Warren sheaf., 1912-06-27
THE RECALL OF JUDGES
Speech of Hon. Richard BartE,oIdt Of
Missouri, in the House Of Represen.
tatives, Monday, February 26. 1912.

MISSOURI, IN the House OF Represen-
tatives, Monday, February 26. 1912.
Mr.. Bartholdt. Former President
Roosevelt's advocacy of the recall of
judges and court decisions has made
this proposition live political issue,
especially in view of his announced
candidacy for the Presidency. One
Of the latest expressions from a mem
Der Of court on this topic was an ad-
dress delivered by Associate Justice
Stafford, of the Supreme Court of the
District of Columbia. Justice Stat
ford said, in part:
I'VE have built our institutions on
the proposition that the people have
right to rule. Their will is made
known through the suffrage. And
when opinions differ, as they usually
do, the majority musts govern. But that
| is not the whole of the proposition.
If it were, there would be & no safe
guard whatever for the rights of the
minority. The majority might appro-
pirate their property. It might re-
duce them to slavery. 1t might even
take away their lives The proposition,
takes for granted, then, certain guar
antics for the protection of the minor
ity. And what are these? They are
those elementary rights which no ma
jority, however large, may ever vio-
late. They have been recognized in
constitutions and bills of rights, but
they were not created by them: They
lnhere in free government itself, for
human freedom is impossible without
them. Among these rights there is
none more important than this, that
no citizen shall be deprived Of his lib
erty or property except by the judg-
ment of the law, and after a trial be-
fore an Independent and impartial
tribunal. We have now come to the
Keystone of the arch. It is this: The
majority of the legal voters can not
constitute itself this tribunal.
IF it can, it still holds the property
and lives OF the minority in it's hands,
subject to it's mere will and pleasure,
for there is no one who can call it to
account.
Sets Forth An Example.
Let us inquire whether this reason
ing fits the facts of the present time.
take but one example: i popular ma
jority, through the legislature elected
by it., or more directly by the initial
tive and referendum, enacts statute
requiring railroads to carry passen-
gers for l cent mile. A test case
comes before the court. The railroad
insists that the act robs it of it's pro-
perty, and the court so holds There
upon the same popular majority votes
the judges ont of Office and elects 10
I'LL their places judges who will re-
verse the decision. Has not the pop
ular majority constituted itself the
court? May man be the Judge in
his own case?
Let us test the measure by another
fundamental principle. A despot |
makes the law and also decides wheth-
er the particular case comes within
the law. Or he may just as we'll dis
pense with the law, since no one can
question his decision that the case
comes within It. On the other hand i
in free government one body makes
the law, the general rule, while an
other body decides whether the par
ticular case falls within the rule. Thus
the citizen is protected. We call it
keeping the legislative and judicial
departments separate. In a despotisnn
they are united. In free government
they are separate. Now, if the popular
not only makes the law but
also decides whether a given case
falls within it, then the legislative
and judicial powers are united in the
same body and the government ceases
to be free and becomes despotism.
THE proposal to recall judges for
unpopular decisions is nothing less
han proposal to abolish courts. To
abolish courts is to abolish freedom
However innocent the motives Of
those who propose the measure, no
leadlier blow was ever aimed at the
leart Of human liberty than this. The
>eople have only to understand it to
eject it. They are not ready to throw
lway the fruits of their long labors I
md unnumbered battles, labors en- {
lured and battles waged for this very !
hing, that under the broad shield of Z
sacred and inviolable justice the
weakest or most hated might rest Sc &
ure in their liberty, their property, :
heir lives. They will discover the
yrant under this f1attering disguise. t
md in the end they will consign to n
bloquy the names of those who S