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ae) Honorable George Cochran Doub April 23, 1958 (c) The arguments of the opposition are either . grounded on fallacy or the notion of the witness as to what the Constitution ought to be, rather than what it is. In the first |eatesory I place the argument from the supremacy clause, which plainly has to do with which laws are supreme "laws" and not |who shall determine constitutionality, Moreover, general "laws” are not made by decisions of courts as between parties to a cause. Decisions are not general laws, but bind the litigants. The supremacy clause does not say which court shall have juris- diction of what, The distribution of judicial power is made by Article III, §2(2), and under the necessary and proper clause Congress has power to distribute it. (Corwin p. 310). I can't find any other arguments in the second category that are not in the last analysis based on some theorist's view of necessity ~ 1.e., what ought to be (in his opinion), but not what is in the Constitution. These include ail those arguments assuming the question at issue, such as arguments that the Bill would virtually "amend" the Constitution and "tamper with our constitutional form of goversiment"™ How can anybody be impressed by such a plainly circular argument? And yet it is deliberately made in alleged “legal” memoranda set forth in the record. Or how can anybody be impressed from a legal viewpoint by such arguments as "the Bill would do grievous harm” - manifestly a political argument? Or how can anybody be impressed with argu- ments against the original Jenner Bill, 4nd presumably against the substitute, that it embraces several matters, when they are all related to the "common defense", which was the principal reason for the adoption of our Constitution? So, the arguments implying that because Congress and the Executive are not omnicient, that the Court must be, Have we forgotten that our constitutional system and the theory of checks and balances are based on the Mmowledge that human fallibility, learned by the cruel leasons of history? Isn't it slightly naive, even a priori, to believe & judicial oligarchy would be immune, after the experience in communist, criminal and other fields, where the Court has acted, ‘as Judge Hand points out, as a super-legislature? Isn't it almost stupid? Many of the opponents, including of course all of the ‘left wing witnesses &s well @s some Civil Rights enthusiasts, argue in favor of the decisions criticized. I don't think there is any doubt about the view of most lawyers being highly criti- cal of the general tenor of those decisions, even though some think that one or two could be supported on highly technical grounds. The view of the conservative bar is perhaps best ex- preased in Senator O'Conor's splendid report last summer to the American Bar.