of Congress, is not likely to inspire respect or confidence. The point is that mental confusion is involved in denying that the Borah plan would dethrone majority rule in the Supreme Court and substitute the rule of the minority. The judges are acting in a wholly different sphere and their responsibility and their functioning is distinct from the responsibility and functioning of the members of Congress.

That the presumption of the validity of the act of a coordinate branch of the Government should preclude action by the Supreme Court sustaining the Constitution by a five-to-four

vote.

It is said that an adherence to the rule that a statute is not to be declared unconstitutional, except in plain cases, is in conflict with the sustaining of the Constitution by a bare majority. How can it be a clear case, it is argued, when four out of nine judges are of the contrary opinion? Any Supreme Court, by a five-to-four vote, may decide that the plaintiff was guilty of contributory negligence as a matter of law-though four of the justices think that he used ordinary prudence; or that there was no evidence to sustain a judgment against a will, although four out of the nine justices think there was sufficient evidence; or that there was no reasonable doubt of the guilt of the defendant in a murder case, although four of the justices think there

was a reasonable doubt. The House of Lords sometimes reverses decisions of the Court of Appeals (whose judges are said in general to be of the highest professional standing) by a vote of three to two. The World Court may enter judgments in matters of utmost moment by the casting vote of the President Judge. Congress, in both branches, may adopt legislation of the most sweeping character by a majority of one in each branch. Wherever deliberations or decisions are called for, and there is a possibility of difference, the majority must rule. And the majority which rules is the majority in the particular body to which the decision is entrusted. Thus the Supreme Court of the United States, by a five-to-four vote, may reverse a decision of the Circuit Court, which affirmed unanimously a decision of the District Court. A majority of all the judges who heard the case may be in favor of the losing party. This fact may be given weight by the Justices of the Supreme Court, but is not conclusive upon their decision. The responsibility is theirs.

It may be doubted whether the presumption of constitutionality is a sound or true presumption. Should there be comity as against the Constitution? Should not the question be decided by the Supreme Court on its merits after a close scrutiny, in an effort to decide whether the act and the Constitution are in antagonism?

When the question is whether the Constitution protects the citizen against the consequences of executive or legislative action, why should there be a presumption that the Constitution does not afford the protection? Whatever may have been the calibre of the earlier legislators of the country, could it be seriously contended on behalf of our law-making bodies today that in care and reverence they consider the scope and extent of their powers under the Constitution? And even if they do this, does not the fact remain that the final responsibility is that of the justices of the Supreme Court? Should this responsibility be abated or minimized by resorting to a presumption that the framers and people intended Congress to have any power which Congress might affect to exercise?

That many of the questions decided by the Supreme Court