Missouri Valley times. [volume] (Missouri Valley, Iowa) 1874-1931, 1912-02-22
Second. by the abuse of the power

to declare laws unconstitutional tho
courts have become lawmaking, In
stead Of a law-enlorcing, agency.
Here again the settled Will Of 80
ciety to correct confessed evils has
been set at nauglt by thoso who
place metaphysics above life. 1t is
the courts, not the constitutions, that
are at fault. 1t is only by the process
which James Russell Lowell, when
answering the critics of Lincoln.
called 'pettifogging the constitution,
that constitutions which were de-
signed to protect society can thus be
made to defeat the common good.
Here again the recall is a recall OF
the administration of justice back
from academical refinements to social
service"
There is one kind of recall in
which l very earnestly believe. and
the immediate adoption of which |
nl&a. There are sound reasons for
being cautious about the recall OF
good judge who has rendered an I'M
wise and improper decision. Every
die, and not emitting Washington or
Lincoln or Marshall, at times makes
mistakes. Therefore we should he
cautious about recalling the judge,
and we should be cautious about in
terfering in any way with the judge in
decisions which he makes in the ordi-
nary course as between individuals.
But when u judge decides constitu-
tional question, when he decides what
the people as a whole can or cannot
do, the people should have the right
TO recall that decision If they think 1t
wrong. We should hold the Judiciary
in all respect; but 1T is both absurd
and degrading to make fetish OF u
Judge or of any one else.
Lincoln actually applied in sue
cessful fashion the principle of the
recall in the bred Scott case. He de-
nounced the Supreme court for that
Ubiquitous decision in language much
stronger than have ever used In
criticizing any court, and appealed to
the people to recall the decision--the
word recall" in this connection was
not then known, but che phrase en-
actly describes what he advocated.
lie was successful, the people took his
view, and the decision was PRACTICAL
ly recalled 1t became a dead letter
amendment.
The Law and the State.
Under our federal system the rem
eGy for a wrong such as Abraham
Lincoln described is difficult But
the remedy is not difficult in state.
What the Supreme court Of the ma
ton decides to be law binds both the
national and the state courts and all
the people within the boundaries Of
the nation. But the decision of a
ton should be subject to revision by
the people of the state. Again and
again in the past Justice has been
scandalously INSTRUCTED by state
courts declaring state laws in con-
flict with the Federal Constitution,
although the Supreme court of the ma
ton had even decided in contrary
sense. When the supreme court of
the state declares given statute I'M
constitutional because in conflict with
the state or the National Constitution,
Its opinion should be subject to re-
vision by the people themselves.
Such an opinion ought always to be
treated with great respect by the peo-
pie, and unquestionably In the major
ity of cases would be accepted and
followed by them. But actual ex-
perience has shown the vital need Of
the people reserving to themselves
the right to pass upon such opinion.
If 1t Is sustained we'll and good If
not, then the popular verdict is to be
accepted as final, the decision is to
be treated as reversed, and the con-
struction of the Constitution definite
" decided subject only to action by
the Supreme court of the United
States.
Many eminent lawyers who more or
less frankly disbelieve In our entire
American system of government for,
by, and of the people violently en-.
tagonize this proposal. They believe
and sometimes assert, that the Amer
lean people are not fitted for popular
government, and that 1T is necessary
to keep the judiciary independent Of
the majority or of all the people,"
that there must be no appeal to the
people from the decision of court
in any case; and that therefore the
Judges are to be established as sover-
eign rulers over the people. I take
absolute issue with all those who hold
such position. regard it as com
plete negaticn of cur whole system
of government and If 1t became the
dominant position in this country, 1t
would mean the absolute Gpsetting Of
both the rights and the rule of the
people. If the American people are
not fit for popular government, and
If they should Of right be the servants
and not the masters of the men whom
they themselves put in Office, then
Ifncoln's work was wasted and the
whole system of government uron
which this great democratic republic
rests Is failure believe, on the
contrary, with all my heart that the
American people are fit for complete
self-government, and that, in spite OF
all our failings and shortcomings, we
of this republic have more nearly real
ized than any o'her PEOPLE on earth
the ideal of justice attained through
genuine popular rule.
People Fundamentally Right.
do not say that the people are In
fallible. But do say that our whole
history shows that the American peo.
nile pre- mora Gltnn cni,rd In thair Ia,