The Nation

January 15, 1936

1. The nation's Lord High Executioners have again swung the ax. This time it is the Agricultural Adjustment Administration that has succumbed to the Supreme Court's kiss of death. Mr. Justice Roberts, speaking for the court in the Hoosac case, in an almost incredibly mechanical and legalistic opinion has ruled that the Administration's largely successful efforts to raise farm income are unconstitutional and must be undone. Five other justices join in this stern Catonian view of judicial duty. Three justices dissent. The Hoosac case now takes its place in the sequence of retreat to an archaic conception of a national government with cruelly limited powers in a time of crisis.
2. It is true that the decision might have been a good deal worse. The taxing power, the spending power, the delegation of powers, the Tenth Amendment were all urged upon the court as issues on the basis of which the AAA could be held invalid. Ostensibly Mr. Justice Roberts has rested his decision only on the last of these—the ground that Congress was trenching on the powers reserved to the states by the amendment. He argues that Congress is nowhere explicitly given power to regulate agriculture; that its attempt to do so in the Agricultural Adjustment Act is therefore unconstitutional; that any tax it may impose and any appropriation it may make as part of such a general regulatory scheme thereby become unconstitutional, regardless of what their validity might be outside such a scheme.
3. But such a summary does not convey the full import of the decision. After the crippling of the Congressional power over commerce through the Schechter decision, those who have wished to see the national power used for economic control have pinned all their hopes on the taxing and spending power of Congress under the "general-welfare" clause of the Constitution. The court did not dare through a frontal attack destroy this Congressional power. To do so would have been to run directly athwart the established law and usage of a century and would have constituted the most fatal decision since the Dred Scott case. Instead, the court has managed by indirection to cripple if not kill the Congressional taxing power. No use of the taxing power can henceforth be left constitutional under the general-welfare clause if it attempts Congressional regulation of agriculture or industry. And since that is the principal use to which it is now important to put the taxing power, the extent of the decision can readily be seen.
4. Intelligent people will fail to find any rational meaning in such an outcome. The common man, with his direct way of looking at governmental matters, will be unable to make any sense of it at all. The farmer will be dazed. The worker will know that a similar fate is in store for him. Three of the Supreme Court justices—and those not by any means the least able or enlightened—find that it not only makes no economic or governmental sense, but that it does not even make good constitutional law. In what is undoubtedly one of the most brilliant of recent dissenting opinions, Mr. Justice Stone subjects the majority reasoning to a merciless analysis in which its sophistry and confusion are completely exposed. The reader sees, if he is willing to look beyond rhetoric to reality, the naked class interest that ultimately dictated the decision. It is not so much that the court has grudged the farmers their benefits. It has been unwilling to see the method of taxation, with its attendant regulation, extended to industry and to labor relations. Mr. Justice Stone points out cogently that a power of appropriation that cannot set the conditions under which and the purposes for which the money will be spent is completely useless. With an admirable frankness he challenges the smug assumption of judicial power and judicial infallibility: He riddles Mr. Justice Roberts's protestations that the court is only interpreting the clear letter of the Constitution and is officially not cognizant of the effects of its decisions in nullifying the legislative will. He refers to "the mind accustomed to believe that it is the duty of the courts to sit in judgment on the wisdom of legislative action." "Courts," he continues, "are not the only agency of government that must be assumed to have capacity to govern."
5. Even while he was delivering his message to Congress, Mr. Roosevelt was speaking in the shadow of the court's power. Now the court proves definitely that it is the last bulwark of the vested interests. They have been displaced from the Legislative and have been outwitted by the Executive; they find their last refuge in the Judiciary. It is inconceivable that the good sense of a democracy will tolerate very much longer such a use of the judicial power. If Mr. Roosevelt has courage he will make the limitation of this power in declaring acts of Congress unconstitutional a major part of his campaign. If he has a long view of statesmanship he will make it part of a long-range effort to restore the basic decisions of a democracy to the legislative will of the people.