The Oskaloosa herald., 1912-03-14

So, too, the legislative members elect
to uphold certain governmental views
OF the majority which will properly ia
vor the embodiment of such views in
valid legislation.
But the judiciary are not representa-
tive In any such sense, whether APP
pointed or elected. The moment they
assume their duties they must enforce
the law as they find it. They must not
. only interpret and enforce valid
enactments Of the legislature accord,
ing to Its intention, but when the legis,
lature in its enactments has trans.
crossed the limitations set upon its
power In the Constitution, the judicial
branch OF the government must en-.
force the fundamental and higher law
by annuiling and declaring invalid the
offending legislative enactment. Then
the judges are to decide between in.
diViduals on principles OF right and
justice.
Courts Must Rule Without Favor.
The great body OF the law is unwrit.
ten, determined by precedent and
founded on eternal principles OF right
and morality. This the courts have 10
declare and enforce. AS between the
individual and the state, as between
the majority and the minority, as be.
tween the powerful and the weak,
financially, socially, politically, courts
must hold an even hand and give
judgment without fear or favor. In SO
doing they are performing a govern
mental function; but it is complete
misunderstanding OF our form of gov.
eminent or any kind of government
that exalts justice and righteousness
follow the will OF the majority OF an
electorate in respect Of the issue for
their decision. In many cases before
the judges, that temporary majority
Is real party to the controversy to be
decided. 1t may be seeking to deprive
an individual or minority OF a right
secured by the fundamental law. In
such case, II the judges were mere
representatives or agents OF the ma
| 1ority to carry out its will, they would
lose their judicial character entirely
and the SO called administration o!
| justice would be farce.
System Can Be Bettered.
Having made clear what the func
| ton of our courts is under our form Of
government in maintaining the consti
tutional guarantees OF rights, and il
| preserving against the usurpation Of
the majority the rights OF the non
voting part of the people and OF the
voting minority and OF the individual
we come now to examine the charges
made against the existing system.
| concede that the system is not perfec
or as good as it can and ought to be
made. | have been preaching reform
especially in the enforcement OF the
criminal law, for years. Then, too,
have pointed out in addresses anc
| presidential messages the great neet
| for cheapening the cost of civil iitiga
ton and expeditfng it so as to put a!
little a burden on the poor litigant al
| possible. The defects in our judiciar!
have not been In the corruption OF thu
judges, but mainly in the procedure
!
in jury cases to assist in reaching
right conclusions. The popular i'm
pulse has been to take away the powe
from the Judge and give it all to thu
| jury, and this has not been for the
public good In the enforcement of the
criminal law. Such defects as l have
described are completely within the
control of the legislatures OF the STATE
and congress; and ! am glad to sa!
that the movement for reform MAJ
ben accelerated by action of the STATE
and national bar associations, and WI
may look for decided progress in thu
near future.
| Admits Courts Have Erred.
But these humdrum defects ant
their tedious remedies are not OF thu
spectacular character to call for politi
cal discussion or to attract effort from
politicians in the passage OF remedia
legislation. The formidable attacl
upon our judiciary now is that thu
judges do not respond sufficiently t
popular opinion. 1t is said that court
are interposing their obstructive pow
er to the enforcement OF Legislation
looking to the relief OF the oppressed
by declaring laws unconstitutional ant
by so-called judicial legislation in in
terpreting into statutes words not In
tended BY the legislatures. l do no
intend to discuss these charges, a.
though II reduced to specific cases
would be easy to show many of then
to be unfounded. For the purposes o
this discussion, may admit tina
courts have erred in this regard, nav
unduly broadened constitutional re
strictions in order to invalidate usefu
statutes, or have given such statutes
wrong construction. How is 1t pre-
posed to remedy these wrongs? Il
one of two ways. either by the judicis
recall or by the recall OF judicial dec
sions. Let US examine these remedie
separately.
judicial Recall One Remedy.
In the remedy by judicial recall
is proposed to provide by law tina
whenever a Judge has so discharge
his duties as to induce a certain pei
centage of the electorate to deem
wise to remove him and that percent
age sign a petition asking his recall
an election shall take place in whicI
the incumbent shall stand agains
other candidates; and If he does no
secure plurality of votes, he Is fps,
facto removed. have pointed out tina
under our form of government ant