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"The immediate question is the merit of the measure; a measure which is for the well-being of the country should not be rejected out of hand because of the circumstances under which it was proposed". Thus argues Henry H. Hart, Jr. '26 in his Alumni Bulletin article favoring President Roosevelt's Supreme Court proposal.
In supporting Roosevelt, Dr. Hart examines four points taken from President Conant's public statement, and constructs his case out of the debris. He first takes exception to the charge that Roosevelt is attempting to "pack the court", a phrase which he claims contains a critical ambiguity.
What Does it Mean?
"Does it mean," he asks, "that President Roosevelt is attempting to secure specific decisions on specific legislation from subservient Justices pledged to render such decisions? If so, the charge encounters the difficulties that Justices, once appointed, are independent of the executive. Experience has shown that the independence will be exercised and that the attempt to predetermine future votes is futile."
"Or does the expression simply describe an effort to secure more Justices of a certain cast of mind? But presidents in the past have inquired, with entire propriety, at least into the philosophic attitude of prospective appointees toward the Constitution."
A Threat To Freedom?
Hart next questions whether the proposal can be considered a threat, as President Conant stated, "to freedom of speech and inquiry", to "liberty itself". This fear, he believes, is based on a possible future misuse of a now defensible measure. This raises the question: Just how dependent is personal liberty on the actions of the Supreme Court?
So far as the interests of a university are concerned he fails to see any close connection. "That interest can he impaired in ways too subtle to be vindicated, in any important degree, by the relatively crude mechanism of constitutional guarantees invoked in litigation. Courts are not barriers against mischief's like the teachers' oath acts."
No Aid To Dictators
Another shot aimed at the proposal is that it will help pave the way for a dictatorship. Hart believes that the Court would be very little protection once a popular majority had been won over by the emotional appeal of a would-be dictator.
Two conditions are cited which are indispensable to any movement seeking a violent break from established ways; 1) empty stomachs and 2) widespread despair of filling those stomachs by the established ways. "Consideration of the relation of President Roosevelt's proposal to the future of personal liberty must include consideration of the relation of his larger purposes to the avoidance's of those two conditions."
No New Question
This is not a question of recent origin as Conant implies, Hart warns us. Its roots go back to 1905 to Justice Holmes' dissenting opinion in "Lochner v. New York" in which he denounced a law forbidding employees in bake-shops to work more than 60 hours a week as arbitrary and capricious.
The difference between the majority and the minority of the present Court, he points out, center around the question of whether or not the Court has overstepped the limits of its appropriate functions. Again and again it has nullified the efforts of Congress to master national economic problems.
"These are serious problems which have to be taken into account no less fully than problems of hypothetical danger to future liberty."
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