The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-01-05
Roosevelt Discusses Judges and
Progress in an Editorial.
Says Judiciary Sometimes ViO-
lates the Constitution.
HE FAVORS AN APPEAL
From the Highest Judicial Tri-
bunaI to the People.
They Alone Have the Right to
the Last Word.


New York, Jan. 5.-Theodore Roose-
welt discusses Judges and progress IN
an editorial appearing in the current
issue of The Outlook. He says in part;
Let me, at the outset, put so clear
" that only wilful misinterpretation can
deceive people. just what my position
as to the courts is. I have the very
highest regard, the highest respect and
admiration for the judiciary. As
whole, I think that our judicial officers
stand On higher level than any other
body of public servants, or, Tor the
matter of that, OF private citizens
could name off hand at this moment
number of judges now on the bench
who render to the people more SubStan-
tia1 service of more far-reaching value
than is rendered by any other men in
public or private life-and all OF these
Judges substantially agree with the po
siti0n herein taken, which indeed IS
largely derived from them. l believe
the courts have rendered our people
incalculable services. / hold that the
attitude OF our people toward them
should be one of appreciation and re-
spect; ut not of Servility.
1 most emphatcally believe
that we have been wise IN giving great
power to our judges, including this pow
er Of judicial Interpretation of statutes
10. see whether they conform with the
fundamental law OF lnC 1dtlQ but
also most firmly believe that, like any
other power, this power can be abused,
and that it is a power with which the
people have merely temporarily parted,
and not one which they have perman-
entity alienated. Used cautiously and
moderately and only in the clearest
cases. as it has been used by our great
est judges from the days OF Marshall
to the present time, as it is defended
by writer's such as Mr.. Thayer, it is
fraught with the utmost good to the
body polite. Used recklesSly, wantonly
and foolishly where the case IS so
doubtful that the judges themselves
may be divided nearly equally on the
two sides, as it has again and again
been used in recent years. 1t results in
very great evil
The American Judge.
IT am not speaking of the judges per-
formance of the ordinary judicial func-
ti0n as performed by judges in all lands
the function of the type which people
all over the world have in mind when
they speak of the uprightness of the
Judge. of the independence of the jul
dietary. I am speaking Of the peculiar
function of the American judge, the
function of no other judge in the world,
the function of declaring whether or
not the people have the right to make
laws for themselves on matters which
they deem of vital concern. am not
speaking of the judge in his attitude
of Judge between one individual and
another or one individual and the state;
I arm speaking of the judge when, by
virtue of his position, he declares that
the people as whole have, or have
not, the right to carry out a given pol
icy, a power which may give one man
OF three men or five men the right to
nullify the wishes of the enormous ma
5ority of their 10000, 600 fellow citizens,
a power which has been exercised re-
peatedly. sometimes wisely. sometimes
very unwisely. Bear in mind that am
not at this time even referring TO de-
cisions dealing with the question OF the
respective spheres of action OF nation
and state; have in mind decisions
which declare the people themselves
have no power to act, through either
the national or the state governments
During the last 20 years the courts
here in New Y Ork, helped, I am sorry
to say, once or twice by the supreme
court OF the nation have thrown what
at times have proved well nigh or
altogether insurmountable obstacles In
the path of needed social reforms
Violate the Constitution.
II hold not only that the courts IN
these matters have usurped or at
least exercised in wholly wrong 1aSn-
ion a power properly and clearly add
ing in the people but that they have
thus strained to the utmost (and in
deed in my judgment violated) the
constitution in order to sustain a do
nothing philosophy which has every
where completely broken down when
applied to the actual conditions OF
modern life. These good judges these
upright and we'll meaning men VINO
champion an outworn philosophy do
not realize that the changed conditions
mean changed needs and that the ire
rnendous social problem OF today
cannot be solved by methods adequate
to meet the infinitely simpler prob
lens offered by industrial and social
life a century ago.
when was president the man TO
whom owed most for guidance as to
she proper attitude that courts should
take in matters such as these was Mr..
William H. Moody afterwards justice
of the supreme court who during his
lamentabIy short term of service gave
promise of being one of the greatest
Justices who ever sat on that court. Tt
was he who called my attention to the
first essay in Professor Thayer's book
OF legal essays on the origin and
scope of the American doctrine OF
constitutional law. Nowhere else Is
there a clearer statement both OF the
advantage of comforting upon the
courts the power that they possess uT-
der our system and also OF the furth er
fact that unless that power is wisely
exercised it must inevitab bly, be re-
strained. 1t is believe an advantage
to have fixed in the court the power to
state that a legislative act is uncon-
stftutioual; but only provided that the
power is exercised with the greatest
wisdom and self restraint.
An Appeal to the People.
eff the courts continue to use 1t with