248 THE POPULAR SCIENCE MONTHLY 



same clause in the federal constitution. For the federal judiciary act 

 makes no provision for the review by the Supreme Court of such an 

 adverse decision, and it therefore stands as the supreme law of a state 

 beyond the power of its people to recall. If the New York Court of 

 Appeals, for example, held an act contrary to the " due process " clause 

 of the state constitution, the people of the state could reverse the deci- 

 sion, but if the same court held the act contrary to the same clause in 

 the federal constitution the decision could not be "recalled" by the 

 people. 23 



The recall of judges and "the recall of judicial decisions" are not 

 so absurd as to be impossible. Three states have already adopted the 

 former, and the failure of public opinion thus far to take up with the 

 latter may be due partly to the novelty of the proposition and the fact 

 that it became the football of heated controversy during the last presi- 

 dential campaign. The extraordinary power of the courts to declare 

 legislative acts unconstitutional should not be forgotten. When so level- 

 headed an organ as The Survey says that the decisions of the New York 

 Court of Appeals overthrowing the workingmen's compensation and two 

 other acts " should be held up to the reprobation and scorn which they 

 deserve," 24 surely it is time for every one to give heed. If members of 

 the bar opposed to " the recall of decisions " are wise, they will not con- 

 tent themselves with resolutions of condemnation. They will propose 

 other remedies that are more appropriate. They will try to lessen the 

 abuses which attend the issue of injunctions, and to expedite the trial 

 of cases. They will do everything possible to free the bench from cor- 

 porate and other sinister influences and to elevate its character. They 

 will use their influence to amend the Judiciary Act so that state laws 

 held contrary to the constitution by the highest courts of the several 

 states may be reviewed by the Supreme Court. They will strive to have 

 the courts try as hard to find laws constitutional as they sometimes 

 appear to try to hold them invalid. They will endeavor to make it more 

 easy to amend the constitution and the constitutions of such states as 

 Pennsylvania and Illinois. They will duly consider requiring more 

 than a mere majority of a court to declare a law unconstitutional. If a 

 legislative act should be presumed constitutional until the contrary is 

 proved beyond a reasonable doubt, something approaching unanimity 

 among the members of a court may well be required to declare it un- 

 constitutional. It is noteworthy that the people of Ohio in amending 

 their constitution in 1912 adopted a provision to this effect. Amend- 

 ment number nineteen includes the following : 



No law shall be held unconstitutional and void by the supreme court with- 

 out the concurrence of at least all but one of the judges, except in affirmance of 

 a judgment of the court of appeals declaring a law unconstitutional and void. 



23 W. F. Dodd, Political Science Quarterly, Vol. 23, 1913, pp. 7-10. 



24 Vol. 27, 1912, p. 1895. 



