Perrysburg journal. (Perrysburg, Wood Co., O. [Ohio]) 186?-1965, 1912-03-15

| posed that IL Is hard to give Il tho
serious consideration which It de-
serves because of its advocates and
OF the conditions under which it is
advanced.
States Objections.
What the court decides, is that the
enacted law violates the fundamental
law and is beyond the power of the
legislature to enact. But when this
issue is presented to the electorate,
what will be the question uppermost
in the minds of most of them and
forced upon them by the advocates of
the law? Will it not necessarily be
whether the law is on it's merits
good law rather than whether it con-
Ricts with the constitution? The in
depreciation of the constitution and
the operation of law to violate some
limitation of that instrument are
often nice questions to be settled by
judicial reasoning and farsighted ex-
perience, which are not to be expect
ed Of the electorate, or welcomed by
it. IL the issue is transferred to them
the simple question will be of the
approval or disapproval of the law.
| What this recall Of decisions will
then amount to, if supplied to consti-
tutional questions, Is that there will
be suspension of the constitution
to enable temporary majority of the
electorate to enforce a popular but
invalid act.
Suppose the act to be invalid be-
cause it infringes the rights of lib
erty of certain unpopular class and
| by direct means suspends the writ of
habeas corpus in their cases. ask
any candid, fair-minded man IL the
decision Of such a question when sub
mitted to a popular majority is not
likely to turn rather upon the pop
ular disfavor of those affected than
upon the possible infraction of the
constitutional liberty of a citizen. Let
another law involving other classes
who could make themselves heard be
submitted and would not the courts
decision be likely to be sustained by
the majority?
Take another case, instances Of
which have frequently arisen in our
history: Suppose, in the early devel-
opment of state, the question arises
whether series of special privileges
| shall be granted to a rich company
willing to invest if only the privileges
are exclusive and certain. Suppose
the court finds the law unconstitu-
tional, and the decision is submitted
to the people. In an early state of
development the popular yearning is
for capital and expansion, and the
popular vote might well fasten such
burden on the Gtate and people for
ever. OF coursc, in this day and gen.
GRAFTON, such danger will be said to
be remote; but in a business and
political atmosphere, like that in
Alaska of today, the popular view is
| different. Later on, of course, the
people might and probably would
change in respect to another but sim
liar law.
"a most serious objection to the
recall of decisions is that it destroys
all probability of consistency in con-
stitutional Interpretation. The major
ity which sustains one law is not the
same majority that comes to con-
| oAoCh chOIhSAB anu tAC ODli6dLlOh vi
consistency Of popular decision is one
which would sit most lightly on each
recurring electorate, and the opera
tion of the system would result in
suspension or application of consti-
tutional guarantees according to pop
ular whim. We would then have a
system of suspending the constitution
to meet special cases. The greatest
of all despotisms is government of
special instances.
"But the main argument used to
sustain such popular review of ju-
dicial decisions is that If the people
are competent to establish consti-
tuition they are competent to interpret
it, and that this recall of decisions
Is nothing but the exercise Of the
power of Interpretation. This is
clearly fallacious argument. The
approval of general principles in a
constitution, on the one hand, and the
Interpretation of a statute and con
sideration of its probable operation in
a particular case and its possible in
fr,ngeInent of general principle, on
the other hand, are very different
things. The one is simple, the latter
complex; and the latter when sub
mitted to popular vote, as already
pointed out; is much more likely to be
turned into an issue of general ap
proval or disapproval Of the act on Its
merits for the special purpose of Its
enactment than upon its violation oi
the constitution. Moreover, popular
majority does not adopt constitu
tion, or any principle of it, or amend
its terms, until after it has beer
adopted by constitutional conven
tion or legislature, and the fna
adoption is, and ought to be, sur
rounded with such checks and delays
as to secure deliberation. In othel
words, the course of procedure in the
adoption of constitution or amend
ment is very different from what the
proposed vote of majority on con
i "a