New-York tribune., 1912-03-09

as II readily can be, OF course. the court
VIII follow IL.
Strikes a Blow at Freedom.
have examined this proposed method
Of reversing judicial decisions on con-
stitutional questions with care. ! do not
hesitate 70 say that Il lays the axe at tho
foot of The tree of we'll ordered freedom
and subjects the guarantees OF life, lib
erty and property without remedy to the
fitful impulse Of a temporary majority OF
an electorate.
Mr.. Justice Miller OF Iowa, was one OF
the greatest jurlsts that ever adorned the
Supreme bench of the United states.
Speaking for that great court In the case
of Loan Association agt. Topeka (2O wall:
695), in a case presenting the question: VI VI
the constltutionality of law imposing a q
general tax on all citizens 10 pay Loa :
factory to be run and owned by a private
company. after referring TO the act as al
invasion of private right, he SAID:
1t must be conceded that there are such rights
in every free government beyond the control OF
the state government which recognized no
such rights. which held the lives, the liberty
and the property OF it's citizens subject at all
times to the absolute disposition and unlimited
control OF even the most democratic repository
OF power IS after all. but q despotism. IL is
true 1t is a despotism OF the many-of the ma
jority, IL you choose to call It 80. But 1t is
none the less a despotism. II may well be
doubted II a man is to hold all that he is
accustomed to call his own, all in which he has
placed his happiness and the security OF which Is
essential TO that happiness. under the unlimited
dominion OF others. whether 1t Is not wiser that
this power should be exercised by one man than
by many
The theory OF our governments, state and ma
tional, Is opposed to the deposit OF unlimited
power anywhere The executive the legislative
and the judicial branches of these governments
all OF limited and defined powers.
There are limitations on such power which
grow out OF the essential nature Of all free gov
ernments-implled reservations OF individual
rights without which the social compact could
not exist, and which are respected by all gov
ernments entitled TO the name.
To lay with one hand the power OF the gov
ernment on the property Of the citizen. and with
the other to bestow it upon favored individuals
to aid private enterprises and build up private
fortunes. is none the less robbery because It
is done under the forms OF law and is called
taxation. This Is not legislation. 1t Is a decree
under legislative forms.
DO not the words ana illustrations or
this case bring before US what we might
expect from the exercise of the power Of a
popular majority to reverse a solemn judg-
ment OF court in favor OF an individual
against measure that for the time being,
seemed to the people something that would
help all and yet which was plainly a tres
pass upon individual rights?
Do II Deliberately il At All.
I agree that we are making progress and
ought to make progress in the shaping or
governmental action to secure greater
equality OF opportunity, to destroy the un-
due advantage OF special privilege ana OF
accumulated capital and TO remove op-
structons to the pursuit Of human happi-
ness, and in working out these difncult
problems we may possibly have. from
time to time, to limit or narrow tho breadtn
OF constitutional guarantees in respect OF
property by amendment.
But IL We do IT, let us do II deliberately,
understanding what we are doing, ana with
fun consideration and clear Weighing or
what we are giving up OF private right 1or
the general welfare. Let us do II under
circumstances which shall make the opera
ton OF the change uniform and Just, and
not depend on the feverish, uncertain ana
unstable determination or successive votes
en- different laws by temporary and chans-
ing majorities
Such a proposal as this 10 utterly with
out merit or utility, and, instead OF being
progressive, is reactionary; instead OF
beina in the interest Of all the people
and Of the stability Of popular govern
ment, is sowing the seeds OF confusion
and tyranny.