VIII.
MORE HONORED IN THE BREACH

... To use the letter of the Constitution for a purpose not intended, and subversive of the whole constitutional structure cannot be considered a constitutional act, although it may be a legal one.

— James Truslow Adams

DURING the course of American history numerous plans have been devised to curb the powers of judicial review. One favorite scheme is to limit the Supreme Court's appellate jurisdiction. Another method is to require a unanimous decision, or at least agreement by a two-thirds majority, to declare an act of Congress unconstitutional. It has been frequently suggested, ever since the days of the Constitutional Convention, that Congress be permitted to override decisions of the Supreme Court invalidating congressional acts, when such a course is approved by two-thirds of both houses. Some have gone so far as to propose that the power of all courts to invalidate acts of Congress be withdrawn by means of a constitutional amendment.

As already noted, the President considered all these proposals and discarded them one by one for various reasons. To change the majority rule in the Court would, in all probability, require a constitutional amendment. To limit the appellate

-75-

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The Supreme Court Crisis
Table of contents

Table of contents

  • About the Editor *
  • The Supreme Court Crisis *
  • Foreword v
  • Contents *
  • I. the President's Dilemma 1
  • Ii. a Case Built on Sand 1o
  • Iii. Mr. Justice Roosevelt 22
  • Iv. the Balance Wheel of Democracy 29
  • V. is the Hughes Court Packed? 4o
  • Vi. the Verdict of History 54
  • Vii. the Real Mandate from the People 63
  • Viii. More Honored in the Breach 75
  • Ix. What is the Crisis? 81
  • X. the Constitutional Way 88
  • Xi. Conclusions 102
  • Bibliography 1o7
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