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Honorable George Cochran Doub April 23, 1958 all, the constitutional amendment proposed for that purpose - f.e., the so-called "Butler Amendment’ - was not passed, and there is no justification fo: assuming that the Constitution is amended anyhow merely because some persons think it ought to have been drawn that way in the first place.) (bd) McCardie, a direct authority in the Supreme Court conceding congressional power to take away the appellate jurisdiction of the Supreme Court, has been cited numerous times by the Supreme Court and has never been qualified, nor so far as the Court is concerned has there been any suggestion that that power is limited to non-constitutional questions. Corwin, in "Conetitution of the U. S. of America", published by the authority of the Senate, pp 014-615, indicates that there have been no exceptions. Nobody reading the cases cited by him (or a doren other cases which I have found citing McCardle with approval) can find any qualification of McCardle. Nor does it make any difference whether one believes tne jurisdiction of the Court is based upon the Storey theory that is derived from at vai Rr ae Sek ee OU ‘the Constitution, or on the theory that the Supreme Court has ~ no jurisdiction except under the Judiciary Act, for in any event, as Corwin concludes, pp 616-617, Congress has plenary power. In addition to the decisions of the Court, there was much expert opinion quoted in tne record of the hearings before the Senate affirming the power of Congress, even where consti- tutional questions were involved. For example, Mr. Justice Roberts, quoted in the record p. &¢9, which attains particular Bignificance because he was the leader of the movement which culminated in the proposed constitutional amendment and which the conservative bar then (as it seems to me now, perhaps naively} supported. The Founding Fathers were more prophetic than we had supposed. See also Corwin's statement on the Bill, Record 164-i06, Dean Manion's quotation from Jjusiice Douglas, p. 608, and note that opponents of the Bill on the ground of policy did not deny power ~ e.g., Griswold, 357; Pound, 359; Harris (assuming the classification reasonabie}, 349. While some extreme witnesses, such as, I think it was the A.D.A. witness, tried to argue the point favorabiy, even such a wit- ness as Angell, 218, appearing for the Civil Liberties Union, conceded power. Certainly, I agree with Judge Hand that 1 would doubt the wisdom of treating the Court as our "platonic guardians", Congress is given the ultimate power to override the Executive, and under the necessary and proper clause, as Corwin points out, has organized the judicial system, adopted criminal laws and distributed between the courts the judicial power, See Corwin, op. cit. 305-310.