Your Congress today; Congressman & Supreme Court

Nearly two centuries ago the new constitution of a new nation was read and proclaimed in the Town Halls of America. Legislative powers here and granted shall be best to deny Congress of the United States. Which all consist of my Sat Down House of Representatives. The House of Representatives shall be composed. These were the words that gave birth to one of the three branches of our government the legislative branch. They As own nation has grown what has become of this branch of the governmental tree branch of this what is the status of your Congress today. Your Congress today is produced and recorded by university radio and television service under a grant from the Educational Television and Radio Center in

cooperation with the National Association of educational broadcasters. Here is your narrator. Gone are the Liberty Bell has lost its resonance and the many town hall bells ringing out the message of government have ceased to toll a new bell rings for America. Listen. This is the bell any tourist to our nation's capital can hear resoundingly through the corridors of our Capitol building. This is the bell which summons your congressman to his voting chamber when he arrives there why does he vote the way he does. To him of what importance are you the voting constituency whom he represents. What importance are his party the special interest groups the president the Supreme Court and the administrative agencies of government. On today's program we consider the fifth of these six potential influences on his legislative behavior. That is the Supreme Court to get a glimpse of the relationship between members of Congress and the court. I talked with two congressional leaders

some of the James Oliver Eastland of Mississippi and Senator Wayne Morse of Oregon. My first interview was with Senator Eastland chairman of the Senate Judiciary Committee. Senator Eastland what provisions in the constitution allow the Congress to check the power of the Supreme Court. Article 3 Section 2 paragraph 2 provides an I'll take the liberty to read nor write outs or in all cases affecting Ambassadors other public ministers and cons.. And the ways in which a state shall be a party the Supreme Court shall have the original jurisdiction. I get this in all other cases before mentioned the Supreme Court what shall have appellate jurisdiction both as to role

and fact with such exceptions and under such regulations as the Congress shall make. And I'd like to have a day out of that in a case that came up from the state of Mississippi after the Civil War. Congress denied it. What appellate jurisdiction can he be as caught was proceeding and the court bowed to the will of Congress in that case. Does the Congress have any other checks on the Supreme Court having to do possibly with the number of judges comprising the court and so on. Also right now the Congress can designate a number of judges and what's the number that make a quorum for the court. Then we spent most of our time for the past few years correcting decisions of the coort that's where the court misconstrued a statute and of course we can always correct those statutory decisions where the court misconstrues the

Constitution of the United States and of course it takes an amendment to the Constitution. I see a law there are constitutional provisions for the Supreme Court to check the Congress turning the situation the other way around. No so the Constitution provides this in Article 1 Section 1 that all legislative powers he and granted shall be vested in a Congress of the United States which shall consist of a Senate and the House of Representatives. That is no provision in the Constitution which gives the court specifically the power to declare an act of Congress void. As violating the Constitution of the United State that power was assumed by Chief Justice Marshall in the case of Marbury vs. Madison which was decided over a century ago.

Now it was an assumption of power on the part of the colon. What we have no quarrel with it as it was administered for many many years I think it was wholesome to protect and preserve our system of government that is against unbridled majorities in the Congress. And you think that that assumption is still desirably taken by the Congress. Well I think that the court has gone entirely too far. We don't have the time to discuss specific cases. Yes but I don't think there's any doubt but that because through its decisions in the past two years has wrapped a blanket over him unity around the communist conspiracy in this country. I was attending a session of the House of Representatives recently and during the course of the debate one of the Representatives isn't Parkman to identify him here but one of the representatives made the remark when

certain court cases and court precedents were being cited by the opposition on the floor he observed that well after all Congress had passed many acts many bills that had later been proved unconstitutional or at least been judged unconstitutional by the court. And his inference was at least as I inferred the matter that therefore let's just ignore our judicial precedents or background do you feel that this is pretty characteristic of a congressman's attitude or that he was perhaps being very exceptional and his ignoring the possible later action by the Supreme Court. Well I don't think there's any way to théo what disco what he is going to hold. In any case they have overridden time and time again to firm legal principle of stere decisive Could you explain that please. Well so direct decisis means a question has been settled and

and determined and it's a fundamental rule of law that when it's been settled and determined and adjudicated. And that interpretation is placed on a statute that it stands now this code what in the past 10 years it had over ru. More cases more chains of cases than has been done in the previous history of this country in the face of this court overruling manner this ten year history of activity and what should a congressman's outlook be according to you just ignore as say mainly this representative was doing our attempt to predict. Well I don't think we can tell to predict what to call what would do as a member of Congress has a same duty to obey the Constitution of the United States. That could have a big quarrel with the Cole what it is

that they're changing our form of government by usurpation George Washington's advice to India farewell address that that should be no change in the Constitution by usurpation. That's the way free government so destroy it applies today. You know what with Abraham Lincoln who said that the people are the masters of Congresses and court not to overthrow the Constitution but door with or with a man who provided. How long have you been a member or chairman of the Senate Judiciary Committee. I've been jammin to been chairman of the Senate Judiciary Committee before with two Yale do you feel that you are opinions as you have expressed them during this interview so far have been conditioned significantly by your service as chairman of this committee or have you felt this way down through your years of what I've set out this way down through my year of service in the Senate as the position of chairmanship brought you into much greater

exposure with the matters of the relationship of the court to the Congress. Yes it had Senator Eastland your opinion of the Supreme Court increase or decrease in power in the future. Or will it possibly remain the same do you see any and I don't think of trends. I don't think overlay alone period of time that the people of this country are going to permit it. Cohen. To become a judicial oligarchies I don't think that the people of this country are going permit to KOA to dominate our government. I don't think the people of the country will permit to Supreme Court to destroy our system of government. We are on a high road now to the destruction of our system of government in fact two or three more decisions. And our system of government will be gone. Now I thank to someone in this country is rapidly building up to curb the COA in time. We are going to get

competent judges on a koan you know will that I judge a majority of the present co what'd of its members have never actively practiced low. They don't think that a majority of good lawyers. They have an idea that their own idea of what is right and what is wrong or what should be what should not be should prevail to the exclusion of the power of Congress and the power of the executive in this country. Now the people are not going to let that continue. And I don't think the Congress will permit it to continue. Why do I infer correctly from that statement that the present time you feel that the court has more control over government than the other two branches of government the executive and the legislative. Well I think they do that to have more influence today than in Congress. After talking with Sen. Eastland I made arrangements to talk with Senator Wayne Morris of Oregon

before being elected to the Senate in 1944. Senator Morse taught argumentation and law at several major universities and served as dean of the law school at the University of Oregon. Senator Morse constitutionally what provisions were set forth to allow the Congress to check the power of the Supreme Court. The only part of the Constitution in my opinion offers any basis for an argument that the Congress has a check upon the Supreme Court is Article 3 Section 2 paragraph 2 of the Constitution and let me read it to you very quickly it's going through in all cases affecting Ambassadors other public Ministers and Consuls and those in which the state should be party. The Supreme Court shall have original jurisdiction in all the other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as the Congress shall make. Now I know it Mr. Connor this language under such regulations as the Congress shall make

presents a part of the Constitution that is received relatively little interpretation over our history. In my judgment it does not mean that the Congress has the power to check the Supreme Court in regard to the inherent constitutional power of the Supreme Court to pass judgement upon the constitutionality of acts of Congress I think that's an inherent power that the Supreme Court has in the Constitution. And as you know it was settled in that great historic landmark case of February eighteen hundred three so-called famous Marbury vs. Madison case written by the chief justice from Virginia then sitting on the Supreme Court. Mr. John Marshall. And this is the concept of judicial review that you're referring to this is the concept of judicial review or it is held that the Supreme Court has the authority to pass judgment upon the constitutional rights of the American people as they are affected by congressional legislation.

This is I would count it up was approximately over 100 years ago slightly over a hundred years. You feel that down through it was a three and a half ago century and a half ago do you feel it in the time that has passed that this power has been properly used by the Supreme Court I think it has been properly used. And let me say to the American people on this broadcast you'll be a sad day in America if we ever have the constitutional power of the Supreme Court destroyed it either by indirection through the Congress the United States or by way of constitutional amendment. I want to tell you why. After all it is in the judicial atmosphere of the supreme court room that we can best rest assured that these precious rights of ours as individual citizens will be protected. And I'm very much concerned these days in the Senate United States let me say very frankly about the tendency of extreme groups when they don't like a decision in the United States Supreme Court to try to get the Congress to turn itself into

a super supreme court and pass legislation that in effect seeks to repeal what the Supreme Court has said in regard to protecting the rights of Americans under the Constitution. Would you be opposed then are you inferring to any new legislation which perhaps would give the Congress the kind of power that the president has with a veto or I think for example that the general legislation is nothing more or less than subversive legislation. You don't feel that I judge from the tone of your remarks that we are at the present time in a period of say judicial government as some people have and not at all not at all. The Congress the United Staes has the right to pass legislation within this Parag it gives and I'm not going to sit in the Senate the United States for example and take away from the Supreme Court is right to protect civil rights for example in this country or protect all the other basic constitutional rights that free men and women have. Having mentioned this matter of civil rights Mr. Connor let me point out that whatever civil rights you have.

It's a constitutional right under our form of government and under our form of government the final seat a review for that constitutional right happens to be the United States Supreme Court. And one of the reasons that I opposed for example the so-called Civil Rights Bill in the last session of Congress was that my judgment it did not give to the judiciary of this country the support that the that the judiciary is entitle to. For example I'll never vote to put a jury between a free man and woman in America and his constitutional rights in the so-called jury trial provision of the Civil Rights Bill did exactly that. Should the court have absolute voice do you feel in matters affecting the civil rights of the civil liberties of individuals should have absolute right as far as the determination of constitutional rights in that field of civil rights is concerned. Well would you be as opposed to say popular recall of the actions of the Supreme Court or even popular recall of the decisions of the Supreme Court submitting to a popular vote.

Would you be as opposed to that as you would be to new legislation perhaps curtailing the decisions I most certainly would because the people have a check under the Constitution and you don't find these people that are attacking the Supreme Court's very often mentioning the check and what's the check. An amendment to the Constitution the United States and that provide you seen for that cooling off period where reason can come to the top and emotionalism will be brought down her it belongs because so much of this attack on the Supreme Court is an emotional attack. But if people don't like as I've said on the floor of the Senate the policy that the Supreme Court has held in regard to constitutional rights offer a constitutional amendment through the Congress through the through the Congress the Constitution provides for the constitutional amendment process. Go ahead and do it. I have said it for example on the on the floor of the Senate in regard to the civil rights issues and other issues I say to my colleagues why don't you offer a constitutional amendment and see how many votes you'll get. Now the fact is that when

people in sober judgment come to see the relationship of these problems in respect to a constitutional amendment then they rally again behind the Supreme Court. What about this contention that the Supreme Court has nullified. The actions of Congress within the past 10 years more frequently than it has in the entire previous history of our country is that actually a statement of fact. I don't know whether that's a statement of fact there are of course been many decisions of the Supreme Court that have upset legislation passed by Congress but in my opinion they should. And the fact is in the last 10 years we have had what is known as an anti federalists move in this country. In fact when the record of the Eisenhower administration is written it will go down as the most anti federalists administration in the history of our country. But you see this deals with an abstract principle of constitutional law. I want to mention it very quickly on this broadcast when the Eisenhower administration proposes it does time and time again. To delegate to the

states functions now exercised by the Congress the United States what's it proposing to do is proposing to take away certain delegated powers under the Constitution to the Congress the United States. Let me give an example of it. The right to work laws. One of the proposals for a right to work law. They're nothing but a proposal to take away from the federal government under the Interstate Commerce Clause of the Constitution federal jurisdiction over industrial relations and interstate commerce. So I say to my colleagues who are advocating right to work laws why don't you meet it head on. Why don't you do it directly why do you try to accomplish this through a back door sneak approach. Why don't you say to the American people we don't think the federal government should exercise functions under the Interstate Commerce Clause and they're far away proposed a repeal of the Interstate Commerce Clause. See how many votes you and yet. Yes. Not taxation. Look at all the nonsense that we're being fed these days about delegating back to the states federal jurisdiction over taxes

that are really under the Constitution the federal government can exercise. Take this matter of natural resources look at the Eisenhower administration trying to give away the heritage of future generations of American boys and girls in their own natural resources. My proposal to have the states do this and this and this in regard to natural resources now under the Constitution control over those natural resources was vested by our constitutional fathers in the federal government. Now I make this closing argument on this point Mr. O'Connor as I used to teach my last students over a period of 15 years remember that the keystone of the Constitution the keystone of this republican form of government of ours is to promote the general welfare of people. Yes. To accomplish that they wrote the general welfare clause into the Constitution and that makes it possible for the Congress to pass general welfare legislation that will promote the welfare of all of our people. But you've got extreme groups in the last 10 years that have been trying to

pass legislation that will take away from the federal government really its powers under the general welfare clause. And I'm glad history will record that during my service in the Senate without exception. I have protested the anti federalists movement of the Eisenhower administration. Yes. And you feel that this questioning of the power of the Supreme Court as part of the anti federalist. Well the result of the result of it would be an anti federalists drive yes. One more question Senator before we close. As a congressman as a member of the United States Senate who regards the role in the position of the Supreme Court as highly as you seem to do just how much and what kind of attention do you give a possible constitutional interpretation by the court to the legislative matters which confront you do you and your committee work and then your own work outside of committee say to yourself well how will the court regard this or do you like some congressman I've been told you pretty well ignore it and think possibly you can sneak through some new legislation.

Well put it this way Mr. Connor I do not believe in passing the buck to the Supreme Court. I took an oath of office when I came in the Senate to uphold the Constitution and I have a piece of federal legislation before me in the Senate. One of the major questions I ask myself is this Will this legislation meet constitutional test. Now I have no right to vote for a piece of legislation that I think is unconstitutional. Now some senators take the position they say to me in the cloak room I don't worry about it when the Supreme Court will pass judgment on that in the final analysis it was never intended. That Congress should pass to the Supreme Court legislation which members of the Congress in fact know is not constitutional. You have no right in keeping with your own set of office in the Senate to vote for a piece of legislation that you think can't meet the constitutional test. So my answer to your question as I always give great consideration as to what the effect of the piece of legislation will have on constitutional rights.

And you think in giving that kind of consideration you can predict rather accurately. Well you'll be mistaken many times as lawyers often are in regard to whether or not a particular piece of legislation is constitutional but I have no hesitancy in saying that they have a careful study of the Constitutional Law of problems involving the piece of legislation will cause you to end up right about 95 percent of the time at least. Well thank you very much Senator Wayne Morse of Oregon for appearing on this program. It was my pleasure to be on it with you Mr. Connor. When I returned to the campus of Indiana University I asked Professor pianist openness of the department of government to listen to the tape recorded interviews for a brief some ation of the program topic. The congressmen of the Supreme Court. I wanted the views of a specialist in the field. After listening to these interviews with Senators Morse and senators Eastland

on would you like to make some summary statement. We are fortunate in having the views of two men who assume different attitudes toward the court's possession or the court's role. Senator Morse being a liberal takes one viewpoint Senator Eastland a conservative takes another viewpoint. I'd like to point out that this is typical of other times in American history when neither the Liberals or the conservatives have been concerned with the Supreme Court being a public policy maker. In the past has the liberal position always been for the behavior of the Supreme Court and the conservative position been against or have they reversed positions they have they have reversed their positions from time to time for example during the New Deal days it was the the liberal who was unhappy with the court's role because the court was then striking down New Deal legislation. In more recent times the conservative has been unhappy because of the decisions by the

Supreme Court in subversive cases. And as far as Senator Eastland is concerned especially with the decision in Brown vs. Board of Education in May of 1054 that is the case in which the Supreme Court had ruled that there could not be separate school systems for white and Negro. You believe then that this is the case to which he is referring when he says that it's impossible to predict the behavior of the court. Yes quite definitely. You see in Plessy vs. Ferguson in 1906 the Supreme Court had set down a rule that white and Negro children could be kept in separate school systems providing these were equal and that was the principal of separate but equal separate school systems but equal in facilities faculties buildings and so forth. That rule was in effect for over 50 years and then the Supreme Court reversed itself in eight in 1054 stating. That there could not be separate facilities maintained that this was contrary to democratic beliefs and

that it would have a psychological effect on the negro child who could not feel equal as long as he was kept in a separate school. Do you believe then that the proposals I believe Senator Morse referred to the general bill before the Eighty fifth Congress Senator General from Indiana that this proposal and similar similar proposals will stand a chance of curtailing the powers of the court. I believe that history gives us the answer to this because we have had a number of legislative proposals and resolutions to amend the Constitution which were not adopted. These are to the Jenner bill would provide some type of limits on the power of the Supreme Court. But there does seem to be a very strong current in American society that the Supreme Court does have an important role to fill and that they do not want to tamper with this in any way. Did you notice any difference and their remarks concerning the matter of judicial review. Yes Senator Morse believes that this is an implied power in the Constitution and certainly Senator Eastland questions. He

feels that it was a usurped power by the court but was properly usurped for a good many years since the case of Marbury vs. Madison which to which both men referred as I really notice Marbury vs. Madison was 18 0 3 in our court has had a long history of exercising the power to determine the constitutionality of legislation and the backs of governmental officials or agents agencies. Yes and that's only been in recent years according to Sen. Eastland that this usurp power has and been improperly used by members of a court who aren't even good lawyers according to him. And he raises the question regarding their looking to sources other than legal sources in rendering decisions. I might be illustrated in this way the editor of a major American magazine had stated that he wished our Supreme Court judges would spend their free time reading detective stories instead of the scholarly tomes of Swedish sociologists. Now you'll notice the implication that

the study by Gunnar Meir Dall a Swedish sociologist did have an influence on the Supreme Court decision in Brown vs. Board of Education that is the racial integration in the school. Your Congress today was produced and recorded by the Indiana University Radio and Television Service under a grant from the Educational Television and Radio Center and is being distributed by the National Association of educational broadcasters. This is the end of a ii-V Radio Network.