The Bemidji daily pioneer., 1912-03-09

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another but similar law
A most serious objection to the re
call of decisions is that it DESTROYS all
probability of consistency in consti
tutional Interpretation. The majorit,
which sustains one law is not the
same majority that comes to conside,
another, and the obligation Of consis
tency of popular decision is one which
would sit most lightly on each recur.
ring electorate, and the operation OF
the system would result in suspension
or application of constitutional guar
antics according to popular Whim
We would then, have system of sus
pending the constitution to meet spe
cial cases. The greatest of all des
potisnls Is government of special in
stances. -..> .,-z~, e.
But the main argument used to sus
tain such popular review Of judiciai
decisions is that the people are
competent to interpret it and that this
RECALL of decisions is nothing but the
exercise Of the power of interpreta
ton. This IS clearly a fallacious ar
gument. The approval Of general prin
ciples in a constitution on the one
hand and the Interpretation Of stat
ute and consideration OF It's probable
operation in a particular case and its
possible infringement of genera
principle on the other hand are very
different things. The one Is simple
the latter complex, and the latter
when submitted to a popular vote, as
already pointed out, is much more
likely to be turned into an issue OF
general approval OF disapproval of the
action, its merits for the special pur
pose of it's enactment than upon its
violation of the constitution. More
over, a popular majority does not
adopt a constitution or any principle
of it or amend it's terms until after II
has -eben adopted by constitutions
convention or legislature and the
final adoption is and ought to be sur
rounded with such checks and delays
as to secure deliberattion. In Other
words, the course of prosedure in the
adoption of a constitution or amend
ment is very different from what the
proposed vote of majority on con
stitutiopal Interpretation would be.
Protection Of Constitution.
Constitutions ought to be protected
by such requirements as to their
amendment as to insure great deliber,
alton by the people in making them
much greater than one vote of a mere
Temporarily majority. This -methoo1
of amending the constitution would
give it no more permanence thanl
that Of an ordinary legislative act and
would give to the inalienable rights OF
liberty, private property and the pur.
suit of happiness no more sanction
than that of an annual appropriation
bill Can it be that the power of a
temporary majority of the electorate
by single popular vote to do away
with rights secured to individuals
which have been inviolable for 7OC|
years since the days of Magma Charta
approves itself to those who love lib
erty and who hold dear it's sacred
guarantees? Would we not in giving
such powerful effect to the momentary
impulse of a majority of an electorate
prepare the way for the possible
exercise of the grossest tyranny?
Finally, I ask what is the necessity
for such a crude, revolutionary, fitfu1
and unstable way of reversing judicial
construction of the constitution? Why,
if the construction is wrong, can it
not be righted by q constitutional
amendment? The securing of that, It'll
is true, is usually hedged about by
checks and balances devised to secure
delay, deliberation, discussion before
change of the fundamental law !
But such amendments can be made
and it 80 the effect of the decision can
Ie reversed in respect to new law
oy an amendment with express terms
If authority to enact such a law.
An answer made to this is that the
same judges will corstrue the amend
ment and defeat the popular will, as
In the first instance. This assumes
dishonesty and gross violation Of
their oaths of duty on the part of
judges, hypothesis utterly untenable.
II the meaning of the amendment is
made plain, as it readily can be of
course, the Court will follow It. =
have examined this proposed
method Of reversing judicial decisions
on constitutional questions with care:
I do not hesitate to say that it lays
the AK at the foot of the tree of we'll
ordered freedom and subjects the
guarantees of life. liberty and proper
-ty without remedy to the fitful i'm.
pulse Of temporary majority Of an
electorate.
Opinion Of Justice Miller.
Mr. Justice Miller of Iowa, was one
Of the greatest jurists that ever adorn-
ed the supreme bench of the United
States. Speaking for that great court
in the case of Loan Association VS..
Topeka GO Wall 655) in case pre-
senting the question of the consti-
tutionality of law imposing gen.
eral tax on all citizens to pay for a
factory to be run and owned by
private company, after referring to
the act as "An invasion of private
Right" he said:
'.t must be conceded that there are
such rights in every free govern
ment beyond the control Of the state.
A government which recognized no
such rights which held the lives, the
liberty and the property OF its citi-s
zens subject at all times to the abb