The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-03-09

resents the majority of the electorate.
So, too, the legislative members elect
TO uphold certain governmental views
Of the majority which will properly IA
vor the embodiment of such views IN
valid legislation.
But the Judiciary are not represents
tive in any such sense, whether ap-
pointed or elected. The moment they
assume their duties they must enforce
the law as they find it. They must not
only interpret and enforce valid
enactments OF the legislature accord
ing to its intention. but when the leg1s-
lature In It's enactments has trans
crossed the limitations set upon it's
power in the Constitution, the Judicial
branch Of the government must en-
force the fundamental and higher law
by annulling and declaring invalid the
offending legislative enactment. Then
the judges are to decide between In
dividuals on principles of right and
justice
Courts Must Rule Without Favor.
The great body of the law is unwrit-
ten, determined by precedent and
founded on eternal principles of right
and morality. This the courts have to
declare and enforce. AS between the
individual and the state, as between
the majority and the minority, as be-
tween the powerful and the weak,
financially, socially, politically, courts
must hold an even hand and give
judgment without fear or favor. In SO
doing they are performing a govern
mental function; but it is a complete
Misunderstanding OF our form of gov
eminent or any kind of government
that exalts justice and righteousness
to assume that Judges are bound to
follow the viii of the majority of an
electorate in respect of the issue for
their decision. In many cases before
the judges, that temporary majority
is real party to the controversy to be
decided. 1t may be seeking to deprive
an individual or minority of a right
secured by the fundamental law. In
such case, If the judges were mere
representatives. or agents of the ma
jority to carry out it's will, they would
lose their judicial character entirely
and the so called administration of
justice would be a farce.
System Can Be Bettered
Having made clear what the func-
government in maintaining the constI-
tutional guarantees of rights, and in
preserving against the usurpation of
the majority the rights of the nom
voting part of the people and of the
voting minority and of the individual,
We come now to examine the charges
made against the existing system. L
concede that the system is not perfect
- - \
made. | have been preaching reform,
especially in the enforcement of the
criminal law, for years. Then, too, /
have pointed out in addresses and
presidential messages the great need
for cheapening the cost of civil htiga- |
ton and expediting 1t SO as to put as
little a burden on the poor litigant as
possible. The defects in our Judiciary
have not been in the corruption OF the
judges, but mainly in the procedure
and in the helplessness of the judges |
in jury cases to assist in reaching |
right conclusions. The popular i'm |
pulse has been to take away the power |
from the Judge and give it all to the |
jury, and this has not been for the |
public good in the enforcement of the |
law Such defects as / have |
described are completely within the |
control of the legislatures of the state |
and congress; and 1 am glad to say
that the movement for reform has
ben accelerated by action of the state
and national bar associations, and We
NAV look for decided progress in the /
near future.
Admits Courts Have Erred.
But these humdrum defects and
their tedious remedies are not OF the
character to call for poltti
cal discussion or to attract effort from
politicians in the passage of remedial !
The formidable attack
upon our judiciary now is that the
Judges do not respond sufficiently to
popular opinion. 1t is said that courts
are interposing their obstructive pow
pr to the enforcement of legislation
looking to the relief of the oppressed,
nv declaring laws unconstitutional and
by so-called judicial legislation in in
-erpreting into statutes words not in
tended by the legislatures. l do not
intend to discuss these charges, al
though if reduced to specific cases it
would be easy to show many of them
10 be unfounded. For the purposes OF
his discussion, 1 may admit that
courts have erred in this regard, have
1nduly broadened constitutional re-
,trictions in order to invalidate useful
statutes, or have given such statutes
wrong construction. How is it pro-
posed to remedy these wrongs? In
me of two ways, either by the judicial
recall or by the recall of judicial deci-
stons. Let US examine these remedies
judicial Recall One Remedy.
In the remedy by judicial recall it