The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-03-09
He REPLIES TOT.R.
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I'm the remedy by judicial recall
it is proposed to provide by law thaI
whenever a judge has so discharged
his duties as to induce certain pei
centage of the electorae to deem II
wise to remove him. and that percent
age signs a petition asking ms
recall an election shall take place III
which the incumbent shall stanu
against other candidates and Al ne
does not secure a plurality of votes
he is ipse facto removed. Could d
system be devised, better adapted 10
deprive the judiciary of that lndepen-
dence without which the liberty anu
other rights of the individual can not
be maintained against the government
and the majority?
Remedy for Corrupt Judges.
But it is said we may have cor
rupt judges. How are we going to
get rid of them? They can be i'm
peached under our present system
But that is said to be too cumber-
some Well, amend the procedure OF
impeachment. Create tribunal LOT
removal of judges for cause. GIVE
them an opportunity to be heard and
by an impartial tribunal; but do not
create a system by which, in the neat
of disappointment over lost cause,
the defeated litigants are to decide
without further hearing or knowledge
whether the judge who decides against
them is to continue in office.
Let us examine the other method
proposed for the reform of the ju-
dietary. That is a recall of decisions
BY this method when a supreme court
has found a law, intended to secure
public benefit to be invalid because 1t
infringes some constitutional limit the
decision is to be submitted to vote
of the qualified electors and if a ma
jority of them differ with the court
and reverse the decision the law Is 10
be regarded and enforced as valid ana
constitutional.
This is a remarkable suggestion
and one which is SO contrary to any
thing in government heretofore pro
posed that it is hard to give 1t the
serious consideration which it deserves
because of it's advocates and OF the
conditions under which it IS ad-
vanced.
What the court decides, is that the
enacted law violates the tundameh lIsr
law and is beyond the power of the
legislature to enact. But when TINS
issue is presented to the electorate,
what will be the question uppermost
in the minds of most OF them menus aIdu |
forced upon them by the adVocates
of the law? Will it not necessarily |
be whether the law is on its merits
a good law rather than whether II |
conflicts with the constitution M I
Interpretation of the constitution ana !
the operation of law t violate some |
limitation of that instrument are
often nice questions to be settled pS |
judicial reasoning and far slghteu eA7
perience. which are not to be expected
of the electorate, or welcomed by II |
If the issue is transferred to them the
simple question will be of the APPROX
al or disa pproval of the law: w ma.
this recall of decisions will the n
amount to if applied to constitutional
questions is that there Will be sus-
pension of the constitution to enapIe
a temporary majority OF the electo
to enforce Il popular but Invalid act
In Habeas Corpus Cases.
Suppose the act to be invalid be-
cause it infringes the rights of liberty
of a certain unpopular class and by
indirect means suspends the writ of
ha beas corpus in their cases. L ask
any candid, fair minded man II the
decision of such a question when sub
mitted to IL popular majority is not
likely to turn rather upon the popu-
lar disfavor of those affected than
upon the possible infraction of the
liberty of a citizen
"A most serious objection to the
recall of decisions is that it destroys
all probability of consistency in con-
Interpretation. The ma
iority which SuStainS one law IS not
the majority that comes to consider
another and the obligation of consist
ency 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
antee according to popular whim- We
would then have a system of suspend
ing the constitution to meet special
cases. The greatest of all despotisms
Is government of special instances.
But the main argument used to
sustain such a popular review of judi
ciaI decisions is that if the people are
to establish constitution
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 a
fallacious argument
THE approval of general princi-
pies in a constitution on the one
hand, and the Interpretation of a
statute and consideration of its prob
BILE operation in a particular case
md it's possible infringement of a
general principle on the other hand
ire different things. The one is SIM
pie, the latter complex; and the lat
er when submitted to a popular vote
S much more likely to be turned into
IN issue of general approval or dis
approval of the act on its merits for
he special purpose of its enactment
han upon it's viola ton of tn econstitu- |
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