The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-11-13
JUDGES FOR LIFE
People Should Elect the
Federal Justices.
They Should be Made to Feel Their
Responsibility and Their EIe-
vation Due to the Peo-

The November number of the
Arena contains as its frontispiece a
full page picture of Chief Justice
Walter Clark, of this State, and an
article from his pen on '"The Election
of Federal Judges by the People" 1t
is timely theme, for the iron heel of
many Federal judges has BEEN felt
upon the necks of the people. In
North Carolina the people have been
cursed by the petty tyranny of Federal
Judges, whose elevation to office could
never have occurred if the people in
the State had been given any voice in
the selection of Federal judges.
Chief Justice Clark's strong and
able article in The Arena is as follows:
When the Constitution of the United
States was adopted at Philadelphia,
the masses were uneducated and the
men in official positions under the
State governments were as rule
chosen by the influence of the edu-
Gated and wealthy few. A representa-
tive Democracy was an experiment. and
there was frankly expressed fear of
committing power to the masses. In
only one State was the governor at
that time elected by the people, and
in none We're the judges SO chosen.
In all there were property oualifica-
tions either for the electors of the State
Senate or of both houses, or for the
members themselves of the General
Assembly. and in some in all these
particulars.
This state Of things was naturally
rejected in the Federal Constitution,
which still, after the lapse OF
nearly century and a quarter
and the demonstrated capacity
of the people for self-govern-
ment, presents in the full blaze of the
twentieth century the distrust of pop
ular government which. before its
trial. was natural in the men of the
eighteenth century. The unnatural
thing is, not its adoption in 1897, but
the retention, unchanged, of the nom
elective features of the Constitution in
1904 The Federal Constitution,
framed according to the ideas then
prevailing. gave to the people the Sc
lection OF only one-siXth of the gov
ernment-the members of the lower
House of Congress. The choice of the
executive and the judiciary and of the
other half of the legislative depart
ment, was carefully placed beyond
their reach. The Senate was made
at secondhand by the State Leg
islatures. The President was in
tended to be elected at third-hand by
electors chosen by the State Legisla-
lures, and the judiciary at fourth
hand by the appointment of the exec
utive so chosen; and to place the
judges farther beyond the possibility
of responsibility to the people or in
fiuence by that popular opinion which
is the foundation-stone of a free gov
ernment, the tenure was for life.
A more complete denial of popular
control of the new government could
not have been devised Hamilton
would have preferred a hereditary
~ katr
as efficient for his purposes as an ap-
pointive life judiciary. for we know
that the hereditary executive in Eng
land has not dared to exercise the
Veto-polyer since the revolution of
1858, mere than two centuries But
by reason of the power which the
judiciary soon bestowed upon them
selves, by construction, of declaring
any statute unconstitutional. the
judges have set aside acts of Congress
at will. Thus the legal-tender act
the financial policy of the government
was invalidated by one court and then
validated by another, when the per-
sonnel of the court had been increased
for that purpose. Thus also ten
years since the income-taX, which had
been held constitutional by the court
for a hundred years, and after being
at first again so held, was by & sud-
cen change of vote by one judge held
unconstitutional nuIlilied and set
aside. The result was that one hum
dred million dollars of annual taxes
were transferred from those most able
TO bear them ana placed upon those
least able TO bear them, necessarily
forcing the retention of the high tariff
which is a tax upon consumption, and
therefore tax upon the many. In
the ten years which have elapsed since
the Income Tax. passed by both
Houses OF Congress and approved by
the President, was thus set aside, this
change of front by this one Judge has
cost the toilcrs, the producers of this
country, one thousand million dollars!
Had the court been elective, men not
biased in favor OF colossal wealth
would have filled more seats upon the
bench, and if there had been such
decision. long ere this. under the ten-
ure of a term of years new incumbents
would have been chosen, who, return
ing to the former line of decisions
would have upheld the right of Con-
greSS to control the financial policy of
the government i'm accordance with the
will of the people of this day and age,
and not according to the shifting views
which the court has imputed to lam
guagc used by the majority of the
fifty-hve men who met in Philadelphia
in 1897. Such methods of controlling
the policy of government are no
whit more tolerable than the conduct
OF the augurs Of old who gave the per-
mission for peace or war, for battle or
other public movements. by declaring
from the fight of birds, the inspection
of the entrails of fowls, or other
equally wise devices. that the omens
were lucky or unlucky--the rules of
such divination being in their own
breasts and the augurs being always
privatly Informed as &c the wishes of
those in :1oWer-
IN England one-third Of the reverue
is derived from the superfluities of the
very wealthy. by the levy Of grad
uated income tax. The same system
is in force in all other civilized COM