The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-21

Here again the settled win Of go
ciety to correct confessed evils has
been set at naught by those who
place metaphysics above life. It is
the courts, not the constitutions. that
are at fault 1t is only by the process
which James Russell Lowell. when
answering the critics of Lincoln,
called 'psttifoggtng the constitution,
that constitutions which were de-
signed to protect society can thus be
made to defeat the common good.
Here again the recall is a recall OF
the administration of justice back
from academical refnements to social
service
There is ono kind of recall IN.
which I very earnestly believe, and
the immediate adoption Of which
urge. There are sound reasons Tor
being cautious about the recall OF a
good Judge who has rendered an I'M
wise and improper decision. Every
public servant. no matter how valua-
bic, and not emitting Washington or
Lincoln or Marshall, at times makes
mistakes. Therefore we should be
cautious about recalling the Judge.
and we should be cautious about in
terfering in any way with the Judge IN
decisions which he makes in the ordi-
nary course as between individuals.
But when a Judge decides constitu-
tfonal question, when he decides what
the people as a whole can or cannot
do, the people should have the right
to recall that decision II they think 1t
wrong. We should hold the judiciary
in all respect; but it Is both absurd
and degrading to make fetish OF a
Judge or Of any one else.
Lincoln actually applied In sue
cessful fashion the principle of the
recall in the bred Scott case. He de-
nounced the Supreme court for that
ubiquitous decision in language much
stronger than I have ever used in
criticizing any court, and appealed to
the people to recall the decision-the
word recall in this connection was
not then known, but the phrase ex-
actly describes what he advocated.
He was successful, the people took his
view, and the decision was practical
ly recalled 1t became q dead letter
without the need Of any constitutional
amendment
The Law and the state.
edy for a wrong such as Abraham
Lincoln described is difficult. But
the remedy is not difficult in a state.
What the Supreme court of the ma
ton decides to be law binds both the
national and the state courts and all
the people within the boundaries OF
the nation. But the decision Of a
state court on a constitutional ques-
ton should be subject to revision by
the people of the state. Again and
again in the past Justice has been
scandalously INSTRUCTED by state
courts declaring state laws in con-
flict with the Federal Constitution,
although the Supreme court of the ma
ton had even decided in a contrary
sense. When the supreme court OF
the state declares a given statute IN
constitutional because in conflict with
tho state or the National Constitution,
its opinion should be subject to re-
vision by the people themselves.
Such an opinion ought always to be
treated with great respect by the peo-
pie, and unquestionably IN the major
ity Of cases would be accepted and
followed by them. But actual ex-
perience has shown the vital need of
the people reserving to themselves
the right to pass upon such opinion.
II 1t is sustained well and good. If
not, then the popular verdict is to be
accepted as final, the decision IS to
be treated as reversed. and the con-
struction of the Constitution definite
~ decided-gubject only to action by
the Supreme court of the United
States.
Many eminent lawyers who more or
less frankly disbelieve in our entire
American system of government for,
by, and of the people violently an
tagonize this proposal. They believe,
and sometimes assert, that the Amer
lean people are not fitted for popular
government, and that it is necessary
to keep the judiciary independent of
the majority or of all the people,"
that there must be no appeal to the
in any case; and that therefore the
judges are to be established as sover-
eign rulers over the people. I take
absolute issue with all those who hold
such a position. regard it as a COM
plete negation of our whole system |
of government: and If It became the
dominant pOsltlOn IN this country. 1t !
would mean the absolute upsetting of !
both the rights and the rule of the |
people. If the American people are |
not At for popular government, and
il they should Of right be the servants
and not the masters Of the men whom +
they themselves put in office, then /
Lincodn's work was wasted and the
whole system of government upon
which this great democratic republic
rests Is q failure. I believe, on the
contrary, with all my heart that the
American people are 1T for complete