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

set aside as unconstitutional q law
passed by the legislature for the gen
eral welfare, the question of the valid
ity of the law-which should depend,
as Justice Holmes so well phrases fe,
upon the prevailing morality or pre-
ponderant opinion-be submitted for
final determination to a vote Of the
people, taken after due time for con-
sideration. And 1 contend that the
people. in the nature of things. must
be better judges of what is the pre-
ponderant opinion than the courts,
and that the courts should not be
allowed to reverse the political phtlos-
ophy of the people. My point is well
illustrated by recent decision OF the
Supreme court, holding that the court
would not take Jurisdiction of case
involving the constitutionality of the
initiative and referendum laws OF Ore
gon. The ground of the decision was
that sue question was not judicial
in its nature, but should he left for
determination to the other co-ordl-
nate departments of the government.
Is 1t not equally plain that the ques-
ton whether a given social policy is
for the public good is not of a judicial
nature, but should be settled by the
legislature, or in the final instance by
the people themselves?
The President of the United States.
Mr.. Taft, devoted most of a recent
speech to criticism of this PROPOSE
ton He says that it '1s utterly with
out merit or utility, and, instead of
being in the interest of all thu
people, and of the stability OF popu-
lar government, is sowing the seeds
of confusion and tyranny" (By this
he of course means the tyranny Of the
majority. that is, the tyranny of the
American people as a whole) He
also says that my proposal (Which,
as he rightly sees, is merely pro
posal to give the people a real, in
stead of only a nominal, chance 10
construe and amend a state constItu-
ton with reasonable rapidity) would
make such amendment and interpre-
tation depend on the feverish. I'M
certain. and unstable determination of
successive votes on different laws by
temporary and changing majorities;
and that ut lays the ak at the foot OF
the tree of well-ordered freedom, and
subjects the guarantees Of life, lib
erty and property without remedy to
the ftful impulse of temporary ma
jority of an electorate
This criticism is really less a criti-
cism of my proposal than a criticism
of all popular government. 1t is
wholly unfounded, unless it is found
ed on the belief that the people are
fundamentally untrustworthy. If the
Supreme courts definition of due
process in relation to the police pow
\ Of HA lnri
lature to promote the collective in
terests of the community must be
valid, if it embodies a policy held by
the prevailing morality or a prepon-
derant opinion to be necessary to the
public welfare. This is the question
that | propose to submit to the peo-
pie How can the prevailing morality
or a preponderant opinion be better
and more exactly ascertained than by
a vote of the people? The people
must know better than the court
what their own morality and their
own opinion Is.
The object I have in view could
probably be accomplished by an
amendment of the state constitutions
taking away from the courts the
power to review the legislatures de-
ter nination of a policy Of social JUS
tice, by defining due process Of law
IN accordance with the views ex-
pressed by Justice Holmes for the
Supreme court. But my proposal
seems to me more democratic and, l
may add, less radical For under the
method suggest the people may sus-
tai the court as against the legisla-
turs, whereas, if due process were de-
fined in the Constitution. the decision
Of the legislature would be final
Mr.. Taft's position is the position
that has been held from the begin
ming of our government. although not
always so openly held. by a large
number of reputable and honorable
men who, down at bottom, distrust
popular government, and. when they
must accept it. accept it with reluc-
| fance. and hedge it around with every
| species of restriction and check and
balance, SO as to make the power Of
he people as limited and as ineffec
tive as possible. Mr.. Taft fairly de
fines the issue when he says. that our
government is and should be a gov
eminent of all the people by a rep
resentative part of the people. This
| is an excellent and moderate descrip-
/ ton of an OllSarchy. IL defines our
| government as a government of all OF
| the people by a few Of the people.
Mr.. Taft in his able speech. has made
what is probably the best possible
presentation of the case for those
who feel in this manner. Essentially
this view differs only in its expression
| from the view markedly set forth by
one of his supporters. Congressman
Campbell Congressman Campbell. in
| n n,,h1in rnnach In New Ham nahirr