The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-03-09

other rights of the individual can not
be maintained against the government
and the majority?
Would Amend impeachment Procedure
! But it is said we may have corrupt
judges. How are we going to get rid
| of them? They can be impeached
under our present system. But that
is said to be too cumbersome. Well,
amend the procedure of impeachment.
! Create a tribunal for removal of
| judges for cause. Give them an OPP
portunity to be heard and by an I'M
partial tribunal; but do not create a
system by which, in the heat Of dis
appointment over lost cause, the de-
feated litigants are to decide without
further hearing or knowledge whether
| the judge who decides against them is
| to continue in ONCE. 1t would be hard
! to devise a more unjust and ineffec-
tive method of purifying the judiciary
or one less likely to promote courage
OF honest conviction.
Let US examine the other method
proposed for the reform of the ju-
dietary. That is a recall of decisions.
By this method, when supreme court
has found law, intended to secure
I
infringes some constitution limitation,
the decision is to be submitted to a
vote of the qualified electors, and il a
majority of them differ with the court
and reverse the decision, the law is to
be regarded and enforced as valid and
constitutional
This is a remarkable suggestion
and one which is so contrary to any
thing in government heretofore pro-
posed that it is hard to give it the
serious consideration which it de-
serves because of it's advocates and of
The conditions under which it is adj
vanced.
Suppose the act to be invalid be-
cause it infringes the rights of liberty
of certain unpopular class and by in
direct means suspends the writ of
habeas corpus in their cases. l ask
any candid, fairminded man If the
decision of such a question when sub
mitted to popular majority is not
likely to turn rather upon the popu-
lar disfavor of those affected than
upon the possible infraction of the
constitutional liberty of citizen. Let
another law involving other classes
who could make themselves heard be
submitted, and would not the courts
decision be likely to be sustained by
the majority?
Decision Recall Objectionable.
A most serious objection to the re-
call of decisions is that it destroys all
probability of consistency in constitu-
tional Interpretation. The majority
which sustains one law is not the
same majority that comes to consid-
er another, and the obligation Of con-
sistency Of popular decision is one
which would sit most lightly on each
recurring electorate, and the operation
of the system would result in suspen-
sion or application of constitutional
guarantees according to popular whim.
We would then have a system of sus-
pending the constitution to meet spe-
cia1 cases. The greatest of all despot-
isms is a government of special in
stances.
But the main argument used to sus-
tain such a popular review of judicial
decisions Is that If the people are
competent to establish a constitution
they are competent to interpret it and |
that this recall of decisions is nothing |
but the exercise of the power of in
depreciation. This is clearly a fall |
lacious argument. The approval of
general principles in constitution. on !
the one hand and the Interpretation of
statute and consideration of its prob |
able operation in a particular case and |
it's possible infringement of a gener-
al principle. on the other hand, are diff |
ferent things. The one is simple, the |
latter complex; and the latter when /
submitted to popular vote, as al |
ready pointed oEt, is much more likely |
to be turned into an issue of general |
approval or disapproval of the act on |
its merits for the special purpose of |
its enactment than upon it's violation
of the constitution. Moreover, a pop
ular majority does not adopt consti-
tuition, or any principle of it, or amend
its terms, until after it has been
adopted by constitutional convention
or a legislature, and the final adoption
is, and ought to be, surrounded with
such checks and delays as to secure
deliberation. In other words, the
course of procedure in the adoption of
or amendment is very diff
ferent from what the proposed vote of
a majority on constitutional interpreta-
ton would be-
Must Protect Constitutions.
Constitutions ought to be protected
by such requirements as to their
amendment, to insure great delibera-
ton by the people in making them
much greater than one vote of a mere
majority. This method of
amending the constitution would give
it no more permanence than that of
an ordinary legislative act and would
give to the inalienable rights of lib