The Washington times., 1912-02-21

would have equaled the damage done
10 the community by Judges whose
conduct had revolted not only the spirit
sense. do not believe in adopting the
recall save as last resort, when II has
become clearly evident that no other
dourse will achieve the desired result.
adopted or else II will have 10 be made
much easier than II now Is to get rid,
not merely of bad Judge, but Of a
judge who, however virtuous, has grown
facts that he is UNIT longer to render
good service on the bench. II Is nom
sense to say that impeachment meets
the difficulty. In actual practice we
have found that impeachment does not
work, that unfit Judges stay on the
bench in spite of II, and indeed be-
cause of the fact that impeachment is
the only remedy that can be used against
them. Where such is the actual IA ct II
Is idle to discuss the theory of the case.
Impeachment as a remedy for the Ills
of which the people Justly complain Is
a complete failure. A quicker, a more
summary, remedy is needed; some rem
edy at least as summary and as dras-
tic as that embodied In the Massa-
chusetts constitution. And whenever II
be found in actual practice that such
, remedy does not give the needed results,
I would unhesitatingly adopt the re-
call.
Urges Recall of Decisions.
But there is one kind of recall In
which I very earnestly believe and the
immediate adoption of which l urge.
There are sound reasons for being cau-
tious about the recall of a good judge
who has rendered an unwise and inn
proper decision. Every public servant,
no matter how valuable. and not omit
ting Washington, or Lincoln, or Mar
shall, at times makes mistakes. There
| fore, we should be cautious about re-
calling the judge, and we should be
cautious about interfering in any way
with the Judge in decisions which he
makes in the ordinary course as be-
tween individuals. But when judge
decides a constitutional question, when
he decides what the people as whole
can or cannot do, the people should
| have the right to recall that decision
| II they think II wrong. We should Eold
the judiciary in all respect but II is
both absurd and degrading to make a
fetish of a judge or of anyone else.
Abraham Lincoln said in his first In
augural: IF the policy of the Govern
ment upon vital questions affecting the
| whole people is to be irrevocably fixed
| by decisions of the Supreme Court
the people will have ceased to
| be their own rulers, having to that
| extent practically resigned their govern
ment into the hands of that eminent
| tribunal. Nor is there in this view any
| assault upon the courts or the judges.
| Lincoln actually applied in successful
fashion the principle Of the recall in the
bred Scott case. He denounced the
| Supreme Court for that ubiquitous de-
Cision in language much stronger than
| I have ever used in criticising any
court and appealed to the people To
| recall the decision--the word recall
| in this connection was not then known,
| but the phrase exactly describes what
| he advocated He was successful, the
people took his view, and the decision
90, all 81 hAr q
| dead letter without the need of any con-
| stitutlonal amendment. In any contest
| today where the people stand for justice
| and the courts do not, the man who
| supports the courts against the people
is untrue to the memory of Lincoln
| and shows that he is the spiritual heir
not of the men who followed and sup
ported Lincoln, but Of the Cotton Whips
| who supported Chief Justice fancy and
\ denounced Lincoln for attacking the
| courts and the Constitution.
Remedy Now Difficult.
| Under our Federal system the remed )
for a wrong such as Abraham Lincoln
described is difficult. But the remedy
4 Is not difficult in a State. What the
| Supreme Court of the nation decides to
| be law binds both the national and the
| State courts and all the people within
| the boundaries of the nation. But the
| decision of a State court on a constitu'
tiOnal question should be subject TO re-
| vision bv the people If the St0te. Agar
and again. in the past Justice has bccI
scandalouslv INSTRUCTED by state courts
declaring state laws in conflict witt
the Federal Constitution. although the
Supreni" Court Of :he Nation had never
So de'ided or had even decided in {
contrary sense. When the supreme Cour
of the state declares. y given statute nv
constitutional. because in conflict witt
the Stats or the National Constitution
ITS opinion should he subject a revision
bv the people themselves Such Al
opinion ought always to be treated will
great respect nv the reOple. aud undues
IiouablN in the ma iority of cases woul'
he accepted and followed bv them. Blu
actual experience has shown the vita
need of the Deople reserVin: TO them
selves the right to pass upon sucl
opinion. II any considerable number o
the people Feel that he decision is il
defiance of Justice, they should be giVei
the right bv netition to bring before th
voters ut some subsequent election