The Washington herald., 1912-02-22


tween the end and the means TO attain
that end Our aim Is to get the type
OF judge that l have described, TO keep
him on the bench as long as possible,
and TO keep of the bench and. II neces-
sary, take of the bench the wrong type
'of judge.
do not believe in adopting the recall
save as a last resort. when It has be-
come clearly evident that no other course
will achieve the desired result. But
either the recall will have TO be adopted
or else II will have to be made much
easier than II now Is to ged rid. not
merely OF a bad judge. but Of a Judge
who. however virtuous. has grown so out
OF touch with social needs and facts
that he Is unfit longer to render good
service on the bench. II is nonsense to
say that impeachment meets the DIM
Guilty. In actual practice We have found
that Impeachment does not work, that
unfit judges stay on the bench In spite
Of II, and indeed because OF the fact
that impeachment is the only remedy
that can be used against them. Where
such is the actual fact II Is idle TO dis
cuss the theory of the case. Impeach-
ment as a remedy for the Ills OF which
the people justly complain is a complete
failure.
We should hold the judiciary in all
respect; but it is both absurd and de-
grading to make fetch Of Judge or Of
any one else.
Many eminent lawyers who more or
less frankly disbelieve in our entire
American system of government for. by,
and OF the people, violently antagonize
this proposal. They believe. and some
times assert, that the American people
are not fitted for popular government,
and that II is necessary to keep the
judiciary independent Of the majority
or of all the people" that there must
be no appeal to the people from the de-
cision OF a court in any case; and that
therefore the judges are TO be established
as sovereign rulers over the people.
take absolute issue with all those
who hold such a position. / regard It
as complete negation Of our whole
system OF government: and IL II became
the dominant position in this country. Il
would mean the absolute upsetting OF
both the rights and the rule OF the peo-
pie. II the American people are not At
for, popular government, and IL they
should OF right be the servants and not
the masters Of the men whom they them
selves put in office. then Lincolns work
government upon which this great DEM
ocratic republic rests Is "A failure.
/ believe, on the contrary, with all my
heart that the American people are 1T
for complete self-government, and that.
in spite of all our failings and short
cOmings. We Of this republic have more
nearly realized than any other people on
earth the ideal OF Justice attained through
genuine popular rule. The position which
Nal ~ "a
is OF necessity a condemnation of Lin
coins whole life: for his great public
career began, and was throughout condi-
toned by, his insistence. in the Dred
Scott case, upon the fact that the Ameri-
can people were the masters and not
the servants OF even the highest court
in the land, and were thereby the final
Of the Constitution
II the courts have the final say so on
all legislative acts. and II no appeal can
lie from them to the people, then they
are the irresponsible masters of the
people. The only tenable excuse for such
a position Is the frank avowal that the
people lack sufficient intelligence and
to be At to govern themselves.
In other words. those who take this posi-
ton hold that the people have enough
TO frame and adopt a consti-
tuition, but not enough Intelligence to
which they have themselves made. Those
who take this position hold that the
people are competent to choose officials
to whom they delegate certain powers,
but not competent TO hold these officials
responsible for the way they exercise
these powers. Now. the power TO inter
pTet is the power 10 establish; and II
the people are not TO be allowed finally
TO interpret the fundamental law, ours
Is not a popular government.
The true view is that legislators and
Judges alike are the servants of the peo-
pie, who have been created BY the peo-
pie just as the people have created the
and they held only such
power as the people have for the time
being delegated to them. II these two
sets OF public servants disagree as to
The amounts OF power respectively dele |
gated TO them by the people under the |
and II the case is OF suf- |
iclent Importance. then, as matter OF |
course. It should be the right OF the peo-
pie themselves to decide between them. |
I do not say that the people are infalli- |
2le. But l do say that our whole his |
ory shows that the American people |
ire more often sound in their cisions |
han is the case with any ofsthe govern |
mental bodies to whom, for their con- |
renIence, they have delegated portions |
" their power II this is not so, then |
here is no justification for the existence |
" our government: and IL It Is so, then |
here is no justification for refusing to /
sive the people the real. and not merely |
he nominal ultimate decision on ques-
ions of constitutional law. Just as the |
'eople. and not the Supreme Court under
'hief Justice Taney. were wise in their
decisions OF the vital questions OF their
lay, so 1 hold that now the American /
,eople as whole have shown themselves
wiser than the courts in the way they |
lave approached and dealt with such 1
'ital questions of our day as those con-
erning the proper control of big cor
,oTations, and Of securing their rights /
o industrial workers.
l call this decision Cby the Court OF
appeals of New York declaring uncon-
titutional the workmen's compensation
ct To the attention Of those who shake
heir heads at the proposal to trust the i
,eople TO decide for themselves what
heir own governmental policy shall be
n these matters. know of no popular
ote by any State of the Union more
agrant in its defiance of right and Jus
ice. more shortslghted in its inability
o face the changed needs of our civiliza-
lon. than this decision by the highest
ourt Of the State Of New York.
As long as injustice is kept thus in
renched by any court, will protest as
trongly as in me lies against such ac-
lon. Remember. when I am asking the
eopIe themselves in the last resort TO
interpret the law which they themselves