New-York tribune., 1912-03-09

| cumbersome. Wei, amend the procedure
! OF Impeachment. Create a tribunal for re-
moval of judges for cause Give them an
! opportunity to be heard. and by an Impair
| tial tribunal: but do not create system
! by which, in the heat of DISAPPOINTMENT
! over a lost cause the defeated litigants are
/ to decide without further hearing or
! knowledge whether the Judge who decides
/ against them is to continue I'm office IL
would be hard to devise more unjust ana
| ineffective method Of purifying the Judici-
airy or one less likely TO promote courage
of honest conviction.
The Recall Of Decisions.
Let us examine the other method pro
posed for the reform of the judiciary Ihat
| Is a recall OF decisions. BY this method
! when a supreme court has found law
! intended to secure public benent, 10 De m
| valid because 1t lnfringes some consttu-
| tional limitation, the decision Is TO be sub
! mitted TO a vote of the qualified electors,
! and II a majority of them diner win tne
| court and reverse the decision tne Ia" -
| TO be regarded and enforced as vand ana
! constitutional
This IS a remarkable suggestion, and
one which is so contrary to anything IN
government heretofore proposed that It
is hard TO give IL the serious eonsIdera'
ton which it deserves because OF its
advocates and Of the conditions under
which il is advanced.
What the court decides is that the en-
| acted law violates the fundamentai law
and is beyond the power OF the Legislature
| TO enact But when this issue ~ pre-
| scnted to the electorate what VIII be the
question uppermost In the minus Vi h mos oSvo. %
Gates OF the law? VIII II not necessarily
be whether the law Is on us merits sGoS
| law rather than whether 1t connlcts VIII WIN
| the Constitution? The Interpretation OF the
! constitution and the operation or a IA"
/ 10 violate some Limitation Of that lnstrh1
mcnt are often nice questions 10 De stttlru
| by judicial reasoning and farsighted ehPetna gP.,o
! encc. which are not 10 be expected or the
! electorate or welcomed by It. " the issue
| is transferred to them the simple question
will be OF the approval or dlsappro'al Vi
! the law
What this recall Of decisions will then
| amount to, il applied to constitutional
questions, is that there will be sus-
! pension OF the Constitution to enable a
temporary majority Of the electorate to
enforce popular but invalid act
Suppose the act to be invalid because Il
! infringcs the rights OF liberty OF a certain
/ unpopular class and by indirect means sus-
pcnds the writ OF habcas corpus In thelr
| cases 1 ask any candid, tdir-Wlnded man
! II the decision OF such question when
| submitted To popular majority IL not
! likely to turn rather upon the popular dls'
! favor of those affected than upon the pos
/ sible infraction II the constitutional liberty
| OF "A citizen Let another law involving
| other classes who could make themselves
heard bee submitted and would not the
/ courts decision be likely 10 be sustained
/ by the majority?
! Take another case. instances OF which
| have frequently arisen In our history: sup
! pose. I'm tho early development or state
the question arises whether series OF spe
clal privileges shall be granted 10 rich
company willing TO invest " only the pTlV-
| leges are exclusive and certain. suppose
! tho court finds the law unconstitutional ana
| the decision is submitted To the people. In
an early state OF development the popular
| yearning IL FOR capital and expansion. ana
/ the popular vote might well fasten such
burden on the state and people forever. vi
! course. i'm this day and generation, such
danger will be said to be remote, but IN
/ business and political atmosphere, Ike that
/ IN Alaska OF to-day the popular View Is
different. Later on. Of course. the people
| might and probably would change In re-
spcct to another but similar law.
, A most serious objection to the recall
Of decisions is that IL destroys all prob
ability Of consistency in constitutional
Interpretation.
The majority which sustains ono Law Is
not the same majority that comes 10 con-
slider another. and the Obligation OF con-
| sistency OF popular decision Is one when
| would sit most lightly on each recurring
electorate and the operation or the system
would result In suspension or application OF
! constitutional guarantees according TO pop
/ ular whim.
We would then have a system Of sus-
pending the Constitution TO meet special
cases. The greatest of all despotisms is
| a government Of special instances.
A Fallacious Argument.
But the main argument used to sustain
| such popular review or judicial decisions
! Is that II the people are competent 10 es-
| tablish a constitution they are competent
90 interpret IT, and that this recall OF de-
| cislOns is nothing but the exercise or the
power Of interpretation This ls clearly
| fallacious argument The approval or
| general principles In constitution. on inc
| one hand. and the Interpretation OF n stat
ute and consideration OF it's probable oper-
! alton in particular case ana ltS possible
! infringement Of a general principle, on the
| other hand. are very different Things. Inc
one Is simple, the latter complex; ana the
| latter when submitted To popular vote az
! already pointed out. Is much more likely 10
! be turned into an issue or generaI APP
| provaI disapproval OF the act or IFS
| merits for the special purpose or its enact
! ment than upon its violation OF the CON
| stitution. Moreover, popular majority
does not adopt a constitution, or any prlh-
| cIpIe OF H. or amend It's terms. until after
! Il has been adopted by a constitutionaI
convention or "A legislature, ana the nnai
| adoDtion is and ought TO be- surroundeu
| with such checks and delays as TO secure
| deIiberation In other words, the course OF
| procedure in the adoption or CONSTITUTION
or amendment Is very different from whi what
! the proposed vote OF a majority on cohsu-
| tutional Interpretation would be'
Would Destroy Constitutions.
| Constitutions ought to be protected by
sueb reouirements as to their amend
nent as to insure great deIiberation by
The peopIe in making them-much great
ar than one vote Of mere temporary
m aiority. This method Of amending the
| Constitution would give il no more per-
manence than that Of an ordinary legis-
lative act and would give to the inalien-
able rights of liberty, private property
and the pursuit Of happiness no more
sanction than that Of an annual appro-
| priation bill.
Can Il be that the power Of temporary
| ma iority of the electorate by a single
| nonuIar vote to do away with rights Sc
| cured to individuals, which have been In
| violable for seven hundred years since
| the DAYS OF Magma Charta, approves itself
| 10 those who love liberty and who hold
| dear It's sacred guarantees? Would we
not in giving such powerful effect TO the
momentary impulse of a majority OF an
| electorate prepare the way for the pos
| sible exercise OF the grossest tyranny?
| Finally, I ask what is the necessity Tor
| such a crude. revolutionary, ftful and un-
| stable way of reversing judicial construc-
| tion of the Constitution? Why. if,the con,