THE STRUGGLE FOR EQUALITY 247 



Judge Grosscup can hardly be ultra-radical. As compared with the 

 " constitutional initiative " which exists in California, where an amend- 

 ment may be initiated by the people without prior formulation by the 

 legislature, Mr. Eoosevelt's proposal is conservatism itself. 



Moreover, it is conservative in another respect. It is customary at 

 present to abrogate completely the " due process " clause of a state con- 

 stitution in such states as New York, so far as legislation to safeguard 

 the lives, health or safety of employees is concerned, to enable the legis- 

 lature to pass a workingmen's compensation law that will stand fire in 

 the courts. That is, the state constitution is amended so as to give the 

 legislature carte blanche in enacting such a law. Beyond doubt, a plan 

 of amendment which enables a particular statute to be validated and 

 leaves the " due process " clause of the state constitution stand against 

 radically different legislation upon the same subject is the more cautious 

 going. A discriminating advocate of the " recall of judicial decisions " 

 aptly says : 



We do not wish to take down all constitutional restrictions on an entire 

 class or category of legislation, good or bad, merely to take one sound, wise law 

 out from under the ban. The people do not seek a safety-valve like the whistle 

 on the Mississippi Eiver steamboat described by Lincoln, which stopped the 

 boat whenever the whistle was blown, nor do they want the safety valve of 

 orderly progress in legislation "tied down" beyond the power of the people to 

 utilize when needed. A method of dealing only with the specific statute when 

 the need arises, rather than framing broad generalizations to take all similar 

 statutes out of the prohibition pronounced by the court, has much to commend 

 it to the conservative common-sense of our citizens. ... Is it not better that 

 the people should pass . . . upon the public necessity and social justice of a 

 particular law which some court may reject, than that, in advance and for all 

 time, broad and paralyzing terms of general exemption should be written into 

 our historic guaranties? Why break out a window, instead of merely raising it, 

 for ventilation? 22 



" The recall of judicial decisions " has been rejected by many on the 

 ground that it is too radical. So far as I am aware, Colorado is the only 

 state thus far to adopt it. 22a In the long run, it may be rejected be- 

 cause it is not radical enough. Many have erroneously supposed that it 

 contemplates submitting to popular vote the issues in a case that has 

 already been tried in court, whereas it merely provides a method for 

 determining the rules that shall govern the trial of similar cases in the 

 future. If adopted, the courts could declare unconstitutional every 

 material increase in a piece of social legislation and necessitate a refer- 

 endum. In no event, could the people of a state do more than bring the 

 interpretation of the "due process" clause of their fundamental law 

 abreast of the views of the Supreme Court, and they could not do even 

 this if the highest court of a state held a legislative act contrary to the 



22 William L. Ransom, op. cit., pp. xv-xvi. 



22» A. Lawrence Lowell, Public Opinion and Popular Government, Appendix 

 B, p. 374. 



