New-York tribune., 1912-03-23
DEBATE COURT RECALL
New Roosevelt Doctrine Theme
at AIdine Club Meeting.
"WR0NG AND IMPOSSIBLE"
Justice Not Matter of Major.
ity," O. F. Mathewson Says
Dean Lewis Opposes Him.

The recall Of constitutional decisions on
state constitutional questions, as proposea
by theodore Roosevelt, was subject OF
discussion before the Aldine Club under the
auspices Of the New York Young Republi.
can Club last night. William Draper Lewis.
dean Of the University of Pennsylvania
Law School. whom Colonel Roosevelt quot
ed IN his Carnegie Hall speech, spoke in
favor Of the proposition. Charles F. Ma
thewson, counsel for the gas company 10
the controversy for so-cent gas, spoke in
opposition.
Mr. Mathewson declared that Colonel
Roosevelt's proposition was fundamentally
wrong and impossible. He said the very
proposition on It's face showed the utter
futility and impossibility of putting such
proposition before the people. who would
be called upon to act in a quasi-judicai
capacity.
Justice is not a matter Of majority" he
said. "A man Is entitled as a part OF his
liberty Under the Constitution to work as
long as he pleases, and make more profit II
he sees At, provided by so doing he does
not jeopardize the public health or safety.
Take the bakeshop case, which has
caused Colonel Roosevelt so much anxiety.
The courts decided it was unconstitutional
to limit the hours OF work In that case be-
cause 1t had before II no evidence to show
that 1t was unsanitary or unhealthy to
work so many hours in a bakery any moro
| than It would be to work in ditch. How
! are you going to get this evidence before
the people? How are they going to ex-
anime witnesses? That would be impos-
sible.
Liberty Is individual. Let us not imagine
that any such proposition as Colonel Roose-
velt proposes is going to be progressive It
| Is retrogression Of the worst sort. We
| have been there a few hundred years ago
and got away from It. In the old times
man was the supreme power unto himself
and took everything by force. but those
methods became unpopular with his con-
stituents. So some l25 years ago our wise
! fathers framed the Constitution to do away
with Just such a condition.
1T has been said by President Taft-and
| we'll said-that the real test OF the rule OF
the people IS in placing restraints upon
| themselves, so that the majority may not
| impose upon the minority. You must bear
In mind that II you can wipe out pro-
vision Of the Constitution, whether after a
| court decision or not, by the mere vote OF
the people, you will wipe out all the real
| purpose Of the Constitution and reduce II
to the level of a legislative act, and you
might as we'll have no Constitution at all.
You must not forget that justice Is
above majorities. and that no people can
hear the evidence and weigh these ques-
tions deliberately and unimpassioned, as
| the courts can do"
Dean Lewis said that the strong protest
from many members Of the legal protes-
sion against Colonel Roosevelts plan was
| unQuestionably in great part due TO the
misunderstanding Of exactly what 1t was
that he proposed.
| What Colonel Roosevelt does propose
| he said, 'is this: IL an act Of the Legs
lature is declared by the state courts TO
violate a provision OF the state consiitu-
ton, after an interval for deliberatioD the
| people OF the state shall have an opportu-
nifty to vote on the question whether they
| desire TO have the act become a law, IN
spite OF the opinion OF the court that 1t Is
contrary to the constitution.
lowing to the expression, the recall OK
decisions, many persons have supposed
| that Colonel Roosevelt meant that the
courts judgment in the case In which ne
act was held unconstitutional should lie
reversed; that the judgment which We may
suppose TO have been given for the de-
fendant would, By the vote OF the majority
Of the people OF the state, assembled In
voting booths, be made a judgment in favor
of the plaintiff. 1t is needless to point out
the Righteousness OF such a proposition.
Even II We could be 80 foolish as to
suppose that any American commonwealth
could be induced to adopt II, the provision
would be, OF course, Unconstitutional under
! the clause of the Fourteenth Amendment OK
the Federal Constitution, which provides;
/ That no person shall be deprived Of his
| life, liberty or property without due process
| of law "
Mr. Lewis said that the Interpretation of
! this particular clause in the Constitution
had been somewhat extended in modern
times. He declared that the courts had 10
deal with social and economic conditions
as they now exist and not go into the past
! for too much precedent.
! He said that Colonel Roosevelts propo-
sition furnished wise medium by when
to correct examples OF social injustice as
the result OF court decisions Colonel
I Roosevelt stood between the advocates OF
the two extremes, namely. he said, those
/ who advocated sweeping away all the
power of the courts and those who were
willing to submit all questions which d.
rectly affected the great mass Of the people
| Ia, ba hands of few Judges.
| SUNDAYS NEW.YORK TRIBUNE