The evening times., 1911-08-18
TAFT ON THE JUDICIAL RECALL

dom of ages has taught that no gov
ernment can exist except in accord
ance with laws and unless the peo
pie under 1t either obey the laws vol
UNFAIRLY or are made to obey them.
In a popular government the law
are made by the people-not by al
the people-but by those suppose,
and declared to be competent for tn,
purpose, as males over 21 years o
age, and not by all of these-but by ;
majority of them only. Now, as tn,
government is for all the people, ant
Is not solely for a majority of them
the majority in exercising contro
either directly or through its agents
is bound to exercise the power fol
the benefit of the minority as we'll a.
the majority.
But all have recognized that the
majority of people. unrestrained by
law. when aroused and without the
SOLDERING effect of deliberation and
discussion, may do injustice to the
minority or to the individual when
the selfish interest of the majority
prompts.
AAChSS ollScS tue ueCcSSlty 1OF
constitution by which the will of the
majority shall be permitted to guide
the course of the government only
under controlling checks that ex-
perience has shown to be necessary
to secure for the minority its share of
the benefit to the whole people that
a popular government is established
to bestow.
popular government is not a gov
ernment Of majority. by majority,
for a majority of the people. 1t is a
government of the whole people, by
"a majority of the whole people, un-
der such rules and checks as will
secure wise, just and beneficent
government for all the people,
1t is said you can always trust the
people to do justice. If that means
all the people and they all agree, you
can. But ordinarily they do not all
agree, and the maxim is interpreted
to mean that you can always trust a
majority of the people. This is not
invariably true; and every limitation
imposed by the people upon the pow
er OF the majority in their constitu-
tions is an admission that it is not
always true.
No honest, clear-headed man, how
ever great lover of popular govern
ment. can deny that the unbridled ex-
preston Of the majority of COM
munity converted hastily into law or
action would sometimes make a gov
ernment tyrannical and cruel. Con-
stitutions are checks upon the hasty
action of the majority They are
the self-imposed restraints of whole
people upon majority of them to Sc
cure sober action and a respect for
the rights Of the minority, and of the
individual in his relation to other in
dividuals. and in his relation to the
whole people in their character as
state or government.
. . .
The constitution distributes the
functions of the government into
three branches-the legislative, to
make the laws; the executive to ex-
ecute them. and the judicial, to de-
eide in cases arising before it the
rights OF the individual as between
him and others and as between him
and the government. This division of
government into three separate
branches always has been regarded
as a great security for the mainte-
nance of free institutions. and the Sc
curity is only firm and assured when
the judicial branch is independent
and impartial.
The executive and legislative
branches are representative of the
majority of people which elected them
III guiding the course of the govern
ment within the limits of the consti-
tuition. They must act for the whole
people. of course: but they may prop
erly follow, and usually ought to fol-
low. the views of the majority which
elected them in respect to the gov
ernmental policy best adapted to Sc
cure the welfare of the whole people.
But the judicial branch of the gov
eminent is not representative Of
majority of the people il any such
sense, even if the mode Of selecting
judges is by popular election In a
proper sense. judges are servants Of
the people; that is, they are doing
work which must be done for the gov
ernment and in the interest of all the
people. but it is not work in the doing
of which they are to follow the will
of the majority except as that is en-
bodied in statutes lawfully enacted
according to constitutional limita-
tons. They are not popular repre-
sentatiyes.
On the contrary. to fill their office
properly they must be independent
They must decide every question
which comes before them according
to law and justice. If this question
is between individuals they will fol-
low the statute, or the unwriten law
if no statute applies, and they take
the u1written Law growing out of tra-
dition and custom from previous ju-
dicial decisions. If a statute or ordi-
nance affecting a cause before them
is not lawfully enacted. because it
violates the constitution adopted by
the people, then they must ignore the
statute and decide the question as II
the statute had never been passed.
This power is judicial power. i'm
posed by the people on the judges by
the written constitution. In early
days some argued that the obligations
Of the constitution operated directly
on the conscience of the legislature
and only in that manner. and that 1t
vas TO be concIusiyely presumed that
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