The recall

desirable

The question of applying the recall in any shape is one of under certain expediency merely. Each community has a right to try the

circumstances.

The recall of decisions.

experiment for itself in whatever shape it pleases. Under the conditions set forth in the extract from the letter given above, I would personally have favored the recall of the judges both in California and in Missouri; for no damage that could have been done by the recall would have equaled the damage done to the community by judges whose conduct had revolted not only the spirit of justice, but the spirit of common sense. I do not believe in adopting the recall save as a last resort, when it has become clearly evident that no other course will achieve the desired result. But either the recall will have to be adopted or else it will have to be made much easier than it now is to get rid, not merely of a bad judge, but of a judge who, however virtuous, has grown so out of touch with social needs and facts that he is unfit longer to render good service on the bench. It is nonsense to say that impeachment meets the difficulty. In actual practice we have found that impeachment does not work, that unfit judges stay on the bench in spite of it, and indeed because of the fact that impeachment is the only remedy that can be used against them. Where such is the actual fact it is idle to discuss the theory of the case. Impeachment as a remedy for the ills of which the people justly complain is a complete failure. A quicker, a more summary, remedy is needed; some remedy at least as summary and as drastic as that embodied in the Massachusetts constitution. And whenever it be found in actual practice that such remedy does not give the needed results, I would unhesitatingly adopt the recall.

There is one kind of recall in which I very earnestly believe, and the immediate adoption of which I urge. There are sound reasons for being cautious about the recall of a good judge who has rendered an unwise and improper decision. Every public servant, no matter how valuable, and not omitting Washington or Lincoln or Marshall, at times makes mistakes. Therefore we should be cautious about recalling the judge, and we should be

cautious about interfering in any way with the judge in decisions which he makes in the ordinary course as between individuals. But when a judge decides a constitutional 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 it wrong. We should hold the judiciary in all respect; but it is both absurd and degrading to make a fetish of a judge or of any one else. Abraham Lincoln said, in his first inaugural: "If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the courts or the judges."

Lincoln actually applied in successful fashion the principle of Lincoln's the recall in the Dred Scott case. He denounced the Supreme view. Court for that iniquitous decision in language much stronger than I 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 the phrase exactly describes what he advocated. He was successful, the people took his view, and the decision was practically recalled. It became a dead letter without the need of any constitutional amendment. In any contest to-day where the people stand for justice and the courts do not, the man who supports the courts against the people is untrue to the memory of Lincoln and shows that he is the spiritual heir, not of the men who followed and supported Lincoln, but of the Cotton Whigs who supported Chief Justice Taney and denounced Lincoln for attacking the courts and the Constitution. Under our Federal system the remedy for a wrong such as The state Abraham Lincoln described is difficult. But the remedy is not difficult in a State. What the Supreme Court of the Nation 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 State court on a constitutional question should

courts and

the recall.

The question of the competency of the people.

be subject to revision by the people of the State. Again and again in the past justice has been scandalously obstructed by State courts declaring State laws in conflict with the Federal Constitution, although the Supreme Court of the Nation had never so decided or had even decided in a contrary sense.) When the supreme court of the State declares a given statute unconstitutional, because in conflict with the State or the National Constitution, its opinion should be subject to revision by the people themselves. Such an opinion ought always to be treated with great respect by the people, and unquestionably in the majority of cases would be accepted and followed by them. But actual experience has shown the vital need of the people reserving to themselves the right to pass upon such opinion. If any considerable number of the people feel that the decision is in defiance of justice, they should be given the right by petition to bring before the voters, at some subsequent election, special or otherwise, as might be decided, and after the fullest opportunity for deliberation and debate, the question whether or not the judges' interpretation of the Constitution is to be sustained. If it is sustained, well and good. If not, then the popular verdict is to be accepted as final, the decision is to be treated as reversed, and the construction of the Constitution definitely 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 antagonize this proposal. They believe, and sometimes assert, that the American people are not fitted for popular government, and that it 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 a court in any case; and that therefore the judges are to be established as sovereign rulers over the people. I take absolute issue with all those who hold such a position. I regard it as a complete negation of our whole system of government; and if it became

the dominant position in this country, it would mean the absolute upsetting 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 Lincoln's work was wasted and the whole system of government upon which this great democratic republic rests is a failure. I 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 realized than any other people on earth the ideal of justice attained through genuine popular rule. The position which these eminent lawyers take and applaud is of necessity a condemnation of Lincoln's whole life; for his great public career began and was throughout conditioned by his insistence, in the Dred Scott case, upon the fact that the American people were the masters and not the servants of even the highest court in the land and were thereby the final interpreters of the Constitution. If the courts have the final say so on all legislative acts, and if no appeal can lie from them to the people, then they are the irresponsible masters of the people. The only tenable excuse for such a position is the frank avowal that the people lack sufficient intelligence and morality to be fit to govern themselves. In other words, those who take this position hold that the people have enough intelligence to frame and adopt a constitution, but not enough intelligence to apply and interpret the constitution which they have themselves made. Those who take this position hold that the people are competent to choose officials to whom they delegate certain powers, but not competent to hold these officials responsible for the way they exercise these powers.

Now the power to interpret is the power to establish; and, if The people the people are not to be allowed finally to interpret the funda- must decide. mental law, ours is not a popular government. The true view is that legislators and judges alike are the servants of the people, who have been created by the people just as the people have

The people

wiser than the courts.

The many

processes involved in a lawsuit.

created the Constitution; and they hold only such power as the people have for the time being delegated to them. If these two sets of public servants disagree as to the amounts of power respectively delegated to them by the people under the Constitution, and if the case is of sufficient importance, then, as a matter of course, it should be the right of the people themselves to decide between them.

I do not say that the people are infallible. But I do say that our whole history shows that the American people are more often sound in their decisions than is the case with any of the governmental bodies to whom, for their convenience, they have delegated portions of their power. If this is not so, then there is no justification for the existence of our Government; and if it is so, then there is no justification for refusing to give the people the real, and not merely the nominal, ultimate decision on questions of constitutional law. Just as the people, and not the Supreme Court under Chief Justice Taney, were wise in their decisions of the vital questions of their day, so I hold that now the American people as a whole have shown themselves wiser than the courts in the way they have approached and dealt with such vital questions of our day as those concerning the proper control of big corporations and of securing their rights to industrial workers.

196. The Law's Delays

In 1884 the American Bar Association appointed a special committee to inquire into the possibility of reducing the number of delays which occurred in judicial processes, and this committee made a long and interesting report from which only a few extracts can be given here:

The theory of a lawsuit is, to hear what the parties have to say, and to decide between them. In doing this, the simplest and most direct method is the best. The plaintiff must make his statement; that is the first step; the defendant must make his answer or be held to admit the truth of the complaint; that is the second; if they differ, the truth of the fact must be ascertained;