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nn a + eect » U.S. News & World Repo ] @ ; . WHAT A STATE CHIEF JUSTICE SAYS ABOUT THE SUPREME COURT From_a_ noted jurist comes a warning about creating a dangerous concentration of power the U.S. Supreme Court. A group of Justices, he says, is using judi- - cial decisions to rewrite the Constitution. The trend of their decisions is described as _ by John R. Dethmers in Washington. John R. Dethmers was chairman of the re- cent Conference of State Chief Justices which adopted a resolution criticizing the Court, -oces ~ mehomtd vxist for maar sot aman for the state. - Chief Justice, Supreme Court of Michigan The role of the courts in: tamorrow’s America is fore- shadowed by their performance yesterday and today. Aware- ness of where we started, where we now are and the trends which brought us there brings prescience of our destination if those trends continue unabated. In all history no other people has enjoved the equal of American liberty and freedom of opportunity. The Founding Fathers planned it se. They determined that here the state ae ae ee. tomortny’s America their role will be vital, it is the courts which breathe the breath of life inte its pro visious and make its guarantees meaningful. How often, at the instance of the humblest citizen, hav the courts upheld the constitutional rights and privileges oJ persons by denying validity and enforcement to legishativ emictnents violative thereof or by prohibiting the invasio or curtailment of them by administrative officials. The court are the final bastion of our liberties. As in the past, so ij To achieve that end they knew it would not be enough to establish majority rule, a government by the people, for ot times no other tyranny can match that of an unfettered, shift- ing majority, which Jefferson termed an “elective despotism.” To safeguard against this eventuality a written Constitution was adopted, limiting the powers of the majority for the pro- tection of the individual and spelling out guarantees of per- sonal rights. A further protection of human freedom against the dangers inherent in a high concentration of governmental powers was contrived by separation of those powers in three branches of hi the exercise of that all-important role, the courts pr ceed on no express constitutional authority. That they shoul do as they do is, however, implicit in Anglo-American juris prudential tradition. How can courts decide cases befor them involving some claimed right under a statute or som grievance flowing from official action unless they determin first the issue whether such statute or action squares wit constitutional rights, guarantees or limitations? When, some decades ago, Brazil desired to establish new form of government, its people adopted a Constitutio and, ungler it, established a federal union of States, both a and State governments. The rights of the people were be- lieved, by our forebears, to be safest under a retention of the highest possible degree of local self-government. Having provided for this by express constitutional terms, they undertook to forestall an enhancement, through judicial construction, of the national powers at the expense of State and local governments or the people by adopting the Tenth Amendment reserving to the States and the people all powers not delegated to the United States by the Constitution nor prohibited by it to the States. Sir William Gladstone said of the American Constitution have continued to enjoy government by the peotile= Braril history has been one of recurrent dictatarships. WWRAt »®y lacking in Brazil, but present here, to make the constitutia: ally guaranteed rights of the people effective? The answe appears to be the tradition here that courts may decide cas against the Government and for persons to enforce their right A tradition such as this can survive only so long as it j sustained by public opinion. And it is so with the cou decisions, upholding the constitutional rights of persor against infringement by Government. The courts are possesse of no armed constabulary to enforce their judgments. Thei that it is the “most wonderful work ever struck off at a given time by the brain and purpose of man.” Throughout the years a great reverence for it has developed in the American people. They have come to regard it as the guardian of their liberties. What a thrilling experience it is to view the original docu- ment, under glass, at the National Archives Building in Washington! The glow of that experience soon gives way, however, to " the sobering thought that an inanimate parchment, however noble the sentiments inscribed thereon, cannot be self-execut- ing. For that, some human agency is required. Lawyers and decisions are given vitality and effectiveness only by the force’ of public opinion, which even those in Government dare. not, for long, to defy. There can be no doubt that, in past decades, the majerity of the people has favored court decisions protect- ing the rights of individuals and has wanted the courts to per: form in that fashion. Once the public becomes disinterested or withdraws its support, court decisions will lose their force and we will have witnessed the beginning of the end of ordered liberty and our free institutions. One must experience some concem for our liberties, then in noting an apparent diminution of public confidence in the judges need not be told, but all too often laymen mast, that 88 (Continued on pace 91) U.S. NEWS & WORLD REPORT, Dec. 12, 195