The Birmingham age-herald., 1912-01-06
Not Ordinary Function


 CT am not speaking of the judges per- formances of the ordinary judicial fune- ton as performed by judges in all lands, inc function of the nature of which peo- nle the world over have in mind when they speak of the uprightness of, the judge of the independence of the Judiciary. l am speaking of the peculiar function or the American judge, the function or no other fudge in the world, the functionsof declaring whether or not the people have the right to make laws for themselves on matters which they deem of vital concern 1 am not speaking Of the judge in his attitude of judge between one in dividual and another or any individual and the state; I am speaking of the judge when by virtue of his position he declares that the people as a whole have or have not the right to carry out a given policy a power which may give one man or three men or five men the right to nuilify the wishes of the enormous majority of their ao.Oo0O00 fellow citizens, power which has been exercised repeatedly, sometimes correctly, some times incorrectly
 Bear in mind that I am not at this time even referring to decisions dealing with the question of the respective spheres of action of nation and stare; I , have in mind decisions which declare the s,eople themselves have no power to act through either the national or state gov erninents.
 During the last 25 years the courts here in New York helped, I am sorry to say, once or twice by the supreme court of the nation. certain things, and pros trated things which proved well nigh or altogether insurmountable in the path of needed social reforms.
 q have alluded already to the decision of the New York court which forbade the neope of New York through their leg
 .ce-<. of tenement house factories. Almost without exception every intelligent social worker whom have ever met, every man really interested in the betterment of social ani industrial conditions among our working people in giving better homes to the working people in great cities, and in giving better conditions of labor Co them when they are at labor almost with out exception every one qualified to judge en these matters has agreed that this de- cision was a blow to decent citizenship, fl blow to the effort to achieve genuine reform, genuine betterment of social con ditions of so austere nature that it's mis- ebievous effects can hardly be oserstated.
 Men Were Upright
 "I have no doubt the men making ,he decision were upright men of high attain nents, but they did as much damage us the worst legislative body actuated by the worst motives could possibly have done. I hold not alone the courts in these mat ters have usurped or at least exercised in wholly wrong fashion a power properly and clearly abiding in the people, but tliey have strained to the utmost and, in- deed. in my judgment violated the con stitution in order to sustain a do nothing philosophy which has everywhere com pletely broken down when applied to the actual conditions of modern life.
 These good judges. these upright and well meaning men who champion an out worn philosophy do not realize that the changed conditions mean changed needs snd that the tremendous social problem of today cannot be solved by methods n- adequate t. meet the infinitely simpler problems offered by industrial and social life now. When l was President the man to whom I owed most for gull. dance as to the proper attitude that courts should take ir. matters such as there was MT. William H. Moody, after ward justice of the supreme court who during his lamentably short period of strvice gave promise of being one of the greatest justices who ever sat on tine court 1t was he who called my attentipn to the ,tf st essay in professor Thayer's book of legal essays on the origin and scope of the American doctrine of constitutional law Nowhere else is 
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