The Birmingham age-herald., 1912-03-21

| bility of popular government, is sowing the seeds of confusion and tyranny tBy | this he of course means the tyranny of the majority, that is, the tyranny of the American people as q whole) He also says that my proposal (which as he rightly sees, is merely a proposal to give the people real, instead of only a nomi- nal chance to construe and amend state constitution with reasonable rapidity) would make such amendment and inter pretation "depend on the feyerish, uncer- tain, and unstable determination of suc- cessive votes on different laws by tenn porary and changing majorities;a and hat "it lays the ax at the foot of the tree of well ordered freedom, and subjects the guarantees of life, liberty. and property without remedy to the itful impulse of a temporary majority of an electorate.' This criticism is really less a criti- cism of my proposal than a criticism of all popular government. It is wholly un- founded, unless it Is founded the be- lief that the people are fundamentally untrustworthy. If the supreme court S definition of due process in relation to the police power Is sound, then an act of the legislature to promote the collective interests of the community must be valid, if it embodies a policy held by the pre- vailing morality or preponderant opinion to be necessary to the public welfare. ms IS the question mat propose 10 submit to the people
 Defines Issue
 Mir. Taft fairly defines the issue when he says that our government is and should be a government of all the people by a representative part of the people This is an excellent and moderate de- scription of an oligarchy It defines our government as government of all of the people by a few of the people,"
 MT. Taft, said Colonel Roosevelt, de- cared that the judiciary ought not to be representative" of the people in the sense that the legislature and the execu- tive are "1'his,'' Colonel Roosevelt as- serted "is perfectly true of the judge when he is performing merely the ordi- nary functions of a judge in suits be- tween man and man. It Is not true of the judge engaged in interpreting Cor instance, the due process clause-where the judge as ascertaning the preponder- ant opinion of the people Gas Judge Holmes states it) When he exercises that function he has no right to let his po- litical philosophy reverse and thwart the will of the majority.
 Taft's Is Old Position
 MT. Tafts position is the position that has been held from the beginning of our government, although not always so open i9 htlu, bN d St ol ltpuldblC and honorable men, who, down at bottom. distrust popular government, and, when they must accept fl, accept 1t with re- 1uotance. and hedge 1t around with every species of restriction and check and bal- ance, as to make the power of the people as limited and as ineffective as pos sible. MT. Taft fairly defines the issue when he says that our government is and should be a government of all the people by a representative part of the people. This is an excellent and mod crate description of an oligarehy It de- fines our government as government of all of the people by few of the people. MT Taft, in his able speech. has made what is probably the best possible pre- sentaton of the case for those who feel in this manner.
 Disbelief in People
 Mir Taft again and again, through his speech, expresses his disbelief in the peo- pie when they vote at the polls. In one sentence he says that the proposition gives powerful effect to the momentary i'm pulse of majority of an electorate and prepares the way for the possible exer- else of the grossest tyranny. Elsewhere he speaks of the 'feverish uncertainty and unstable determination of laws by temporary and changing majorlties,' and again he says that the system l propose WOulu result III SuSpenSlOn or dppllCd- ton of constitutional guarantees accord ing to popular whm,' which would de- stroy all possible consistency in consti tutional interpretation. l should much like to know the exact distinction that is to be made between what Mir. Taft calls the ftful impulse of a temporary ma jorlty when applied to a question such as that I raise.
 'sMr. Tafts position Is perfectly clear IL is that we have in this country a special class of persons wiser than the people, who are above the people, who cannot be reached by the people, but who govern them and ought to govern them; and who protect various classes of the people from the whole people. That is the old, old doctrine which has been acted upon for thousands of years abroad and which here in America has been acted upon sometimes openly, sometimes secretly, for 40 years by many men in public and pri- Vate life, and l am sorry to say by many judges.
 Stands on Columbus Speech
 q stand on the Columbus speech The principles there asserted are not new, but l believe that they are necessary to the maintenance of free democratic gov ernment. The part of my speech in which advocated the right of the people to be the final arbiters of what is due pro-
 
 acted for the general welfare will ulti- mately, I am confident, be recognized as giving strength and support to the courts instead of being revolutionary and subversive. The courts today owe the country no greater or clearer duty than to keep their hands off such statutes when they have any reasonably permissible relation to the public good
 Has Had Experience
 My remedy is not the result of library study of constitutional law. but of actual and long continued experience in the use of governmental power to redress social and industrial evils.
 'lf my critics would only show the same sober judgment of which they declare the people at large to be incapable, they woul drealize that my proposal is one of moderation and common sense.
 Colonel Roosevelt quoted the remarks of William Draper Lewis. dean of the law school of the University of Pennsyl- vana, who approved MT. Roosevelt's S plan of popular recall of judicial de- cisions regarding constitutional amend mpnfS b1tf declared ft unfortunate that