The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-03-21

ton is 4 strait-iacket to be used for
the control of an unruly pattent-the
people. Now l hold that this view Is
not only false but miscellaneous, that
our Constitutions are instruments de-
signed to secure justice. by securing
the deliberate but effective expression
of the popular will. that the checks
and balances are valuable as far, and
only so far. as they accomplish that
elaboration. and that it is a warped
and unworthy and improper construc-
ton of our form of government to
see In 1T only means OF thwarting
the popular will and of preventing
justice. Mr.. Taft says that every
class" should have a voice in the
government That seems to me
very serious misconception OF the
American political situation. The
real trouble with us is that some
classes have had too much voice. One
of the most important of all the les
sons to be taught and to be learned
Is that man should vote, not as
representative of a class, but merely
as a good citizen, whose prime inter
ests are the same as those OF all
other good citizens. The belief IN
different classes, each having voice
in the government has given rise TO
much of our present difficulty; for
whosoever believes in these separate
classes, each with a voice. inevitably.
even although unconsciously, tends TO
work, not for the good Of the whole
people, but for the protection OF some
special class-usually that to which
he himself belongs
The same principle applied when
Mr.. Taft says that the judiciary ought
not to be representative" of the peo-
pie in the sense that the legislature
and the executive are. This is perfect
ly true of the judge when he is per
forming merely the ordinary func-
lions of a judge in suits between man
and man. 1t is not true of the Judge
engaged in interpreting, for instance,
the due process clause-where the
judge is ascertaining the preponder-
ant opinion of the people Gas Judge
Holmes states it,. When he exer-
cises that function he has no right to
let his political philosophy reverse
and thwart the will of the majority.
In that function the judge must rep
resent the people or he fails in the
test the Supreme Court has laid
down.
Mr.. Taft again and again, in quota
lions l have given and elsewhere
through his speech, expresses his dis
belief in the people when they vote
at the polls. In one sentence he
says that the proposition gives pow
erful effec+ to the momentary impulse
of a majority of an electorate and
prepares the way for the possible ex-
ercise of the grossest tyranny" Else
where he speaks of the "feverish un-
certainty and unstable determine
ton of laws by Temporary and
changing majorities;" and again he
says that the system I propose
pHcation of constitutional guarantees
according to popular whim." which
would destroy ''all possible consist
ency'' in constitutional Interpretation.
/ should much like to know the exact
distinction that is to be made be-
tween what Mr.. Taft calls "the f1tful
impulse of a temporary majority"
when applied to a question such as
that l raise and any other question.
Remember that under my proposal to
review a rule of decision by popular
vote, amending or constituting, to that
extent, the Constitution, would Ger
tainly take at least two years from
the time of the election of the legis-
lature which passed the act. Now.
only four months elapse between the
nomination and the election of a man
as president, to fill for four years the
most important Office in the land. In
one of Mr.. Taft's speeches he speaks
of 1.-The voice of the people as coming
next to the voice of God" Apparent
ly, then. the decision of the people
about the presidency, after four
months deliberation, is to be treated
as next to the voice of Cod" but If
after two years of sober thought they
decide that women and children shall
be protected in industry, or men pro-
tected from excessive hours of labor
under unhygienic conditions, or wage
workers compensated when they lose
life or limb in the service of others.
then their decision forthwith becomes
a "whim'' and "feverish" and 'un-
stable" and an exercise of the gross
est tyranny" and the laying of the
ak to the foot of the tree of freedom. ="
It seems absurd to speak of a con-
clusion reached by the people after
two years elaboration. after thresh-
ing the matter out before the legis-
Iature, after threshing it out before
the governor. after threshing it out
before the court and by the court, and
then after full debate for four or six
months. as 'the fitful impulse OF a
temporary majority" If Mr.. Taft's
ton by the people. then he himself
and all other presidents have been
elected by the fitful impulse OF a
%ar1or1rv M ioriAv." fhou fbo nm