Evening star. [volume] (Washington, D.C.) 1854-1972, 1912-03-09

ties? Would we not In giving such
pulse OF a majority Of an electorate
prepare the way for the possible ex-
ercise of the grossest tyranny?
"Crude and Unstable"
"Fihally, I ask what Is the necessity
for such crude. revolutionary. fitful and
unstable way of reversing judicial con-
struction Of the Constitution? Why, II
the construction is wrong, can it not be
righted by constitutional amendment:
The securing of that, it is true. is usually
hedged about by checks and balances de-
vised to secure delay. elaboration, discus
sion before a change of the fundamental
law; but such amendments can be made,
and il so. the effect Of the decision can
be reversed in respect to new law by
an amendment with express terms Of au-
thority to enact such q law. An answer
made to this Is that the same judges Will
construe the amendment and defeat the
popular will as In the first instance rms
assumes dishonesty and gross violation
of their oaths Of duty on the part OF
judges, a hypothesis utterly untenable.
If the meaning of the amendment Is
made plain, as 1t readily can be, or course
the court will follow it
81 have examined this proposed
method Of reversing judicial decisions
on constitutional questions with care.
1 do not hesitate to say that 1t lays the
AZ at the foot Of the tree Of we'll or
dered freedom and subjects the guar
antics of life, liberty and property
without remedy to the htful Impulse OF
q temporary majority Of an electorate.
mir. Justice Miller of Iowa was one OF
the greatest jurists that ever adorned the
Supreme bench of the United States
Speaking of that great court in the case
Of Loan Association VS.. Topeka GO Wall.
IN question
the constitutionality OF a law imposing
a general tax on all citizens to pay TOT
a factory to be run and owned by a pri.
vate company, after referring to the act
as an invasion of private right he SAID:
"'It must be conceded that there are
such rights in every free government
beyond the control of the state. A gov
eminent which recognized no such rights
property of its citizens subject at all
times to the absolute disposition and UNI
limited control Of even the most demo-.
cratic repository Of power, Is, after al.
but a despotism. 1t is true 1t Is q
despotism of the many-of the majority,
If you choose to call it So But it is
none the less despotism. 1t may well
be doubted if a man Is to hold all that
he is accustomed to call his own, all IN
which he has placed his happiness and
the security of which is essential to that
happiness, under the unlimited dominion
of others, whether 1t is not wiser thal
this power should be exercised Dy one
man than by many.
1.-the theory of our governments. state
and national, is opposed to the deposit
of unlimited power anywhere. The execu-
tive, the legislative and the judicial
branches Of these governments are all
of limited and defined powers.
""There are limitations on such power.
which grow out Of the essential nature of
all free governments-implfed reservations
of individual rights without which the
social compact could not exist. and when
are respected by all governments entitled
to the name.
".To lay with one hand the power OF
tho government on the property or the CIT
izen, and with the other to DestoW II
upon favored individuals to aid private
enterprises and build up private fortunes.
is none the less a robbery because 1t is
done under the forms of law and Is called
taxation This is not legislation. 1t is
a decree under legislative forms.
do not the words and illustrations OF
this case bring before us what we might
expect from the exercise OF the power
of a popular majority to reverse the SOL
emn Judgment of a court in favor OF an
the time being, seemed to the people
something that would help all and yet
which was plainly trespass upon lndi-
vidual rights?
and ought to make progress in the shap-
greater equality of opportunity. to de-
stroy the undue advantage OF special
privilege and Of accumulated capital. ana
to remove distractions to the pursuit OF
human happiness, And in working out
these difficult problems We may possibly
have from time to time to limit or mar
row the breadth Of constitutional guar
antics in respectof property by amend
ment. But if We do 1t let US do 1t de-
liberately. understanding what we are
doing, and with full consideration and
clear weighing Of what we are giving
up of private right for the general well
fare. Let us do it under circumstances
which shall make the operation OF the
change uniform and just. and not depend
on the feveris'h: uncertain and unstable
determination Of successive votes on dill
ferent laws by temporary and changing
majorities. Such proposal as this 10
utterly without merit or utility, and, In
stead Of being progressive, II reac-
tiOnary3 instead Of being I'm the in
terest of all the people and Of the
stability of popular government, r.
sowing the seeds Of confusion and
tyranny"