Evening star. [volume] (Washington, D.C.) 1854-1972, 1912-03-09

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thout remedy to the fitful inn
y of an electorate. president
Electorate to deem it wise to remove him.
and that percentage sign a petition ask
ling his recall, an election shall take place
in which the incumbent shall stand
|against other candidates; and if he does
not secure q plurality of votes. he Is ipso
factO removed. / have pointed out that
under our form of government and Con-
stitution many of the issues arising be-
fore our courts are in effect issues be-
! tween the state and the individual, be-
tween the majority and the minority
cases in which the popular interest might
be greatly excited to secure a favorable
judgment. BY this system the question
whether the judge is to be removed or
not is to be left to that majority that
may be greatly aroused to secure from
him judgment favorable to them
Could n system be devised better
adapted to deprive the judiciary Of that
independence without which the lib
erty and other rights Of the individual
cannot be maintained against the gov
| eminent and the majOrityS
| But it is said we may have corrupt
judges. How are we going to get rid OF
them? They can be impeached under our
present system. But that is said to be
too cumbersome. Well, amend the pro-
cedure of impeachment. Create a tribunal
! for 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 heat of disap-
pointment over a 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. 1t would be hard to devise a
more unjust and ineffective method of
purifying the judiciary or one less likely
to promote courage Of honest conviction.
Recall Of Decisions.
Let us examine the other method pro-
| posed for the reform Of the judiciary.
That is a recall of decisions BY this
method, when a supreme court has found
| law, intended to secure public benefit,
| to be invalid because it infringes some
| constitutional limitation. the decision is
| to be submitted to vote of the qualified
| electors, ard if a majority of them diff
| fer with the court and reverse the deci-
| sion, the law is to be regarded and en-
forced as valid and constitutional.
This is a remarkable suggestion. and
one which is so contrary to anything in
government heretofore proposed that it is
| hard to give it the serious consideration
which 1t deserves because of its advocates
and of the conditions under which it is
| advanced
/ What the court decides. is that the en-
| acted law violates the fundamental law
| and is beyond the power of the legisla-
/ ture to enact. But. when this issue is
| presented to the electorate. what will be
| the question uppermost in the minds of
most Of them and 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
| it conflicts with the Constitution? The
Interpretation Of the Constitution and
the operation Of a law to violate some
limitation of that instrument are often
| nice questions to be settled by judicial
reasoning and farsighted experience,
which are not to be expected Of the
electorate, or welcomed by 1t. II the
| issue II transferred to them the simple
question will be Of the approval or dis
approval Of the law. What this recall
of decisions will then amount to, IL ap-
piled to constitutional questions, IL that
there will be a suspension Of the Con-
stftutiOn to enable a temporary ma
jority Of the electorate to enforce a
popular hut invalid act.
| Suppose the act to be invalid because
| it infringes the rights of liberty of GER
| tain unpopular class and by indirect
| means suSpendS the writ of habeaS
! corpus in their cases. I ask any can
did. fair-mnded man if the decision of
| such a question when submitted to a
popular majority is not likely to turn
rather upon the popular disfavor of those
affected than upon the possible infrac-
ton of the constitutional liberty of citi-
| zen. Let another law involving other
classes who could make themselves
| heard be submitted and would not the
/ courts decision be likely to be sustained
| by the majority?
take another case, instances of which
have frequently arisen in our history:
| Suppose, in the early development of a
state. the question arises whether series
of special privileges shall be granted to
| a rich company willing to invest II only
| the privileges are exclusive and certain.
| Suppose the court finds the law unconstf-
| tutional, and the decision is submitted to
! the people. In an early state of develop
ment the popular yearning is for capital
and expansion. and the popular vote might
well fasten such a burden on the state
and people forever. OF course. in this
day and generation. such danger will be
| said to be remote; but in business and
| political atmosphere, like that in Alaska
Of today, the popular view is different.
Later on. of course, the people might. and
| probably would. change in respect to an
| other but similar law.
Consistency Destroyed.
| "a most serious objection to the recall
| of decisions is that it destroys all prob
| ability Of consistency in constitutional in
| depreciation. The majority which sus-
| tains one law is not the same majority
that comes to consider another. and the
obligation of consistency Of popular de-
cision is one which would sit most lightly
| on each recurring electorate. and the
| operation of the system would result in
| suspension or application OF constitutional
/ guarantees according to popular whim. We
| would then have system OF suspending
| the Constitution to meet special cases.
The greatest Of all despotisms Is gov
| eminent Of special instances.
| But the main argument used to sus-
| tain such a popular review Of judicial
decisions is that IL the people are COM
| petent to establish constitution they
are competent to interpret 1t. and that
| this recall of decisions Is nothing but
the exercise Of the power of interpreta-
| ton. This is clearly a fallacious argu-
ment. The approval Of general princi-
pies in u constitution. on the one hand.
and the Interpretation Of statute and
consideration of its probable operation in
| g. particular case and its possible in
! fringement of a general principle, on the
| other hand, are very different things.
| The one Is simple, the latter complex
| and the latter when submitted to a pop
ular vote, as already pointed out, Is much
more likely TO be turned into an issue
| of general approval or disapproval OF
| the act on It's merits for the special pur-
pose of its enactment than upon its vio-
popular majority does not adopt con-
| stitution, or any principle Of 1t, or amend
| its terms. until after 1t has been adopted
by "a constitutional convention or a leg
| islature, and the final adoption is. and
| ought to he surrounded with such