t\6 THE POPULAR SCIENCE MONTHLY 



council without a hearing and without assigning the ground for re- 

 moval upon the address of a bare majority of the legislature. 20 



The issue is not between those who want a judiciary that is subject 

 to the passing whims of the hour and those who do not. Every right- 

 minded man wants a fearless and upright judiciary, and the only ques- 

 tion is how to secure one that is not at the same time the slave of prec- 

 edent. Mr. Eoosevelt's remedy for this state of mind is "the recall 

 of judicial decisions/' limited, however, to the recall of decisions ren- 

 dered by state courts. This would require amending the constitutions 

 of the several states so that a legislative act involving the exercise of the 

 police power, if held unconstitutional by the supreme court of a state, 

 could be submitted to the people and the decision of the court either 

 upheld or reversed. Or the right of recall might be limited to instances 

 where an act is held unconstitutional by a state court on the ground that 

 it deprives one of life, liberty and property without due process of law 

 in contravention of the state constitution. If the decision of the court 

 were reversed, the legislative act would thereafter be excepted from the 

 constitutional prohibition. " This," Judge Grosscup points out, " would 

 be amendment and not construction, the exercise of legislative and not 

 of judicial functions by the people." 21 Strictly speaking, therefore, the 

 proposal is not a recall of judicial decisions at all, but a plan for amend- 

 ing the constitutions of the several states. In other words, a decision 

 handed down in any particular case prior to the time "the recall" or 

 amendment took effect would be res adjudicate but in similar cases 

 arising thereafter the state courts would be obliged to uphold the con- 

 stitutionality of the statute. The state constitutions as amended in 

 accordance with this plan would be subject to all of the guaranties of the 

 federal constitution just as they are at present. 



It is difficult to see why any one should be either wildly enthusiastic 

 or vindictively opposed to such a plan. It involves no new principle. 

 It assumes that the sovereign power rests in the people and that consti- 

 tutions rightly emanate from and embody the deliberate will of the 

 majority, assumptions that are fundamental to the American consti- 

 tutional system. There is no more reason why it would result in hasty 

 and ill-considered changes in' the constitutions of the several states, or 

 why it would enable a majority to ride rough-shod over the rights of a 

 minority, than is possible under the method of amendment now in 

 vogue. It preserves the tradition in accordance with which the courts 

 declare legislative acts unconstitutional. It would permit the decision 

 of a court to be reversed only in the sense that the eleventh and sixteenth 

 amendments to the constitution reversed the decisions of the Supreme 

 Court. A mode of amending the state constitutions that meets with the 

 approval of a jurist of such well-known conservative tendencies as ex- 



20 William L. Eansom, op. cit., pp. 85-86. 



21 Charles H. Hamill, "Constitutional Chaos," The Forum, July, 1912, p. 50. 



