"p",""A*cg""" THE WAYNESVILLE MOUNTAINEER ?sectk"< * * _ Millar Sees lax Judicial Capacity Ameng Members Of U.S.Supreme Court Waynes ville Lawyer Tells Views Before Rotary Club "We are rapidly slipping into a position which the framers of the Constitution valiantly tried to avoid ? a government of men ? not of laws," W. H. F. Millar, Waynes Ville attorney told Eotarians here Friday. "Who are the men?" he asked, and then went on to say, "The present members of the Supreme Court." The speaker said:-"I say to you that I am, and for a long time have been alarmed at the lax judicial capacity among members of the Supreme Court. "The decisions in the school segregation cases are not worse, and no more revolutionary than others this court has rendered. They are only a part of the pic ture?other decisions did not ef fect so many people?did not have the same impact and did not re ceive the same public attention," Millar went on to explain. The speaker went on to explain that while all the members of the Supreme court are gentlemen of ' high attainments, and significant accomplishments that the majority of uiem have not worked either long or laboriously as practicing lawyers or as State judges or as judges of the lower Federal courts. As a consequence the ma ' Jorlty of them have not under gone the mental discipline which enables a qualified occupant of a judicial office to lay aside his personal notions of what the law ought to be and to base his deci sions on what the law has been de clared to be in legal precedents. W. H. F. MILLAR "I think the breaking of the Court began when the hue and cry arose about the 'Nine Old Men'." The speaker went on to say: "The Supreme Court and its usurpation of power is a matter which has distressed me for a long time. This talk seems to be peculi arly appropriate now because pub lic attention in the South has been focused upon the Court's recent decisions in regard to segregation. It is brought into bold relief by the demands for interposition and the recent Manifesto signed by practically every Southern mem ber of Congress denouncing the usurpations of the Supreme Court. "For a proper understanding of this subject, I think we have to bear in mind that the State is the Sovereign power and that the Fed eral Government has only such powers as have been granted to it by the Constitution and its Amend ments. If there was ever any doubt about it, the 10th Amendment, the last one in the Bill of Rights, re moved such doubt by providing that powers not specifically so granted to the Federal Government are retained by and still remain in the several States. "In grammar school we learned of the three branches of the Fed eral Government?the Legislative, Executive and Judicial. We learn ed of the system of checks and bal ances. It was not then pointed out to me, and probably not to you. that there was one branch upon which there was and is no check?namely the Judicial. There in lies our weakness and the in direct cause of our present dilem ma. "Having in mind those funda mentals, I feel that I must begin with the American Constitutional Convention of 1787. "The men who composed the American Constitutional Conven tion of 1787 comprehended in full measure tfie everlasting political truth that no man or set of men can be safely trusted with govern mental power of an unlimited na ture. In consequence, they were determined .above all things, to es tablish a government of laws and not of men 0 "To prevent the exercise of arbitrary power by the Federal Government, they inserted in the Constitution of the United States the doctrine of the separation of governmental powers. "In so doing, they utilized the doctrine of the separation of pow ers in a two-fold way. They dele gated to the Federal Government the powers necessary to enable it to discharge its limited functions as a central government, and they left to each State the power to regulate its own internal affairs. "In their other utilization of the doctrine of the separation of pow ers, the Members of the Conven tion of 1787 vested the power to make laws in the Congress, the power to execute laws in the Presi dent, and the power to interpret laws in the Supreme Court of the United States and such inferior courts as the Congress might estab lish. Moreover, they declared, in essence, that the legislative, the executive, and the Judicial powers of the Federal Government should forever remain separate and dis tinct from each other. "The Members of the Convention of 1787 did not put their sole reli ance upon the doctrine of the separation of governmental power in their effort to forestall the exer cise of arbitrary power by the 'Federal Government. They balanc ed the President's power to veto the acts of Congress against the power of Congress to legislate, and they balanced the power of Con gress over the purse against the President's power as Commander in-Chief of the Army and Navy. They made the Supreme Court of the United States independent of the President and the Congress by giving Its judges life tenure dur ing good behavior and by provid ing that their compensation should not be diminished during their continuance in office. They failed, however, to place in the Constitu tion any provisions to restrain any abuse of its judicial power by the Supreme Court of the United States. "Alexander Hamilton said with emphatic assertion; 'The supposed danger of judiciary encroachments ... is, in reality, a phantom.' He declared, in essence, that this as sertion was true because men se lected to sit on the Supreme Court of the United States would 'be chosen with a view to those qualifications which At men for 'he stations of judges,' and that they would give 'that inflexible and uniform adherence' to legal rules 'which we perceive to be in dispensable in the court of justice.' "By these remarks, Hamilton as sured the several States that men selected to sit upon the Supreme Court of the United States would be able and willing to subject themselves to the restraint inher ent in the judicial process. Experi ence makes the proposition in disputable; Although one may pos sess a brilliant intellect and be ac tuated by lofty motives, he is not qualified for the station of a judge in a government of laws unless he is able and willing to subject him self to the restraint inherent in the judicial prorea*. "What is the restraint inherent in the Judicial process? The an swer to this query appears in the statements of Hamilton. The re straint inherent in the Judicial process is the mental discipline which prompts a qualified occu pant of a Judicial office to lay saide his personal notion of what the law Mfhl to be, and to base his decision on established lefal precedents and rales. "The reasons why the mental discipline required to qualify one for a Judicial office is ordinarily the product of long and laborious work as a practicing lawyer, or as an appellate judge, or as a judge of a court of general jurisdiction are rather obvious. Practicing law yers and jtftlges of courts of gen eral jurisdiction perform their functions in the workaday world where men and women live, move and have their being. To them, law is destitute of social value unless it has sufficient stability to afford reliable rules to govern the con duct of people, and unless it can be found with reasonable certain ty in established legal precedents. An additional consideration im plants respect for established legal precedents in the minds of judges in courts of general jurisdiction and all appellate judges other than those who sit upon the Supreme Court of the United States. These judges are accustomed to have their decisions reviewed by high er courts and are certain to be re minded by reversals that they are subject to what Chief Justice Bleckly of the supreme court of Georgia called~*the fallibility which Is inherent In all courts except those of last resort,' If they at tempt to substitute their personal notions of what they think the law ought to be for the law as It Is laid down in established legal precedents. "The States accepted as valid Alexander Hamilton's positive as surance that men chosen to serve on the Supreme Court of the Uni ted States would subject them selves to the restraint inherent in the judicial process, and were thereby induced to ratify the Con stitution notwithstanding the omis sion from that instrument of any express provision protecting the other branches of the Federal Government, the States, or the people against the arbitrary exer cise of its judicial power by the Supreme Court. "Very vividly I can remember when I first had a case in the Uni ted States Supreme Court twenty odd years ago. It is difficult to de scribe my feelings. The decorum, the poise, the respect for the Court was Wonderful. I had a feeling of absolute confidence that the court would administer the law or inter pret the Constitution without fear or favor. There was the collection of the finest legal brains in the country ? every one an eminent jurist in his own right?and there was poor little me. That bench, The Nine Old Men, consisted of Charles Evans Hughes, Chief Jus tice, to me the finest Constitution al lawyer of ail time. There was Van deVanter, McReynolds. Bran deis, Sutherland, Butler, Stone, Roberts add Cardozo. Brandeis was considered the radical?among the present members of the Court he would be ultra-conservative. That Court stood as Arm as the Rock of Gibraltar. It was a bulwark pro tecting the rights of people and of States. "Were I to appear before the Supreme Court now, I am sure my former feeling of reverential awe would be lacking?the mere pas sage of time does not account for (Continued on Page S) Miss Mannequin h CHRISTIAN! Rouvreau, 22, of Parii, a former dancer. Is shown after she was chosen Miss Man nequin 1956 in a contest held at the Moulin-Rouge in Montmar tre. By winning, Miss Rouvreau earned the right to compete in the preliminary Judging for the Miss World title. (International) THIS WEEK'S BEST SELLERS FICTION Andersonvllle, MacKinlay Kan tor. 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