Daily capital journal. (Salem, Oregon) 1903-1919, 1912-02-24

~, tnen tnere is no Justification for
tne existence Of our government. and
II II is so, then there is no iustification
Ior refusing to give the people the real
and not merely the nominal. ultimate
decision on questions of CONSTITUTIONS
law, Just as the people, and not the
supreme court under Chief Justice
Ianey, were wise in their decisions ~
tne vital questions Of their day. so
mold that now the American neonle
as whole have shown themselves
wiser than the courts in the way tbev
nave approached and dealt with snoh
vital questions Of our day as those
concerning the proper control of big
corporations and Of securing their
rights to industrial workers.
Here am not dealing with theories
am dealing with actual facts. In
New York, in Illinois, in Connecticut.
lamentable injustice has been perpet-
uated, often for many years, by decis-
ions OF the state courts refusing ia
permit the people of the states to ex-
ereise their right as a free people to
do their duty as a conscientious people
IN removing grave wrong and social
injustice. These foolish and iniuuit-
GUS decisions have almost always been
rendered at the expense of the weak /.
they have almost always been the
means of putting a stop to the effort
to remove burdens from wage-work-
ers, to o'secure to men who toll on the
farm and on the railway, or in the
factory, better and safer conditions of
labor and of life. Often the Judges
who have rendered these decisions
have been entirely well-meaning men.
who, however, did not know lFe as
they knew law, and who championed
some outworn political philosophy
which they assumed to impose on the
people. Their associations and sur
roundings were such that they had no
conception Of the cruelty and wrong
their decisions caused and perpetu-
ated. Their prime concern was with
the empty ceremonial of perfunctory
legalism, and not with the living spirit
OF justice. A typical case was the de-
cision rendered but few months ago
by the court Of appeals Of my own
state, the state Of New York, declaring
unconstitutional the workmen's COM
pensation act. In their decision the
judges admitted the wrong and the
suffering caused by the practices
against which the law was aimed.
They admitted that other civilized ma
tions had abolished these wrongs and
practices. But they took the ground
that the constitution of the United
States instead Of being an instrument
to secure justice, had been ingeniously
devised absolutely to prevent Justice.
They insisted that the clause in the
constitution which forbade the taking
OF property without due process of
law forbade the effort which had been
made in the law to distribute among
all the partners in an enterprise the
effects of the injuries to life or limb
of wage-worker. In other words,
they insisted that the constitution had
permanently cursed our people with
impotence to right wrong, and had
perpetuated a cruel iniquity; for cruel
iniquity is not too harsh a term to use
in describing the law which, in the
event Of such an accident, binds the
whole burden Of cripplng disaster on
the shoulders least able to bear 1.-THE
shoulders of the crippled man himself,
or Of the dead mans helpless wife and
children. No anarchist orator, raving
against the constitution, ever framed
an indictment of It so severe as these
worthy and well-meaning judges must
be held to have framed II their rea-
soning be accepted as true. But, as
matter OF fact, their reasoning was
unsound, and was as repugnant to ev-
cry sound defender of the constitution
as to every believer in justice and
righteousness. In effect, their decis-
ion was that we could not remedy
these wrongs unless we amended the
constitution mot the constitution Of
the state, but the constitution Of the
nation) by saying that property could
be taken without due process Of lawl
It seems incredible that any one
should be willing to take such q posi-
ton II is a position that has been
condemned over and over again by the
wisest and most far-seeing courts. In
It's essence II was reversed by the de-
clsion of state courts In states like
Washington and Iowa, and by the SUI
preme court Of the nation in a case
but a few weeks old,
call this decision to the attention
OF those who shake their heads at the
proposal to trust the people to decide
for themselves what their own govern
mental policy shall be in these mat
ters. ! know Of no popular vote by
any state of the union more fragrant
in its defiance OF right and justice
more short-slghted in les inability to
face the changed needs Of our civiliza-
ton, than this decision by the highest
court Of the state Of New York. Many
Of the Judges OF that court I know
personally, and for them | have a pro-
found regard. Even for as flagrant 0
decision as this / would not vote foI
their recall; for / have no doubt the
decision was rendered in accordance
with their ideas Of duty. But most
emphatically do wish that the people
should have the right to recall the de-
cislon itself, and auth0ritatively e
stamp with disapproval what cannot
but seem to the ordinary plain citizen
monstrous misconstruction Of the
constitution, a monstrous perversior
of the constitution into an instrument
for the perpetuatlon Of social and In
dustrlal wrong and for the oppression
OF the weak and helpless No ordin'
ary amendment to the constitution
would meet this type Of case; and In
tolerable DELAY and injustice would bt
caused by the effort to get such
lamendment-no to mention the fact
that the very judges who are At iauli
would nroeaad 20 ecrst-cc tsis sinond'
, ment. In such case the fault 10 moi
with the constitution: the fault is y
| the Judges construction Of the consti'
tuition; and what Is required Is power
for the people to reverse this false
, and wrong construction.