Omaha daily bee., 1912-05-19
FUNCTION OF The JUDICIARY
Attorney General Wickersham Dis
cusses Recall of Decisions.
TALKS TO Law STUDENTS
He Says Courts Do Not Have Power
to Declare Valid Laws that
Conflict with the Con-
stitutfea.

PhiIADELPHiA, May H-'N Is the
spirit OF the impatient social refornner
Of the French revolution. not the spirit
OF the Angio-saxon freedom. which ad-
vooates these strange departures from
our national tradition and our national
institutions" declared Attorney General
George w. wiekersham tonight before
the law alumni Of the University OF Penn
sylvania In an address on The judicial
Function" when he referred to the prop
osltipn that decisions be submitted to the
arbitrament of popular election.
That the rights OF all the people can
be advanced by destroying the independ-
ence Of the judiciary. making their al
ready brief tenure subject TO the uncer-
tainty OF momentary popular favor and
subjectfng the decisions resulting from
the careful consideration Of nice questions
Of relative public and private welfare In
the light Of constitutional provisions To
the arbltrament OF popular elections" he
said, "is one Of those strange deiuslons
difficult for any student of law and his
tory to comprehend.
Most OF the recent specific criticisms
Of the judiciary has arisen out OF decl-
sions concerning the constltutionaiity.
under state or federal constitutions. OF
legislation passed In the exercise OF the
police power for the real or ostensible
purpose OF protecting the health and
safety OF the people or of correcting So
cial and economic Injustice.
ffTha ffxnrfiax, ~ a.. 4.,Ss..fn n x.s urlth -
spect to such laws seems to be strangely
misunderstood and grievously mlsrepre.
sented. Certainly law books. will be
searched In vain to establish the con-
tention recently promulgated that the
courts have power to declare such lsws
constitutional. not only when they vio-
late specific clauses OF the state consti-
tuition. but also when members Of the
court regard the act as contrary to their
ideas Of social Justice
The only power which courts of a
state have or have ever claimed In this
country over such laws Is to determine
whether or not they conflict with pro-
visions In the state or federal constitu.
tion. Almost all the state constitutions
embody q declaration Of the fundamental
rights OF life. liberty and the pursuit Of
happiness and against deprivation Of
property without due process Of law,
which are found in magma charta, the
bill OF rights and the Declaration Of In
dependence.
1T must be apparent that one Of the
highest Of the judicial functions Is to
determine whether. under the constitution
OF state. OF. within the rights safe
guarded 10 the citizen by the constitution
Of the United States. acts Of the legis-
lature, passed In pursuance OF well mean
Ing. sometimes wise and sometimes un-
wise efforts to benefit that portion OF
the community, who by numbers or by
organization can most vociferously max.
known their needs. are In fact reasonably
related to q purpose which II Is compe-
tent for the government to effect. or. on
the other hand. constitute arbitrary and
unreasonable legislation. exacting FROM
the citizens not directly benefited by Il
REIMBURSEMENT Of that freedom which
our state and national governments are
established to secure.
THE question presented for the con-
sideration OF every citizen today Is
whether the exercise Of this delicate
function. upon the right management Of
which Is dependent the continued enjoy
ment OF all that makes for the security
Of life. liberty and property Of every citi-
zsn. can best bs entrusted to the judi
ciary. to be exercised In the future as IN
the past; or whether the constitutional
harrierx shall be prostrated before an un-
restrained popular electorate.
MISTAKES have been made by the Judi
ciAry, cases have been wrongly decided.
and the extension OF legal principles to
meet new conditions under judicial inter-
probation and construction has often been
slower than impatient reformers. desirous
OF Immediate results. would wish Yet
no candid ciarc can say that. on the
whole. the history Of the American judi
cisry does not furnish as hish-if -nst a
higher example OF adequate results than
that Of any other branch Of the govern