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WAIN 



AGE-ITF'I 
LTPPARY 



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U.B.C. LIBRARY 




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DEBATERS' HANDBOOK SERIES 



THE RECALL 



DEBATERS' 
HANDBOOK SERIES 

Direct Primaries (3d ed. rev. and enl.) 

Capital Punishment (2d ed. rev.) 

Commission Plan of Municipal Govern- 
ment (3d ed. rev. and enl.) 

Election of United States Senators (2d ed. 
rev.) 

Income Tax (2d ed. rev. and enl. ) 

Initiative and Referendum (3d ed. rev. 
and enl.) 

Central Bank of the United States 

Woman Suffrage (2d ed. rev.) 

Municipal Ownership (2d ed. rev. and 
enl.) 

Child Labor (2d ed. rev. and enl.) 

Open versus Closed Shop (2d ed.) 

Employment of Women 

Federal Control of Interstate Corporations 
(2d ed. rev. and enl.) 

Parcels Post (2d ed. rev. and enl.) 

Compulsory Arbitration of Industrial Dis- 
putes (2d ed. rev. and enl.) 

Compulsory Insurance 

Conservation of Natural Resources 

Free Trade vs. Protection 

Government Ownership of Railroads (2d 

''■'■" ed. rev. and enl.) 

Reciprocity 

Trade Unions 

Recall (2d ed. rev. and enl.) 

World Peace i 

Government Ownership of Telegraph and 
Telephone 

Single Tax 

Monroe Doctrine 

HANDBOOK SERIES 

European War 
Agricultural Credit 



Other titles in preparation 

Each volume, one dollar net 



Debaters' Handbook Series 



SELECTED ARTICLES 



ON 



THE RECALL 



INCLUDING THE RECALL OF JUDGES AND 
JUDICIAL DECISIONS 



COMPILED BY 
EDITH M. PHELPS 



Second Edition Revised and Enlarged 



THE H. W. WILSON COMPANY 
WHITE PLAINS. N. Y. and NEW YORK CITY 

1915 



Published October, 1913. 
Second Edition, March, 1915. 



F.71' 



EXPLANATORY NOTE FOR FIRST EDITION 

Like the other volumes in this series, this handbook has been 
compiled for the especial benefit of students and debaters, and 
for libraries desiring to meet the needs of their patrons for ref- 
erence material on this subject. The volume contains reprints 
of valuable material covering the history and present status of 
and the arguments for and against the recall, including the 
recall of judges and of judicial decisions. Briefs are given for 
the recall of judges and of decisions, but it has not been con- 
sidered necessary to include one for the general recall as the 
brief for the recall of judges can be easily adapted for the 
purpose. The bulk of reprinted matter has been devoted to 
the judicial recall also, as this seems to be the most popular 
and important, and many of the arguments are the same as for 
the general recall. A map has also been included showing the 
progress already made by the state-wide recall in the United 
States, and the main features of the various state provisions 
can be compared by means of the accompanying tabulation. 

August, 191 3. 



EXPLANATORY NOTE FOR SECOND 
EDITION 

Since the first edition was published Kansas and Louisiana 
have been added to the list of states having the recall while pro- 
posed constitutional amendments providing for it were rejected 
in Minnesota, Texas and Wisconsin. This volume has been 
strengthened by the addition of new references to the bibliog- 
raphy and of reprints of important articles which have appeared 
since the first edition was issued. The map and comparative 
table have also been brought down to date. 

E. M. Phelps. 
February 8, 1915. 



CONTENTS 



Briefs 



Recall of Judges ^^ 

Recall of Judicial Decisions xv 

Bibliography : 

Bibliographies ^-^^ 

The Recall: 

General References ^^^^ 

Affirmative References "^^T!! 

Negative References xxvni 

Recall of Judges : 

General References xxxi 

Affirmative References xxxiv 

Negative References xxxvi 

Recall of Judicial Decisions: 

General References ^^^/^ 

Affirmative References ^^^^ 

Negative References ^^^ 

Map ^li^ 

Tabulated Comparison of Recall Provisions After xlix 

Introduction : ^ 

The Recall : 

General Discussion: 

Gilbertson, H. S. Recall— Its Provisions and Signifi- 
cance Annals of the American Academy 5 

American Bar Association. Report of the Committee 

to Oppose the Judicial Recall i4 

Barnett, James D. Operation of the Recall in Oregon. 

American Political Science Review IQ 



viii CONTENTS 

Affirmative Discussion: 

Guthrie, George W. Initiative, Referendum and Recall. 

Annals of the American Academy 23 

Munsey, Frank A. Plain Talk About the Recall 

Munsey 33 

Recall in Texas Outlook 33 

Bourne, Jonathan, Jr. Functions of the Initiative, Ref- 
erendum and Recall 

Annals of the American Academy 35 

Schaffner, Margaret A. Recall Yale Review 36 

Recall in Seattle Outlook i"] 

Willard, Charles D. ^Municipal Progress in Los Angeles. 

National 

Conference for Good City Government. Proceedings 38 

Negative Discussion : 

McCall, Samuel W. Representative as Against Direct 

Government Atlantic Monthly 41 

Menace of the Recall American City 44 

Tawney, James A. Proposed Reforms of the So-Called 

Progressives 45 

Butler, Nicholas M. Why Should We Change Our 

Form of Government? ^. . 

United States. Senate Doc. No. 238 50 

Ireland, Archbishop. Recall Condemned 

jMinneapolis Journal 54 

Recall of Judges : 

Affirmative Discussion: 

Wanamaker, R. M. Recall of Judges — A Judicial Affirm- 
ative.. .. Illinois State Bar Association. Proceedings 55 

Smalley, Harrison W. Nullifying the Law by Judicial 

Interpretation Atlantic Monthly 62 

Walsh, T. J. Recall of Judges 68 

Owen, Robert L. Election and Recall of Federal Judges. 

United States. Senate Doc. No. 99 17 

Manahan, James. Recall of Judges.. Minneapolis Tribune 84 

Overton, Gwendolen. Democracy and the Recall. Forum 85 



CONTENTS ix 

Roe, Gilbert E. Recall of Judges 

Academy of Political Science (N. Y.). Proceedings 88 

Negative Discussion: 

Dougherty, J. Hampden. Substitutes for the Recall of 

Judges 

Academy of Political Science (N. Y.)- Proceedings 95 
Brown, Rome G. Judicial Recall — A Fallacy Repugnant 

to Constitutional Government 

Annals of the American Academy loi 

Hornblower, William B. Independence of the Judiciary 

the Safeguard of Free Institutions. .Yale Law Journal 117 
Stafford, Wendell P. Recall of Judges — A Warning... 

Central Law Journal 120 

Page, Edward D. Selection and Removal of Judges.... 

Academy of Political Science (N. Y.). Proceedings 121 
Metcalf, James A. Dangers That Lurk in the Recall of 

the Judiciary Annals of the American Academy 122 

American Bar Association. Report of the Committee 

to Oppose the Recall of Judges, 1912 124 

Brown, Rome G. Recall of Judges 127 

Fink, Albert. Recall of Judges. . .North American Review 134 

Recall of Judicial Decisions : 

Affirmative Discussion: 

Rosevelt, Theodore. Charter of Democracy Outlook 143 

Roosevelt, Theodore. Right of the People to Rule.... 

Outlook 150 

Lewis, William Draper. New Method of Constitutional 

Amendment by Popular Vote 

Annals of the American Academy 155 

Davids, Berkeley. Recall of Decisions Law Notes 171 

Metcalf, James A. Dangers That Lurk in the Recall of 

the Judiciary Annals of the American Academy 175 

Negative Discussion: 

Root, Elihu. Judicial Decisions and Public Feeling 

New York State Bar Association. Proceedings 179 

Hamil, Charles H. Constitutional Chaos Forum 189 



X CONTENTS 

McDonough, James B. Recall of Decisions — A Fallacy 

Central Law Journal 201 

Smith, Munroe. Development of American Constitu- 
tional Law 

Academy of Political Science (N, Y.). Proceedings 207 

Brown, Rome G. Judicial Recall — A Fallacy Repugnant 

to Constitutional Government 

Annals of the American Academy 211 

Thayer, Ezra Ripley. Recall of Judicial Decisions 217 

Hornblower, William B. Independence of the Judiciary 

the Safeguard of Free Institutions 

Yale Law Journal 220 

Ashley, Clarence D. Recall of Judicial Decisions 

Academy of Political Science (N. Y.)- Proceedings 227 

Supplementary Material for Second Edition 

Taylor, Charles F. Municipal Initiative, Referendum and Re- 
call in Practice National Municipal Review 229 

Bryan, William Jennings. The People's Law 233 

Kennan, George. Direct Rule of the People 

North American Review 236 

Brown, Rome G. Dilemma of the Judicial Recall Advocate. . 241 

Recall of Judicial Decisions. 

American Political Science Review 247 

Recall of the Ives Decision Nation 248 

Richberg, Donald R. Constitutional Growth through Recall 

of Decisions Annals of the American Academy 250 

Brown, Rome G. Election of Judicial Judgments 261 

Lee, Arthur O. Vote "No (x)" 266 




BRIEFS 

RECALL OF JUDGES 
Resolved, That judges should be made subject to recall. 

Introduction 

I. It is asserted that numerous evils exist in our judi- 
ciary system. 

A. Our courts have been severely criticized. 

1. By members of the bench and bar. 

2. In the press and on the platform. 

B. Many suggestions have been made for the reform 

of courts and of judicial procedure. 
II. The recall of judges has been adopted as a remedy 
for these evils. 

A. It is now in force in Oregon, California, Arizona, 

Nevada, Colorado and Kansas. 

B. Other states have taken steps providing for its 

adoption. 
III. There is serious and determined opposition to the fur- 
ther adoption of the recall of judges. 

A. Committees have been appointed to work against 

it. 

B. Much literature has been disseminated in oppo- 

sition. 

C. President Taft refused to admit Arizona to state- 

hood until the clause providing for the recall 
of judges had been eliminated from her Con- 
stitution. 

Affirmative 

I. There are many evils in our present judiciary system. 
A. The delay and expense of litigation is too great. 



xii BRIEFS 

B. Decisions are based on legal technicalities and 

outworn precedent rather than reason and com- 
mon sense. 

C. The courts have usurped legislative functions. 

D. The judiciary has become the bulwark of special 

privilege. 
II. The recall of judges is needed to correct these evils. 

A. Impeachment has failed as a remedy. 

B. The fact that the recall could be exercised would 

cause the judges to feel more keenly their re- 
sponsibility to the people. 

C. Corrupt and inefficient judges would be deprived 

of office. 

D. The good judge would be protected in the per- 

formance of duty. 

E. The courts would be removed from the influence 

of corrupt interests. 
III. The recall of judges is desirable for other reasons. 

A. It is the application of good business principle to 

government affairs. 

B. It is constitutionally sound. 

1. It is consistent with the republican theory of gov- 

ernment. 

2. It has proved constitutional in the states 

where it has been exercised. 

3. There is sound precedent in our governmental 

institutions for its use. 

C. It would be beneficial to the people. 

1. It would restore the confidence of the people 

in the courts. 

2. It would arouse people to a more intelligent 

study of candidates. 

D. Short terms and frequent elections of judicial of- 

ficers would be unnecessary if the recall were 
available. 
I. Judges could be elected for life, subject only to. 
removal for inefficiency or malfeasance in 
office. 
IV. The recall of judges is not dangerous as has been 
asserted. 



RECALL OF JUDGES xiii 

A. It would not be abused. 

1. People are conservative and would use it only 

on great provocation. 

2. They are capable of using it wisely. 

a. They are as competent to recall as to elect. 

3. It would not become the tool of vicious inter- 

ests. 
a. If this were likely to be the case, these 
interests would not fight it so bitterly. 

B. It would be exercised sparingly. 

I. The fact that it could be utilized if necessary 
would generally be sufficient. 

C. The rights of the minority would not be disre- 

garded. 

I. They would be safeguarded as they now are 
by the sense of responsibility and justice of 
the majority which is the preservation of 
law at all times. 

Negative 

I. The evils of our judiciary system have been much ex- 
aggerated. 

A. The courts have not usurped power to declare 

legislation unconstitutional. 

B. They are not reactionary and unprogressive. 

I. It is their business to declare law and not to 
make it. 

C. Many of the so-called evils are inherent in so- 

ciety and will remain so long as people are 
human. 
II. Such evils as do exist can be remedied without resort 
to the recall of judges. 

A. Members of the bench and bar are already work- 

ing to reform judicial procedure, 

B. The existing remedies of impeachment and re- 

moval for cause can be made more effective. 

C. The power of the courts to interpret statutes and 

to nullify laws by majority vote can be removed. 
III. The recall of judges would be undesirable for many 
reasons. 



XIV 



BRIEFS 



A. It is inconsistent with our republican form of 
government. 

I. Ours is a representative and not a pure democ- 
racy. 

B. The independence of judges would be destroyed. 
I, Decisions would be influenced by popular senti- 
ment. 

The rights of the minority would be subject 

to the will of the majority. 
Constitutional gurantees would be endangered. 

C. It would be unfair to judges. 
The method of procedure does not provide for 

a fair trial. 

Passion and feeling would prevail in the elec- 
tion instead of judgment. 

There would be loss of respect for the judi- 
ciary. 

D. It would be difficult to induce good men to serve 

as judges. 

E. The evils of our present system would increase 

rather than decrease. 

1. The uncertainties of litigation would be in- 

creased. 

2. The courts would become the tool of the 

bosses and corrupt interests. 

F. The people are not capable of exercising the recall 

wisely. 

1. They cannot understand the intricacies of law. 

2. The}^ are too indifferent to take the trouble to 

secure correct information about candidates. 

3. If the people do not elect good officials, they 

cannot be trusted to recall those who prove 
unworthy. 

4. Recall elections would be left to the bosses 

and those in control of the nominations. 
IV. The recall of judges does not stand the test of ex- 
perience. 

A. The instances where it has been used show it to 
be vicious. 



RECALL OF JUDICIAL DECISIONS xv 

B. Judges elected for life have been shown to be 
superior to those subject to frequent re-election 
or recall. 

RECALL OF JUDICIAL DECISIONS 

Resolved, That state constitutions should be so amended 
as to provide that when an act passed under the police 
power of the state has been pronounced unconstitutional by 
the courts, the legislature shall, after six months and within 
two years, submit the act to a vote of the people, and a 
majority in favor shall be sufficient to establish it as law. 

Introduction 

I. Much recent social legislation, intended to relieve the 
injustices of our changing economic conditions, has 
been pronounced unconstitutional by the state courts on 
the ground that it is in violation of the "due process" 
clause of tlie Constitution which says that "no person 
shall be deprived of life, liberty or property without 
due process of law." 
A. It is held that such legislation is not a proper 
exercise of the police power. 
II. As a remedy for this condition of affairs, Ex-President 
Roosevelt has proposed that "in a certain class of 
cases involving the police power, when a state court 
has set aside as unconstitutional a law passed by the 
legislature for the general welfare, the question of 
the validity of the law ... be submitted for final 
determination to a vote of the people taken after a 
due time for consideration." 
III. This plan, the recall of judicial decisions, has received con- 
siderable support. 

A. It has received the support of the dean of an im- 

portant law school. 

B. It is supported by the Progressive Party. 

C. It has been adopted in Colorado. 

D. It has been proposed in the Massachusetts legisla- 

ture, and as an amendment to the Constitution 
of Illinois, and also to the Federal Constitution. 



xvi BRIEFS 

IV. The American Bar Association has proposed, as an 
alternative, that the Federal Judiciary Code be 
amended to provide that all decisions made by a 
state court of last resort ma\' be ordered by a writ 
of certiorari to be reviewed and reversed by the 
Supreme Court of the United States. 

A. As it is now, the Supreme Court cannot review 

any decisions where a state law has been pro- 
nounced invalid by a state court because re- 
pugnant to the Federal Constitution. 

B. This proposal has been approved by the Senate 

of the United States. 

Affirmative 

I. The people have suffered injustice in many states be- 
cause the courts have refused to admit much social 
legislation as constitutional. 

A. Such legislation has been instituted to remedy the 

injustices of our present social and economic 
conditions, and would improve very materially 
the welfare of our people. 

B. Many judges have failed, both by education and 

experience, to come in contact with these condi- 
tions, and their decisions have been based on 
legal conventions rather than justice, 

C. The "police power" has not been interpreted in 

accordance with present-day standards. 

D. The "due process of law" clause has often been 

given a wider application than was originally 
intended. 
I. That the courts do not agree on its interpreta- 
tion is shown by the fact that the same or 
similar laws have been pronounced consti- 
tutional by the courts of some states and not 
of others. 

E. Decisions are frequently made by a small majority 

of the court and hence one man is sometimes 
able to block the will of the whole people. 



RECALL OF JUDICL\L DECISIONS xvii 

II. When acts passed under the police power of the state 
and affecting the well-being- of the entire people are 
declared unconstitutional by the courts, the people 
should have the right to recall the decision. 

A. The judges are the servants of the people and not 

their masters. 

B. The people are as capable of interpreting the law 

as they are of enacting it. 

C. Interpretation of the police power depends on pre- 

vailing moral standards and the people are best 
fitted to judge what these standards really are. 
III. The recall of decisions is preferable to other remedies 
that have been suggested. 

A. Impeachment could not be resorted to in the case 

of such decisions. 

B. Changing the act so as to secure a favorable de- 

cision from the courts would not be desirable. 

1. It would take too long. 

2. The act would be v/eakened. 

C. Amending the due'process clause of the constitu- 

tion so as to prohibit state courts from review- 
ing such legislation is less desirable. 

1. Besides the delay, it is uncertain whether the 

court would consider itself bound to observe 
the amendment. 

2. It would be arbitrary and dangerous. 

a. The legislature would be freed from neces- 

sary restrictions. 

b. Constitutional limitations would be disre- 

garded. 

3. The present difficulty is not with the constitu- 

tion, but with the judges' interpretation 
of it. 
IV. The recall of judicial decisions would be desirable for 
other reasons. 

A. It would not alter constitutional rights. 

B. It would not disturb the courts. 

C. It would remove the demand for the recall of 

judges. 



xviii BRIEFS 

D. It would teach the courts what the will of the 

people really is. 

E. It is practicable. 

I. Ample time can be given for consideration. 

F. It is conservative. 

I. The principle of the recall is already established 
in our constitutions. 
V. The argument that the people have not the ability to 
understand judicial reasoning is unsound. 

A. Much of this reasoning is outworn and unnecessary. 

B. The decisions of the people cannot be more in- 

consistent than many of those which have been 
reached by the courts. 

Negative 

I. It is necessary that the judicial function should be 
exercised by an entirely independent body. 

A. Constitutional law must be kept distinct from statute 

law. 

B. The separation of the legislative, judicial and exec- 

utive functions of government must be pre- 
serA'ed. 
11. The decisions of the courts in cases involving the police 
power should be final. 
.A.. The term "police power" demands legal inter- 
pretation. 
B. It is too vague to be left for interpretation to the 
legislature or to the people. 

III. The recall of judicial decisions is impracticable. 

A. It is more cumbersome than existing methods of 

amending the state constitutions. 

B. It could not be put into effect, except in cases in- 

volving state constitutional questions alone, 

without an amendment of the Federal Judiciary 

Code. 

I. Such amendment would be sufficient to remedy 

existing difficulties without resorting to the 

recall of decisions by the people. 

IV. The recall of judicial decisions is unnecessary. 



RECALL OF JUDICL\L DECISIONS xix 

A. The present system of judicial procedure is flex- 

ible enough to overcome present difficulties in 
the way of prog■ressi^■e legislation. 

1. Courts are responding slowly but surely to 

public -opinion. 

2. Judges should keep closer in touch with public 

affairs and render decisions more in accord 
with prevailing moral standards. 

3. If a law is pronounced unconstitutional by the 

courts, a new measure can be drafted which 
will meet constitutional requirements, 
a. Many decisions are due to errors in draft- 
ing bills. 

B. If a change is necessary, there are other remedies 

less cumbersome and revolutionary than the re- 
call of judicial decisions. 

1. It could be provided that legislation should not 

be pronounced unconstitutional unless the 
decision is concurred in by more than a bare 
majority of the judges. 

2. Easier methods of amending state constitutions 

could be provided where necessary. 

3. The Federal Judiciary Code could be amended 

so as to permit a wider appeal from state 
courts to the United States Supreme Court 
in cases involving the Federal Constitution. 

4. The "due process of law," "equal protection of 

the laws," and other clauses of a similar 
character could be removed from state con- 
stitutions, where these clauses merely dupli- 
cate limitations' upon state action contained 
in the Federal Constitution. 
V. The recall of judicial decisions would be undesirable 
for other reasons. 
A. Constitutional guarantees would be endangered. 

1. Necessary checks on legislation would be re- 

moved. 

2. Cases would be decided by the people with 

reference to expediency only, and with no 
regard for their legality. 



BRIEFS 

a. The recall would be exercised in times of 
excitement and public feeling. 
P.. The uniformit}'- of law would be destroyed, 

C. It would be dangerous to the courts. 

1. The authority of and respect for courts woulc 
be lost. 
2. The independence and impartiality of judges 
would be destroyed, 
a. Decisions would be influenced by public 
sentiment. 

D. It would decrease rather than increase the control 

of the people over political affairs. 

E. The people are not competent to exercise the recall 

wisely. 

1. The3^ have not had the necessary legal training. 

2. They could not and would not inform them- 

selves as to the merits of the cases. 

3. It would be difficult to ascertain from the re- 

sults of the vote what the real decision of 
the people was. 

F. The recall of judicial decisions is inconsistent with 

our form of government. 

1. It is not republican. 

2. It substitutes mob rule for law. 

3. It exposes the people to the tyranny of the 

majority. 



BIBLIOGRAPHY 

An asterisk (*) preceding a reference indicates that tlie 
entire article or a part of it has been reprinted in this volume. 
Many of the magazine articles and pamphlets listed here as well as 
similar material that may be published after this volume is issued, 
may be secured at reasonable rates from the Wilson Package 
Library operated by The H. W. Wilson Company. 

Bibliographies 

American Bar Association. Report of the Committee to Op- 
pose the Recall of Judges, Frank B. Kellogg, Chairman. 
August, 1912. pp. 12-6. 

American Bar Association. Report. 191 3: 579-604. Report of 
the Committee to Oppose the Judicial Recall. Rome G. 
Brown, Chairman. 

Brown, Rome G. Judicial Recall — A Fallacy Repugnant to 
Constitutional Government. Pub. No. 689. pp. 278-81. 
American Academy of Political and Social Science, Phil- 
adelphia. 1912. 

See also United States. 62d Congress, 2d Session. Senate 
Doc. No. 892. 

Bulletin of Bibliography. 7:5-8. Ap. '12. Recall of Public 

Officials. Charles W. Reeder. 
Central Debating League. Recall (Excluding Judges), pp. 

34-8. Delta Sigma Rho, University of Chicago Chapter. 

1912. 

Contains a list of bibliographies on Commission Plan of 
Municipal Government, Initiative and Referendum and other sub- 
jects in vi^hich the Recall is involved. 

Howard, George Elliott. Present Political Questions : Analytical 
Reference Syllabus, pp. 25, 122-40, 164-70. University of Ne- 
braska, Lincoln. 1913. 

Indiana. State Library Bulletin. 8:4. Ja. '13. Recall of Ju- 
dicial Decisions; Recall of Judges. 

Intercollegiate Civic League. Bulletin No. 13. Suggested 
Topics for Debate, 1913. pp. 4-6. 

Can be secured from Prof. E. M. Salt, Sec, Columbia L^niver- 
sity. New York City. 

Johnscn, Julia E. Selected Articles on the Recall, pp. 9-13 

The H. W. Wilson Company, Minneapolis. 1911. 

Out of print. 



xxii BIBLIOGRAPHY 

Kansas, University Extension Division. Bulletin. Vol. XIII. 
No. i8; Debating Series, No. 4. Debating and Public Dis- 
cussion: Announcements of the Kansas High School De- 
bating League for I9i2-'i3. pp. 53-7. 

Kansas. University Extension Division. Bulletin. Vol. XV. No. 
18: Univ. Exten. Series, Vol. i, No. 2. Debating and Public 
Discussion : Announcements of the Kansas High School De- 
bating League, for iqi4-'i5. pp. 43-8. Recall^ of Judges. 

Library of Congress. Division of Bibliography. Select L;st 
of References on the Recall. 1912. Typewritten. 

Library of Congress. Division of Bibliography. Select List 
of References on the Recall of Judges. 1912. Typewritten. 

Library of Congress, Division of Bibliography. Select List 
• of References on the Recall of Judicial Decisions. 1912. 
Typewritten. 
Printed in Special Libraries. 4: 59-60. Ap. '13. 

Mabie, Edward C., and White, Leonard D., ed. Courts and So- 
cial Reform, pp. 7-1 1, Bibliography on Recall of Judicial 
Decisions. The H. W. Wilson Co., Minneapolis, Minn. 1913. 

Nichols, Egbert R. Intercollegiate Debates. Vol. IV. pp. 141-6. 
Recall of Judicial Decisions. Hinds, Noble & Eldredge, New 
York. 1914. 

Washington. University Extension Division : Bureau of Debate 
and Discussion. Bulletin No. 2. Univ. Exten. Series No. 4; 
General Series No. 66. Recall of Judges, pp. 11-3. Seattle. 
1912. 

Wisconsin University Extension Division. Bulletin. Serial No. 
631 ; General Series No. 448. pp. 7-10. 
The affirmative and negative arguments are also given. 

THE RECALL 
General References 

Books, PanipJilcts and Documents 

American Yearbook. 1910. pp. 151-2. Recall. D. Appleton & 
Co., New York. 191 1. 

American Yearbook. 1912. pp. 5, 6, 35, 58, 64-7, 232. D. Apple- 
ton & Co., New York. 1913. 

Bancroft, Hubert H. Retrospection : Political and Personal, pp. 
503-20. Ihe Bancroft Co., New York. 191 2. 



THE RECALL xxiii 

Beard, Charles A. American City Government, pp. 68-75- 
Century Co., New York. 1912. 

Beard, Charles A., and Schuhz, Birl E. Documents on the 
State-Wide Initiative, Referendum and Recall, pp. 242- 
73, 280-90. The Macmillan Co., New York. 1912. 

Bliss, William D. P., ed. New Encyclopedia of Social Re- 
form, p. 1050. Recall. Ehweed Pomeroy. Funk & Wag- 
nails Co., New York. 1908. 

Boston. Finance Commission. Reports and Communications. 
Vol. II. p. 248. City Ptg. Dept., Boston. 1909. 

Bourne, Jonathan, Jr. Oregon System of Popular Govern- 
ment. 6ip. Govt. Ptg. Off. 1911- 

Bradford, Ernest S. Commission Government in American 
Cities. Chap XX. The Macmillan Co., New York. 1911. 

Britannica Year-Book. 1913. pp. 746-/, 769, IIZ^ 77^-7, 7^Z, 
793, 798, 819, 823, 831, 844, 850, 866, 880, 914, 926-7, 932, 937. 
Encyclopedia Britannica Co., New York. 1913. 

Central Debating League. Recall (Excluding Judges). Delta 
Sigma Rho, University of Chicago Chapter. 1912. 
Constructive and rebuttal speeches of the representatives of 

the University of Chicag-o, with briefs and bibliography. 

Chicago. Charter Convention. Digest of City Charters. 1906. 

pp. 72-3- 
Clancy, Frank W., Fergusson, H. B. and Springer, Frank. 

Constitution of New Mexico: Letters an^ Addresses. 82p, 

pa. 1910. 
Colorado Springs. City Charter, Framed by the Charter Con- 
vention, March 20, 1909. Article XIV. Recall of Elective 

Officers. 
Commonwealth Club of California. Transactions. 6: 153-225, 

Jl. '11. Recall Amendment. Symposium. 
Des Moines Plan of City Government. 38p. pa. City Council. 

1911. 
Fort Worth. Charter of the City of Fort Worth, Tarrant 

County, Texas. Sec. 135. S. H. Taylor, Printer, Fort 

Worth. 1907. 
Hamilton, John J. Dethronement of the City Boss. pp. 38-9, 

209-12, 218-9. Funk & Wagnalls Co., New York. 1910. 
Hedges, G. L. When the People Rule ; or The Initiative and 

Referendum, Direct Primary Law and the Recall in Use in 

the State of Oregon. Bender-Moss Co., San Francisco. 1914. 



xxiv BIBLIOGRAPHY 

James, Herman G. Applied City Government: Principles and 
Practice of City Charter Making, pp. 26-38. Harper & Bros., 
New York, 1914. 

Jones, Chester L. Readings on Parties and Elections in the 
United States, pp. 351-4. The Macmillan Co., New York. 
1912. 

Munro, William B. Government of American Cities, pp. 321- 
57. The JMacmillan Co., New York. 1912. 

National Conference for Good City Government. Proceed- 
ings, 1908: 223-46. Initiative, Referendum and Recall in 
American Cities. Robert Treat Paine, Jr. 

National Conference for Good City Government. Proceed- 
ings, 1909: 108-9. Recall. Clinton R. Woodruff. 

National Conference for Good City Government. Proceed- 
ings, 1909:223-4. Recall. Ernest S. Bradford. 

National Conference for Good City Government. 1909:326- 
33. Recall in Los Angeles. Fielding J. Stilson. 

New International Year Book. 1910. pp. 622-3, Recall, 

Oberholtzer, Ellis P, Referendum in America. New ed. with 
sup. 1900-1911. Chap. XVIII. Charles Scribner's Sons, New 
York. 1912. 

Reinsch, Paul S. Readings on American State Government, 
pp. 108-16. Initiative, the Referendum and the Recall. 
Margaret A. Schaffner. Ginn & Co., Boston. 191 1. 

Schaffner, Margaret A. Recall, Comparative Legislation 
Bulletin, No. 12, 2ip, Wisconsin Free Library Commis- 
sion, Madison, 
Out of print. 

Smith, James A, Spirit of American Government: A Study 
of the Constitution ; its Origin, Influence and Relation to 
Democracy, The Macmillan Co., New York. 1907. 

United States. 61 st Congress, 2d Session. Senate Doc. No, 
603. Code of the People's Rule. Chap. XVI. pp. 130-2. 
See also Congressional Record. 47: Appendix 72. 

United States, 62d Congress, 2d Session. House Doc. No. 
863, New Constitution for Ohio. Herbert S, Bigelow. 

Wilcox, Delos F. American City: Problem in Democracy, 
pp, 271-2. The Macmillan Co., New York, 1904, 

Wilcox, Delos F. Government by All the People. Part IV. 
The Macmillan Co., New York, 1012. 



THE RECALL xxv 

Magazine Articles 

American Lawyer. 14: 108-15. Mr. '06. Election Reforms; 
the Trend towards Democracy. J. C. Ruppenthal. 

American Political Science Review. 2:32-42. N, '07. Initiative, 
the Referendum and the Recall. Margaret A. Schaffner. 

American Political Science Review, 3:420-1. Ag. '09. Recall. 
Margaret A. Schaffner. 

American Political Science Review. 5:248-9. My. '11. Recall 
in California. S. Gale Lowrie. 

*American Political Science Review. 6: 41-53. F. '12. Opera- 
tion of the Recall in Oregon. James D. Barnett. 

Annals of the American Academy. 38:833-8. N. '11. Popular 
Control under the Recall. H. S. Gilbertson. 

*Annals of the American Academy. 43:216-26. S. '12. Re- 
call — Its Provisions and Significance. H. S. Gilbertson. 

Annals of the American Academy. 43:227-36. S. '12. Work- 
ing of the Recall in Seattle. Fred W. Catlett. 

Arena. 28:470. N. '02. Needed Political Reforms. Eltweed 
Pomeroy. 

Arena. 33:51-2. Ja. '05. Really Masters. Eltweed Pomeroy. 

Arena. 36: 45-6. Jl. '06. Recall. Eltweed Pomeroy. 

Arena. 41 : 353-7. Mr. '09. City's Struggle for Political and 
Moral Freedom. John D. Works. 

Case and Comment. 18:306-7. N. '11. Issues of Reform. 
Woodrow Wilson. 
In favor of Recall but opposed to it as applied to judges. 

City Hall. 10: 343-4. Ap. '09. Three Mayors in Three Weeks. 

City Hall. 10:383-4. My. '09. Recall is Spreading. 

City Hall. 12:173-4. O. '10. Recall. 

Classical Journal. 9:44-52. N. '13. Tribunate of Ti. Gracchus. 
Evan T. Sage. 

Congressional Record. 47: Appendix 69. California Senate 
Constitutional Amendment, No. 23: Text of Recall Amend- 
ment. 

Dallas News. Mr. 23-Ap. 30, '11. Initiative, Referendum and 
Recall. Otto Praeger. 
Same. Congressional Record. 47: 1464-72. My. 22, '11. 

Equity Scries. 9:4-6. Jl. '07. Recall in Los Angeles. John 
R. Haynes. 



xxvi BIBLIOGRAPHY 

Everybody's. 25:548-50. O. '11, Watch Commission Govern- 
ment Grow. William Daly, Jr. 

Green Bag. 23:634-6. D. '11. xA^doption of the Recall in Cali- 
fornia. 

Independent. 58: 69-71, Ja. 12, '05. First Discharge of a Pub- 
lic Servant. Eltweed Pomeroy. 

Independent. 68: 1374-8. Je. 23, '10. Oregon's Struggle for 
Purity in Politics. Jonathan Bourne, Jr. 

Independent. 70:1135; 71:384-5. Je. i; Ag. 17, '11. Recall of 
Judges. 

Independent. 74: 160-1. Ja. 16, '13. Recall in Action. 

La Follette's. 2:7-8, 17. N. 12, '10. Recall in Action. 

Literary Digest. 43: 303-4. Ag. 26, '11. Big Stick and the 

~ Recall. 

Literary Digest. 48:607-8. Mr. 21, '14. Hiram Gill's Second 
Chance. 

McClure's. 37:647-63. O. '11. Recall "in Seattle. Burton J. 
Hendrick. 

Michigan Law Review. 10:79-92. D. '11. Recall and the Po- 
litical Responsibility of Judges. W. F. Dodd. 

National Municipal Review. 1:586-602, O. '12, iVctual Work- 
ings of the Initiative, Referendum and Recall. John R. 
Haynes. 

National and Municipal Review. 1:659-61. O. '12. Learning 
to Use the Recall. Edward F. Mason. 

^National Municipal Review. 3:693-701. O. '14. ^Municipal Initi- 
ative, Referendum and Recall in Practice. Charles F. Taylor. 

Outlook. 78: 472. O. 22, '04. Political Experiment. Charles 
D. Willard. 

Outlook. 89: 831-2. Ag. 15, '08. Experiments in Democracy. 

Outlook. 91:757-8. Ap. 3, '09. Housecleaning in Los Angeles. 

Outlook. 96: 148-9. S. 24, '10. Dallas Recall Election. 

Outlook. 96:321-30. O. 8, '10. Popular Government in Ore- 
gon. Jonathan Bourne, Jr. 

Outlook. 97:295. F. II, '11. Seattle Recall. 

*Outlook. 97:375^-6.* F. 25, 'II. Recall in Seattle. 

Outlook. 97:947. Ap. 29, '11. Alayor Seymour of Tacoma. 

*Outlook. 98:697-8. Jl. 29, '11. Recall in Texas. 

Public. 12:513. Aly. 28, '09. Use of the Recall. 



THE RECALL xxvii 

Public. 14: 151-2. F. 17, '11. Recall in Seattle. Joe Smith. 
Public. 14:488-9. Recall in Tacoma. Joe Smith. 
Survey. 25:879. F. 25, '11. Recall of the Seattle Mayor. 
*Yale Review. 18: 206-9. Ag. '09. Recall. Margaret M. Schaff- 
ner. 

Affirmative References 
Books, Paniplilets and Documents 

Beard, Charles A. Loose Leaf Digest of Short Ballot Char- 
ters, pp. 21801-5. Practice of the Recall. H. S. Gilbertson. 
Short Ballot Organization, New York. 1911. 

Bourne, Jonathan, Jr. Popular v. Delegated Government: 
Speech in the Senate of the United States, May 5, 1910. 
Govt. Ptg. Oft. 1910. 

Same. Congressional Record. 45: 5823-30. My. 5, '10; United 
States. 61st Congress, 2d Session. Senate Doc. No. 524; Reinsch, 
Paul S. Readings on American State Government, pp. 84-108. 

Bourne, Jonathan, Jr. Recall of Public Servants: Speech in 

the Senate of the United States, August 5, 191 1. Govt. 

Ptg. Off. 191 1. 

Same. Congressional Record. 47: 3633-43. Ag. 5, '11. 
*Bryan, William Jennings. People's Law. Funk & Wagnalls Co., 

New York. 1914. 

Address delivered before the Ohio Constitutional Convention at 
Columbus, March 12, 1912. Also published as Senate Doc. 523, 63d 
Congress, 2nd Session. 

Illinois State Bar Association. Proceedings, 1911:443-59. 
Oregon's Experiments in Self Government. Clarence T. 
Wilson. 

♦National Conference for Good City Government. Proceed- 
ings, 1905: 104-6. Municipal Progress in Los Angeles. 
Charles D. Willard. 

National Conference for Good City Government. Proceed- 
ings, 1905: 384. Recall: An Experiment. 

National Conference for Good City Government. Proceed- 
ings, 1906: 382-7. Recall as a Measure of Control by the 
People. Thomas A. Davis. 

Pennsylvania Bar Association. Report. 18:218-34. '12. Special 
Committee on Initiative, Referendum and Recall: Mi- 
nority Report. Edward E. Kiernan. 



xxviii BIBLIOGRAPHY 

United States. 626. Congress, 2d Session. Senate Doc. No. 
897. New Dangers to Majority Rule: Address, March 6, 
1912. Judson King. 

Magazine Articles 

*Annals of the American Academy. 43:3-16. S. '12. Func- 
tions of the Initiative, Referendum and Recall. Jonathan 
Bourne, Jr. 
Also deals with Recall of judges. 

*Annals of the American Academy. 43: 17-31. S. '12. Initia- 
tive, Referendum and Recall. George W. Guthrie. 

Annals of the American Academy. 43:65-7. S. '12. Direct 
Legislation and the Recall. Henry J. Ford. 

Says the Recall principle is constitutional but it would be 
liable to go astray if applied to judges by popular petition. 

Arena. 41:494-5. Jl. '09. Roger Sherman Hoar on the Re- 
call. 
Same. Equity Series. 11: 79-80. Jl. '09. 

Atlantic Monthly. 109: 122-31. Ja. '12. Initiative, Referendum 
and Recall. Jonathan Bourne, Jr. 

Same. United States. 62d Congress, 2d Session. Senate Doc. 
No. 302. 

Case and Comment. 18:293-8. N. '11. Initiative, Referendum, 
Recall. Jonathan Bourne, Jr. 

Chautauquan. 41:199. My. '05. Recall in American Politics. 

Everybody's. 23:719-20. N. '10. Popular Government vs. 
Delegated Government. Robert L. Owen. 

Georgetown Law Journal. 1:1-12. Ja. '13. Recall of Judicial 
Decisions. Daniel W. Baker. 

Independent. 70: 1075-6. My. 18, '11. Checks and Balances. 

Munsey. 46:329-34. D. '11. Initiative, Referendum and Re- 
call. Judson C. Welliver. 

*Munsey. 47: 184-6. My. '12. Plain Talk about the Recall. 
Frank A. Munsey. 

Public. 14:826-7. Ag. II, '11. American Origin of the Recall. 
J. W. Dutton. 

Negative References 
Books, Pamphlets and Documents 
Alabama State Bar Association. Proceedings, 1912 : 192-209. 
Pending Revolution. Alfred P. Thom. 

Same. United States. 62d Congress, 2d Session. Senate Doc. 
No. 883. 



RECALL OF JUDGES xxix 

*Butler, Nicholas M. Why Should We Change Our Form oi 
Government? Chas. Scribner's Sons, New York. 1912. 

Same. United States. 62d Congress, 2d Session. Senate Doc. 
No. 238. 

Eastman, Sidney C. Thoughts Suggested by Recent Attacks 
on Representative Government. i6p. pa. 1912. 

Hay, Eugene G. American Democracy: Address at Summit, 
N. J. May 30, 1912. 

Holman, Frederick V. Address before the Oregon Bar As- 
sociation, November 15, 1910. 

James, Francis B. Which Charter? 3ip. Trade and Trans- 
portation Bureau, Washington, D. C. 1912. 

Kales, Albert AL Unpopular Government in the United States, 
pp. 122-7. University of Chicago Press, Chicago. 1914. 

National Conference for Good City -Government. Proceed- 
ings, 1905: 31-2. Recall. G. L. Fox. 

O'Neal, Emmet. Representative Government and the Com- 
mon Law: Address before the Chamber of Commerce of 
the State of New York, November 16, 191 1. i6p. pa. 

Sutherland, George. Government by Ballot; Arizona Consti- 
tution — Initiative, Referendum and Recall: Speech in the* 
Senate of the United States, July 11, 1911. 3ip. pa. 
Same. Congressional Record. 47: 2793-803. Jl. 11, '11. 

Taft, William H. Popular Government : Its Essence, Its Perma- 
nence and Its Perils, pp. 80-6. Yale Univ. Press, ,New Haven. 

1913- 

*Tawney, James A. Proposed Reforms of the So-Called Pro- 
gressives: Address before the Minnesota Bankers Asso- 
ciation, June 21, 1911. 
Same. Congressional Record. 47: 4231-4. Ag. 19, '11. 

United States. 62d Congress, 3d Session. Senate Doc. No. 
993. What is Progress in Politics: Address before Com- 
mercial Club, Chicago, December 14, 1912. Nicholas M. 
Butler. 

United States. 62d Congress, 3d Session. Senate Doc. No. 
1 108. 30p. Constitution of the United States: Its Friends 
and Foes. Franklin W. Collins. 
Also deals with the Judicial Recall, 

United States. 63d Congress, ist Session. Senate Doc. 
No. 18. Democracy of Abraham Lincoln: Address before 



XXX BIBLIOGRAPHY 

Boston University School of Law, March 14, 1913. Henry 
Cabot Lodge. 

Young, N. C. Initiative, Referendum and Recall : Speech 
before the North Dakota State Bar Association, Septem- 
ber 3, 1912. 27p. pa. 
Also deals with the Recall of Judges. 

Young, N. C. Shall We Change Our Plan of Government? 
i6p. pa. 

Same. United States. 62d Congress, 2d Session. Senate Doc. 
No. 865. 

Magazine Articles 

*American City. 4:275 Je. '11. Menace of the Recall. 

*Atlantic Monthly. 108:454-66. O. '11. Representative as 
Against Direct Government. Samuel W. McCall. 

Case and Comment. 18:301-5. N. '11. Initiative, Referendum, 
Recall: the Great Trinity of Modern Errors: Address 
in the House of Representatives. May 23, 191 1. Martin 
W. Littleton. 
Same. Congressional Record. 47: 1501-5. May 23, 1911. 

jC^ase and Comment. 18:319-23. N. '11. Direct Legislation 
Revolutionary. Ralph R. Duniway. 

Central Law Journal. 75:315-6. O. 25, '12. Recall as a Dis- 
carded Political Contrivance. J. W. Kelley. 

Law Notes. 15:81-2. Ag. '11. Constitutional Recall in Oregon. 

Lawyer and Banker. 5:145-51. Ap. '12. Recall Procedure 
Article of the Constitution of the State of California: 
Challenge. John Currey. 

Lawyer and Banker. 4:176-7. Je. '11. Recall. 

Lawyer and Banker. 5:268-71. Ag. '12. Recall and the Re- 
trogressives. 

♦Minneapolis Journal. O. 12, '11. Recall Condemned. Arch- 
bishop Ireland. 

♦North American Review. 198 : 145-60. Ag. '13. Direct Rule of 
the People. George Kennan. 



RECALL OF JUDGES xxxi 

RECALL OF JUDGES 

General References 

Books, Pamphlets and Documents 

♦American Bar Association. Report. 1913 : 579-604. Report of 
the Committee to Oppose the Judicial Recall. Rome G. Brown, 
Chairman. 

American Judicial System: Symposium. Judges, Henry D. 
Estabrook; Lawyers, Joseph C. France; Procedure, 
Frederick N. Judson. Speeches before the American Bar 
Association, Milwaukee, August 29, 1912. 37p. pa. 

Andrews, Alexander B., Jr. Has Your State Sufficient Judges? 
Reprinted from University of Pennsylvania. Law Review, 

June, 1912. 

Arizona. Minutes of the Constitutional Convention. 1910. 
Recall. Propositions Nos. 18, 24, 79. Phoenix Ptg. Co., 
Phoenix, Arizona. 

Baker, Fred A. Fundamental Law and the Power of the 
Judiciary to Enforce it. 29p. pa. 

Commonwealth Club of California. Transactions. 6:153- 
225. Jl. '11. Recall Amendment: Symposium. 

Gary, Eugene B. Legal Ethics: Address before the South 
Carolina Bar Association, January 25, 1912. 22p. pa. 

Humphreys, Benjamin G. New Mexico and Arizona — Re- 
call of Judges: Speech in the House of Representatives, 
May 19, 191 1. 24p. pa. Govt. Ptg. Off. 1911. 

Judson, Frederick N. Judiciary and the People. Yale University 

Press, New Haven. 1913. 

A very concise, clear and interesting- statement of the consti- 
tutional questions involved in the Judicial Recall. Valuable for 
first reading. 

Keasbey, Edward L Courts and the New Social Questions: 
Address before Maryland State Bar Association. June 
29, 1911. 

Ransom, William L. Majority Rule and the Judiciary. 
Charles Scribner's Sons, New York. 1912. 
Introduction by Theodore Roosevelt. 

Reinsch, Paul S. Readings on American State Government, 
pp. 173-81. Delays and Defects in the Enforcement of 
Law. William H. Taft; pp. 191-9. Crime and Judicial 



xxxii BIBLIOGRAPHY 

Inefficiency. James W. Garner. Ginn & Co., Boston. 

1911. 
Storey, Moorfield. Reform of Legal Procedure. Yale Uni- 
versity Press, New Haven. 1912. 
United States. 6ist Congress, 3d Session. House Doc. No. 

1423, Constitution of Arizona, pp. 21-2. Govt. Ptg. Off. 

1911. 
United States. 62d Congress, ist Session. House Report 

No. 33. Constitutions of New Mexico and Arizona: 

Report to Accompany H. J. Res. 14. 

See also Congressional Record. 47: 1234-5. My. 16, '11. 
United States. 62d Congress, 2d Session. Senate Doc. No. 

440. Labor's Reasons for the Enactment of the Wilson 

Anti-Injunction Bill. Samuel Gompers. 
Washington. University Extension Division : Bureau of Debate 

and Discussion. Bulletin No. 2. Univ. Exten. Series. No. 4; 

General Series No. 66. Recall of Judges. 

Contains afRrmative and negative briefs. 

Magazine Articles 

Arena. 37:141-54. F. '07. Constitutional Changes Demanded 
to Bulwark Democratic Government. Walter Clark. 

Arena. 38:479-81. N. '07. Aaron's Rod; or. Government 
by Federal Judges. Walter Clark. 

*Atlantic Monthly. 109:452-64. Ap. '11. Nullifying the Law 
by Judicial Interpretation. Harrison S. Smalley. 

Atlantic Monthly. 108:656-66. N. '11. Criticizing the Courts. 
George W. Alger. 

Central Law Journal. 74:380-1. My. 24, '12. Back to Mar- 
shall — a Protest against a Revival of Exploded Judicial 
Fallacies. 

Chautauquan. 64: 158-9. O. '11. Statehood and the Judicial 
Recall. 

Chicago Legal News. 44:276. Ap. 6, *I2. Recall of Judges 
and Judicial Decisions. Donald L. Morrill. 

Collier's. 48:11-2. D. 30, '11. Extravagant Cost of the 
Law. Carl Snyder. 

Congressional Record. Vol. 47. See Index for Debates 
on H. J. Res. Nos. 14 and 156 and S. J. Res. 57, to Admit 
Arizona and New Mexico as States into the Union. 

Current Literature. 51 :240-5. S. '11. Cry of Judicial Despotism. 



RECALL OF JUDGES xxxiii 

Everybody's. 26:146-60, 291-306, 439-53, 659-72, 827-41; 27: 

116-28. F.-Jl. '12. Big Business and the Bench. P. 

Connolly. 
Green Bag. 24:246-50. My. '12. Activity of the Illinois Bar 

Association in Procedural Reform. 
Harvard Law Review. 24:591-619; 25:140-68, 489-516. Je. 

'11; D. '11; Ap. '12. Scope and Purpose of Sociological 

Jurisprudence. Roscoe Pound. 

Printed also as a pamphlet by the Harvard Law Review As- 
sociation, Cambridge. 1912. 

Independent. 70:1135. Je. i, '11. Recall of Judges. 

Independent. 74:1014-5. My. 8, '13. First Judicial Recall. 

Lawyer and Banker. 4:278-9. Ag. '11. Recall of the Judiciary. 

Lawyer and Banker. 4:283-5. O. '11. Taft vs. the Consti- 
tution. 

Literary Digest. 42: 1086-7. Je. 3, '11. Recalling the Recall: 
Symposium. 

Literary Digest. 46: 1048. My. 10, '13. Judge Ousted by Women's 
Votes. 

^Minneapolis Tribune. F. 21, '13. Debate on Recall of 
the Judiciary. James Manahan and Rome G. Brown. 

Nation. 98:451-2. Ap. 23, '14. Working of the Oregon System. 

National Corporation Reporter. 42:445. My. 11, '11, Recall 
of Judges. 

National Corporation Reporter. 43:894. F. 8, '12. Recall 
in Oregon, 

Ohio Law Bulletin. 56:350-3. O. 23, '11. Recall of Judges. 
George F. Pendelton. 

Ohio Law Bulletin. 57:200-1. My. 6, '12. Recalls: Criticis- 
ing Some Criticisms. 

Outlook. 89:832-4. Ag. 15, '08. Law's Delays. 

Outlook. 91 : 283-5. F. 6, '09. Criticism of the Judiciary. 

Outlook. 98:601. Jl. 22, '11. Bench and Bar. 

Outlook. 100:390-402. F, 24, '12. Charter of Democracy. The- 
odore Roosevelt. 

See also United States. 62d Congress, 2d Session. Senate 
Doc. No. 348. 

Outlook. 102. 250-4. O. 5, '12. Judges and the Plain 

People. 
Political Science Quarterly. 26:238-70. Je. '11. Government 

by Judiciary. Louis B. Boudin. 

Shows how the courts have gradually assumed and are freely 
exercising legislative powers. 



xxxiv BIBLIOGRAPHY 

Public. 14:1235-6. D. 8, '11. Recall of Judges. 

Public. 15:553-4. Je. 14, '12. Advisory Recall for Federal 

Judges. 
Review of Reviews. 45:395-6. Ap. '12. What of the 

Recall? 
Searchlight, April, 1913. Contains several articles on the 

Judicial Recall. 
Survey. 24:773-80. S. 3, '10. Changing Attitude of the 

Courts towards Social Legislation. Louis M. Greeley. 
Survey. 27:1891-6. Mr. 9, '12. Another Bad Decision. 

Edward T. Devine. 
Yale Law Journal. 22:19-29. N. '12. Social Justice and 

the Courts. Theodore Schroeder. 

Affirmative References 

Books, Pamphlets and Documents 

Bancroft, Hubert H. Retrospection: Political and Personal. 

PP- 503-20. The Bancroft Co., New York. 1912. 
*Illinois State Bar Association. Proceedings, 1912:174-89. 

Recall of Judges. R. M. Wanamaker. 

Same. Chicago Legal News. 44: 321-4. My. 18, '12; Central 
Law Journal. 75: 28-33. Jl. 12, '12; Missouri Bar Association. Pro- 
ceedings, iyl2: 147-631. 

Manahan, James. Recall of Judges: Address before the 

Minnesota State Bar Association, Duluth, July 19, I9ii- 

2ip. pa. Minneapolis. 

Same. United States. 62d Congress, 2d Session. Senate Doc. 
No. 941. 

Martin, John A. Veto and the Recall: Speech in the House 

of Representatives of the United States, August 19, 1911- 

8p. pa. Govt. Ptg. Off. 191 L 
*Owen, Robert L. Election and Recall of Federal Judges. 

i6p. pa. 5c. Supt. of doc. 1911. 

Same. United States. 62d Congress, 1st Session. Senate Doc. 
No. 99. 

Poindexter, Miles. New Mexico and Arizona: Speech in the 
Senate of the United States, August 7, 1911. Govt. Ptg. 

Off. 1911. 

Same. Congressional Record. ' 47: 3671-81. Ag. 7, '11. 
Roe, Gilbert E. Our Judicial Oligarchy. B. Huebsch, New 
York. 1912. 



RECALL OF JUDGES xxxv 

United States. 62d Congress, 2d Session. Senate Doc. No. 
249, Judicial Recall. Robert L. Owen. 

*Walsh, T. J. Recall of Judges: Address before the Wash- 
ington State Bar Association, Spokane, July 28, 191 1. 
i8p. pa. Blankenship-Lee Printing Co., Olympia. 

Same. Congressional Record. 47: 4137-40. Ag. 18, '11; United 
States. 62d Congress, 1st Session. Senate Doc. No. 100. 

Wilcox, Delos F. Government by All the People. Chap. 

XXVIL The Macmillan Co., New York. 1912. 

Magazine Articles 

*Academy of Political Science (N. Y.). Proceedings. 3:141-6. 

Ja. '13. Recall of Judges. Gilbert E. Roe. 
Annals of the American Academy. 43:286-310. S. '12. 

Position of the Judiciary in the United States. A. Henry 

Snow. 
Case and Comment. 18: 314-8. N. '11. Should Judges Be 

Excepted from Recall? T. J. Walsh. 
Case and Comment. 18: 678. Ap. '12. Recall in Arizona. 

George W. Harben. 
Central Law Journal. 73:239-41. '11. Recall of Judges — Lack 

of a Precedent. James M. Kerr. 
Central Law Journal. 75:33-5. Jl. 12, '12. Pontius Pilate 

Judgment and Recall. Robert L. Owen. 
Chicago Legal News. 44: 106-8. N. 11, '11. Recall of the 

Judges. F. B. Wilkins. 

Same. Law Students' Helper. 19: 329-34. N. '11. 
Chicago Legal News. 44:274-6. Ap. 6, '12. Recall of 

Judges. Arthur Eddy. 

Same. Docket No. 34: 816-21. N. '12; Ohio Law Bulletin. 57: 
168-73. Ap. 22, '12. 

Congressional Record. 47: Appendix 63-72. New Mexico 

and Arizona: Speech in the House of Representatives. 

May 22, 191 1. John E. Raker. 

Contains text of the Recall amendment to the Constitution of 
California, p. 69. 

Congressional Record. .47:309-19. Ap. 17, '11. Constitu- 
tions of New Mexico and Arizona. George E. Chamber- 
lain. 

Text is given of the Recall provisions of the proposed Arizona 
constitution. 



xxxvi BIBLIOGRAPHY 

Editorial Review. 5:983-92, N. '11. Recall of Judges. 
Aiiles Poindexter. 

Same. United States. 62d Congress, 2d Session. Senate Doc. 
No. 472. 

*Forum. 47: 157-68. F. '12. Democracy and the Recall. 
Gwendolen Overton. 

National Corporation Reporter. 43:9-10. Ag. 17, '11. Re- 
call of Judges. 

National Corporation Reporter. 43:245. O. 5, '11. Recall Again. 

Outlook. 91:563-5. Mr. 13, '09. Judicial Experience. 

Outlook. 98:378-9. Je. 24, '11. Arizona and the Recall 
of the Judiciary. Theodore Roosevelt. 

Outlook. 99:95. S. 9, '11. Judicial Recall. 

Outlook. 100:40-8. Ja. 6, '12. Judges and Progress. Theo- 
dore Roosevelt. 

Public. 14: 146-7, 482-3, 629-30, 817-8, 867. F. 17; My. 26; 
Jl. 7; Ag. 11; Ag. 25, '11. Recall of Judges. 

Public. 14: 1069-70. O. 20, '11. Reasons for the Recall. 
R. W. Barkley. 

Public. 15:125-6. F. 9, '12. Recall of Judges. Herbert S. 
Swan. 

Twentieth Centur}^ 4:250-4. Je. '11. Recall of the Judici- 
ary. Ralph W. Crosman. 

Twentieth Century Magazine. 4:551-2. S. '11. President 
Taft and the Arizona Statehood Veto. 

Yale Law Journal. 21 : 655-8 Je '12. Recall of Judges. 
Robert L. Owen. 



Negative References 
Books, Pamphlets and Documents 

Alabama State Bar Association. Proceedings, 1912: 192-209. 
Pending Revolution. Alfred P. Thom. 

American Bar Association. Report of the Committee to Oppose 
the Judicial Recall. October 22-24, 1914- I5P- P^- 

*American Bar Association. Report of the Committee to 
Oppose the Recall of Judges: Frank B. Kellogg, Chair- 
man. August, 1912. i6p. 
Same. American Bar Association. Report, 1912: 574-89. 

Baker, Fred A. Initiative and Referendum and Recall of 



RECALL OF JUDGES xxxvii 

Judges Criticized and Condemned. 2op. pa. F. A. Baker, 
Detroit, Mich. 1913. 
Sent free on request. 

Borah, William E. Admission of New Mexico and Arizona 
— Recall of Judges: Speech in the Senate of the United 
States, August 7, 191 1. 32p. pa. Govt. Ptg. Off. 191 1. 
Same. Congressional Record. 47: 3681-8. Ag. 7, '11. 

Brown, Frederick V. Recall of Judges: Address before the 
Washington State Bar Association. July 30-August i, 
1912. Effenbee Pub. Co., Olympia, Wash. 

Brown, Hugh H. Currefit Politics and Civic Duty: Com- 
mencement Address at University of Nevada, May 15, 

1912. I2p. pa. 

*Brown, Rome G. Dilemma of the Judicial-Recall Advocate: 
Address Delivered at St. Louis on September 23, 1914 before 
the Missouri State Bar Association. 
Reprinted as Senate Doc. No. 617, 63d Congress, 2nd Session. 

Brown, Rome G. Election of Judicial Judgments; Address be- 
fore the Denver, Colorado, Bar Association, February 21, 
1914- 33P- pa. 

Brown, Rome G. Judiciary as the Servant of tlie People: Ad- 
dress before Tennessee State Bar Assn., Memphis, June 26, 

1913. 29p. pa. Rome G. Brown, Minneapolis, Minn. 
Brown, Rome G. Lawlessness of the Judicial Recall; Address 

before the South Dakota State Bar Association, January 14, 
1915. 26p. pa. 

Brown, Rome G. Muckraking the Constitution ; Address before 
the State Bar Association of North Carolina, June 30, 1914. 
28p. pa. 

*Brown, Rome G. Recall of Judges: Arguments in Opposi- 
tion: Presented before the Minnesota Bar Association, 
Duluth, Minn. July 19, 1911. 

Same. United States. 62d Congress, 2d Session. Senate Doc. 
No. 649; Minnesota State Bar Association. Proceedings. l!)ll: 86- 
112. 

California Bar Association. Proceedings, 1910:38-49. Inde- 
pendent Judiciary: Address before the California Bar 
Association, Los Angeles, December 6, 1910. Oscar A. 
Trippet. 

Farrar, Edgar H. Address before the American Bar Asso- 
ciation, August 30, 191 1, pp. 3-4. 



xxxviii BIBLIOGRAPHY 

Gardner, Augustus P. Recall of Judges and Judicial Deci- 
sions: Speech in the House of Representatives, April 
4, 1912. 

Same. Congressional Record. 48: 4530-7. (current.) April 4, 
1912. 

*Hoshour, Harvey S., and Lee, Arthur O. Vote "No (X)" ; 
First Prize Arguments by Students of Minnesota Law Schools 
and High Schools against Recall of Judges. 2ip. pa. Rome 
G. Brown, Minneapolis, Minn. 

Illinois State Bar Association. Proceedings, 1912: 190-303. 
Recall of Judges, James H. Wilkerson. 
Same. Chicago Legal News. 44: 324, 326-8. My. 18, '12. 

Iowa State Bar Association. Proceedings, 1912:68-96. Judi- 
cial Recall. C. G. Saunders. 

Issued as a separate pamphlet also. Apply to C. G. Saunders, 
Council Bluffs, Iowa, for copies. 

Kentucky State Bar Association. Proceedings, 1912: 104- 
33. New Nationalism and New Statehood. John M. 
Harlan. 

Nevada Bar Association. Proceedings, 1912: 147-56. Judi- 
cial Reforrns, Other Remedies than the Recall. A. E. 
Cheny. 

Nev\^ York State Bar Association. Proceedings. 35:544-8. 
1912. Address. William H. Taft. 

Ohio State Bar Association. Proceedings, 1912:65-89. Judi- 
cial Recall. Frank B. Kellogg. 

Same. Ohio Law Reporter. 10: 225-45. Jl. 22, '12; Ohio Law 
Bulletin. 57: 320-30. Jl. 29, '12. 

New York State Bar Association. Report of the Committee 
of Fifteen. Recall of Judges and Judicial Decisions, up. 

O'Neal, Emmet. Strengthening the Power of the Execu- 
tive: Address at the Governors' Conference, N. J., Sep- 
tember 12, 1911. Brown Printing Co., Montgomery, Ala. 
1911. 

Pennsylvania State Bar Association. Proceedings, 1912: 
331-64. Constitutional Morality. William D. Guthrie. 
Same. North American Review. 196: 154-73. Ag. '12. 

South Carolina Bar Association, Transactions, 1912:95-113. 
President's Annual Address. Alton B. Parker. 

Shepard, Charles E. Recall of Judges and Judicial Deci- 
sions: Address before the Seattle Bar Association. June 
26, 1912. pp. i-ii. 



RECALL OF JUDGES xxxix 

Sutherland, George. Courts and the Constitution: Presented 

at the Meeting of the American Bar Association, August, 

1912. 22p. pa. 

Same. United States. 62d Congress, 3d Session. Senate Doc. 
No. 070. 

Taft, Wilham H. Popular Government: Its Essence, Its Perma- 
nence and Its Perils, pp. 168-74. Yale University Press, New 
Haven. 1913. 
Taft, William H. and Root, Elihu. Addresses Delivered at 
the Annual Aleeting of the New York State Bar Asso- 
ciation, January 19 and 20, 1912. 

Reprinted from the Thirty-fifth Annual Report of the Pro- 
ceedings of the New Yorl<; State Bar Association, pp. 17-35. Ju- 
dicial Decisions and Public Feeling. Elihu Root. 
United States. 62d Congress, ist Session. House Doc. No. 
106. Special Message of President Taft on Admission 
of New Mexico and Arizona, Returning without Ap- 
proval House Joint Resolution 14. August I5- 'n- 
Same. Congressional Record. 47: 3964-6, Ag. 15, '11. 
United States. 62d Congress, 2d Session. Senate Doc. No. 
344. New Despotism: Address before the New York 
County Lawyers' Association. February 17, 1912. Wen- 
dell P. Stafford. 
United States. 62d Congress, 2d Session. Senate Doc, No. 
406. Compulsory Initiative, Referendum and Recall of 
Judges. Henry C. Lodge. 
United States. 62d Congress, 2d Session, Senate Doc, No. 
408. Judiciary and Progress: Address at Toledo, March 
8, 1912. William H. Taft. 
United States. 62d Congress, 2d Session. Senate Doc. No. 
445. Speech before Ohio Constitutional Convention, 
March 14, 1912. J. B. Foraker. 
United States. 62d Congress, 2d Session. Senate Doc. No. 
452. Address at the Banquet of the Swedish-American 
Republican League, Chicago, March 9, 1912. William 
H. Taft. pp. 13-4. Independence of the Judiciary. 
United States. 62d Congress, 2d Session. Senate Doc. No. 

723. Recall of Judges. John H. Hazelton. 
United States. 62d Congress, 3d Session. Senate Doc. No. 
983. Is Our Representative Government Imperiled? 
Francis T. A. Junkin. 



xl BIBLIOGRAPHY 

United States. 626. Congress, 3d Session. Senate Doc. No. 
1095. Constitution, the Court and the People. Ralph 
W. Breckenridge. 
Reprinted from the Yale Law Journal, January, 1913. 

Magazine Articles. 

*Academy of Political Science (N. Y.). Proceedings. 3: 
147-56. Ja. '13. Substitutes for the Recall of Judges. 
J. Hampden Dougherty. 

*Academy of Political Science (N. Y.). Proceedings. 3: 
157-64. Ja, '13. Discussion of the Selection and Re- 
moval of Judges. 

*Annals of the American Academy. 43:239-77. S. '12. Ju- 
dicial Recall — A Fallacy Repugnant to Constitutional 
Government. Rome G. Brown. 
Same, with bibliography. 62d Congress, 2d Session. Senate 

Doc. No. 892. Also issued in pamphlet form with bibliography as 

Publication No. 689. American Academy of Political and Social 

Science, Philadelphia. 

*Annals of American Academy. 43:278-85. S. '12. Dangers 
that Lurk in the Recall of th"e Judiciary. James A. 
Metcalf. 

Bench and Bar. 25: 1-4. Ap. '11. Recall of Judges. 

Bench and Bar. 26: 43-6. Ag. '11. Judicial Despotism and 

the Recall. 

Same. Chicago Legal News. 44: 87-8. O. 21, '11. 

Canada Law Times. 31:711-3. S. '11. Recall of Judges. 

Case and Comment. 18:308-13. N. '11. Perils of the Ju- 
dicial Recall. Elihu Root. 
Same. Ohio Law Bulletin. 56: 366-9. N. 6, '11. 

Case and Comment. 18: 749-50. My. '12. Recall — by One 
Recalled. Shearon Bonner. 

Central Law Journal. 72:393-5- Je. 2, '11. Principle of 
Recall Applied to Judicial Offices. 

Central Law Journal. 73:221. S. 29, '11. Judge Farrar on 

the Recall of the Judiciary. 

Excerpts from address before the American Bar Association, 
August 30. 1911. 

Central Law Journal. 73:315-7- N. 3, *ii. Recall of Judges 
As It May Effect the Integrity of Constitutions. 

Central Law Journal. 74:318-20. My. 3, '12. "Tenement 
House" Decision by the New York Court of Appeals 



RECALL OF JUDICL\L DECISIONS xli 

Arouses Another "Appeal to the People" Protest. A. 

H. Robbins. 
♦Central Law Journal. 75: 44-5- Jl. 12, '12. Recall of 

Judges: A Warning. Wendell P. Stafford. 
Century. 82:624-5. Ag. '11. Recall of Judges a Rash 

Experiinent. 
Century. 84: 15-21. My. '12. Judicial Recall. Bruce B. 

McCay. 
Chicago Legal News. 44:108, 111-2. N. 11, '11. Recall of 

Judges, J. G. W. Lewis. 

Same. Law Student's Helper. 19:324-9. N. '11. 
Chicago Legal News. 44:277-8. Ap. 6, '12. Judicial Recall. 

John F. Geeting. 
Chicago Legal News. 45:192. Ja. 18. '13. New Despotism: 

Address before the New York County Lawyers' Asso- 
ciation, February 17, 1912. Wendell P. Stafford. 

Reprinted from Washington Law Reporter. Same. United 
States. 62d Congress, 2d Session. Senate Doc. No. 344. 

Commercial and Financial Chronicle. 93:434-5. Ag. 19, '11. 

President Taft on the Recall. 
Current Literature. 52:255^8. Mr. '12. Still Bombarding 

the Judiciary. 
Forum. 48: 294-308. S. '12. Recall of the Judges. Edwin 

Maxey. 
Green Bag. 23:214. Ap. '11. Recall of Judges. 
Green Bag. 24: 156-7. Mr. '12. Recall of Judges. 
Green Bag. 26:271-6. Je. '14. Trial of the Courts. William B. 

Bizzell. 
Independent. 61:884-5. O. it, '06. Degrading the Judiciary. 
Independent. 71:384-5. Ag. 17, 'ii. Recall of Judges. 
Independent. 72:704-7. Ap. 4, '12. Importance of an In- 
dependent Judiciary. Elihu Root. 
Lawyer and Banker. 4:65-6. Ap. '11 Dangers of the Recall. 
Law Student's Helper. 19:334-9- N. '11. Recall of Judges. 

William H. Taft. 

Same. Canada Law Times. 31: 929-38. D. '11. 
Lawyer and Banker. 4:65-6. Ap. '11. Dangers of the 

Recall. 
Lawyer and Banker. 4: 189-91. Je. '11. Recall of the 

Judiciary a "Nostrum." William H. Taft. 

Same. National Corporation Reporter. 43: 147. S. 14, '11. 



xlii BIBLIOGRAPHY 

Lawyer and Banker. 5: 115-8. Ap. '12. One Way of Re- 
calling. 

Literary Digest. 42:989. My. 20, '11. Woodrow Wilson 
on the Recall. 

Michigan Law Review. 11:278-95. F. '13. Recall of Judges 
and of Judicial Decisions. Howard Wiest. 

Nation. 85:296-7. O. 3, '07. New Attack on Judges. 

Nation. 94:227. Mr. 7, '12. Improving the Judiciary. 

Nation. 97'.'j2-2,. Jl. 24, '13. Judicial Fitness and the Recall. 

National Corporation Reporter. 44:447. My. 9, '12. Legal 
Aspect of the Recall of Judges and Judicial Decisions. 
John Gibbons. 
Same. Chicago Legal News. 44: 359. Je. 15, '12. 

National Corporation Reporter. 44: 477-8. My. 9, '12. Re- 
call of Judges. Edmund H. Smalley. 

North American Review. 193:9-25. Ja. '11. Government of 
Law or of Men. Horace H. Lurton. 

*North American Review. 193:672-90. My. '11. Recall of 
Judges. Albert Fink. 

North American Review. 196:20-51. Jl. '12. Constitution and 
Its Makers. Henry Cabot Lodge. 
See also United States. 62d Congress, 2d Session. Senate Doc. 

No. 122. 

Ohio Law Bulletin. 56:410-1. D. 4, '11. Recall of the 

Judiciary. Edgar H. Farrar. 
Ohio Law Bulletin. 57:49-50. F. 5, '12. Judicial Recall 

not a Remedy for the Law's Delay. 
Ohio Law Bulletin. 57:457-8. N. 18, '12. Few words on 

Court Criticism and Incidentally the Recall. William 

L. Dickson. 
Outlook. 81 : 453-4. O. 28, '05. Independent Judiciary. 
Outlook. 97:383-5, 488-92, 532-6, 574-7- F. 25-Mr. 18, '11. Na- 
tionalism and the Judiciary. 
Outlook. 98:852-3. Ag. 19. 'II. Folly of the Recall. 
Outlook. 98: 912-4. Ag. 26, '11. Statehood Veto. 
Outlook. 100: 522-5. Mr. 9, '12. Recall of Judges. 
Outlook. 100: 604. ]\Ir. 23, '12. President Taft on the Recall of 

Judges. 
Washington Law Reporter. 40:385-6. Je. 21, '12. District 

of Columbia Bar Association: Report on the Judicial 

Recall. 



RECALL OF JUDICL^VL DECISIONS xliii 

Yale Law Journal. 21:372-82. Mr. '12. Recall from the 
Standpoint of Kentucky Legal History. C. B. Seymour. 

Yale Law Journal. 21 : 659-63. Je. '12. Judicial RecalL 
Frederick N. Judson. 

*Yale Law Journal. 22: 1-18. N. '12. Independence of the 
Judiciary the Safeguard of Free Institutions: Address 
to the Graduating Class of the Yale Law School, June 
17, 1912. William B. Hornblower. 

Same. United States. 62d Congress, 3d Session. Senate Doc. 
No. 1052. 



RECALL OF JUDICIAL DECISIONS 

Only those articles relating specifically to the Recall of De- 
cisions are included in the following list. For additional refer- 
ences of a more general nature, the preceding- lists may be con- 
sulted. 

General References 

Books, Paviphlets and Documents 

Bizzell, William B. Judicial Interpretation of Political Theory, 
pp. 226-40. G. P. Putnam's Sons, New York. 1914. 

McCarthy, Charles. Wisconsin Idea. pp. 122, 255, 269. The 
Macmillan Co., New York. 1912. 

Mabie, Edward C, and White, Leonard D., ed. Courts and 
Social Reform ; Constructive and Rebuttal Speeches and 
Briefs in the New England Triangular League Debates, 
March 6, 1913. The H. W. Wilson Co., Minneapolis. 1913. 

Nichols, Egbert R. Intercollegiate Debates. Vol. IV. pp. 59-146. 
Recall of Judicial Decisions: Triangular Debates of Illinois 
Wesleyan and James Millikin Universities and Eureka Col- 
lege, March 27, 1913. 

Magazine Articles 

♦American Political Science Review. 8:632-3. N. '14. Recall 

of Judicial Decisions. 
Atlantic Monthly. 110:46-52. Jl. '12. Significance of the 

Recall of Judicial Decisions. Karl T. Frederick. 
Case and Comment. 19:255-32. S. '12. Labor Legislation 

and the Recall of the Judicial Veto. Menry W. Bal- 

lantine. 



xliv BIBLIOGRAPHY 

Chautauqua. 66: 291-2. My. '12. Recall of Decisions. 

Current Literature. 52: 372-4. Ap. '12. Recall of Judicial Deci- 
sions. 

Docket No. 30:724-6. My. '12. Recall of Judicial Decisions. 

Nation. 94: 335. Ap. 4, '12, Appeal and the Referendum. 
Walter J. Shepard. 

Nation. 94: 409-10. Ap. 25, '12. To Amend the Federal 
Judicial Code. W. F. Dodd. 

*Nation. 97:526. D. 4, '13. Recall of the Ives Decision. 

National Corporation Reporter 44: 365. Ap. 18, '12. Recall 
Again. 

Outlook. 101:58-9. My. '11. '12. Review of Decisions: a 
Historical Illustration. 

Westminster Review. 177: 508-22. My, '12. Luther of 
Neo-Protestantism. 

Affirmative References 

Books, Pamphlets and Documents 

Gaynor, William J. Do Our Courts Stand in the Way of 
Social and Economic Progress? Speech at Yale Univer- 
sity, May 7, 1912. 
Same. Congressional Record. 47: Appendix 213-5. 

Illinois State Bar Association. Proceedings, 1912: 203-18. 
Address on the Recall of Judicial Decisions. Albert M. 
Kales. 

Same. Chicago Legal News. 44: 305-8. My. 4, '12; Ohio Law 
Bulletin. 57: 205-11. My. 13, '12. 

Ransom, William L. Majority Rule and the Judiciary. 

Charles Scribner's Sons, New York. 1912. 

Magazine Articles 

Academy of Political Science. (N. Y.). Proceedings, 3: 
85-95. Ja. '13. Recall of Judicial Decisions. William 
D. Lewis. 

*Annals of the American Academy. 43:278-85. S. '12. 
Dangers That Lurk in the Recall of the Judiciary. James 
A. Metcalf. 

Annals of the American Academy. 43:286-310. S. '12. Posi- 
tion of the Judiciary in the United States. A. Henry 
Snow. 



RECALL OF JUDICL\L DECISIONS xlv 

*Anna]s of the American Academy. 43:311-25. S. '12. New 
Method of Constitutional Amendment by Popular Vote. 
William D. Lewis. 

♦Annals of the American Academy. 52:25-36. Mr. '14. Consti- 
tutional Growth through Recall of Decisions. Donald R. 
Richberg. 

Collier's. 50:8-9. F. i, '13. Sarah Knisley's Arm. Theo- 
dore Roosevelt. 

Georgetown Law Journal, i: 1-12. Ja. '13. Recall of Judic- 
cial Decisions. Daniel W. Baker. 

*Law Notes. 16: 4-6. Ap. '12. Recall of Decisions. Berke- 
ley Davids. 

♦Outlook. 100:390-402. F. 24, '12. Charter of Democracy: 
Address before the Ohio Constitutional Convention. Theo- 
dore Roosevelt. 

Outlook. loi : 855-7. Ag. 17, '12. People and the Courts. The- 
odore Roosevelt. 

♦Outlook. 100:618-26. Mr. 23, '12. Right of the People 
to Rule: Address at Carnegie Hall, i\larch 20, 1912. The- 
odore Roosevelt. 

Same. United States. 62d Congress. 2d Session. Senate Doc. 
No. 473. 

Outlook. loi: 1003-7. Ag. 31, '12. Judges, Lawyers and the 

People. Theodore Roosevelt. 
Outlook. 105:589-96. N. 15, '13. Democratic Ideals. Theodore 

Roosevelt. 
Review of Reviews. 45:567-9. My. '12. Mr. Roosevelt's 

Recall of Judicial Decisions: A Lawyer's Comments. 

Harold Remington. 
Saturday Evening Post. 185:3-4. Ag. 31, '12. Recall of 

Judicial Decisions. Melville D. Post. 

Negative References 

Books, Pamphlets and Documents 

Betts, Charles H. Betts-Roosevelt Letters. Lyons Republican 
Co., Lyons, N. Y. 1912. 

♦Brown, Rome G. Election of Judicial Judgments; Address be- 
fore the Denver, Colorado, Bar Association, February 21, 
1914- 33P- pa. 



xlvi BIBLIOGRAPHY 

Brown, Rome G. Judiciary as the Servant of the People : Ad- 
dress before Tennessee State Bar Assn., Memphis, June 26, 

1913. 29p. pa. Rome G. Brown. Minneapolis, Minn. 
Brown, Rome G. Recall of Constitutional Safeguards ; Address 

before the Oklahoma State Bar Association, December 29, 

1914. 24p. pa. 

Burch, Rousseau A. Constitutions and Courts: Address, 

March 30, 1912. lop. pa. 
Ewing, Caruthers. Spirit of the Times: Address before the 

Georgia Bar Association. May 30-June i, 1912. 3ip. pa. 
Illinois State Bar Association. Proceedings, 1912:218-34. 

Argument against the Recall of Judicial Decisions. Charles 

H. Hamill. 

Same. Chicago Legal News. 44: 308, 310-3. My. 4, '12; Ohio 
Law Bulletin. 57: 211-8. My. 13, '12. 

Missouri Bar Association. Proceedings, 1912:92-109. Un- 
rest as to the Administration of Law. Albert W. Biggs. 

Same. Also printed in the Proceedings of the Texas State Bar 
Association for 1912, and as a separate pamphlet. 

*New York State Bar Association. Proceedings. 35: 148-67, 
'12. Judicial Decisions and Public Feeling. Elihu Root. 

Same. Ohio Law Bulletin. 57: 87-94. Mr. 4, '12; Chicago Legal 
News. 44: 244, 246-7. Mr. 8, '12; Case and Comment. 18: 666-71. 
Ap. '12; Law Notes. 16: 6-11. Ap. '12; United States. 62d Congress, 
2d Session. Senate Doc. No. 271. 

Pennsylvania State Bar Association. Proceedings, 1912: 
331-64. Constitutional Morality. William D. Guthrie. 

Roe, Gilbert E. Our Judicial Oligarchy. B. W. Huebsch, 
New York. 1912. 

Severance, Cordenio A. President's Annual Address before 
the Minnesota State Bar Association, August 19, 1912, 
28p. 

Shepard, Charles E. Recall of Judges and Judicial Deci- 
cions: Address before the Seattle Bar Association, June 
26, 1912. pp. 11-5. 

Taft, Henry W. Recall of Decisions: Read at the Annual 
Meeting of the New York State Bar Association, Janu- 
ary 24, 1913. 34p. pa. 

Taft, William H. Popular Government : Its Essence, Its Perma- 
nence and Its Perils, pp. 174-85. Yale University Press, New 
Haven. 1913. 

*Thayer, Ezra Ripley. Recall of Judicial Decisions, up. pa. 
Reprinted from Legal Bibliography, 4: 3-7. March, 1913, in 



RECALL OF JUDICL\L DECISIONS xlvii 

same pamphlet with Chipman, F. E. Veto Power of Judges. Le- 
gal BibHogi'aphy. October, l!tl2. Also printed as United States. 
63d Congress, 1st Session. Senate Doc. No. 28. 

United States. 62d Congress, 2d Session. Senate Doc. No. 

408. Judiciary and Progress: Address at Toledo, March 

8, 1912. William H. Taft. 

Magazine Articles 

♦Academy of Political Science (N. Y.). Proceedings. 3: 
96-9. Ja. '13. Recall of Judicial Decisions. Clarence D. 
Ashley. 

*Academy of Political Science (N. Y.). Proceedings. 3: 
100-17. Ja. '13. Development of American Constitu- 
tional Law. Munroe Smith. 

American Law Review. 47:90-110. Ja. '13. Judicial Cen- 
sorship of Legislation. Frederick Green. 

American Political Science Review. 7: sup. 149-61. F. '13. 
Certain Retrogressive Policies of the Progressive Party.. 
Frederick J. Stimson. 

*Annals of the American Academy. 43: 239-77. S. '12. Judicial 
Recall — A Fallacy Repugnant to Constitutional Govern- 
ment. Rome G. Brown. 

Annals of the American Academy. 52: 13-24. Mr. '14. Recall of 
* Decisions. Moorfield Storey. 

Central Law Journal. 74: 318-20. My. 3, '12. "Tenement 
House" Decision by the New York Court of Appeals 
Arouses Another "Appeal to the People" Protest. A. H. 
Robbins. 

Central Law Journal. 75 : 25-7. Jl. 12, '12. Recall of Judicial 
Decisions as a Remedy. 

♦Central Law Journal. 75:35-40. Jl. 12, '12. Recall of De- 
cisions — A Fallacy. James B. McDonough. 
Chicago Legal News. 44:261-2. Mr. 23, '12. Recall of 
Decisions. George A. Talley. 

Chicago Legal News. 44: 276. Ap. 6, '12. Recall of Judges 
and Judicial Decisions. Donald L. Morrill. 

Congressional Record. 48: 2632-4. (current.) F. 27, '12. 
Charter of Democracy as Advocated by Ex-President 
Roosevelt at the Ohio Constitutional Convention. Ray- 
ner. 



xlviii BIBLIOGRAPHY 

*Forum. 48:45-60. Jl. '12. Constitutional Chaos. Charles 

H. Hamill. 
Harvard Graduates Magazine. 23:1-14. S. ^14. Supreme Court 

of the United States and Popular Self -Government. William 

H. Taft. 
Harvard Law Review. 26: 507-30. Ap. '13. Constitution 

and the Courts. John G. Palfrey. 
Independent. 72: 1 126-7. My. 23, '12. Referendum: Not 

Recall. 
Michigan Law Review. 11^278-95. F. '13. Recall of Judges 

and of Judicial Decisions. Howard Wiest. 
Nation. 94:278. Air. 21, '12. Question of Fundamentals. 
Nation. 94: 312-3. Mr. 28, '12. Roosevelt and the Recall 

James H. Wolfe. 
Nation Corporation Reporter. 44:89. F. 29, '12. Recall of 

Judicial Decisions. 
National Corporation Reporter. 44:477. My. 9, '12. Legal 

Aspect of the Recall of Judges and Judicial Decisions. 

John Gibbons. 

Same. Chicago Legal News. 44: 359. Je. 15, '12. 
Ohio Law Bulletin. 57: 82-3. Mr. 4, '12. Recall Proposed 

by Roosevelt. 
Outlook. 100:604-5. Mr, 23, '12. President Taft on the 

Recall of Decisions. 
Political Science Quarterly. 28:1-17. Mr. '13. Social Legis- 
lation and the Courts. W. F. Dodd. 
Yale Law Journal. 21 : 659-63. Je. '12. Judicial Recall 

Frederick N. Judson, 



\ 



^ 







Comparison of Recall Legislation in the 


Ten States Where It Has Been Adopted. 






Stxite 

Date of 
enactment 


! Petition con- 
Officers No, of signers tains statement 
subject to required for of charges 
recall petition against o»i 
official 


Recall election 

prevented if 

official resigns 


Time between 
filing of peti- 
tion and hold- 
ing of election 


„, ^ . . r^js- ■ „ Recall election 
Statement of Officral » includes elec 
charges on j defense on ^^^^ ^y 
ballot ballot successor 

I 1 


I 

Time that mus 
Majority of elapse after 

votes cast election before 
decides results, recall petition 
can be filed 


1 

Second petition 

cannot be filed 

during the 

same term 


Oregon 

1908 


All 
officers 


25'?; of no. 

voting at last 

election for Yes 

Supreme Court 

Justice 


Yes. within 
5 days 


Not to exceed 

20 days 


Limited to 
200 words 


Limited to 
200 words 


Yes Yes 


Legislators, Unless 
5 days after petitioners 
opening of first p^y expenses 
session; other of first recall 
°^cers 6 mos. election 
after election 


California 

1911 


All 
elective 
" officers 


For some offi- 
cers 12% of votes 

cast at last ■• 
election 
20% for others 


No 


Between 60 and 
80 days 


•• 


Limit 
300 words 


1 

Yes. but 
separate vote ' •• 
taken ' 


" 


\ 

Within six 

months of the 

first recall 

election 


Colorado* 

1912 




25% of votes 

cast at last 

election 






" 




•• 


-. 




•• 


Arizona 

1912 


All 
officers 


- 


Yes, limited 
to 200 words 


Same as in 
Oregon 


Between 20 and 
30 days 




Same as in 
Oregon 


Yes 


" 


Same as in 
Oregon 


Nevada 

1912 


•• 


Same as in 
Oregon 


" 


" 


Same as in 
Oregon 


« 


•• 




Legislators, 
10 days after 
first session 
opens; other 
officers, 6 mos. 




Idahot 

1912 


All officers 
save judges 


















Washingtont ^11 elective 
officers 
1912 save judges 


For some offi- 
cers 25% of votes 
cast for all can- 
didates for the 

office; 35? for 
others 


Yes 
















Michigan . 25% of votes 
cast for 
101, ■ governor at 
^^" 1 last election 

1 1 


" 


No 


" 


" 


•• 


No, if officer is 

recalled election 

is held 30 days 

later to fill 

vacancy 


Yes, in 
both elections 


Legislators, 
45 days: other 
officers, 3 mos. 


•• 


i For state offi- 
Kansas cers 10? of votes 
cast at last elec- 
AU tion;15Xfordis- 
officers trict officers, 255 
•iQij ; for county and 
municipal offi- 
cers 


Yes, limited 
to 200 words 




At least 90 
days 






No 


Yes 






Louisianat tlfrV^l .^^ . 
judges and ^rX^Hn 
1914 justices of the Colorado 
peace 


Yes 


Between 3 and 
5 months 






Yes 


" One year 


Cannot 



„. j^u.vioi u<:>.iiMuus. inc peiuion musT De signe 

t Further legislation is needed to carry out the provisions of this act. 



INTRODUCTION 

For the past few years the recall has occupied a place 
well to the front among the measures designed to give the 
people direct control of their government affairs. Originally 
a companion of the movement for the initiative and refer- 
endum, the recall is now considered distinctly on its own 
merits rather than as part of a larger scheme. The latest 
tendency is to broaden its scope to include judicial ojfhcers 
and €ven a special class of decisions rendered by the courts. 

The recall has been defined as ''a legal provision for the 
retirement of a public officer before his term of office ex- 
pires, if he has forfeited the confidence of the voters." The 
manner in which it is employed varies considerably in the 
different states but the usual form of procedure is as fol- 
lows : A petition, containing a brief statement of the charges 
preferred against the official sought to be recalled, and signed 
by a fixed percentage of the voters of the district from 
which he was elected is filed with the proper recording officer 
or clerk. If the petition is properly presented and bears the 
requisite number of signatures, within a stated time an election 
must be called at which the officer in question must stand for 
re-election, usually competing with other candidates for the 
same office. In most cases a majority vote decides the result 
of the election. 

Although instances of the recall, or something closely 
resembling it, have been found in Greece and in the govern- 
ments of the early Germanic tribes and of our colonies, it was 
first employed in its present form in Switzerland along with the 
initiative and referendum, where it is still used occasionally. 
The recent movement for tlie recall in the United States began 
in Los Angeles in 1903, where it was employed in a form very 
similar to that used in some of the cantons of Switzerland. San 
Diego, San Bernardino, Pasadena and Fresno adopted it in 1905 
and Seattle followed suit a year later. The movement spread 
gradually, and the recall is now employed in many cities all over 
the United States. The states of Alabama, Idaho, Kansas, Louisi- 



2 INTRODUCTION 

ana, Nebraska, Nevada, New Jersey, North Dakota, Washington, 
Wisconsin and Wyoming, have passed state laws under which 
cities of a certain size may adopt charters providing for a com- 
mission form of government, and including provisions for the 
recall. Other states have permitted certain of their cities to adopt 
the commission form of government and many of these cities 
have included provisions for the recall in their charters. 

Legislation providing for the recall of state officials has- been 
adopted in the states of Oregon, California, Arizona, Nevada, 
Colorado, Kansas, Louisiana, Washington, Idaho and Michigan. 
In the first six states mentioned, the recall applies to judicial 
officers also, and in Colorado it has been extended to include the 
recall of judicial decisions. An amendment to the constitution 
of Arkansas providing for the recall of all state officers including 
judges, was accepted by the voters in igi2, but was held uncon- 
stitutional by the courts because the measure was not properly 
presented. The legislatures of Minnesota and Texas recently 
enacted legislation adopting similar amendments to their consti- 
tutions, and the legislature of Wisconsin adopted a resolution for 
the recall of all elective officers except judges, but these measures 
were rejected by the voters at the November, 1914, elections. 
Legislation for the recall has also been attempted in North 
Dakota, Mississippi, Ohio and Pennsylvania, but without success. 

An interesting feature in the history of this recall movement 
is the increasing tendency to "apply it to the judiciary, both to 
the judges themselves and to their decisions, and the serious 
opposition to such extension on the part of the American Bar 
Association. An illustration of this opposition was given when 
President Taft refused to sign the resolution admitting Arizona 
as a state into the union, until the clause in her constitution pro- 
viding for the recall was amended to include the words "except 
members of the judiciary." This was done by special election on 
December 12, 191 1, but after admission to statehood, the first 
legislature of Arizona proposed as a constitutional amendment 
that the recall be again extended to include judges, and this 
amendment was adopted in November of the following year. 

For several years the American Bar Association has maintained 
a committee which has for its special object the carrying on of a 
campaign of education to show the harmfulness of the recall as 
applied to judges and to decisions. The 1913 report of this com- 



INTRODUCTIOxX 3 

mittee states that over 350,000 pamphlets were distributed during 
that year alone, in addition to securing the publication of many 
articles in newspapers and magazines. Public discussions have 
also been participated in on many occasions especially in states 
where the subject was under discussion in the legislature. 

The newest feature in the recall movement is the attempt to 
apply it to the recall of judicial decisions. This form of recall 
was first proposed in modern times in the Australian Consti- 
tutional Convention of 1895-1901, where it was discussed and 
finally rejected as repugnant to the proposed Constitution. 
This Constitution was adopted in 1901 and established a judicial 
system very similar to that of the United States with practically 
the same functions. Colonel Roosevelt, first in his editorials in 
the Outlook and then more definitely in his Columbus and Car- 
negie Hall speeches, urged the adoption of the recall of decisions 
upon the states of this country, as more effective to accomplish 
what he considered most desirable to obtain — that is a remedy for 
that class of decisions of the courts where legislation passed for 
the social welfare has been pronounced unconstitutional because 
it violated the "due process of law" clauses of the Constitution. 
Colonel Roosevelt has defined his plan as follows : 

*T am proposing merely that in a certain class of cases 
involving the police power, when a state court has set aside as 
unconstitutional a law passed by the legislature for the general 
welfare, the question of the validity of the law be submitted for 
final determination to a vote of the people, taken after . due 
consideration." 

So far the only state to adopt the recall of decisions is 
Colorado, although similar laws have been proposed in Illinois 
and Massachusetts, and even in the Senate of the United States. 
While no trial has yet been made of the recall of decisions in 
Colorado, the form in which it was enacted seems to have given 
rise to a curious situation. Mr. Rome G. Brown, Chairman of 
the Committee of the American Bar Association to Oppose the 
Recall, says : 

"The recall of judicial decisions in Colorado applies . . . 
to all decisions of the Supreme Court declaring unconstitutional 
as contravening the state or federal constitution, not only any 
law of the state, but also charter provisions or charter amend- 
ments of cities acting under Chapter XX — that is, all cities of 



4 ■ INTRODUCTION 

the first and second class having home charters. In the case of 
these cities, the decision of the Supreme Court may be recalled 
by the majority of the votes actually cast at an election of the 
city in question called upon to pass upon the decision. This is 
the establishment of a sort of 'local option' as to the enforcement 
of constitutional limitations. It is manifest that this illustrates 
the viciousness of the decision recall. One city might uphold the 
Constitution and another might abrogate it, both as to the same 
provision. More than that, the same city might vote to uphold a 
certain constitutional provision in one case, and later abrogate 
it in an exactly similar case." 

Since the recall of judges and the recall of decisions involve 
questions not belonging to the discussion of the general subject 
of the recall it has seemed desirable to group the reprints, 
making a separate division of the book for each of the three 
questions. The bibliography has been similarly subdivided, and 
two briefs are furnished. Students desiring material in opposi- 
tion to the judicial recall will find it advisable to keep in touch 
with the Committee of the American Bar Association to Oppose 
the Recall, to whose chairman, Mr. Rome G. Brown of Minne- 
apolis, grateful acknowledgment is made for the loaning of 
material for examination and for much valuable information. 

E. M. Phelps. 
February 8, 191 5. 



THE RECALL 



GENERAL DISCUSSION 

Annals of the American Academy. 43:216-26. 
September, 1912. 

Recall — Its Provisions and Significance. 

H. S. Gilbertson. 

The Grozvth of the Idea 

For the first legal enactment of the recall principle we 
are indebted to the charter of Los Angeles, which contained 
the provisions first in 1903. During the next four years 
a number of other California cities adopted the idea. In 
1906 it was incorporated into the charter of Seattle, Wash. 
Soon also the initiative and referendum advocates of Oregon 
became interested in it as a supplement to their own "Peo- 
ple's Power" measures, and by employing the intiative, they 
succeeded in getting it inserted in their constitution in 1908, 
where it was made applicable to all elective officers, local 
and general, including the judiciary. It may then be said 
to be one of the peculiar contributions of the Pacific coa.st 
to the present movement, a movement that looks toward a 
more direct participation of the rank and file of the people 
in affairs of government. 

P>ut the circumstance which gave to the recall its great- 
est vogue was its incorporation in the commission govern- 
ment laws of Iowa, and almost >imultaneously into those 



6 SELECTED ARTICLES 

of South Dakota and Dallas, Tex. This was in 1907 and 
since it has shared in the publicit}- which has attended the 
spread of that form of government. It is, however, not an 
essential part of the commission plan, and this the Gal- 
veston people would have us at all times to understand. 
But so closely are the two ideas associated that the recall 
is now a part of every state-wide commission government 
law, except those of Utah and Kentucky, and of fully three- 
fourths of the special charters. The relative simplicity of 
this form has also made the recall a far more feasible and 
logical adjunct than is perhaps the case with our typical 
forms of state and local government. For, where, as under 
the "commission" scheme all the elective ofifiicers are directly 
concerned with public policy, the individual citizen has every 
reason to concern himself with their official conduct. More- 
over, responsibility for the acts of government is so much 
more definitely fixed that action under the recall is more 
apt to be well-aimed and effective. And again, the persis- 
tent demand for "checks" in our political thinking finds 
some satisfaction in the recall, when, as under the commis- 
sion plan, the theory of the separation of powers has been 
cast aside for a system in which the unity of the organization 
is bound up in the single group of elective officials. 

As a proposition applicable to state officers, it has a 
slower road to travel. Following the example of Oregon, 
the nascent State of Arizona sought to make it a part of her 
system, without taking the precaution of excepting the judi- 
ciary. The veto of this measure in its original form and its 
repassage so as to exclude the judiciary from the recall pro- 
visions are a matter of common knowledge and can receive 
only passing mention here. But the California constitution, 
by amendment adopted October 10. 191 1, permits the recall 
of all elective officers including judges. Idaho and Nevada 
will vote in 1912 on similar amendments.* 

The application of the recall to state officers in its earlier 
days faced a possible constitutional obstacle in the obliga- 



*Since this article was written Arizona and Nevada have 
passed laws providing- for tlie recall of judg"es, and Idaho has 
enacted similar legislation except that judges are excluded. — 
Comp. 



THE RECALL 7 

tion imposed upon the states to maintain a republican form 
of government. This difficulty was finally cleared up by the 
supreme court in the case of The Pacific States Telephone 
Company v. The State of Oregon (223 U. S. 118) wherein 
it was decided that all questions as to the form of state 
government are political and not judicial and lie outside 
the jurisdiction of the courts. 

In the absence of any judicial definition of republican 
government it is impossible, of course, to determine whether 
or not the recall is inconsistent with it, and until congress 
intervenes, the recall is good political practice. 

Founded on the Right of Petition 

The recall has something more than a mere experimental 
foundation. As in the case of many another chance creation 
of politics it turns out that its fashioners, unconsciously 
perhaps, have built upon a solid basis of thoroughly ac- 
cepted political principles which are a vital part of our 
American political system. And of these principles the 'first 
is the well-grounded right of petition, which is one of 
the chief pillars of our national bill of rights. In the his- 
toric sense, this right, to be sure, is limited, and so far as 
direct remedies are concerned, impotent. The recall ampli- 
fies it and makes it dynamic by supplementary provisions. 
Petitions, thereby, are taken out of the category of publicity 
schemes, as they were, for instance, when John Quincy Adams 
was forcing his colleagues in congress into the open on the 
slavery issue. They are expanded into political instruments 
capable of producing direct and certain results. They set 
up a remedy in addition to a right, for under the recall a 
body of electors may not onl}^ express their disapproval of 
the public course of an officer, but they may carry out 
their disapproval directly to the point of removal through 
the mandatory provisions of the law, 

In this process the state is more than a passive partner. 
It goes more than half way to facilitate the exercise of this 
new right, by becoming accessory in several district pro- 
cesses: 

The law supplies the blank forms of petition and requires 
them to be certified against fraudulent signature. 



8 SELECTED ARTICLES 

The law requires a ministerial officer to examine into and 
certify the sufficiency of the petition to the officer or body 
authorized to call elections. 

The law requires the officer or body in charge of elec- 
tions to submit the subject matter of the petition to an 
election, to the voters, and to take all the incidental steps in this 
action and to incur the attendant expenses. 

The law puts into effect, automatically, the mandate of 
the voters. 

Political Character of the Recall 

But what of the nature of the petition? Herein is the 
key to a new conception of elective public office in that a 
new basis of tenure, short of a fixed term, is set up, a tenure 
not dependent upon judicial, but upon political considera- 
tions. For though elective public office in this country has 
never been considered in terms of property or contract, 
there has been heretofore a fixed tradition that removal 
should be accomplished only by legal formula which may 
be termed "due process of law^" This means the establish- 
ment of cause for removal, due notice and a hearing upon 
charges. Often in practice, the observance of this formula 
'is formal and perfunctory, but the fictions of the law at least 
are followed. 

The recall laws change all this by providing specifically that 
the subject matter of the petition may be couched in most 
general terms, for the information of the signers only.* 
Tt is not to be taken as a series of formal charges. And if 
this fact in itself is not enough to preclude attacks on the 
validity of the petition on technical legal grounds, the laws 
especially provide that this general statement shall not be 
subject to review in any case. The only "due process" 
is a political one. 

Nor has the political nature of the recall been overlooked 
in actual practice. In none of the cases in which it has 



1 The charter of Oakland, Cal., has what is perhaps a more 
equitable provision in this connection, from the standpoint of the 
officer involved. Under this law the originators of the petition 
must, before circulating it, give notice of their intention to do so, 
by filing with the city clerk the reasons for their action. The 
oflScer sought to be removed is then allowed to place upon the 
petition a statement in defense of his course in office. 



THE RECALL 9 

been invoked does there appear to have been any effort to 
bring to light the definite evidence of malfeasance under the 
statutory definitions, which would support legal indictment. 
If such evidence existed in the mayoralty cases in Los 
Angeles and Seattle, no effort was made to formulate it. 
And in all the others the action for removal was put en- 
tirely upon grounds of public expediency. Thus, in Dallas, 
in the elections of 1910 and 1911, in each of which two of 
the school directors were rem.oved, the question at issue 
was the. dismissal of certain teachers. In Tacoma it was 
that of generally inefficient and inharmonious administra- 
tion. During the past winter an effort was made in Berke- 
ley, Cal., to remove three school directors on the sole 
ground that they had dispensed with the services of the 
superintendent of schools. In Huron, S. D., the removal 
of the commissioner was sought on the ground of increase 
in the tax levy. In the more or less confused contest which 
took place in Wichita, Kan., the difficulty seems to have 
been mainly over the submission of a proposition to pur- 
chase a public utility plant. Similar issues of policy seem 
to have underlain the movements which were instituted in 
San Bernardino, Cal, and in McAlester, Okla., and Shreve- 
port. La. 

Recognition of Minorities 

The right of petition is essentially a haven for minorities. 
There is no minority too small to make itself heard in this way. 
But once the petition becomes a self-executing instrument, 
as under the recall system, a question arises as to how large 
a minority need be to gain the official recognition which 
will set the machinery of removal to work. Practically, the 
question may be put in this way: When is a petition serious 
enough to justify the call for a popular election? 

To this question, if the recall is to become a permanent 
feature of our institutions, a good deal of careful con- 
sideration must be given. The interest of the people is not 
only in making public officers responsive to its genuine 
wishes, but in accomplishing this result with the least pos- 
sible friction, both to the officers and to the electorate. 
In making this adjustment the private interests of the officer 



10 SELECTED ARTICLES 

as such, sink into significance. Whatever protection of ten- 
ure he g-ets is incidental to "the larger good." This is the 
philosophy of the "new democracy" in which the recall is 
so important an element. 

The actual application of the recall principle appears 
to have reflected a social psychology which makes the ad- 
justment between the interests of the whole people and the 
demands of the minority, on the basis of local conditions. 
The importance of the petition is usually measured by the 
ratio of the number of its signers to the whole number of 
votes cast in the constituency at the last preceding general 
election, or the total number cast for the officer in question. 
When, as in Oregon, California and South Dakota, the 
socializing influence in politics is noticeably strong, the doubt 
has been resolved in favor of the whole people. This means 
a low requirement in the percentage of petitioners. On the 
other hand, such communities as Illinois, in which a recogni- 
tion of the recall principle has been wrung from a reluctant 
legislature, the percentage is prohibitively high. A gen- 
eral average of all the laws would place the percentage 
somewhere near twenty-five.' Such a figure is not prohibi- 
tive and in all the communities in which the recall has been 



2 Twelve per cent for state officers in California, with special 
restrictions. 

Fifteen per cent under the commission government laws of 
South Dakota and under the special charters of Oakland, Modesto, 
Vallejo and Santa Cruz, California. 

Twenty per cent under commission government laws of Wash- 
ington, and the special charters of Grand Junction, Colo., Mankato, 
Minn.. Pontiac, Mich., Fort Worth (registered voters) and Deni- 
son, Tex., Parkersburg, W. Va., and Stockton, Cal.. Wyandotte, 
Mich., and Dowell, Mass. 

Twenty-five per cent under commission government laws of 
Montana, Wyoming. New Jersey, Kansas and the special charters 
of San I^uis Obispo and Eureka, Bartlesville and McAIester, 
Sapulpa, Okla., and Austin, Tex., Lawrence and Haverhill, Mass., 
Gardiner, Maine. 

Thirty per cent in Ardmore and Enid, Okla., Colorado Springs, 
Col., and under the Nebraska commission government laws. 

Thirty-three per cent under the commission government law 
of Louisiana. 

Thirty-three and one-third per cent under the Wisconsin com- 
mission government law, and the special charter of Corpus Christ!, 
Tex. 

Thirty-five per cent in Dallas, Tex., Oklahoma City and Tulsa, 
Okla., Wilmington, N. C, and general commission government law 
of Idaho. 

Forty per cent under the special charters of Holdenville, Okla., 
and Knoxville, Tenn. 

Fifty-five per cent under commission government law of Illinois. 



THE RECALL ir 

brought to the point of the election, a twenty-five per cent 
petition has been indicative of a very real public sentiment. 
In a number of the commission government cities which 
have this percentage, abortive efforts to remove officers have 
made their appearance only to be proved ridiculous.' Poli- 
ticians have freely asserted that the recall is a two-edged 
sword, quite as effective in the hands of unscrupulous 
trouble-making office hunters as in those of public-spirited 
citizens. They have worked on this theory in some cases, 
and with little encouragement, as in the attempt made in 
Tacoma during the past year to oust the mayor, who had 
himself been chosen in a removal election. It is the writ- 
er's belief, also, that public officers will shortly cease to 
feel, if they do feel, any insecurity in their positions from 
the mere fact that a political enemy is seeking to use this 
public instrument for private ends. Twenty-five per cent 
petitions are not always easy to secure, even when signa- 
tures are purchased, unless the cause is one in which the 
voters generally take a rather keen interest. 

The Expression of Majority Opinion 

The placing of a completed petition in the hands of 
the city clerk or a like officer, fastens upon him the purely 
ministerial duty of determining, within ten days, its suffi- 
ciency, and of certifying the fact to the officer or board 
empowered to call elections. But during this period every 
opportunity must be given the signers to put their petition 
in proper form, and the insufficiency of one petition does 
not preclude the right to present another. 

The functions of the election-calling officer or board 
are likewise ministerial. If a special election is necessary, 
as is usually the case, the necessary funds must be appro- 
priated * and an election called for a date within the period 
fixed by law. 



3 Instances of this character have taken place in Coloi-ado 
Springs, Des Moines, Haverhill. Tacoma and Seattle. 

* The Oregon law requires that the expense of a second elec- 
tion for the recall of the same officer shall be borne by the peti- 
tioners, who are required to deposit the necessary amount in ad- 
vance. 



12 SELECTED ARTICLES 

In this way the mechanism has been developed to the 
point where it involves a general popular expression which 
it has been the ideal of the recall laws, apparently, never to 
stifle, but always to facilitate. 

But the recall is by no means a broad concession to the 
revolutionary or "adventurous" elements of the people. 
Against fictitious expressions of opinion or ill-considered 
action the laws make a very definite provision. For at the 
point where the procedure brings the whole electorate for 
final discussion is placed a barrier against an3i;hing like pop- 
ular passion. This consists of the simple but effective ele- 
ment of time. Every recall law provides that, subsequent 
to the completion of the petition and before the calling of 
an election, there must elapse a goodly period of time. This 
is never shorter than twenty nor longer than ninety days. In 
this way the recall legislation undertakes in advance to take 
care of the mob, and its characteristic impulsiveness. Where- 
ever the recall has been invoked, this period has been em- 
ployed in active and thorough public discussion. 

Can a commiunity be maintained at a high pitch of anger, 
enthusiasm or interest to the detriment of a public officer 
for a period ranging anywhere between three weeks and 
three months? Possibly. But, at least, the laws have not 
neglected this factor. If the official conduct of an officer 
is sufficient to interest a respectable percentage of the 
voting community for such a period, the question of his 
removal by that fact alone, would seem to be a matter of 
serious public policy. Publicity to the last degree is a well 
accepted specific for political ills under a democracy. The 
recall laws make ample provision for this. 

This brings us to the manner of removal in the last in- 
stance. 

The rough analogy between the various stages of the 
recall processes to "due process" of law under the older 
forms of removal breaks down completely when we consider 
the manner in which the proposition is placed before the 
jury of the people on the election ballot. 

For at this stage the whole matter is not, as a rule, put 
up to the voter as a simple, unmixed issue of removal as 



THE RECALL 13 

against removal." It is the question of retaining the in- 
cumbent in office or electing a successor. When the process 
of petitioning is over the officer under attack is given an 
option between resigning and becoming a candidate for the 
job of. filling' his own office for the remainder of his un- 
expired term. He is, in fact, such a candidate and his 
name is placed upon the ballot, unless he expresses a wish 
to the contrary. The petitioners who often, as a matter of 
practice, constitute a more or less distinct faction, or tem- 
porary party, proceed to nominate an opponent by petition. 

Upon the ballot, provision is usually made for a state- 
ment of the reasons for the sought-for removal, and the 
counter statement of the officer, justifying his course in 
office. These recitals, as in the original petitions, because 
of their brief and general character may take on a decided 
political color. 

As to the sufficiency of the final verdict of the electorate, 
most of the laws require that the successful candidate shall 
receive a majority of all votes cast; the remainder stipulate 
the highest number of votes after the practice of regular 
elections. In either case the number may be considerably 
less than was required for choice at the original regular 
election, for of the laws in efifect, none thus far fixes a mini- 
mum number of votes to establish the validity of a removal 
election. 

Such, in general, is the groundwork of recall legislation. 
Minor features have been added from time to time to some 
of the laws. One of these protects the officer for a given 
period from recall, after the beginning of his term of office. 
In most cities this is from three to six months. Under the 
New Jersey commission government law it is one year, the 
whole term of office being four years in this case. 

By charter amendment in 191 1 the city of Los Angeles 
has extended the recall to all appointive officers. This is a 
step which suggests a series of very debatable questions 
from the standpoint of responsibility which cannot be dealt 
with here. The new commission government law for Mis- 

= There are exceptions to this rule however. Under the chart- 
ers of Austin, Tex., and those of Sacramento and Modesto Cal 
the question of removal is presented as an entirely separate one 
from the election of a successor. The Los Angeles Charter Revi- 
sion committee contemplates a similar change 



14 SELECTED ARTICLES 

sissippi has a like provision. The new charter of Lawton, 
Okla., attempts to meet the objections to irresponsible peti- 
tion-peddling by requiring every signer to appear in person 
at the city hall when affixing his signature. 

An important variation from the typical plan outlined 
above is found in the Boston charter, adopted in 1909. This 
is based upon a rather different theory of official tenure. 
Under this act the mayor is elected for a term of office of 
four 3^ears. unless recalled at the end of the second year. 
No petition is necessary to submit the proposition to the 
voters ; it is put in the ballot as a matter of course. Unless 
the mayor is recalled by an advance majority vote, he be- 
comes by tacit consent of the electors, as it were, his own 
successor. But the Boston arrangement is not only a varia- 
tion from the general plan in form. It fails to provide the ma- 
chinery for continuous control by the electors, which is the very 
essence of the recall principle. 

American Bar Association. Report of the Committee to 
Oppose the Judicial Recall. 1913. 

Besides its adoption in Oregon and California by constitu- 
tional amendment, the Recall of Judges has been, within the 
past year, made a constitutional provision in the states of 
Arizona and Nevada. It has been recently voted by the legis- 
latures of the states of Kansas and Minnesota, to be submitted 
as a constitutional amendment for adoption by the people. At 
the last election in Colorado, constitutional amendments for 
both the Recall of Judges and for the Recall of Judicial Deci- 
sions, initiated by the people under the Initiative and Referen- 
dum, were adopted. 

In Arkansas, a constitutional amendment for the recall of 
judges, initiated by the people, was passed at the 1912 election ; 
but the state Supreme Court held that it had not been properly 
submitted and, therefore, not adopted. In Kansas and Min- 
nesota the amendment proposed by the legislature excludes 
from the Recall election the selection of a candidate to fill the 
vacancy if the Recall is successful. This eliminates only one 
of the many objections, but through this manner of sugar-coat- 
ing the measure which is proposed as a remedy, many legislators 



THE RECALL 15 

in the above states have been deceived into withdrawing their 
opposition to the Judicial Recall. In Colorado a case is pend- 
ing in the Supreme Court questioning the regularity of the sub- 
mission to the people of both amendments ; but until that case 
is decided, both the Recall of Judges and of Judicial Decisions 
are in force in that state. 

In many of the 40 or more state legislatures which have 
just adjourned, measures for constitutional amendments provid- 
ing for the Judicial Recall were presented, and in some of them, 
while not successful, received surprisingly strong support. In 
North Dakota, after most strenuous contest, the Recall of 
Judges lost by one vote. 

Minnesota is, thus, the first state having any of its territory 
east of the Mississippi River to adopt any form of the Judicial 
Recall, even by the vote of its legislature. The movement for 
its adoption seems to be one originating upon the Pacific Coast 
and to be spreading east. 

It is a mistake, however, to assume that the agitation has 
not become a serious one east of the Mississippi. It has already 
shown up strong, although without, as yet, sufficient strength for 
adoption, in the legislatures of Wisconsin, Illinois, Ohio and 
other states. In the recent Massachusetts legislature, a measure 
was presented and strongly urged for a constitutional amend- 
ment authorizing the Recall of Judicial Decisions "in all cases 
when a law otherwise duly enacted by the legislative authority 
of the commonwealth shall be held by the Supreme Judicial 
Court to be in violation of the constitution." In April last, 
there was introduced in the Congress a joint resolution pro- 
posing to the states- the election of all federal judges by vote 
of the people, with a tenure of 12 years, and providing for 
the recall of all judges, both of the supreme court and inferior 
courts, at any general election at which presidential electors 
shall be chosen. A senate joint resolution was introduced in 
December, 1912, in the Congress, proposing a constitutional 
amendment providing that any decision of the Federal Supreme 
Court declaring unconstitutional an act of the Congress, may 
be submitted by the Congress to the electors, and that by vote 
of a majority of congressional districts and of the states, such 
act should, notwithstanding the decision of the Supreme Court, 
become a law. These measures have not met any considerable 



i6 SELECTED ARTICLES 

support, but it is significant that such measures as these should 
be even proposed and that they would find active supporters. ' 

Provisions for Judicial Recall Adopted in Various States 

The following synopsis shows the Judicial Recall measures 
already adopted in certain states. In states not here mentioned 
it has not been passed by the legislature nor adopted by the 
people. 

Oregon. — Recall of Judg-es. Constitutional amendment, 
adopted in 1908 under initiative by the people. Authorizes re- 
call and new election to fill vacancy at the same time on petition 
not to exceed 25 per cent of qualified voters. Allows judge to 
resign within five days. In case of failure to resign, recall 
election within 20 days after filing petition. Charges of not 
to exceed 200 words in length must be included in petition and 
placed on ballot, and defense of same length allowed on ballot. 
Grounds for recall and nature of statement of same not specified. 
It is now generally • assumed that constitutional provision not 
self-executing, and requires facilitating legislation. Facilitat- 
ing act of legislature in 1913 passed but vetoed by Governor. 
No successful instance of judicial recall in this state. See 
Oregon Constitution, Article II. Sec. 18. 

California. — Recall of Judges. Constitutional amendment 
adopted in 1911. Constitutional provision is made self-execut- 
ing, but allows further legislation. Provision for charges and 
defense same as in Oregon, except 300-word defense allowed. 
Recall election includes selection of successor. Majority of 
votes actually cast decides, as in Oregon. Recall petition must 
be signed by 12 per cent of number of votes cast at last elec- 
tion ; provided that in the case of any state officer elected in any 
political subdivision of the state, the percentage is 20 per cent, 
and in case of officer elected from the state at large, signatures 
must include i per cent of the number of votes cast at the last 
election in each of five counties. The only successful judicial 
recalls which have taken place in the United States, so far as 
we have learned, is that of the recent case of Judge Wetler, in 
San Francisco, and one justice of the peace in Arizona. See 
California Constitution. Article 23. 

Colorado. — Recall of Judges and Recall of Judicial Decisions. 
Constitutional amendments on initiative of people adopted gen- 



THE RECALL 17 

eral election 1912. Recall of Judges same as in California, ex- 
cept 25 per cent of number of votes cast at election recjuired on 
recall petition. Recall of Judicial Decisions provides that be- 
fore a supreme court decision declaring a statute or certain city 
charter provisions unconstitutional shall be enforced, it may be, 
on petition of 5 per cent of qualified electors of the state or 
city, as the case may be, referred to the electors of the state 
or city; and if a majority of the votes cast is against the de- 
cision, the decision is recalled and ^he law stands. Thus there 
is established, in Colorado, a sort of local option as to the con- 
trol of the final judgments of the highest court of the state. 
See Colorado Constitution, New Article XXI, and amendment 
to Section i. Article VI. A case questioning the regularity 
of the submission of these amendments, and therefore, their 
validity, is now pending in the State Supreme Court. 

Arizona. — Recall of Judges. Arizona Constitutional Con- 
vention, December 9, 1910, proposed a constitution which in- 
cluded provision for recall of all public officers, including the 
judiciar}^ Allowed recall from any office by qualified electors 
of any electoral districts, which electoral district may comprise 
the entire state. Recall petition must be signed by 25 per cent 
of the number of votes cast at last preceding general election 
for the office in question. (Section i. Article VIII, Constitu- 
tion of 1910.) August 15, 1911, this constitution disapproved 
by President Taft. (See Veto Message, House Document 106, 
62d Congress, ist session.) By joint resolution of August 21, 
191 1, the Congress provided as a condition for admission that 
said Section i of Article VIII of the proposed constitution should 
be amended by vote of the people by inserting the words "ex- 
cept members of the judiciary." (See Joint Resolution No. 8. 
of August 21, 191 1.) By special election December 12, 1912, the 
amendment eliminating the recall of the judiciary was passed 
by vote of 14,963 in favor, and 1980 votes against. After ad- 
mission to statehood, the first legislature of Arizona, on April 
26, 1912, proposed a constitutional amendment changing Sec- 
tion I of Article VIII by eliminating the exception proposed 
by Congress and adopted by the people as a condition to being 
admitted to statehood. On November 5, 1912, at a special elec- 
tion, this amendment was adopted by 16,272 votes in favor and 
3705 votes against. (See Arizona Constitution, Section i, Article 



i8 SELECTED ARTICLES 

VIII, as thus amended.) There has, as yet. been no attempt 
at recall in Arizona, except one justice of the peace was re- 
called in a small precinct in Cochise County by less than a 
dozen votes ; and there is now pending a recall against Judge 
John C. Phillips of ^Maricopa County, for directing a verdict 
in a personal injury case, under a petition circulated by the 
labor unions of Phoenix and filed while Judge Phillips had yet 
under advisement a motion for a new trial. 

Nevada. — Recall of Judges. Constitutional amendment pro- 
posed by legislature in 191 1; adopted general election 1912. 
General provisions same as in Oregon. Facilitating legislation 
adopted in 1913. See Nevada Session Laws, Ch. 258, Laws 1913 
and Constitution, Article II, Section 9. 

Arkansas. — Recall of Judges. Constitutional amendment, 
initiated by people under the initiative and referendum, passed 
at the 1912 election. Supreme Court held not properly submitted 
and, therefore, never adopted. Under state constitution only 
three amendments can be submitted at one election. The 1913 
legislature submitted three amendments on other subjects. 
Accordingly, no recall amendment can be passed for at least 
two years. 

Kansas. — Recall of Judges. The legislature of 1913 proposed 
amendment for adoption by the people at general election in 
1914. It provides for recall election without selection of candi- 
date to fill vacancy. Recall petition must be signed by 10 per 
cent of number of votes cast at last election in case of state 
officers, 15 per cent in case the electoral division is less than a 
state and greater than a county, and 2'^ per cent where it is a 
county or lesser division. See Kansas Laws 1913, Ch. 336. 

jMinnesota. — Recall of Judges. Constitutional amendment 
proposed by legislature of 1913 for submission at general elec- 
tion of 1914. Gives power to the legislature to provide recall of 
elective officers, including judges. Recall petition must be signed 
by not less than 20 per cent and not more than 30 per cent of 
number of votes cast for governor in the electoral division at 
last preceding election. Judge may resign in five days after 
filing petition : otherwise, election in 25 days. Question is con- 
fined to recall. No election of successor. 200-word charge and 
200-word defense. No petition to be filed until judge has held 
office for six months nor within 60 davs of anv decision com- 



THE RECALL 19 

plained of. Recalled judge not eligible for re-election. See 
Minnesota Laws 1913, Ch. 593. 

American Political Science Review. 6: 41-53. February, 1912. 
Operation of the Recall in Oregon. James D. Barnett. 

While the constitutional amendment was yet before the 
people for adoption, the recall of a member of the city 
council of Portland was discussed, to be attempted if the 
amendment should be adopted. But apparently the first 
serious attempt to recall an officer was made in Medford 
the next month after the amendment was adopted. This 
was blocked by a decision of the circuit court holding that 
the amendment is not operative without additional legisla- 
tion. The next year the mayor of Junction City, and the 
mayor and all the councilmen of Estacata were recalled. 
In the same year the recall of the mayor and three members 
of the city council of Union was prevented only by these 
officers' going "through a regular routine of resigning and 
electing themselves to other offices. In 1910 the mayor of 
Ashland was subjected to a recall election, but the election 
resulted in his favor. In 191 1 a member of the city council 
of Portland was recalled by the voters of his ward. Thus 
only four recall elections have actually been held, but in 
three of those the officers have been recalled. If the affair 
at Union is included as practically a recall, the officers have 
been deposed in four out of five instances. All of the 
officers have been municipal officers. All of the municipali- 
ties except Portland are small, the largest containing about 
five thousand people, and the smallest about four hundred. 
Many more or less serious attempts have been made in 
other cases to recall officers, including mayors, members 
of city councils, a member of a board of education, an asses- 
sor, county commissioners, a district attorney, a circuit 
judge, a municipal judge — the list is necessarily incomplete; 
but for one reason or another elections in these cases have 
not resulted. Further, mere threats are often made to re- 
call officers, which nobody takes seriously." 

Neither in the cases in which the officers were recalled 



20 SELECTED ARTICLES 

nor in that in which the officer was sustained in the elec- 
tion do the reasons for the demand as stated in the recall 
petitions disclose all the motives nor always the chief mo- 
tive for the demand. In one case where it was charged in 
the petition that the officer was inefficient, immoral, un- 
truthful, and arbitrary in the exercise of his authority, a 
motive which was influential at least to some extent was 
the hostility of certain property owners caused by the offic- 
er's action in opening streets which they had illegally closed. 
In one of the bitterest campaigns the petition asserted that 
the officials had managed the affairs of the city in an un- 
satisfactory manner, illegally diverted public funds, repudi- 
ated the city debt, etc. But the real cause of the recall 
movement was simply a factional fight waged by two banks 
and their respective supporters w^hich had divided the city 
against itself ever since the second bank was organized, 
and which ceased later only with the merger of the two 
banks. When the petition charged a mayor with incompe- 
tency, improper expenditure for street improvements, un- 
warranted removal of a city employee, and favoritism in 
committee appointments, the real ground of the agitation 
seems to have been opposition to his progressive policy in 
regard to public improvements. Where the petition stated 
simply that a councilman did not "faithfully and efficiently 
represent" the interests of his ward and city, the motives 
behind the recall were various. The officer had been in- 
considerate in dealing with some of his constituents who 
desired his influence in securing certain action by the coun- 
cil. He had fathered an ordinance deemed by the labor 
unions prejudicial to their interests, and he was opposed 
by their adherents on this account. Their candidate won 
in the recall election. Further, the councilman had advo- 
cated the location of a sewer outlet in a certain locality 
and had thus aroused the opposition of some property own- 
ers. One of these was a candidate at the recall election. 
The councilman had also incurred the enmity of a corpora- 
tion attorney by charging the latter with an attempt to 
bribe him to drop some legislation detrimental to the inter- 
ests of the company. The attorney was very active against 
the officer in the recall campaign. It was also claimed that 



THE RECALL 21 

several corporations which had suffered from legislation 
originating with this officer were partly responsible for his 
defeat. In another case where unsatisfactory administra- 
tion, diversion of public funds, needless expenditures, abuse 
of the emergency clause in the enactment of ordinances, 
impairment of the public credit, etc., were alleged in the 
petition as the reasons for demanding the recall, the move- 
ment was really the outcome of struggle between those who 
opposed and those who favored the stringent enforcement 
of the prohibition law. The officers attacked represented 
the "temperance" ticket which had won at the previous 
election. 

It appears that some of the charges stated in the peti- 
tions in these cases could be substantiated but that others 
could not. On the whole it seems that the recall action 
was not justified in more than one or two of these cases. 
However, it is going too far to conclude, as has been main- 
tained here to some extent, that this experience with the 
recall has shown it to be merely an instrument of personal 
or factional spite. 

It has been objected that the law does not limit the state- 
ment of reasons for the demand of the recall to "justifiable" 
reasons, and that it thus opens the way for grave abuse. 
Some change here might well enough be made, but how ef- 
fective any such limitation as to reasons would be is doubt- 
ful, since, in practice, as has been observed, the real motives 
back of the recall movement may not be mentioned along 
with the "justifiable" reasons in the petition. 

As a check upon the abuses of the recall, some of its 
leading advocates have considered that it might be well to 
amend the law to increase the percentage of signatures 
now required for the filing of petitions. But a more ration- 
al change would be to reform the methods now employed 
to secure the signatures. Although it is probably true that 
people do not sign recall petitions thrust before them on the 
streets and elsewhere as readily as they do other kinds of 
petitions, nevertheless under the present system there is 
great probability that accommodating persons will by their 
signatures aid a movement for the merits of which they 
care absolutely nothing. For this reason, and also as a 



22 SELECTED ARTICLES 

safeguard against fraud — forgery of signatures to recall peti- 
tions has been charged — it should be required that the peti- 
tions be left at some public office for signature. "The only- 
possible excuse for the recall is that it should be spontane- 
ous and that each signer should be sufficiently interested to 
go to some public office and sign the petition — not wait 
to have it shoved into his hand with a 'sign here' from a 
5-cents-a-name getter." 

The expenses of the recall elections — both to the public 
and to the candidates — have doubtless had some effect in 
discouraging recall movements. The six months' exemption 
provision has been another check, and possibly some danger 
of action for libel — this was threatened in one case where 
the charges in the petition were very grave — has discouraged 
the circulation of petitions in some cases. Fear of the fail- 
ure of the recall movement under the particular circumstanc- 
es caused in one case a lack of suitable candidates against 
the official attacked, and further action was hence delayed. 
Where the offense has been a legislative act, the possibility 
of invoking the referendum has doubtless diminished the 
demands for recall to some extent. "The good sense of the 
electors" is of course the chief reliance of the advocates 
of this instrument of government against any danger from 
its unwarranted use. 

Opinions widely differ as to the effects of the institution 
upon the conduct of officers. On the one hand it is main- 
tained that the mere existence of the law holds a discreet 
official "to a definite sense of his responsibility of his duty." 
On the other hand it is said that "the recall . . . exerts no 
corrective influence over officials that the laws against offi- 
cial corruption and the controlling power of public senti- 
ment do not." In fact, it seems that at least on a few 
occasions the serious threat of a recall has prevented or has 
helped to prevent some official "sins of commission" — 
granting an obnoxious franchise establishing a "restricted 
district." It may be, of course, that much political corrup- 
tion has been prevented by a deterrent influence of the recall 
law. But, on the other hand, the possibility of a recall has 
probably caused at least some "sins of omission." It is 
thought that the assessors in many instances have failed 
to enforce the law fully for fear of a recall. 



AFFIRMATIVE DISCUSSION 

Annals of the American Academy. 43: 17-31. September, 1912. 

Initiative, Referendum and Recall. George W. Guthrie. 

There can be no order and stability in any community, 
no civilization worthy of the name, unless the law gives 
expression to the ideals and collective will of the people, 
and its administration commands their respect. 

Because the science of government is constantly being 
developed, because the rapid change of our population from 
rural to urban conditions has imposed new duties and re- 
sponsibilities on our government, the meeting of which 
in an adequate manner is essential to the safety and well- 
being of the people, and because, in the face of this, it is, 
under our political sj'stem of party government, becoming 
more and more difificult to secure the changes in legislation 
and administration which the new conditions call for and 
the needs of the people demand, impartial and thoughtful 
men have come to a recognition of the fact that there must 
be some new method which will better enable the people to 
declare their will, and more surely and expeditiously en- 
force obedience to it, than is possible now. 

Ultra-conservative men say that our present system of 
party government affords adequate facilities for all pur- 
poses; but that opinion ignores three essential factors, 
which must not be ignored in the consideration of the 
question. 

In the first place, citizens, under our present system, 
divide themselves into parties according to their views on 
one or two issues which they regard as "paramount." These 
divisions, however, are necessarily on broad lin-es: men who 
differ radically on many questions act together to secure 



24 SELECTED ARTICLES 

the adoption of the policies on which they agree. When 
conditions were simple, this system proved practically satis- 
factory; but as conditions become more complex, and the 
points of disagreement more important and those of agree- 
ment comparatively less important, these divisions become 
less satisfactory. More and more, citizens are beginning to 
feel that, unless some system be provided by which the 
voters can give expression to their individual wishes on 
questions concerning which there is disagreement within 
the party, party associations cannot be maintained. The 
division of the people into two, or even three, great national 
parties, separated by clear and distinct lines, will soon 
be impossible, unless some method is provided through 
which intelligent men may continue their party associations 
without surrendering their own intelligence and conscience 
on questions on which they often have deep convictions. 
The division of the electorate into numerous small parties, 
rendering government through parties impossible except 
by bargains and trades, is not to be desired; yet, unless 
some method for the expression of individual differences 
under our present system is provided, it will be unavoidable. 
In the second place, more and greater changes now take 
place, more and greater emergencies arise, in a year than 
formerly happened in a generation. Questions affecting 
the safety and well-being of the people arise from time 
to time, which should be met promptly. The delays which 
can be interposed when relief is sought through the ordin- 
ary course of party action, and the difficulties always met 
with in any attempt to fix responsibility for the passage or 
defeat of any measure affecting public interests, have and 
will cause great and unnecessary suffering and loss. Bills 
backed by public sentiment, but objectionable to controll- 
ing interests, are seldom openly defeated. They are smoth- 
ered in the committee or left on the calendar of undis- 
posed-of-bills. At the last session of the Pennsylvania 
Legislature, the speaker refused to permit a roll-call on a 
certain public measure. When criticised for this action, 
he was reported in a public interview as saying that there 
was a clear majority of the house against the bill, and 
that the only effect of a roll-call would have been to put 



THE RECALL 25 

members on record and thereby cause some of them un- 
necessary trouble and expense in securing re-election. At 
the last Republican State Convention, a member objected 
to a resolution requiring all Republican candidates to com- 
mit themselves in writing to the measures pledged in the 
platform, because to do so would ensure the defeat of some 
of them. 

Under such a system, how is it possible for the people 
to act intelligently? 

They are not to be permitted to know the views of legis- 
lative candidates before election or how they vote when 
elected. 

In the third place, in many instances an evil is accom- 
plished by the mere enactment of a law, which cannot be 
rectified by its repeal. A franchise once granted becomes 
a contract and is not repealed by a repeal of the act grant- 
ing it. A payment of public money under an appropriation 
legally made cannot be recovered. A general law, no 
matter how objectionable, becomes operative at once; it 
may be repealed at the next session, but even if the obsta- 
cles in the way of a repeal are overcome and the repeal 
secured at the next session, here in Pennsylvania the peo- 
ple must suffer under it for two years. A beneficial law 
defeated at one session may be enacted two years later; 
but in the interim the people must do without the relief. 
No matter how the evil measure was passed or the beneficial 
one defeated, whether it was ignorance, influence or direct 
corruption that accomplished it, the people are the sufferers, 
and under our present system must continue to suffer for 
two years at least. 

Through the operation of our system of party govern- 
ment, there has been developed in different municipalities 
and states, a body, commonly called "the boss and the 
machine," which, although unknown to the law, actually 
controls, more or less completely, the powers of both the 
executive and legislative departments. The framers of 
our constitution provided for separate and independent de- 
partments of government, each to exercise for itself the 
powers committed to it, and at the same time be a check 
upon all the others. The sole purpose of this was to pre- 



26 SELECTED ARTICLES 

vent any one department becoming so powerful as to dom- 
inate and control the others, and so endanger the liberties 
of the people. 

This is still the theory of our government. The "boss 
and machine," however, is a fact. 

The "boss," chosen not by the whole people but by a 
mere faction, holding an office not known to the law, and 
exercising powers never legally conferred upon him, never- 
theless, except in short periods of political revolution, con- 
trols both the executive and legislative departments of the 
municipality or state over which he rules, and in some in- 
stances, his malign influence has extended even into the 
judicial department. 

Washington foresaw the possibility of such a condition 
arising under our system of party government; and in his 
"farewell address" w^arned the people that an excess of 
party spirit would have a tendency "to put in the place 
of the delegated will of the nation, the will of a party; 
often a small, but artful and enterprising minority;" and 
would be "likely, in the course of time and things, to be- 
come potent engines by which cunning, ambitious and un- 
principled men will be enabled to subvert the power of 
the people and to usurp for themselves the reins of gov- 
ernment." 

Do we not now confront this very condition? 

Justice Hughes, in describing the "city boss," says that 
"in the full play of his influence he becomes mayor, com- 
mon council, commissioner of public works, head of the 
police department, as well as sheriff and district attorney." 
The accuracy of this description has never been challenged: 
mutatis mutandi, it also accurately describes the "state 
boss." 

No one questions the existence and power of the "boss" 
in our system. Wherever he exists, his personality is so 
well known that no one familiar with public affairs ever 
hesitates in naming him. Yet he holds no legal office, and 
exercises no lawful power. Were the purposes of the 
"boss" always honest and his methods pure, the system 
would still be a constant menace to liberty and good gov- 
ernment. 



THE RECALL 27 

That the powers of a single department of government 
should be controlled by an agency not known to the law 
and not selected by or accountable to the whole people, 
but only to a faction of a party, is incompatible with any 
theory of real representative government: but the control 
of the powers of two departments by a single agency of 
this character is destructive of our system of representative 
government, and overthrows the just balance of powers 
which is essential to its maintenance. 

How much greater the evil — how much more serious the 
danger — when all three departments of government become 
subject to such control. 

But the "boss" system, whatever pretenses it may make 
in the beginning, never has and never will remain honest 
either in methods or purposes. The opportunities which it 
presents for improper and illegal practices have in the end 
always and everj^where been utilized. 

It is generally through the "boss and his machine" that 
the criminal and vicious classes secure the immunity re- 
quired for the profitable prosecution of their occupations, 
paying therefor in money and in votes. So, too, it is to 
the "boss" that the "interests" go to secure the executive 
and legislative favors which they desire. 

It is true that when the "boss" is hostile, or when his 
"machine" is not in perfect working order, direct bribery 
is sometimes resorted to. This, however, is dangerous to 
all concerned and is not a popular method. 

The "boss" holds no olifice and can receive favors with- 
out subjecting either himself or the giver to the penalties 
of the criminal law. 

Two other factors have been developed which tend to 
impair the balance of the system established by the con- 
stitution. One is the undue influence of the executive de- 
partment, through the patronage which has from time to 
time been committed to it; the other is the number and 
vast wealth of business interests, which may be peculiarly 
and specially benefited or injured by new legislation, and 
which are therefore interested to defeat or promote it, 
without regard to the effect on the general public whether 
for good or evil. 



28 SELECTED ARTICLES 

It is true that sovereignty still remains with the people, 
and that b}' long and persistent agitation they can in the 
end overcome all these obstacles and secure from the 
government that which they need and desire. But it is 
only by great and long-continued effort, and often by great 
expense which those concerned can ill afford, that it can 
be accomplished; and even then it may require the break- 
ing of political associations to which the people are much 
attached and the defeat of other measures in which they 
are interested only in a comparatively less degree. In 
view of the rapid developments constantly occurring in 
matters which intimately affect our daily life, and of the 
rapid changes in conditions due to the growth of con- 
gested centers, more de;velopments and greater changes 
taking place in a year now than in a generation before, 
these long delays in matters of vital importance impose 
a great burden of loss and suffering on the people and 
should not be continued if possibly avoidable. 

Under our present system the practical difficulties in the 
way of any movement to secure legislation opposed by 
the "boss" are almost insurmountable. It generally re- 
quires either a political revolution or an insurrection so 
strong as to extort from his fears that which he will not 
concede to justice. Such legislation is usually smothered 
in committees, or left on the calendar of bills undisposed 
of, and it is difficult, if not impossible, to fix responsibility. 
And when the responsibility has been fixed, the power 
of the "boss" to protect the delinquent, either by securing 
his re-election or providing for him in some other way, 
is very great. 

The direct primaries are weakening this power; but 
when we contemplate the acknowledged expenditure this 
year of over $110,000 to control (?) the primary election 
in Allegheny county alone, and the expenditure of over 
$280,000 at the municipal election of 191 1 in the same 
county, we realize how potent, are the influences against 
which the people have to contend in any struggle with 
the machinery of a majority party. 

No remedy has even been suggested except the "initi- 
ative, referendum and recall," and as long as the opponents 
vof these measures fail to suggest any other, we are justified 



THE RECALL 29 

in questioning either their good faith or their appreciation 
of the evils of which the people most justly complain. 

To assert that, in such a government as ours, any pro- 
cedure which merely provides a sure and convenient 
method lor the ascertainment and enforcement of the will 
of the people, who are sovereign, is revolutionary, is sim- 
ply an absurd misuse of words. 

Nor are the systems proposed new in anything except 
in the mode provided for their application. From the be- 
gining of this government, constitutions have been adopted 
and amended by direct legislation, and in different states 
various matters of legislation, more or less numerous, have 
been left to the decision of the voters. There is, therefore, 
nothing even new in the principle involved in these measures. 

In the Articles of Confederation, and in the first Con- 
stitution of Pennsylvania (1776), the ''recall" was provided 
for. It was dropped subsequently, not because it was rad- 
ical or, revolutionary, but because it was believed that the 
short term of ofifice would sufficiently protect the people 
from abuse of power. The new terms of one year for the 
state house of representatives and two years for the na- 
tional, for example, seemed to the framers very short when 
contrasted with the parliamentary term of seven years with 
which they were familiar. The shortness of the term, in 
most cases the term would expire before it could be put 
in operation, and the almost entire absence of any public 
means for spreading information, made the "recall" gener- 
ally unnecessary and always impractical. 

But all this has changed. 

Terms of office have been greatly lengthened. Means 
of public and private intercourse have been developed so 
that every morning we have spread before us the news 
of the world, and a man sitting in his office in one city can 
talk with another in any city east of the Rocky Mountains. 

Why, then, should the people be required to suffer for 
two, four or perhaps six years for relief from a public 
servant whom they had trusted, but who proved incom- 
petent, unfaithful, or corrupt, or from the consequences of 
the improper defeat or passage of some legislative measure? 

Of course, in cases in which actual corruption can be 



so SELECTED ARTICLES 

proved, a corrupt official may be removed by impeachment. 
This is the theor}^; but such proceedings are so cumbersome, 
slow and expensive, and are so apt to be disposed of, not 
according to justice, but according to political interests and 
influence, that the}' are practically useless. Moreover, in 
the great betrayals of public interest, actual corruption, 
even if it exists, cannot be proved. But there is not even 
this pretense of protection for the people from the con- 
sequences of legislative wrong. The impeachment of a 
corrupt legislator does not impair the validity of a law 
passed by his corrupt vote. 

It is no answer to say that the people themselves are to 
blame for electing officials who prove false or incompetent, 
and therefore should suffer the consequences whatever they 
may be. Xo business man or combination of business men 
act on any such theory in the conduct of their private 
affairs. They claim the right to remove at once any officer 
or agent who proves unsatisfactor}- for any reason. A con- 
spicuous example of this is contained in the revised draft 
of the Aldrich bill providing for a national reserve associa- 
tion, recommended by the Monetary Commission. This 
bill provides that the governor of the association, although 
to be appointed by the President of the United States, may 
be removed at any time b\' a two-thirds vote of the directors. 

In theory the "recall" is right. Can the people, entrusted 
with the power to appoint, be safely entrusted with power to 
remove? The question answers itself. 

It is asserted that the "recall" would lead to continual 
public agitation which would affect business. This objection 
is not tenable either in theorj^ or in fact. 

This is a republic; and whatever agitation is necessary to 
secure good government for the people, must be borne as 
essential to its maintenance. The American people, how- 
ever, are as a whole patient and conservative, not mer- 
curial. We have from time to time exhibitions of great pop- 
ular excitement; but in the end the decision of the people is 
reached soberly and deliberately; and when made, no mat- 
ter how great and bitter the previous agitation may have 



THE RECALL 31 

appeared, nor how serious the disappointment of the de- 
feated may be, it is accepted peaceably. 

Even the election of a President by what the majority at 
the time believed to be fraudulent means, though bitterly 
resented, was submitted to without any popular disturbance 
whatever. There was no legal remedy; and the overwhelm- 
ing popular sentiment in favor of order made any other 
course impossible. 

In 1907, in the midst of profound political peace, the 
business of this country was precipitated into one of the 
most severe and protracted panics we have ever known; 
and now in the midst of the most bitter political contest of 
a generation, business is daily improving and prospects 
growing brighter. 

This specter of business disaster from necessary political 
activity should therefore be laid to rest. 

Special interests dependent upon governmental favors may 
be ma-de uneasy when the power of the faction to which 
they look is threatened. But the life of the country moves 
on peacefully as long as justice prevails; nothing will dis- 
turb it but intrenched wrong in public office. 

In Great Britain they have a "true" representative gov- 
ernment. Parliament is sovereign. It has removed kings 
and changed the succession of the crown; and it can prolong 
its own term. In all questions, its will is supreme; its acts 
can only be set aside by revolution. Executive power, 
moreover, belongs to what is in fact really a parliamentary 
committee. Yet for generations, no parliament has served 
out the term for which it was elected; from time to time — 
frequently at very short intervals — it is voluntaril}' dissolved 
in order to refer some important question to the decision 
of the people. Indeed, it is the rule to ascertain the will of 
the constituencies by a dissolution when an important new- 
measure is introduced. In the twent3''-three years, from the 
Congress of Berlin to the South African war, including the 
period of the Egyptian war, parliament was dissolved eight 
times in order to ascertain by a "referendum" the will of 
the people on important foreign and domestic measures, in- 



2,2 SELECTED ARTICLES , 

eluding foreign wars, the Irish land act, Irish home rule, 
the corrupt practice act, the franchise act, the redistribution 
of seats, and public education. Within the last few years 
there were two dissolutions in quick succession in order to 
ascertain the will of the people on a new system of land tax- 
ation. 

It must be remembered that the dissolution of parliament 
also involves a change of the executive. It is as though the 
President and congress were both subjected to a "recall" 
at one election. 

The assertion that the "Initiative, Referendum and Re- 
call" would substitute "mob rule and popular impulse" for 
the calm and impartial deliberation of representative bodies 
entirely ignores the facts. To secure the signatures of 
from ten to fifteen per cent of the voters of any municipal- 
ity or state to a petition for an "initiative," or from fifteen 
to twenty per cent of a "referendum," will always require 
so much time, effort and expense, that it would be im- 
possible on a mere popular impulse or sudden outbreak 
of temper. It could only be accomplished when backed 
by a deep conviction of justice. 

xA.ll this will be followed by the public arguments, for 
or against the pending measure, which will inevitably oc- 
cur during the campaign preceding the election; there would 
also be distributed to the people, under public supervision, 
the printed briefs prepared by its supporters and opponents. 
Only a mind distorted by idle fears or perverted by self- 
interest can see in this the slightest element of "mob rule," 
or even the shadow of danger of the adoption of improvi- 
dent and ill-considered legislation by "popular impulse." 
Of course, there will always be a possibility of a mis- 
take; but it will be an honest mistake, and it will not occur 
more frequently than such mistakes occur in representa- 
tive bodies. On the other hand, action prejudicial to pub- 
lic interest is sometimes taken in representative bodies, not 
through mistake, but through improper or even corrupt 
influence. That danger will be reduced to a minimum un- 
der the new system. 



THE RECALL 33 

Munsey. 47: 184-6. May, 1912. 

Plain Talk About the Recall. Frank A. Munsey. 

It is widely objected to the recall that in a conimunity 
enjoying the privilege of discharging its elective officials 
at will there would be a continual turmoil because some 
faction would be busy all the time trying to get somebody 
recalled from office. The experience of commission-gov- 
erned cities proves quite the contrary. The recall has sel- 
dom been invoked. The very fact that public officials know 
such a power to be in the hands of the people makes them 
the more concerned to shape their course with reference to 
gaining and holding the approval of the people. 

Impeachment as a practical measure is a failure. It does 
not furnish the necessary relief. It has proved to be un- 
workable. As a result, it is rarely brought into use — never, 
indeed, except in cases of extreme disloyalty, or the gross- 
est kind of unfitness. To be impeached, a man must be so 
much worse than the worst of our officials and public serv- 
ants that impeachment finds almost no victims. 

Moreover, impeachment damns a man for life. It brands 
him as so worthless or so vile a creature that he never has 
a chance again. It makes him an outcast beyond the pale 
of decency. 

To be recalled, on the other hand, does not by any means 
utterly damn a man. It simply implies that he has failed 
to make good on the particular job on which he had been 
tried out. 

There are many men liable to the recall, and who should 
properly be recalled; but there are very few to whom im- 
peachment could be successfully applied, or wisely or hum- 
anely applied. The recall is a workable, practical, common- 
sense, just measure, while impeachment is an utter failure. 

Outlook. 98: 697-8. July 29, 191 1. 

Recall in Texas. 

The recall has been declared to be constitutional by the 
Supreme Court of Texas. About a year ago the policy of 



34 SELECTED ARTICLES 

the school board in Dallas was opposed to the formally 
and persistently expressed wishes of the parents of the city. 
A special election was held upon petition, at which those 
members of the board who were obstructing the wishes of 
the electorate were recalled and others chosen in their 
places. The offending superintendent of schools was dis- 
missed; whereupon he and one of the recalled members 
sought an injunction to restrain the new board from dis- 
charging its duties, on the ground that the recall provision 
of the Dallas Charter was illegal and unconstitutional. The 
lower court refused to grant the injunction, a decision 
which the Supreme Court has just affirmed. In its opinion 
the Court said: "The people of the city of Dallas were 
invested with the sovereign power of the city by virtue of 
the grant of the charter to them, and the legislature has 
the power to grant to them the right to remove, by process 
of the recall provision, any officer who failed to discharge 
his duty in a manner satisfactory to the people of that city." 
The Texas Constitution provides that the legislature shall 
provide by law for the trial and removal from office of all 
officers of the state, the mode for which has not been pro- 
vided in the Constitution. It was urged that the recall vio- 
lates that provision because no trial is given. The Court 
answered that contention by saj^ing that it applies specifi- 
cally to "officers of the state," and holds that that expression 
has the same significance as "state officer." The members 
of the city board are not state officers, and that provision 
does not apply, and that relating to county officers was held 
not to be applicable, because members of the school board 
are not county officers. One of the justices dissented from 
the majorit}^ of the Court; he claimed that the recall provi- 
sion was repugnant to Article IV, Section 4, of the Federal 
Constitution, which provides: "The United States shall 
guarantee to every state in this Union a republican form of 
government." In answer to this the majority quote Jeffer- 
son's definition of a republican form of government and 
apply it to the recall provision of the city charter. And in 
this connection the Court says with significance: "The policy 
of reserving to the people such power as the recall, the 
initiative, and referendum is a question for the people them- 



THE RECALL 35 

selves in framing the government or for the legislature in 
the creation of municipal governments. It is not for the 
courts to decide that question. We are unable to see from 
our viev^-point how it can be that a larger measure of 
sovereignty committed to the people by this method of gov- 
ernment and a more certain means of securing a proper 
representation in any way militates against its character 
as a republican form of government, and that it is thereby 
rendered in any sense obnoxious to the provisions of the 
Constitution of the United States." 

Annals of the American Academy. 43: 3-16. September, 1912. 

Functions of the Initiative, Referendum and Recall. 
Jonathan Bourne, Jr. 

Adoption of the recall is nothing more than the appli- 
cation of good business principles to government affairs. 
Every wise employer reserves the right to discharge an 
employee whenever the service rendered is unsatisfactory. 
The right of the employer to discharge his employee rests 
upon exactly the same basis as the right of the employee 
to quit. The principle is recognized throughout the busi- 
ness world, and it is put in practice by every large and suc- 
cessful corporation. 

Consider the absurdity of the recognition of the right of 
a public officer to quit his position at any time and the 
denial of the right of his employers to discharge him. To 
assert the right in one instance and deny it in the other is 
to maintain a one-sided contract, the discrimination being 
against the whole people and in favor of the individual. 
If we can trust an individual to deal justly with the people 
when he considers tendering his resignation, we can also 
trust the people to deal justly with a public servant when 
they consider discharging him. 

It is generally conceded that the American people have 
intelligence and honesty enough to be trusted with the 
power to select their public servants, even to choose a Pres- 
ident of the United States. If it be granted that the people 
have intelligence enough to choose a President of the United 
States, no man can consistently contend that they have not 



Z6 SELECTED ARTICLES 

the intelligence to act wisely upon the question of dis- 
charging a state, county, or municipal officer. I think no 
one proposes, at present, to extend the recall to any federal 
official except those elected by the people of the several 
states. 

All that is desired by the people of any state, county, 
or city is good service for the general w^elfare. They will 
never make a change unless satisfied that it will be a change 
for the better, hence they will never discharge a public 
servant unless convinced that his successor will be a more 
faithful and more efficient public official. They have a right 
to iniprove their government, or try to do so, if they see 
an opportunity, and this is the function of the recall. The 
interests of one individual must not stand in the way of 
better government. 

Yale Review. i8: 206-9. August, 1909. 

Recall. Margaret A. Schaffner. 

The recent use of the recall in Los Angeles has brought 
into view an interesting parallelism in legislation. The 
charter provision of Los Angeles is so like the cantonal 
law of Schaffhausen for the recall of officials that it seems 
to have been modeled after the old Swiss system. 

A comparison of the recall provision of Los Angeles with 
the cantonal law of SchaflEhausen is of special interest be- 
cause the measure which Los Angeles first secured in 1903* 
has served as a model for most of the subsequent enact- 
ments in this country," while the present Schaffhausen law 
has a well authenticated history of revisions which seem 
to reach back to the time of the customary Landsgemeinden, 
when the people exercised the right of election and of re- 
call directly under the customary law. 



^Los Angeles, Charter Amendment, California, Laws, 1903, pp. 
574-5. 

^Among- recall provisions similar to the Los Angeles charter 
amendment mav be cited the numerous provisions enacted in 
California since 1903; the Idaho law of 1907, pp. 368-60; the Iowa 
law of 1907, c. 48, sec. 18; the South Dakota law of 1907, c. 86; the 
Texas special laws of 1907, pp. 130-1, pp. 361-2 and 366, and pp. 
621-2; the numerous charter amendments adopted under the Wash- 
ington law of 1903, c. 186, and the recall law for cities of the 
second class enacted in Washington in 1907, c. 241, sec. 15. 
Among the more recent enactments may be cited the recall pro- 
vision embodied in the charter adopted by Colorado Springs on 
May 11, 1909. 



THE RECALL zy 

The salient features of the two laws are very similar. 
This is true not only as regards the scope of the recall, the 
procedure for the petition, the method of conducting the 
removal election, and the tenure of office of the newly-elect- 
ed officials, but also there is a marked similarity in such 
minor details as the requirements for the contents of the 
petition, the qualifications of signers, the verification of 
signatures, the filing and the examination of the petition, 
the provisions for amendment in case of insufficiency, and 
the transmission of the petition to some responsible body 
authorized to call a removal election if the petition be found 
sufficient. 

\\\ a number of sections the parallelism is so marked that, 
when the proper substitutions for official terms are made, 
a substantially similar procedure is found in the Schafif- 
hausen practice, followed for generations, and the Los 
Angeles method, seemingly so "unique" and "extraordinary." 

And yet it were scarcely necessary to search the annals 
of old Schaffhausen nor to read her written laws to "dis- 
cover" a political institution as old as the recall. Our own 
histor}^ furnishes an example of the practice when the dele- 
gates to the Continental Congress from Pennsylvania were 
recalled because they refused to sign the Declaration of In- 
dependence and other delegates were sent in their stead 
to carry out the imperative mandate of the people. Of still 
greater significance in the evolution of the recall is the 
parliamentary custom developed in England by which Par- 
liament is dissolved and the members go back to the people 
and a new Parliament is formed. These various political 
institutions, some old in time, some seemingly new. seem 
to indicate that "representative government" maj'- yet per- 
fect a system under which "representatives" will really 
"represent" their constituents. 

Outlook. 97: 375*-6.* February 25, igii. 

Recall in Seattle. 

In an election which, though the most exciting the city 
has known for years, was quiet and orderly, the people of 
Seattle, on February 7, displaced Mayor Hiram G. Gill and 



38 SELECTED ARTICLES 

put in his place Mr. George W. Dilling. The issues of the elec- 
tion were stated at some length in the Outlook of February 
II. In brief, they centered about charges of corruption, particu- 
larly in the police department, and of mismanagement of 
the lighting department. This was what is known as a re- 
call election. In accordance with the law of the state a 
petition was filed requiring the voters of the city to decide 
whether they were dis-satisfied with Mayor Gill, and, if so, 
whom they should put in his place. The result was a victory 
for decency and good government. This is the second time 
the recall has been put into operation in a large American 
City. In the other case, that of Los Angeles, the Mayor 
withdrew before the ballots were cast, and even fled from 
the city. In this case the Mayor made great exertions to 
prevent the recall election from taking place. Like Los 
Angeles, Seattle indicates that it requires great provocation 
to render the Recall efficacious, and tends to disprove the 
statement that it provides an easy way for temporary passion 
to work injustice. It took a great deal of patient effort to 
bring this result about. What effect the votes of the women, 
who cast their ballots for the first time by virtue of the 
recentl}^ adopted suffrage amendment to the state Consti- 
tution, had upon the election is the subject of much sur- 
mise. Without their votes the election would have been 
very close. With them, the victory for good government 
was a certainty. The vote for Mr. Dilling was nearly 32,000, 
as against a less than 26,000 for Mr. Gill. The socialists 
swelled the vote against Mr. Gill, but not for Mr. Dilling. 
The total majority for a change in the city government ex- 
ceeded ten thousand. The new Mayor, who at once took 
office, is regarded as a man of strong and upright character. 
His reputation is confirmed bj'' a good record in business. 
He is not without public experience, as he has been a mem- 
ber of the state legislature. 

National Conference for Good City Government. Proceed- 
ings, 1905: 104-6. 

Municipal Progress in Los Angeles. Charles D. Willard. 

The value of the recall as a permanent political institu- 
tion cannot be determined by one experiment, but there are 



THE RECALL 39 

certain objections that were offered to the system before its 
adoption which our two years of experience with it seems 
to have abolished. One was that it would discourage good 
men from seeking office. Two months after the recall elec- 
tion, the regular municipal nomination conventions were held 
and a larger percentage of good men entered the contest 
than at any time previously. Second, it was urged that fre- 
quent changes in the personnel of offices would result. But, 
as a matter of fact, it is pretty serious undertaking to secure 
the signatures of 25 per cent of the voters, each name wit- 
nessed and sworn to as the law provides. Moreover, there 
is the American sentiment of fair play to be reckoned with, 
which will protect the officer who means to do what is right, 
from an unjust attack. 



NEGATIVE DISCUSSION 

Atlantic Monthly. io8: 454-66. October, 191 1. 

Representative as Against Direct Government. 
Samuel W. McCall. 

In Oregon, it very rarely happens that there is an elec- 
tion in which the defeated candidate does not receive twen- 
ty-five per cent of the vote, and not infrequently he received 
nearly one-half of it. It would be a matter of no difficulty 
for him to initiate a Recall and practically to have the elec- 
tion over again ; and so we should have perpetual warfare 
over the holding of office. That result has already clearly -de- 
veloped where the Recall is in force. 

A public officer could not take the long view ; he could 
not patiently study the problems that confronted him and 
carefully look into the conditions with which his office had 
placed him in close contact, but of which as a private citizen 
he could have only the most general knowledge. But he 
would need to be careful to do only those things which might 
be justified, not by close inspection, but upon the most super- 
ficial view. The office to which he has been elected gives 
him an elevated point of view which he did not have before, 
but he cannot avail himself of his wider range, because if 
he is no sooner in office than he must justify himself or re- 
tire in disgrace, he will be likely to do the thing most pleas- 
ing to the prevailing fancy and which will adapt itself most 
easily to the momentary condition of the public mind. His 
political interests will lead him to do the plausible and easily 
advertised thing, and it may be the thing that will really in- 
jure the people. 

Whether such a government may be called popular or not, 
we should be likely always to have under it government of the 



42 SELECTED ARTICLES 

politician rather than government of the statesman. I have 
been criticised for using an expression similar to this, as if 
I had implied the converse ; that we now always have govern- 
ment by the statesman ; but such an inference can be drawn 
only by a careless or unscrupulous thinker. That we some- 
times have government by the statesman is undeniable ; but 
that our government is perfect, nobody would pretend. Ed- 
mund Burke asserted in effect the same thing at a time in 
his career when he was the most liberal, as he was always 
the most philosophical, of British statesmen. In appealing to 
his constituents for the right of a representative "to act upon 
a very enlarged view of things." and not to look merely to 
"the flash of the day," he declared : — 

"When the popular member is narrowed in his ideas, and 
rendered timid in his proceedings, the service of the Crown will 
be the sole nursery of statesmen." 

According to Burke's view the constant response to the 
popular mood would at least banish statesmen from the service 
of the people, if it did not limit it to the politicians. 

It is not difficult to turn back to the supreme crises in 
American history, when its greatest figures were heroically 
struggling for what they saw to be for the interests of their 
country, and, if the policy of the Recall had been in force, 
to see how the whole course of histor}- might have been 
changed, and how ambition and envy might have utilized a 
temporary unpopularity to terminate some splendid career. 

As an illustration, take Lincoln in the earlier days of his 
administration. The disastrous defeats that the Union arms 
had suffered had been relieved only by slight successes. Lin- 
coln scarcely had a friend even in his own Cabinet. Seward 
was willing to take him under guardianship and run the 
country for him ; Stanton had written of the 'imbecility' of 
the administration ; Chase was quite ready to be a candidate 
for the Presidenc}' himself ; the abolitionists were unsparing 
in their criticism ; the great organs of public opinion were hos- 
tile to him ; and there can be little doubt that, if a proceed- 
ing for Recall could have been had against him at the mo- 
ment when he was enveloped in the clouds of unpopularity, 
the career of the greatest of Americans would have been 
brought to a disgraceful ending, with results to civilization 
which it is melancholy to contemplate. 



THE RECALL 



43 



But if we, the people, are so perfect that we can do no 
wrong even though we are guilty of no investigation, and 
can with wisdom assume directly to enact and enforce our 
laws, what reason is there why there should be any consti- 
tutional restraint upon our action, and why should we be 
hampered with statutes or constitutions even of our own mak- 
ing? Why not have the present entirely free from restraints 
imposed by the past? Why not permit us in our omnipotent 
wisdom to decide each case upon its own merits, considering 
only the inherent principles of abstract justice, which in our 
collective capacity, according to our flatterers, we must of 
course thoroughly understand? 

The democracy of Athens at last attained to this altitude, 
where the sublimated 'composite citizen' stood forth unfet- 
tered and showed v^hat he could really do. In the latter 
days of that city the action of her people became so direct 
that in a single abhorrent decree, disregarding what was left 
of their Constitution, they ordered six of their generals, 
among them the son of Pericles, to be executed; because, 
although victorious over their enemies in the days when 
Athenian victories were few, the success had not been achieved 
without cost. 

Those who advocate the direct action of our great 
democracy might study with a good deal of profit the his- 
tory of the little state to which I have just been referring. 
No more brilliant people ever existed than the Athenian 
people. They had a genius for government. The com- 
mon man was able to 'think imperially.' Their great phil- 
osopher, Aristotle, could well speak of the Athenian as a 
political animal. They achieved a development in literature 
and art which probably has never since been reached. They 
could boast of orators and philosophers to which those of 
no other nation can be compared. We marvel when we 
consider the surviving proofs of their civilization. But 
when they did away with all restraints upon their direct 
action in the making and enforcement of laws, in admin- 
istering justice and in regulating foreign affairs, their great- 
ness was soon brought to an end, and they became the 
victims of the most odious tyranny to which any people 



44 ' SELECTED ARTICLES 

can be subjected, the tyranny that results from their own 
unrestrained and unbridled action. 

It is said that the history of those distant times can 
present no useful precedent for our own guidance; but in 
what respect is human nature different today? Whatever 
new stars our telescopes may have discovered, whatever 
new inventions may have been brought to light, and what- 
ever advances may have been made in scientific knowledge, 
the main springs of human action are substantially the 
same today that they were in the time of the Gfeeks. We 
should be rash indeed to assume that we shall succeed 
where they failed, and that we can disregard their experi- 
ence with impunity. 

American City. 4:275. June, 1911. 

Menace of the Recall. 

When the local W: C. T. U. and the liquor dealers 
join hands to secure the recall of a mayor it is pretty 
certain that one group or the other acted without carefully 
weighing the evidence. That is the great danger with the 
hair-trigger recall system that some of our cities are adopt- 
ing — it is apt to go off prematurely. It will take only one 
or two recall elections for inadequate reasons to make men 
who have reputations to lose very careful how they risk 
them by accepting elective city offices. It has been hard 
enough in the past to get such men to be candidates for civic 
office; and what we need in this country is so to readjust 
-our city governments as to attract rather than repel men 
of this type. It looks as though the commission system 
might accomplish this, but it will ultimately fail to do so 
if it is hampered with as easy a recall system as some 
cities have adopted. Even if a man successfully defends 
himself against a recall, the fact that a small disgruntled 
minority may make his term of office a continuous elec- 
tion performance will make the whole thing obnoxious to 
men who want to be administrators rather than politicians. 
Moreover this system will ultimately play into the hands of 
the politicians whose machines are always ready for serv- 



THE RECALL 45 

ice, while the man they are trying to retire may have back 
of him no organization that can be relied upon in such 
an emergency. If we must have the recall it should be 
made so difficult that the machinery could be set in mo- 
tion only b}'- a great popular uprising against an official 
who had wantonly abused his trust. And for such emer- 
gencies we already have adequate legal recourse through 
prosecution and removal for malfeasance in office. The 
fact is that ninety per cent of those who think they want 
the recall haven't given the matter any serious thought, 
while the other ten per cent belong to the type to whom 
easy change appeals more strongly than careful selection. 
It will be a great day for the United States when its peo- 
ple stop using their city governments as play-things, and 
treat them as seriously and with as great respect as do 
the nations of Europe. 

Proposed Reforms of the So-called Progressives. 

James A. Tawney. 

There is nothing more instructive in government, or 
nothing that proves more conclusively the fallacies of popu- 
lism than experience. Let me read from an editorial of 
May 5th 191 1, on the experience of the city of Tacoma, 
Washington, under their municipal recall: 

"Those who revel in the excitement of a political campaign 
can wish for nothing more satisfying than the recall system as 
it is being operated in the city of Tacoma. On the 5th of April, 
an election was held to determine whether the Mayor should be 
ousted before the expiration of his term. None of the candidates 
received a majority of the votes cast and another election was 
held ten days later. This time the Mayor was deprived of his 
seat. Two weeks later, on the second of May, the required 
petition having been filed, the four city commissioners were 
hauled up for the ordeal. The election was not decisive, and an- 
other election has been ordered for the IGth of May. If this 
contest does not give a majority, the citizens will have to try 
again. When the commissionership has been disposed of, the 
requisite number of citizens may take it into their heads to pe- 
tition for the recall of some other officers, if there are any others 
subject to the law. 

"With office holders liable fo be called into three or four 
campaigns during a single term, on the initiative of political ma- 
chines whom they offend, how long will Tacoma or any other city 
that adopts a similar system be able to induce men of the right 
caliber to run for office? How long will the better class of voters 
take an interest in this kind of business and go to the polls to 
give expression to the honest sentiment of the majorit}' when- 
ever a handful of citizens compels an election?" 



46 SELECTED ARTICLES 

L'^nder the municipal recall of Tacoma, therefore, there 
were four elections in less than two months. That ought 
to satisfy the most progressive. It also ought to afford 
all the political excitement necessary to satisfy all of the 
active politicians, and furnish almost permanent employ- 
ment at regular campaign rates of pay, for all the political 
healers, and insure a thriving business for the "gin mills," 
especially in the "down-town wards," where most of the 
"Birds of Passage" vote. 

But it is said by our junior senator, and other pro- 
gressives, that the recall would never be used to recall a 
;good officer or the good judge, but only to recall the bad 
ones. Who is to determine the good from the bad? The 
wild-eyed reformers whose uncontrolled zeal and unbal- 
anced judgment may find executive or legislative officers 
too bad, because too conservative to suit his notions of 
reform legislation and administration, or the courts too 
rigid or technical in their interpretation of the law to serve 
the elastic purposes of his proposed reforms; whereupon in 
his righteous wrath he proceeds to stir the souls of his 
faithful followers to issue a recall of the governor or other 
state officer; members of the legislature, or the judge, in 
the name of progressive reforms? 

The right to petition for the recall of an officer cannot 
be restricted to those alone who are supposed to be quali- 
fied to determine the good from the bad official. The exer- 
cise of this right cannot be limited to United States sena- 
tors, college professors, lawyers, and doctors, to farmers 
and railroad officials, nor to wholesale and retail mer- 
chants. If the right is granted, it must be granted to all 
alike, to be exercised by any or all alike. The recall, there- 
fore, if adopted, would instantly change the title of every 
elective officer from that of a fee simple title to that of a 
title at will. That is, where an elective officer who now 
has a fixed term established by the will of the majority, it 
is proposed to limit that term, dependent on the will of a 
small minority, who, for any reason or no reason, except 
perhaps political advantage or the gratification of personal 
malice, may petition for his recall. 

Under this system, it will be seen, therefore, that the 



THE RECALL 47 

misguided or malignant passions of an unimportant part of 
the community may accuse the most efficient elective offi- 
cer, and by the use of groundless charges or published mis- 
representations, create suspicion and distrust where for- 
merly public confidence and faith existed; thus depriving 
the state of the services of an efficient and an upright ex- 
ecutive officer or stainless judge. The recall is in the na- 
ture of a public indictment, returned, not upon evidence, but 
upon the will or the caprice of those who frame and sign 
it, charging no offense moral or legal; presented to a court 
that is bound by no rules except the rule of the majority; 
where the defendent is denied all presumptions in his favor 
and where he cannot answer any specific charge, for no 
specific charge is necessary to secure his conviction. 

Our junior senator would say that the recall merely af- 
fords the elective officers an opportunity to go before the 
people again at another election. 

"Yes," as it has been well said in respect to the recall 
of judges, "but how does he go? Does he go as a clean 
hearted, clear headed candidate, resting his claims upon his 
ability as a judge, or his honor as a man? Does he go 
with pride, gathered as the fruits of a useful life? Does 
he go as the embodiment of courage and patriotism? No, 
he goes with character dismantled by the attacks of those 
who would destroy him. He goes with his oath of office 
broken by the furtive whisperings of those who hold a 
grudge. He goes with his honor stained by the vulgar 
hand of the reckless accuser. He goes leaving his family 
at home in the shadow of disgrace. He goes impugned, 
impeached, outraged, and dishonored, not so much to re- 
gain the worthless office, but to restore his shattered fame 
and recover his foreclosed honor." 

We can all remember when, only a few years ago. 
through a leading newspaper of the state, a member of 
the Minnesota bar arraigned the judges of our Supreme 
Court upon reckless, groundless, and malicious charges. If 
he and the newspaper referred to would then have had the 
right to have invoked the recall, they doubtless would 
have secured the requisite number of signers, and recalled 
the entire Supreme Court, thereby subjecting its members 



48 SELECTED ARTICLES 

to the humiliation and disgrace of defending themselves be- 
fore the people against the baseless charges of their reck- 
less accusers. 

How do the advocates of the recall expect to improve, 
or even secure efficiency in the public service, under that 
policy? What elective office is there to which there is 
attached sufficient honor or salary, or both, to induce a 
man with the knowledge, ability, and character the position 
demands, to seek or even accept the office and thereby sub- 
ject himself to the humiliation of the recall upon the 
groundless petition of a small percentage of those who may 
have opposed him for the place? 

If it is the purpose of the advocates of the recall to 
lower the standard of efficiency in the public service, if 
they want men for public office not actuated by a high 
sense of public duty; men whose sole ambition is to be 
in the spot-light, or seek public office for the salary alone, 
they could not favor a law that would more completely 
accomplish their purpose than the recall. 

In private employment it would not be possible to se- 
cure the services of a man competent for the position of 
president, general manager, or other important positions in 
any business organization where the employer reserved the 
right to, at will, and without cause, recall such officer in 
three or six months. In the Federal civil service and in 
the civil service in many of the states, the right of recall 
at will has been abandoned. This right under the civil serv- 
ice law and regulation can be exercised only upon a specific 
complaint in writing, setting forth all the charges, which 
must be supported by competent evidence under oath at 
a hearing where the employee is given an opportunity to 
confront his accusers and to answer and fuU}^ explain all 
the charges upon which his recall is asked. Under existing 
law, both state and national, the same rule applies with 
respect to judges and all other officers; that is, the people, 
through their representative, possess the right of recall in 
the form of impeachment. If the delinquency complained of 
is not an impeachable offense, then the cause for which his re- 
m.oval is desired must have existed before the people elected 
him, and with proper attention to their own interests prior 



THE RECALL 49 

to the election, could have been ascertained. Even in such 
cases the people are not without a remedy. Such officer 
can be recalled when his term expires, which under our 
system is always short. 

But, it is said, the initiative, referendum, and recall are 
progressive principles of government, and that those who 
oppose their adoption are necessarily reactioneries. This is 
the first time in the political history of our country when 
it has been claimed that principles of government in prac- 
tical operation as part of the governmental system of many 
Nations more than a century ago and discarded because 
of their inefficiency in securing government by the rule of 
the majority, could be revived in the Twentieth Century 
and claimed to be progressive governmental principles. Yet, 
that is Ihe situation today. 

The initiative, referendum, and recall formed part of the 
governmental system of almost every republic that has ever 
existed. We, ourselves, lived under the recall prior to the 
adoption of our Federal Constitution. The first tentative 
draft of the Constitution of the United States presented to 
the Constitutional Convention in 1787 by Edmund Randolph 
of Virginia, contained a provision for the recall of mem- 
bers of Congress. When this provision was under discus- 
sion in that convention in connection with the election of 
members of Congress, Gerry of Massachusetts made a pow- 
erful argument in favor of a representative democracy as 
against a pure democracy. He did not fear the people, but 
he feared the pretended patriots. He said: 

"The evils we experience flow from the excess of democracy. 
The people do not want (lack) virtue, but are the dupes of pre- 
tended patriots. In Massachusetts it had been fully confirmed 
bv experience, that they (the people) are daily mislead into the 
m'ost baneful measures and opinions by the false reports circulated 
by designing- men, and which no one on the spot can refute." 

Randolph, in speaking on the same subject, observed: 
"That the general obiect was to provide a cure for the evils 
under which the United States labored; that in tracing these evils 
to their origin, every man had found it in the turbulence and 
follies of democracy; that some check, therefore, was to be sought 
for, against this tendency of our government." 

Jefferson also said: 

"Modern times have * * * discovered the only device by 
which the (equal) rights (of man) can be secured, to- wit; Gov- 
ernment by the people, acting not in person, but by representa- 
tives chosen by themselves." 



50 SELECTED ARTICLES 

On June 12th, 1787, on motion of Mr. Pinckney, the 
provision for the recall of members of congress was unani- 
mously stricken out of the proposed draft of the Federal 
Constitution, 

Li view of the fact that for ten years prior to that time 
the people of the United States had the recall under the 
Articles of Confederation, and in some of the States, and 
the experience of the people was known to the delegates 
in that constitutional convention, their unanimous action in 
rejecting it as one of the principles of our Federal and 
State government is very significant. It should cause our 
people to reflect seriously upon the question of now reviv- 
ing and adopting as part of our system of government, a 
principle thus unanimous!}' rejected by the founders of our 
Republic and rejected too in the light of ten years' experi- 
ence under its operation. 



United States. 62d Congress, 2d Session. Senate Doc. 

No. 238. 

Wh}' Should ^^'e Change Our Form of Government? 

Nicholas Murray Butler 

We are told that the representative republic fails really 
and readily to reflect public opinion; that these represen- 
tative institutions easily become the prey of the self-seeker, 
of the special interest, of the wirepuller, of the schemer, of 
the man who would use the public for his own personal 
advancement or enrichment; and that, therefore, they must 
be uprooted, overturned, and destroyed. We are told, in 
other words, that after not only 125 years of our own ex- 
perience, but after 500 years of the experience of the Anglo- 
Saxon peoples, these representative institutions have failed, 
and that in the name of progress we must pass on to a 
direct democracy. We are told that we should begin by 
so shackling representative institutions that they must 
respond at once, mechanicall}-, and with precision to the 
expressed wish or the expressed emotions of a majority of 
the voting population at any given instant, regardless of 



THE RECALL 51 

the fundamental constitutional guarantees of civil and polit- 
ical liberty. We are told that if we do we shall restore 
government to a purely democratic form, that we shall 
make it responsive to the public will and to public opinion, 
and that every legitimate public and private interest will 
thereby be promoted. Surely this is an ambitious program. 
Before we give our assent to it, however, suppose we 
examine for a moment the point of view and the conten- 
tions of those who are the mouthpieces of this revolution- 
ary movement. We are justified in asking in the first place 
whether the attempt to substitute a direct democracy for 
a representative republic is progressive or reactionary. It 
is the history of all evolutionary processes that for particu- 
lar purposes special organs are developed; for particular 
activities special instrumentalities are produced; and in de- 
veloping any truly forward movement we proceed from the 
simple to the complex. In organic evolution the process is 
one away from the gelatinous and formless mass of the 
lower organisms to the exceedingly complex structure of 
the higher mammals. Obviously, then, it is at an earlier 
stage of evolution when one organism or instrumentality 
performs all functions, when one organism or instrumen- 
tality carries on government in all its forms, as well as 
those economic activities which result in providing cloth- 
ing, shelter, and food. As we develop, however, and as 
we progress, we differentiate; we throw out feelers, as it 
were; we develop special organisms and instrumentalities, 
social as well as individual; and these divide among them- 
selves the economic, industrial, and the governmental func- 
tions of the social unit. In this way we get a division of 
labor; in this way we get a specialization of function. A 
really progressive movement, therefore, is a movement to- 
ward differentiation, toward complexity, toward specializa- 
tion of structure and function. The movement toward the 
perfecting of representative government is progressive; a 
movement away from representative government, a move- 
ment that would shackle and limit it, and that would ap- 
peal from representative institutions to direct democracy, 
is reactionary. 



52 SELECTED ARTICLES 

This is not a policy which makes for stable and con- 
sistent government. This is not a progressive policy. This 
is not a policy which will develop and strengthen the in- 
stitutions that we have inherited and that we are seeking 
to apply to new conditions. This is not a policy which will 
bring support to the fundamental guaranties of civil and 
political liberty upon which our National Government rests. 

But it may be urged, surely those fundamental guaranties 
are not questioned or doubted. I beg to assure you that 
every single one of them is questioned and doubted in 
this country, and questioned and doubted by no incon- 
siderable bodj^ of opinion, some of it not lacking in intelli- 
gence, very energetically represented in different parts of 
the United States. We may close our eyes to all this if we 
like. We may, with our consummate American hopefulness 
and optimism, say that it will turn out all right; perhaps 
it will; but the fact remains that there are some of us 
who believe that the fundamental guaranties which under- 
lie our whole National Government and our national life 
can not be attacked, can not be denied, can not be made 
light of, without serious danger to our entire political fabric. 

Should not the majorit}^ rule? If the majority wish to 
sweep away aJl the fundamental guaranties, should they not 
be permitted to do so? Is that not one of the risks that 
democratic government must run? Those who believe that 
we learn nothing in this world from human experience may, 
if they choose, answer those questions in the affirmative. 
Those who believe that nothing, in this world is fixed or 
definite or a matter of principle, ma}' answer those ques- 
tions in the affirmative; but those who believe that we do 
move forward through the centuries by building upon and 
using the experience of those who have gone before; those 
who believe that out of the thousand or two thousand years 
of political life and activity of the western world there have 
come some principles which are certain and which abide, and 
some political guaranties that are vital to human welfare, 
they will answer those questions no; a thousand times no! 
Those who believe that we must build our institutions upon 
foundations that are not subject to continual revision and 



THE RECALL 53 

reconstruction will answer no; a thousand times no' We 

point to the fundamental guaranties of the British and 

• Amencan Constitutions, and say that those are beyond the 

egitimate reach of any majority because they are estab- 

Iished m the fundamental laws of human nature upon which 

all government and civilization and progress rest. Sweep 

them, away if you will; a majority may have that power, but 

with the power does not go the right. If they are swept 

away all government and all liberty go with them, and 

anarchy, m which might alone makes right and power 

alone gives place, will rise upon their ruins. 

There is nothing new about all this. Aristotle pointed 
out that democracy has many points of resemblance with 
tyranny. It was he who first told us how democracy as well 
as a tyranny may become a despotism. It was he who first 
pointed out to us the likeness that there is between the 
demagogue in a democracy and the court favorite in a 
tyranny. If democracy is not to become a tyranny it must 
recognize and build upon those constitutional limitations 
and guaranties that are so precious to the individual citi- 
zen and that protect him in his life, his liberty, and his 
property. It is not in the power of any majority to sweep 
these awary without sweeping away with them the whole 
fabric of the State in violent and destructive revolution 
Ihe other day, m turning over the pages of John C. Calhoun 
I came upon a most extraordinary sentence which bears 
upon this very point. Almost a century ago Calhoun whote 
these words: 

■ "The government of the uncontrolled numerical major- 
ity is but the absolute and despotic form of popular gov- 
ernment, uist as the uncontrolled will of one man is mon- 
archy." 

Control thea-e must always be if there is to be liberty. 
That control is law, built in turn upon those limitations and 
guaranties which are our Constitution. It is just as easy 
for a majority to become a despot as for a monarch to 
become a tyrant; even a tyrant may be benevolent; even 
a democratic despotism may be malevolent. 



54 SELECTED ARTICLES 

Minneapolis Journal. October 12, 191 1. 

Recall Condemned. Archbishop Ireland. 

But the worst is the recall. Stability and independence 
in office for a fixed period of time, are essential conditions 
of prudent planning and efficient execution. Liable to re- 
call, the official is continuously watchful of public opinion 
which it is to his interest to placate and hold in check. 
No self-respecting citizen would accept office under such 
menacing conditions. 

And, then, we must remember the peril to the public 
peace of the commonwealth. Fifteen or even 10 per cent 
of the number of voters at a preceding election — gathered in 
all probability from the defeated party, may force the re- 
call and bring on the turmoil of a new electoral campaign. 

But what if the official has proved himself unworthy of 
the trust reposed in him, incapable of serving the public in- 
terests? Our laws and constitutions provide the remedy: 
let him be impeached and judged by well-established and 
impartial courts. 

Here is the remedy, without the evils of the recall. Un- 
der the recall, a fraction numerically small, giving no guar- 
antee against prejudice or personal animosities, decides and 
punishes. The recall, as proposed by the present agitators, 
as, indeed, practised in a few communities, is fatal to pub- 
lic peace and to that security in office without which the 
public welfare cannot be subserved. 



RECALL OF JUDGES 



AFFIRMATIVE DISCUSSION 

Illinois State Bar Association. Proceedings, 1912: 174-89. 

Recall of Judges — A Judicial Affirmative, 

R. M. Wanamaker. 

Article 2, section 4, of the Federal Constitution reads: 
"The president, vice-president and all civil officers of the 
United States shall be removed from office on impeachment 
for a conviction of treason, bribery or other high crimes 
and misdemeanors." 

The fathers knew full well how public officers of the 
past,, both in America and in the mother lands, had abused 
their governmental powers, had been guilty of misconduct 
in office, had been unfaithful and derelict in their public 
trusts. They therefore wrote into the organic law the 
right to remove them all, and delegated the power to re- 
move to the federal congress. 

Remember another thing! They did not say "the legis- 
lative officers'' shall be removed, they did not say "execu- 
tive officers" shall be removed, they did not say "all civil 
officers excepting the judges," but they made it as broad 
and sweeping as official life. 

They realized that the power to select good officers 
without the power to remove bad officers would be a fatal 
defect in any scheme of government. 

But some one says, oh, that was impeachment! Well, 
now, do not let us quibble or juggle about forms and 
names. Let us deal with facts and substance. 

I do not know that it- makes any difiference to the officer 
who is removed what 3'ou may call the procedure so long 



56 SELECTED ARTICLES 

as it results in his deserved removal; nor do I think it 
makes any difference to the public what j^ou may denom- 
inate the procedure, whether impeachment, removal or 
recall, or what not, so long as it is practical and effec- 
tive in bringing about removal in proper cases. 

What I am insisting upon is that we recognize and 
realize the fact that the fathers attached no quality of 
infallibility to any public officer, not even judges, but wise- 
ly provided for the removal of all unfaithfuul officers. 

The fathers of the Eederal Constitution not only made 
provision for the removal of all public officers, but the 
fathers of the state constitutions likewise provided for the 
removal of public officers. 

If the fathers were right in recognizing the transcendent 
importance of the right to remove in proper cases, and 
the legislative departments, upon whom that power has 
been conferred, have absolutely failed to act in the exer- 
cise of that power for half a century or more, is not that in 
itself sufficient to make the people pause and consider as 
to whether or not they should not recall that delegated 
power, and return to their own hands the right and power 
to recall public officers? 

Can you, in your lifetime, recall a single instance of the 
impeachment of a judge by the legislature of Illinois? Can 
I, in my lifetime, remember a single instance of the im- 
peachment of a judge by the Ohio legislature? Or has 
our poor mortal clay, with all its infirmities and weakness, 
become infallible and divine under the judicial ermine? 

It would be impossible to itemize or classify all of the 
grievances against courts that have been mentioned and 
discussed. The most serious and important ones could well 
be embraced in some one of the following classes: 

First. Too much delay. . 

Second. Too much expense. 

Third. Too much uncertainty in the law. 

Fourth. Too much idolatry of ancient precedent, the 
more ancient the more sacred. If the ancient condition 
has long since passed the precedent should go with it. 

Fifth. Too many trials and appeals to the disadvantage 



RECALL OF JUDGES 57 

of the poor and the advantage of the rich. Litigation is an 
expensive luxury. 

Sixth. Usurpation by courts of legislative right and 
powder. No English king nor court though monarchical 
dares to hold an act of the English parliament unconstitu- 
tional. Our presidents, governors and courts, with utter 
abandon, are vetoing and nullifying intelligent, conscien- 
tious public opinion, crystalized in their regular and or- 
derly forms of law. 

Seventh. Too much regard for rule, too little for rea- 
son. Too much jugglery of the technical pleader, too little 
justice for the client. 

Who is responsible for this? The judge, the court, 
chiefly the courts of last resort, whose decisions and judg- 
ments must be followed by the inferior courts else the 
judgments below will be forthwith reversed and another 
trial again had. 

Now, what do the people propose to do? Simply pro- 
pose to change the jury for removal from the legislature 
to the people themselves. Why. that is where we get all 
our juries from anyhow, from the plain people. They pro- 
pose to say to the legislature — you have not been faithful 
in the exercise of the right to remove judges, you have 
absolutely ignored your duty in that respect, you. have ab- 
solutely failed to use it or try to use it. We now propose 
to try the experiment of using it ourselves. 

Have we ever changed juries before in the determina- 
tion of important federal affairs? Let us examine the his- 
tory of the selection of president. The fathers said in the 
constitution, if you were a citizen thirty-five years of age, 
you were qualified to be elected president, but you were 
not qualified to vote directly for president. That should 
be done by special jury, called the electoral college. 

Though the written law is the same as when the college 
was first organized, the unwritten law has placed in the 
hands of the people the right to choose their president 
and that choice has been uniformly expressed and ratified 
by the members of the college even in the hot Hayes- 
Tilden contest of 1876. 

This withdrawal of delegated power as to the selection 



5'8 SELECTED ARTICLES 

of president is just as noticeable in the election of United 
States senators. For years the people of the republic have 
been demanding the right to vote directly for the United 
States senators. 

In many of the states, by the enactment of primary laws 
for the choice of L'nited States senators by direct vote of 
the people, the legislatures of many of the states to-day, 
in the matter of the choice of senators, exercise the same 
function and no more, as the electoral college does in the 
choice of president. 

Through it all we see a gradual but general withdrawal 
of delegated power from the electoral college, the congres- 
sional caucus, the political convention, in nominating and 
electing president, withdrawal of delegated power from the 
state legislatures in the nomination and election of United 
States senators, and, ere long, at least in the state gov- 
ernments, provision will be made for the withdrawal of the 
delegated power from the state legislature for the removal 
of judges and other public officers, and the same to be 
placed and exercised by the direct vote of the people them- 
selves. 

To-day there is no serious objection to the people exer- 
cising the right of removal as to legislative officers or ex- 
ecutive officers for misconduct in office, but in many quar- 
ters, particularly the bench and the bar, there is a holy hos- 
tile horror against the exercise of the right to remove 
judges. 

For the correction of the aforesaid grievances and com- 
plaints against judges through recall by popular vote under 
proper safeguards, I submit the following for your calm 
and careful consideration: 

First. Every reasonable argument applicable to the re- 
moval of legislative and executive officers by popular vote 
applies equally to judicial officers. If not, what does not? 

Second. As to the judiciar}- there is absolutely no check 
or balance from either of the other branches of the gov- 
ernment. Legislative branches are a check on each other. 
The governor may check the legislature by veto. Courts 
may check the legislature and declare the law unconstitu- 
tional, or limit its application. The executive may be 



RECALL OF JUDGES 59 

checked and have his power cut off or limited by legislative 
act or judicial injunction. 

Again, the legislative and executive branches are under 
the constant publicity of the press. Comparatively little is 
known about the judicial branch. Irresponsible, unchecked 
power is within a step from actual tyranny or a sinister 
subserviency to special interest. 

Third. Courts are now exercising jurisdiction in this 
country exercised in no other civilized country in the 
world. I refer particularly to judgments declaring legisla- 
tive acts contrary to state and federal constitutions and 
against sound public policy. 

No English court for more than two hundred years 
has held an act of parliament unconstitutional. Such juris- 
diction had not been exercised by any English court for 
seventy-five years prior to the formation of our Federal 
Constitution. The fathers never intended to confer such an 
extraordinary jurisdiction, then unknown, else they would 
have provided for it in the constitution. It is an usurpa- 
tion of judicial power. 

The exercise of this unwarranted and usurped govern- 
mental power against the public interest, against the public 
health, safety and life, has done more than any other single 
thing to arouse the present popular hostile feeling toward 
our courts of last resort. 

Fourth. Our profession, bench and bar, is making too 
much of a fetish of the precedents of the stone age. We 
are always marching backward to find out what some lord 
or baron said in feudalistic days. The surgeon wants the 
latest, the newest, successful remedy. The manufacturer is 
looking and paying well for the latest, the newest, success- 
ful operation; the physician, the most improved effective 
medical remedy. The manufacturer is looking and paying 
well for the latest machine, saving cost of production, in- 
creasing quantity or quality of production, or both. In 
short, every department of life and activity, professional, 
productive and otherwise, except the bench and bar, are 
improving and economizing their service by the adoption 
of substantial practical reforms. Government alone drags 
behind, wasting time, money and rendering inefficient serv- 
ice; and in the government procession, it is hardly com- 



6o SELECTED ARTICLES 

plimentary to say, but no doubt the fact, that the judiciary 
is bringing up the rear of that belated procession. 

But it is urged the judge should be independent. The 
judiciary should be independent in its legitimate field as 
legislatures and executives should be in their respective 
fields. 

No trespassing is charged against executive, none is 
charged against the legislative, but the judicial branch is 
generally chargeable and justly so w^ith trespassing on legis- 
lative right, executive power and the general welfare. 

From 1902 until 1908 the respective supreme courts of 
the different states of this Union declared not less than 
468 different statutes unconstitutional, and these were main- 
ly statutes in the interest of social and industrial justice, public 
health, safety and Hfe. 

The judicial branch is not content to-day with merely 
interpreting and applying law as it is in every other civilized 
country in the world, but it is making law, amending law 
and nullifying law, under the mask of interpretation. So 
that the judiciary has become in fact and in law the su- 
preme power over and above the legislature, over and above 
the executives, and even over and above the people. 

When the provision of the Federal Constitution provid- 
ing for the removal of public officers by impeachment was 
under debate, there was. in some quarters, a movement to 
except the president from such removal. I want to call 
attention to the suggestion made by Colonel Mason in that 
constitutional convention, when he said — "No point is of 
more importance than that the right of impeachment shall 
be continued. Shall any man be above justice? Above all, 
shall that man be above it who can commit the most ex- 
tensive injustice?" I want to supplement this by what Mr. 
Gerry said. He urged the necessity of impeachment as 
applicable to the president in the following language: "A 
good magistrate will not fear it. A bad one ought to be 
kept in fear of it." He said he hoped the maxim wpuld 
never be adopted here that the magistrate could do no 
wrong. The same argument is being used to-day to ex- 
cept the judiciary from recall by popular vote. 

Isn't it a little peculiar that men who admit the people 
are qualified to nominate their own judges, who are quali- 



RECALL OF JUDGES 6i 

fied to elect their own judges, most of them largely un- 
known, many of them wholly untried, that these same people 
should not be qualified after the judge has had a fair and 
reasonable opportunity to make good, to pass in judgment 
upon him and to wisel}^ remove him for good and suffi- 
cient cause when he fails to efficiently and justly adminis- 
ter his trust. When we nominate him we pass in judgment 
upon his qualifications, when we elect him we pass in 
judgment upon his qualifications, and that is all that we do 
when we vote to remove him. It is almighty strange that 
the sovereign citizen has his lucid intervals only when he 
nominates and when he elects. Thereafter he becomes the 
part of the mob when he criticises and censures the court, 
or when he asks by petition to vote to remove the judge. 

The old theory of elective officers as first provided for 
in the various state constitutions, especially in staid old 
New England, was for short official terms. Why? So that 
if the officer proved incapable, inefficient, corrupt or unrep- 
resentative of the best thought and life of the people that 
when he came up for re-election he could be defeated. Fre- 
quent elections are but frequent opportunities to recall the 
judge. Judge Redfield, one of the most eminent jurists 
that ever sat on a bench in the state of Vermont or any 
other state, was elected and reelected annually for twenty- 
five consecutive times. It did not inpair his usefulness, his 
inefficiency; his proper independence or his distinguished 
service upon the supreme court of the state of Vermont. 

It w^ould seem eminently fair that the men who select 
the judge; the men whom the judge is to serve, the men 
who pay the judge, should be the men to remove him for 
misconduct in office. 

But you say the people will make mistakes. As the legis- 
latures of the several states may be justly faulted for the 
nonuse of the power so the people will be faulted for abuses 
of the power. Well, the proof of the pudding is in the 
eating. The proof of the wisdom of any principle is in its 
practical application. 

Oregon is the hotbed of American progressive thought 
and legislation. They have had a provision in their con- 
stitution authorizing the recall of judges for good cause 
for the past four years. During that time how many judges 



62 SELECTED ARTICLES 

have been recalled? Not a one. How many elections have 
been held to recall a judge? Not a one. A year ago an 
attempt was made to recall the trial judge, Judge Coke I 
believe, for laying down the law of murder too favorably 
for the defendant. The prosecutioners were greatly 
disappointed and very indignant. They started a petition 
for the recall of the judge, but it met with such general 
disfavor among the people that it was soon given up as a 
hopeless case. Another tribute to the good sense, the sound 
judgment and fair play of the American people. 

There is no public office requiring any higher order of 
talent, tact and temperament than that of the trial judge. 
You cannot tell who will make the most serviceable and 
efficient judge, whether he be the office lawyer, the author 
lawyer, the trial lawyer, or a combination of each. There 
is absolutely no way of forecasting his efficiency except 
by giving him an actual trial on the bench. When he takes 
three days to try a case that should occupy but one, the 
public are losing one hundred dollars per day, the parties to 
the case probably as much more, and the cases to follow are 
being delayed and delayed because of the slowness and the 
dilatoriness of the judge in the administration of justice. 
If the newspapers give the proper publicity to his work 
on the bench, as above indicated, the cobblers and potterers 
will become known and can be recalled from the public 
service as they are now recalled, removed or discharged 
from private service. The recall election is the only way 
to reach such inefficient judges who permit the senseless, 
ridiculous pettifogging in the trial of cases. It is one of the 
greatest hindrances and delays in the administration of 
justice. You cannot impeach a man for general inefficiency, 
but it is mighty important to the public to have the right 
to recall him. 

Atlantic Monthly. 107:452-64. April, 191 1. 

Nullifying the Law by Judicial Interpretation. Harrison 

W. Smalley. 

Aside from the conduct of bad or ignorant judges, the 
practice of judicial interpretation has developed very serious 



RECALL OF JUDGES 63 

evils, which are now beginning to make themselves felt. 
Four of these evils I wish to discuss at some length. 

First. A fairly complete interpretation of an important stat- 
ute can be obtained only after prolonged delay, and by the in- 
curring of large expense. 

Under our present system statutory construction is an 
incident of litigation. A question of interpretation can re- 
ceive no official consideration until it arises in connection 
with a lawsuit, and no answer can be regarded as authorita- 
tive until the case is settled, not by the trial court, but by 
the highest court which is competent to pass upon it. Thus 
the slow-moving 'wheels of justice' delay the answer for 
a year or more, — usually more, — and the trials, appeals, and 
other supplementary proceedings are likely to postpone it 
for at least another year. And as in each case only the 
particular questions of construction necessarily involved in 
the controversy can properly be settled by the court, it fre- 
quently happens that a series of cases must be carried to 
final judgment before all the dubious points in one act, or 
even in one section of an act, can be fully cleared up. The 
expense of this litigation must be borne by some one, and 
is not an item to be ignored; but the more important phase 
of the matter is the delay. Many years must pass in which 
the people are in doubt as to the meaning of the statute; 
and if. as is often the case, it is an act which affects indus- 
trial interests, the prolonged uncertainty is a depressing 
factor in the business situation. 

A capital illustration may be found in the Sherman Anti- 
Trust law. Passed by Congress in 1890, its meaning has not 
yet, after twenty years, been fully elucidated by the Supreme 
Court, although many cases have been tried under it. Some 
people are so discouraged by the failure of protracted liti- 
gation adequately to illuminate the act. that they are inclined 
to regard it as hopelessly obscure. President Taft, on the 
other hand, seems confident that the significance of the law 
has in the main been explained by judicial decisions. But, 
after all is said, the fact remains that under our present sys- 
tem twenty years have not sufllced for a full interpretation 
of a statute which was so important that a complete under- 
standing of it should have been gained by the people of the 
country with the least possible delay. Any number of other 



64 SELECTED ARTICLES 

illustrations may be given, and some will be found in cases 
mentioned later in other connections. 

Second. The existing practice compels our judges to as- 
sume an attitude on current economic and political questions. 

As has been said, law-interpretation is law-making, and to 
the extent that judges are engaged in the exposition of stat- 
utes they are making laws for the people. They can no 
longer, therefore, maintain the position of arbiters, impar- 
tially applying rules of the law to the controversies of liti- 
gants. They have become legislators, engaged in the deter- 
mination of governmental policy in matters of political and 
economic character. 

A law is passed by the legislature for the regulation 
of corporations; but whether the regulation shall be mild or 
severe rests within, wide limits, with the judges who inter- 
pret it. By one construction, they can nullify the law ; by 
another, they can hold the corporations to a very strict ac- 
count. And so it is necessary for judges to take an attitude, 
to reveal their personal convictions with reference to those 
'problems of the day' which are the subject of so much im- 
portant legislation. Almost inevitably their decisions dis- 
close whether they are more in sympathy with the trusts, 
the financial 'interest' and those magnates popularly known 
as 'malefactors of great wealth,' who so loudly proclaim 
their 'vested interests' and 'property rights,' or with the 
great body of the people who urge in reply their claims of 
'popular rights' and the 'public welfare.' 

Similarly, judicial interpretation may well serve to indi- 
cate whether the judges sympathize with labor or with 
capital; whether they are in accord with movements for the 
alleviation of the working conditions of labor; and, in gen- 
eral, whether they favor those modern measures which aim 
at the elevation of the moral plane of competition and of 
business, and which do not refuse to make some sacrifice of 
the traditional rights of liberty, contract and property, 
when that is necessary in order to attain the end desired. 
Their decisions disclose these things because it is practically 
impossible for them to conceal their point of view in constru- 
ing statutes dealing with such subjects. 



RECALL OF JUDGES 65 

But this necessity of descending from their judicial aloof- 
ness into the turmoil of present-day industrial and political 
struggles, is not a, good thing from any point of view. It 
detracts from the dignity of the judges, and diminishes the 
respect which has so long been felt for our courts. Worst 
of all from their point of view, it exposes the judges to a 
new species of criticism. — a criticism not of their learning, 
nor of their judicial fairness, nor of their legal acumen, but 
of their economic policy. The wisdom and righteousness of 
their ideas in regard to great matters of public policy are 
being called in question, and from the effects of such criti- 
cism they should surely be protected, if any means of pro- 
tection can be found. Moreover, as will presently appear, 
the entrance of the judges into the arena of industrial con- 
flict is not helpful to the people in their efforts to solve the 
problems which perplex theip. 

Third. J he existing practice removes carelessness in legis- 
lation. 

It is the duty of a legislative body to give to the people 
laws which are as precise and clear as possible; but this 
is a duty which is often neglected, for legislators know that 
any confusion, ambiguity, or uncertainty in a statute w'ill 
in the long run be cleared up by the courts, and this knowl- 
edge is one of the causes which are producing careless draft- 
ing of bills. Indeed it sometimes happens that legislators 
deliberately frame an act so that its meaning will not be 
clear, in order to throw on the courts the task of determin- 
ing the question of policy involved, thereby avoiding the ne- 
cessity of deciding it themselves. 

An excellent illustration of this line of conduct was fur- 
nished by Congress in the passage of the Hepburn bill in 
1906. Since that measure conferred on the Interstate Com- 
merce Commission, power to fix railroad rates on complaint, 
it was of the utmost importance to define precisely the limits 
of that power. Should the Commission be allowed to regu- 
late rates freely except as limited by constitutional restraints, 
or should more narrow restrictions be placed upon it? Un- 
able to agree on this question, the differing factions in Con- 
gress at last concurred in a phrasing of the law which left 



66 SELECTED ARTICLES 

the matter unsettled. The}' adopted provisions which were 
capable of different interpretations, thereby compelling the 
courts to solve a legislative problem, to determine the na- 
tion's policy as to this important phase of the regulation of 
railway corporations. After what has been said as to the 
stately progress of judicial construction, need it be added 
that the problem is still unsolved? 

Fourth. Frequently the legislative intent fails of recog- 
uition, and a statute is made to accomplish more or less than 
its authors purposed. 

This is by all means the most serious result of the exist- 
ing system of judicial interpretation. An act of legislation, 
however much demanded and needed by the public, may 
totally fail to accomplish its end, or at least may become 
such a feeble instrument as to be altogether disappointing, 
while on the other hand, it may. be applied to situations not 
contemplated at the time of its enactment. Such broadening 
of the scope of a statute is not common, but examples may 
be found, one of which is furnished by the Sherman Anti- 
trust Law. That statute was designed to meet the evils of 
the industrial trusts, but seven years after its passage the 
Supreme Court ruled that it should also be applied to rail- 
way agreements and combinations. 

In a large majority of cases, however, judicial ^construc- 
tion produces an opposite result, and operates to restrict 
the application of statutes. In fact, the tendency in this 
direction is so strong that in many cases provisions of law 
are actually nullified by judicial interpretation. — provisions, 
that is, which the courts uphold as perfectly valid and consti- 
tutional, but upon which they place so peculiar a constuc- 
tion as to deprive them of all their vitality. Thus many a 
law admirably designed for the alleviation of some distressing 
social or economic ill gives little, if any, of the relief desired. 

Before proceeding to enforce the seriousness of this 
evil by reference to important laws which have been weakened 
or nullified by the courts, we shall do well to pause and ask 
why our judges exhibit so marked a tendency to interpret 
statutes in this manner. Two potent reasons may be sug- 
gested. 



RECALL OF JUDGES ^1 

While contemplating statutes, judges are thinking of legal 
technical ties, and not of the social conditions which called 
forth the law and which it was intended to ameliorate. 
Often judges have but an imperfect understanding of such 
conditions; but however complete or limited their knowledge 
may be. when called upon to give a judicial ruling on the 
statute, the technicalities of the law control their thoughts. 
This is a most natural result of the character of the law in 
which they have been trained. 

A second reason why judicial interpretation so often 
proves fatal to the effectiveness of an act is to be found in 
the fact that, in principle and spirit, the system of law which 
prevails in this country, and which we inherited from Eng- 
land, is hostile to such legislation. For the regulation of 
industry invariably means the limitation of personal and 
property rights in commercial enterprise ; while it is the 
traditional policy of the law to preserve such rights inviolate. 
The great body of the people clearly recognize that during 
the last century, and especially during the last generation, 
serious social and industrial evils have come into existence, 
to the injury of the general public; and they also plainly 
see that, to mitigate or 'destroy these evils, some distinct 
limitations must be placed on private rights of contract and 
property. But our system of law has not followed the 
course of industrial evolution, or at best has followed it with 
slow and reluctant step. In the main our system of law is 
still lingering in the eighteenth century. Indeed, it has been 
so little impressed by the evils with which the public are 
struggling that it has modified little, if at all, its ancient 
declaration in favor of the protection of private rights against 
interference. 

If such is still the avowed purpose of the law, and the de- 
clared duty of the courts, it is but natural that judges who 
are trained in the law and filled with its spirit, would look 
askance at modern industrial legislation, and should think 
of it, not as a body of rules which should be applied with 
a firm hand, but as a body of rules all out of harmony with 
the traditions and ideals of the law, — designed, in fact, to 
invade those 'sacred rights' which, in the eyes of the law, 



68 SELECTED ARTICLES 

it is the very purpose of government to preserve. Looking" 
at industrial legislation in this way, it is only natural that 
judges in their interpretations should tend both consciously 
and unconsciously to moderate the rigor of the statutes. 
It wonld hardly be humanly possible for them to give any 
more force than they felt absolutely obliged to give to statutes 
which, from their eighteenth century point of view, are funda- 
mentally wrong. In brief, the legal and judicial bias against 
legislation of this type must be and is manifested in statutory 
interpretation. 

Recall of Judges. 
T. J. Walsh. 

It is nowhere proposed to make the principle of the 
recall specially applicable to judges, but in the general 
assault upon the system it is insisted that, at least, an ex- 
ception should be made in the case of such officers and it 
is in connection with them particularly that it is urged 
that it offends against the requirement of the Constitution 
that the government of each state shall be republican in 
form. 

In this connection profuse reference is made to com- 
ments of various statesmen of revolutionary times, warn- 
ing or denunciatory in character, on the evils and perils of 
unrestrained democracy and on the necessity of an inde- 
pendent judiciary. It is ventured that the clause of the 
•Constitution appealed to was inserted as a safeguard against 
the dangers that inhere in the democrac3^ one of which is 
the destruction of the independence of the judiciary, a re- 
sult which, it is assumed, will ensue when the judges are 
subject to be recalled by the people who elect them. Until 
this ingenious theory was advanced it was quite generally, 
it might be said universally, believed that the word "repub- 
lican," as employed in the clause in question, was used by 
way of contrast to "monarchical." 

It was dread of pretensions to kinship which might b^ 
set up in some of the states that inspired the provision 
to which reference has been made, if the testimony of his- 



RECALL OF JUDGES 6g 

tory is of any consequence whatever. It is companion to 
that part of the last clause of the ninth section of the first 
article prohibiting Congress from granting any title of no- 
bility, and the corresponding provision of the tenth sec- 
tion, forbidding the states making any like grant. Re- 
ferring to those provisions conjointly, Coolly says: 

"The purpose of these is to protect a union founded on 
republican principles and composed entirely of republican 
members against aristocratic and monarchial innovations.'^ 
(Cooley on Const. Lim., 28, 6th Ed.) 

Whatever persuasiveness there might be in the line 
of alleged reasoning by which the conclusion is reached 
that the systems adverted to affect a state government with 
a fatal anti-republican character, must appertain to the in- 
itiative and referendum, not to the recall. The former 
secures what has been appropriately called direct legisla- 
tion by the enactment of a law in the one case and its 
nullification in the other. Therein lies the vice, as it is 
claimed, of the system, the essential characteristic of a 
government republican in form being, it is said, that its 
laws are made by delegates or representatives of the peo- 
ple, not by the people themselves, except as they are so 
represented. The recall, on the contrary, has no reference 
to direct legislation. It has its field only in the case of 
representatives chosen to make the laws, to construe them 
or to administer them. It can operate only in a government 
which is republican in form. 

However, then, the system of direct legislation may en- 
croach upon the essential character of a republican form 
of government, the recall is not amenable at all to the 
strictures of its critics in that direction. It is sufficient to 
say, in passing, that the Supreme Court of Oregon, in an 
opinion written by Judge Bean, since appointed United 
States district judge, in which all of his associates con- 
curred, has held that the argument is unsound and untena- 
ble even as addressed to the initiative and referendum. 
(Kidderly v. City of Portland, 74 Pac.,. 710.) It would be 
surprising if any court did reach any other conclusion, in 
view of the prevalence of the town-meeting system through- 
out New England at the time of the adoption of the Con- 



70 SELECTED ARTICLES 

stitution. a feature of the state government which, still 
persisting, has been extolled as "the wisest invention ever 
devised by the work of man for the perfect exercise of self- 
government and for its preservation." 

It apparently did not occur to the fathers of the Con- 
stitution that those states in which the people were per- 
mitted to legislate directly in respect to certain afifairs, where 
the method of a pure democracy constituted a part of their 
system of government, were, by reason of that fact, in- 
eligible to membership in the Union. They were all admit- 
ted, yea, invited to come in, with such local governments as 
prevailed among them. By the very act of admitting their 
Representatives in Congress that body determined that 
such existing governments were republican in form; and 
so with respect to the systems devised by the people of 
the new states as they were severally taken into the Union. 

So the United States Supreme Court said in Minor v. 
Happersett (21 Wall., 162), using the following language: 

"No particular governinent is designated as republican, neither 
is the exact form to be guaranteed in any manner especially 
designated. The guaranty necessarily implies a duty on the part 
of the states themselves to provide such government. All the 
states had governments when the Constitution was adopted. In 
all the people participated to some extent through their repre- 
sentatives elected in the manner especially provided. These gov- 
ernments the Constitution did not change. They were accepted 
precisely as they were, and it is therefore to be presumed that 
they were such as it was the duty of the states to provide. Thus 
we have unmistakable evidence of what was republican in form 
within the meaning of that term as employed in the Constitution." 

Let this test be applied to the recall as it affects the 
judicial office. x\t the time the Constitution was adopted, 
in no instance was either the governor or any of the 
judges elected by the people. The latter were uniformly 
either appointed by the governor or elected by the legis- 
lature. In New Hampshire, Massachusetts, Connecticut, 
Rhode Island, Pennsylvania, and South Carolina they could 
be removed by address of that body, a majority vote suf- 
ficing in Rhode Island and Pennsylvania, Bear in mind, 
by address — not by impeachment. While impeachment 
proceedings contemplate definite charges and a trial, nei- 
ther the one nor the other is requisite in the case of re- 
moval by address. A simple vote ends the official career 
of the individual against whom it is successfully leveled. 



RECALL OF JUDGES 71 

This method of terminating the official life of the incum- 
bent of a judicial office was borrowed from the English 
system, under which, since the revolution of 1688, judges 
have been and still are removable by a majority vote of 
each house of Parliament. 

So that to maintain that a constitution embodying the 
recall applicable to the judicial office is antirepublican we 
are driven to the conclusion that a state under whose fun- 
damental law judges are elected by a majority vote of the 
legislature and are removable by a majority vote of the 
legislature is republican in form, while that state whose 
judges are elected by the vote of the people and who are 
removable by a majority vote of the people is not. 

It is exceedingly difficult to understand why it is good 
business policy in every great corporation to retain, when 
it can, the right to dismiss its secretary, auditor, or treas- 
urer at will, but is impolitic for the people to retain the 
right to dismiss a county clerk or a state treasurer when 
they see fit to do so.^ A business man or corporation is 
sometimes forced to enter into a longtime contract in order 
to secure or retain the services of a valued servant, but 
it is avoided, for obvious reasons, whenever unnecessary. 
Usually such contracts bind boj:h parties. The public serv- 
ant, performing similar services, has his employer bound, 
but he may escape the obligations of his service, at any 
time, by resigning. As to the legislative office, it affords 
such a check upon a career of corruption, regrettably not 
infrequent, particularly in municipal councils, as ought to 
commend it generally as to such. In this respect to such 
offices, a course of conduct extending over a considerable 
period of time may bring conviction of guilt to all intelli- 
gent observers that can not be resisted, and yet evidence 
sufficient to expel be entirely unavailable. 

And why should a member who has violated the pledges 
under which he was elected, repudiate the measures to 
secure the passage of which he was delegated, and outrages 
by his votes the convictions of his constituents on great 
public questions, continue, against their will, as their alleged 
representative? In a neighboring state a member was 
lately elected to the higher branch of the legislature for 



^2. SELECTED ARTICLES 

a term of four years at an election at which the choice of a 
United States Senator was the paramount, not to say ab- 
sorbing, question before the voters. He was returned 
largely because of his professions of allegiance to the pop- 
ular candidate for that office, to whose cause he publicly 
and privately declared himself devoted. He voted for 
the local favorite for ten days or thereabout, and then de- 
serted to become the leader of the forces of his antagonist, 
a man of great wealth who had the support of a giant cor- 
poration, believed to be the master of the political des- 
tinies of the state, for whose legislative program the re- 
creant member voted with striking consistence. He was 
overwhelmed with remonstrances from his constituents, and 
though they did not affect his course, he confided to some 
of his friends that he was opposed to the recall because if 
it prevailed he would be one of its first victims. 

H it should be regarded as wise to punish the error of 
judgment on the part of the people of his county in elect- 
ing him, by den3nng to them the right of recall, why should 
the interests of the rest of the people of the state be 
imperiled by his retention? 

What ground is there for making any distinction in ref- 
erence to those public ser-vjants upon w^hom devolve the 
judicial function? The expression "public servants" is used 
advisedly in connection w^ith judges, upon the authority of 
the Supreme Court of th£ United States, which said, in 
Luther v. Borden: 

"Judges * * * must enforce such (Constitution) as 
the people themselves, whose judicial servants they are, 
have been pleased to put into operation." 

Now, in thirty-four of the forty-eight states the judges 
are chosen by popular election. These include Georgia, 
which went to the elective system in 1798, the imperial 
State of New York, which followed in 1846, and North 
Carolina, which adopted the popular method recently. The 
overwhelming sentiment of the people of the United States 
is that the people of the states, respectively, are competent 
to choose their judges; and the experience of a century 
has fully justified that confidence. Irving Browne, in a 



RECALL OF JUDGES 



7Z 



review of the New York Court of Appeals, published in 
the Green Bag in 1890, said: 

"I have given the names of more than one hundred judges, 
with particulars of many of them, nearly all of whom were first 
nominated by the people. I believe that under a svstem of ap- 
pointment by the governor this test would not have "been equaled 
In merit and distinction, and I point to it as a standing refutation 
of the argument that the people are not fit to name their judges." 

The Federal system of appointment for life, as distin- 
guished from the state system of election for limited terms, 
is commended in many quarters as immeasurably the su- 
perior. However it may be in other parts of the country, 
it is observed that in our section, at least, the Federal 
judges are selected very largely from those whose talents 
were discerned by the people, and who had by them been 
elected to high judicial position. Vandevanter in Wyoming, 
Field, Sawyer, Ross, and De Haven in California, Bean and 
Wolverton in Oregon, Hawley in Nevada, Hunt in Mon- 
tana, and Rudkin in Washington, are of this class. There 
is not an argument that has ever been advanced against 
the recall of judges that is not equally forceful when applied 
to the election of judges by the people in the first instance. 

The main contention, about which the argument invaria- 
bly proceeds, is that the recall would rob or tend to rob 
the judge of his independence, impelling him constantly, 
in his official acts, to court the favor of the people by con- 
sulting their hopes concerning litigation before him and 
conforming his judgments to the desires of the majority. 
That is exactly the line of argument that has been vainly 
pursued for over a century to stem the tide of democracy, 
as it involves the judicial office. Leonard Jones, in the 
course of some comments in the American Law Review, 
in disparagement of the idea expressed by Mr. Browne, 
above quoted, said: 

"The worst thing, however, about the elective system is not 
the fact that it affords unworthy men the chance to obtain judi- 
cial office by purchase or other corrupt practices, but that it nec- 
essarily to a greater or less extent destroys the independence of 
the judges." 

"What chance," he adds, "is there that a judge who is 

shortly to seek a re-election by the people will uphold the 

law and justice in a case where the popular clamor is 

against law and justice?" 



74 SELECTED ARTICLES 

What chance, indeed, unless he be a man and not a 
catiff? With that kind of a judge the argument has added 
force as it is directed against the elective system, because 
that kind of a judge is likely to solace himself with the 
reflection that so far as the recall is concerned it may not 
be invoked against him anyway, while if his term is expiring 
and he seeks re-election, he is up against it to a certainty. 
Moral courage is a quality cardinal in character in a judge. 
He is called upon to exercise it in the daily discharge of 
his duties. He is fortunate, indeed, if he is not obliged 
repeatedly, in his official career, to brave the enmity of 
powerful interests whose activity is more to be feared than 
an outburst of passion upon the part of a community or 
state against an upright public official who faithfully dis- 
charges his duty as he sees it. 

Even a Federal judge, unless he be free from every 
honorable ambition, or has reached the topmost round, is 
not exempt from these trials, as the testimony of Judge 
Purdy before the Sugar Trust investigation committee 
would seem to indicate. 

Herein lies, in my judgment, the weakness of the Fed- 
eral judiciary. The judge is believed to be utterly inde- 
pendent of the people. He does not owe his appointment 
to them, nor does he look to them for advancement. No 
reason can ordinarily be conceived why he should incline 
his judgments to their supposed will in any case, and he 
is accordingly exempt from any suspicion in that direc- 
tion. H he decides a case in such a way as to meet popular 
approval, the incident is regarded as the natural result of 
the equities of the case, and is speedily forgotten. But 
when the case turns in the other direction, the opportunity 
to attribute to sinister influences its outcome is by no means 
wanting. Setting aside the idea of corruption in its graver 
form, or in its milder manifestations, as disclosed in the 
Swayne impeachment proceedings it would be idle to 
attempt to disabuse the public mind, in this day, of the 
notion that the great interests, insidiously, perhaps, but 
none the less effectively, exercise a potent influence in the 
selection of Federal judges. 

While this belief prevails, a suspicion affecting his pre- 



RECALL OF JUDGES 75 

dilection is easily engendered by a course of decisions, 
whether right or wrong, by a Federal judge, avowing such 
interests. The social aspect is not an unimportant one. 
By the method of his selection and the character of his 
duties he is apart from the general mass of men, who nat- 
urally assign as his associates and confidants the more opu- 
lent and influential, whose prejudices he imbibes and whose 
views he the more readily adopts. These are some of the 
considerations which have given rise to the belief, prev- 
alent in some quarters, that the Federal courts are a 
haven for the big corporations that are more or less inclined 
to rapacity. 

The Federal system certainly secures, in the very high- 
est degree possible, the independence of the judges — that 
is, it makes them independent of the people. The system can 
not be regarded as perfect,, however, if the national courts 
fail to win and maintain the confidence of the great mass 
of citizens — unless the people feel that those courts are 
theirs, the judges thereof their judges, doing their work. 
One distinguishing merit of the recall as applied to judges 
is that it operates to permit the restoration of public con- 
fidence in the court presided over by a judge against whom 
it was invoked. Why should a judge, guilty of habitual 
intoxication, for instance, be permitted to continue in office, 
passing upon grave questions affecting the lives, liberties, 
and fortunes of citizens, until his term expires or he is 
removed by the slow and uncertain process of impeach- 
ment? A day is too long for him to sit bringing to the 
duties before him a mind inert or befuddled from drink. 

Independence in the judiciary is undoubtedly a quality 
much to be desired. But we may pay too high a price to 
secure it. Undoubtedly we do when we keep on the bench 
the obviously unworthy and unfit judge lest that class, 
small, as I insist, at best, in whom fear of their political 
future is the ruling passion, might be swerved from the 
path of right. Independence is not a character essential 
alone in the judicial servant of the people, as might be 
imagined from the discussion of the subject before us. All 
public officers are required to exercise it in varying degree 
in the proper discharge of their duties. The governor of 



76 SELECTED ARTICLES 

the state, the President, is supposed to be equally deaf 
to what is called '"popular clamor." They enforce the law 
against rich and poor alike, high and low. It was this 
quality which endeared Andrew Jackson to the American 
people and gave to Theodore Roosevelt a popularity per- 
haps no less widespread. A prosecuting attorney will find 
daily exercise for the same virtue. It made Folk and 
Hughes national characters. 

And yet I can not think of an officer against whom the 
recall might be more appropriately invoked than a recreant 
prosecutor who pursues the outcast and winks at the crimes 
of the high and might3\ He might, of course, be deterred 
by selfish political motives from proceeding against law- 
less strikers who shed innocent blood or wreck property 
tut I should rather fear his being appalled by some fran- 
chise grabbing plunderbund or domineering industrial cor- 
poration that finds gain in operating in violation of law. 
The youth of this state are being taught by Prof. Smith, 
holding the chair of political science in its rising university, 
that the "independence of public officials which our fore- 
fathers were so anxious to secure has been found to be a 
fruitful source of corruption." ''A realization of this fact," 
he says, ''has been responsble for the introduction of the 
recall system under which the people enforce official re- 
sponsibility through their power to remove by a vote of 
lack of confidence." 

It might be said that there is more occasion for a recall 
provision in Massachusetts, where the judges hold during 
good behavior, than in jurisdictions where the tenure is 
for a limited time. But the tendency is to protract the 
terms of judges, particularly of the higher courts. In New 
York, the justices of the court of appeals are elected for 
fourteen years; in Pennsylvania the term for the corre- 
sponding office is twenty-one years; in Montana six. The 
shortest of these terms is a long time to tolerate a judge 
who needs removing. The decrepitude of age may come 
upon him unexpectedly early in life. Illness may over- 
take him and even render him unappreciative of his own 
infirmity. A Massachusetts judge was removed for such a 



RECALL OF JUDGES -jj 

cause. With the recall it is comparatively unimportant 
how long the term is. 

One of the grounds of complaint against the elective 
system is the brevity, as a rule, of the terms, in conse- 
quence of which it is claimed the bench has no attraction 
to the best talent at the bar. The term could ordinarily 
be safely lengthened with a recall provision. In Oregon 
it is proposed to extend the term of members of the legis- 
lature to six years, but make them subject to recall at 
any time. Its most ardent advocates admit that it will 
be a long time until the recall enters the field of the national 
organization, but if any state is disposed to try the experi- 
ment,, it is with confidence asserted that, upon reflection, 
no reason will appear why judges should be excepted from 
its operation. 



United States. 62d Congress, ist Session. Senate Doc. No. gg. 

Election and Recall of Federal Judges. 

Robert L. Owen. 

It will be contended by some that the recall of judges 
might safely be left to the National Legislature or to the 
state legislatures, but should not be left to the electorate, 
because the electorate would not be so conservative in the 
exercise of the power to recall a judge as their representa- 
tives in the legislature. 

The answer to this is that the electorate of an Ameri- 
can state and of any of the American states is abundantly 
conservative and moves very slowly, more slowly than 
their progressive representatives would move. 

A political party is controlled by caucus and in conven- 
tion, and is easily moved by passion or impulse. The peo- 
ple in their peaceful homes or in the quiet seclusion of a 
voting booth are not so easily moved. 

The reactionary argument that the people are turbulent, 
unduly excitable, that they are wild and visionary, that 
they are unduly passionate, that they comprise an irrespon- 
sible mob unworthy to be trusted with power, comes with 



/S SELECTED ARTICLES 

poor grace from those who hold their honors, their digni- 
ties, and their salaries from these same people. 

The long-suffering patience of the people is best evi- 
denced by the forbearance with which the people permit 
men in public service to give currency and approval to 
these unfounded and absurd criticisms of the great Ameri- 
can electorate. 

Every Member of Congress is elected by direct vote 
of the people. Have the people intelligence enough to 
elect Senators and Members of the House, and yet do they 
lack intelligence to elect or to recall a judge? Would they 
recall a Senator or a Member of the House who performed 
his duty faithfully and truly represented his constituency? 

]\Ir. President, when our Federal Constitution was 
adopted in 1787 none of the judges were elected by the 
people,, although there was a greatly restricted suffrage; 
but since that time, although the suffrage has been greatly 
enlarged, so that we have almost universal manhood suff- 
rage and in five states woman's suffrage, yet with the 
growth of modern Democracy or progressive Republican- 
ism very many of the states have adopted the doctrine of 
electing judges and giving them fixed terms of office. 36 
states elect the judges by popular vote; Connecticut, Geor- 
gia, Rhode Island, Vermont, and Virginia elect by the 
general assembly; and Delaware, Maine, Mississippi, New 
Hampshire, and New Jersey appoint. All of the states 
have the recall by fixed tenure, except Massachusetts, New 
Hampshire, and Rhode Island, all of which recall by the 
legislature. Thirty-two of the states provide by constitu- 
tion for recall of judges by the legislature. 

It is therefore substantially the unanimous opinion of 
all the states that judges should hold by fixed tenure and 
be subject to the automatic recall of short terms or by 
resolution of the legislature. 

When the Constitution of the United States was adopted, 
in many states the legislatures directly elected the judiciary, 
as in Connecticut, Rhode Island, New York, Delaware, 
New Jersey, Virginia, North Carolina, and Georgia, and 
they exercised control over the judges by fixing their term 
of office "during good behavior," as was done in New 



RECALL OF JUDGES 79 

Hampshire, Massachusetts, New York, Maryland, North 
Carolina, South Carolina, and Virginia, and by a short ten- 
ure of office of one year, as in Rhode Island, Connecticut 
and. Georgia, and by the right of recall by an address of 
the legislature, as in Massachusetts, New Hampshire, Mary- 
land, Delaware, South Carolina, and Pennsylvania. 

In many of the States — Alabama, Delaware, Florida, 
Kentucky, Louisiana, MHchigan, Mississippi, Nevada, Penn- 
sylvania, South Carolina, Texas, etc. — the language is used 
in the constitution that where the offense charged is not 
sufficient ground for impeachment that judges may be 
recalled or removed by address of the legislature. 

It is not denied that judges should be impeached when 
guilty of high crimes. All the state constitutions, and the 
United States Constitution also, provide for this, and it 
is justified by reason. But impeachment is far more serious 
than recall. Impeachments involve the conviction for 
criminal conduct. The recall is a much more benign rem- 
edy, and can be invoked where the fault of the judge or 
the reason for removal is not so great as in the case of 
impeachment and may be invoked with honor to the judge 
who has become infirm and who may for his own good be 
retired on a pension. All of the states provide for recalling 
judges by impeachment, but this recall carries disgrace. 

Mr. President, the short tenure of office is a form of 
recall, by virtue of which the people who elect judges or 
have them elected by the legislature, or appointed by the 
governor, prevent them from becoming a judicial oligar- 
chy, prevent them from becoming tyrannical, and prevent 
them from becoming judicial rulers or indulging any un- 
seemly exercise of power by recalling them with a short 
tenure of office. 

As I pointed out, three of the states, when the Con- 
stitution was framed, elected judges only for 12 months. 
It is wonderful, when a careful examination is made, to see 
how universally the people of this country have provided 
against judicial oligarchy in the states by a fixed tenure 
of office. 

Thirty-four of the states elect judges by the qualified 
electors, six others elect judges by the general assembly 



8o SELECTED ARTICLES 

and only six states appoint by the governor and council. 
Forty-three states exercise automatic recall by the fixed 
or short tenure of office and 32 states recall directly by the 
legislature; and no state fails to have the right of recall 
either by the short or fixed tenure or by the legislature. 

It will thus be seen that all of the states have an auto- 
matic recall of judges by a short tenure of office, excepting 
Rhode Island, 'i\ew Hampshire, and Massachusetts, all three 
of which expressly provide in their constitutions for the 
recall of judges by the legislature. 

New Hampshire has recalled her judges four times, and 
I understand on grounds of policy. Rhode Island recalled 
her judiciary — by dropping them at the end of the short 
tenure — which declared an act of the Rhode Island Legis- 
lature unconstitutional. 

I insist that the recall of judges by the voters of a 
state, in the seclusion of the ballot box, is more conserva- 
tive than to remove judges by caucus in a legislature, where 
passion or interest might affect the judgment. The people 
of Arizona can be relied upon to deal justly with this ques- 
tion, and their right of self-government in this particular 
can not be justly denied. 

Mr. President, there are many degrees of malfeasance 
and of misfeasance justifying recall which would not jus- 
tify impeachment, Mr. President, a judge upon the bench 
is merely a lawyer employed by the people, at a salary, 
to interpret the law. He does so in the light of his en- 
vironment, influenced by his education, by his previous 
political and judicial predilections, influenced by his long 
practice at the bar. Perhaps he maj^ have been the valued 
attorney of various powerful corporations, whom he has 
long served and whose interest in him has led to his pre- 
ferment on the bench by the skilled influences of commer- 
cial interests brought to bear upon the appointing power. 
Suppose such a judge in a series of decisions uniformly 
decided cases against the interests of the people, whose 
servant he had become, and uniformly decided such cases 
in favor of special privilege, whose paid servant he for- 
merly was. Should the people have no right to recall him 
except by impeachment? Such a judge may be perfectly 



RECALL OF JUDGES 8i 

conscientious; but will that suffice to justify his continu- 
ance in office under such circumstances? 

Mr. President, the right of recall of judges is all the 
more important when we recognize the fact that the big 
interests of this country have taken infinite pains to bring 
about the nomination and promotion as Federal judges 
of those whose opinions and bias of mind were known to 
be favorable to their point of view. 

Whenever a vacancy occurs on the Federal bench, im- 
mediately the most lively and active pressure is brought 
to bear by various business interests in favor of candidates 
desired by them, and I pause to remark that it is quite 
immaterial whether such candidate has previously been 
regarded as a Democrat or as a Republican. 

I do not mean to suggest that candidates thus urged are 
in any degree dishonest or corrupt, although that is always 
a possibility; but I do mean to say that they are merely 
human beings. That such candidates have been practicing 
lawyers, some good lawj^ers and some not so good, gives 
them no divine unction of infallibility. That they are 
influenced and controlled in their opinions by their educa- 
tion and their environment and by the arguments which 
they have previously been engaged in making is absolutely 
certain. I do mean to say that corporate interests do seek 
to place upon the federal bench and in the state courts 
those candidates who- are known to favor the point of 
view of the special interests as against the interests of the 
people, and that I do believe such appointments on the 
federal bench are the rule and not the exception. 

The federal courts have invaded the Constitution and 
invaded the rights of the states and invaded the legisla- 
tive function of Congress and of the states, and have be- 
come an instrument through which the special interest 
have been enabled to block all progressive legislation of 

recent years. 

Up to 1887, 20 federal statutes and 185 State statutes had been 
held invalid by the Supreme Court of the United States alone. This 
does not include the innumerable State statutes which the lower 
Federal courts have nullified under the shield of the Supreme 
Court decisions. This list will be found in One hundred and thirty- 
first United States reports, Appendix CCXXXV, and since tltat 
time this list has been greatly increased, and the decisions have 
been most objectionable since 1887. These decisions have usually 



^2 SELECTED ARTICLES 

been made by a divided court, but in some cases the change of a 
single vote would have completely changed the result. The legis- 
lation thus destroyed was practically all carefully devised to meet 
existing and recognized evils and enacted in response to an over- 
whelming demand of the people. (Gilbert E. Roe.) 

These various decisions have not only nullified statutes 
of t'he greatest importance, passed for the protection of the 
people, but other decisions have been made which are, 
in effect, judicial legislation. 

Out of the great multitude I submit a few instances as 
illustrations. For example: 

In ex parte Young (209 U. S., 123) the attorney general of 
Minnesota is punished for contempt for performing his duty in 
obedience to the statute of the State of Minnesota regulating the 
rates of public-service corporations. 

The statute of Texas was set aside as unconstitutional 
in the case of Galveston, Harrisburg & San Antonio Rail- 
road Co. v. The State of Texas (210 U. S. 217) , taxing the 
gross receipts of railroad companies within the state. 

The statute of Kansas taxing the Western Union Tele- 
graph Co. was set aside in like manner. (216 U. S., i.) 

The Oklahoma constitution establishing a corporation 
commission was declared invalid under the Constitution 
of the United States by the decision of Justice Hook, March 
29, 191 1. 

Judge Sanborn's decision in the case of Sheppard v. 
Northern Pacific Railway Co. on April 11 practically 
destroyed the Minnesota statute providing for the regula- 
tion of rates of public-service corporations. 

The fourteenth amendment intended to protect the 
negro, has been twisted from its purpose to protect the 
trusts and monopolies in imposing long hours of labor on 
employees on the absurb theory that to deny the employee 
the right to work long hours is a denial of his constitu- 
tional "privileges." 

EJ\^eryone knows that the sole intent and purpose of the peo- 
ple in adding this amendment to the Constitution was to protect 
the then recently emancipated negroes in their rights of citizen- 
ship. The courts, however, have made this amendment include 
all manner of trusts and corporations and of contracts and prac- 
tices, none of which were even in the thoughts of the people when 
they adopted the amendment. In the hands of the courts this 
amendment has become a shield to protect corporations and com- 
binations of wealth from the legislation aimed at them by an 
Indignant public and also a sword by which statute after statute 
has been cut down, enacted by the lawmaking branch of the 
Government in the public interest. (Roe.) 



RECALL OF JUDGES 83 

The employers' liability act, for the protection of 
employees, was held unconstitutional by 5 to 4. (39 Cong. 
Rec, ii„ 1904; 40 Cong. Rec, 93, 1905.) 

The compulsory arbitration act, passed as the result of 
the great strike at Chicago in 1894, and intended to prevent 
the recurrence of such unfortunate difficulties, was destroyed 
by the Supreme Court. (Adair v. U. S., 208 U. S., 184.) 

The interstate commerce act has been emasculated by 
the Supreme Court. (Exhibit A.) 

The wholesale liquor interest was protected by the so- 
called package decision (Lesley v. Hardin, 135 U. S., 100), 
and it required a special act of Congress to authorize police 
powers of the states to apply to liquor in original packages 
(Wilkerson v. Rahrer, 140 U. S., 545). 

The principles laid down in the Declaration of Indepen- 
dence were reversed in the insular cases, holding that this 
Republic had imperial power to govern and control other 
people as subjects, etc. 

The workmen's compensation law of New York, was, in 
like manner, destroyed by the New York courts. (Ives v. 
So. Buffalo Ry. Co., 201 N. Y., 271.) 

The income-tax law was struck down in like manner 
by the Supreme Court. The serious error of the Supreme 
Court in this case I heretofore pointed out on the floor of 
the Senate, where the inhibition of a direct tax on a state 
was absurdly construed to inhibit a direct tax on a citizen 
of the United States. (May 7, 1909, Rec, 1821, and May 17, 
1909, Rec, 2104.) The decision in this case, by the change 
of the vote of one judge — of one lawyer in this court, ap- 
pointed at whose instance we do not know — has cost the 
mass of the people of the United States a hundred million 
a year for over 16 years, $1,600,000,000 in all, and relieved 
those best able to bear the tax of a like amount. 

One billion six hundred millions of dollars by the vote 
of one man, appointed by what influence? We do not 
know and can not say. No such power ought to be put in 
the hands of any man. No man not responsible to the 
people or the representatives of the people ought to have 
the power to control the fiscal policy of this Nation con- 
trary to the law of the people of the Nation and contrary 



84 SELECTED ARTICLES 

to the will of the Senate of the United States and the 

Congress of the United States. No such unconstitutional 

decision would have been rendered if the court had been 
subject to recall. 



Minneapolis Tribune, February 21, 1913. 

Recall of Judges. James ]\Ianahan. 

Opposition to legislation providing for the recall of 
judges is a survival of the old doctrine that the king can 
do no wrong. It rests on distrust or fear of the people. 
Timid folks, with little understanding of life, fear people 
because there is in people evidence of energy. These timid 
ones prefer to rely for security on institutions created by 
law and constitutions, because these things are apparently 
lifeless and undestructive. But the distrust of the people 
felt by the timid and uninformed is not serious opposition. 
It iS' easily removed by education and replaced by the cour- 
age and confidence which all honest men should feel in 
considering the integrity of mankind in general. The deter- 
mined opposition to the recall comes from fear, but not 
the fear of the timid. It is the fear felt by selfish and 
greedy exploiters; felt by corrupt politicians; felt by men 
whom conscience makes uneasy ; whose judgment ques- 
tions their own moral right to the wealth they have acquired ; 
whose selfishness dreads the day of retribution. 

Those who favor the recall make no attack upon the 
courts. We propose to protect the courts from the duress 
of big business and corruption by political bosses. The 
recall never has wronged and never could and never would 
destroy a just judge; it is the shield of good judges, pro- 
tecting them from the importunitj'^ of special and corrupt- 
ing influences and securing them in the affection and love 
of the people, for whose general welfare they s'hould labor; 
it is and could be a weapon only to use against unfaithful 
judges and I ask, should not unfaithful public servants 
be scourged from the temple of justice sternly and with 
promptitude. 



RECALL OF JUDGES 85 

The suggestion that the recall might be used by the cor- 
porations and special interests with their organization is 
a childish suggestion in view of the fact that every special 
interest and its public spokesmen; the lawyers and lobby- 
ists of the trusts, railroads and public service corporations, 
generally are always found opposed to the recall; if the 
recall would help the Hydro-electric company, the Stone- 
Webster Water Power trust, the railroads, the brewers and 
Twin City Rapid Transit company, the steel corporation 
and the Standard Oil work their will on judges you would 
find their lawyers, editors and preachers favoring the law 
and not opposing it. Xo man who has ever studied any 
recall law in force or proposed, with intelligent considera- 
tion, will argue that such a law would enable disappointed 
suitors in private litigation to rebuke or menace the court 
whose judgment disappointed them. No disappointed liti- 
gant could get one per cent, much less 20 or 30 per cent 
of the voters in any jurisdiction to sign a petition for the 
recall of a judge, and even if he could the people would give 
that judge, if he were a good judge, such a splendid vindi- 
cation at the polls as to more than repay him for what the 
contest cost him in money, labor or anxiety. 

Forum. 47:157-68. February, 1912. 
Democracy and the Recall. Gwendolen Overton. 

To the average voter, the recall of the judiciary does not 
stand for rebellion against restraint. Mob-unruliness it is not 
— in motive, at any rate. In those states which now have 
the recall the standard of citizenship and the general intel- 
ligence is high, the voters are markedly representative of a 
race whose strongest characteristic has always been the 
love of just and stable government — but which has found 
that these are only to be obtained by altering laws and con- 
stitutions. 

Among the objections raised to this movement are that 
it will cause the people to infer their superiority to the 
law from control of its interpreters; that a judge is entitled 
to trial for alleged bad behavior; that the three functions of 



86 SELECTED ARTICLES 

government, legislative, judicial and executive, will cease to 
be separate; that there will follow the debasement of the 
judiciary, and above all, that there will remain no safeguard 
of minority rights. 

To the first it might be answered that the people are al- 
ready theoretically superior to the law, in that it lies with 
them to amend or alter the constitution. In England their 
control is still more direct and immediate, and the English- 
man is notoriously law-abiding. Nor does it seem quite 
reasonable to insist that citizens will have less respect for 
the law if they may recall its interpreters — after formal pre- 
liminaries extending over a considerable period — than if they 
may defeat them at the polls. 

As to the second contention — it is perfectly obvious that 
conviction, even in quite extreme cases of misconduct, would 
be well-nigh impossible. A solitary but sufficient example 
of the difficulties to be encountered has been furnished very 
recently in the notorious case of a Federal judge in a west- 
ern State. 

To the third objection there is a reply that the three 
functions of government have not in fact remained separate 
and perhaps could not do so practically. 

In respect of the argument that good men will not offer 
themselves as candidates for the bench if recall hangs over 
them — as far as civic and State officials have been con- 
cerned, a better class seems to have come into the field 
where the undesirable can be removed. It may equally well 
be so with the judiciary. For it is more than doubtful if 
occupants of the bench would ever be, unseated capriciously, 
for no graver cause than merely an unpopular decision. 

Those who believe in our tolerant and "non-chalant" 
populace deem it likely that the conduct of affairs would be 
attended with no visible change whatsoever. With aggrega- 
tions of men responsibility and trust have a sobering effect, 
and the fear of doing injustice, of intrenching upon the terri- 
tor\'^ of a special knowledge, will quite possibly make the 
recall an expedient never resorted to. And this will be 
more certainly the case if, as is probable, members of the 
judiciary would be at greater pains than now to avoid com- 
ing under suspicion, and would take a legitimate lead of the 



RECALL OF JUDGES 87 

people by pointing out where laws and procedure likely to 
cause offense could be bettered — a duty wherein they them- 
selves are tardily admitting dereliction. There will, let us 
hope, be less of that tendency — ^which calls forth the stric- 
tures of an eminent modern writer upon jurisprudence — to 
consider an action at law, "a game that may be won or lost 
by playing some particular move." 

But concerning the most theoretical and therefore the 
most important, of the objections named — that the minority 
will lose its right of being assured, in so far as possible, that 
its case will receive unbiassed consideration at any given 
moment. Here there arises an issue not to be disposed of 
carelessly. 

It is so obvious a platitude that one can with difficulty 
bring oneself to suggest again — what, nevertheless, appears 
to need perpetual reiteration — that principles of jurisprud- 
ence and government are not unchanging, or more exactly 
that there is but one which is so — that nothing is permanent 
save change. 

In the History of English Lazv Maine reminds us that 
"the matter of legal science is not an ideal result of ethical 
or political analysis; it is the actual result of the facts of 
human nature and history." We are told by Bryce that 
"though its (the law's) leading doctrines and its fundamental 
institutions are in some respects essentially the same, in all 
civilized communities, still, every given system is . . . for- 
evcF changing, growing and decaying, both in its theory and 
in its substance , . , each nation, through what the Ger- 
mans call its legal consciousness, the maker and moulder 
of its laws." And in Civil Government Locke says : "Law 
in its true notion is not so much the limitation, as the direc- 
tion of a free and intelligent agent to his proper interest." 

If we admit the above conclusions to be true, how are 
we to insist that there can be but one method of safeguard- 
ing a minority? In an essentially democratic community, 
where the average of intelligence is high and self-govern- 
ment has become nothing less than second nature, there may 
be another method more "actually the result of the facts of 
human nature and history," because it allows the "direction 
by a free and intelligent agent to his proper interest." 



88 SELECTED ARTICLES 

With us it should take the form of guaranteeing minority 
rights conscioush^ by precisely that which has always guar- 
anteed them — though unconsciously: the sense of justice and 
responsibility of the majority. For civic self-consciousness 
is the acknowledged purpose of the race's development. 

If the populace has reached the point where it submits 
to a law^ guaranteeing the security of one, or any small por- 
tion of its number, the next step in advance will consistently 
be that it should school itself to allow that security without 
sense of compulsion. The whole trend of humanity, in its 
social relation, is in this direction. And though injustice 
may occasionally result, it would probably not be oftener 
than at present — since we cannot but allow that the integrity 
of the judiciary has an enemy in great wealth not less for- 
midable than any lurking in the "spirit of democracy." 

It remains, of course, debatable whether humanity — 
among ourselves — has yet reached the stage where the ex- 
periment may be safely made. Yet since evolution disre- 
garded brings about revolution, it seems safe to say that a 
people is ready to be entrusted with the rights it deliberately 
and thoughtfully claims, and that it will very soon learn to 
use them properly. Upon what other principle, indeed, does 
our state exist, or progress? 



Academy of Political Science (N. Y.). Proceedings. 3: 141-6. 

January, 1913. 

Recall of Judges. Gilbert E. Roe. - 

If there ought to be any distinction, in my judgment 
it would be in favor of applying the recall to judges rather 
than to many other public officials. Here is my principal 
reason for saying this: the judges, more than any other 
class of officials, ought to be close to the public if they 
are going to perform their proper function in this gov- 
ernment. The President, with his control of the army and 
navy and the vast influence which he has the means of 
exercising, may be able to carry forward a policy for a 
time without popular support; the legislative branch of 



RECALL OF JUDGES 89 

the government, with its control of the finances, also is 
measurably independent of the people's will; but the courts 
have no army and navy, no control of the finances; they 
must depend for their support upon the approval of the 
people of the country, or they must fail in their function. 
Therefore I say that whatever brings the judge and the 
people closer together is in my judgment a good thing, 
and that is the reason— one of the reasons, at least— why 
I advocate the application of the recall to judges. 

The recall would be a good thing not only for the 
judge and his decisions, but for the people themselves, and 
after all that is the real reason why we want any of these 
democratic measures. I am not at all sure that where their 
are direct primaries better candidates have been nominated 
than under the old system, but I do know this, that it has 
been a good thing for the people; the discussion, the agita- 
tion, the education, the interest excited has laid broad and 
deep the principles of democracy in those communities, and 
that is why it has been good. 

That there does exist in this country to-day a wide- 
spread distrust of the courts — not of individual judges 
merely, but of the courts and their purposes, and a dis- 
satisfaction with the result of work of the courts,— is a 
fact that we must all admit. I have tried to analyze some- 
what the basis or reason for that dissatisfaction, and as 
briefly as I can I want to tell you my conclusions about it. 
Since the foundation of this government, the people 
have been reaching out and gaining more and more com- 
plete and direct control over both the executive and the 
legislative departments of the governments. You know 
that the constitution provided for the device of an electoral 
college because it did not trust the people, because the 
framers of the constitution were unwilling to commit to 
the mass of people the important function of electing the 
President of the United States. Then also it was felt 
necessary that one branch of the legislature should repre- 
sent the wealth and financial interest of the country, hence 
the provision for electing United States senators by state 
legislatures and electing them for long terms. At once 
the people set about destroying these barriers, and so they 



90 



SELECTED ARTICLES 



found a way to get around the electoral college, and to 
advocate the constitutional provisions providing for the 
election of United States senators by state legislatures. 
The direct primary is another step in the same direction, 
so that more and more all through the years from the 
time the constitution was framed to this moment the people 
have been seeking and securing more complete control of 
the executive and legislative branches of their government 
bending these officials more completely to their will, and as I 
think, properly so. But that is not the question at this mo- 
ment. 

With the judiciary just the opposite course has been 
pursued, or rather the judiciary has traveled an opposite 
road. With a constitution that gave so little power to the 
Supreme Court of the United States that John Jay, the 
first Chief Justice, resigned, because he said there was not 
power enough in the office to make it worth a man's time 
to hold it, — starting out from that point and coming down 
to this time the courts by their decisions have removed 
themselves more and more from popular control. I am 
not going to enter on the discussion of the question whether 
the constitution granted to the court the right to de- 
clare a law unconstitutional; it is my belief that it did not. 
That question is one of the most interesting in all our 
history. But we all agree upon this, that when the doc- 
trine was first announced that a court could declare a law 
unconstitutional, always that announcement was coupled 
with the expression that it was a power so dangerous 
for a court to exercise, so dangerous to what we call popu- 
lar government, that a court would never exercise it ex- 
cept in a case that was free from all doubt. When you 
put a statute side by side with the written constitution 
and it was perfectly plain that the two were in conflict 
only then could the court say that the statute was un- 
constitutional and must fall. Everyone agrees that that 
was the position the court took when it first announced 
the doctrine. But today, so far have our courts got away 
from that old landmark laid down by Marshall and other 
great judges of that day that no one knows to-day, when 
a legislature or the Congress passes a law, whether it is 



RECALL OF JUDGES 91 

law or not until it has been passed on by the courts. We 
have often found of late years, when it has been sought 
to remedy some great abuse, as in the income-tax law, 
the workmen's compensation acts, employers' liability laws 
and many others, that there has been built up a great 
body of public sentiment in favor of the law, and then 
that public sentiment became so strong that it could knock 
successfully at the doors of a legislature or the Congress 
and command attention there. So after long days or weeks 
or years of discussion the law was passed by the Congress 
or a state legislature, each body containing many of the 
most eminent lawj^ers of the state or nation, every objec- 
tion possible having been brought up and discussed and 
answered and provided for, and then the law went to the 
President, who had the benefit of the advice of the ablest 
minds of the country, and he signed it, and it was writ- 
ten on the statute books. After all this, the day comes to 
enforce this law, and you go into court on it and the ques- 
tion is all argued out whether it is constitutional or not, 
and the court thinks it is. Then there is an appeal to the 
next court. The next court thinks it is, and perhaps that 
involves a decision of four or five or six judges, all hold- 
ing it constitutional. Then another appeal is taken to a 
little higher court, and perhaps here three judges out of 
five say that it is not constitutional, that it shall not stand. 
So then you have the word of three men against all the 
wisdom of the lower courts, of the President, of both 
houses of Congress and of the people — and your law falls. 

Because that thing has happened in this country with- 
in your memory and mine not once but many times, not 
■in unimportant matters, but on matters that touch vitally 
the lives and the happiness of the people in a majority of 
the homes of this country, because laws of the kind above 
referred to have been stricken down and destroyed, be- 
cause three or four men clothed with judicial authority have 
set themselves up in opposition to the will and intelli- 
ge^nce of the rest of the country, because of this there has 
been a demand on the part of the people to bring their ju- 
dicial officers more completely within their control. 

The result of bringing them within the popular control 



92 SELECTED ARTICLES 

would be good for the judges and good for the people. 
We lawyers are a good deal to blame about the mistakes 
that judges make. If the first speaker had been elected 
to the United States Senate at the time he was appointed 
to the bench he would have brought just the same integrity, 
ability, conscientiousness of purpose and fidelity to the one 
set of duties that he has brought to the other, — and yet 
in public estimation how different would his position be. 
We feel that it is anybody's privilege to go out and praise 
or criticize or discuss the members of the United States 
Senate or Flouse of Representatives, and the result is on 
the whole the establishment of a very good feeling be- 
tween the people and the members of the law-making 
branch of the government; but when a man goes on the 
bench we have been taught to feel that he goes into a 
different realm, that his acts must not be discussed, his 
conduct must not be brought under criticism. I do not 
believe that that is a right view, but I say we lawyers 
are largely responsible for bringing about the false senti- 
ment on that question, and the thing that would do most 
to correct that is the recall. Make your judges and their 
actions the subject of discussion; let the people talk about 
them, and not be fined for contempt of court if they do talk 
about them; let us discuss what the judge does just as we 
discuss what the member of Congress does. 

It was said that the people are apt to know nothing 
about the character of the candidate for judicial office and 
to be indifferent to it. That is the way I would have the re- 
call and would have a life tenure unless the recall was ex- 
ercised. In the hurly-burly of an election there are 
many candidates and many issues, the record of any par- 
ticular candidate is lost sight of. But in a recall election 
the man and his conduct stand out; it is the one thing 
you are considering. There has been in this country just 
one attempt to recall a judge; that was in Oregon in 191 1.* 
A judge there presided at a murder trial in a very unpopular 
way, making such rulings that the man charged with the 
crime escaped conviction. A considerable part of the com- 



♦Since this article was written Judge "Weller has been re- 
called in California. — Comp. 



RECALL OF JUDGES 93 

munity believed that the judge's decisions were wrong, and 
that they argued such corruption or such incompetency that 
he ought to be removed. So they started out to circulate 
a recall petition. As you know, every state that has a law 
providing a recall, safeguards it so that several months 
must elapse between the filing of the petition and the elec- 
tion. In this case it was necessary to get twenty-five 
per cent of the voters of the district to sign the petition 
that a recall election be held. The law also provides that 
each side shall at the public expense state its reasons why 
the recall is demanded on the one side, and why the judge 
should be continued on the other. After that the election 
is to be held some months in the future. The people in 
Oregon did not take even the first step, although the case 
appeared a rather flagrant one. They could not get any- 
where near the twenty-five per cent necessary even to sub- 
mit the question to another election. But, you may say, 
if a recall would be so seldom exercised, wihy do you 
advocate it? For just the reason that if there is the power 
of recall, if the people feel that they have control over the 
judge, and the judge feels that he is really the servant and 
not the master, then you will have a condition which will 
make the recall unnecessary except in rare instances and 
at long intervals. 



NEGATIVE DISCUSSION 

Academy of Political Science (N. Y.). Proceedings. 3: 147-56. 

January, 1913. 

Substitutes for the Recall of Judges. J. Hampden Dougherty. 

After almost two years of discussion does anything re- 
main to be said in favor of judicial recall? No public ques- 
tion in recent years has received more consideration. It 
has been the theme of debates, pamphlets, books and reso- 
lutions. Practically all the bar associations throughout the 
country have opposed it. The debate in Congress upon 
the admission of Arizona with its constitutional provision 
for judicial recall was so exhaustive as to leave nothing to 
be said. The speeches of statesmen like Root and Lodge 
in the Senate, and Pickett, Kinkaid, Legare and others in 
the House, conclusively showed its fallacy. President 
Taft's veto message, a great state paper destined to rank 
high in history, thoroughly shattered the notion. The vote 
upon the Arizona bill in the Senate and the House would 
be completely misunderstood were it assumed to repre- 
sent a preponderant sentiment in favor of judicial recall. 
Many senators and representatives to whom the idea was 
repugnant voted for Arizona's admission because they felt 
that the state itself had the right to determine whether 
it would install such an unwise policy or not. A few oppo- 
nents of the measure believed, as did President Taft, that 
such a revolutionary doctrine was subversive of republican 
government. 

Judicial recall has been abandoned by some of its most 
conspicuous advocates and the notion of recall of judicial 
decisions substituted for it. Thus Colonel Roosevelt who, 
two years ago, in describing judges as "fossilized minds" 



96 SELECTED ARTICLES 

asserted that judicial recall might become advisable, now 
advocates recall of judicial decisions. Two recent critics of 
our judicial system, Mr. Gilbert E. Roe and Mr. William L. 
Ransom, differ so radically that the arguments of one 
may w^ell be set off against those of the other. In his in- 
teresting book entitled Our Judicial Oligarchy, Mr. Roe 
regards judicial recall as the remedy to prevent the courts 
from usurping powers which according to him they do not 
possess. Mr. Ransom, on the other hand, while equally 
alarmed at what he conceives to be judicial usurpation, in- 
vokes the remedy of recall of judicial decisions. No one 
has more incisively refuted judicial recall than has Mr. 
Ransom, and no one has better shown the fallacy of the 
recall of judicial decisions than has Mr. Roe. 
Of judicial recall Mr. Ransom says: 

If a judge incorrectly gauges *'the preponderant opinion" aa 
to the social necessity for a particular law, why remove him? 
Why not let the people vote directly to decide what the majority 
opinion is? If a judge is dishonest, impeach him; if he is in- 
competent, remove him by complaint before the legislature or 
refuse him re-election, but it does not seem quite fair to re- 
quire him to take the final guess as to what the "prevailing 
morality" and the "preponderant opinion" of a state really is, 
and then chop off his judicial head if he "guesses" or "calcu- 
lates" wrong. 

For ]\Ir. Ransom's specific IMr. Roe, on the contrary, 
has the scantest respect. He says: 

The recall of judges is to be carefully distinguished from 
another idea, which is supported by some men of prominence, 
and which has come to be described as the "recall of judicial 
decisions." The former may be applied without materially de- 
parting from our constitutional form of government; the latter 
is absolutely destructive of the constitution. The recall of 
judges merely means that where a judge has shown from any 
cause that he is not discharging the functions of the judicial 
office in fundamental and important matters as the people desire, 
he will be discharged and a new judge possessing the necessary 
technical qualifications selected in his place. The recall of ju- 
dicial decisions means that the wholly untrained layman shall 
undertake to do, personally, the highly specialized and technical 
work of a judge. The great vice in this idea, however, is that 
it would be used as a means of amending the constitution by a 
majority vote. It would soon come about that laws would be 
passed, simply for the purpose of having them declared uncon- 
stitutional, and then by a popular vote overturning the de- 
cision of the court, and in that respect amend the constitution. 
The constitution, therefore, would be immediately reduced to the 
level of a statute, since any portion of it could be amended, or 
repealed, at any time by a mere majority of the popular vote. 
TS^hile there is little likelihood of this idea finding a permanent 
place in the minds of the people, that anyone should be found 
who seriously advocates this idea is significant of the extent 
to which the dissatisfaction with the courts has gone, and ought 
to show the necessity of reforming the courts, along lines less 
revolutionary. 



RECALL OF JUDGES 97 

Mr. Ransom has Colonel Roosevelt on his side. Colonel 
Roosevelt has written an introduction to ]\Ir. Ransom's 
book in which he declares that the people ought to have the 
power to decide for themselves in the last resort what 
legislation is necessary in exercising the "police" powers, or 
"general-welfare" powers, so as to give expression to the 
general morality and the general or common opinion of 
what is right and proper, and he is careful to say that he 
is advocating a system which "will obviate the need of 
such a drastic measure as the recall." What Colonel Roose- 
velt seems to overlook is that the people to-day enjoy 
ample power to change their constitutions so as to secure 
whatever legislation they may desire in the interest of 
the public welfare. 

Thus those who think judges usurpers and oligarchs 
are divided into two hostile bands. One would introduce 
judicial recall as the remedy, the other would have the 
people recall the judicial decision b}^ popular vote, and each 
stigmatizes the other's panacea as in the last degree dan- 
gerous and unwise. 

Surely after all the discussion upon this subject, ar- 
gument can hardly be needed to show the unwisdom of 
judicial recall. As I view it, the proposal is based upon 
two fallacies: 

First, it is declared that the judiciary has transcended 
its functions in passing upon the constitutionality of legis- 
lation, and that the judiciary is the undemocratic and 
unprogressive branch of the government. These things are 
asserted as to the judiciary not only of the nation but of 
the several states; yet in the majority of the states the 
judges of the higher courts are elected by popular vote, and, 
in many instances for short terms. 

Second, it is held that the courts, instead of attempting 
to follow the constitution which they have sworn to sup- 
port and to which every statute should conform, ought, on 
the contrary, to uphold a law in conflict with the constitu- 
tion, if that law expresses the popular will, thus substitut- 
ing the popular will, or as it has been called, the "manifest 
and express will of the people" for the constitution as their 
guide in certain classes of cases — this class being cases 



98 SELECTED ARTICLES 

affecting the social conditions of the whole or part of the 
community. According to this view, it is not the con- 
stitution but the so-called "popular will" that should be re- 
garded as the law of the land. 

As I read history the courts have not usurped the pow- 
er to declare legislation unconstitutional. To say that the 
judiciary is the unprogressive branch of the government 
is merely another way of saying that it is the business of 
the judges not to make law but to declare it, and in this 
sense the judiciary is the most conservative branch of the 
government. The courts say what the law is, not what 
they think it should be, and as constitutions are in theory 
at least easily amendable, the law can readily be so modified 
by amendment as to express the most enlightened public sen- 
timent. The public will be presumably expressed in the 
constitution. The constitution must remain the supreme 
law until the people see fit to change it, and certainly in 
the states the power of amendment of the constitution is 
easily available. In New York state the constitution is, if 
anything, too readily amendable. The constitution thus 
represents the "popular will' for the time being, and to 
attempt to substitute something else as an expression of 
the popular will by an unconstitutional method is in reality 
to subvert the popular will. 

The recall would inevitably fail. If I wished to pack 
the bench of this state with the tools of bosses, or the in- 
struments of the great, powerful and wealthy interests that 
too often dominate legislatures and courts, I would strong- 
ly advocate judicial recall. Unscrupulous combinations with 
large funds at their command could use this power for the 
removal of the incorruptible judge. It would be a weapon 
that could readily be turned against the people in behalf 
of special interests, and nothing could be more dangerous 
to the popular welfare. 

Recall is a species of punishment; it implies dissatisfac- 
tion. To my mind there is something inherently wrong in 
punishing a judge for the expression of an honest and in- 
telligent opinion. I can understand punishment when a 
person does wrong, but to punish one who with ability is 
presenting his own best convictions, is, to my mind, an 



RECALL OF JUDGES 99 

utter absurdity. The bench should be composed of law- 
yers who express their convictions, not mere popular in- 
struments. The recall was applied by James II of Eng- 
land, when he dismissed the Chief Justice of the Common 
Pleas and his associates, because they were unwilling to 
give a judgment that accorded with the royal will and 
not with the law. Jones, the Chief Justice, had been ab- 
ject, even servile, but when told by the king that he must 
give up either his opinion or his place, answered: "For 
my place I care little; I am old and worn out in the serv- 
ice of the Crown, but I am mortified to find that your 
Majesty thinks me capable of giving a judgment which 
none but an ignorant or a dishonest man colild give." — "I 
am determined," said the king, "to have twelve judges 
who shall be all of my mind as to this matter." "Your 
Majesty," answered Jones, "may find twelve judges of your 
mind but hardly twelve lawyers." The king dismissed him 
and his associates. This is what would happen with judi- 
cial recall in force. Judges would seek to know the popu- 
lar will and to follow it, which would be subversive of 
jurisprudence, and in turn of the rights and liberties of the 
people themselves. 

Assuming that there are errors in the present adminis- 
tration of justice which need to be corrected, assuming 
that judges have encroached upon the legislative branch of 
the government and constituted themselves a species of 
upper house to veto legislation by substituting their opin- 
ion for legislative opinion, the remedy does not lie in the 
recall of judges or in recall of their decisions. On the con- 
trary, the remedy is far simpler, more efficacious, more 
wholesome, less subversive and revolutionary. 

In the first place, compel judges to return to the sound, 
old-fashioned notion that no law may be held unconstitu- 
tional unless it clearly transcends legislative power. It is 
a travesty to assert a law plainly and palpably unconstitu- 
tional which five judges out of a bench of nine consider un- 
constitutional, while the remaining four believe it within 
legislative authority. A statute which three judges out of 
seven or four judges out of nine deem constitutional is 
not plainly and palpably unconstitutional, and no court by any 



loo SELECTED ARTICLES 

vain show of reasoning can make it appear to be so. When- 
ever there is doubt of the validity of a statute, the courts, 
as the late Mr. Justice Harlan of the Supreme Court admir- 
ably said, "must keep their hands off, leaving the legis- 
lature to meet the responsibility for unwise legislation." 

If necessary, I would favor an amendment to every con- 
stitution depriving the judges of power to nullify laws by 
a majorit}^ vote. A constitutional provision might be thus 
formulated: Judges shall have power to declare statutes 
unconstitutional only when they plainly violate an express 
provision of the constitution and then only by unanimous 
or greatly preponderating vote. 

Second, I would so amend the national judiciary law, 
or if necessary the federal constitution, as to permit a 
review in the highest tribunal of the nation of every stat- 
ute involving the due-process-of-law clause, whether the 
statute was upheld or abrogated by the state court. The 
guarantee of due process of law is the same in words — in 
any event it is identical in meaning — in the national and 
the various state constitutions. Had the judiciary act per- 
mitted, the Ives case, which according to the New York 
court of appeals offended against this clause of the state 
and the national constitution, would have been reviewed in 
the United States Supreme Court. With one final tribunal 
to determine whether any statute, state or federal, con- 
flicts with the due-process clause, there will be evolved a 
clear definition of the clause; there will also be harmony in 
decisions. Furthermore, in every case involving this provi- 
sion, attention will be centered upon the court that pos- 
sesses this final authority. The guarantee of due process of 
law may have been distorted and extended far beyond its 
original meaning, as some claim; yet, on the other hand, 
the words of a constitution must be fluid, and no meaning 
once assigned can control the signification of the words if 
new circumstances give them a new meaning. Every in- 
terest which regards its property as unjustly affected, or 
perhaps confiscated, by a statute the purpose of which is 
social improvement, has a right to be heard, but all such 
statutes should be brought to final test before the Supreme 
Court of the United States. That court is to-day more 



RECALL OF JUDGES loi 

progressive than any state court of elected judges — a fact 
that tends to show the fallacy of judicial recall. Judges 
entrenched in office for life, and therefore immune from re- 
call except by impeachment, have been found more favorable 
to legislation designed to secure the popular welfare than 
judges elected and subject to recall at fixed intervals. 

Third, to avoid the danger of the creation of an utterly 
irresponsible bench, I would favor the freest criticism, con- 
sistent with decorum, of judicial decisions and especially 
of judicial conduct, and make impeachment and removabil- 
ity for cause real remedies. Every judge ought to dis- 
charge his duties under the shadow of possible impeach- 
ment. Impeachment could be made a live remedy. Its 
tedious and elaborate processes should be abolished. Let 
a judge be put on trial on the complaint of an association 
of lawyers or of any other responsible city body. No serv- 
ant of the people should enjoy immunity from removal 
for cause. Our political inventiveness is atrophied indeed 
if we cannot devise methods for the fair and expeditious trial 
of judges, without resorting to recall. With proper pub- 
licity judicial removal would rarely be necessary. The 
bar and the public should be stimulated to make all rea- 
sonable complaints so that the record of judges could be 
followed. A judge should be removable not merely for one 
specific offense, but for a generally poor and unsatisfac- 
tory record. 

Annals of the American Academy. 43: 239-77. September, 

1 9 1 2. 

Judicial Recall — A Fallacy Repugnant to Constitutional Gov- 
ernment. Rome G. Brown. 

Without admitting the evils enumerated and assumed 
by the advocates of the judicial recall as a justification and 
final argument for their proposilic>n. I would begin where 
they leave ofif. 1 would assume, for the puri)()se of argu- 
ment, the existence of many of the evils which they re- 
late. I would remind them that the best elements of the 
national state bars are seriously and energetically working 
for practical reforms in legal procedure, in the manner 



102 SELECTED ARTICLES 

of the selection of judges, and in the prevention of de- 
lays and against the miscarriage of justice, and this, 
too, by feasible and constitutional measures and by every 
constructive and really progressive method which can be 
devised; and that the fact that satisfactory remedies have 
not yet been attained, is not the fault of the bench or of 
the bar, whose leaders have for years been urging upon the 
people, through the legislatures, fully formulated and effi- 
cient remedial measures. The fault lies with the people 
themselves, whose direct representatives in the legislatures, 
national and state, refuse properly to consider and act upon 
proposed laws of authenticated and undeniable efficac3^ 
The failure or absence of remedy in no degree constitutes 
a justification for the application of the drastic and sui- 
cidal measures involved in the judicial recall. 

Contrary to the methods of the recall advocates, let 
us bring ourselves back, first, to a consideration of the 
nature and functions of the system to which this untried 
specific has been prescribed. Then let us examine the real 
character of the proposed remedy itself. B}^ no other method 
can its desirability or its efificacy be determined. By no 
such method has it ever been presented by its advocates. 
It will appear that the proposition of the judicial recall, 
whether in the form of the recall of judges or of judicial 
decisions, is not one of remedy for existing evils, but is 
an attack upon constitutional government itself; for it 
strikes at the very ke^^stone upon the stability of whith 
depends our present form, or any form, of constitutional 
government. 

The Nature and Functions of our Constitutional Government 

To discuss comprehensively the questions involved 
would be to repeat and enlarge upon great constitutional 
authorities who have presented in general and in detail the 
growth, nature, and extent of constitutional functions, in- 
cluding those of tihe judiciary. In brief outline let us here 
recall some great demonstrated truths as we examine the 
fallacies of the advocates of the judicial recall in the assump- 
tions which they make as to the nature and functions of 
our constitutional form of government. 



RECALL OF JUDGES 103 

The first and most inexcusable fallacy is the assumption 
that the existence of evils, political, economic, or judicial, 
arising in connection with this or that department of gov- 
ernment is necessarily an indictment of the administration 
of the government, of the particular department, in con- 
nection with which the evils are found to exist, or of the 
government itself. Such assumption disregards the ever- 
present and irremediable element of human imperfection. 
It is not and never can be within the power of man, at any 
stage of civilization, to establish, maintain, and administer 
any institution, governmental, sociological, industrial, or 
otherwise, free or even substantially free from incidental 
oppression, injustice, and inequality, or from sacrifice, to 
some degree, of natural and theoretical rights of person and 
of property. The crudest social compact involves, to a 
greater or less extent, sacrifice. The most perfect form of 
government must involve the same sort of sacrifice and, 
with its human element, also many evils, both those avoid- 
able and those unavoidable,, evils which in their concrete 
application instance injustice, inequality, and even oppres- 
sion. 

The Constitution was established not with the expecta- 
tion of forming a "perfect" union, but a "more perfect" 
union, and to establish — not finally and without exceptional 
failure, but in general, so far as human foresight and ex- 
perience could provide — justice, domestic tranquillity, means 
of common defense, the blessings of liberty to ourselves 
and posterity, and to provide the best means for working 
out, with all the vicissitudes of success and failure, those 
blessings of liberty. Its object was to establish a govern- 
ment which should in the long run, all things considered, 
be most conducive to "promote the general welfare" of the 
people who should live under it. 

That the accomplishment of these purposes is best 
assured by our Constitution is taught by the science of 
government, by experience, and by authority. Gladstone 
characterized our Constitution as "the most wonderful work 
ever struck ofif at a given time by the brain and purpose of 
man." No change in the essential form of government, no 
fundamental constitutional change, can be justified on the 



104 SELECTED ARTICLES 

plea of the existence of unremedied or even irremediable 
evils. As expressed in the words of Lincoln: 

Before entering upon so grave a matter as the destruction 
of our national fabric, with all its benefits, its memories, and its 
hopes, would it not be wise to ascertain precisely why we do it? 
Will you hazard so desperate a step while there is any possibility 
that any portion of the ills you fly froin have no real existence? 
Will you, while the certain ills you fly to are greater than all the 
real ones you fly from — will you risk the commission of so fear- 
ful a mistake? 

Appeals to popular prejudice inducing unrest and dis- 
content at existing evils should be met with distrust. Cla- 
mors for the "rights" of the people shotild be checked with 
a steadfast but more altruistic regard for the preservation 
of the Constitution which was expressly established to safe- 
guard those rights. There should be kept in mind the warn- 
ing of Hamilton when he said: 

A dangerous ambition more often lurks behind the specious 
mask of zeal for the rights of the people than under the forbid- 
den appearance of zeal for the firmness and efficiency of govern- 
ment. History will teach us that the former has found a much 
more certain road to the introduction to depotism than the lat- 
ter, and that of those men who have overturned the liberties of 
republics the greatest number have begun their career by paying 
an obsequious court to the people; commencing demagogues and 
ending tyrants. 

The fundamental fallacy of the judicial recall is the 
assumption that the object of our form of government and 
the goal toward which its administration should work are 
the establishment and promotion of a government directly 
by the people, in which the will of the majority, as expressed 
at the polls, should at all times receive the nearest possible 
immediate response through the machinery of the different 
departments by which the powers of government are 
administered. The assumption is, not merely that ours 
was to be a government generally democratic in form and 
in essence, but that in fact it was intended to be one of 
pure democracy; and that any substantial check or restraint 
upon the responsiveness by governmental departments to 
the will of the people expressed through their majorities 
from time to time are, when shown by experience to be 
real checks and hindrances, imperfections,, and immediate 
or gradual elimination of which should be the chief object 
of any reform movement which is entitled to be denomi- 
nated "progressive." It is the presentation of this fallacy, 
regarding the fundamental object of our system of gov- 



RECALL OF JUDGES 105 

ernment, to the individual voter, whom this fallacy places 
upon a pedestal, as the direct representative of the demo- 
cratic idea of "sovereignty" and whose sovereign rights the 
same fallacy has assumed to have been usurped — it is this 
fallacy which is the root of all the misinformation, misun- 
derstanding, deceit, and illusion which have given the judicial 
recall its seeming popularity. Its falsity, however, is demon- 
strated by even the most superficial consideration of the 
nature and character of our form of government, of the 
functions of its different departments, and of the objects 
and efificiency of our Constitution. 

Our government is a democracy, but it is a constitu- 
tional democracy, and the very object of the constitutional 
feature is to place in the way of the sovereign people those 
limitations, checks; and balances which, while not pre- 
venting enforcement of the will of the sovereign people, 
should insure the wise and deliberate exercise only of wise 
and deliberate, and therefore properly restrained, sovereign 
authority. Its primary object was to prevent the imme- 
diate enforcement of the unrestrained*,, unchecked, and un- 
limited will of the majority, whether expressed at the polls 
or otherwise. Sovereignty invested in a single person or 
in a few, passing, without consideration of other distinc- 
tions, by inheritance, checked only b}'- promises of respect 
for individual rights — promises wrested from the sov- 
ereignty by force of arms, as were those of our Bill of 
Rights from King John at Runnymede; rights, however, 
vouchsafed only by ties of tradition or by precedent — con- 
stituted the tyranny of monarchy, the evils and abuses of 
which, fresh in the minds of our Constitution makers, ren- 
dered it abhorrent to them. 

But, learned in the history of nations and conscious of 
the fate of states subjected to the unrestrained will of the 
people, they saw another danger to be avoided, greater than 
that of the tyranny of monarchy. Our government must 
insure to its people not only the blessings of liberty, not 
only the natural right of dominence by the people as 
sovereign, but it must safeguard forever those blessings 
and rights by a form of government adapted to that pur- 
pose and the stability of which should, as far as human 



io6 SELECTED ARTICLES 

intelligence could provide, be made certain against the 
self-destructive elements inevitably accompanied by an 
absence of proper checks, limitations, and balances, upon 
even the sovereign power of the people. They were not 
satisfied to leave such checks and limitations to rest upon 
precedent and to be presented by analogy or implication 
from the recorded history of events. They must be expressed 
and recorded as the supreme law of the Nation, paramount 
to the will of the sovereign power and to the will of its 
representative governmental departments. In their wisdom 
they saw in this express and written, fundamental and par- 
amount law the only sure and safe protection against the 
dangers of the tyranny of democracy. 

Recognizing the fact that, with further industrial, eco- 
nomical, and social development, the fundamental law thus 
established might not be sufficiently'^ elastic for the necessary 
adaptation, they provided for amendment by a method, slow, 
but not cumbersome, as facile and speedy as could be con- 
sistent with deliberate and well-considered action, and there- 
fore with the necessary safeguards against the results of 
caprice, temporary passion, or prejudice. While exercising 
the greatest wisdom of their times, they bowed wisely and 
consistently to the wisdom of future generations, but only 
to a wisdom which reaches and acts upon sound judgment, 
as their judgments were then pronounced, after dispassion- 
ate contemplation, deliberation, and discussion of facts, 
theory, and precedent. 

The government established is a government ''by the 
people." It is the nearest to a government by majorities 
that can be established consistent with the necessary ele- 
ments of stability and the safeguarding against tyranny, 
which safeguards can only be retained by the constitutional 
checks and limitations upon the exercise of the sovereign 
authority and of the powers of its representative depart- 
ments in the government. Any measure which, like the 
judicial recall, ignores these safeguards or their necessity 
is subversive. 

Daniel Webster said in 1848: 

Whoever says or speaks as if he thought that anybody looks 
to any other source of political power in this country than the 
people must have a strong and wild imagination, for he sees 



RECALL OF JUDGES 107 

nothing but the creations of his own fancv. He stares at phan- 
toms. Let all admit what none deny, that the only source of po- 
litical power in this country is the people. Let us admit that 
they are, sovereign, for they are so; that is to say, the aggregate 
community, the collected will of the people, is sovereign. 

Abraham Lincoln said : 

A majority held in restraint by constitutional checks and lim- 
itations, always changing easily with deliberate changes of pop- 
ular opinion and sentiment, is the only true sovereign of a free 
people. Whoever rejects it does of necessity flv to anarchy 
or despotism. 

Quoting these words from Lincoln, Senator Elihti Root 
at the recent Chicago convention said: 

That covenant (the Bill of Rights) between power and weak- 
ness is the chief basis of American prosperity, American progress, 
and American liberty. ♦ * * 

We know that there is no safe course in the life of men or 
of nations except to establish and to follow declared principles 
of conduct. There is a divine principle of justice which men can 
not make or unmake, which is above all governments, above all 
legislation, above all majorities. The limitations upon arbitrarv 
power, and the prohibitions of the Bill of Rights which protect 
liberty and insure justice, can not be enforced except through the 
determinations of an independent and courageous judiciary. * * ♦ 

So the three departments, the executive, legislative, and 
judicial, were established, each separate from and inde- 
pendent of the others. No changing whim of the people 
could, even in two years, change the entire legislature repre- 
sentation, for the Senate could not be entirely changed 
except after six years. It vested in the legislative depart- 
ment certain specific powers and expressly prohibited the 
exercise of other powers by either the federal or the state 
governments, expressly reserving to the states respectively, 
or to the people, all powers not so expressly delegated to 
the United States nor prohibited to the states. In order 
to avoid the oppression of the tyranny of undeliberate or 
capricious actions by the sovereign people, it was directly 
and expressly provided in section 9, Article I, against the 
suspending of the privilege of the writ of habeas corpus 
and the passing of bills of attainder or ex post facto laws, 
against the levying of disproportionate taxes and of duties 
upon articles exported between these states; prohibiting any 
state from enforcing any law impairing the obligation of 
contracts and from levying any impost or duty. 

And, later by amendments, the same stipreme law prohib- 
ited the Congress from interfering with the establishment 
and free exercise of religion, with freedom of speech, and 



1 



io8 SELECTED ARTICLES 

of the press, or the right of people peaceably to assemble 
and to petition for redress of grievances; against the quar- 
tering of soldiers in any house without the consent of 
the owner, the violation of the security of person and prop- 
erty against unreasonable searches and seizures without 
warrants properly verified and issued, depriving any person 
of his life, liberty, or property without due process of law, 
and the taking of private property for public use without 
compensation; and insuring the right of trial by a jury for 
criminal prosecutions and the protection of the accused 
against arbitrary and illegal punishment, the prohibition of 
excess bail, of excessive fines and cruel punishments; the 
prohibition of slavery or involuntary servitude at any place 
within the jurisdiction of the United States; and further 
prohibiting any state from making or enforcing any laws 
which shall abridge the privileges or immunities of citizens 
of the United States, or which shall deprive any person of 
his life, liberty, or property without due process of law, 
or from denying to any person within its jurisdiction the 
equal protection of the law; and prohibiting either the 
United States or any state from denying or abridging the 
rights of citizens on account of race, color, or previous con- 
dition of servitude. 

These are some of the limitations placed upon the legis- 
lative powers of the people in the federal Constitution, as 
similar limitations have been placed in all state constitu- 
tions, for the very reason that the judgment and discretion 
of the people could not at all times, and without restraint 
and limitations, be relied upon, especially in times of agita- 
tion and in times of political or economic crisis. The neces- 
sary safeguards could be insured only by these express 
limitations upon the power of the sovereign people to legis- 
late, and upon the privilege of the people to have legislation 
enforced. 

The functions, powers, and duties of the executive de- 
partment and of its members were set forth and limited 
by express provisions. 

By the same constitution, as by similar provisions in all 
state constitutions, tliere was also established a third depart- 
ment of government, the judicial, with certain express origi- 



RECALL OF JUDGES 



Tog 



iial jurisdiction and with such appellate jurisdiction, both 

as to law and fact, as should be provided by the legislative 

department. And by the same instrument it was provided 

(Art. VI) that: 

This Constitution * * * shall be the supreme law of the land; 
and the judg^es in every State shall be bound thereby, anything 
in the constitution or laws of any State to the contrary nuUyith- 
standing. 

And linally, it was expressly provided (Art. VI) that: 
The Senators and Representatives before mentioned, and tlie 
members of the several state legislatures and all executiye and 
judicial officers, both of the United States and of the several 
states, shall be bound by oath or affirmation to support this Con- 
stitution. 

Such are the nature, purpose, and effect of the provisions 
defining the functions of our constitutional goevrnment; 
and it is in respect to these and similar provisions that it 
differs upon the one hand from a monarchy and upon the 
other hand from a pure democracy. While it is a govern- 
ment by the people, it is a government of checks upon the 
unrestrained exercise of sovereign authority. 

Washington recognized the impracticability of a pure 
democracy and of the necessity in any form of government 
of restraint upon the exercise of the will of majorities. "It 
is on great occasions only." he said, "and after time has 
been given for counsel and deliberate reflection, that the 
real voice of the people can be known." 

Aladison said in the Federalist: 

A pure democracy can admit of no cure for the mischiefs of 
factions. A common passion of interest will in almost every case 
be felt by a majority of the whole. A communication and concert 
result from the form of government itself, and there is nothing to 
check the inducement to sacrifice the weaker party or any ob- 
noxious individual. Hence it is that such democracies ha\e ever 
been spectacles of turbulence. Their conditions have ever been 
found incompatible with personal security or the rights of prop- 
erty, and have in general been short in their lives as they have 
been violent in their deaths. Theoretical politicans who have 
patronized this species of government have erroneously sup- 
posed that by reducing mankind to a perfect equality in their 
political rights they would at the same time be perfectly equal- 
ized and assimilated in their possessions and opinions and their 
passions. 

Lecky, in his Democracy and Liberty, says: 

One thing is absolutely essential to its safe working, namel.v, 
a written constitution securing property and contracts; placing 
difficulties in the way of org-anic change; restricting the power 
of the majorities; and preventing outbursts of mere temporar.v 
discontent and mere casual conditions from overttirning the main 
pillars of the state. 

The Federal Supreme Court, speaking through Chief 



no SELECTED ARTICLES 

Justice Fuller, after quoting from Webster's argument in 

the Rhode Island case, said in the case of In re Duncan 

(139 U. S., 449, 461): 

By the Constitution, a republican form of g-overnment is guar- 
anteed to every State in the Union, and the distinguishing feature 
of that form is the right of the people to choose their own officers 
for governmental administration, and pass their own laws in 
virtue of the legislative power reposed in representative bodies, 
whose legitimate acts may be said to be those of the people them- 
selves; but, while the people are thus the source of political 
power, their governments, national and State, have been limited 
by written constitutions, and they have themselves thereby set 
bounds to their own power, as against the sudden impulses of 
mere majorities. 

These are some of the considerations by w^hich is dem- 
onstrated the fallacy of pure democracy, or the fallacy of 
direct adjudication of constitutional questions by popular 
vote. 

Another distinct but in many respects correlated fallacy 
indulged in by the advocates of the judicial recall is in 
respect to the nature and propriety of the powers of the 
judiciary. Where the evident functions of the court are 
admitted, their exercise even within constitutional limits, 
is criticized as unwarranted and arbitrary; and the very 
existence of such powers is made the object of denunciation. 

The less shrewd, the more ingenuous and frank advocate, 
the typical advocate, of the judicial recall carries his fallacy 
to the extent of an assumption and express statement that 
the course, having originally been established as a useful, if 
not necessar3'', department of government, have actually 
usurped powers and functions in no wise originally intended 
for them; that they have arbitrarily and without constitu- 
tional warrant arrogated to themselves a sort of final des- 
potism, inconsistent with all proper theories of our form of 
government, and have asserted by gradual usurpation a sort 
of sovereignty of their own at war with the real sovereignty 
of the people. It is by such usurpation, it is claimed, that 
the courts now exercise the power to declare invalid and un- 
enforceable statutes found repugnant to constitutional pro- 
visions. It is asserted that these usurped powers should 
be taken away by other, and, as it is said, perhaps similar 
arbitrary methods defying all constitutional considerations; 
so that thus there may be recovered to the people them- 
selves the powers which have been insidiously but wrong- 



RECALL OF JUDGES m 

fully wrested from them. This fallacy persists, from the 
covert misleading attacks made upon our constitution 
through comparison with unconstitutional systems of mon- 
archy or democracy, systems impossible for us, to the open, 
unqualified denunciation of our entire system of government 
and of its Constitution, and the open charge, as the basis 
of the argument for the judicial recall, that the judiciary have 
stolen, by gradual unconstitutional encroachment and usur- 
pation, the real sovereignty which was intended to rest at 
all times and under all circumstances directly with the peo- 
ple. 

Let us, who as citizens have sworn to support our Con- 
stitution and our government and laws under that Constitu- 
tion, and who, respecting our oaths, insist that changes in 
government, or in the administration thereof, shall ^ be 
brought about only through constitutional methods, consider 
for a moment the consitutional functions of the judiciary 
and the necessity of the preservation of these functions, 
and particularly of its independence. 

The necessity of constitutional limitations as essential to 
the efficiency and stability of our form of government has 
been shown. But these limitations and restraints could not 
be enforced, except through a judicial department, and it 
was for that purpose primarily that the judicial department 
was established. It was upon the courts under our system 
of government that the only ultimate reliance could be 
placed to safeguard and enforce the constitutional limita- 
tions expressly placed upon the sovereign power of the 
people. It was expressly made the duty of the federal and 
of the state courts to observe this fundamental law as the 
supreme law of the land; this is the duty which has been 
performed by the federal and state courts, and it is by the 
performance of this function that our constitutional gov- 
ernment as been preserved. This duty included the power 
of the courts to declare invalid any statute if repugnant to 
constitutional provisions. That this duty and power were 
originally imposed upon the courts as an essential feature 
of the new form of government and is in no degree a usurpa- 
tion or afterthought is shown by the fact that^ the delibera- 
tions of the constitutional convention at all times assumed 



112 SELECTED ARTICLES 

such power to be intended for the judiciar3^ That it was 
so understod by the several states in ratifying the Constitu- 
tion is shown by the fact that the existence of this very 
power in the judiciary was everywhere urged upon the 
states as the great safeguarding provision which, as -against 
all the timorous feeling of uncertainty, should make them 
assured of the safety and efficiency of the new Constitution 
and act as a compelling reason for its unanimous adoption. 
Ellsworth, on January 7, 1788, urging the ratification of the 
Constitution upon the Connecticut convention, said: 

If the g-eneral legislature should at any time overleap their 
limits, the judicial department is a constitutional check. If the 
United States go beyond their powers, if they make a law which 
the Constitution does not authorize, it is void; aJid the judicial 
power, the national judges, who to secure their impartiality are 
to be made independent, will declare it to be void. On the other 
hand, if the states go beyond their limits, if they make a law 
which is a usurpation upon the federal government, the law is 
void; and upright independent judges will declare it so. 

So ^t the same period Hamilton was urging in the Fed- 
eralist: 

There is no liberty where the power of judging be not separ- 
ate from the legislative and executive power. * * * The complete 
independence of the courts of justice is peculiarly essential in a 
limited constitution. * * * Limitations of this kind can be pre- 
served in practice no other way than through the medium of 
courts of justice, whose duty it must be to declare all acts con- 
trary to the commands of the Constitution void. 

So Chief Justice IMarshall, in the case of Marbury v. 
Madison (i Cranch, 368, 388), summarizes the constitutional 
provisions including those making it the supreme law of 
the land and binding upon all courts, federal and state, and 
requiring all judges to swear to its support and the require- 
ment by the yet sovereign people, through their legislatures, 
of an oath by every judge that he "will faithfully and impar- 
tially discharge" all the duties incumbent upon him accord- 
ing to the best of his abilities and understanding, "agreeably 
to the Constitution and laws of the United States"; and he 
demonstrates that the power and duty of the courts to 
declare invalid unconstitutional statutes are imposed not 
only by necessary implication but by express provision. He 
said: 

This original and supreme will [the people] organizes the gov- 
ernment and assigns to different departments their respective 
powers. It may either stop here or establish certain limits not 
to be transcended by those departments. 

The government of the United States is of the latter descrip- 
tion. The powers of the legislature are defined and limited: and 
that those limits may not be mistaken or forgotten the Constitu- 



RECALL OF JUDGES 113 

tion is written. To what purpose are powers limited, and to what 
purpose is that limitation committed to writing, if these limits 
may, at any time, be passed by those intended to be restrained? 
The distinction between a government with limited and unlimited 
powers is abolished if those limits do not confine the persons on 
whom they are imposed, and if acts prohibited and acts allowed 
are of equal obligation. It is a proposition too plain to be con- 
tested [either] that the Constitution controls any legislative act 
repugnant to it or that the legislature may alter the Constitu- 
tion by an ordinary act. 

Between these alternatives there is no middle ground. The 
Constitution is either a superior paramount law, unchangeable by 
ordinary means, or it is on a level with ordinary legislative acts, 
and, like other acts, is alterable when the legislature shall please 
to alter it. 

If the former part of the alternative be true, then a legis- 
lative act contrary to the Constitution is not law. If the latter 
part be true, then written constitutions are absurd attempts on 
the part of the people to limit a power in its own nature illimit- 
able. 

Proposed Roiicdy of Judicial Recall Analysed 

In order properly to perform these functions the element 
of independence is absolutely essential. Without the qual- 
ity of absolute independence the judicial department becomes 
a mere reflector of public opinion, constantly changing 
with the temporary whims, passions, and prejudices of the 
majority. 

It was the better to preserve the independence of the 
judiciary that the tenure of office during good behavior was 
advocated and adopted. Eighty-seven years before the 
adoption of our Constitution the King of England had the 
arbitrary power of unseating a judge; but that power was 
taken away by the act of settlement, which secured to the 
judges their tenure of office during good behavior, subject 
only to impeachment by Parliament. In so much did the 
act of settlement make the government of England take 
on a feature republican in form, for the power of removal 
of judges was given to the representatives of the people, 
not to the people themselves directly, but to the Parliament 
which was given the duty to hear, try, and determine, and 
which was a body so constituted that it could perform that 
function. 

So, in advocating the constitution and the good-behavior 
tenure, Hamilton, said: 

The complete independence of the courts of justice is peculiar- 
ly essential in a limited constitution. By a limited constitution I 
understand one which contains certain specified exceptions to the 
legislative authority; such, for instance, as that it shall pass no 



114 SELECTED ARTICLES 

bills of attainder, no ex post facto laws, and the like. Limitations 
of this kind can be preserved in practice in no other way than 
through the medium of courts of justice, whose duty it must be 
to declare all acts contrary to the manifest tenor of the Con- 
stitution void. Without this all the reservation of particular 
rights or privileges would amount to nothing. 

This independence of the judges is equally requisite to guard 
the Constitution and the rights of individuals from the effects of 
those ill humors W'hich the arts of designing men or the influence 
of particular conjectures sometimes disseminate among the people 
themselves and which, though they speedily give place to better 
information and more deliberate reflection, have a tendency in 
the meantime to occasion dangerous innovations in the govern- 
ment and serious oppressions of the minor party in the community. 

In order to avoid the danger of subserviency by reason 

of short term elections, the Massachusetts constitution, as 

late as 1870, provided for tenure of office for judges during 

good behavior, subject to removal by impeachment. As stated 

m that constitution: 

It is essential to the preservation of the rights of every indi- 
vidual, his life, liberty, property, chai-acter, and that there be an 
impartial interpretation of the laws and administration of justice. 
It is the right of every citizen to be tried by judges as free, 
impartial, and independent as the lot of humanity will admit. It 
is therefore not only the best policy but for the security of the 
rights of the people and of every citizen that the judges of the 
Supreme Judicial Court should hold their offices as long as they 
behave themselves well. 

It necessarily follou^s that any measure of reform is ob- 
noxious and unwise in so far as it is antagonistic to these 
basic principles of our form of government. Any measure 
which is directly repugnant to these principles is not only 
inexpedient, but absolutely indefensible. Such is the char- 
acter of the judicial recall, whether proposed in the form of 
the recall of jtidges or of judicial decisions. The judicial 
recall is not remedial, but baneful in its nature. It is not 
either constructive or progressive, but is destructive and 
reactionary. 

It is not necessary to defend other methods of removal 
of judges nor to discuss reform measures by w.hich the 
method of Removal by impeachment may be made more 
efficient. The removal by address of the legislature or by 
impeachment in\Dlves the constitutional elements of a notice 
to the accused, an opportunity for hearing, a hearing upon 
the facts and upon the law, and an adjudication in accord- 
ance with the fundamental constitutional principles protect- 
ing the rights of every person accused of an offense. The 
recall is not only devoid of all of these constitutional ele- 



RECALL OF JUDGES 115 

ments, but involves all the vices against which these fun- 
damental protective features were intended. Even if the 
causes for recall were expressly confined to misfeasance, 
and malfeasance, and even if specific charges should be re- 
quired, how could it be possible for a proper or sufficient 
notice to be given to the accused in the limited space of 
200 words? • 

Suppose the charge be one of incorrectness in a decision 
involving questions of fact and law, how could a defense 
to such a charge be made in the same limited space? And, 
even if issues of fact and law were sufficiently framed, what 
guaranty is there that any of the adjudicators — that is, the 
voters — who finalh^ pass upon the issues, shall consider 
these or any issues? The result must be that the very 
bringing of an indictment by the filing of a recall petition 
s'hall be taken by a large number, and perhaps by a major- 
ity, as of itself sufficient proof that a change is desirable. 
There can be no hearing except by public clamor and upon 
statements, however false, which are spread broadcast by 
newspaper and by pamphlet and by rumor, without the 
slightest pretense of verification even by any form of oath. 
At the very best it involves a "trial" upon mere hue and 
cry, and a decision upon complicated and important issues 
by the mere arbitrary dictum of a misinformed and preju- 
diced populace. 

But, as to the recall of judges, we are not without 
experience; and the history of its attempted application fur- 
ther demonstrates its vice. It has been attempted to be 
justified b}'' the claim that in Oregon, for instance, where 
it has been in force for four years, no abuse of the privilege 
has arisen and no judge has actually been recalled. But 
the strongest indictment against the recall comes from its 
advocates, or its apologists, who instance its application in 
Oregon and other States. 

While no actual recall of a judge has been obtained in 
Oregon, attempts at judicial recall have been made, and 
undoubtedly other and successful attempts would have been 
made had it not been for the supposed necessity for further 
legislative action in order to make it effective. An uncom- 
pleted attempt at recall was made against a circuit judge 



ii6 SELECTED ARTICLES 

because he sustained as legal the provisions of a city char- 
ter allowing the sale of intoxicants. The crucial instance 
of the application of the judicial recall in Oregon is that 
instituted against Circuit Judge Coke, who, upon the trial 
of one McClellan for the murder of a well-known citizen of 
Roseburg, instructed the jur}^ that if they found certain 
facts, of which, there was evidence favoring the defense, 
such facts would sustain the claim of self-defense and there- 
fore of justifiable homicide. The instructions of the judge 
were exactly, in terms and in principle, in accordance with 
the law expressly stated b}^ the Supreme Court of Oregon 
in another somewhat similar case. Their correctness is 
scarcely debatable from a lawyer's standpoint. The jury 
found the facts as claimed by the defense, and, following 
the instructions of the court, acquitted IMcClellan. Local 
passion and prejudice against the defendant had been excited 
to the point of demanding conviction and were turned 
against the judge, whose fairness and judicial qualities had 
never before been questioned. A recall petition was in- 
stituted and objection was made to the nature of the 200- 
word charge as not being sufficient!}^ specific to allow proper 
answer. The Attorney General held that under the law the 
charge need not be specific and that it might, as in that 
case, consist of merely a series of epithets applied to the 
judge complained of, as "incompetent," "unfair," and the 
like. 

It is admitted by candid advocates that these abuses of 
the recall are inevitable and irremediable and that it is never 
possible to determine whether an official has been thereb}'' 
deposed upon grounds asserted in the recall petition or 
others reall}- the basis of the demand for the recall; for at 
election he must satisfactorily justif}' his entire official con- 
duct and compete with the political ambition of other can- 
didates precommitted upon any of the judicial questions 
at issue, and he must, at the same time, face personal oppo- 
sition at a time when it has been brought to its most viru- 
lent pitch against him and in the midst of greatest feeling 
of discontent, passion, or prejudice induced by ignorance, 
calumny, and willful machinations. It is admitted also that, 
as against possible influence in some cases of a salutary 



RECALL OF JUDGP:S 117 

nature, there are many palpable instances where the very 
possibility of a recall has caused obvious "sins of omission" 
on the part of officials who refrain from enforcing the law, 
as they would otherwise, for the fear of a recall. For- 
mer advocates of the recall now admit that the representa- 
tive and important factors of the recall, and particularly of 
the recall of judges, are caprice of the public, immaterial 
and extraneous issues, politics, personal revenge, and delib- 
erate misrepresentation. One Oregon writer, referring to 

the position of a judge in that state, say> : 

It is unjust, it is degrading, it is inimical to his independence 
that he should be compelled to defend his acts or politics or* de- 
cisions with one hand and combat political ambition and personal 
popularity of candidates who may oppose him with the other. 



Yale Law Journal. 22: 1-18. November, 1912. 

Independence of the Judiciar\- the Safeguard of Free Insti- 
tutions. William B. Ilornblower. 

It is urged that men are frequently chosen for the bench 
who are incompetent, inefficient, or even corrupt: that the 
remedy by impeachment for the removal of a judge found 
to be incompetent, inefficient, or corrupt, is grossly inade- 
quate; that where a judge is found to be incompetent, ineffi- 
cient, or corrupt the people whose servant he is should have 
the right to summarily remove him without the formality 
of a trial and to substitute in his place a better man. This 
sounds plausible, but to anyone w)ho is familiar with the 
working of our judicial system, the fallacy of this argument 
will be apparent if he stops to give it full consideration. 

So far as concerns the question of incompetency or 
inefficiency this is a matter for difference of opinion. What 
constitutes incompetency or inefficiency? Every defeated 
litigant considers the judge who decides against him to be 
incompetent and inefficient, and in this opinion 'he is fre- 
quently encouraged by his counsel who is temporarily 
smarting under what he considers an undeserved defeat. 
The question of the competency or efficiency of a judge 
is one to be determined by a careful consideration of his 
judicial decisions as a whole. To have the question of the 



ii8 SELECTED ARTICLES 

competency or efficiency of a judge passed upon by popular 
vote is as irrational as it would be to have the competency 
or efficiency of a physician passed upon by popular vote. 
How are the people to determine whether the judge whose 
recall is proposed is really inefficient or incompetent? It 
is easy to allege inefficiency or incompetency, but opinions 
will differ as to whether a particular judge is or is not ineffi- 
cient or incompetent. 

When we come to the question of corruption, the injus- 
tice of having such charges passed upon by popular vote 
aftej a heated campaign with violent harangues by popular 
orators without any legal proof of the charges is manifest. 
To have the honesty or dishonesty of a judge determined 
by the effect of stump speeches upon the platform, by 
loose declamations and unsworn statements of interested 
parties without any opportunity for careful examination, is 
to subject a judge to an indignit}^ and a possible injustice 
which may blast his reputation for a lifetime. How often 
have we heard disgruntled clients, or even indignant law- 
yers, complain that a judge has been bought or improperly 
influenced to render adverse decisions when we are confi- 
dent that such charges are absolutely unfounded, and are 
the product of an over-heated imagination resulting from 
the bitterness of defeat in a hard-fought litigation! 

The recall will furnish a ready weapon for party war- 
fare upon the judges. Republican judges may be voted out 
and Democratic judges voted in and vice versa, whenever 
the shifting popular majority shall change from one party 
to the other. 

Certainly as a method of improving the personnel of the 
judges, the method of subjecting them to the indignity of a 
recall whenever any defeated litigant can persuade a major- 
ity of the voters that a judge is incompetent or inefficient 
or corrupt is the worst possible method. To force a judge 
against whom such charges are made to take the stump 
and defend himself in public while still on the bench would 
make his position as a judge intolerable to himself and 
worse than useless to the public. 

It is difficult enough already, especially in our larger 
cities, to induce the ablest and most successful members 



RECALL OF JUDGES 119 

of the bar to forgo the honors and pecuniary rewards of 
the bar for the labors and the smaller compensation of the 
bench. If the position of the judge is to become subject 
to the indignity of a possible recall, it is hard to see what 
inducement there would be to a successful practitioner to 
incur the risk of such indignity. 

Moreover, the futility of the scheme for judicial recall 
as a remedy for existing evils, real or imaginary, is apparent. 
The advocates of recall overlook the fact that the success- 
ors of these incompetent, unefticient, or corrupt judges are 
to be selected by the voters of the very same constituency 
which is responsible for the election of the incompetent or 
inefficient or corrupt men who are to be recalled, and the 
identical political bosses, or conventions, or primaries, which 
selected the recall judges are to select their successors. We 
are thus traveling in a vicious circle. Elect incompetent, in- 
efficient, corrupt men, recall them and elect voters in their 
place to be again recalled and voters again to be elected in 
their place by the same constituency and same methods. 

It needs no prophet to foresee what the effect might 
be upon the mind of the judge where on the one side was 
a litigant with powerful political influence, and on the other 
side an individual contending for his rights against such 
influence. So, where an individual is contending for his 
rights or his alleged rights against the interests or supposed 
interests of the community in which he lives, or against a 
strong popular prejudice, how can any but an exception- 
ally strongminded judge be expected to hold the scales of 
justice even? Our ideal of a judge as we heretofore under- 
stood it is that of a judge absolutely fearless, knowing no 
friend or foe, knowing neither majority nor minority, 
know^ing neither rich nor ipoor, fearing no man and no 
body of men. We have heretofore endeavored to cultivate 
his ideal by giving a judge a fixed term of office during 
which he can be removed only for cause and after an 
opportunity to be heard in his own defense by a competent 
tribunal. If we substitute for this ideal a judge who may at 
any moment be recalled by reason of an unpo<pular decision, 
the tendency is to have a judge constantly listening for a 
wave of public opinion with his ear "to the ground" or 



120 SELECTED ARTICLES 

eager to curry favor with the bosses who control the nom- 
inations and who can incite the voters to the exercise of 
their special power of recall. I do not irnean of course to 
say that every judge would be of this character or that the 
standard of judicial independence and integrity would be 
immediately disturbed, but I do say that the tendency and 
the constantly accelerating tendency would be to substitute 
for the fearless and independent judge a spineless, flabby, 
cowardly judge, a reed shaken by the wind. 

But it is said that our entire administration of justice in 
this country is full of technicalities and dela3^s and that this 
constitutes an excuse, if not a justification, for the present 
distrust of the judiciary and the present agitation for some 
such rough and ready remedy as judicial recall. It must of 
course be admitted that many of the criticisms of our judi- 
cial system and of the administration of justice are well 
taken. I do not admit, however, that there is any special 
force in these objections when directed against the courts 
of the present day as compared with the courts of any pre- 
vious date. Indeed, I am inclined to think that the courts 
of to-day are less technical and less disposed to sacrifice 
substance to form and to sacrifice justice to method of prac- 
tice than at any previous period in the history of our coun- 
try. 

Comparisons between the methods of administering jus- 
tice in this country and those which are prevalent in Eng- 
land are misleading. Extreme instances are cited from one 
or another of our 48 states, and these extreme instances 
are compared with the average course of justice in Great 
Britain. If, however, we take the states by themselves and 
compare one with another and compare the generality of the 
states with the courts of Great Britain we should find a very 
different story. 

Central Law Journal. 75: 44-5. July 12, 1912. 

Recall of Judges — A Warning. Wendell P. Stafford. 

The argument for the recall assumes that judges are 
only agents of the majority, and easily reaches the conclu- 
sion that when the agent fails to satisfy his principal he may 



RECALL OF JUDGES 121 

rightly be recalled. That fallacy in the argument is in the 
assumption that the judge is an agent. He is not an agent 
in any proper sense of that word. He is not the agent of 
either party to a cause. He is not even the agent of both 
parties. If his duty were to trade and compromise between 
them he might be considered the agent of both. But that 
is not his duty. His duty is to decide; it is not for him 
to please, nor seek to please, either party. It is his duty 
to decide the question between them as the law and the 
evidence may require. 



Academy of Political Science (N. Y.). Proceedings. 3: 163-4. 

January, 1913. 

Selection and Removal of Judges. Edward D. Page. 

The only other point on which the advocacy of this 
remedy seems to be founded is that it would be an educa- 
tion for the people to be obliged to discuss and determine 
for themselves the decisions of law with which they may 
be dissatisfied. Is it not rather a large undertaking for the 
people at large to gain the necessary knowledge to inform 
their judgment so that thej'^ may intelligently express opin- 
ions about matters such as those who advocate the recall 
of decisions would put before them? I think most peo- 
ple would rather not have such a responsibility put upon 
them, and I think that the real reason why there is now 
so little interest in the election of judges is that the voters 
realize that they do not possess the information neces- 
sary for them to express an intelligent opinion. They are, 
therefore, content to leave the matter in the hands of the 
men who make the nominations, following them because 
they have better judgment as to the qualifications of a 
judge. I think whenever you present a question which peo- 
ple know is beyond their judgment they will tend to rely 
on someone else, and if the boss seems the handiest man, 
they will naturally follow him. They certainly will follow 
the district leader, and he is always for the "ticket." 

It is a fallacy to believe that the recall is a new ques- 
tion. There was a dcmocracv in Athens, wlicre the recall 



122 SELECTED ARTICLES 

of the judges prevailed. Was it not Aristides who, when 
the question of his recall was being voted on, sat beside 
the urn where the voters were casting their votes, and, 
asking a man w^ho voted to ostracize him, "Do you know 
this Aristides?" got the answ^er, "No, but I am tired of hear- 
ing him called 'the Just.' " Socrates also was obliged to 
suffer the recall and to drink the hemlock because of the 
vague popular opinion against him. How can people who 
cannot possibl}- inform themselves be expected to express 
an opinion intelligently on such subjects? Are we ready 
as a democracy to present these questions to the whole 
body of voters? Can we trust a majority of them, no mat- 
ter how much we believe in "the people," to express opin- 
ions intelligentl}' on subjects on which they cannot be in- 
formed? Are we not going rather rapidly with political 
experiment when we expect the mass of the people, as in 
Oregon, to read and digest a book of two hundred and 
fifty pages before they can express an opinion on the ques- 
tions at issue in a single election? Are we ready to ad- 
vocate that state of affairs, and may we not, in our zeal 
for democracy, destroy democracy by its own excess? 

Annals of the American Academy. 43: 278-85. September, 

1912. 

Dangers That Lurk in the Recall of the Judiciary. James 

A. Metcalf. 

It is eminently right and proper that popular discussion 
and expression of preference should have its effect upon the 
courts; and it does to a very great extent. But these great 
problems, with their infinity of detail and ramifications of 
principles, are not proper subjects for superficial or popular 
determination. The public mind, awakened to a full moral 
consciousness, grasps the great principle of things in its 
superficial entiret3^ but is lost in the intricacy of its legal 
complexit}'. The people know what they want, and should 
have it; but the consideration of orderly procedure is of 
paramount importance. Some will doubtless say, at this 
point: "Abolish the complexity of the law entirely. Bring 



RECALL OF JUDGES 123 

it within the comprehension of the laity. The intricacy of 
the law is the very thing that gives it the character of a 
maze, within which the artful attorney wanders at will to 
the subserving of special interests, while the rights of the 
people get wholly and hopelessly lost." 

There seems to be much justice in this complaint. If 
directed to a right remedy, its insistence cannot be denied. 
But its misdirected gaze loses sight of the fact that the 
body of the law is not an arbitrary arrangement of set rules 
and forms, which can be turned or twisted at will, or wiped 
out of existence and replaced by others in a moment of 
time. The judicial system is a part of the bone and sinew 
of the nation. The lines of the law are inextricably inter- 
woven with the very network of civilization. The law has 
grown as the world has grown. It has developed just as 
fast as human intelligence has expanded. It is wholly insep- 
arable from the web and woof of civil government. When 
the law weakens, liberty totters to its fall. 

The very complexity of the law is of inherent necessity. 
Its every principle is a mile-post on the arduous ascent out 
of the valley of ignorance and superstition to the sunlit 
mountain-top of enfranchised intellect. Its every phase re- 
flects the light of some victorious battle fought in the name 
of human happiness. Its every development marks a new 
step in the progress of mankind; and yet the old tenets 
must be retained, the precedents must be preserved, because 
human nature in the ultimate does not change with the 
passing of time, and every just decision of the courts must 
prove its consistency and authenticity by adherence to the 
principles that have been developed and perfected through 
countless racial struggles, out of which man has grown up- 
ward toward the perfect stature of divinity. 

Certain well-defined principles of jurisprudence, when in 
action, are not necessarily then and there traced to their 
origin, nor obliged to travel wearily backward through ages 
of history in order to fetch forward their credentials. They 
have been such frequent visitors to the courts as to become 
well known. Yet each must be ready at all times to stand 
the test of conformity with practice and precedent, and to 



124 SELECTED ARTICLES 

survive a rigid application of all the rules of the common 
and statutory law. 

How utterly vain to hope or expect that these infinite 
details, which provide a task of impossible comprehension 
even in a lifetime of exclusive study and research, should 
be brought immediately within the popular understanding. 
And if the people cannot comprehend and follow the full 
workings of the law, they are certainly not qualified to 
criticise the individual decisions of the courts, nor to declare 
the rightful deposition of the just or unjust judge who 
offends, as the case may be. 

However, we must make an exception here, and must 
distinguish between the existence or survival of a law and 
its application to some particular state of facts or circum- 
stances. The right to say what the law shall be resides 
solely in the people; the function of its application to each 
separate case belongs to the courts. The people, exercising 
the power of popular government, make the yardstick of 
the law; the courts will do the measuring, but must not 
change the unit of measurement. The distinction seems to 
be clear, unequivocal, thoroughly just and founded upon a 
proper conception of representative government. 



American Bar Association. Report of the Committee to Op- 
pose the Recall of Judges, 1912. 

We hear much complaint about the courts declaring 
laws unconstitutional, and undoubtedly there have been 
cases where courts have taken too narrow a view and have 
declared unconstitutional laws which have been in the inter- 
est of public advancement, but these are incidents of any 
system of government, and we should bend our energies to 
correct the abuses rather than to destroy the system. The 
very foundation of our structure of government is an impar- 
tial judiciary to construe and enforce the provisions of the 
constitution made for the protection of personal liberty and 
property. By no other means can a constitutional govern- 
ment be maintained. Of w^hat value or benefit to the people 
are limitations upon the power of legislatures, or the major- 



RECALL OF JUDGES 125 

ity of the people, if the majority may at any time violate 
them without a department of the government to stay its 
hands? To continue the efificiency of our form of govern- 
ment, it is necessary to maintain the independence and integ- 
rity of each branch, the executive, the legislative and the 
judicial. The independence of the judiciary is of the great- 
est importance because, of ne.cessity, they are called upon 
to pass upon the acts of the other two branches. 

The application of the recall to an ordinary ofificial may 
be a question of expediency, but it is not fundamentally 
wrong. To apply it to the judiciary is in violation of those 
principles of government which ages of experience have 
demonstrated to be wise. Tn the states and in the federal 
government we have the right of impeachment, and in several 
of the states the right of removal of a judge by the legisla- 
ture. If the right of impeachment is not sufficient, an 
adequate remedy can be created for the removal for con- 
duct inconsistent wnth his office after complaint and an 
opportunity to be heard in his defense. In this way the 
independence of the judiciary is maintained, and a judge is 
removed simply for incapacity or misconduct in office, after 
having the charges made known to him and an opportunity 
to vindicate his honor. 

Your committee will not consider in this report any par- 
ticular law applying the recall to the judiciary, because, if 
the principle of recall could be applied with safety to the 
judiciary, defects in the forms of laws might be remedied, 
but the principle we believe to be dangerous and objection- 
able and subversive of good government. In any such sys- 
tem the judge is not recalled simply because of misconduct 
in office — for this may be accomplished by impeachment or 
removal after an opportunity to be heard — but because his 
decisions do not meet with popular approval. Stop for a 
moment and think of the situation where a judge is passing 
upon some question of the construction of the constitution, 
the power of the legislature to pass some law, or some execu- 
tive act which is challenged as being in violation of the 
fundamental law of the land, and because he may hax'c the 
courage to decide against what for the moment may be the 
popular view, the correctness of his legal judgment may be 



126 SELECTED ARTICLES 

tried in the uncertain tribunal of an election; that when a 
judge charges a jury or pronounces a judgment of the law 
between man and man it may be practically revised by the 
electors of his district. In our judgment such a course is 
but little short of submitting legal questions and the con- 
stitutional rights of the citizen to a vote of the people. 

The question is not what should the constitution be — 
the people may change that — but shall the citizen be entitled 
to the protection of the constitution which has been adopted 
and remains unchanged? It is perfectly idle to say that 
this system would not take from the judiciary its self-reliance 
and self-respect. It is said that the judges should be sub- 
servient to the popular will. We do not deny that the judges 
should be alive to the great principles of human progress 
and development of government — that is one thing — but to 
decide from time to time what the popular will may demand 
is another thing. If the popular will or the will of the 
majority itself, suddenly expressed, is to be the absolute 
law of the land, why protect the people by constitutional 
provisions which mark down the limit of legislative and 
executive power? Why not leave it to the popular will as 
expressed from time to time? 

Again, under the system of judicial recall, there is no 
possible way of insuring to the judge a trial by popular vote 
upon the issue thus raised. There is no evidence introduced, 
no rules which the experience of ages has found necessary 
to the determination of issues, but the voter may cast his 
ballot to recall the judge, from prejudice, from a desire to 
elect some one else, for political reasons, or for any reason 
which may actuate him at the time, and the judge be thus 
recalled, his office degraded, his reputation ruined, with no 
opportunity for a trial of the charges which have been pre- 
ferred against him except to appeal to the electors, through 
the press, or take the stump in his own defense, in which 
case he might be called upon to defend the correctness of 
his legal decisions before the electors of his district. 

The advocates of this system claim that it is in the 
interest of the common people. This we deny. For more 
than three hundred years the greatest bulwark for the pro- 
tection of the mass of the people has been the courts. 



RECALL OF JUDGES 127 

There never was a time in our country when any man, 
however poor or humble, could not apply to the courts and 
be assured of protection. Is it any reproach upon the courts 
that they have extended the same protection to the rich and 
powerful, when assailed by popular prejudice? The same 
law which would deny protection to the rich or confiscate 
the property of corporations, might take the cottage or the 
liberty of the humblest citizen. You cannot attack the 
courts, and take from them the indepencence of judges, 
without endangering the foundations of personal security. 



Recall of Judges: Argument in Opposition Presented before 
the Minnesota State Bar Association, Duluth, July 19, 191 1. 

Rome G. Brown. 

Prior to the eighteenth century, the King of England 
had the arbitrary power of unseating a judge; but that 
power was taken away by the Act of Settlement passed 
eighty-seven years before the Constitution of the United 
States was framed. Prior to that, in England, the tyranny 
of monarchy extended to the judicial office; but ever since 
then the tenure of office of English judges has been during 
good behavior, removable only upon the address of both 
houses of Parliament. This is equivalent to our impeach- 
ment by the legislature. Although under despotisms and 
monarchies, the power of the recall of judges has in many 
instances been retained by the executive, there is no 
instance, so far as I am able to find, where ever, since most 
ancient times, under any government, either republican or 
democratic in form, the judicial recall by a popular vote 
has prevailed. Even in Switzerland, where there are no 
constitutional limitations upon legislation, and where the 
powers of legislation lie directly with the people, and that, 
too, by direct vote, the tenure of office and the independence 
of the judiciary are carefully protected. For over 2,000 
years, the peoples of all republics have recognized the evils 
and the dangers of the tyranny of democracy as even more 
destructive of the integrity of the judiciary, than any 
tyranny of a monarchial sovereign wielding the power of 



128 SELECTED ARTICLES 

judicial recall. Xot until these late years of the 20th century 
in our own country, do we find such a measure advocated, 
and that, too, in W'hat has been assumed to be the most 
advanced and civilized republic which has ever been estab- 
lished. 

Since the constitutional amendment of 1908, the Recall 
of Judges is provided in Oregon. It was only a short 
time ago that an Oregon judge, sitting in the trial of a 
man charged with murder, who was defending upon the 
plea of self-defense, instructed the jury that if certain facts 
had been shown they would constitute in law a justifica- 
tion. The jury found the facts, and followed the instruction 
of the judge as to the law. The correctness of the instruc- 
tion is a fairly debatable one. but local prejudice had 
demanded the conviction of the accused, and on account of 
his acquittal a cry went up among the voters that the power 
of recall must be exercised, and a petition was immediately 
started to get the necessar}^ signatures of 25 per cent, of 
the voters of the judicial district. It matters not what 
success the petition shall have, the fact of the attempt to 
exercise the recall power under the circumstances stated, 
is a demonstration of the tyrannical nature of the power 
of popular recall and of its possible abuse when applied to 
the judiciary. 

In California and Nevada, constitutional amendments 
have recently been proposed by the legislature and are now 
before the people, containing similar provisions; and a legis- 
lative act has just been passed in California which in terms 
provides for the recall of county judges. 

The constitution of the proposed new state of Arizona, 
now before Congress, has the same provision. Indeed, a 
bill has been introduced in the United States Senate by 
Senator Owen of Oklahoma, providing for the recall of any 
judge of the United States Supreme Court, or any federal 
court, by a resolution of Congress, without a hearing, and 
for the election of the federal, district and circuit judges 
by the voters of. the district or circuit, with a tenure of 
office limited to four years. Senator Owen is denominated 
in politics a "progressive." There is another measure pend- 
mg in Congress, characteristic of this so-called "progres- 



RECALL OF JUDGES 129 

sive" movement, and worthy of many of those who favor 
the judicial recall, because it strikes at the very foundation 
of the judicial department and attempts to deprive the judi- 
ciary of its most essential function, the safeguarding of con- 
stitutional rights. In terms, it gives to voters directly the 
power to enact and to compel the enforcement of statutes, 
state and federal, which are repugnant to the very constitu- 
tional provisions and limitations which were reserved 
for the protection and safeguarding of personal and prop- 
erty rights. 1 refer to the bill introduced in Congress 
by Mr. Berger, the 'Socialist representative from Wis- 
consin, providing for pensions to every person in the 
United States who, having been a citizen sixteen years, is 
more than sixty years old. The bill contains a provision 
specifically forbidding the United States Supreme Court 
from passing upon its constitutionality. However futile, 
however impossible such legislation, the fact that the voters 
of any Congressional district like that of Representative 
Berger, or that the state-wide constituents of any Senator, 
as in the case of Senator Owen, should select as their rep- 
resentative a person capable of even proposing such legisla- 
tion, is proof conclusive that, however wisely the judicial 
recall b}' the people might be used in some parts of the 
country, yet its establishment in any particular state would 
only be brought about by those who would strike down the 
judicial office and give to the people of the locality in ques- 
tion the power to compel enforcement of legislative acts 
which are unconstitutional. Its effect in any particular 
locality where it prevails, is a wiping out of all constitu- 
tional limitations, and a return to the tyranny of democracy. 
It is assumed by many advocates of this measure that 
the power of judicial recall by the people is not necessarily 
an arbitrary one, and that the elements of cause and of 
the consideration and even trial of issues may be preserved. 
In other words, they assume that it does not involve neces- 
sarily an elimination of the protections to the office of judge, 
and to the independence of any judicial incumbent, which 
usually exist by virtue of the provisions for impeachment for 
cause after charges preferred, and a hearing and adjudica- 
tion by a senate or otlicr tribunal authorized for that pur- 



I30 SELECTED ARTICLES 

pose. They urge that the right of recall may be limited to 
specified causes such as malfeasance or improper behavior. 
Such suggestions are absolutely inconsistent with the very 
nature of the power given by the popular recall. This is 
shown not only by a most cursory consideration of the 
matter, but by the express terms of the powers which have 
been arrogated to the people with reference to the judicial 
recall, wherever that power has been in terms given. 

In Oregon, the provision is that at any time after six 
months incumbency the judge may be compelled to go to a 
vote of the people of his district upon petition signed by 
twenty-five per cent of his constituent voters, and that upon 
the ballot the petitioners may state in 200 words the grounds 
claimed for his removal; and upon the same ballot, in not 
more than 200 words, the judge may answer the charge. 

It is evident that even in form and theory this pretended 
opportunity to be confronted with charges and to make a 
defense is a mere farce. It is, in fact, a farce. In the case 
of the Oregon judge, already mentioned, the Attorney Gen- 
eral held that the charges contained in the recall petition, 
and shown upon the ballot in 200 words, need not be specific; 
and that it was sufficient if, as in that case, they comprised 
a mere collection of epithets applied to the judge com- 
plained of, — "incompetent," "unfair," and the like. 

The California provision is substantially the same, except 
that only twenty per cent of the voters are required upon 
the recall petition. The Arizona proposed constitution con- 
tains the same provision as Oregon, except that the judge 
attacked has the privilege of resigning in fi^^e days after the 
recall petition is filed. It is manifestly impossible to pro- 
vide, in connection with the popular recall, any special tribu- 
nal for the adjudication of questions of either fact or law 
which must be involved. In any attempt to unseat a judge, 
the first, the last and the only adjudication is by the peo- 
ple, and that, too, with only the merest pretense of the pre- 
ferment of charges or of an opportunity to answer. The 
element of a hearing is entirely absent; there is no adjudi- 
cation, for no opportunity is afforded to present evidence. 
All the essential elements of a trial are lacking. The de- 
cision is inevitably an arbitrary one made by the people 



RECALL OF JUDGES 131 

directly, and, so far as such decision is based upon any- 
thing, it must be based upon that which is not evidence 
and must be governed by the hue and cry, by rumor, by 
misunderstanding and ignorance. The power of judicial 
recall, when exercised by the people directly at a popular 
election, can never be anything other than a purely arbitrary 
power, and accompanied by all the injustice, evils and dis- 
asters which inevitably result from unguarded and unre- 
strained authority. 

Keeping in mind that such is the character of the power 
involved in the judicial recall, it is easily demonstrated that 
such a measure is (i) unwise and inexpedient; and (2) 
that it is repugnant to the federal constitution and inconsist- 
ent with our republican form of government. 

The proposition of the judicial recall would violate 
another vital and fundamental rule which is the basic ele- 
ment of everything judicial. It is an arbitrary power, 
against a person in office, exercised against the object of 
its attack without allowing to him the privilege of being 
confronted with charges or the privilege of a hearing. I 
have already shown the futility of any attempt to make the 
power of judicial recall any other than a purely arbitrary 
one. It involves not only the abolishment of the form 
which at the present time is provided for impeachment 
after charges preferred, and trial and adjudication before 
a proper tribunal, but it necessarily involves the abolishment 
of the very substance, idea and spirit of such proceeding. 

The judicial recall is in conflict with every fundamental 
principle of our government. The basic purposes and 
object of the judiciary are that the members of the court 
pass judgment only after issue is joined, with a hearing 
upon the facts, and then only upon and consistently with 
the elementary principles of personal and property rights 
expressly guaranteed by the fundamental law; and. further, 
that no member of the judicial tribunal should be influenced 
in any degree by outside considerations, whether in advance 
of, or during, or after the hearing; and that, without preju- 
dice, and uninfluenced by any ulterior considerations, as to 
past, present and future, he should, in his conclusions of 
law, aipiply the law to the facts, with due regard to the 



132 SELECTED ARTICLES 

constitutional guaranties, and without fear or favor or 
any predetermination as to the result, and that his final 
adjudication should be an order or decree, logically and 
consistently following from the facts and the conclusions 
of law impartially found. The judicial recall, as thus far 
attempted to be applied in this country, means that a 
judge may be immune from unwarranted attacks upon his 
integrity for the first six months of his incumbency, but 
that at the expiration of that period he shall be accountable 
for all his official acts, not to his conscience, not to a 
tribunal who shall adjudicate after a hearing, but to that 
portion of the voters who for the time being may constitute 
the voting majority, and who may momentarily be induced, 
arbitrarily and without a hearing, to express a choice that 
he be called from the bench, in order, perhaps, that a pre- 
committed substitute may be placed in his stead. Thus the 
judicial recall not only destroys the independence of the 
judiciar}', but in fact it destroys entirely the judiciary itself. 

There are further objections based upon the ground of 
policy. It discourages lawyers possessing high attainments 
or a deep sense of professional ethics, from accepting posi- 
tions upon the bench. ' It tends to lower and must neces- 
sarily lower -the judicial standard. No lawyer qualified for 
a judge would allow himself to be put into the position 
where as judge he must either decide a case contrary to 
his conscience, or sufifer the disgrace of a recall. No man 
worthy of a judgeship would be willing to be tried and 
convicted by public clamor without an opportunity to be 
heard. 

Moreover, the judicial recall cannot tend to eliminate 
corruption in the judicial office, but would rather tend to 
increase it. It is not a cure for corruption. The judge who 
is recalled for actual corruption will always, so far as the 
public records are concerned, remain upon a par with the 
one who is recalled because of a correct decision which 
happens at the time to be unpleasant to the multitude. The 
protection of a hearing upon charges preferred, is not 
vouchsafed to either. 

Neither will it prevent or diminish the so-called corpo- 
rate control of the judiciary. The liability of the interven- 



RECALL OF JUDGES 133 

tion of outside influences is greater as the term of the 
judicial office is diminished. If. in any locality, corporate 
interference in politics is practiced, the judicial recall would 
only facilitate the tendency and power of corporate control. 
It would not, in many judicial districts, take great manage- 
ment nor much expenditure to obtain the signatures of ''20 
or 25 per cent of the .voters, and to keep up a hue and cry 
so that at the polls the very indictment which has been 
made by the mere filing of the recall petition should be 
taken by a majority of the voters as sufficient proof that, 
at least, there ought to be a change. 

Again, the recall of judges deprives them of that protec- 
tion in the performance of their official duties which is 
necessary to the preservation of their independence and 
which IS essential to their judicial function. The judiciary 
cannot protect constitutional rights when the judiciary itself 
IS not protected under the constitution. 

It is said that the recall will bring and keep the judicial 
office and the judge nearer to the people. This is true only 
in a sense that it tends to compel the judge to keep constantly 
dependent upon the changing whims of the people and com- 
pel him at any and all times to follow, under threat of 
recall, any demand which the majority may be willing to 
make that the constitutional barriers between valid and 
invalid legislation be broken down. It tends to pull him 
down from his high office and make him a mere servant 
even a spokesman, of the majority, for the time being of 
the voters of his district. Under such a system, public 
respect for the judge, which is one of the most important 
essentials of his office, is destroyed. He sits subject to the 
popular recall, at all times menaced with the threat that his 
ruling and judgments, however conscientious, however cor- 
rect, may at any time, if he happen to meet the disfavor of 
the community, bring upon him the disgrace of a sudden 
and arbitrary retirement. 

The attempted answer has been put forth, that if judges 

are recalled unjustly, history will vindicate them. No better 

answer could be made to this, than that made bv Repre.cn- 

ative Hamilton of Michigan, the other day. in" discussing 

the Arizona matter i„ Congress, when he .said- '"A good 



134 SELECTED ARTICLES 

many monuments have been erected to martyrs out of the 
stones wherewith they were stoned. But what do dead men 
care for monuments?" 

The judicial recall is, therefore, unwise and inexpedient. 
It takes away every essential feature of the judicial office. 
It destroys its independence. It prevents entirely the exer- 
cise of the judicial function of maintaining and enforcing 
the constitutional protection guaranteed to every individual 
in his person and property. It makes 'him the mere serv- 
ant or spokesman of a temporary majority. It opens the 
way for arbitrary disregard and practical annulment of con- 
stitutional provisions without amendments in the proper and 
prescribed manner. It does away with the judicial depart- 
ment of the government of any state or locality in which 
it is or may be exercised. 



North American Review. 193: 672-90. May, 191 1. 

Recall of Judges. Albert Fink. 

The constitution adopted by Arizona provides for the 
recall of the judges. In California the Legislature has pro- 
posed an amendment to the State constitution calculated to 
acconiiplish a like result. This will meet the approval of the 
present Executive and be submitted to the people for accept- 
ance or rejection at an election to be held for this purpose 
in September or October of this year. Present indications 
are that it will carry and thus become a part of the organic 
law of that state. 

This principle in the science of government has never 
received the test of actual trial and its beneficial or perni- 
cious influence rests upon speculative reasoning rather than 
upon any facts to be gathered from experience. 

It would seem wise to remember the words of ]\lr. Lin- 
coln: 

"I do not mean to say we are bound to follow implicitly in 
whatever our fathers did. To do so would be to discard all the 
lights of current experience — to reject all progress, all improve- 
ment. What I do say is that if we would supplant the opinions 
and policy of our fathers in any case, we should do so upon evi- 
dence so conclusive and argument so clear that even their great 
authority faiily considered and weighed cannot stand." 



RECALL OF JUDGES 135 

Nowadays we take too much for granted. Lulled to 
sleep by the unparalleled prosperity we have enjoyed under 
the Constitution given us by the Fathers, we are prone to 
believe that human rights and liberties have become so 
secure as to be in no further need of protection either from 
the tyranny of a dictator or from that of an unrestrained 
democracy. Seeing in our path certain resultant evils of 
our very prosperity, we would, in a sudden moment, lay 
rude hands upon that instrument under which all this prog- 
ress has been made possible without pausing to reflect that 
the evils might be eliminated without recourse to a change 
in the Constitution: and that by the later experiment though 
the evils might be curtailed, the prosperity might be lost. 
One of our most distinguished citizens is reported to have 
said that "republics are still upon trial." 

The complete and absolute independence of the judiciary 
was a political maxim of the period during which the Con- 
stitution was adopted. It was just as much an essential 
principle of a republican form of government as the repre- 
sentative scheme. It is sometimes said that the principle 
was that there was and should be a severance between the 
executive, legislative, and judicial branches of government. 
But the statement, is, to a certain extent, inaccurate. The 
underlying principle was the independence of each. The 
severance was but the means to secure and enforce the 
principle. Than this principle of independence, none was 
more fully or firmly established in the science of govern- 
ment. It stood unchallenged. It had long been recognized 
in England, where though it was at first believed that the 
tenure of judges was at the pleasure of the Crown and that 
they were removable at the whim of the sovereign, this 
opinion had gradually changed, so that by the end of the 
sixteenth century the independence of the judiciary was 
becoming a recognized principle of the Constitution. And 
It was the violation of this theory as much as any other one 
thmg, and his attempted debasement, to mere creatures of 
the Crown, of the judges of King's Bench, that cost Charles 
the First his head. 

Ihat this principle, or rather the means to enforce it, 



136 SELECTED ARTICLES 

was well recognized in this countrj^ cannot be doubted. It 
was embodied in several of the State constitutions. 

That of Maryland provided in the Declaration of Rights: 

"That the legislative, executive, and judicial powers of gov- 
ernment ought to be forever separate and distinct from each 
other." 

That of New Hampshire provided: 

"In the government of this State the three essential powers 
thereof — 'to wit, the legislative, executive, and judicial, ought to 
be kept as separate from and independent of each other as the 
nature of a free government will admit." 

By that of Virginia and Georgia it was provided : 

"The legislative, executive and judiciary departments shall be 
separate and distinct, so that neither exercise the powers properly- 
belonging to the other."_ 

To remove the judiciary beyond the possible control of 

a temporary majority, it was provided in each of the thir- 
teen colonies, except Georgia, that the judges be appointed. 

Taking the best that existed both in American and Eng- 
lish precedents, the same principle was carried into the Fed- 
eral Constitution, where good behavior was made the ten- 
ure and the judges selected by appointment. And in the 
convention Dickenson, while agreeing that the terms of 
the judges should be during good behavior, thought they 
should be removable by the Executive upon the address 
of the Senate and House of Representatives, after the man- 
ner prevailing in England; but Gouverneur Morris pointed 
out that such power of removal without trial united with 
a tenure of office during good behavior would be a con- 
tradiction in terms. 

In an instrument where almost every phrase of its 
proiper or possible construction w^as examined, analyzed, 
disputed, and debated, from Henry's objections to the use 
of the phrase "We people," to ^Martin's criticisms of the 
abolition of religious tests, it is interesting to note that 
the provision with reference to the selection and tenure of 
the judges was agreed to without a dissenting voice. What 
ever conflict may have existed upon other points, it is clear 
that in republican government an independent judiciary as a 
cardinal and essential principle was a proposition agreed to by 
all. ' 

From these considerations it would seem to appear 
that at the time of the adoption of the Federal Constitu- 
tion an independent judiciary was universally considered 



RECALL OF JUDGES 137 

essential to a republican form of government. To attain 
and safeguard this two corollary principles were adopted. 
Pressing forward the precedent then in existence in Eng- 
land and following that of each of the thirteen colonies, 
there was a severance of the judicial from the other branches 
of government. And adopting the rule then prevalent in 
England, and the colonies other than New Jersey and Penn- 
sylvania, the tenure was made during good behavior. 

While the States reserved to themselves all the powers 
not granted to the general government, and while the gen- 
eral government has only delegated powers and such powers 
as are necessary to the enjoyment of those delegated, the 
right of the several States to so change, modify, or amend 
their systems as to make them other than republican in 
form is one which they have relinquished and the authority 
of the general government to guarantee to the several 
States a republican form of government is a power which 
has been transferred to it by each of the States and such a 
power as carries with it all powers necessary to its enforce- 
ment. 

But what are the tests? By what standard is any par- 
ticular principle to be measured? In what scales are any 
proposed changes or modifications to be weighed? And 
who is to be the ultimate judge? These questions, it is 
believed, are not so diffcult as they appear. As before 
pointed out, the standard is to be that which existed at the 
time of the adoption of the Constitution. The scales will 
be found in the opinions and contemporaneous precedents 
of the same period. The test is to be this: Was the prin- 
ciple embodied in the proposed change one which at the 
time of the adoption of the Constitution was accepted as 
one of t'he cardinal and necessary elements of a republican 
form of government without which such form could not 
well exist? If so, then it is one of the essentials of such a 
form of government and must not be violated. The inde- 
pendence of the judiciary is believed to be such a principle. 

That the recall of the judges not only tends to weaken 
their necessary independence, but is directly destructive 
thereof, can be easily demonstrated. Such a measure would 
place the judges and a majority of the electorate in the rela- 



138 SELECTED ARTICLES 

tion to each other of master and servant. When such a 
relationship exists and is determinable at the will of the 
master the servant is without independence. He must obey, 
not the dictates of his own conscience, but the arbitrary- 
will of his employer, upon penalty of the immediate deter- 
mination of the relation. The case is otherwise if the rela- 
tion is to exist for a g-iven time; then the servant so long 
as he performs his duty is protected from any unjust or 
arbitrary demands. 

The election of judges for stated terms lessens their 
independence of a majority as their terms of office draws 
to a close. The power of their immediate recall destroys 
their independence. As it would be in the teeth of human 
nature to expect a servant desirous of continuing his 
employment to disobey the imperative commands of his 
master, so it would indeed be requiring too much of a 
judge, who desired to continue in office, to expect him to 
render an unpopular decision or one which he believed to 
be such. 

Nor is the measure capable of justification upon the 
argument of its advocates. Their whole theory of right 
liesj in the following reasoning: 

"The people are supreme. What they will is law. The 
judges are the servants of the people, employed by the 
latter, and holding office at their will. Therefore, the mas- 
ter, the people, has the . inherent right to discharge the 
servant, the judges, at pleasure.'' 

The conclusion would seem logically to flow from the 
premises. Nor it is with the former so much as with the 
latter that the fault lies. When it is said that the people 
are supreme, that they employ the judges and stand toward 
them in the relation of a master to a servant, what is meant 
is the majority of the people. Herein lies the error. The 
judges are not the servants and agents of the majority. The 
judges are the servants of both the majority and the minor- 
ity and must of necessity be independent of each. 

Any rule of might is a tyranny whether it be in the 
form of an emperor, dictator, oligarchy, or democracy. The 
unrestrained rule of the majority is as objectionable as 
that of an individual; it is more so, because it has all the 



RECALL OF JUDGES 



139 



evils of the former with none of the efficiency of the latter. 
This country is ruled by laws and not by majorities. True, 
the laws are made by majorities, but there are limits beyond 
which they may not go. Every citizen has certain inherent 
and fundamental rights which can be taken from him neither 
through legislative enactments nor by constitutional amend- 
ments supported by no matter how great a majority. 

Life, liberty, and the pursuit of happiness, the right of 
contract and private ownership of property, when not used 
to the detriment of others, of procreation, of inviolability 
of persons and family — such rights as these are not justly 
dependent for protection upon constitutions, they are fun- 
damental, inherent. Without their adequate protection no 
government can long exist. Certainly no majority, how- 
ever great, has the right to single out the individual and 
take from him these inherent rights. 

It is one of the peculiar functions of a judge in a State 
governed by laws and not by men to protect the minority 
or the individual, as the case may be. Though chosen by 
the majority or by some person or persons to whom the 
power of selection has been delegated, they cease, upon 
induction into office, to become the mere servants at will 
of those by whom they were selected, nay they never were 
their servants. The right of selection in no sense carries 
with it such right of domination as was attempted by 
Charles L Upon selection the judges become the servants 
of the whole people, not of the majority or class by whom 
they may have been chosen. They represent the minority, 
the weakest class in society: the humblest individual, just 
as much as the dominant political party, the laboring or 
moneyed classes, or the most potent members of the com- 
munity. During their term of office they are justly answer- 
able to no one. 

A powerful minority may well trust the selection of the 
judge to a majority, but the domination of this majority 
after selection is quite another matter. This is tyranny and. 
as Montesquieu says, "the end of all things." Such a practice 
when taken advantage of by majorities, as it inevitably 
must be, can be maintained only by arms, and this power 
does not always lie in majorities. 



140 SELECTED ARTICLES 

Nor can any justification of the proposed measure be 
found in the doctrine of expediency. In limine let it be 
inquired, what will be accomplished by the proposed change 
that is deemed expedient? 

Will the respect of the community for the judges, a 
situation so earnestly to be sought, be increased? Already 
there has appeared a very wide discrepancy in the esteem 
entertained by the general public for the State tribunals by 
reason of the selection of their judges for short terms. 

Will the proposed measure induce gentlemen of greater 
attainments to seek election to the bench? It is believed 
such will not be the case. What man worthy of the name 
would submit himself to the alternative of deciding a cause 
contrary to his conscience or suffering the disgrace of a 
peremptory recall by his fellow citizens? How can an 
increase of wholesome respect be attained by a further cur- 
tail of that independence, the want of which has already 
induced disparagement? 

Will the corruption charged to exist be eliminated? 
Where is his corruption? Is there no evidence available? 
Then, is it the purpose to convict judges without evidence? 
Is suspicion to take the place of facts? Surely this would 
seem to be a novel American idea. 

Will the alleged corporate control of the judiciary be 
abolished? Where does it exist today? In the Federal or 
the State tribunals? Certainly from the recent decisions of 
the former it does not seem to be there intrenched to any 
great extent. If in the latter, how will the evil be remedied? 
The judges are now selected by the majority of the people. 
If they are now unable to select judges free from corporate 
influence, may we expect a resultant improvement in the 
exercise of choice by conferring the power of recall? Why? 

How is the fact of a leaning of the judge toward cor- 
porate interests to be ascertained? Is it to be based upon 
errors appearing in his judgments or is it to rest solely 
upon the fact that the decision was in favor of the cor- 
poration? If the former, who is to judge of the existence 
of the error? The lawyers who lost the case or those who 
won? As in any other branch of science, the opinion only 
of the educated therein will be worthy of consideration. 



RECALL OF JUDGES 141 

Whose interpretation will be accepted? If the latter, why 
not proceed at once to the division of corporate property 
without pursuing the tedious process suggested? 

Are the opinions of experts upon the expediency of this 
measure desired? If there is one man to whom more than 
an}' other this age owes a debt of undying gratitude for the 
preservation of the republic w'hen others in the blindness of 
political fury were contending for principles which would 
have guaranteed its early dissolution, that man is John 
Marshall. 

When his inspiring career was drawing near to its close 
he was persuaded to become a member of the Virginia Con- 
stitutional Convention of 1829. This was a remarkable 
assembly. It was presided over by James Monro'e, escorted 
to the chair by rvladisan and jMarshall. Party spirit ran 
high. Passions were much inflamed. One of the principal 
questions presented w^as the tenure by which judges should 
hold office. Marshall was at this time in his seventy-fifth 
year. For nearly a third of a century he had occupied the 
high position of Chief Justice. He had considered all man- 
ner of causes; he had observed all manner of men. Soldier, 
lawyer, statesman, diplomat, patriot, and himself the great- 
est judge with which Almighty God had ever adorned a 
bench or blessed a country, who than ^Marshall knew better 
whereof he spoke? 

With that great earnestness which had ever character- 
ized his life he said : 

"The argument of the gentleman goes to prove not only that 
there is no such thing as judicial independence but th;it there 
ought to be no such thing; that it is unwise and improvident to 
make the tenure of the judge's office to continue during good 
behavior. Advert, sir, to the duties of a judge. He has to pass 
between the government and the man whom that government is 
prosecuting — between the most powerful individual in the com- 
munity and the poorest and most unpopular. It is of the last 
importance that in the performance of these duties he should ob- 
serve the utmost fairness. Xeed I press the necessity of this? 
Does not every man feel that his own personal security and the 
security of his property depend upon that fairness? The judicial 
department comes home in its effects to every man's fireside; it 
passes on his property, his reputation, his life, his all. Is it not 
to the last degree important that he should be rendered perfectly 
and completely independent with nothing to control him but God 
and his conscience? ... I acknowledge that in my judgment the 
whole good which may grow out of- this conventic^n, be it what it 
may, will never compensate for the evil of changing the judicial 
tenure of office. . . I have always tliought fi-om my earliest youth 
till now that the greatest scourge an angry Heaven ever inflicted 
upon an ungrateful and sinning people was an ignorant, and cor- 
rupt, or a dependent judiciary." 



142 SELECTED ARTICLES 

That the proposed measure is at best a mere experiment 
in government will be admitted. Going, as it does to the 
very root of what is believed to be one of the essentials of 
free institutions, it must be conceded to be a most danger- 
ous one. To many it seems pernicious — a step in the very 
opposite direction from those safeguards, checks, and bal- 
ances believed to be so necessary to protect the whole people 
from the sudden and violent turbulence of a temporary 
majority. It has been well said: "Popular sentiment is 
proverbially variable and is subject to constant alterations; 
today the multitude cry 'Hosanna!' and tomorow 'Crucify 
Him !' " 

The situation could not be better described than in the 
words of Aristotle: 

"The people, who is now a monarch and no longer under the 
control of law, seeks to exercise monarchical sway and grows into 
a despot; the flatterer is held in honor, this sort of democracy be- 
ing relatively to the other democracies what tyranny is to other 
forms of monarchy. The spirit of both is the same and they 
alike exercise a despotic rule over the better citizens. The decrees 
of the demos correspond to the edicts of the tyrant: and the 
demogogue is to the one what the flatterer is to the other. Both 
have great power — the flatterer with the tyrant; the demagogue 
with democracies of the kind we are describing. The demagogues 
make the decrees of the people override the laws and refer all 
things to the popular assembly. And, therefore, they grow great, 
because the people have all things in their hands, and they hold 
in their hands the votes of the people who are ready to listen to 
them. Further, those who have any complaint to bring against 
the magistrates say, 'Let the people be judges'; the people are 
too happy to accept the invitation and so the authority of every 
office is imdermined. Such a democracy is fairlj' open to the 
objection that it is not a constitution at all, for where the laws 
have no authority there is no constitution." 

Surely, if a change is to be made in the existing system 

prevalent in the vast majority of States, it would seem it 
should be in the direction of granting to the judged a 
greater independence of spirit, thereby lifting them to the 
plane of high efficiency now occupied by the Federal judi- 
ciary rather than a still further wholly useless and unneces- 
sary debasement. 



RECALL OF JUDICIAL DECISIONS 



AFFIRMATIVE DISCUSSION 

Outlook. 100 : 390-402. February 24, 1912. 

Charter of Democracy. Theodore Roosevelt. 

An independent and upright judiciary which fearlessly 
stands for the right, even against popular clamor, but which 
also understands and sympathizes with popular needs, is a 
great asset of popular government. There is no public 
servant and no private man whom I place above a judge of 
the best type, and very few whom I rank beside him. I 
believe in the cumulative value of the law and in its value 
as an impersonal, disinterested basis of control. I believe in 
the necessity for the courts' interpretation of the law as 
law without the power to change the law or to substitute 
some other thing than law for it. But I agree with every 
great jurist, from Marshall downwards, when I say that 
every judge is bound to consider two separate elements in 
his decision of a case, one the terms of the law, and the 
other the conditions of actual life to which the law is to be 
applied. Only by taking both of these elements into account 
is it possible to apply the law as its spirit and intent demand 
that it be applied. Both law and life are to be considered 
in order that the law and the Constitution shall become, in 
John Marshall's word, "a living instrument and not a dead 
letter." Justice between man and man, between the state 
and its citizens, is a living thing, whereas legalistic justice 
is a dead thing. Moreover, never forget that the judge 
is just as much the servant of the people as any other 
official. Of course he must act conscientiously. So must 
every other official. He must not do anything wrong 



144 SELECTED ARTICLES 

because there is popular clamor for it, any more than under 
similar circumstances a governor or a legislator or a public 
utilities commissioner should do wrong. Each must follow 
his conscience, even though to do so costs him his place. 
But in their turn the people must follow their conscience, 
and when they have definitel}^ decided on a given policy 
they must have public servants who will carry out that 
polic}'. 

Keep clearly in mind the distinction between the end 
and the means to attain that end. Our aim is to get 
the type of judge that I have described, to keep him on 
the bench as long as possible, and to keep off the bench 
and, if necessary, take off the bench the wrong tj-pe of 
judge. In some communities one method ma}' work well 
which in other communities does not work well, and each 
community should adopt and preserve or reject a given 
method according to its practical working. Therefore the 
question of applying the recall in any shape is one of 
expediency merely. Each community has a right to try the 
experiment for itself in whatever shape it pleases. Lender 
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 equalled 
the damage done to the community by judges whose con- 
duct 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 virtu- 
ous, 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 saj^ 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. Im- 



RECALL OF JUDICIAL DECISIONS 145 

peachment as a remedy for the ills of which the people 
justly complain is a complete failure. A quicker, more 
summary, remedy is needed; some remedy at least as sum- 
mary 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. 

But 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 net 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 the recall in 
the Dred Scott case. He denounced the Supreme Court 
for that iniquitous decision in language much stronger than 
I have ever used in criticising 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 peo- 
ple took his view, and the decision was practically recalled. 

Under our Federal system the remedy for a wrong such 
as Abraham Lincoln described is difficult. But the remedy 



146 . SELECTED ARTICLES 

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 Constitu- 
tional question should 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 Constitu- 
tion, 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 peo- 
ple 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 otherwse, as might be 
decided, and after the fullest opportunity for deliberation 
and debate, the question whether or not the judges' inter- 
pretation 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 onl}- to action by the Supreme Court of 
the United States. 

j\Iany eminent lawj'ers who more or less frankly dis- 
. believe 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 peo- 
ple 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 rul- 
ers over the people. The only tenable excuse for such a 



RECALL OF JUDICLVL DECISIONS 147 

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 Con- 
stitution, 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. 
Now the power to interpret is the power to establish; and 
if the people are not to be allowed finally to interpret the 
fundamental law, ours is not a popular government. The 
true view is that legislators and judges alike are the serv- 
ants of the people, who have been created by the people, 
just as the people have 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. Just as the people, and not the Supreme 
Court under Chief Justice Taney, were wise in their deci- 
sions 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 concern- 
fng the proper control of big corporations and of securing 
their rights to industrial workers. 

Here I am not dealing with theories ; I am dealing with 
actual facts. In New York, in Illinois, in Connecticut, 
lamentable unjustice has been perpetuated, often for many 
years, by decisions of the state courts refusing to permit 
the people of the states to exercise their right as a free 
people to do their duty as a conscientious people in remov- 
ing grave wrong and social injustice. These foolish and 
iniquitous decisions have almost always been rendered at 
the expense of the weak; they have almost always been the 
means of putting a stop to the effort to remove burdens 
from wage-workers, to secure to men who toil on the farm 
and on the railway, or in the factory, better and safer con- 



148 SELECTED ARTICLES 

ditions of labor and of life. Often the judges who have 
rendered these decisions have been entirely well-meaning 
men, who, however, did not know life as they knew law, 
and who championed some outworn political philosophy 
which the}' assumed to impose on the people. Their asso- 
ciations and surroundings were such that they had no con- 
ception of the cruelty and wrong their decisions caused and 
perpetuated. Their prime concern was with the empt\' 
ceremonial of perfunctory legalism, and not with the living 
spirit of justice. Jj^ typical case was the decision rendered 
but a few months ago by the Court of Appeals of my own 
state, the state of New York, declaring unconstitutional the 
workmen's compensation act. In their decision the judges 
admitted the wrong and the suffering caused by the prac- 
tices against which the law was aimed. They admitted 
that other civilized nations had abolished these wrongs and 
practices. But they took the ground that the Constitution 
of the United States, instead of being an instrument to 
secure justice, had been ingeniously devised absolutely to 
prevent justice. They insisted that the clause in the Con- 
stitution which forbade the taking of property without due 
process of law forbade the effort which had been made in 
the law to distribute among all the partners in an enter- 
prise the effects of the injuries to life or limb of a wage- 
worker. In other words, the}- insisted that the Constitu- 
tion had permanently cursed our people with impotence to 
right wrong, and had perpetuated a cruel iniquity; for cruel 
iniquity is not too harsh a term to use in describing the 
law which, in the event of such an accident, binds the 
whole burden of crippling disaster on the shoulders least 
able to bear it— the shoulders of the crippled man himself, 
or of the dead man's helpless wife and children. Xo anar- 
chist orator, raving against the Constitution, ever framed an 
indictment of it so severe as these worthy and well-meaning 
judges must be held to have framed if their reasoning be 
accepted as true. But, as a matter of fact, their reasoning 
was unsound, and was as repugnant to every sound defender 
of the Constitution as to every believer in justice and right- 
eousness. In effect, their decision was that we could not 
remed}^ these wrongs unless we amended the Constitution 



RECALL OF JUDICLAL DECISIONS 149 

(not the Constitution of the State, hut the Constitution of 
the Nation) by saying that property could be taken without 
due process of the law! It seems incredible that any one 
should be willing to take such a position. It is a position 
that has been condemned over and over again by the wisest 
and most far-seeing courts. In its essence it was reversed 
by the decision of the State courts in States like Washing- 
ton and Iowa, and by the Supreme Court of .the Nation 
in a case but a few weeks old. 

1 call this decision to the attention of those who shake 
their heads at the proposal to trust the people to decide for 
themselves what their own governmental policy shall be 
in these matters. I know of no popular vote by any state 
of the Union more flagrant in its defiance of right and jus- 
tice, more short-sighted in its inability to face the changed 
needs of our civilization, than this decision by the highest 
court of the State of New York. Many of the judges of 
that court I know personally, and for them I have a pro- 
found regard. Even for as flagrant a decision as this I 
would not vote for their recall; for I have no doubt the 
decision was rendered in accordance with their ideas of 
duty. But most emphatically I do wish that the people 
should have the right to recall the decision itself, and 
authoritatively to stamp with disapproval what cannot 
but seem to the ordinary plain citizen a monstrous mis- 
construction of the Constitution, a monstrous perversion of 
the Constitution into an instrument for the perpetuation 
of social and industrial wrong and for the oppression of the 
weak and helpless. No ordinary amendment to the Con- 
stitution would meet this type of case; and intolerable 
delay and injustice would be caused by the effort to get 
such amendment— not to mention the fact that the very 
judges wlio arc at fault would proceed to construe the 
amendment. In such a case the fault is not with the Con- 
stitution; the fault is in the judges' construction of the 
C(jnstitution : and what is required is power for the people to 
reverse this false and wrong construction. 

According to one ..f the highest judges tlun and now 
nn the Supreme Court of the Nation, wc" had lived for a 
hundred years under a Constitution which permitted a 



150 SELECTED ARTICLES 

national income tax, until suddenly by one vote the 
Supreme Court reversed its previous decisions for a cen- 
tury, and said that for a century we had been living under 
a wrong interpretation of the Constitution (that is, under a 
wrong Constitution), and therefore in effect established a 
new^ Constitution which we are now laboriously trying to 
amend so as to get it back to be the Constitution that 
for a hundred years everybody, including the Supreme 
Court, thought it to be. When I was President, we passed 
a National Workmen's Compensation Act. Under it a rail- 
way man named Howiard, I think, was killed in Tennessee, 
and his widow sued for damages. Congress had done all 
it could to provide the right, but the Court stepped in and 
decreed that Congress had failed. Three of the judges 
took the extreme position that there was no way in which 
Congress could act to secure the helpless widow and chil- 
dren against suffering, and that the man's blood and the 
blood of all similar men when spilled should forever cry 
aloud in vain for justice. This seems a strong statement, 
but it is far less' strong than the actual facts; and I have 
difficult}'- in making the statement with any degree of mod- 
eration. The nine Justices of the Supreme Court on this 
question split into five fragments. One man. Justice Moody, 
in his opinion, stated the case in its broadest way and 
demanded justice for Howard, on the grounds that would 
have meant that in all similar cases thereafter justice and 
not injustice should be done. Yet the Court, by a majority 
of one, decided as I do not for one moment believe the 
Court w^ould now decide, and not only perpetuated a lamen- 
table injustice in the case of the man himself, but set a 
standard of injustice for all similar cases. 

Outlook. loo: 618-26. March 23, 1912. 

Right of the People to Rule: Address at Carnegie Hall. 

Theodore Roosevelt. 

My opponents charge that two things in my programme 
are wrong because they intrude into the sanctuary of the 
judiciar}'. The first is the recall of judges; and the second, 



RECALL OF JUDICL\L DECISIONS 151 

the review by the people of judicial decisions on certain 
Constitutional questions. I have said again and again that 
I do not advocate the recall of judges in all states and in 
all communities. In my own state I do not advocate, it or 
believe it to be needed, for in this state our troubles lie 
not with corruption on the bench, but with the effort by 
the honest but wrongheaded judges to thwart the people 
in the struggle for social justice and fair-dealing. The 
integrity of our judges from Marshall to White and Holmes 
— and to Cullen and many others in our state — is a fine 
page of American history. But — I say it soberly — democ- 
racy has a right to approach the sanctuary of the courts 
when a special interest has corruptly found sanctuary there; 
and this is exactly what has happened in some of the states 
where the recall of the judges is a living issue. I would 
far more willingly trust the whole people to judge such a 
case than some special tribunal — perhaps appointed by the 
same power that chose the judge — if that tribunal is not 
itself really responsible to the people and is hampered and 
clogged by the technicalities of impeachment proceedings. 

I have stated that the courts of the several states — not 
always but often — have construed the "due process" clause 
of the state constitutions as if it prohibited the whole peo- 
ple of the state from adopting methods of regulating the 
u.'^e of property ?o that human life, particularly the lives of 
the workingmen, shall be safer, freer, and happier. No 
one can successfully impeach this statement. I have insisted 
that the true construction of "due process" is that pro- 
nounced b}' Justice Holmes in delivering the unanimous 
opinion of the Supreme Court of the United States, when 
he said: 

"The police power extends to all the great public need-s. It 
may be put forth in aid of what is sanctioned l)y usage, oi- held 
by the prevailing morality or strong and preponderant opinion to 
be greatly and immediately necessary to the public welfare." 

I insist that the decision of the New York Court of 

Appeals in the Ives case, which set aside the will of the 

majority of the people as to the compensation of injured 

workmen in dangerous trades, was intolerable and based 

on a wrong- political philosophy. I urge tiiat in such 

cases where the courts construe the due process clause as 



T52 SELECTED ARTICLES 

if proper!}' rights, to the exclusion of human rights, had a 
first mortgage on the Constitution, the people may, after 
sober deliberation, vote, and finally determine whether the 
law which the court set aside shall be valid or not. By this 
method can be clearly and finally ascertained the prepon- 
derant opinion of the people which Justice Holmes makes 
the test of due process in the case of laws enacted in the 
exercise of the police power. The ordinar}- methods now 
in vogue of amending the Constitution have in actual prac- 
tice proved wholly inadequate to secure justice in such 
cases with reasonable speed, and cause intolerable delay 
and injustice, and those who stand against the changes I 
propose are champions of wrong and injustice, and of 
tyrann}^ by the wealthy and the strong over the weak and 
the helpless. 

So that no man ma}- misunderstand me. let me recapit- 
ulate: 

(i) I am not proposing anything in connection with the 
Supreme Court of the L'nited States, or with the Federal 
Constitution. 

(2) I am not proposing anything having any connection 
with ordinary suits, civil or criminal, as between individuals. 

(3) I am not speaking of the recall of judges. 

(4) I am proposing merely that in a certain class of 
cases involving the police power, when a state court has 
set aside as unconstitutional a law passed by the legisla- 
ture for the general welfare, the question of the validity of 
the law — which should depend, as Justice Holmes so well 
phrases it. upon the prevailing morality or preponderant 
opinion — be submitted for final determination to a vote of 
the people, taken after due tiine for consideration. And I 
contend that the people, in the nature of things, must be 
better judges of what is the preponderant opinion than the 
courts, and that the courts should not be allowed to reverse 
the political philosophy of the people. My point is well 
illustrated by a recent decision of the Supreme Court, hold- 
ing that the Court would not take jurisdiction of a case 
involving the constitutionality of the initiative and referen- 
dum laws of Oregon. The ground of the decision was 
that such a question was not judicial in its nature, but 



RFXALL OF JUDICIAL DECISIONS 153 

should be left for determination to the other co-ordinate 
departments of the government. Is it not equally plain 
that the question whether a given social policy is for the 
public good is not of a judicial nature, but should be settled 
by the legislature, or in the final instance by the people them- 
selves? 

The object I have in view could probably be accom- 
plished by an amendment of the state Constitutions taking 
away from the courts the power to review the legislature's 
determination of a policy of social justice, by defining due 
process of law in accordance with the views expressed by 
Justice Holmes for the Supreme Co^irt. But my proposal 
seems to me more democratic and, I may add, less radical. 
For under the method I suggest the people may sustain the 
court as against the legislature, whereas, if due process were 
defined in the constitution, the decision of the legislature 
would be final. 

Mr. Taft says that the judiciary ought not to be "repre- 
sentative" of the people in the sense that the legislature 
and the executive are. This is perfectly true of the judge 
when he is performing merely the ordinary functions of a 
judge in suits between man and man. It is not true of the 
judge engaged in interpreting, for instance, the due process 
clause — where the judge is ascertaining the preponderant 
opinion of the people (as Judge Holmes states it). When 
he exercises that function he has no right to let his political 
philosophy reverse and thwart the will of the majority. In 
that function the judge must represent the people or he 
fails in the test the Supreme Court has laid down. Take 
the Workmen's Compensation Act here in Xew York. The 
legislators gave us a law in the interest of humanity and 
decency and fair dealing. In so doing they represented the 
people, and represented them well. Several judges declared 
that law constitutional in our state, and several courts in 
other states declared similar laws constitutional, and the 
Supreme Court of the Nation declared a similar law affect- 
ing men in inter-state business constitutional; but the high- 
est court in the State of New York, the Court of Appeals, 
declared that we, the people of New York, could not have 
such a law. 1 hold that in this case the legislators and the 



154 SELECTED ARTICLES 

judges alike occupied representative positions; the difference 
was merely that the former represented us well and the 
latter represented us ill. Remember that the legislators 
promised that law, and were returned by the people partly 
in consequence of such promise. That judgment of the 
people should not have been set aside unless it were irra- 
tional. Yet in the Ives case the New York Court of Appeals 
praised the policy of the law and the end it sought to 
obtain; and then declared that the people lacked power to 
do justice! 

Mr. Taft is very much afraid of the tyranny of major- 
ities. For twenty-five years here in New York state, in our 
efforts to get social and industrial injustice, we have suf- 
fered from the tyranny of a small minority. We have been 
denied, now by one court, now by another, as in the bakeshop 
case, where the courts set aside the law limiting the hours 
of labor in bakeries — the "due process"' clause again — as in 
the workmen's compensation act, as in the tenement-house 
cigar factory case — in all these and many other cases we 
have been denied b}^ small minorities, by a few worthy men 
of wrong political philosophy on the bench, the right to pro- 
tect our people in their lives, their liberty, and their pur- 
suit of happiness. As for "consistency" — why, the record of 
the courts, in such a case as the income tax for instance, 
is so full of inconsistencies as to make the fear expressed of 
'"inconsistency" on the part of the people seem childish. 

When, as the result of years of education and debate, a 
majority of the people have decided upon a remedy for an 
evil from which they suffer, and have chosen a legislature 
and executive pledged to embodj- that remedy in law, and 
the law has been finally passed and approved, I regard it 
as monstrous that a bench of judges shall then say to the 
people: "You must begin all over again. First amend your 
constitution (which will take four 3'ears) ; second, secure 
the passage of a new law (which will take two years more); 
third, carry that new law over the weary course of litiga- 
tion (which will take no human being knows how long); 
fourth, submit the whole matter over again to the very same 
judges who have rendered the decision to which you ob- 
ject. Then, if your patience holds out and you finally pre- 



RECALL OF JUDICL\L DECISIONS i55 

vail, the will of the majority of the people may have its 
way." Such a system is not popular government, but a 
mere mockery of popular government. It is a system 
framed to maintain and perpetuate social injustice, and it 
can be defended only by those who disbelieve in the peo- 
ple, who do not trust them, and, I jam afraid I must add, 
who have no real and living sympathy with them as they 
struggle for better things. In lieu of it I propose the prac- 
tice by which the will of a majority of the people, when 
they have determined upon a remedy, shall, if their 
will persists for a minimum period of two years, go 
straight forward until it becomes a ruling force of life. 
I expressly propose to provide that sufficient time be taken 
to make sure that the remedy expresses the will, the sober 
and well-thought-out judgment, and not the whim, of the 
people ; but, when that has been ascertained, I am not wil- 
ling that the will of the people shall be frustrated. If this 
be not a wise remedy, let those who criticise it propose a 
wise rem.edy, and not confine themselves to railing at gov- 
ernment by the mob. To propose, as an alternative rem- 
edy, slight modifications of impeachment proceedings is 
to propose no remedy at all — it is to bid us be content 
with chafif when we demand bread. 



Annals of the American Academy. 43: 311-25. 
September, 1912. 

Xew Method of Constitutional Amendment by Popular Vote. 

William Draper Lewis. 

The peculiar position of the judiciary in our constitu- 
tional system and the insistent demand for advanced eco- 
nomic legislation, has led in many instances to a conflict 
between the desires of the people and the decisions of the 
courts, especially some of the state courts, in respect to 
the constitutional right to enact what many consider much- 
needed legislation. These conflicts have led many to in- 
sist that the people shall have a right to recall, by popular 
votes, judges with whom they have become dissatisfied. 



156 . SELECTED ARTICLES 

Colonel Roosevelt, on the other hand, has proposed that 
the people shall have what he terms a right to recall a 
certain class of decisions on state constitutional questions. 
In discussing the wisdom of any proposition it is essen- 
tial to get first a clear idea of exactly what the proposition 
is. The strong protest from many members of the legal 
profession against Colonel Roosevelt's plan is unquestion- 
ably in great part due to a misunderstanding of exactly what 
it is he proposes. What he does propose is this: If an 
act of the legislature is declared by the state courts to 
violate a provision in the state constitution, after an inter- 
val for deliberation, the people of the state shall have an 
opportunity to vote on the question whether they desire 
to have the act become a law in spite of the opinion of 
the court that it is contrary to the constitution. 

Owing to his expression, "The Recall of Decisions," 
many persons have supposed that Colonel Roosevelt meant 
that the court's judgment in the case in which the act 
was held unconstitutional should be reversed; that the 
judgment in favor of the plaintiff! It is needless to point 
the defendant would, by the vote of a majority of the peo- 
ple of the state assembled in voting booths, be made a 
judgment in favor of the plaintiff! It is needless to point 
out the ridiculousness of such a proposition. Even if we 
can be so foolish as to suppose that any American com- 
monwealth could be induced to adopt it. the provision 
would be. of course, unconstitutional under that clause of 
the fourteenth amendment of the federal constitution which 
provides that no state shall "deprive any person of life, 
liberty, or property without due process of law." As I 
shall have occasion presently to point out, the meaning of 
that clause has perhaps been somewhat extended in recent 
years ; but no one now doubts that whatever else it means, it 
unquestionably prevents a judgment being entered in favor 
of one party or the other in a criminal or civil suit by 
any other tribunal than a court. If A makes a claim 
against B, which B denies. B has the right to have the 
question whether tlie claim of A can be enforced determined 
by a court. When a court determines that one party to 
a suit is entitled to a judgment in his favor under existing 



RECALL OF JUDICL\L DECISIONS 157 

law, constitutionally that judgment cannot be reversed ex- 
cept by a higher court, and whatever difficulty there may 
be in the accurate definition of the word "court," there is 
no question but that the voters of the state assembled in 
their respective voting precincts do not constitute a court. 
The plan proposed is not that the decision, meaning the 
judgment in the case, shall be recalled, but that the de- 
cision, meaning the opinion of the court that the act is 
contrary to the constitution, shall be so far recalled, that, 
after an affirmative vote by the people in favor of the act, 
the court cannot in a subsequent case declare that the act 
is valid. 

As thus explained, the real issue presented by the propo- 
sition of Colonel Roosevelt is whether this new method 
of amending pro tanto the state constitution has practical 
advantage in view of the methods now in force. Or, to put 
the matter in another way: While the explanation of the 
real nature of the proposition deprives it of all revolution- 
ary aspect, is there any practical necessity for it? I shall 
try to answer this question. 

The provisions of our state constitutions may be divided 
into two classes. First, there are those which deal with 
specific subjects. A single example will suffice. The Con- 
stitution of the State of Pennsylvania provides that "No 
act of the general assembly shall limit the amount to be 
recovered for injuries resulting in death or for injuries to 
persons or property." Here we have a definite provision 
dealing with a specific subject. There is no possibility of 
misunderstanding its meaning and therefore practically no 
room for a difference of opinion as to its application. In 
view of it the State of Pennsylvania cannot now pass a 
compulsory workmen's compensation act, the essential elements 
of such an act being that the plaintiff, irrespective of the negli- 
gence of the defendant, recovers a definite sum of money, while 
all rights under the existing law of negligence are abrogated. 
As applied to this concrete provision of the constitution, or to 
any similar specific provision, it may be freely admitted that Col- 
onel Roosevelt's suggestion has no importance. 

Another and important class of provisions in state con- 
stitutions is those which enunciates general principles, of 



158 SELECTED ARTICLES 

which by far the most important and indefinite is the one 
which in one form or another expresses the idea that no 
one shall be deprived of his liberty or property without 
due process of the law. Originally, as in the fifth amend- 
ment to the federal constitution, this provision probably 
merely meant that no one should be deprived of his liberty 
or property by the arbitrary action of the executive arm 
of the government. This, however, is a question on which 
students of our history may reasonably differ. There is no 
doubt, however, that to-day, under the decisions of the 
courts, whatever it originally meant, it now means: 

First. — That the procedure by which a person is deprived 
of his liberty or what he claims to be his property, shall 
be "due" in accordance with the fundamental ideas of judi- 
cial procedure prevalent among English-speaking people. 

Second. — That an act of the legislature is void which 
violates fundamental ideas of morality and social justice. 

The most difficult of human problems is the adjustment 
of th'e economic liberty of the individual with necessary 
governmental regulation and action. The freedom of the 
individual is still as always essential to progress. On the 
other hand, it is also essential to progress that the people 
collectively by governmental regulation and action preserve 
and create conditions which tend to conserve and develop, 
not only the natural resources of the country, but the hu- 
man resources, — the men, the women and the children. An 
act which limits the freedom of contract, or the use to 
w^hich private property may be put, is usually spoken of 
as a police act; or an act passed under the police power of 
the state. If the act limits the freedom of the individual 
in a wholly unnecssary manner it violates "fundamental 
ideas of social justice," and the courts will declare it un- 
constitutional under the due process of law clause. In so 
doing, of necessity, the judges must determine whether the 
act in question does or does not violate fundamental ideas 
of social justice. But ideas of morality and social justice 
change with changing social and economic conditions. A 
regulation of persons or property which is arbitrary and 
unfair to one generation is not necessarily arbitrary and 
unfair to another. When, therefore, an act is attacked be- 



• RECALL OF JUDICL\L DECISIONS i59 

fore a court as arbitrary or unfair, and therefore as de- 
priving persons of their liberty or property without due 
process of law, the court is confronted with the question 
of the standard by which they shall test the question pre- 
sented: shall they test the act by the ideas prevalent in 
the past or by the ideas prevalent to-day? The courts have 
not given a clear answer to this question, and yet on the 
answer depends the usefulness of the functions performed 
by the courts in this class of cases. If the courts continu- 
ally declare acts which are in accord with modern ideas of 
Bocial justice, unconstitutional because they violate some 
outworn system of political economy, they become intoler- 
able clogs on the orderly solution of present social and 
economic problems. On the other hand, if they only de- 
clare unconstitutional, under the due process of law clause, 
those acts which do violate the ideas of social justice exist- 
ing at the present time, they perform a function of inestim- 
able value. That any act passed under the police power 
which is not contrary to the preponderant ideas of social 
justice, and which does not violate any specific clause of 
the federal or state constitution should be upheld by the 
courts is beginning to be generally recognized. Thus, Mr. 
Justice Holmes, speaking for the supreme court said: "The 
police power extends to all the great public needs. It may 
be put forth to aid of what is sanctioned by usage or held 
by the prevailing morality or strong and preponderent opin- 
ion to be greatly and immediately necessary to the public 
welfare." 

Unfortunately the courts have not always followed the 
rule here laid down. A judge is not only influenced by 
precedent if other decisions ihave been made on similar 
legislation, but he is also consciously or unconsciously in- 
fluenced by his own ideas of the necessity for the legisla- 
tion. These ideas are the result of his education and experi- 
ence, and this education and experience are not always 
such as to tend to make him sympathize with modern social 
and industrial legislation. The education and experience of 
different judges vary, and therefore, no lawyer pretends to 
be able to reconcile all the decisions under the police power 
of the different courts of the United States or even of a sin- 



i6o SELECTED ARTICLES 

gle court. Of course there are a large number of suppos- 
able acts and some that have been actually passed, that are 
contrary to present ideas of social justice, and therefore 
are clearly arbitrary and unfair. When a court declares 
such an act void no protest is heard. The weight of public 
opinion is back of the decision, for the court has correctly 
interpreted the then prevailing sentiment, the test of due 
process in this connection. 

The widespread feeling among laymen against courts, 
and even against written constitutions, which is a new and, 
I believe, an alarming feature in the current thought of the 
day,, is due to the action of the courts in holding uncon- 
stitutional much of the legislation designed to rectify some 
of the more glaring evils of our present industrial system, 
such as statutes regulating hours of labor, work in tene- 
ments, workmen's compensation acts, etc. From the point 
of view of those keenly- interested in such questions and 
coming in daily contact with the classes of the community 
practically affected by them, the effectiveness of such legis- 
lation often necessitates provisions which, to persons 
brought up under the economic and social philosophy of 
a few decades ago, appear unnecessary and arbitrary. Thus, 
much legislation which has been passed after years of effort 
on the part of those having special knowledge of existing 
conditions, and representing what to them, and indeed to 
the average man, is plain social justice, has appeared to 
some judges as unnecessary and arbitrary, and therefore 
has been held unconstitutional, under the due process of 
law clause in the constitution. Indeed, any one who has 
anything to do with promoting social legislation knows, 
that no matter how carefully an act may be drawn, there 
is always a doubt in regard to its constitutionality until 
it is supported by the highest court of the state or by the 
Supreme Court of the L'nited States. Any important act 
of any state legislature regulating social or industrial con- 
ditions is at the present day often little better than a patent 
issued by the government in a new art — of doubtful value 
until it has passed the gauntlet of the courts. 

Numerous illustrations may be cited. For example, in 
1886 the Supreme Court of Pennsylvania held unconstitu- 



RECALL OF JUDICL\L DECISIONS i6i 

tional an act which prohibited the payment of wages of 
miners in anything but mone3\ The act was aimed at the 
store-order system of payment, which was regarded by 
many persons as one of the great evils of the mining 
regions. The court might have held the act unconstitu- 
tional because it did not apply to all laborers. But "Sir. 
Justice Gordon, w'ho gave the opinion, declared that the 
provisions "are utterh^ unconstitutional and void inasmuch 
as an attempt has been made by the legislature to do what 
in this country cannot be done; that is to prevent persons 
who are siii Juris from making their own contracts." In 
order to make it entirely clear that the ground of his de- 
cision was merely that the act was arbitrary, he tells us 
that the laborer "may sell his labor for what he thinks 
best, whether in money or goods, just as his employer may 
sell his iron and coal; and any and every law which pro- 
poses to prevent him from doing so is an infringement of 
his constitutional privileges, and consequently vicious and 
void." In view of the actual conditions in the coal regions 
at that time, the court's defense of the liberty of the mine 
laborer to accept an offer of goods, is a strange mixture 
of the ridiculous and the pathetic, while the fundamental 
distinction between the act so unceremoniously declared 
unconstitutional by the court, and an act prohibiting usuri- 
ous contracts, is hard to understand. 

In spite of the opinion of the Pennsylvania court that in 
this country such an act cannot be passed, many of our 
states have passed such acts, following similar acts in Ger- 
many and England; and while the opinion of the Supreme 
Court of Pennsylvania has been followed in Illnois,^ in Kan- 
sas,* and in Missouri,^ such acts have been held constitu- 
tional in West Virginia, in Tennessee, in Colorado, and, in 
the case of Knoxville Iron Company vs. Harbison, by the 
Supreme Court of the United States."^ The condition, there- 
fore, in Pennsylvania is that, while an act prohibiting the 
payment of laborers in store orders is constitutional under 
the federal constitution, and while such legislation has been 

3 Frorer vs. The People, 141 111. 171 (1892). 

* Kansas vs. Haun, 61 Kan. 146 (1899). 

^ State vs. Loomis, 115 Mio. 307 (1893). 
«183 U. S. 13 (1901). 



i62 SELECTED ARTICLES' 

upheld in other states of the Union, it would require a 
formal amendment of the state constitution to make pos- 
silple such legislation in Pennsylvania. " 

In the well-known "tenement-house case," * an act of 
New York which prohibited the manufacture of cigars in 
tenement houses was declared unconstitutional. In Nebraska 
it was held to be bej-ond the powers of the legislature to 
provide that eight hours should constitute a legal day's work 
for all classes of mechanics, servants and laborers other 
than those engaged in farm and domestic labor. The court 
regarded the statute, not only as class legislation, but also 
as an interference with the liberty to contract. 

Colonel Roosevelt follows ]Mr. Justice Holmes. He be- 
lieves that what is due process of law depends on present, 
not on past ideas of social justice. Therefore, when a court 
declares that a particular act deprives a person of his liberty 
or property without due process, it is in accordance with 
scientific principles to submit to the people the question 
whether the act is to them arbitrary and unfair. As all 
the court has done is to declare that the act is not justified 
by the "strong and preponderent opinion," there is no 
reason why the correctness of the conclusion should not 
be referred to popular vote, in order that it may be tested 
in the laboratory where that opinion is formulated. 

But at this point it may be pointed out by those who 
doubt the practical value of Colonel Roosevelt's proposal, 
that, under our present system, if the court should be mis- 
taken in regard to the ideas of social justice prevalent at 
the time in the community, all the people have to do is to 
have an amendment passed to their constitution specifically 
stating that an act of the character declared void b}^ the 
court shall not thereafter be regarded as depriving any one 
of his liberty or propert}^ without due process of law. 

It is well, however, to realize the practical result of this 
process of specific amendment as applied to the due process 
of law clause. By such amendments the people do not merely 
sanction a particular compensation act, or particular act 

^ For the cases and discussion of the acts dealing with store 
orders see "Freund on the Police Power," sections 319, 320 and 321. 
8 /« re Jacobs, TS N. Y. 9S. 



RECALL OF JUDICL^L DECISIONS 163 

regulating the hours of labor; but any compensation act or 
regulation of hours act which may be passed no matter how 
arbitrary its provisions. 

This is exactly what has happened in New York as a 
result of the decision of the court of appeals holding the 
Workmen's Compensation Act unconstitutional. The people 
of the state seem to differ from the court on the question 
wthether such an act is contrary to the fundamental rules 
of social justice. The bar association and other bodies 
mofe especially interested have, therefore, undertaken to 
urge the legislature to amend the due process of law clause, 
by a specific declaration that nothing therein shall be held 
to prevent a workmen's compensation act. The amendment 
which has already passed one legislature is as follows: 

Nothing- contained in this constitution shall be construed to 
limit the power of the legislature to enact laws for the protection 
of the lives, health, or safety of employees; or for the payment, 
either bv emplovers or bv employers and employees or otherwise, 
either directly or through a state or other system of insurance 
or otherwise," of compensation for injuries to employees or for 
death of employees resulting from such injuries without regard 
to fault as a cause thereof, except where the injury is occasioned 
bv the wilful intention of the injured employee to bring about 
the injury or death of himself or of another, or where the injury 
results solely from the intoxication of the injured employee while 
on duty: or for the adjustment, determination and settlement, 
with or without trial bv jury, of issues which may arise under 
such legislation: or to provide that the right of such compensation, 
and the remedv therefor shall be exclusive of all other rights and 
remedies for injuries to employees or for death resulting from 
such injuries; or to provide that the amount of such compensation 
for death shall not exceed a fixed or determinable sum; provided 
that all moneys paid by an employer to his employees or their 
legal representatives, bv reason of the enactment of anv of the 
laws herein authorized, shall be held to be a proper charge in 
the cost of operating the business of the employer. 

When the amendment is finally adopted practically any 
compensation act will be constitutional as far as the state 
constitution is concerned. For instance, an act might be 
passed providing that a man permanently disabled could only 
recover an equivalent of half wages for one year, and the 
courts, bound by the amendment, would be obliged to hold 
the act constitutional. Thus, under the present system, if 
the people of the State of New York do not adopt a formal 
amendment to their constitution, they cannot have any work- 
men's compensation act. On the other hand, if they do 
adopt the amendment proposed they can have, not only the 
particular compensation act which was passed, but any com- 



i64 SELECTED ARTICLES 

pensation act, no matter how arbitrary some of its provisions 
or classifications might be. 

Or again take some recent history in Colorado. In 1899 
the supreme court of that state declared unconstitutional 
an act which prohibited the employment of persons in under- 
ground mines for longer than eight hours per day, except 
in case of emergency where life or property was in immi- 
nent danger. This decision was rendered in spite of the 
fact that the Supreme Court of the United States had, dur- 
ing the previous year, held that a statute of Utah, identical 
in terms except as to the penalty prescribed, was valid police 
regulation. As a result of this decision, the people of Colo- 
rado in 1901 approved the following amendment: "The gen- 
eral assembly shall provide by law, and prescribe suitable 
penalties for the violation thereof, for a period of employ- 
ment not to exceed eight (8) hours within any twenty-four 
(24) hours (except in case of emergency where life or prop- 
erty is in imminent danger) for persons employed in under- 
ground mines or other underground workings, blast fur- 
naces, smelters; and any other reduction works or other 
branch of industry or labor that the general assembly may 
consider dangerous to health, life or limb." Hence, exactly 
as in the other illustration given of workmen's compensa- 
tion acts, any act regulating the hours of labor in the em- 
ployments mentioned which the legislature chooses to pass, 
no matter how arbitrary the regulation, must be upheld by 
the courts acting in obedience to the amendment. It would 
be entirely possible for the general assembly to prescribe 
six hours, or four hours, or any period less than eight hours 
as the period of employment. 

It takes no prophet to foretell that, with the prevailing 
desire for legislation which will correct some of the more 
obvious defects of our social and economic S3'stem, if the 
courts of a state are out of sympathy with such legislation, 
it will not be long before, by successive amendments, the 
due process of law clause of the constitution of the state 
will be practically abrogated. If no other system be pro- 
vided, the present method of constitutional amendment, 
while permitting the people ultimately to express their de- 
sires in the constitutions, will, in the necessarily short state- 



RECALL OP^ JUDICL\L DECISIONS 165 

ment of specific amendments, endanger other constitutional 
guarantees of their liberties which all consider essential to 
retain. 

The advantages of Colonel Roosevelt's suggestion as 
applied to such instances as those referred to are obvious. 
He provides, it will be observed, a method of obtaining 
legislation which does correspond to the prevailing ideas 
of fairness and social justice, while at the same time retain- 
ing in our constitutions the principle that no act which is 
arbitrary or unfair should be recognized as law. 

There is, however, one illustration which has been pro- 
duced to show that the plan proposed by Colonel Roosevelt, 
instead of being a moderate and sane proposition as here 
claimed, is radical and dangerous. There is a class of cases 
in the courts, which, instead of declaring an act unconsti- 
tutional, merely states that it is unconstitutional as applied 
to the particular party to the litigation before the court, 
but not necessarily unconstitutional as to all persons who 
might be brought under its provisions. The case of Penn- 
sylvania Railroad vs. Philadelphia is a case in point. In 
that case the court declared that the act of April 5, 1907, 
which provided that no railroad in the state should charge 
more than two cents a mile for the transportation of pas- 
sengers, was unconstitutional as applied to the Pennsylvania 
Railroad, because that railroad could not make a reason- 
able return on its investment under such a regulation. At 
the same time the court admitted that, as far as the act 
applied to another railroad operating under different con- 
ditions, it might be constitutional. Similar decisions might 
be and have been made where the legislation has fixed the 
price on gas or other commodities furnished by a public 
service corporation. 

It is pointed out that had the plain proposed by Colonel 
Roosevelt been in operation, the question whether the act 
should or should not apply to the Pennsylvania Railroad 
could be put to popular vote, and a vote in the affirmative 
would in effect, as far as the future charges were concerned, 
reverse the judgment. 

It is, of course, beyond question that tb.e plan proposed 
by Colonel Roosevelt would cover such a decision as the 



i66 SELECTED ARTICLES 

one referred to. The act declared that no railroad operat- 
ing in the state should charge more than two cents a mile. 
There is no question but that the act applied to charges 
by the Pennsylvania Railroad. The court, therefore, de- 
clared the act unconstitutional as applied to conditions to 
which it was clearly intended to apply. 

Personally, I believe that an act of the legislature which 
does not confer the power to make railroad rates on a com- 
mission, but, as the Pennsylvania act did, lays down by 
direct legislative action a definite rate, is essentially un- 
sound and vicious. I have, therefore, sympathy with the 
ver}^ natural inquiry: ''Would you put the question to the 
people as to whether such an act, in spite of the opinion of 
the court that it left some at least of the railroads of the 
state without an adequate return on their investment, go 
before the people to be voted on?" My reply to this ques- 
tion is that I certainly should not sign a petition to have 
such an act placed before the people, any more than I 
would move for its consideration, or vote in its favor if I 
were a member of the state legislature. 

But the plan proposed by Colonel Roosevelt is not, in 
relation to the illustration now under examination, essen- 
tially different from the method of amendment now in force. 
It is perfectly possible to-day to amend our state constitu- 
tion by popular vote, and then adopt a two cents a mile 
railroad rate bill, if there are enough persons determined 
to have such an act. Colonel Roosevelt's proposition, there- 
fore, involves but a change in method. And, furthermore, 
there is just as much likelihood of the people of the State 
of Pennsylvania losing their heads and insisting on the 
adoption of such an amendment, as there is, under Colonel 
Roosevelt's plan, of their re-adopting such an act as the 
one referred to, after the decision of the court holding that, 
as applied to at least one railroad, it is unconstitutional. 

There is a large number of persons who believe that the 
system by which a court is permitted, under the due process 
of law clause, to declare void an act of the legislature, 
merely because they believe that an act is arbitrary and 
unfair, is unwise. Such persons assert that this power in 
the courts makes of this country a "judocracy," and that the 



RECALL OF JUDICLAL DECISIONS 167 

rule of judges is in the long run as intolerable, as the rule 
of an aristocracy or of any other special class. But, per- 
sonally. I believe, that many acts are passed by legislatures 
without much consideration, and often at the instance of 
particular classes of the community, which do violate preva- 
lent ideas of social justice, and that it is a peculiar advan- 
tage to our system of government in the United States, that 
we have a judiciary charged, by custom at least, if not by 
direct mandate, with the duty of refusing to regard an act 
as valid if in their opinion it is arbitrary and unfair. It 
is submitted that the people are entitled to be told by the 
court, that the act which the legislature has passed, is, in 
the opinion of at least the majority of the members of the 
highest court of the state, an arbitrary act. If after full 
notice and consideration they then choose to differ from 
the court, and adopt the act or a constitutional amendment, 
it can at least be said that the act was adopted on due con- 
sideration. I have, however, on the other hand, no sympa- 
th}' with those persons who declare, that merely because an 
act has appeared as arbitrary and unfair to a small body of 
men — perhaps merely to three out of five, or four out of 
seven, persons — that thereafter that act or any act like it 
cannot become a law, irrespective of the desire and opinion 
of the people. As between these two extremes — the desire 
of those on the one hand who would take from the judges 
all power to declare an act unconstitutional under "the due 
process clause" and on the other hand the desire on the 
part of a few to place all progress in social legislation at the 
mer(5y of the courts, the proposal of Colonel Roosevelt ap- 
peals as a sane proposition, tending to preserve the court 
in its power to set aside acts which appear to the judges 
as arbitrary, and yet at the same time preserving to the 
people the power ultimately to express in legislative form 
any law which a persistent majority desires. 

This perhaps is the proper place to refer to a question 
which is frequently asked: Under Colonel Roosevelt's plan, 
how far would the action of the people in enacting legis- 
lation which the court has previously declared to be con- 
trary to the state constitution, be regarded as a precedent 
which should influence the court when the act approved by 



i68 SELECTED ARTICLES 

the people is repealed, a second similar act is passed, and 
the question of the second act's constitutionality is brought 
before the court? If the original act was declared unconsti- 
tutional because it violated some specific clause of the state 
constitution, as the clause to which I have referred from the 
Constitution of Pennsylvania, or a clause protecting the 
obligation of contracts, the action of the people would, and 
should, have no effect on the court when another similar 
act was before it. But as 'Mue process of law" is that which 
corresponds to the preponderent and prevalent ideas of so- 
cial justice in the communit}^ a vote of the people adopting 
such an act as, for instance, a workman's compensation act, 
would, and should have great weight with the court when 
the second act on the same subject came before it, but so 
far only as it shows that such legislation, in its principle, 
is not arbitrary and unreasonable. 

There is one matter which has tended to somewhat ob- 
scure the fundamental idea which is back of Colonel Roose- 
velt's suggestion. At the present time the method of amend- 
ing our state constitution differs greatly among the several 
states. In many states, the method of amendment is ex- 
ceedingly cumbersome. In my own state, Pennsylvania, for 
instance, in order to amend the state constitution, the 
amendment must be passed by two successive legislatures 
before it can be voted on by the people, and the legislature 
meets only on alternate years. As a result of this and sim- 
ilar conditions in other states, there is a very widespread 
feeling among large classes of people that the methods of 
amending state constitutions, and even our national consti- 
tution, should be less cumbersome than they are. This is 
not the place to enter on a discussion of the merits or de- 
merits of this suggestion. The plan proposed by Colonel 
Roosevelt is, as I have tried to show, a method of dealing 
with the differences of opinion between the court and the 
people on what regulations are arbitrary and unfair when 
applied to existing social and economic conditions. The 
length of time Avhich should elapse between the decision 
of the court declaring the act void and the vote of the 
people on the act is a matter of detail. By this I do not 
mean it is unimportant. It is very important that the peo- 



RFXALL OF JUDICIAL DECISIONS 169 

pie shall have an opportunity to consider carefully the act 
and the opinion of the court before being- asked to vote upon 
it; but at the same time, it is a detail in that it does not affect 
the essential features of Colonel Roosevelt's plan, whether 
the interval of time is three months, six months, a year or 
even more. 

One other matter should be referred to. Colonel Roose- 
velt has emphasized the fact that his suggestion for all 
present practical purposes applies only to acts which have 
been declared unconstitutional because they violate state 
constitutions, and not to acts declared unconstitutional be- 
cause they violate the national constitution. I have em- 
phasized the fact that the value of the suggestion made by 
him is largely confined to cases in which acts have been de- 
clared unconstitutional because they violated that clause of 
the state constitution which prevents property from being 
taken without due process of law. But the fourteenth amend- 
ment of the federal constitution also contains a provision 
"that no state shall deprive any person of his life, liberty, 
or property without due process of law." Suppose an act 
comes before the state court and is declared unconstitu- 
tional because depriving a person of his property and with- 
out due process of law contrary to that provision in the 
state constitution. Subsequently, under Colonel Roosevelt's 
plan, the act is voted on by the people, and becomes, as 
far as their votes can make it, a law of the state. The act 
again comes before the same court. The action of the peo- 
ple prevents that court from saying that the act is not a law 
because against the state constitution; but what prevents 
them from declaring the act unconstitutional because it vio- 
lates the fourteenth amendment of the federal constitution? 
There is, of course, nothing to prevent their doing so. There 
is nothing, for instance, to prevent the Supreme Court of 
New York, after the state constitution is amended so as 
to permit the passage of workmen's compensation act, and 
another workmen's compensation act is passed, from declar- 
ing the new act void under the federal constitution. But 
the action of the people has at least enabled the question of 
the constitutionality of the act under the federal constitu- 
tion to be brought before the Supreme Court of the United 



170 SELECTED ARTICLES 

States. It is true that the methods of doing this under the 
present provisions of the federal Judiciary Act are exceed- 
ingly cumbersome. Under the twenty-fifth section of that 
act, it is at present impossible to take a case to the Supreme 
Court of the United States from the highest court of the 
state where the latter has declared the act unconstitutional 
under the federal constitution. To bring the question be- 
fore the supreme court, therefore, a case, and perhaps the 
first case, must be brought in the federal courts under the 
provisions of the third article of the Constitution of the 
United States which gives to those courts jurisdiction in 
cases of diverse citizenship. There is, however, a move- 
ment, now embodied in an act pending in congress, and 
which has the support of the American Bar Association, 
to amend the judiciary act which, should it be successful, 
will enable an appeal to be taken to the Supreme Court 
of the United States from a state court by either party, 
when the state court holds an act unconstitutional under 
the federal constitution. In any event, however, as stated, 
the Supreme Court of the United States would have an op- 
portunity to pass on the question. 

It may be asked, what would be done when the Supreme 
Court of the United States declared an act unconstitutional 
under the "due process" clause of the fourteenth amend- 
ment? If Colonel Roosevelt's plan is sound, why should it 
not appl}^ and the act be referred to all the people of the 
United States? There is, of course, in theory no reason 
why this should be done. I think, however, you will agree 
with me that it will be better to meet that question when, 
in passing upon acts demanded by the sense of social jus- 
tice prevalent in the persistent majorit}^ of the people, the 
action of the Supreme Court of the United States in repeat- 
edly declaring them unconstitutional, has created a strong 
sentiment among the people that that court does not repre- 
sent modern ideas of social justice. 

While this is the feeling towards many state courts, it 
is not to-day the feeling towards the Supreme Court of the 
United States. There is, I am glad to say, a very general 
belief that that court, as now constituted, is probably in rea- 
sonably close touch with the desire of the people for social 



RECALL OF JUDTCLVL DECISIONS 171 

and economic legislation looking to the betterment of the 
conditions of life. The prevailing confidence that the Su- 
preme Court of the United States will uphold, in spite of 
the decision of the Court of Appeals of New York, the con- 
stitutionality of any reasonable workmen's compensation act, 
either elective or compulsory, is an example of what I mean. 
Therefore, I think Colonel Roosevelt indicates the posses- 
sion of a ver}' large measure of practical wisdom when he 
suggests, that the plan he proposes, for the present at least, 
be confined to acts declared unconstitutional by state courts 
under state due process of law provisions. 



Law Notes. 16:4-6. April, 1912. 

Recall of Decisions. Berkeley Davids. 

It is not at all clear that any disorder to our system of 
jurisprudence would flow necessarily from the adoption of 
this proposal. Constitutions are the enactment of the peo- 
ple. Their provisions are determined upon by the people's 
representatives or agents, and these provisions are sub- 
mitted to the people for their approval. The amendments 
to the Constitution that are made from time to time are 
enacted in this mann'er. It rests with the people to decide 
what provisions the Constitution shall contain, and the true 
meaning and import of any particular provision must be 
what the body of people who adopted it conceived its 
meaning and import to be. And in determining the import 
of a constitutional provision, is it not the duty of the 
courts to endeavor to discover this popular concept or com- 
mon understanding? If this is true, how much more cer- 
tain are we of getting at that understanding by submit- 
ting the question to the people directly? The case is sim- 
ply one of the people resuming the function with which 
they have clothed the court, and determining the question 
at first hand. 

Again, it must be admitted that the common under- 
standing of constitutional provisions must be interpreted 
with a view to changes in conditions. The federal Consti- 
tution concededly has been held by the Supreme Court 



172 SELECTED ARTICLES 

to have a meaning quite different from that placed upon 
it by its framers. And this is as it should be. Otherwise 
progress would be stopped. Now, then, if it be admitted 
that the Constitution is plastic, suiting itself to changes 
in the social and economic life of our people and the 
growth of our civilization, who is it that shall say, after 
the lapse of a centur}', what is the import of a particular 
constitutional provision? The capacity to judge presup- 
poses a knowledge of our economic life both high and low 
— that of the butcher and baker as well as the banker and 
broker. Are any three or five or seven judges endowed 
with this knowledge — men who have spent their lives with 
the technicalities of the law? If they are, then we had 
better clothe them with the entire legislative function, 
and do away with the legislature, to say nothing of the in- 
itiative and referendum. Conceive the judges of our courts 
to be such omniscient beings that they are in touch with 
the current of thought and development. They mould 
their decisions to fit the needs of changing conditions so 
nicely that legislation becomes unnecessary. Such judges 
never would have recognized the abomination known as the 
fellow-servant doctrine (indeed the Missouri court did not 
for a time, if we remember correctly). Nor would there 
be such a thing as overruling a previous decision. 

This is not the case, however. Our judges are not om- 
niscient. They do not express public sentiment and opin- 
ion at times as it is their duty to do. "It is proper that 
both legislative and judicial decision should keep abreast 
of the times," said Mr. Justice Paxson in Dimmick v. Cook, 
115 Pa. St. 580, 8 Atl. 627. In fact the courts are always 
one jump behind the popular concept of the law. Law is 
custom principally, and custom is made by the people, not 
by the judges. The people create the custom, and the 
judges apply it under the name of law. We know that 
there has been a rising tide of sentiment in favor of the 
workaday world as against the capitalist and employer. The 
decisions of the courts in a majority of states in construing 
the common law disclose this tendency. Servants actions 
are given greater consideration, recoveries being allowed 
in cases that formerly would have been dismissed. In the 



RECALL OF JUDICL\L DECISIONS 173 

construction of statutes the same tendency is noticeable. 
This, it is asserted, is the general tendency. The courts of 
some states are much more liberal — that is, in touch with 
the development of the idea — than are others. Some courts 
are conservative, reactionary. And so it is not surprising 
to find the court of New York holding a Workmen's Com- 
pensation Act invalid, and. at the same time, the court of 
Washington sustaining the same act against the same ob- 
jections. 

The too great conservatism of some courts is evidenced 
by a multitude of instances wherein they have so construed 
statutes as to make them operate upon nothing, thereby 
necessitating further legislation, which in turn has been 
restricted unduly in its operation by the court. And so a 
small number of judges have been able to defeat and set 
at naught the purpose of the people of the commonwealth 
for years at a stretch. 

The recall of decisions has been compared to amend- 
ments V3 the Constitution, it being urged that the present 
machinery for altering the fundamental law is adequate, 
and hence that the recall is superfluous. But the inter- 
pretation of an existing constitutional provision differs in 
some aspects from amending that instrument. The con- 
stitutional guaranties of "due process" and "equal protec- 
tion" can be and have been varied by judicial interpretation. 
But no amendment of these provisions has ever been at- 
tempted. Many publicists are clamoring for a partial or 
even total abrogation of our state constitutions, asserting 
that if they ever were useful and necessary that time has 
passed. And it seems to be inevitable under the existing 
conditions that some changes must be made. When a court 
holds the Workmen's Compensation Act to be invalid on 
the ground that it takes the employer's property without 
due process of law, the only way to circumvent this im- 
pediment to progress is to amend the due process clause. 
Rather than resort to this expedient, would it not be bet- 
ter to adhere to the interpretation method of amendment 
and recall the court's decision? Viewed in this aspect the 
recall of decisions may be a means of preserving the con- 
stitution rather than an engine to destroy it. The action 



174 SELECTED ARTICLES 

of the voters upon the question propounded to them may 
be deemed to be the same in either case. Their answer 
will be the same whether the question is termed an amend- 
ment of the Constitution by adding- certain words thereto, 
or whether it is denominated an interpretation of the Con- 
stitution so as to give it a certain meaning. Futhermore by 
recalling a decision we do not increase the amount of writ- 
ten law, whereas by the adoption of a constitutional amend- 
ment we give the courts an opportunity to quibble over 
the meaning of every word thereof and to fill pages of the 
reports with nice calculations in accordance with ancient 
rules as to what the people meant in adopting it. 

President Taft also says in the speech above referred to: 
"The interpretation of the Constitution and the operation 
of a law to violate some limitation of that instrument are 
often nice questions to be settled by judicial reasoning and 
farsighted experience, which are not be expected of the 
electorate, or welcomed by it." And again: "A most 
serious objection to the recall of decisions is that it de- 
stro3^s all probability of consistency in constitutional inter- 
pretation." A number of answers may be made to these 
objections. One is that if "judicial reasoning" were dis- 
pensed with in some measure we should not be greatly worse 
off than we are. "Rules of reason" have served to muddle 
as much as to clarify many constitutional questions. What 
we need is more practical sense. Furthermore a host of 
excellent judicial decisions have been rendered without re- 
sort to reasoning. As for the "farsighted experience," it 
may be answered that the legislatures have been kept very 
busy in changing many of the rules established by the 
courts' farsightedness — on the law of master and servant 
for example. 

Nor does it seem possible that the "popular decisions" 
can be more inconsistent than those of the courts — some 
courts, at least. On every sort of constitutional question 
we find the courts disagreeing with each other. Earlier 
decisions are overruled, and afterwards reestablished. Some 
lines of decisions of the United States Supreme Court show 
a repeated wabbling to and fro upon questions; nor does 
the court itself try to harmonize these cases. If, then. 



RECALL OF JUDICL\L DECISIONS 175 

judicial minds are uncertain and arrive at conflicting con- 
clusions, it would seem that the ruling of the people is as 
apt to be right as. or more apt to be right than, is the de- 
cision of the court, because the people are "abreast of the 
times," whereas the courts frequently are not. 

It is a fact that the courts are continually engaged in 
overruling (or recalling) their own decisions. What, then, 
is so preposterous in the people accomplishing the same 
end? Why should it occur more often in the latter case? 
Some of the Colonel's critics would lead you to suppose 
that he proposes a referendum to the people of every con- 
stitutional question raised in any judicial proceeding. Of 
course the Colonel did not contemplate this. His idea, if 
we grasp it correctly, is that when a decision of the court of 
last resort overthrows legislation which plainly expresses 
the people's conception of what the law should be, they 
shall have a right by a simple referendum to reverse the 
decision and substitute their interpretation of the consti- 
tution for that of the court. Such a referendum might not 
occur as often as do referenda of proposed constitutional 
amendments. Possibly it would never be necessary to resort 
to it. The courts might become closer students of econom- 
ic conditions and render only decisions meeting popular 
approval. 

Annals of the American Academy. 43: 278-85. September, 

1912. 

Dangers That Lurk in the Recall of the Judiciary. 

James A. Metcalf. 

The Judicial Referendum 

In view of very recent political discussions, there should 
be added hereto a brief consideration of a proposed judicial 
reform which is sometimes referred to as "the recall of deci- 
sions," but which is more properly entitled "The Judicial 
Referendum." 

There is no identity of operation or effect between the 
recall of judges and this proposed judicial referendum, 



176 SELECTED ARTICLES 

and the two should not be confused in consideration. The 
one is demanded as an available weapon to be wielded by- 
popular frenzy; the other is desired to be used as a well- 
considered, thoughtful means for insuring genuine popular 
government in finality. 

The judicial referendum does not propose to disturb the 
judges in the exercise of their ordinary functions, nor in 
the determination of the multitudinous causes which make 
up the routine of the courts. It will not prejudice the deci- 
sions of the judges through fear or threat of the imposi- 
tion Oif a personal penalty ; in fact, its operation would have 
no direct relation to be personnel of the courts. In this 
respect it is entirely dififerent from the recall, and it must 
not be judged from the same viewpoint. The dangers that 
pertain to the latter are entirely absent from the former. 

Question of "Constitutionality" Only 

The judicial referendum would have to do with the final 
determination of the constitutionality of the laws only. I 
can well understand that even this suggestion, is a shock to 
the long-cherished doctrine of the infallibility and inviolate 
integrity of supreme court decisions. But let us note that 
the judicial referendum would simply proceed upon the un- 
doubtedly correct theory that, in a genuinely popular govern- 
ment the will of the people of rights should be in our own gov- 
ernment, eventually must be, supreme in all things. It must 
be admitted in theor}^ even though the proposed practice 
be dubiously considered, that the people are entitled to 
clearly express their will and by some means make the same 
effective in every branch of the government. Therefore, 
if the courts shall determine, through resort to technicality 
or pure precedent, that a certain law is unconstitutional and 
shall hereupon suspend its operation, even though such law 
would seem to have been duly enacted by the people or their 
accredited representatives, it is contended that there shall 
still reside in the people, as of inherent right, the power to 
determine, by means of a judicial referendum invoked by 
petition in an orderly manner, whether such layv shall finally 
stand in legal sufficiency and sanction. 



RECALL OF JUDICL\L DECISIONS 177 

Not a "Recall of Decisions " 

It is not proper to name such a process "the recall of 
decisions," which phrase does not clearly establish its proper 
relation to the general scheme of government. It is of 
higher status than such a description would indicate. It is 
in reality the re-enactment of a law that has come into 
conflict with judicial conservatism. It constitutes a test of 
the certainty of the popular will through a required re-ex- 
pression thereof and is in effect a broad application of the 
principle underl3-ing the initiative and referendum. It has 
been described by some as a quick and easy means for 
effecting a constitutional amendment, but that again places, 
it on a too low plane, for it occurs to me that legislation 
which had survived the adverse action of the supreme court 
and had been thereupon re-enacted into law by the direct 
vote of the people would possess even a greater sacredness 
and sanction than the constitution itself, whose title to ven- 
eration has hitherto rested largely upon its undisturbed exist- 
ence as the generic, formative law of the land. 

No Disturbance of the Courts 

While the recall of judges would proceed with demoral- 
ization of the courts and would weaken the entire body of 
the law because of the resultant impotency of its inter- 
preters and their constant fear of popu.lar revenge, the oper- 
ation of the judicial referendum would in no sense disturb 
or interrupt the ordinary course of jurisprudence, nor would 
it surround the judges with any greater uncertainty than 
now confronts them in the possibility of review and rever- 
sal by the court of final resort. 

I do not apprehend that the judicial referendum system 
would abolish the supreme courts or lessen their usefulness. 
By its introduction we would simply erase from our present 
judicial system, the doctrine of the inviolability of decisions 
on constitutional questions, and wo.uld substitute the people 
as the court of final appeal, as the residual right of democra- 
cy. Full consideration would still be given supreme court 
decisions. In a majority of cases such decisions would un- 



178 SELECTED ARTICLES 

doubtedly stand without question, for they would be more 
carefully and conscientiously considered than is now some- 
times the case. If any faction proposed to overturn a su- 
preme court decision, the ultimatum of the court and its 
accompanying reasons would exert a strong moral efifect for 
the preservation of peace and good order. The invocation 
of the judicial referendum would take time, and through it all, 
with platform, press and pulpit at work, no ill-considered or 
dangerous action would result. 



i 

I 



NEGATIVE DISCUSSION 

New York State Bar Association. Proceedings. 35: 148-67. 

1912. 

Judicial Decisions and Public Feeling. Elihu Root. 

The general respect for the decisions of our courts, 
which has sustained the judicial branch of our government 
as a distinctive and necessary part of our constitution sys- 
tem, has been based upon the idea that judicial decisions 
are something quite distinct and different from the expres- 
sion of political opinions or the advocacy of economic or 
social theories. Profoundly devoted to the -reign of law, with 
its prescribed universal rules, as distinguished from the reign 
of men with their changing opinions, desires, and impulses, 
our people have always ascribed a certain sanctity to the judi- 
cial office, have invested its holders with a special dignity, 
and have regarded them in the exercise of their office with a 
respect amounting almost to reverence, as above all con- 
flicts of party and of faction, because these officers are the 
guardians of the law as it is. Our people have been imbued 
with a deep sense of the truth that upon the preservation of 
the law as it is at ever}' moment in its course of continuous 
change and development, depend the preservation of order, 
the prevention of anarchy, the protection of the weak 
against the aggression of the strong, the perpetuity of free 
institutions, the continuance of liberty and justice; matters 
of infinitely greater concern than all the new proposals 
which excite the activity and controversy of parties and 
political leaders, of critics and reformers. 

If this view is to be changed and the decisiotis of our 
courts are to be considered in the same way and upon the 
same presumptions, and with no greater respect for author- 



i8o SELECTED ARTICLES 

ity than in the case of political opinions, the authority of 
the courts will inevitably decline, the independence of the 
judicial branch will cease, judicial decision will interpret the 
law always to suit the majority of the moment, and the 
recall will be the natural and logical expression of the 
relation to be assumed between the people and the courts. 
What are the causes of this impatience with courts? It 
is plain that the difficulty does not arise from any deteriora- 
tion in the character of the judges who preside in our courts. 
There never has been a time when the bench in America, 
both under the federal and state systems, has been filled 
by men of greater purity, ability, and strength and upright- 
ness of character. There never has been a time when the 
favor of the rich or of men powerful in social or business 
afifairs played so small a part in determining the selection 
of judges. Now, if ever, the terms of the federal judicial 
oath truly represent the controlling influence of judicial life 
in both the nation and the states. 

'T . do solemnly swear (or affirm) that I will ad- 
minister justice \^'ithout respect to persons, and do equal 
right to the poor and to the rich, and that I will faithfully 
and impartially discharge and perform all the duties incum- 
bent upon me as according to the best of my abilities 

and understanding, agreeably to the Constitution and laws 
of the United States: So help me God." 

It is true that defects in procedure, that technicalities 
and delays which impede the course of justice here and else- 
where have tended to decrease the general respect of the 
community for every one concerned in the administration 
of the law, but I think this applies less to the courts them- 
selves than it does to the bar, and justly so. It is the bar 
that makes up a great part of all our legislatures and is 
responsible for the stupid and mischievous legislation re- 
garding procedure which hampers the courts in their 
efforts to do justice. It is the bar which, knowing all 
the facts and familiar with all the evils, insists upon the 
continuance of our methods to promote the immunity of 
criminals and the hindrance of justice to the point of denial. 
The primary fault and the primary duty of reform rest with 



RECALL OF JUDICL^L DECISIONS i8i 

us. I do not think that this matter plays any very great 
part in the creation of the feeling against the courts. 

The real difficulty appears to be that the new conditions 
incident to the extraordinary industrial development of the 
last half century are continuously and progressively demand- 
ing the readjustment of the relations between great bodies 
of men and the establishment of new legal rights and obliga- 
tions not contemplated when existing laws were passed or 
existing limitations upon the powers of government were 
prescribed in our Constitution. In place of the old indi- 
vidual independence of life, in which every intelligent and 
healthy citizen was competent to take care of himself and 
his family, we have come to a high degree of interdepend- 
ence, in which the greater part of our people have to rely 
for all the necessities of life upon the systematized co-op- 
eration of a vast number of other men working through 
complicated industrial and commercial machinery. Instead 
of the completeness of individual efifort working out its own 
results in obtaining food and clothing and shelter, we have 
specialization and division of labor which leaves each in- 
dividual unable to apply his industry and intelligence except 
in co-operation with a great number of others whose ac- 
tivity conjoined to his is necessary to produce any useful 
result. Instead of the give and take of free individual con- 
tract, the tremendous power of organization has combined 
great aggregations of capital in enormous industrial estab- 
lishments working through vast agencies of commerce and 
employing great fnasses of men in movements of produc- 
tion and transportation and trade so great in the mass that 
each individual concerned in them is quite helpless by him- 
self. The relations between the employer and the employed, 
between the owners of aggregated capital and the units 
of organized labor, between the small producer, the small 
trader, the consumer, and the great transporting and manu- 
facturing and distributing agencies, all present new ques- 
tions for the solution of which the old reliance upon the 
free action of individual wills appears quite inadequate. 
And in many directions the intervention of that organized 
control which we call government seems necessary to pro- 
duce the same result of justice and right conduct which 



i82 SELECTED ARTICLES 

obtained through the attrition of individuals before the new 
conditions arose. 

Such a readjustment must of necessity be a gradual pro- 
cess. It cannot be produced at a single blow from the mind 
of any one group or interest or class. Opinions must and 
will always differ as to the nature of changes which should 
be made and the extent to which they should go, and those 
differences must be settled in some way. There will be 
differences not merely as to what change should be brought 
about, but how it should be accomplished. Mistakes will be 
made, experiments will be tried and will fail, and experi- 
ence will suggest more adequate remedies. Ill-conceived 
schemes of legislation or amendment will be attempted and 
steps will have to be retraced. Erroneous views, arising 
because some parts of our people fail to understand phases 
of our vast and complicated industrial life with which they 
are not familiar, must be corrected. Distorted and exag- 
gerated conceptions disseminated by men of one idea or by 
men overinsistent on their own personal interests, or overex- 
cited by contemplating unhappiness and privation which 
perhaps no law or administration could prevent, have to 
be reduced to proper proportions. Ultimately, step by step 
through the ordinary processes of self-government, through 
investigation, education, the spread of true understanding 
of facts and full discussion, the process of readjustment is 
being worked out and will be worked out to conform to 
the mature, instructed, considerate judgment of the self- 
governing people of the country. 

It is because in the course of this process of readjustment 
occasionally a court finds that some new experiment in leg- 
islation or in administration contravenes some long estab- 
lished limitation upon legislative or executive power, or 
finds that some crudely drawn statute is inadequate to pro- 
duce the effect that was expected of it, or enforces some law 
which has unexpected results, that the present irritation and 
impatience towards the courts has been created. 

There are several things to be said about this feeling. 
In the first place it rests upon a misconception as to the 
true function of a court. It is not the duty of our courts 
to be leaders in reform or to espouse or to enforce eco- 



RECALL OF TUDICLAL DECISIONS 183 

nomic or social theories, or, except within very narrow 
limits, to readjust laws to new social conditions. Undoubt- 
edly every judge is bound to consider two separate ele- 
ments in his decision of a case: 'one, the terms of the law, 
and the other, the conditions of actual life to which the 
law is to be applied; and it is only by considering both 
that the law can be applied in accordance with its real spirit 
and intent. But the judge is still always confined within the 
narrow limits of reasonable- interpretation. It is not his 
function or within his power to enlarge or improve or 
change the law. His duty is to maintain it, to enforce it, 
whether it be good or bad, wise or foolish, accordant with 
sound or unsound economic polic3\ It is very important to 
have reformers and advocates of all good causes, and 
thoughtful and public-spirited citizens who are keenly alive 
to the defects in our system of laws and solicitous to find 
means to cure them. But the courts are excluded, by vir- 
tue of the special duty imposed upon them, from playing 
any of these parts. Their duty is to maintain and enforce 
the law as it is at the moment, to interpret it in sincerity 
and truth under the sanction of their oaths and in the 
spirit of justice, to accept loyally every change made in it 
by the law-making power, but to stand firmly against any 
attempt to ignore it or nullify it, except by the legitimate 
action of the popular sovereign in its making of consti- 
tutions, or the legislative branch of the government in its 
making of statutes in conformity to the Constitution. 

This impatience of the courts also proceeds upon a sec- 
ond misconception as to the true nature of the remedy for 
an unsatisfactory decision. When a court of last resort has 
said the law is thus and so, and the law as so declared bars 
the way of some popular movement, the true remedy is, 
not to threaten the court with extinction or its members 
with punishment unless they will decide against their con- 
victions; but it is to set the law-making body in opera- 
tion to change the law, and if a majority of the people wish 
the law changed it will be done. If the community is not 
satisfied with a law as it is declared by the court to be, 
the thing really desirable is, not to coerce or reconstruct a 
court to say that the law is what it is not, but to make 



i84 SELECTED ARTICLES 

the law what the community wishes it to be. The only real 
obstacle to any such course rests in the fact that it fre- 
quently happens that the people of a state or of the coun- 
try are not yet ready for the change which is desired by 
the impatient ones. These may be merely in advance of 
the rest of the people. It may be, and doubtless it fre- 
quently is the case, that their views are the views which 
ought to be adopted and which wnll ultimately be adopted 
by the people in their law making, but the process of secur- 
ing the adoption of new and advanced ideas may be long 
and tedious. It may involve a campaign of education, a re- 
conciliation of conflicting views, and much discussion as 
to the kind and form of change. I cannot think that to 
incur the necessity of this process is an evil. Important 
changes in the law ought to be fully discussed and under- 
stood, and approved by the mature judgment of the peo- 
ple of the country. We have too many immature and 
premature attempts at making laws before the subjects to 
which they relate have been thoroughly discussed and ma- 
ture conclusions have been reached. 

In considering the inconveniences which have arisen 
from decisions of the courts enforcing constitutional pro- 
visions as against popular statutes, it is a mistake to con- 
sider the particular incident by itself and to lose sight of 
the enormous and overwhelming importance of the system 
to which these inconveniences are incidents, and to forget 
that by destroying the independance and authority of the 
courts and the popular habit of submission to their decisions 
we would lose infinitely more than we would gain. Let me 
try to state the essential thing that we would lose. 

One of the fundamental ideas of our government is that 
all the officers to whom the people, whether of the nation 
or of the state, intrust the powers of government shall be 
subject to certain dehnite prescribed limitations upon their 
power. These limitations are of two kinds. First, those 
which relate to the distribution of powers. The national 
government and the respective state governments are each 
to keep within its own prescribed field of action. The 
legislative, executive, and judicial officers are to be con- 
fined to their own departments of government. Within those 



. { 



RECALL OF JUDICL\L DFXISIONS 185 

departments particular officers, wherever it is found ex- 
pedient, have specific lines of limitation upon their power. 
If an officer undertakes to do something which is not with- 
in the prescribed limits of his authority, his action is void 
and without legal effect. No matter how able and patriot- 
ic a president or a governor may be, no matter how wise 
a Congress or a legislature may be, no matter how much 
they may deem it to be for the public good that they should 
invade the field of action of another department, they are 
denied the right to do it, not because it might not be a 
very good thing in the particular case, but because the pre- 
vention of unlimited power is of such vast importance to 
liberty that no particular case can possibly be important 
enough to justify abandoning the maintenance and the ob- 
servance of the general rule of prescribed limitations. 

The other kind of prescribed limitation is for the protec- 
tion of the individual citizen against the power of govern- 
ment. Our fathers had experienced some and observed many 
invasions of individual liberty and individual right of which 
governments had been guilty. They realized that the nature 
of men is not greatly changed by a change in the form of 
government, and that the possession of overwhelming power 
afTords a constant temptation to override the rights of the 
weak. Accordingly, both in the nation and in the state, they 
prescribed certain general rules which prohibited all officers 
to whom they intrusted the powers of government from 
domg certain things, such as inflicting cruel and unusual 
punishments, abridging freedom of speech or of the press, 
prohibiting the free exercise of religion, putting any person 
twice in jeopardy for the same ofifense, compelling any one 
to be a witness against himself in a criminal case, taking 
private property for public use without just compensation, 
depriving any one of life, liberty, or property without due 
process of law. It frequently happens that inconvenience 
results from the application of these rules. Criminals es- 
cape because they cannot be tried twice or cannot be com- 
pelled to testify; public improvements are hindered because 
property cannot be taken except by due process of law; 
the liberty of the press and of speech often degenerates 
into license, and many poor people are misled to their harm 



i86 SELECTED ARTICLES 

b}^ the doctrine of strange and irrational religious sects. 
Nevertheless the maintenance of these rules is the bulwark 
which protects the weak individual citizen in the possession 
of those rights which constitute liberty; and it is because 
these rules with all their inconveniences, if maintained at 
all, must be always maintained, that the public officer who 
oversteps them, with however good intentions and for what- 
ever benefit to the public, becomes a trespasser without 
authority and without protection of the law. 

A second and equally necessary feature of our system 
s that these limitations, both those which distribute official 
powers and those which declare the great rules of right con- 
duct, must be prescribed abstractedly and impersonally, 
rather than w^ith reference to particular cases or particular 
exigencies or particular individuals. The difference is gen- 
eric, essential, world wide. The very fact of making a 
Constitution which is to be binding upon legislatures and 
executives and judges when they come to deal with par- 
ticular cases exhibits the rules prescribed in the Constitu- 
tion in sharp distinction from the determination of official 
power when particular cases arise. It is not possible for 
any human power to make the determination of a legislature 
or executive at the time of action the same thing as an 
obligatory general rule of conduct prescribed beforehand. 
The difference between a constitutional convention prescrib- 
ing constitutional limitations and a legislature dealing with 
particular exigencies is not that one represents the people 
any more truly than the other, or is of any higher char- 
acter than the other, but it is that one deals with justice, 
with right conduct, with the requirements of liberty, with a 
due balance and distribution of the powers of government, 
impersonally and in the abstract without reference to in- 
dividuals or the interests or prejudices or inconveniences 
of particular cases; while the other deals with the particular 
cases to which the general impersonal rule applies. So we 
deal with abstract rules by themselves, and we deal sep- 
arately with the particular cases in which governmental ac- 
tion is to be governed by those rules. We know that hu- 
man nature is such that the two cannot be combined; that 
a decision upon a rule of abstract justice cannot be com- 



RECALL OF JUDICL-\L DECISIONS 187 

bined with a decision as to the accomplishment of a par- 
ticular wish, any more than a man can render justice when 
he sits as a judge in his own cause. 

A third feature of our system which is a necessary cor- 
ollary to the other two. and essential to them, is the vesting 
of power in the judicial branch to determine when the ac- 
tion of the legislative and executive branches or any officer 
of them eversteps the limitations which have been pre- 
scribed. Without this all our bills of right and limitations 
upon official power would be idle forms of words. If the 
law-making body of the moment, whether it be a repre- 
sentative legislature or a majority at the polls, is to determ- 
ine at the time of action either what shall be the rules to 
control its conduct or the question whether its conduct con- 
forms to the rules already prescribed, the conduct is con- 
trolled only by the will of the law-making body at the mo- 
ment of action, and our whole system of prescribed limi- 
tations upon power disappears. The necessary result is that 
the barriers we have set up from the beginning of our gov- 
ernment against official usurpation of power and against 
official invasion of the liberty and rights of the individual, 
are broken down, and the power of the majority accord- 
ing to the will of the moment is supreme and uncontrolled. 

If the people of our country yield to the impatience 
which would destroy the system that alone makes effective 
these great impersonal rules and preserves our constitu- 
tional government, rather than endure the temporary incon- 
venience of pursuing regulated methods of changing the 
law, we shall not be reforming, we shall not be making 
progress, but we shall be exhibiting the weakness which 
thoughtful friends of free government the world over have 
always feared the most — the lack of that self-control which 
enables great bodies of men to abide the slow processes 
of orderly government rather than to break down the bar- 
riers of order when they obstruct the impulse of the mo- 
ment. 

What is the remedy for this condition? How can the 
process be arrested? 

I think the courts can do something. They may some- 
times perhaps keep more fully in mind what Chief Justice 



i88 SELECTED ARTICLES 

Marshall said in the case of Fletcher v. Peck: "The ques- 
tion, whether a law be void for its repugnancy to the Con- 
stitution, is. at all times, a question of much delicacy, which 
ought seldom, if ever, to be decided in the afBrmative, in a 
doubtful case. The court, when impelled by duty to ren- 
der such a judgment, would be unworthy of its station, 
could it be unmindful of the solemn obligations which that 
station imposes. But it is not on slight implication and 
vague conjecture, that the legislature is to be pronounced 
to have transcended its powers, and its acts to be consid- 
ered as void. The opposition between the Constitution and 
the law should be such that the judge feels a clear and 
strong conviction of their incompatibility with each other." 

Sometimes perhaps they may take a little more pains, 
when the}^ have to decide against the constitutionality of a 
law, to make the grounds of their decision intelligible not 
merely to technical lawyers, but to laymen. Although the 
decision in a case technically affects only the parties, when 
the case becomes the occasion for a decision affecting great 
numbers of people it is as much a judicial duty to see that 
the people do not misunderstand the ground and scope of 
the decision as it is to see that the parties and their coun- 
sel are informed. 

It may be also that some judges who have been long 
withdrawn by their duties from active participation in cur- 
rent affairs could profitably study with more interest those 
changes of social conditions which make necessary new 
applications of the police povvcr of the state — that vast and 
adaptable power preserved in all constitutions, the basis 
of which rests in common sense and the relation of which 
to the specific guaranties of the Constitution must always 
be subject to adjustment according to the varying needs 
of the time. The Supreme Court says of this power in 
the case of Barbier v. Connolly: "The Fourteenth Amend- 
ment, in declaring that no State 'shall deprive any person 
of life, liberty, or property without due process of law, 
nor deny to any person within its jurisdiction the equal 
protection of the laws,' undoubtedly intended not only that 
there should be no arbitrary deprivation of life or liberty, or 
arbitrary spoliation of property, but that equal protection and 



RECALL OF JUDICL\L DECISIONS 189 

security be given to all under like circumstances in the en- 
joyment of their personal and civil rights; that all persons 
should be equally entitled to pursue their happiness and 
acquire and enjoy property; that they should have like ac- 
cess to the courts of the country for the protection of their 
persons and property, the prevention and redress of wrongs, 
and the enforcement of contracts; that no impediment should 
be interposed to the pursuits of anyone except as applied 
to the same pursuits by others under like circumstances; 
that no greater burdens should be laid upon one than are 
laid upon others in the same calling and condition, and that 
in the administration of criminal justice no different or 
higher punishment should be imposed upon one than such 
as is prescribed to all for like offenses. But neither the 
amendment — broad and comprehensive as it is — nor any 
other amendment, was designed to interfere with the power 
of the state, sometimes termed its police power, to pre- 
scribe regulations to promote the health, peace, morals, 
education, and good order of the people, and to legislate so 
as to increase the industries of state, develop its resources, 
and add to its wealth and prosperity." 

The bar can do much. A lawyer has special opportun- 
ity to acquire a just sense of the importance of preserving 
the constitutional system of our country and of maintaining 
the undiminished power of a really independent judiciary. 
He can explain this and insist upon it among his clients 
and his fellow citizens in private and in public, and can se- 
cure for it from citizens in general that attention and 
thoughtful consideration which alone is necessar)^ to secure 
just results among an intelligent people. 

One other thing we can all do, and that is to encour- 
age and exhibit the true spirit of temperate and patriotic 
consideration, which is the primary requisite to success in 
working out the problems of self-government. 

Forum. 48: 45-60. July, 1912. 

Constitutional Chaos. Charles H. Hamill. 

Recall of decisions means amending state constitutions 
so as to provide that they may thereafter be amended by 



190 SELECTED ARTICLES 

a majorit}' popular vote, adopting, not general provisions 
affecting all alike, but regulations which may be special and 
temporary. Not only would it be for many reasons a dan- 
gerous governmental device, but it would have exactly the 
opposite effect to that claimed by its advocates, giving less 
rather than more immediate control to the people over 
their political destinies and making our institutions after a 
little time less instead of more adaptable to changing needs. 

Returning from the pursuit of beasts more ferocious 
but less dangerous than judges, Colonel Roosevelt began 
in 1910 a series of criticisms of the courts. It was not, how- 
ever, till the Columbus speech, delivered just before the an- 
nouncement of his candidacy, that he offered a remedy for 
the ills he deplored. Later, in the Carnegie Hall speech, 
he gave a more exact definition of his proposal. There, 
after disclaiming- any intention with reference to the Supreme 
Court of the United States, or to ordinary civil or criminal 
proceedings or the recall of judges, he stated his position 
thus: "I am proposing merely that in a certain class of 
cases involving the police powder, when a state court has set 
aside as unconstitutional a law passed by the legislature 
for the general welfare, the question of the validity of the 
law — which should depend, as Justice Holmes so well phras- 
es it, upon the prevailing morality or preponderant opin- 
ion — be submitted for final determination to a vote of the 
people, taken after due time for consideration." 

It does not appear that in any of his articles or speeches 
the Military Statesman has pointed out whether in his opin- 
ion the reform contemplated can be effectuated without con- 
sti-tutional amendment, but the implication of the Carnegie 
Hall speech is that it can be, for he there quotes from the 
remarks of Dean Lewis of the Law School of the Univer- 
sity of Pennsylvania, thus: 

"Constitutional amendments, designed to meet particular cases, 
run the danger of being so worded as to produce far-reaching 
results not anticipated or desired by the people. Colonel Roose- 
velt's suggestion avoids this difficulty and danger. If a persistent 
majority of the people of New York state want a workmen s 
compensation act, they should have it, but in order to obtain it, 
they should not be driven to pass an amendment to their state 
constitution which may have effects which they do not anticipate 
or desire Let them pass on the act, as passed by the legislature, 
after a full knowledge that their highest court has unanimously 



RECALL OF JUDICL\L DECISIONS 191 

expressed its opinion that the act is contrary to the constitution 
which the people at a prior election have declared to be their 
fundamental law." 

This contemplates the reform without constitutional 
amendment. How is it to be done? Suppose the legisla- 
ture should pass an act providing that hereafter when the 
Supreme Court shall have declared unconstitutional any act 
of the General Assembly purporting to be an exercise of 
the police power, the act shall be submitted at the next 
general election and, if ratified by the people, shall be the 
law, notw^ithstanding the opinion of the Supreme Court. 
If a case arose under an act so ratified, would the Supreme 
Court consider itself so bound? Would it not be obliged 
to say: "Lender the constitution 'The judicial powers, ex- 
cept as in this article otherwise provided, shall be vested 
in one Supreme Court.' The constitution does not provide 
that the decisions of the Supreme Court shall be subject 
to review. This court has held that act unconstitutional. 
The vote of the people alone does not change the consti- 
tution. The constitution itself provides how it may be 
amended"? 

If, therefore, a constitutional amendment be required, 
there is still the difficulty of deciding what form such an 
amendment should take. Suppose by the means now pro- 
vided each State constitution should be amended so that 
an article reading substantially as follows should be added: 

"Whenever an act of the General Assembly purporting 
to be an exercise of the police power shall have been held 
by the Supreme Court obnoxious to any provision of the 
Bill of Rights of this constitution, there shall be submitted 
at the next general state election upon a separate ballot 
the question of sustaining such decision of the Supreme 
Court in form: 

Shall the decision of the Supreme Yes. [] 
Court holding invalid an act en- 
titled be 

sustained? No. [] 

"If a majority of the votes cast at such election be in the 
negative such act shall be law notwithstanding said deci- 
sion of the Supreme Court, and said court and all others 



192 SELECTED ARTICLES 

shall be bound to enforce said act; but nothing in said act 
contained, or the popular vote thereon, shall for any other 
purpose be taken as an amendment to, or precedent for the 
construction of, this constitution." 

This form of amendment is effective for the purpose and 
as little objectionable as possible. Any act "purporting to 
be an exercise of the police power." whether or not accord- 
ing" to present accepted views it be a proper exercise of 
police power, is included. It would seem to be necessary to 
make such a provision because now, when an act is an ex- 
ercise of the police power it must be sustained, notwith- 
standing it may incidental!}^ infringe upon some of the con- 
stitutional rights of private individuals; and if the amend- 
ment should merel}' provide that only when an act which 
is indeed an exercise of police power should be held un- 
constitutional it might be reviewed, the present situation 
would not be changed. But if there were such a provision 
in the constitution, is it putting too low an estimate upon 
the integrity, or too high an estimate upon the ingenuity, 
of legislators to suggest that every act suspected by its 
framers of having constitutional defects would contain in 
its preliminary recitals of the dire difficulties it aimed to 
correct with multiplied references to the health, safety, mor- 
als, good order and general welfare of society? 

But, it is asked, why should not a majority of the peo- 
ple, from whom the constitution is itself derived, have the 
power to amend or construe even to the extent of destroy- 
ing rights preserved by the Bill of Rights, by such piece- 
meal amendments or construction, instead of by amendments 
in general terms? 

The federal Constitution has no Bill of Rights. Before 
the adoption of the last three amendments, while the states 
were forbidden to make anything other than gold and silver 
legal tender, to pass a bill of attainder, ex post facto law or 
law impairing the obligation of contracts, there were practi- 
cally no other limitations on the power of a state in dealing 
with its own citizens. Even since the adoption of the last three 
amendments, it may be doubted if there is anything in the 
Federal Constitution restraining a state from enacting laws 
liimiting religious libert}^, freedom of speech, right of trial 



RECALL OF JUDICLAL DECISIONS 193 

by jury, or authorizing unreasonable searches and seizures, 
denying the writ of habeas corpus, compelling one to in- 
criminate himself, authorizing transportation from the state 
for crime, imprisonment for debt, or an irrevocable grant 
of special privilege, or denying a certain and speedy rem- 
edy in the law, rights which with more or less particularity 
are protected by each state constitution. It will not answer, 
therefore, to say that the Fourteenth Amendment would 
protect against deprivation of rights now guaranteed by state 
constitutions. These great constitutional guaranties have be- 
come so commonplace that people have almost ceased to 
think of the necessity of maintaining them, but history is 
too full of the crimes committed in the name of religion, 
for instance, — offences to which unrestrained majorities are 
peculiarly prone, — to justify the making of any change in 
fundamental law would put in jeopardy these safeguards. 

It may be suggested, however, that the difficulties pre- 
sented can be met by changing the proposed amendment so 
that instead of permitting a recall of a decision holding un- 
constitutional a purported exercise of the police power under 
any provision of Bill of Rights, such recall shall be in- 
dulged only when the act is held unconstitutional on the 
ground that it deprives one of life, liberty or property with- 
out due process of the law under the state constitution, or 
when it is held unconstitutional under any provision of the 
federal Constitution. If the proposed amendment should 
take this form, it may be argued that rights will be secure 
because the recall would apply only to cases in which there 
would exist a right of review on writ of error to the Su- 
preme Court of the United States, and that that court may 
be safely relied upon to enforce the property and liberty 
rights guaranteed by the Fourteenth Amendment. If this be 
the idea, why would not the same end be attained much 
more expeditiously and less expensively by eliminating from 
the state constitutions the clauses forbidding deprivation of 
life, liberty or property without due process? If the ul- 
timate protection for these rights must be in the federal 
tribunals, why create elaborate machinery upon which the 
highest court of the state shall first be called upon to act, 
its judgment set aside upon a referendum, and a new liti- 



194 SELECTED ARTICLES 

gation started which must wend its weary way to the Su- 
preme Court of the United States? Are Americans prepared 
to say that it is wise political doctrine that the states shall 
not set up and guard their own respective constitutional 
liberties? Has the process of centralization, which has made 
such rapid strides in the last fifty years, gone to the point 
where we are prepared to modify our theory of a federa- 
tion? Does it seem like the doctrine of a pure Democrat 
to remove from the determination of an elective state court 
the liberties of her citizens and rest them for final dispo- 
sition with a tribunal in the selection of which they have 
only a remote and contingent influence? It may be that the 
American people have advanced to a stage of stability and 
civilization where such a device would be safe, but it is un- 
necessary, unwise and shocking to the sense of anyone who 
understands and believes in democratic government. 

There was recently circulated in Chicago a copy of a 
letter by ex-Judge Grosscup in which he stated that his un- 
derstanding of the proposal was that after an act had been 
held unconstitutional it should be re-submitted to the leg- 
islature and then if repassed should be submitted to the 
people, — an interval of two years to elapse. The act when 
approved by the people then becomes constitutionally ex- 
cepted from the constitutional prohibition, the prohibition 
in all other respects standing as before. This, Judge Gross- 
cup points out, would be amendment and not construction, 
the exercise of legislative and not of judicial functions by 
the people. 

Does the proposal even in this form and confined to 
acts held unconstitutional as depriving of life, liberty or 
property, so that there would still be a right of review in the 
Supreme Court of the United States, offer an improvement 
over present methods? It is not doubted that the iVmerican 
people is capable of self-government. One hundred and 
twenty-five years of successful political institutions and ad- 
vancing civilization attest it. But no widely scattered and 
highl}' varied people is capable of the details of self-gov- 
ernment. Experience teaches that the American people, like 
other people, are better judges of men than of principles, 
and better judges of general principles than of modifications 



RECALL OF JUDICLAL DECISIONS 195 

or refinements of principles. The surgeon must have my 
consent before he has the right to operate, but my consent 
does not confer the skill to operate. The consent of the 
people is essential to the right to judge, but their consent 
does not furnish the ability to judge. 

All agree there is no more valuable right than that of 
religious liberty. If the people of any state in the Union 
to-day were called upon to vote "Yes" or "No" upon the 
adoption of a religious liberty plank to their constitution, 
if it had none, they could safely be counted upon to give 
an overwhelmingly affirmative vote. But suppose there 
should be submitted to the people the question of whether 
some one particular religious sect should have freedom of 
worship, would the vote be so overwhelmingly affirmative? 
The intelligence of our people and their interest in its gen- 
eral application may be relied on to support the proposi- 
tion that no man shall be deprived of life, liberty or prop- 
erty without due process of law; but could their negative 
vote be so confidently counted upon if there were a proposal 
to take the property of one unpopular corporation and de- 
vote it to an unquestioned public good? Every man will 
vote "no" to the proposition that the constitution shall be 
so formulated that his property or liberty may possibly be 
taken without due process of law, but would the same man 
so surely vote to support a decision of the Supreme Court 
holding void an act requiring a Stock Yards Company with- 
out compensation to convert a section from the middle of 
its yards into a playground for the children of that con- 
gested neighborhood? 

When general propositions • affecting all men alike are 
submitted to our vote, we are impelled by a combination 
of patriotism and fairness, with self-interest, to declare in 
favor of that which makes for righteousness; but it would 
be a most dangerous expedient to remove from the control 
of men trained by tradition and experience to weigh the 
rights of others and submit to a general vote, perhaps in 
time of great popular excitement and prejudice, the rights 
of a small group of men whose interests might, for the 
time being, seem opposed to the welfare of the community 
at large. Those active in affairs have impressed upon them 



T96 SELECTED ARTICLES 

daily that it is as necessary to know what the law is as 
that the law should be this or that. If this be true as ap- 
plied to the ordinary commercial affairs of life, the daily 
dealings .of men with men, how much more important is 
it that a citizen should know with certainty what are his 
fundamental rights as between himself and his government. 

The theory of a written constitution is that it embodies 
certain general fundamental and enduring principles essen- 
tial to liberty and creates a machinery of government for 
their maintenance. With changing economic conditions 
come inevitably changes in current economic thought, which 
naturally tends to express itself in law. If shifting theories 
are to be embodied not in plastic statutory law, but in rigid 
constitutional law, not only will there be an abrupt depart- 
ure from the theory of the written constitution, but we 
shall have entered upon a work of endless confusion. An 
elaborate employers' liability act, for instance, is made a 
part of the constitution; not only its general principles, 
but all its details, are endowed with constitutional vigor. 
After a few month's experiment one of its provisions proves 
unwise, or perhaps in conflict with another provision. The 
constitution must be amended! What was wanted was more 
flexibility; the result, more rigidity! It would not be many 
years before a state constitution would look like a crazy 
quilt, nor many more before parts of it would be no more 
useful or ornamental than the lithograph of a defeated can- 
didate the day after election. 

No court is infallible. Popular criticism of judicial de- 
cisions is not only a sign, but a necessity, of healthful po- 
litical life. It may be agreed that many state courts have 
made grave mistakes in law and in policy, in holding repug- 
nant to the Eourteenth Amendment and similar provisions 
in the state constitutions, many remedial acts. In constru- 
ing an act wnth the constitution a court is confronted with 
a problem other than that which would be presented by a 
comparison of two contracts or even two statutes; there 
must be more than academic divergence or literal conflict 
before the act can be held void. "It (the court) can only 
disregard the act when those who have the right to make 
laws have not merely made a mistake, but have made a 



RECALL OF JUDICL\L DECISIONS i97 

very clear one — so clear that it is not open to rational ques- 
tion."* But tested even by this broad standard do the 
criticised cases afford even a plausible pretext for a radical 
change in our institutions? 

In the so-called "Tenement House" case,t the act under 
consideration forbade the manufacture of cigars or the prep- 
aration of tobacco in any form in a tenement house situated 
in a city of more than 500,000 inhabitants, and defined a 
tenement house as a building in which more than three 
families had separate apartments where they did their cook- 
ing. In the case under consideration the defendant lived 
with his wife and two children in an apartment house of 
seven rooms in a building in which there three other apart- 
ments of equal size. Under the act it would have been an 
offence for a gentleman occupying an apartment on River- 
side drive to roll a cigarette or mix a bowl of pipe to- 
bacco. One would think that criticism of the lack of skill 
in drafting the bill would be more pertinent than taxing 
the court which declared it unconstitutional with being out 
of touch with life and more in sympathy with property than 
humanity. 

Of the "Bake-shop" decision, t so much decried, the only 
significant feature is that the statute was sustained by the 
state court whose decisions would be subject to recall and 
declared void by the Federal court which is to remain be- 
yond the reach of review. 

In the Carnegie Hall speech the Ives case, ** in which 
the New York Employers' Liability Act was held unconsti- 
tutional, received especial condemnation. The speaker as- 
serted that similar laws have been held constitutional by 
the Supreme Court of the nation and several courts in va- 
rious states. This assertion will bear analysis. The New 
York act was not elective, that is, it did not give the em- 
ployer an election whether or not to be governed thereby. 
It applied to certain occupations declared to be especially 

* 7 Harv. I.. Rev. 129. Origin and Scope of the American Doc- 
trine of Constitutional Law. Prof. J. B. Thayer. 

t In re .Tacohs, 98 N. Y., 98. 

t People V. I>ochner, 177 N. Y., 145, 69 N. E. 373; Lochner v. 
New York. 1!J8 U. S., 45. 

** Ives V. South Buffalo Ry. Co., 201 N. Y., 271; 114 N. K., 431. 



198 SELECTED ARTICLES 

dangerous, and, roughly stated, provided that if a workman 
suffered injury caused by the necessary risk or danger of 
the employment or negligence, the employer should com- 
pensate the injured employee according to a fixed schedule. 
The act retained to the workman his common law rights of 
suit unless he availed himself of the act. 

In general, law recognizes only two classes of rights 
as between individuals, those arising from contract (ex con- 
tractu) and those arising from a breach of duty imposed by 
law (ex delicto). This act imposed no new duty for the 
breach of which a remedy was given. The question pre- 
sented to the court was whether it was competent for the 
legislature to compel A. to pay money to B. when A. was 
not under contractual obligation to B. to pay such money, 
and had violated no duty imposed by law. Conceding the 
broadest powers to the legislature and recognizing the ex- 
treme delicacy of the power of the court to review, the most 
ardent humanitarian on the bench must needs have some 
hesitancy in declaring that because of some supposed or 
real benefit to the community at large, one man or one 
class of men may be compelled to contribute directly to 
the support of another man or another class of men to whom 
no contractual or tortious relationship is sustained. The 
Court of Appeals of New York in a long and able opinion 
arrived at conclusion that this may not be. 

It is not true that similar laws have been before either 
the Eederal Supreme Court or courts of several states. 
The Employers' Liability Lawf passed on by the Supreme 
Court of the United States did not purport to impose any 
such liability. It merely took away some of the common 
law defences, but still left the employer liable only in the 
case of negligence. The principal question passed on by 
the federal court was whether the act was a proper exercise 
of the constitutional power to regulate interstate commerce. 
The constitutionality of an attempt to impose liability with- 
out breach of either contract or duty was not decided; it 
was not even presented for consideration. 

t Second Employers' Liability Cases, 223 U. S., 1 (Feb. 15. 
1912). 



RECALL OF JUDICIAL DECISIONS 199 

Employers' Liability laws have been before the Supreme 
Courts of Washington,* Wisconsinf and Ohio,$ and the 
Justices of Massachusetts** have rendered an opinion to 
the legislature on the proposed act of that state. Only the 
Washington act can, by any stretch of the imagination, be 
said to be similar in principle to the New York act, and it 
is sufficiently dissimilar so that the same court might easily 
sustain the one while refusing to countenance the other. 
Under the Washington act employers are compelled to con- 
tribute to a State Insurance Fund, the amount of their con- 
tributions being based upon their pay-rolls. The right of 
the employee against the employer is taken away, and in 
lieu thereof he is allowed compensation by the state out 
of the Insurance Fund. 

The Ohio act compels nothing, but merely permits the 
employer to contribute to the State Insurance Fund, in which 
even he is exempt from suit. If he does not contribute 
the three defences of contributory negligence, fellow serv- 
ant and assumption of risk are barred. 

The Massachusetts, Wisconsin and Illinois acts are sim- 
ilar in principle, imposing no liability upon the employer 
other than that now recognized by law, but depriving him 
of the three defences unless he elects to come under the 
act. 

The radical difference in principle between the New 
York act and all the other acts, with the possible excep- 
tion of that of Washington, is obvious, as is also the lament- 
able inaccuracy of calling these acts similar for the pur- 
pose of justifying criticism of the New York court. 

If no social development were possible without a change, 
possibly the dangers threatened might be braved. But courts 
respond, slowly, indeed, but none the less surely, to pub- 
lic opinion, which non obstante vevdicto needs but little 
time to force its conclusion in one way or another. It was 
not long after the Supreme Court had said that Congress 
had power to establish a National Bank until there was no 

* State ex rel. Clausen (Wash.) 117 Pac. R., 1101. 

t Borgnis v. Falk Co. (Wise.) 133 N. W., 209. 

% State! V. Creamer (Ohio), 97 N. B. 602 (Feb. 6, 1912). 

♦♦Opinion of Justices (Mass.), 96 N. E., 308 (.June 24, 1911). 



200 SELECTED ARTICLES 

National Bank. As at present constituted, it is almost cer- 
tain that the Supreme Court of the United States would 
not repeat the "Bake-shop" decision. If the State of New 
York desires to prevent the manufacture of cigars under 
unsanitary conditions, there is nothing in the decision of 
In re Jacobs to prevent it. If the people of New York wish 
an Employers' Liability Law which will accomplish all that 
would have been accomplished by the act held unconstitu- 
tional, four other States have shown how to get it. 

In 1895 the Illinois Supreme Court held that the legisla- 
ture could not restrict the labor day of women to eight 
hours.* In 1910 they held that they might restrict such 
hours to ten,t and quoted with approval from the Supreme 
Court of Washington a sentence which well expresses the 
flexibility of our present system and consequent lack of 
need of radical change: 

"Law is or ought to be a progressive science. While the 
principles of justice are immutable, changing conditions of 
society and the evolution of employment make a change in 
the application of principles absolutely necessary to an 
intelligent administration of government." 

The efifort to intimidate thoughtful and prudent men by 
charging them with being enemies of the people cannot 
relieve the proposal from analysis. Neither should inno- 
vation be resisted by an appeal to the sacredness of our 
institutions. Our government is rational, and to the ra- 
tionalist nothing is sacred in the sense that it is saved from 
scrutiny. Our present institutions are not necessarily right 
because they exist, but neither is the proposed change good 
because it is new. The burden is on the proponent. Tested 
by reason and by the experience of history, it fails to per- 
suade. 

The proposal is vicious because, to the extent they are 
not shielded by the federal Constitution, the rights of the 
minority would be subjected to the unrestrained will of the 
majority and, to the extent that the federal Constitution does 
protect, the sense of self-government would be weakened 
by making the people rely upon the Supreme Court of 

* Ritchie V. People, 155 111., 98. 

t Ritchie v. W^ayman, 244 111., 509, 530. 



RECALL OF JUDICL\L DECISIONS 201 

the United States instead of their own state courts for the 
protection of their most fundamental and dearly prized 
rights; it is vicious because it would result in a patchwork 
constitution, no longer the succinct expression of enduring 
principles but the reflection of passing economic theories, 
creating greater difficulty rather than more ease in adapta- 
tion to changing conditions; and finally it is vicious because 
it opens the gate to our most carefully cultivated garden, 
that it may be trampled by the demagogue. 

Central Law Jourhal. 75: 35-40. July 12, 1912. 
Recall of Decisions — A Fallacy. James B. McDonough. 

The recall of decisions is a mere political outcry, re- 
sulting in the main from five classes of decisions all made 
in the last seventeen years, for which, if we blame the 
judiciary we must blame Congress and the people of the 
states the more. They are: (i) The Income Tax Decision; 
(2) The Railroad Rate Decisions, holding that the state 
legislatures could not destroy property by reducing railroad 
rates below the point of a fair return; (3) the granting of 
injunctions in labor disputes; (4) the unsatisfactory results 
from the decisions in the Northern Securities, the Stand- 
ard Oil and the Tobacco Trust cases; and lastly and most 
important, the constitutional decisions holding acts of the 
legislatures of the states void, as in the celebrated bake- 
shop case. 

The wrongs flowing from these classes of decisions can- 
not be righted by the recall, and they are not sufficiently 
serious to warrant the destruction of our judicial system. 
Every real wrong growing out of any of these decisions 
could have been, and can now be easily and speedily rem- 
edied, either by an Act of Congress, or by a constitutional 
amendment to the state or federal constitution. 

To recall a decision which has declared an act of the 
legislature void, is to reverse, by popular vote, the judgment 
of the court, thus holding the act valid and giving a money 
judgment in favor of the party who lost in the court. 
Therefore, the plan is to have the whole people, by a pop- 



202 SELECTED ARTICLES 

ular vote, on an appeal to them from the courts, give a 
money judgment or impose a fine or imprisonment. Hence, 
at the very threshold, the plan adds another burden on liti- 
gants, — a delay by giving another appeal to those already 
existing. If one side may appeal when the law is held void, 
then the other side may appeal when the law is held valid. 
The fundamental principle of equal rights and the equal pro- 
tection of the laws, a principle that is older than constitu- 
tions, demands that if one party have a right of appeal to 
the people from the courts, the other party must also have 
the same right. Hence the addition of the scheme of the 
recall of decisions to any constitution adds from six months 
to five years delaj^ to every law-suit in which the constitu- 
tionality of a statute is involved. In the case of State v. 
Handlin, 7 Ark. Law Reporter, 411, the constitutionality of 
the inheritance tax law of Arkansas was drawn in question. 
The act was upheld, thus sustaining a source of revenue 
for the state. If the recall of decisions had existed in Ar- 
kansas, all heirs, legatees and other beneficiaries from the 
estates of deceased persons would have appealed from the 
court to the people and the case would now be before the 
people for decision, its constitutionality depending upon 
whether a majority of the voters are heirs and legatees or 
non-heirs and non-legatees. Every heir and every bene- 
ficiary of an estate who is a qualified elector would vote 
on this constitutional question in accordance with his finan- 
cial interest, thus becoming the judge and jury in his own 
case, thus establishing a vicious system which is contrary 
to natural justice. 

But the advocates of the recall of decisions say that this 
is an extreme view and that it will not be used in ordinary 
suits between individuals. It will be so used, because nine- 
ty-nine hundreths of all constitutional questions arise only 
in ordinary suits between individuals, wherein one party 
seeks to recover a money judgment against the other. 

The recall of decisions is nothing more nor less than 
an abrogation of the constitution. It is governm.ent without 
any constitution. Hence, it is a plain, undisguised assault 
upon government by written constitution. It provides a 
method of amending the constitution contrary to the very 



RECALL OF JUDICLAL DECISIONS 203 

instrument itself, and thus invites a people to violate their 
own organic law, and thus weakens the respect for law. 
It is not intended by this to say that a constitution is too 
sacred to be changed,, but it is intended to say that a con- 
stitution in so far as it protects human rights and preserves 
the blessings of life, liberty and property, thus affording a 
sound and stable government for a great and free people, 
should not be utterly destroyed by a scheme that appeals 
to the passions and prejudices of the people. As such a 
scheme destroys the constitution, it in effect destroys the 
judiciary and leaves the government in the hands of am- 
bitious executives and accommodating legislative assemblies, 
or the people led by a national hero. 

Wfth such a system, as the recall of decisions, the 
judges would forget that there was a constitution, and they 
would be found ascertaining in some way, unknown to the 
law, the prevailing morality and the preponderant opinion 
of the people, holding a law valid or invalid as they might 
believe the people thought. Hence the minds of the judges 
would be put to work to ascertain the views of the elector- 
ate rather than base their rulings upon sound principles 
of justice and constitutional law. Every honest and up- 
right judge believing his opinion to be sound, would want 
it sustained, and being human, his mind under such a sys- 
tem would necessarily make some effort to ascertain what 
the people thought rather than what the law is, thus making 
political trimmers of all judges. 

The advocates of the recall urge an amendment to the 
state constitution, knowing that such an amendment to that 
constitution will not give any relief, since if the workman's 
compensation laws and other laws intending to right social 
wrongs and industrial injustice are void because they "con- 
travene the inviolability" of life, liberty or property, then 
they are void because in conflict with the national Consti- 
tution, and any offer to cure the wrong by an amendment 
to the state constitution is to offer a stone when labor de- 
mands bread. 

An examination of the cases criticised, illustrates this. 



204 SELECTED ARTICLES 

Take the case of People v. Williams,^ decided in 1907. The 
defendant was charged with a misdemeanor by permitting 
a woman to work in his factory between the hours of nine 
o'clock p. m. and six o'clock a. m. The law of New York, 
which prohibited the employment of females, regardless of 
age, in factories, between the hours named, was held void 
because it infringed the liberty of contract clause of the 
state constitution, the court holding that the act did not 
limit the hours of labor of women, but merely prohibited 
their working between certain hours. The fault lay with 
the legislature in passing a clumsy law. If the law had 
limited the hours of labor for women, it would have been 
upheld as the Supreme Court of the United States upheld 
the Utah Mining law,2 which limited the hours of labor 
of miners to eight hours per day, and as the same court also 
upheld the law of Oregon, which limited the hours of labor 
of women in laundries to ten hours per day.^ These de- 
cisions by the Supreme Court of the United States demon- 
strate that the states may pass proper laws for the pro- 
tection of the working classes and the improvement of la- 
bor conditions. 

This Williams case, above cited, was decided by the 
Court of Appeals of New York, in 1907, and the Oregon law, 
limiting the hours of labor of women in laundries, was up- 
held by the Supreme Court of the United States, in Febru- 
ary, 1908, that court holding that the law was a proper exer- 
cise of the police power. In that decision by the Supreme 
Court of the United States the remedy of the people of 
New York is plainly pointed out, to-wit, the passing of 
a law like that of Oregon. This could have been done be- 
fore the close of the year, 1908. 

If the Williams decision was so destructive of human 
rights, and so disastrous to real reforms in labor conditions, 
it is passing strange that the "statesman" and politicians 
who are building a structure of political power ostensibly 
to right social wrongs and industrial injustice, should have 
permitted these wrongs to continue more than four years 

(1) 18i) N. Y. Rep. 131. 

(2) Holden v. Hordy, 169 U. S. 366. 
,(3) IVTuller v. Oregon, 208 U. S. 412. 



RECALL OF TUDICL\L DECISIONS 205 

unrelieved, when a speedy remedy was so easily within 
reach. Have they ever made any effort whatever to have 
the legislature of New York pass the necessary law to rem- 
edy the evil of the Williams case? None whatever, and 
yet as is shown in the Oregon case, the remedy is as sim- 
ple and open as the noonday sun. Is there any good rea- 
son why the open, plain and real remedy should be neg- 
lected, and the energies of these leaders be spent in the abuse 
of the courts? The only reason is that to apply the rem- 
edy would kill the goose that lays the golden egg of po- 
litical agitation and power. 

After four years of fruitless agitation over a decision 
whose evil could have been cured in six months or less, 
as a remedy it is now proposed to recall such decisions and 
hold the law valid, thus wasting from three to five years 
during which there is much suffering for the masses and 
vote-getting for the statesmen. If a case like the Williams 
case is reversed under this scheme, it necessarily means the 
conviction by popular vote of the defendant and the as- 
sessment of a fine or money judgment or imprisonment, or 
both. Such a fine or imprisonment by popular vote is 
making an act a crime, which was not a crime, when done; 
and hence the recall of such a decision is an ex post facto 
law, and void because prohibited by the national constitu- 
tion. 

The same is true of the Lochner case which is better 
known as the bake-shop decision, which caused ]\Ir. Roose- 
velt to charge that courts were steeped in outworn phil- 
osophy, and that they upheld "festering" wrongs, and were 
bulwarks of privilege, in which case the law was upheld 
by the New York Court of Appeals, which decision was 
reversed by the Supreme Court of the United States the 
latter court holding the law void; and also the Ives case 
in which the workmen's compensation law of New York 
was held invalid by the New York court, because in con- 
flict with the state constitution. These are the cases which 
the opponents of stable constitutional government say have 
made the recall of decisions necessary. 

If the workmen's compensation law of New York is in 
conflict with the Constitution of the United States as the 



2o6 SELECTED ARTICLES 

Court of Appeals of New York actually decided, though 
the court's opinion was ultimately grounded on the state 
constitution, the amendment to the state constitution or 
the recall of the decision would be valueless, and worse. 
It would deceive the honest reformers who believe they 
were getting a valid law. No amendment to a state con- 
stitution or recall of a state decision can amend the national 
constitution. That can only be done by three-fourths ot 
all the states. Hence the recall of decisions by the vote 
of the people of the state, as applied to such questions, is 
a delusion and a snare. It may secure votes, but in return 
the oppressed toiler gets nothing. He still makes brick 
without straw. The remedy, therefore, is not to amend the 
state constitution or recall state decisions, but to amend 
the Constitution of the United States, authorizing the states 
to pass the necessary laws for the protection of the laboring 
classes; and this cannot be done by the recall of decisions 
in a single state. If the state constitutions prohibit such 
laws, they too may be amended. This does not mean op- 
position to workman's compensation laws. It simply means 
that such laws should be adopted in a constitutional way 
and after careful study and mature deliberation. 

It is true that the people rule and that they make and 
unmake constitutions at will. They make constitutions by 
selecting their wisest and best men as delegates to a con- 
vention, where the constitution is framed and afterwards 
submitted to the people for rejection of adoption. In that 
way constitutions are made without appealing to class hat- 
red and prejudice and personal interest. In the practical 
operation of a recall of decisions, constitutional and sound 
governmental principles will not be studied, will be lost 
sight of in the turmoil and conflict over the justice or in- 
justice of the particular decision. 

Take the Ives case again. The concrete question before 
the voters would be: Shall the widow and children recover 
for the husband and father's death? The voters would be 
divided into two classes on nearly all propositions, — the 
employers and the employed. Class hatred and feeling 
would be aroused to the danger point. The attorneys who 
won and lost a case before the courts would feel compelled 



RECALL OF JUDICL\L DECISIONS 207 

to take the hustings in their clients' behalf. The clients 
would be compelled to bear great expense in printing and 
in circulating elaborate briefs to show the justice of their 
causes. If this expense should not be upon the litigants, 
would the state bear the same? Would the counties or the 
municipalities be responsible for printing the arguments 
and the literature to be circulated among the people? It 
is idle to say that no such printed arguments and informa- 
tion would be necessar}'. The courts find it necessary 
to have the arguments printed and usually oral arguments 
are made, and these arguments are necessary in order that 
the court may properly pass upon the questions. The 
judges are trained students of legal pr6blems. Not with- 
standing that, they require printed and oral arguments in 
order to aid them in coming to correct conclusions on dif- 
ficult legal problems. Therefore, the elector who sudden- 
ly finds himself burdened with intricate constitutional ques- 
tions, will necessarily need learned arguments. These ar- 
guments cannot be made, and printed, without great ex- 
pense. In addition to that, the judges themselves, having 
confidence in the correctness of their decisions, would neces- 
sarily be drawn into the fight. The questioned decision 
might afifect one county or two counties, or it might afifect 
the entire state. A decision that would advantage one 
county, would injure another. Hence the diflferent parts 
of the state would be arrayed, one against the other. In 
addition to that, different states would recall different de- 
cisions. A decision that would be satisfactory to a manu- 
facturing community would be unsatisfactory to an agricul- 
tural community. Mining districts would also have differ- 
ent views. The result would be that uniformity of laws 
would be utterly destroyed. 

Academy of Political Science (N. Y.)- Proceedings. 3: 100- 

17. January, 1913. 

Development of American Constitutional Law. Munroe Smith. 

As the "recall" proposal was originally presented by Mr. 
Roosevelt, the referendum on decisions was not, apparently. 



2o8 SELECTED ARTICLES 

to be limited to due-process cases; it was to be available 
whenever a state law was declared to be invalid because in 
conflict with any provision of the state constitution. In 
view, however, of the inconvenient and even absurd results 
that might possibly be produced by an unlimited "recall," 
it is now proposed that referenda on decisions shall be 
limited to due-process cases. * The proposal is so formulated, 
for example, by Mr. William L. Ransom in his recent book on 
Majority Rule and the Judiciary, to which Mr, Roosevelt con- 
tributes an introduction. 

In order that we may see how this limited "recall" would 
probably work, let us take a situation which has already 
been much discussed, which has been frequently chosen 
by the advocates of the "recall" to illustrate the need of 
a new remedy, and which Mr. Ransom claims would be 
remedied by a "recall" limited to due-process cases. Let 
us take the situation which exists in New York as regards 
compensation of workmen, or of their widows and children, 
in cases of injury or death caused by industrial accidents. A 
law passed by the state legislature was pronounced unconsti- 
tutional by the Court of Appeals, because it proposed to 
take the money of the employers wnthout due process and 
was not within the sphere of the police power. It is claimed 
that a "recall" limited to due-process cases would have suf- 
ficed to validate the law and make it immediately effective. 
But, in pronouncing this law unconstitutional, the New York 
Court of Appeals declared that, for the purpose of reaching 
a decision, it was not necessary for the court to determine 
whether the act was unconstitutional solely as denying due 
process. It declined, in particular, to decide whether it 
was unconstitutional as denying the employers' right to trial 
by jury. It seems clear, therefore, that even if the decision 
of the court had been "recalled," the law would have been 
validated only so far as due process was concerned, and that 
the question which the Court of Appeals declined to decide 
would remain open. If, when this issue was raised, the 
Court of Appeals should again declare the law unconstitu- 
tional, it would apparently be necessary under the limited- 
recall program, to introduce a new amendment to the con- 
stitution, widening the scope of the recall, and to institute 



RECALL OF JUDICL\L DECISIONS 209 

a new referendum. If the new amendment were limited in 
its application to the matter of jury trial, it is not impos- 
sible that the question might arise whether the law was not in 
conflict with some other provision of the constitution, or 
with the general spirit of the constitution. 

So numerous are the grounds upon which any law that 
attempts to realize what is to-day described as "social 
justice" may conceivably be pronounced unconstitutional, 
that it will be no easy task to frame a recall amendment 
that will cover all these grounds and yet remain limited 
in its scope. It seems doubtful, to put it mildly, whether 
any recall proposal thus far formulated promises to secure 
a more speedy adaptation of our state constitutions to chang- 
ing conditions than the existing process of substantive 
amendment. It seems highly improbable that it will bring 
to a more prompt and satisfactory conclusion any differ- 
ences of opinion or of sentiment between -the state courts 
and the state electorates. For a single political battle, ter- 
minated by a single substantive amendment, the limited "re- 
call" appears to substitute, primarily at least, a prolonged 
political war, in which the electorate would realize its in- 
tention only after several campaigns. Moreover, after each 
campaign, the limited recall would be widened in its opera- 
tion; and it would thus gradually approach that unlimited 
recall which the supporters of the plan do not at present 
advocate. 

A more fundamental objection, which applies to any con- 
ceivable form of referendum on laws pronounced unconstitu- 
tional, is that it offers us a crude and unsatisfactory means 
of obtaining the end desired. The purpose of the proposed 
referendum is to obtain, particularly in matters of natural 
right, popular expressions of the sense of social justice. 
Such expressions are to create precedents which the state 
courts are to follow. It is however, extremely improbable 
that the electorate will consciously attempt to express its 
sense of social justice. The great majority of the voters 
will express their varying judgments as to the probable ef- 
fects, good or bad, of the particular measure submitted to 
them. If it be replied that the majority judgment will con- 
tain, by implication, an expression of its prevailing sense of 



210 SELECTED ARTICLES 

justice, it may be remarked that implications are matters of 
opinion, and that widely different implications may be dis- 
covered in every such popular decision. After every general 
election there appear widely different theories as to w^hat 
was really "the verdict of the people." It may be added that 
successive referenda on different measures may well contain 
implications that cannot easily be reconciled. The difficulty 
which the courts now experience in determining the true rea- 
sons for their own decisions on constitutional questions will 
appear slight indeed in comparison with the difficulty which 
they will encounter if they be called upon to determine. 
first, what intuitions of social justice seem to be implied in 
a series of popular decisions, and, second, w^hat rules of 
constitutional interpretation can be formulated that will 
express these intuitions. To the average lawyer such a 
process of developing law seems fantastic; hence the gener- 
ally hostile reaction of the legal profession to the "recall" 
proposal. To the student of legal history, on the other hand, 
the process is not fantastic but familiar. It was by this very 
process — the expert interpretation of popular decisions — that 
law was taking form in the Mediterranean city-states twen- 
ty-five centuries ago and again among the Teutons fifteen 
centuries ago. If the reaction of the legal historian to the 
proposal is also hostile, it is not because the process seems 
novel but because it is seen to be archaic. Like the whole 
direct-government movement, of W'hich it is a product, it 
is a reversion to the primitive processes of early civilization. 
It is not yet formally proposed to apply a popular "recall" 
to the decisions of the federal judiciary; but there have been 
suggestions that, if the system should be introduced^ and 
should approve itself in the several states, it might be ex- 
tended to the nation. The chief difficulty which will be en- 
countered by anyone who endeavors to formulate a proposal 
for the submission of constitutional questions to the people 
of the United States is that, in public law, the people means 
the electorate, and that there is no national electorate. Nor 
can the forty-eight state electorates fitly be recognized for 
any purpose whatever as a national electorate. The condi- 
tions on which the different states grant the right to vote 



i 



RECALL OF JUDICL\L DECISIONS 211 

are so diverse that a popular majority obtained in a nation- 
wide vote would neither deserve nor receive serious con- 
sideration. Such a majority might possibly be due to the 
fact that in nine or ten states the total vote, and conse- 
quently the majorities recorded, were doubled by woman 
suffrage. It might be due to the fact that negroes, who vote 
freely in the northern and western states, are practically 
excluded from the suffrage in the southern states. To the 
total affirmative and negative votes of these forty-eight 
electorates no legal significance could reasonably be attached 
unless the conditions of voting were equalized. A "recall" 
of the decisions of the federal judiciary could, of course, be 
l(?galized only by constitutional amendment. Unless such a 
proposal carried with it ithe further proposal that Congress 
be empowered to determine who should vote, it would assured- 
ly be rejected because of its absurdity. If it carried with 
such a further proposal, it would probably be rejected by 
the votes of the southern states alone, even if the rest of 
the country favored it. For these reasons, if there were no 
others, the "recall" of federal judicial decisions must be 
regarded as a matter of speculative interest only. For the 
present, at least, it is not in the realm of practical politics. 



Annals of American Academy. 43: 239-77. September, 1912. 

Judicial Recall— A Fallacy Repugnant to Constitutional Gov- 
ernment. Rome G. Brown. 

Ex-President Roosevelt cites Australia as a country where 
the powers of the courts, as exercised in the United States, find 
no parallel. As pointed out by Justice Burch of the Kansas Su- 
preme Court in a recent address, it is the instance of Australia 
which shows a deliberate adoption of our constitutional methods 
and of the very powers of the judiciary which are now widely 
made the subject of denunciation. As late as January, 1901, up- 
on the address of all the Australian colonies to the British 
Crown, there was put into effect, for the government of the 
people of the entire Australian continent, a written constitu- 
tion modeled upon that of the United States of America. 



212 SELECTED ARTICLES 

For five years representatives of the colonies had discussed 
with the greatest learning and research the merits and de- 
merits of different forms of government as shown by the ex- 
perience of parliamentary systems of government and of that of 
the United States and other countries, with the result that the 
American precedent became the guide and model of a new con- 
tinental government. It followed closely, in many respects, 
the American model in its separation of federal and state 
authority, and in its division of power between the three 
separate and independent legislative, executive, and judicial 
departments, and, what is more important, with a federal ju- 
diciary as the supreme interpreter of the Constitution and with 
the Constitution as the supreme law of the land. And for lo 
years prior to the time when ex-President Roosevelt was claim- 
ing a repudiation by Australia and other nations of the world 
of thepower of the judiciar}- to prevent enforcement of a legis- 
lative statute as repugnant to the supreme written law of the 
land, the courts of the Commonwealth of Australia had, fol- 
lowing the precedent of decisions of the Supreme Court of the 
United States, been declaring numerous statutes, even some 
affecting human rights from a vital standpoint, "ultra vires ;" 
that is, unconstitutional. Such decisions included those de- 
claring invalid the federal act establishing a worker's mark, 
passed in the interests of union labor, as an invasion of the 
separate powers of a state over domestic commerce and in- 
dustry; a federal act attempting to control disputes between em- 
ployer and employee on state railways ; and an excise tariff act 
by which it was attempted indirectly to secure to workmen a 
share of the profits accruing to employers from protection 
taxes. 

Another incident which has been overlooked by the chief 
American advocate of the recall of judicial decisions is that 
the measure of the appeal to the people from the decisions of 
the courts on constitutional questions was, over a decade ago, 
presented to the Australian constitutional convention, and al- 
though fully debated, received no substantial support except 
from the member proposing it and was finally withdrawn. It 
was unanimously agreed that this indirect method of amend- 
ing or modifying the constitution was inconsistent with the 
form of government proposed, which gave ample opportunity 



RECALL OF JUDICL-XL DECISIONS 213 

for all proper amendment by methods requiring deliberate 
action. 

Any measure by which there is given to the people of a 
locality the direct power of adjudication upon a constitu- 
tional question means the elimination of constitutional lim- 
itations and safeguards established for the security of lib- 
erty of person and of property. In place of methods of 
careful and deliberate amendment of constitutions it substi- 
tutes the spasmodic, vacillating, and inconsistent expressions 
made from time to time of the arbitrary will of a major- 
ity temporarily in power. It substitutes for decree of judg- 
ment under the law the spasmodic will or caprice of the 
mob. I use the word "mob," which in similar instances nev- 
er refers to the people generally, but to large numbers of the 
people, and it may be at times a majority, acting under the 
influence of passion and prejudice and against their own 
real interest, as distinguished from the people acting through 
forms and procedures of law, established with provisions 
safeguarding against the result of temporary passion and 
prejudices and operating in such a way and under such con- 
ditions as ultimately shall insure expression of the calm, 
sober, deliberate judgment of the people as a whole. The 
term so used is not a denial but an affirmation, under a con- 
stitutional democrac}^ of a sovereignty vested in the peo- 
ple. 

It is unnecessary to give instances of the opportunities of 
the abuse of the power of popular adjudication upon con- 
stitutional questions. We may not overlook, however, the 
instance of Wisconsin where, preceding the year 191 1, a 
state-wide agitation had been made by an appeal to the 
passion and prejudice of the voters, to demand a statute 
by which a large class of property owners within the state, 
whose title to their property had been confirmed by re- 
peated adjudications of the state and federal courts, should 
have their property taken from them by a legislative fiat 
and, by the same token, established in the state itself for 
general public use. The movement, denominated in Wis- 
consin as "progressive," was successful, and the Wisconsin 
Legislature of 191 1 passed the now notorious water-power 
act, the provisions of which within a year were each and 



214 ' SELECTED ARTICLES 

all, including the spirit and purpose of the act itself, de- 
clared unconstitutional by the Wisconsin Supreme Court as 
repugnant to several provisions of not only the state but 
of the federal Constitution. No lawyer or judge, acquainted 
with the first principles of the law of property rights or 
of constitutional law, will pretend to criticize that decision. 
Nevertheless, such was the prejudice which had been aroused 
throughout the state in favor of the confiscatory statute, 
there is no doubt that, if the recall of judicial decisions had 
been there applicable, the people of the state would have 
voted within the time required for such a vote, and prob- 
ably would to-day so vote, that the decision of the Wis- 
consin Supreme Court should not stand. By such pop- 
ular adjudication, if it had been made in Wisconsin, the stat- 
ute in question would have been sustained and would have 
remained effective until the question could be brought be- 
fore the federal Supreme Court in the same or in a similar 
case; with the result that that which is one day property 
in possession of its owners would, for a long period, be- 
come not their property but would be retained in the pos- 
session and control of the state; and after the end of a 
further period, when judicial judgment under the law fin- 
ally reigns in place of the drastic and arbitrary decrees of 
popular passion, the same property would again have been 
returned to its legal owners. 

It is futile to claim that the establishment of the recall 
of judicial decisions would be consistent with the retention 
of constitutional government, or that its purpose and ef- 
fect are any other than to eliminate constitutional safe- 
guards. Even in attempting to answer the charge of Pres- 
ident Taft that the proposed new system "would result in 
suspension or application of constitutional guaranty accord- 
ing to popular whim,'' which would destroy ''all possible con- 
sistency" in constitutional interpretation, ex-President Roose- 
velt expressly referred, in his Carnegie Hall speech of 
March 20, 1912, to the system criticized as one "amending 
or construing, to that extent, the Constitution" — that is, to 
the extent of leaving the enforcement of any constitutional 
provision to popular vote. The supporters of his proposi- 
tion, including a well-known publisher and editor, frankly 



f 



RECALL OF JUDICL^L DECISIONS 215 

assert that the people within the jurisdiction of any consti- 
tution should, as sovereign rulers and as the makers of the 
constitution itself, have the power at any time by majority 
vote to amend — that is to "disregard" — such constitutions, and 
that the recall of judicial decisions is sufficiently justified 
because it will have precisely such effect. 

The system of a recall of judicial decisions is inconsist- 
ent with our system of government. These two conflict- 
ing systems can not exist together. As stated by the Hon. 
Elihu Root in the speech which he delivered as president 
of the New York State Bar Association on January 19, 1912: 

We must choose between having presei-ibed rules of right con- 
duct, binding in every case so long as they exist, even though 
there may be occasional inconvenience through their restraint 
upon our freedom of action, and having no rules at all to pre- 
vent us from doing in every case wliatever we wish to do at the 
time. We can not maintain one system in part and the other 
system in part. The gulf between the two systems is not nar- 
rowed, but greatly widened by the proposal to dispense with the 
action of a representative legislature and to substitute direct pop- 
ular action at the polls. A sovereign people which declares that 
all men have certain inalienable rights, and imposes upon itself ■ 
the great impersonal rules of conduct deemed necessary for the 
preservation of those rights, and at the same time declares that 
it will disregard those rules whenever, in any particular case, it 
is the wish of a majority of its voters to do so, establishes as 
complete a contradiction to tlie fundamental principles of our 
Government as it is possible to conceive. It abandons al)Solutely 
the conception of a justice which is above majorities, of a right 
in the weak which the strong are bound to respect. It denies 
the vital truth taught by religion and realized in the hard ex- 
perience of mankind, and which has inspired every constitution 
America has produced and every great declaiation for human 
freedom since ]\Iagna Charta — the truth that human nature needs 
to distrust its own impulses and passions, and to esta])lisli for 
its own control the restraining and guiding inlluence of declared 
principles of action. 

The occasion for the suggestion of the recall of judicial 
decisions, as outlined by its chief advocate, lies in the pe- 
culiar fact that in cases where a state statute is claimed to 
be repugnant to the federal Constitution, and its validity is 
upheld as against such claim, then such decision is direct- 
ly reviewable by the federal Supreme Court; whereas, if the 
decision is against the validity of the statute and in favor 
of the claim of its repugnancy to the federal Constitution, 
such decision is not so reviewable. This is because of the 
peculiar provisions of the act of Congress by which the 
appellate powers of the federal Supreme Court are fixed; 
and the distinction is undoubtedly made so as to avoid as 
far as possible an unnecessary increase of the number of 



2i6 SELECTED ARTICLES 

cases which would otherwise come before the federal appel- 
late court. For a long time representative lawyers of the 
country have considered this discrimination in allowing ap- 
peals as unwise; and the American Bar Association and 
many leading lawyers have been urging upon Congress the 
desirability of changing the judicature act so as to render 
possible the review by the Federal Supreme Court of all 
decisions of a highest state court, which determine to be 
either valid or invalid a state statute on the issue of its re- 
pugnancy to the Federal Constitution. It is for the people 
through their representatives in Congress to say whether 
the remedy which is thus possible shall be adopted. It 
would be a logical, efficient, and direct remedy for any evils 
for the cure of which the recall of judicial decisions is urged. 
Therefore, besides objections to, the recall of judicial deci- 
sions on the ground of the vice, inexpediency, and dan- 
ger of such a measure, it is further shown to have no jus- 
tification on the grounds of emergency or necessity, for 
there is open an easy, direct, and constitutional remedy for 
all the evils which are complained of as a basis for that 
measure. 

The Federal Constitution provides (Art. IV, sec. 4) : 

The United States shall guarantee to every State in the Union 
a republican form of government. 

It is obvious that the judicial recall measure could not 
apply in any particular state without express provisions for 
that purpose in the state constitution. So far as state ap- 
plication is concerned, it must first be adopted as part of the 
state supreme law, as a feature of state government. The 
federal Constitution contemplated a union of states having 
as their fundamental principles and laws of government only 
those which are and which should at all times remain es- 
sentially republican in form. And this provision of the Con- 
stitution was adopted to protect not merely against intrigues 
by foreign powers but also against the ambition and in- 
trigues of local agitators. Its purpose was to keep uniform, 
within specified limits, the local state governments. As 
pointed out by Madison in the Federalist, explaining the 
purpose and force of this provision: 



RECALL OF JUDICLAL DECISIONS 217 

But who can say what experiments may be produced by the 
caprice of particular States, by the ambition of enterprising lead- 
ers, or by the intrigue and influence of foreign powers? 

As long, therefore, as the existing republican forms are con- 
tinued by the States they are guaranteed by the Federal Constitu- 
tion. 

The only restriction imposed on them is this, that they shall 
not exchange republican for antirepublican constitutions, a re- 
striction which, it is presumed, will hardly be considered as a 
grievance. 

It is not left, therefore, to the caprice of each state from 

time to time to determine whether it shall adopt features of 
government which are imrepublican or to repudiate entirely 
the republican form. 

As pointed out also by Madison in the quotation of his 
observation upon the nature of a "pure democracy," above 
given, a yielding up to the direct vote of the people, as in 
pure democrac)^ is to be avoided as repugnant to our repub- 
lican form of government, a government under which the 
people act through their respective or through representative 
departments, through whose carefully formulated delibera- 
tions and judgments, not the expressions of the temporary 
spasmodic will of the majority, but the deliberate, con- 
sistent, and logical judgment of the entire sovereign people, 
refined and corrected by careful study and consideration by 
individuals or tribunals adapted to that purpose, may be 
enforced, and that, too, consistently with the existing pro- 
visions of the fundamental supreme law as laid down in the 
Constitution. Not only is such representative element an 
essential feature of our republican form of government, but 
another and even more indispensable feature is the main- 
tenance of untrammeled courts of justice presided over by 
judges who, during their terms of office, shall be independ- 
ent, not only of the legislative and executive department, but 
independent of even the sovereign power of the people. 



Recall of Judicial Decisions. 

Ezra Ripley Thayer. 

Among the evils which such judicial action brings in its train 
is suspicion of other decisons involving no such error and 
needless attacks on our constitutional system to secure ends 
attainable by means now at hand. These are to be expected 



2t8 selected articles 

from ardent reformers distinguished for courage and acuteness 
rather than sanity or patience, whose lack of training in the law 
leaves them unaware of the flexibility and scope of our exist- 
ing constitutional machinery. 

The plan for the "recall of judicial decisions"' has been much 
discussed and misunderstood. Its scope has not always been 
clear and may have been somewhat wider at the outset than 
afterwards. But in time, with Mr. Roosevent's indorsement, it 
took the shape of a proposed amendment to the "due-process" 
clause of state constitutions, providing that under certain con- 
ditions a statute which the court has held to contravene this 
clause may nevertheless stand if aproved by popular vote. 
In this form its novelty and injurious tendencies are not more 
conspicuous than its feebleness and inaptness. The power 
ostensibly given to the voters to do what the court regards 
as a deprivation of liberty or property without due process 
of law would be illusory; for the fourteenth amendment is ex- 
pressly excluded from the project. And so. whether the "due- 
process" clause of the State constitution is amended in Air. 
Roosevelt's way or in the ordinary way, or is repealed alto- 
gether, the unqualilied prohibition against taking liberty or 
property without due process of law remains in force against 
both legislatures and voters just as before. And the fourteenth 
amendment gives the court the same power and duty as before 
to render the objectionable decision. The whole project is 
thus reduced to a roundabout attempt to obtain a review of the 
decision in Washington, preceded by a popular demonstration 
against the court. 

These features of the proposal make its local and temporary 
character pretty plain. One of its ablest advocates has de- 
scribed it as "a good weapon with which to stay the proposed 
recall of judges." Another might see in it a club to brandish 
before a particular tribunal. Such ends it may serve for the 
moment, but its tendencies for the future make it an ugly 
weapon to use ; and they are precisely the tendencies against 
which Air. 'J'hayer's argument is directed. 

This may be brought out by supposing that the proposed 
clause permitting the rehabilitation of legislation by popular 
vote after an adverse decision of the court were attached to- 
the fourteenth amendment, where it would mean something. 



RECALL OF JUDICIAL DECISIONS 219 

Logically and inevitably Mr. Roosevelt's proposal leads us to 
this, whatever may have been its original purpose. Or sup- 
pose the business of protecting life, liberty, and property be 
intrusted to the states as of old. the fourteenth amendment re- 
pealed, and the referendum provision added to the "due- 
process" clause in the state constitution. 

The merit of this plan as against the present method of 
constitutional amendment is a question which should not be 
confused by clamor about matters beside the point — such as 
the injustice of allowing a writ of error to the Supreme Court 
of the United States when the law is sustained and denying it 
when the law is overthrown — or difficulties unduly clogging con- 
stitutional amendment in some states — or the supremacy of 
the popular will. The lack of a proper appeal to Washington 
is due to a defect in the judiciary act, which may be remedied 
by a mere amendment of that act. If the procedure for amend- 
ing the constitution is too slow or cumbrous in any state, all 
that is needed is to make it less so. 1'he machinery differs 
widely in different states, and the right amount of delibera- 
tion to require before a change is permitted would be just as 
real a question under Air. Roosevelt's plan as it is now. And 
as to the popular will, it is plain enough that when constitu- 
tional limitations, whether rightly construed or wrongly, pre- 
vent wise legislation which the community demands those limi- 
tations must give way. The question is why this result should 
not be brought al)out by constitutional amendment in the regu- 
lar way; and it is not hard to see that the demand for some 
other method is based on hostility to the very conception of 
judicial control over legislation. 

Constitutional amendments in various forms will meet the 
difficulty. In the case of a workmen's compensation act, for 
example, such legislation, described in general terms, may be 
specifically authorized by an amendment to the "due process" 
clause. Or the disadvantage of such piecemeal amendment 
may be met, as Dean Ballantine has proposed, by a broader 
declaration that the legislature may declare any business pub- 
lic and subject it to any regulations which do not preclude a 
reasonable return on the investment. Or the "due process" 
clause may even be repealed altogether as to legislative action 
and the citizen left to such constitutional safeguards as remain. 



220 SELECTED ARTICLES 

W'hichever be the form, no change is made in the system. 
The legislature still has absolute power within the range of 
permissible interpretation, and whether this limit has been 
overstepped is a question for the court. 

Under the proposed system, on the contrary, the form of a 
constitutional limitation remains, but it is binding only to such 
an extent and in favor of such persons as the majority of 
voters may choose. The citizen thus has no rights which the 
legislature and the majority acting together are bound to re- 
spect. 



Yale Law Journal. 22. 1-18. November, 1912. 

Independence of the Judiciary the Safeguard of Free Institu- 
tions. William B. Hornblower. 

I have hitherto spoken of judicial recall. What about 
the so-called "recall'' of judicial decisions? This is a scheme 
lately devised by an ex-President of the United States. By 
the later interpretation placed upon it by its author it is 
narrowed down to a very limited class of cases. It is not 
ever}' decision which is to be recalled by popular vote, but 
only special classes of decisions. Indeed, the decision itself 
is not to be revoked so far as concerns the individual liti- 
gants with regard to whom the decision was had. but the 
principle announced by the decision. The scheme as at 
present formulated by its author, as I understand it, is this: 
Whenever the highest court of a state shall have declared 
unconstitutional a particular statute of the state passed under 
the "police power" of the state for the supposed benefit of 
the health or welfare or safety of a portion of the com- 
munity, and whenever such statute has been held by the 
highest court of the state to be unconstitutional because in- 
terfering with the life, liberty, and property clause of the 
constitution of the state, the people of the state shall have 
the right by a majority vote to set aside the decision of the 
court declaring the statute to be void and to restore the 
authority of the statute by plebiscite. 

As thus restricted, the principle leaves unimpaired the 
power of the highest court of the land, a court, by the way, 



I 



RECALL OF JUDICLAL DECISIONS 221 

composed entirely of judges not elected by the people at 
all. but appointed b}- the Executive with the consent of the 
Senate, and not removable by the people, but only removable 
by impeachment, and holding office for life or good be- 
havior, to do the very things which the state courts are to 
be prohibited from doing, viz, to set aside absolutely and 
without an}^ right of review a statute of a state passed under 
the police power of the state for the protection of the life, 
health, or safety of a portion of the community. 

If it be said that a statute approved by the state court 
is hardly likely to be set aside by the United States Supreme 
Court, we can point to numerous cases where this has been 
done. 

Thus, in the famous bakeshop case of People v. Lochner 
(177 N. Y., 145), the Court of Appeals of New York affirmed 
the constitutionality of a law limiting, the hours of labor 
of employees in bakeries and held it to be a valid exercise 
of the police power of the legislature relating to the public 
health. The decision was reversed by the Supreme Court 
of the United States (198 U. S., 45), which court held the 
act to be unconstitutional as an unreasonable interference 
with the liberty of the citizens. 

The number of cases is legion where state statutes which 
have been upheld by the state courts have been set aside 
by the United States Supreme Court as violating the clause 
of the federal Constitution forbidding a state to pass any 
law impairing the obligation of a contract. 

How long will it be before some future agitator, clamor- 
ing for the right of the people to rule, will insist that the 
decisions of the LTnited States .Supreme Court itself shall be 
made subject to review by popular vote? The federal courts 
have been in the past subjected to the fiercest attacks by 
political agitators and have been regarded with far more 
disfavor than the state courts. Only recently the decisions 
of the United States Supreme Court in applying the "rule 
of reason" to the Sherman antitrust act and in applying to 
that act a "reasonable construction" have aroused the anger 
of a large number of extremists. 

The attack on the right of the courts to declare an act 
of the legislature or of Congress unconstitutional is but a 



222 SELECTED ARTICLES 

recrudescence of an attack which has been from time to 
time waged upon the courts ever since the foundation of 
our federal government. It has, indeed, been from time to 
time openly asserted and claimed that the courts have 
usurped a power not originally conferred upon them by the 
Constitution, state or federal, and not within the original 
intention or purview of the framers of the constitution. This 
proposition has even received support and encouragement 
from some of our best known writers on academic questions 
of constitutional law and even from professors in our law 
schools. It may not be unnecessary, therefore, to remind 
ourselves of the fallacy of this proposition. 

So far as the federal constitution is concerned, the de- 
bates in the convention and the statements in the Federalist 
clearly show that the power and duty of the courts to de- 
clare an act of Congress or an act of the legislature void as 
unconstitutional was contemplated. 

In the convention which framed the federal Constitu- 
tion, it was proposed to create a "council of revision" to be 
composed of the Executive and a convenient number of the 
national judiciary, with authority to examine every act be- 
fore it shall operate with a qualified veto power. This propo- 
sition, was. however, rejected. 

In the course of the debate, the provision for making 
the judiciary a part of the council of revision was objected 
to on the ground among others that it would interfere with 
their freedom from bias when later called upon to expound 
the law. 

On this point, Mr. Elbridge Gerr}-, of Massachusetts, 
said he doubted whether the judiciary "ought to form a part 
of it. as they will have a sufficient check against encroach- 
ments on their own department by their own exposition of 
laws, which involved a power of deciding on their consti- 
tutionality. In some states the judges had actually set aside 
laws as being against the Constitution. This was done, too, 
with general approbation." (Madison's Journal of the Fed- 
eral Convention (Scott's Ed., Chicago, Albert Scott & Co., 
1893). p. lOi.) Mr. Gerrj' moved a proposition to give the 
veto power to the Executive alone. Mr. Rufus King, of 
Massachusetts, seconded the motion "observing that the 



RECALL OF JUDICLAL DECISIONS 223 

judges ought to be able to expound the law, as it should 
come before them, free from the bias of having participated 
in its formation." (Ibid., pp. lOi and 102; Farrand's Rec- 
ords of the Federal Convention, Vol. I, pp. 97, 98.) 

Mr. Wilson, of Pennsylvania, assumed that the judges 
as expositors of the laws would have power to refuse to 
give effect to laws clearly unconstitutional (Ibid., p. 398). 

Mr. Luther Martin, of Maryland, considered that the 
association of the judges with the Executive w^ould be a 
dangerous innovation. "As to the constitutionality of laws, 
that point will come before the judges in their proper offi- 
cial character. In this character they have a negative on 
the laws. Join them with the Executive in the revision and 
they wnll have a double negative." (Ibid., p. 402; Farrand's 
Records of the Federal Convention, Vol. II, p. 76.) 

There w^ere. it is true, some members of the convention 
who protested against conferring upon the judiciary the 
right to refuse to enforce unconstitutional statutes, but their 
protests only serve to emphasize the views of those who 
assumed that the judiciary would of necessity be called upon 
to pass upon the constitutionality of statutes, state and fed- 
eral. 

That the power and duty of the courts to pass upon the 
constitutionality of statutes was contemplated and intended 
by the framers of the federal Constitution is made plain by 
the statements of the Federalist. 

In No. LXXVIII of the Federalist it is said: 

The comijlete independence of the courts of justice is peculiar- 
ly essential in a limited constitution. By a limited constitution, 
I understand one which contains certain specified exceptions to 
the legislative authority, such, for instance, as that it shall pass 
no bills of attainder, no ex post facto laws, and the like. I^imi- 
lations of this kind can be preserved in practice no other way 
than through the medium of courts of justice, whose duty it must 
be to declai-e all acts contrary to the manifest tenor of the Con- 
stitution void. Without this, all the reservations of particular 
rights or privileges would amount to nothing. * * * 

The interpretation of the laws is the propei- and peculiar prov- 
ince of the courts. A constitution is, in fact, and must be re- 
garded by the judges as a fundamental law. It therefore be- 
longs to them to ascertain its meaning, as well as the meaning 
of any particular act proceeding from the legislative body. If 
there should happen to be an irreconcilable variance between the 
two. that which has the superior obligation and validitv ought, of 
course, to be preferred; or, in other words, the Constitution 
ought to be preferred to the statute, the intention of the people 
to the Intention of their agents. 



224 SELECTED ARTICLES 

Nor does this conclusion by any means suppose a superiority 
of the judicial to the legislative power. It only supposes that the 
power of the people is superior to both, and that where the will 
of the legislature, declared in its statutes, stands in opposition to 
that of the people, declared in the Constitution, the judges ouglit 
to be governed by the latter rather than the former. * * * 

If, then, the courts of justice are to he considered as the bul- 
warks of a limited constitution against legislative encroachments, 
this consideration will afford a strong argument for the perma- 
nent tenure of judicial offices, since nothing "^vill contril)ute so 
much as this to that independent spirit in the judges which must 
be essential to the faithful performance of so arduous a duty. 
This independence of the jvidges is equally requisite to guard the 
Constitution and the rights of individuals from the effects of 
those ill-humors which the arts of designing men or the influence 
of particular conjunctures sometimes disseminate among the 
people themselves, and which, though they speedily give place 
to better information, and more deliberate reflection, have a 
tendency in the meantime to occasion dangerous innovations in 
the Government and serious oppressions of the minor party in 
the community. 

Human language could not be more explicit than this. 
The Federalist was, as we all know, published as an appeal 
by Madison, Hamilton, and Jay to the American people for 
the adoption of the Constitution, That the adoption of the 
Constitution by the variotis states was due to the lucid and 
forcible exposition of its principles in the Federalist has 
been universally conceded. It follows that when the Con- 
stitution was adopted, it was adopted with explicit notifi- 
cation that the courts -were intended to have the power to 
declare statutes unconstitutional. 

I am quite at a loss to understand the state of mind of 
those who talk about "judicial usurpation" in passing upon 
the constitutionality of statutes. It would clearly have been 
judicial breach of duty if the courts had failed to exercise 
the function thus clearly imposed upon them. 

Indeed, the duty of a court to refuse to enforce an act 
which violates a provision of the Constitution is perfectly 
obvious when we reflect upon the nature and objects of con- 
stitutional restrictions upon legislative authority. 

As the matter was forcibly stated by Chief Justice Mar- 
shall in the great epoch-making case of Marbury v. Madison 
(i Cranch's Repts., 137-180): 

If two laws conflict with each other the courts must decide on 
the operation of each. So, if a law be in opposition to the Con- 
stitution; if both the law and the Constitution apply to a particu- 
lar case, so that the court must either decide that case conform- 
ably to the law, disregarding the Constitution, or conformably to 
the Constitution, disregarding the law, the court must determine 
which of these conflicting rules governs the case. This is of the 
very essence of judicial duty. If, then, the courts are to regard 



RECALL OF JUDICL\L DECISIONS 225 

the Constitution, and the Constitution is superior to any ordinary 
act of the legislature, the Constitution and not such ordinary act, 
must govern the case to which they both apply. . Those, then, 
who controvert the principle that the Constitution ^s to be con- 
sidered in court as a paramount law are reduced to the necessitj 
of maintaining that courts must close their eyes on the Const tu- 
tion and see only the law. This doctrme would subvert the yei> 
foundation of all written constitutions. It would declare that 
an act which, according- to the principles and theory ot our Gov - 
t?nment is entirely void is, yet, in practice, completely obligatory 
U would declare that, if the legislature shall do what is expressly 
forbidden such act, notwithstanding the express prohibition, is 
iS realitv effectual. It would be giving to the legislature a prac- 
tical and real omnipotence with the same breath which professes 
to restrict their powers within narrow limits. It is prescribing 
limits and declaring that these limits may be passed at pleasure. 
So unanswerable was the logic of the Chief Justice s 
opinion that, although it was really but an obiter dictum, 
the decision of the court being that they had no jurisdiction 
of the particular matter before them, being an application 
for an original writ of mandamus, not in aid of their appel- 
late jurisdiction, the application for the writ being dis- 
charged, yet it became the foundation stone on which w^as 
built up the vast structure of constitutional jurisprudence, 
State and national, in this country. This structure has stood 
firm, from that day to this, notwithstanding the assaults of 
would-be innovators and the criticisms of academic theo- 
rists. 

In George Ticknor Curtis's Constitutional History of the 
United States (Vol. I, p. 593) the subject is very forcibly 

put as follows: 

To withhold from the citizen a right to be heard upon the 
Question which in our jurisprudence is called the constitutionality 
of a law when that law is supposed to govern his nghts or Pre- 
scribe his duties would be as unjust as it would be to deprive 
him of the right to be heard upon the construction of the law. 
or upon any other legal question that arises in the cause Thi 
citizen lives under the protection, and is subject to the lequiie- 
ments of a written fundamental law. No department of the 
national, or of any state government, can lawfully act otherwise 
than according to the powers conferred or the restrictions imposed 
by that instrument. If a citizen believe himself to be aggrieved 
bv some action of either government which ^e supposes to be in 
violation of the Constitution, and his complaint admit of P^aicial 
investigation, he must be heard upon that question, and it must 
be adjudicated, or there can be no administration of the laws 
worthy of the name of justice. 

It is said by Mr. Justice Brewer in Muller v. Oregon (208 

U. S., 420) : 

Constitutional questions, it is true, are not settled by even 
a consensus of present public opinion, for it is the peculiar value 
of a written Constitution that it places in unchanging form 
limitations upon legislative action, and thus gives a permanence 
and stability to popular govemment which otherwise would oe 
lacking. 



226 SELECTED ARTICLES 

The most serious aspect of the present agitation is not 
in its immediate results, but in the tendency towards ever in- 
creasing and rapidly accelerating demands for further 
changes in the direction of impairing the integrity and the 
independence of the judiciary. 

It is said that the recall of judges if put into the consti- 
tution of a state will be seldom used, and the experience of 
Oregon is cited as an example. 

The test will come, however, in time of great public ex- 
citement, when popular resentment is aroused against the 
enforcement of the law, affecting some class of the commu- 
nity. 

Already threats have been made to invoke the recall in 
California to rebuke the judges for enforcing the law. What 
would have been the situation during the recent McXamara 
trial in California if judicial recall had been in force during 
that trial? 

The McXamaras were on trial, it will be remembered, 
for d^-namiting a newspaper office in Los Angeles, causing 
the death of several workmen. Intense feeling was aroused 
by the trial. Great numbers of men connected with labor 
unions insisted and most of them perhaps honestly believed 
the McXamaras to be innocent of the alleged crime and to 
be the victims of of an unjust and malignant persecution 
in the interest of the capitalistic classes. The McX'amaras 
ultimatel}^ and before the close of the trial confessed their 
guilt and thus took the question of their guilt or innocence 
at once and forever out of the region of uncertainty. 

X^o amount of testimony, however direct and positive, and 
however convincing to a jury, could possibly have made 
the guilt of the defendants absolutely clear to their sympa- 
thizers beyond all controversy, so long as the defendants 
had continued to protest their innocence. " Suppose they had 
not confessed their guilt, but had been convicted and sen- 
tenced, can we doubt that there would have been public re- 
sentment and public clamor and that the judicial recall would 
have been promptly invoked to punish the judge who pre- 
sided at the trial? Confession of guilt and that alone has 
vindicated the prosecutor and the judge. 



RECALL OF JUDICLAL DECISIONS 227 

"The appetite grows by what it feeds upon." It is ap- 
|:alling to think of the extremes to which popular majorities 
under the instigation of inflammatory harangues by eloquent 
or persuasive orators may be driven. 

The right of the minority to be protected in their lives, 
liberty, and property from the clamor of temporary popular 
majorities is absolutely essential to the preservation of our 
free institutions. 

"Half the wrong conclusions at which mankind arrives 
are reached by the abuse of metaphors." is a remark at- 
tributed to Lord Palmerston. 

Academy of Political Science (N. Y.). Proceedings. 
3: 96-9. January, 1913. 

Recall of 'Judicial Decisions. Clarence D. Ashley. 

If you find that a bill is incorrectly drawn there can be 
no quicker process than to have it redrawn and submitted 
the next year. There seems to be no sound objection to 
such a course. We must educate the draftsman of our bills, 
the thinkers among the public, and mainly our lawyers. That 
is why the present public discussions may be objectional. 
They detract our attention from the real points of danger. 
I believe that many of our rules of law are wrong. I think 
we are living under a system adapted in some respects to 
a civilization existing three hundred years ago. It seems to 
me that some sweeping changes might well be made. Thus 
we might abolish our rules of evidence, which are simply 
rules of exclusion. So, too, we could modify the subject of 
contract, and, for example, do away with what seems to be 
the unnecessary and harmful doctrine of consideration. I 
would change many other branches of our law. Thus we 
know that our criminal procedure is at fault and that there 
are manj- technicalities which allow rascals to escape. There 
is a vast amount of traditional reverence for what was quite 
proper for four or Hye hundred years ago, but is not so now. 
We know that many sound decisions shock common sense. 
Do not complain of these things, but get them changed by 
the legislature. 



228 SELECTED ARTICLES 

Our study should be mainly directed towards a solution of 
these difficult questions. Once bring our law in accord 
with modern civilization and many of our troubles will 
cease. Let us devote ourselves to a study of existing con- 
ditions, and determine how best we can educate our people 
and lawyers, so that these problems may be scientifically 
and carefully worked out. 



SUPPLEMENTARY MATERIAL FOR 
SECOND EDITION 

National Municipal Review. 3:693-701. October, 1914. 
Municipal Initiative, Referendum and Recall in Practice. 

Charles F. Taylor. 

To what extent have provisions for the initiative, referendum 
and recall been inserted in the charters of the American cities, 
and to what extent have they been used? These are natural 
questions ; but the answers have never been worked out. Realiz- 
ing this, I formulated a plan to get the facts. It is well known 
that since Des Aloines combined the initiative, referendum and 
recall with the commission form of government in 1907, it has 
been "fashionable" to follow its excellent example. The philoso- 
phy is that it is unwise to give unlimited authority to a small 
body of men without reserving the possibility of final control in 
the hands of the voters. 

As the municipal initiative, referendum and recall are found 
chief!}- in commission-governed cities, for the reason above given, 
I used the commission-governed cities as the chief basis for my 
investigation. There are now 335 commission-governed and com- 
mission-managed cities in tliis country. I solicited the authorities 
of these cities to send me the facts concerning the existence of, 
and the use of, the initiative, referendum and recall in their re- 
spective cities. Some I had to solicit repeatedly. Finally I got 
the facts from 279 of said list, leaving fifty-six not heard from. 
It is fair to presume that there has been little, if any, activity in 
the use of these instruments in the comparatively few cities that 
failed to report. 

Of the 279 municipalities reported, eighteen seem to be en- 
tirely without initiative, referendum or recall. Of the remaining 
261 municipalities, 197 have all three; thirty six have the initiative 
and referendum ; four have the referendum and recall ; four have 
the initiative and recall ; two have the initiative only ; two have 



230 SUPPLEMENTARY MATERIAL 

the referendum only and fourteen have the recall only. However, 
six, not included in the above figures as having the referendum, 
have a limited referendum for franchises only or bonds only, 
one having the obligatory referendum on franchises. 

In the home rule which went into effect in New York April 
ID, 1913, a referendum on franchises is granted to the cities of 
that state. 

On June 30, 1914, the voters of St. Louis, Mo., adopted a new 
charter providing for the initiative, referendum and recall on a 
workable basis, the result giving St. Louis the distinction of being 
the largest city in the country having these instruments. Senti- 
ment for them was increased by the successful use of the initia- 
tive under the old charter last March, in forcing the legislature 
to complete the Mississippi River bridge. At the time over 50 
per cent of the voters signed the initiative petition. 

The Michigan home rule of 1913 grants an interesting method 
of initiating charter amendments. In his "Organized Democ- 
racy," finished in Alay, 1913, Dr. Frederick A. Cleveland, on 
page 335 says : "In California eleven cities which do not have the 
commission form of government have adopted the initiative and 
referendum." 

But the eleven cities in California referred to by Dr. Cleve- 
land, and the home rule New York and Alichigan cities, above 
mentioned, have not been included in the definite figures given 
in this article, owing to technical difficulties and the very recent 
enaction, precluding actual experience. 

So much for the plain facts concerning the existence of these 
measures in the fundamental laws of the cities of this country. 
How about their use? 

Of these two-sixty-one municipalities that have these powers, 
thirty-one have used the initiative, twenty-six used the referen- 
dum and twenty-seven have used the recall. Of the six that 
have the limited referendum, one has used it on franchises. 

The preceding paragraphs contain some figures that will be a 
surprise to those who consider the initiative, referendum and re- 
call as radical and dangerous instruments for the voter to possess. 
For example: of the 197 municipalities that possess all three of 
these instruments, 137 have not used any of them. This, how- 
ever, does not argue that these instruments are not of value. 
Hon. Clinton Rogers Woodruff, the editor of the National Mu- 



SUPPLEMENTARY MATERIAL 231 

nicipal Review, said in a lecture delivered at Raleigh, N. C, 
March 10, 1914, that these measures are "more valuable in their 
existence than in their use. Their existence impresses a Sterner 
sense of duty and keener thoughts of responsibility in the minds 
of officials." 

With the above explanation, I beg to submit the following 
summary of uses of these three instruments by the cities to date, 
according to the above mentioned reports : 

Talladega, Ala. (April, 1911.) Several efforts made to use the 
recall, failed to get a sufficient number of signatures. 

Oakland, Cal. (July, 1911.) Recall: August 5, 1912, "socialists 
and I. W. \V. against mayor and two commissioners; defeated." 

Vallejo, Cal. (July, 1911.) Petitions for the first recall are now 
being circulated. 

Springfield, III. (January, 1911.) Recall: Attempt to recall com- 
missioner Spaulding was made 1912; required number of signatures 
not obtained. 

Marshalltown, Iowa. (Operating under state law.) One attempt 
has been made to recall the maj'or; failed. 

Cherryvale, Kans. (Operating under state law.) Recall, one 
attempt to recall mayor and finance commissioner, attempt covering 
April to September, 1913. thirst filing, names on petition insuffi- 
cient; refiled, and names again insufficient; district court appealed 
.to, and clerk's decision that names were insufficient was sustained. 
So the attempt at recall failed. 

Pratt, Kans. Recall: September, 1913, unsuccessful attempt to 
recall the mayor. 

Lawrence, Mass. (January, 1912.) Recall: School committeeman, 
J. J. Breen, was recalled at special election October 1, 1912. 

Pontiac, Mich. (January, 1911.) Recall: "Attempt was made to 
recall the first mayor, R. J. Lounsbury, but did not materialize." 

Nebraska City, Neb. Recall: "Our Chairman was recalled in 
November, 1913." 

Long Branch, N. J. (April, 1913) Recall: "Petitions filed with 
city clerk and certioraried to supi'eme court." 

Mandan, N. D. (Under state law.) Recall: One unsuccessful 
attempt. 

Minot. N. D. January, 1909.) Recall: October 18, 1913, "social- 
ists invoked recall of maj^or and one commissioner; but they were 
re-elected, and one socialist commissioner was recalled." 

Bartlesville, Okla. (August, 1910.) Recall September 14, 1911. 
Attempt to recall mayor and two city commissioners. Failed on 
account of insufficiency of petition. 

Duncan, Okla. (June, 1910.) Recall: Attempt to recall mayor in 
1912: failed ("vote about 3 to 1 in his favor."). 

Guthrie, Okla. (May, 1911.) Recall: "Twice petitions have been 
filed for recall of commissioners, but always insufficient." Mayor 
J. E. Nissley says: "All of above are dangerous weapons for local 
politicians." 

McAlester, Okla. (July, 1910.) Mayor recalled. Date not given. 

Muskogee, Okla. Recall: "June, 1913, an attempt was made to 
recall the mayor and two commissioners, but attempt failed abso- 
lutely." 

Oklahoma City, Okla. (March, 1911.) Recall: "Been tried twice 
but requisite petitions never obtained. Is on again now for recall 
of mayor." 

Portland, Ore. (1903.) Recall: June 5, 1911. Councilman; suc- 
sessf'ul. 

Aberdeen, S. D. (Organized under state law.) Recall: "Recall of 
commissioner. Uefeated at election September 26, 1911." 



2Z2 SUPPLEMENTARY MATERIAL 

Huron, S. D. Recall attempted. Date not given. "The commis- 
sioner was sustained by a large majority." 

Rapid City, S. D. (Commission form adopted 1910.) Recall: 
February, 191o. General recall of all commissioners by "wide open 
town" supporters. All commissioners re-elected. 

Sioux Falls, S. D. (July, 1911.) Recall: September 24, 1912. 
Street commissioner; recalled. August 12, 1913. Water and sewer 
commissioner: defeated. 

Dallas, Texas. (April, 1907.) It will be seen that Dallas has been 
quite enterprising in the use of the "democratic trinity," as the 
following report shows: 

Recall: Election August 11, 1910. Petition filed to recall John 
W. George and John C. Mann, members board of education, as 
candidates to succeed themselves as members board of education, 
as above, John W. George received 1,662 votes; John C. Mann 
received 1,666 votes. As candidates to succeed George and Mann 
under recall petition J. D. Carter received 2,112 votes and J. B. 
McCraw received 2,107 votes. George and Mann were consequently 
recalled as members of the board of education. 

Recall Election April 4, 1911. Petition filed to recall C. C. Lane, 
president board education; C. C. Lane, candidate to succeed him- 
self, received 4,814 votes; E. A. Belsterling, candidate to succeed 
C. C. Lane received 5,43.5 votes. 

Petition filed to recall L. R. Wright, H. D. Ardrey, Shearon 
Bonner as members, board of education. As candidates to succeed 
themselves under recall petition as above, as members board of 
education, L. R. Wright received 5,012 votes; H. D. Ardrey received 
4,974 votes; Shearon Bonner received 4,934 votes. As candidates to 
succeed W^right, Ardrey and Bonner as members, Frank Gilbert 
received 5,334 votes; M. A. Turner received 5,301 votes; W. A. 
Goode received 5,286 votes. L. R. AYright, H. D. Ardrey and 
Shearon Bonner were recalled as members of the board of educa- 
tion. Frank Gilbert, ]\I. A. Turner and W'. A. Goode elected mem- 
bers board of education to succeed Wright, Ardrey and Bonner, 
recalled. 

Petition filed to recall J. D. Carter and J. B. McCraw as mem- 
bers board of education. Under recall petition, as candidates to 
succeed themselves as above J. D. Carter received 5,304 votes; 
J. B. McCraw received 5,238. As candidates to succeed Carter and 
McCraw', George M. Stewart received 4,980 votes and John W. Pope 
received 4,923. Carter and McCraw were elected to succeed them- 
selves as menibers of the board. 

Austin, Tex. (March, 1909.) Recall: One unsuccessful attempt. 

Hoquiam, Wash. (August, 1911.) Recah: April 24, 1912. "Recall 
petition charging Mayor Ferguson with incompetency, signed by 
866 persons, filed with city clerk. May 22, 1912, primary election 
w^as held. Smith 265 votes, Knoell 1,180. On June 3, 1912, general 
election. Ferguson recalled by following vote: Knoell, 1,360, Fer- 
guson, 870." 

Tacoma, Wash. (October, 1909.) Recall: "In 1911, an attempt 
was made to recall the entire commission. The maj'or and two 
commissioners were recalled, and two retained their seats. An 
attempt was made to get up a recall on the mayor in 1912, but it 
was dropped. An attempt is now (May 5, 1914) being made to get 
up a recall on two commissioners." 

Walla Walla, Wash. (September, 1911.) Recall: One attempt 
summer of 1913; unsuccessful, as petition was insufficient. 

Janesville, Wis. (April, 1912.) Recall: July 22, 1913. Attempt to 
recall the mayor "for enforcing laws and ordinances"; mayor 
sustained. 

Superior, Wis. Recall: "Petitions have been circulated three 
times in twelve months; April, 1913, July. 1913, at it now. Never 
have been able to get the necessary signatures. Alleged reasons, 
failure to close red light district." 

The recall was first used in Los Angeles, Cal., and has been used 
prominently in Seattle, W'ash. 

Buffalo is to vote in November on a new commission charter 



SUPPLEMENTARY MATERIAL 233 

providing for the referendum. Toledo in November, will vote on a 
charter providing for the recall of the mayor. The legislature of 
Louisiana, this year has taken the step of authorizing its parishes 
to adopt a three-commissioner form of government in which the 
initiative, referendum and recall are provided. 

We see in this review a safe, healthy and commendable ex- 
ercise of direct powers of the voters in the ptiblic affairs of 
municipalities. These powers have not been abused, a* is plainly- 
seen by the large number of mimicipalities which have these 
powers, but which have never used them ; and in the fact that in 
no place has their use been "cranky" or excessive. These powers 
have been used rather freely in Portland, Oregon, and in Dallas, 
Texas, but we have no evidence that there is any sentiment in 
these places for the abolition of these powers on account of 
their somewhat free use. On the contrar}-, we may reasonably 
assume that the use of these powers is an evidence of their 
appreciation — when there is occasion for their use. 

If these powers of public control of public affairs and of 
officers had come sooner into the municipal life of this nation, 
would mimicipal mismanagement and corruption have become a 
national disgrace? I think not. I hope for and predict the 
continued rapid extension of the initiative, referendum and recall 
until they will be in the charter of every municipality under the 
stars and stripes. The modern American spirit demands that the 
public, through the electorate, shall have power to control public 
affairs and officers, whenever, in the judgment of the electorate, 
there is occasion to do so. 

The People's Law. pp. 19-26. 
William Jennings Bryan. 

The attacks which were formerly made upon the initiative and 
referendum have been directed more recently against what is 
known as the recall. But it will be found upon examination that 
the recall is an evolution rather than a revolution. The right to 
terminate an official term before its legal expiration has always 
been recognized. I know of no' public official who is not subject 
to impeachment at the hands of some tribunal. The only differ- 
ence between the recall, as now proposed, and impeachment, as it 
has been employed, is that in impeachments the trial is before a 
body of officials, while the recall places the decision in the hands 
of the people. It is simply a question, therefore, whether public 



V 



234 SUPPLEMENTARY MATERIAL 

servants shall be tryable only before public servants or by the 
sovereign voters who are the masters. If impeachment had been 
found entirely satisfactory, recall would not now be under dis- 
cussion, but impeachment has proved unsatisfactory for two rea- 
sons. It is difficult to get officials to impeach an official ; whether 
from fear that they will establish a precedent and endanger their 
own tenure of office, or whether for some other reason, may be a 
matter of opinion, but it is undeniably true that the present 
method of impeachment does not meet the requirements of to-day. 
Even the President of the United States, in a recent speech con- 
demning the recall, admitted that the process of removal by 
impeachm.ent must be improved upon. 

A distinction should be drawn between the principle involved 
in the recall and the details of the measure applying' the prin- 
ciple. There is room for a wide difference of opinion in the 
matter of detail and I am not inclined to be tenacious as to any 
particular detail, provided, the principle is clearly recognized 
and fully applied. 

In acting upon definite propositions the people are less 
liable to be mistaken than in acting upon persons. They are 
also less likely to be swayed by prejudice or stirred by emotion. 
It is not unreasonable, therefore, to require a larger percentage 
of the voters to a petition for a recall than in the case of the 
initiative or referendum. I submit, too, that it may be wise to 
separate the question of the recall from the candidacy of the 
other person. When the voter is called upon to decide upon the 
merits of the recall and asked to choose, at the same time, 
between the incumbent and a person against him, there is more 
danger of confusion of thought. A nearer approach to justice 
may be found in 'having the question of recall settled by itself 
and the selection of a new official determined subsequently when 
the relative popularity of the individuals will not draw attention 
away from the single question whether the incumbent has failed 
to discharge satisfactorily the duties of the office. 

Some have suggested that, to prevent the recall of an official 
on purely partizan grounds, the petition ought to contain the 
names of enough of those who voted for him to indicate the 
withdrawal of confidence — the petitioner's action at the first 
election being revealed by his oath where it can not be otherwise 
ascertained. This suggestion is worthy of consideration, and 



SUPPLEMENTARY MATERIAL 235 

to require this would enforce no hardship upon the petitioners. 
A still further limitation has been proposed, namely, that the 
petition should be left with some official where it could be signed 
by those wishing to sign it instead of being circulated by those 
who would solicit signers. This would not prevent the use of 
the recall in an emergency, but if such a provision is inserted in 
the law the percentage should be made lower than in the case 
of a circulated petition. 

In discussing the recall I have assumed that it would apply 
without discriiriination to all officials, including the judiciary. 
The argument that a judge should be exempt from the operation 
of the recall, even when it is applied to other officials, has no 
sound foundation. If it is insisted that he enjoys public confi- 
dence to a greater extent than other public officials, this very 
argument answers itself because that superior confidence will 
protect the judge against injustice. In proportion as people 
have confidence in the bench they will be less likely to remove 
a judge on insufficient grounds. If a judge is wrongfully 
removed — after the people have been given an opportunity to 
investigate the charge made against him and after passion and 
excitement have had time to subside — if under these conditions 
the people still do injustice to a judge, society can better afford 
to risk such occasional injustice than to put the judge beyond 
the reach of the people. If a judge is unjustly removed the 
people will make amends for it when they discover their error, 
and the vindication that the judge will receive when the error 
is corrected will more than compensate him for any mortification 
that he may suffer in the meantime. It is not necessary to reply 
to the argument that the recall will make cowards of judges; 
the judge who would be swerved from his duty by fear of a 
recall would not be fit for the place. Possibly, the recall may 
serve as a sifting process with which to eliminate those unworthy 
to wear the ermine. In fact, it would more than justify itself 
if it removed from the list of aspirants all lawyers who lack 
the courage to do their duty regardless of consequences. If 
there is any position in which we need rigid, uncompromising 
uprightness, it is upon the bench, and the recall, instead of 
menacing the independence of the judiciary, is more likely to 
improve the character of those who occupy judicial positions. 

With the recall, official terms may with safety be made longer. 



230 SUPPLEMENTARY MATERIAL 

North American Review. 198:145-60. August, 1913. 

Direct Rule of the People. George Kennan. 

My object, however, in this paper, is to examine some of the 
methods by which it is proposed to improve the Government, and 
thus, presumably, make ever\-body contented and happy. Three 
of these methods, which have already- been put in practice in 
many of our states, are known as the initiative, the referendum, 
and the recall. These measures are properly described as "pro- 
gressive" ; but, from a historical point of view, they should be 
called "reactionary," because they are a return to much earlier 
and more primitive methods. In the republics of Greece, in the 
free Russian cities of Novgorod and Pskof, and in most of the 
primitive communities whose records have come down to us, 
the people always legislated directly — generally by means of con- 
ventions or mass-meetings. Representative government, that is, 
legislation through delegates chosen by the people to act for them, 
is a much later invention. It is now proposed to abandon, in 
part, the new method, and go back to the old. The people, w-hen 
they feel like it, are to make laws for themselves, just as they 
did in mediaeval Russia and ancient Greece. They are also to 
have the right to discharge summarily, without impeachment or 
trial, all of their elected officials, including even their repre- 
sentatives and the judges of their courts. This may be improve- 
ment, but it certainly is not progress in the sense of going for- 
ward to something new. They had the initiative and the recall 
in Novgorod the Great — the first Russian Republic — nearly eight 
hundred years ago ; and there the people had power to recall 
even the Prince whom they had elected to serve as President. 
They had the initiative and the recall fourteen hundred years 
ago, in Athens ; and there they recalled, among others, such men 
as Thucydides, Alcibiades, and Pericles. These measures, there- 
fore, are not new; they are centuries old, and they have been 
abandoned almost ever>'where except in Switzerland. Within the 
past few years, they have been revived in Australasia, and in 
some of our western states, and there they are now^ being tried 
out again. 

If we ask a Direct Ruler what he expects to accomplish by 
means of these measures, he will probably tell us that he expects 
to make the government more responsive to the wishes of the 



SUPPLEMENTARY MATERIAL 2zy 

people ; to break up machine politics and the rule of the bosses ; 
to improve legislation; and, finally, in the words of Mr. Roose- 
velt, to bring about a "practical betterment of social and eco- 
nomic conditions throughout the land." No one, of course, will 
deny that these are praiseworthy objects; but it is extremely 
doubtful whether they can be attained by the methods proposed. 

What is the chief defect in our existing machinery of gov- 
ernment? If we ask a Direct Ruler this question, he will prob- 
ably say that the government does not represent the people ; 
that the bosses, the corporations, and the privileged classes have 
secured control of it, and are using it for their own benefit, re- 
gardless of the people's wishes and interests. But even if this 
be true, who is to blame for it? Is it due to a defect in our 
form of government, or is it the fault of the people themselves? 

Any one who studies the figures of our recent elections must 
be convinced, I think, that if the people do not rule as fully and 
completely as they ought to rule, it is because they are too indo- 
lent, or too indifferent, to take the necessary trouble. In the 
primary elections in the State of New York last fall, only fifteen 
per cent of the voters went to the polls. In Tioga County there 
were four thousand two hundred and forty-four voters; but only 
five hundred and sixty-one of them took the trouble to vote. In 
the village of Cortland there w^ere one thousand three hundred 
and forty-two voters and only one hundred and ninety-seven of 
them voted. Only ten per cent of the voters went to the polls 
in Little Falls ; only eight per cent in Watertown ; and only 
six per cent in Ilion. How can people expect to rule, or to get 
good government, when five-sixths of them are so lethargic, or 
so indifferent, that they will not even go to the polls? The 
government falls into the hands of the bosses and the machine 
politicians simply because the people do not do their duty. It 
may be said that the primary elections, at which only nomina- 
tions are made, are not important. But they are important. The 
people cannot expect to have good officials, or good government, 
unless they make good nominations. 

The people, moreover, do not attend properly to their civic 
duties, even in matters of the utmost importance. In September, 
19 12, a general election was held in Ohio to vote on thirty- four 
radical amendments to the State constitution. Most of them 
were important, and one of them changed the constitutional law 



238 SUPPLEMENTARY MATERIAL 

of the State with regard to the sale of intoxicating Hquor. Less 
than one-half of the enrolled voters went to the polls, and the 
number who voted on the liquor-law amendment was only one- 
third of the total enrollment. The best imaginable form of self- 
government must necessarily be a failure when, in a great state 
like Ohio, five or six hundred thousand voters out of a million 
either decline to vote, or stay away from the polls altogether. 

One of the principal reasons for the failure of American 
citizens to vote is indifference. They are not generally interested 
in public questions that do not directly concern them. In the 
words of General Bingham, "The average citizen doesn't care 
until it hits him in his pockets, or in his home — hits him person- 
ally." President Taft may have made mistakes as Chief Execu- 
tive of the nation ; but he made no mistake when, four days 
before the recent election, he said to the students of Harvard, 
"The real solution of all our political difficulties is to be found 
in the stimulation of good citizenship. No machinery of any 
sort, whether by direct primar>^, referendum, initiative, or recall, 
will accomplish any real reform, unless the individual citizen 
himself is stirred to a better performance of his duty as a voter 
and as a member of his party. If the individual citizen improves 
his citizenship, then reform will follow, whether new machinery 
be adopted or not ; and if the average standard of good citizen- 
ship is not improved, then new political, machinery will not aid." 

Many clear-sighted students of public affairs have expressed 
a similar opinion. In a recent address, Raymond B. Fosdick, 
former Commissioner of Accounts of New York, said that the 
great remedy for the evils that exist in New York is "personal 
and individual regeneration. There is no such thing as a civic 
'presto change,' Permanent improvement in the quality of the 
government is dependent upon the quality of the people." 

In a speech on the 28th of October last, President Creelman, 
of the Municipal Civil Service Commission, said: "We cannot 
carry on government by civil service commission. We must have 
an intelligent citizenship behind us. . . . W^hat preparation 
does the voter, who selects the officers that make the policy of 
the government, make for the high function that he exercises?" 

In a sermon preached in the Baltimore Cathedral, on the eve 
of the recent Presidential election, Cardinal Gibbons said: "It 
is my profound conviction that if ever the Repubhc is doomed 



SUPPLEMENTARY MATERIAL 239 

to decay, if the future historian shall ever record the decline and 
fall of the Ameican Republic, its downfall will be due, not to 
a hostile invasion, but to the indifference, lethargA^, and apostasy 
of her ow-n sons." 

And yet, this indifference of the citizen, which vitally affects 
the interests, if it does not threaten the very existence, of the 
Republic, receives no attention whatever in the platform of any 
political party. All the platforms refer to the rights of the 
people, but not one to their duties. James Bryce, a clear-sighted 
and sympathetic student of American institutions, has pointed 
out, in the following words, one of the reasons for this general 
neglect of civic duty. "The enormous growth of modern states 
has made the share of the individual citizen seem infinitesimally 
small. In an average Greek republic, he was one of from two 
to ten thousand voters. In England or France to-day he is one 
of many millions. The chance that his vote will make any 
difference to the result is so slender that it seems negligible." 

The Direct Rulers assert that our government is bad because 
the people do not control it; but the people do not make use of 
the remedies for existing evils that they already have. What 
good reason is there to suppose that they will continuously, per- 
sistently, and indefatigably make use of the new remedies that 
are now suggested? So long as such remedies are novel, and so 
long as the moral and civic enthusiasm that is characteristic of 
the present time lasts, universal primaries, the initiative, the 
referendum, the recall, and the various other panaceas that are 
proposed, will perhaps work well ; but when this reform wave 
passes, when the people get tired, or perhaps disillusioned, and 
when they begin to neglect their civic duties again, the new ma- 
chinery will grind out crooked bosses and crooked business just 
as the old machinery did. The evil-doers are always alert and 
active, because they live by it. They watch the representative 
machine constantly and, so far as possible, direct and control it. 
The people, on the other hand, are at one time in a fever of moral 
reform, and at another time in a chill of civic indifference. They 
supervise and direct the political machinery for a while, but then 
they neglect it and the bosses get control. The people — or at 
least the Progressive people — seem to think now that if they 
secure universal primaries, the initiative, the referendum, and the 
recall, good government will come almost automatically; but it 



240 SUPPLEMENTARY MATERIAL 

will not. The evil-doers will use the new agencies, if the people 
neglect them, just as they used the old. Mr. J. B. McClure, not 
long ago declared that "a succestul government must be neg- 
lect-proof;" but there is no possibility of making a government 
neglect-proof. Ever>^ human agency must have intelligent and 
incessant human control, and a neglect-proof government is no 
more practicable than a neglect-proof steam-engine, or a neglect- 
proof aeroplane. The price of good government is eternal vigi- 
lance, and for eternal vigilance the people of the United States 
have never 3'et shown the slightest capacity. 

Supporters of the initiative, the referendum, and the recall 
say that these measures will take the government out of the 
hands of corrupt or selfish bosses, and put it in the hands of the 
people where it properly belongs. But wall this be the result? 
It seems to be more than Moubtful. The bosses as well as the 
people can initiate bills and make recalls, and they are far more 
shrewd and resourceful than the people are in the art of political 
manipulation. The new machiner}-, moreover, affords as many 
opportunities for fraud as the old did. What is to prevent the 
bosses or the "interests" from initiating bills, hiring corrupt can- 
vassers, and getting thousands of fictitious or fraudulent signa- 
tiires to their petitions? In Oregon they have already done this. 
In a judicial investigation of the "spite" referendum on the ap- 
propriation for the state universit}', ten thousand out of thirteen 
thousand signatures were found to be fictitious or fraudulent. 

In the city of Seattle, last fall, there was an anti-vice crusade, 
headed by the mayor and aided by a body of special police known 
as the "Purity Squad." The vicious interests of the city, very 
naturally, did not like it, and began a popular proceeding to re- 
move the mayor by means of the recall. They offered a recall 
petition bearing the signatures of twenty-six thousand six hun- 
dred alleged citizens, but, upon investigation, all but about eight 
thousand of the signatures were found to be fraudulent. Mean- 
while, a force of seventy-five clerks had spent two weeks in the 
w^ork of verification. 

No one has set forth more clearly the fundamental defects 
of direct popular rule than has the distinguished author of "The 
American Commonwealth. In a recently published volume en- 
titled "Hindrances to Good Citizenship," Air. Bryce says : 

The deficient sense of civic duty, though most frequently noted 



SUPPLEMENTARY MATERIAL 241 

in the form of a neglect to vote, is really more general and serious 
in the neglect to think. Were it possible to have statistics to show 
what percentage of those who vote reflect upon the vote they have 
to give, there would in no country be found a larger percentage. 
Yet what is the worth of a vote except as the expression of a 
considered opinion? The citizen owes it to the community to inform 
himself about the questions submitted to his decision, and to weigh 
the arguments on each side; or, if the issue be rather one of per- 
sons than of policies, to learn all he can regarding the merits of the 
candidates offered to his choice. But intelligence and independence 
of thought have not grown in proportion to the diffusion of knowl- 
edge. The number of persons who both read and vote, in England 
and in France, is twenty times as great as it was seventy years 
ago. The percentage of those who reflect before they vote has not 
kept pace either with popular education or with the extension of 
the suffrage. The persons who constitute that percentage are, and 
for the reasons already given must for some time continue to be, 
only a fraction — in some countries only a small fraction — of the 
voting populations. 

The reason why the average voter" so often neglects his duty 
to think and vote is stated by Air. Bryce as follows : 

A duty shared with many others seems less of a personal duty. 
If a hundred, a thousand, or ten thousand other citizens are as 
much bound to speak, vote, or act, as each one of us is, the sense 
of obligation becomes to each one of us weak. Still weaker does 
it become when one perceives the neglect of others to do their duty. 
The need for the good citizen's action, no doubt, then becomes all 
the greater. But it is only the best sort of citizen that feels it to 
be greater. The Average Man judges himself by the average stan- 
dard, and does not see why he slwuld take more trouble than his 
neighbors. Thus we arrive at the result summed up in the terrible 
dictum: "What is Everybody's business is Nobody's business." . . . 
The theory of universal suffrage assumes that the American Citizen 
is an active, instructed, intelligent ruler of his country. The facts 
contradict this assumption. 

Dilemma of the Judicial-Recall Advocate: Address Before 

the Missouri State Bar Association, St. Louis, Mo., 

September 23, 1914. 

Rome G. Brown. 

There are, throughout the nation, significant evidences of 
increasing enlightenment upon the question of judicial recall. 
While the average voter has as yet insufficient appreciation of 
its baneful character, nevertheless there is a perceptible change 
in sentiment showing itself among the people of the different 
States. Former leading advocates of the judicial recall are 
saying less about it. Some of them are now saying nothing 
about it. Many have retreated to a position less repugnant to 
the constitutional government. For instance, there had been 
most persistent advocacy of the judicial recall in Ohio. The 
president of the recent Ohio constitutional convention and many 



242 SUPPLEMENTARY MATERIAL 

influential members of that convention, who are not learned in 
the law, were, and still are, advocates of the recall of judges 
and of judicial decisions. Yet that constitutional convention 
refused to refer to the electors of Ohio the proposition of judi- 
cial recall. Instead that convention proposed a State constitu- 
tional amendment, which was adopted by the people, providing 
that no act of the legislature, duly approved by the executive and 
not vetoed by the people through the use of the referendum, 
shall be declared unconstitutional by the State supreme court 
unless six of the seven judges concur. So in the constitutional 
amendment proposed for adoption at the general election this 
fall in Minnesota, increasing the number of supreme court 
judges from five to seven, it is required that a concurrence of 
five out of seven judges shall be necessary in order for that 
court to declare a statute unconstitutional. Colorado participates 
in the same plan. This has become known as the "Ohio plan." 

In Colorado, however, a further amendment forbids the 
judges of certain courts from declaring a statute or ordinance 
unconstitutional on the ground that it contravenes the Federal 
Constitution. The jurisdiction and function of a State court, 
so far as observing the requirements of the Federal Constitution 
is concerned, are, however, fixed by that instrument, which makes 
it the sworn duty of every judge. Federal or State, to observe 
the provisions of that fundamental law as the supreme law of 
the land. This duty and function have been established, as an 
essential principle of our form of government, to include the 
power and obHgation of every court, and of every judge of 
every court, to declare unconstitutional and unenforceable any 
statute, and any provision of any statute, which is repugnant to 
the prohibitions and limitations expressed in the Federal Con- 
stitution. Such duty and function, therefore, would seem to be 
not subject to abolishment or diminution by any legislative 
enactment or constitutional provision of a State. Accordingly, 
the Colorado extension of the Ohio plan is itself manifestly 
repugnant to the Federal Constitution, and, therefore, invalid. 
Depriving a mere .majority of a state supreme court of the 
power to declare a statute invalid and unenforceable is less 
objectionable. Substitutes, such as the Ohio plan, for the dras- 
tic and subversive judicial recall measures have the merit that 
they are, at least, less repugnant to our system of government. 



suppleme:ntary material 243 

Indeed, as through the initiative and referendum the powers 
of State legislation become more and more under the direct 
arbitrar}^ action of the electorate, it is necessary, for the proper 
protection of personal liberty and property rights, that the safe- 
guards of the Federal Constitution should, more than ever, come 
within the direct jurisdiction of the Federal Supreme Court. 
Under the present Federal judiciary act that Federal jurisdic- 
tion, as applied to the review of judgments of State courts upon 
the constitutionality of State statutes, is limited to a review of 
the judgments of State courts wherein statutes are held valid. 
The American bar has long advocated the extension of that 
Federal jurisdiction also to decisions of State courts wherein a 
State statute is held invalid upon Federal grounds ; but it seems 
difficult, and perhaps impossible, to get such extension through 
the Federal Congress. At the present time a majority of a 
State supreme court may generally declare a State statute 
invalid. The more difficult it is made for a State supreme court 
to invalidate a State statute, the more is the opportunity 
increased to have the constitutionality of a State statute adjudi- 
cated by the Federal Supreme Court. Where now usually a 
majority of a State supreme court may invalidate a State statute 
upon Federal grounds, the final judgment of the highest court 
of that State as to the constitutionality of such statute must, 
under the Ohio plan, be in favor of its validity unless more 
than a majority of the State court are against it. This would 
increase the number of cases where a writ of error would lie 
to the State court upon an adjudication of a constitutional ques- 
tion, I am not advocating the Ohio plan, but simply suggesting 
that, for existing insufficiencies which are recognized by the bar 
generally, it offers some elements of remedy consistent with our 
form of government. In that respect it differs from the judicial 
recall, which is lacking in remedial character and. is subversive 
of our form of government. 

The Dilemma of the Advocate of Judicial Recall 

An interesting and encouraging phase of the judicial recall 
controversy has merged in the form of a dilemma with which the 
recall advocate is, under present conditions, squarely confronted. 
The widespread opposition arguments to the judicial recall have 
brought a wholesome enlightenment to thinking citizens. Its 



244 SUPPLEMENTARY MATERIAL 

representative advocates have generally been superficial theor- 
ists, to whom an intelligent comprehension of our system of 
government is impossible. Some have been conscientious, but 
sadly lacking in those foundations of knowledge for which a 
proper grasp of the subject is necessary. Some have been reck- 
less agitators, disciples of unrest, who, not from lack of intelli- 
gence, but from lack of proper regard for our free institutions, 
have been willing to exploit themselves as advocates of a 
drastic and suicidal specific for existing evils in the administra- 
tion of government. The demagogue is always with us. Men, 
including some who were once sane leaders of thought and of 
action, have been willing to feed the fires of revolution by cater- 
ing, not to the intelligence, but to the lack of intelligence, of 
those who would pretend to believe that our Government is an 
organized system of oppression. Then there is the socialist 
doctrinaire, whose propaganda of enmity to our Constitution 
and the Government established under it has been spread broad- 
cast through pamphlets, the socialist press, and by the street- 
corner orator. The methods of the advocacy of judicial recall 
by these agitators have been marked by a wholesale denunciation 
of the judiciary and of the judicial function under our system 
of government, the stability of which depends upon the main- 
tenance of the integrity and independence of its judicial depart- 
ments. This propaganda of disruption has also been furthered 
by the professional or chronic muckraker, appearing in the 
form of a contributor to or editor of some magazine of wide 
circulation, or in the form of some political or judicial pervert 
who allows himself to become the instrument of socialist 
teachings. 

It was formerly sufficient that the judicial recall shouter 
should detail both real and imaginary evils in the administration 
of law as the source of all social injustice, and without analysis 
and without disclosure of its real significance, should then urge 
as a panacea the assertion by the citizenship of the nation of the 
right arbitrarily to recall a judge, or of the right at a mass 
meeting of the voters or through a referendum ballot and in 
violence of the judicial function directly and arbitrarily to 
adjudicate the constitutionality of a statute. Voters were thus 
at first misled by the impression that by the removal of limita- 
tions upon the arbitrary power of the electorate we would have 



SUPPLEMENTARY MATERIAL 245 

a government which was nearer to a pure democracy, and that 
in so far as our democracy limited the powers of the people it 
was the means of oppression. Thus through hue -and cry the 
fallacies of the judicial recall gained a strong hold upon the 
minds of the voters in many States. 

But, in the meantime, a campaign of education has been 
continued by the opponents of judicial recall. Through their, 
efforts people are recognizing more and more the fact that 
rules of conduct are necessary in governmental affairs as well 
as rules of conduct in regard to ethical duties between man and 
man ; that for the protection of the individual and of minorities 
against the oppression of the wdiim and caprice of local and 
temporary majorities, it is necessary that the legislative power 
of the majority be limited, and that in no other way can the 
personal liberty and the rights of property and the pursuit of 
happiness be vouchsafed to the citizens of a constitutional 
democracy. The fact is further becoming recognized by the 
citizen voter that rules of conduct in governmental affairs are 
meaningless without some established power of their enforce- 
ment, and that such assurance can only rest in the maintenance 
of an independent judiciary, to whom shall belong the function 
of setting aside any arbitrary legislation of a majority which 
deprives the individual or the minority of the rights which are 
thus safeguarded. The attack upon the established judicial 
function which is made by the judicial recall, has been dis- 
covered to the people as an attack upon their rights and liberties, 
because it is an attack upon the safeguards established for their 
protection. 

To-day the judicial recall advocate has to face the proposi- 
tion, to which he is now forced by the increasing enlightenment 
of his audiences, that he must either recede from his advocacj' 
of judicial recall or must take the position of one who is 
avowedly an opponent of our present form of Government. 
He is, therefore, relegated to the position of the socialist agi- 
tator just as long as he persists in his advocacy of the judicial 
recall. Placed in that dilemma, many of its former advocates 
have shrunk before the alternative thus forced upon them and 
have given up the subversive proposition of the judicial recall 
and have become identified with measures less revolutionary. 
Some have become advocates of the "Ohio plan," requiring more 



•• 



246 SUPPLEMENTARY MATERIAL 

than a majority decision of a court to declare a statute uncon- 
stitutional. 

One of the salutary effects of this agitation has been to 
strengthen the cause for which the American bar has been for 
years working — the cause of remedial reforms in the administra- 
tion of justice. That cause has advanced in the past few years 
with rapid strides, as shown by the adoption of various statutes 
and rules of procedure eliminative of former obstacles to the 
efficient enforcement of the law. Organized efforts for further 
reforms, which promise effective results, are shown by the 
investigations and the reports which are now in progress on the 
part of the National and State bar associations and on the part 
of associations not controlled by lawyers. The National Econ- 
omic League, through its committee of 200 selected from all 
parts of the country and composed of the most distinguished law- 
yers and laymen, has, through its preliminary report just published, 
outlined a systematic movement for thorough reforms corrective 
of present evils and promotive of the best efficiency in the 
administration of justice. 

TJie Judicial Recall not Remedial, but Subversive 
The recall of judges has the effect to subject judges to the 
constant menace of the arbitrary will of the voters of the judi- 
cial district in which they preside. It leaves to a mass meeting 
of voters, controlled by a majority of those who happen to be 
present, the arbitrary power to unseat a judge. The exercise 
of the recall in Oregon has shown that, despite the pretention 
to the allowance of a defense and hearing', the decision of the 
voters is controlled by hue and cry and that the system is merely 
a return to the ostracism of ancient democratic tyrannies. Its 
effect is only to lessen, to the point of destruction, whatever of 
independence is left to the judge by the judicial elective system. 
It invites, even compels, a judge to keep his ear to the ground 
and to anticipate the changing whims of popular passion. He 
is made a servant, not of the law, but a mere spokesman of the 
caprice of majorities. The system, therefore, is one which tends 
to eliminate the protective force of constitutional safeguards. 

The judicial decision recall is more directly subversive of 
our system of government. Its effect is to vest in the makers 
of a statute the power to dictate as to its enforcement, irrespec- 



SUPPLEMENTARY MATERIAL 247 

tive of the question whether or not it deprives any citizen or 
any set of citizens of their Hberty or property without due 
process of law. Indeed, the enforcement of such a statute, 
under the decision recall, is not left to its legislative authors, 
who may be supposed to have given to it some method of 
deliberation ; its enforcement is left to a mass meeting of the 
electors of such legislature. 

American Political Science Review. 8:632-3. November, 1914. 

Recall of Judicial Decisions. 

The first state to adopt the recall of judicial decisions as a 
part of its judicial practice is Colorado. The constitutional 
amendment providing for such recall was adopted at the Novem- 
ber election in 1912, and went into force in January, 1913. The 
provisions first prohibit all courts except the supreme court from 
passing upon the constitutionality of any law or city charter or 
amendment adopted by the people in a city, and then go on to 
say that any decision declaring or adjudicating that any law of 
the State or any city charter or amendment adopted by the people 
in a city is in violation of the constitution, shall be subject to 
approval or disapproval by the people of the State if a state law, 
or by the people of the city if it be a city charter or amendment. 

Decisions on state laws and city charters under the terms of 
the act do not become binding for sixty days after they are filed 
m the office of the clerk of the supreme court, and if five per 
cent of the qualified electors request that such law be submitted 
to the people, the secretary of state must publish the text of 
the law and submit the same to the people at a general election 
if held w'ithin ninety days. The legislature may also provide for 
submitting such laws or charters at a special election. If a 
majority approve the act it becomes binding as a law of the State 
regardless of the decision of the supreme court. 

The same provisions respecting the submission of city charters 
to the people of the city is made. Such petition must be filed 
with the legislative body of the city w'hich must then publish 
the text and submit the act to the people at a special election, 
unless a regular .election is to be held within sixty days. The 
constitution specifically sets forth the method of securing the 
petition by providing that petitions may be circulated in sections 



248 SUPPLE^IENTARY MATERIAL 

and that persons securing signers of any part of the petition shall 
make oath as to its genuineness. Provision is made for protest 
and hearing against the genuineness of signatures or the legality 
of other acts and the sufficiency of the petition. When any peti- 
tion contains a form of submission containing a reasonably fair 
description of the act or charter to be referred, no petition filed 
subsequently thereto shall be permitted to use any form of sub- 
mission that is so similar to the one previously filed as to tend 
to confuse the voter. 

Nation. 97:526. December 4, 1913. 

Recall of the Ives Decision. 

Figures of the vote at the last election in New York State on 
the constitutional amendments have been coming in very slowly, 
but they have no room to doubt that Amendment Number Two 
has been ratified by a heavy majority. This result was a fore- 
gone conclusion. There was virtually no opposition. The amend- 
ment removes all limitations which the New York Constitution 
might otherwise be construed to place upon the power of the Leg- 
islature to enact for the protection of the lives or safety of em- 
ployees or for any desired system of workmen's compensation 
for injuries or death. Yet this highly important amendment was 
not only passed by two successive Legislatures, with very little 
difficulty, but went to the people with the explicit endorsement 
even of newspapers of the most extreme "capitalistic"' type. 

The decision of the Court of Appeals in the Ives case, pro- 
nouncing unconstitutional the workmen's compensation act drawn 
by the Wainwright Commission, was the occasion for this amend- 
ment of the State Constitution. In the opinion of some excellent 
lawyers, that decision was an instance of that extreme interpre- 
tation of Constitutional restraints which for a long time was 
prevalent among our courts, though it is now in a fair way to 
disappear altogether, and is in distinct contrast to the spirit 
shown for some years past by the Supreme Court of the United 
States. That Court has unanimously upheld an employers' lia- 
bility act whose constitutionality had been disputed on essentially 
the same grounds as those asserted in the Ives case ; and in a 
number of decisions concerning the scope of the police power 
it has laid down doctrines based upon liberal interpretation. 



SUPPLEMENTARY MATERIAL 249 

This Ives decision has furnished no end of capital to Mr. 
Roosevelt and his followers. They have pointed to it as showing 
the urgent need of his scheme for the recall, or reversal, of 
judicial decisions by popular vote. Now the object has been 
accomplished, not only with great ease, but with great promptness, 
while leaving the functions of the judiciary unimpaired; yet there 
is no teUing but the Rooseveltians may regard this not as a dis- 
proof, but as a vindication, of their position. "It is true," they 
may say, "that you have found it easy to amend the Constitution, 
while we have been talking as though it were next to impossible ; 
but wouldn't our way have been much better? Why not just 
set aside the objection to the particular law you want, instead of 
going to the length of amending the Constitution itself? If the 
Court was wrong in its interpretation, would it not be best simply 
to reject this in the specific instance, and Ifct the future take care 

of itself?" 

The plea is not without plausibility. But there is a funda- 
mental and fatal objection to it. The process of popular appeal 
upon specific decisions cannot possibly be limited to cases in 
which the Court's interpretation of the Constitution is "wrong." 
It is bound to work out in practice as simply a vote on the dis- 
puted legislative measure; and, however sound and wise may 
have been the decision of the Court as a matter of Constitutional 
interpretation, the people would vote it down if they wished the 
measure enacted. Indeed, the Colonel, in his most recent state- 
ment of the recall-of-decisions project, drops the Constitutional 
element completely, the question to be put to the people being 
simply whether the law in controversy shall stand or not. It is a 
tenable position that we should be better off without any written 
Constitution; it is a tenable position that, even with a written 
Constitution, the judiciary should have no power to declare laws 
unconstitutional. But to have a written Constitution, and to give 
the courts the power to pass upon the validity of a law under it, 
and then to permit Constitution and judicial decision alike to be 
reduced to so much waste paper whenever a popular majority 
desires to have its way in spite of them, is palpable absurdity. 

One feature of our judicial system which is clearly in need of 
alteration is pointed to in the situation arising out of the adoption 
of Amendment Number Two. The United States Constitution 
contains a provision essentially identical with that in the State 



250 SUPPLEMENTARY MATERIAL 

Constitution upon which the Ives decision was based. It is by 
no means inconceivable that if the vaUdity of a compulsory work- 
men's compensation act, passed at Albany this winter, were to be 
challenged as a violation of the Constitution of the United States, 
the Court of Appeals might decide against the law. Probably it 
w^ould not, since the Supreme Court's precedents would then be 
binding; but it is possible that the new law- would involve some 
feature not covered by the precedents. Now, if the Court of Ap- 
peals were to decide against the law as violating the United 
States Constitution, an appeal to the Supreme Court of the 
United States ought to be possible. But it is not. Under the 
Federal statutes, such an appeal does lie from a decision uphold- 
ing the law, but not from a decision invalidating it. This is an 
anomaly, though it is not difficult to see how it may naturally 
have arisen. But all that is required to remove it is the passing 
of an act of Congress. This ought to be done at a very early 
date. It would remove a real grievance. The matter has been 
brought forward from time to time, but has apparently been 
neglected out of sheer inertia. It would be a particularly happy 
stroke for Senator Root to advocate this reform and push it to 
speedy accomplishment. 

Annals of the American Academy. 52: 25-36. March, 1914. 

Constitutional Growth Through Recall of Decisions. 

Donald R. Richberg. 

Seldom has a political theory received so little unprejudiced 
consideration as the "recall of decisions." Bench and bar and the 
lay public have confused the idea with the recall of judges; have 
repeated catch phrases, such as— "the appeal from the umpire to 
the bleachers" ; and largely overlooked the substance of the pro- 
posal — an improved method only, for the exercise of a funda- 
mental power reserved to the people, to make, to amend, and to 
interpret their constitutions. 

The lack of a clear understanding of the proposal, rather than 
any vicious intention to misrepresent, is responsible for many un- 
fair arguments against it. Lawyers, who should be better in- 
formed, repeat the stale misstatements of their professional 
brethren; and laymen, who have acquired a wholesome distrust 



SUPPLEMENTARY MATERIAL 251 

of the advice of the bar, may be thereby unduly prejudiced in 
favor of the proposition. 

It is possible thai a presentation of the idea in words of one 
syllable may serve a double purpose in helping to clarify the real 
issue both for members of the bar and for the interested public. 
In order to simplify the exposition so far as possible, the present 
consideration will deal only with the recall of a limited class of 
"police power" decisions. 

Why and When Necessary 

In a certain class of important cases there ma}' be, under the 
constitution of every state in the Union, a conflict of authority 
between the legislature and the courts. 

Under the constitution the legislature of a state claims the 
power to pass a certain law — a law not prohibited by any definite 
words in the constitution. 

Under the constitution the supreme court of the state claims 
the power to declare that particular law void. 

Who is to decide between these two claims of power? 

The court may decide the case before it, but the court cannot 
decide the conflict in opinion between itself and the legislature. 

Controversy has arisen between two arms of government of 
equal authority. No one can be assured whether the will of the 
people has been thwarted or upheld. A prudent regard for main- 
taining respect for the law and retaining confidence in the insti- 
tutions of government requires a final adjudication of the contro- 
versy, which shall assure the supremacy of the will of the 
majority, as speedily as is consistent with intelHgent consideration. 

Clearly the only power superior to both the courts and the 
legislature lies in the people who made the constitutions which 
give the two conflicting bodies their authority. 

Clearly the people can only exercise their power directly 
through the ballot box. 

The truth of these conclusions is not to be disputed by any 
student of constitutional law or political science. 

Controversy arises only over the question : How shall the 
people exercise their power to determine what the law shall be, 
when their representatives in the legislature and on the bench 
disagree? 



252 SUPPLEMENTARY MATERIAL 

The established method has been by amendment of the con- 
stitution. 

The proposal made by Theodore Roosevelt before the Ohio 
Constitutional Convention was that in a certain limited class of 
cases a better method would be the "recall of decisions." This 
he has more recently described as the "review by the people of 
judge-made laws." 

Neither of these terms, each being a definition of procedure, 
quite describes the purpose of the popular vote, which is — the de- 
cision by the people of a controversy between their courts and 
their legislature. 

The courts are the guardians of the people's fundamental law 
— the constitutions. The legislatures are the makers of the peo- 
ple's ever-changing law — the statutes. Both the preservation of 
the principles of the fundamental law and the right to develop 
those principles in the changing statutes are essential to our form 
of government. In harmony they express the will of democracy. 
In conflict the law of the land becomes confused and uncertain. 

In order to measure fairly the value of the new method for 
popular decision of such conflicts, one must have in mind the 
merits and demerits of the old method which it is sought to 
improve. 

Why Constitutional Amenduient Is Inadequate 

In the first place the point of the proposal can be kept most 
clearly in mind by considering only the application of the "recall 
of decisions" to cases where the extent of the police power is the 
decisive issue. 

The Progressive national platform has limited this doctrine 
and expressed the party position in the following language : 

That when an act, passed under the police power of the state, 
is held unconstitutional under the state constitution, by the courts, 
the people, after an ample interval for deliberation, shall have an 
opportunity to vote on the question whether they desire the act to 
become a law, notwithstanding- such decision. 

To understand the reason for this limitation one must know 

what the "police power" is — a subject quite vague in the minds of 

laymen and none too clearly understood by many lawyers. 

What the Police Power Is 
When a people write a constitution they create the machinery 
of government. They establish a legislature to make new laws 



SUPPLEMENTARY MATERIAL 253 

and to change old laws, in order to express the developing ideals 
of business and social morality. They designate and provide for 
the election of executives to administer these laws. Lastly they 
establish courts to decide controversies over private rights and 
over the powers and duties of public officers. A constitution gives 
certain powers to public servants and prohibits certain other pow- 
ers and therefore contains both grants of authority and limitation 

of authority. 

When the supreme court of a state upholds or denies the 
power of the legislature under the state constitution to pass a law, 
the decision will fall into one of two classes. It will be based 
on either : 

(1) Definite power granted or denied ~| 

J^ specific words I ^^^^ ^^^^^ constitution. 

(2) Broad power granted or denied 

in general terms J 

The Present Consideration of the Recall of Decisions Deals Only 
with the Second Class of Cases 

A few examples of the type of constitutional provisions in- 
volved in the first class may be taken from the Constitution of 
the United States : 

l^The Congress shall have power 
Power definitely J To lay and collect taxes, 

e-ranted I To coin money. -, -o *. t? ^/lo 

grantea. |^ ^^ establish Post Offices and Post Roads. 

f No bill of attainder or ex post facto law 

-, ^ .. 1 1 shall be passed. 

Power definitely J Congress shall make no law respecting an 

prohibited. | establishment of religion or prohibitmg 

1^ the free exercise thereof. 

When a legislature exercises such a power definitely granted 
or prohibited and the supreme court interprets such definite lan- 
guage there is no conflict of authority. If there is difference of 
opinion, even the legislators themselves will yield to the greater 
wisdom of the court in interpreting constitutional or statutory 
language. Nor would the average citizen care to act as a court 

of appeal. , 

In such a case the supreme court explains and enforces the 
constitution. If the language of the constitution no longer repre- 
sents the will of the people the appropriate action to be taken 
by the people is to amend the constitution by altering its language. 



254 SUPPLEMENIARY MATERIAL 

But an entirely different situation is presented when constitu- 
tional questions arise in that twilight zone between broad powers 
granted and broad powers denied, in general language. 

The most shadowy realm of all is between two provisions here 
quoted from the national Constitution but found in substance in 
practically all state constitutions : 

^The Congress shall have power 

To provide for the common defense and 
Power broadlj'^ J general welfare. 

granted. ] To make all laws which shall be necessary 

and proper for carrying into execution the 
^ foregoing powers. 

Power broadly f No person shall be deprived of life, liberty 
prohibited. ( or property, without due process of law. 

Between the above quoted granted power and prohibited power 
lies the great twilight zone of the "police power" — the power of 
the state to pass and enforce laws which are neither specifically 
authorized nor prohibited in the state constitution, but which are 
in aid of the general welfare. 

If, for example, the state supreme court believes that a ten- 
hour law^ for women is necessary for the general welfare that 
law will be upheld as a proper exercise of the "police power." 

If, however the state supreme court does not believe that such 

a law is necessary for the general welfare, the law will be held 

unconstitutional — as depriving women of "liberty" (the right to 

sell their labor for more than ten hours) without "due process of 

aw. 

The difference therefore between laws which are constitutional 
and unconstitutional, between what is "due process of law" and 
what is not, in such cases involving the "police power" does not 
depend upon any language in the constitution. These cases are 
decided solely upon the opinion of the court as to whether the 
law is necessary for the general welfare and hence authorized 
by the "police power." 

As Mr. Justice Holmes of the United States supreme court 
has written, the extent of the "police power" depends upon "the 
prevailing morality or strong and preponderant opinion" of the 
time.^ Therefore a conscientious court will endeavor to express 
the will of the majority in its opinion. An obstinate, narrow- 
minded court will deceive itself as to what the "prevailing mor- 

1 Noble State Bank vs. Haskell, 219 U. S. 104, 111. 



SUPPLEMENTARY MATERIAL 255 

ality" demands. But in either case the decision will be based 
upon the opinion of the court concerning what laws are required 
in aid of the general welfare. If the court holds the law "un- 
constitutional," there are two conflicting authorities— the legis- 
lature and the court— one holding the law necessary to the general 
welfare, and the other holding the law not necessary to the 
general welfare. And there will be not one word in the consti- 
tution requiring either body to make or to annul the law. 

Under those conditions it is simply pettifogging to say that 
"the judges are forced to their decision by their oaths to support 
the constitution." The legislators who passed the law took the 
same oath. Neither the legislators nor the judges would violate 
their oaths by reversing their action. 

When, however, the "conscientious opinion" of a court voices 
the individual conscience of the judge in opposition to the ex- 
pressed conscience of the people the fulfillment of the oath to 
preserve the constitution may be seriously questioned. 

As stated in the beginning, there is in these "police power" 
cases a conflict between two arms of government and only the 
people who made both can decide which is right. Furthermore— 
since the whole question at issue is: What is demanded by the 
prevailing morality?— how could the correct answer be more 
surely ascertained than by taking a well-considered vote on the 
question? 

The established method since this republic was formed for 
obtaining this vote has been to submit an amendment to the con- 
stitution covering the question at issue. There are two strong 
reasons why this method is inadequate and unsatisfactory in deal- 
ing with "police power" cases. 

1. Amendment of the constitution is a slow, cumbersome 
process; not adapted to the need for settlement of a conflict be- 
tween authorities over what is "constitutional." 

2. There is nothing in the constitution to be amended. 
Taking these points up in order: 

/. Amendment is a Cumbersome Process 

Careful deliberation in amending the grant of a power or the 
prohibition of a power is the part of wisdom. The fundamental 
law should be as solid as the foundations of a building— only to 
be rebuilt with great labor and caution. But in disputes between 



256 SUPPLEMENTARY MATERIAL 

the courts and the legislature over the police power there is no 
fundamental question involved. The "police power" builds in the 
superstructure of government. The foundations remain un- 
changed, regardless of whether the court permits the legislative 
masons to put on another story or to remodel the interior. 

Excessive deliberation is exasperating to a people determined 
to right industrial and social v/rongs. If the court's opinion of 
the prevailing morality is correct, the sooner it is sustained the 
better. If the court's opinion is incorrect, the sooner it is re- 
versed, the sooner will popular antagonism to the court subside — • 
and respect for the law be restored. Of course a reasonable 
period of consideration is necessary in order that the popular ver- 
dict may express a conviction and not a transient emotion. 

2. Amendment Is an Inappropriate Process 

The strongest reason for a popular referendum on a "police 
power" decision is that there is nothing in the constitution to 
amend. There is no language to be altered, no new principle to 
be established. The legislature has the right to enact laws to 
promote the general welfare. The legislature has no right to take 
life, liberty or property without "due process of law." So it is 
and so it shall be. There is nothing for the people to amend in 
either the grant or the prohibition of power. It is also highly 
desirable that these two broad principles should not be qualified 
by a mass of formal exceptions. 

The legislature and the courts have disagreed as to whether 
one particular law is necessary for the general welfare — is de- 
manded by the "prevailing morality." 

The people do not wish to change their constitution if they 
disagree with the supreme court. They simply wish to furnish 
conclusive evidence to the court of what the constitution as it is 
written authorizes, when interpreted in the light of the "strong 
and preponderant opinion" of the present generation. 

Chief Justice Winslow of the supreme court of Wisconsin 
has written well and forcibly : ^ 

When an eighteenth century constitution forms the charter of 
libertj' of a twentieth century government must its general provi- 
sions be construed and interpreted by an eighteenth century mind 
surrounded by eighteenth century conditions and ideals? Clearly 
not. This were to command the race to halt in its progress, to 
stretch the state upon a veritable bed of Procrustes. 

2 Borgnis vs. Falk Company, 147 Wis. 327. 1911 



SUPPLEMENTARY MATERIAL 257 

Where there is no express command or prohibition, but genei-al 
language and policv to be considered, the conditions prevailing at 
the time of its adoption must liave their due weight, but the 
clianged social, economic and governmental conditions and ideals 
of the time, as well as the problems which the changes have pro- 
duced, must also logically enter into the consideration, and become 
influential factors in the settlement of problems of construction and 
interpretation. 

A long list of decisions of state courts may be cited holding 
certain laws (largely "social and industrial justice" laws) uncon- 
stitutional as not "due process of law'' and decisions by the 
United States supreme court holding similar laws constitutional 
as being "due process of law."" 

Let us assume that the people would agree wath the United 
States supreme court. Is it not a cumbersome, inept method for 
executing the popular will to require that in each of these cases 
an amendment to the constitution must be submitted to the people 
of the state and approved by popular vote and then that the 
legislature must reenact the same law previously passed? What 
is the logic of this long and laborious process? Why should a 
new clause be added to the constitution when no change in its 
language is necessary? Why should the complicated and expen- 
sive legislative machinery be again called upon to remake a law 
when the very vote of the people proves that the law was con- 
stitutionally enacted the first time? 

The crux of the whole question is obtaining an expression, by 
popular vote, of "the prevailing morality or strong and pre- 
ponderant opinion." 

Why then submit the question as: "Shall the constitution be 
amended so as to empower the legislature to pass this law?" 

The legislature has passed the law. 

The supreme court has rendered an opinion that the law is 
not supported by the strong and preponderant opinion of the 
people. 

The logical question to submit is : 

Did the legislature in passing this law represent the "prevail- 
ing morality or strong and preponderant opinion of the people?" 

If the people answer "No," the opinion of the supreme court 
on this very question is sustained— because the court was right. 

If the people answer "Yes," the opinion of the supreme court 
on this very question is overruled— because the court was wrong. 

3 Address on the "Recall of Decisions" by Albert M. Kales, before 
the Illinois Barr Association, April, 1912. 



258 



SUPPLEMENTARY MATERIAL 



In cases involving the "police power" of a state the review 
by the people of a decision would be logical procedure to attain 
a logical result. Amendment of the state constitution in such 
cases is an illogical means to an illogical end. 

Compare the two in parallel columns : 

In cases where a state supreme court is of opinion that the 
"police power" of the state does not authorize the legislature to 
pass a certain law. Assume that the "strong and preponderant" 
opinion of the people favors the law. 



Pkesent Method by Amendment 
OF Constitution 



Probable 
Time 



1 year <^ 



2-5 years< 



3-7 yearsJ 



4-9 years< 



5-10 years 



AN ACT 

(1) Passed bj^ legis- 

lature. 

(2) Appi*oved by 

grovernor. 

(3) Held "unconsti- 

tutional" b3'^ 
state supreme 
court. 

(4) Constitutional 
amendment 
passed by leg- 
islature (once 
or twice) or 
initiated by 
the people. 

(5) Constitutional 
amendment 
adopted by 
popular vote. 

(6) The same act 

again passed 
by legislature. 

(7) The same act 

again approved 
by governor. 

(8) The same act 

held "constitu- 
tional" by 
state supreme 
court 

Finally hecomcs 
a laio. 



Proposed Method by Recall of 
OF Decisions 

Probable 
AN ACT Time 

(1) Passed by legisla-' 

ture. 

(2) Approved by gov- 

ernor. 

(3) Held "unconstitu- 

tional" by state 
supreme court. 



> 1 year 



(4) Petition for review' 

of decision. Same 
purpose as consti- 
tutional amend- 
ment but more 
accurately ex- 
pressed and more 
expeditious. 

(5) Act approved and 

decision reversed 
by popular vote. 
Becomes a law. 

(6) Unnecessary dupli- 

tion. 

(7) Unnecessary dupli- 

tion. 

(8) Only needed to 

correct errors in 
6 and 7 which 
are omitted — 
hence useless. 



> 2 years 



Comments on diagram. Step 4. Under present method this pro- 
cedure may take one year on direct initiation or immediate legis- 
lative action or possibly four years where the constitution requires 
that an amendment be passed by two sessions of the legislature 
or even ten j^ears or more where a constitutional convention alone 
can amend. The sole purpose of the action is to submit the 
question to a popular vote. If the people are going to approve, 
why delay them? If they are going to disapprove, why delay 
them? Only those interested in sustaining minority government 
can find any virtue in preventing expressions of majority opinion. 
Furthermore there is something peculiarly inappropriate in the 
form of amending the constitution to change something which is 
not written in the constitution at all, but which appears in an 
opinion of the supreme court. 



SUPPLEMENTARY MATERIAL 259 

Steps 6 and 7 are simply waste effort. The legislature and the 
governor have gone through the travail of creating a law — only to 
see it smothered by the court. Why create a similar law if the 
old one can be revived? 

Step 8 gives the supreme court the ungracious task of reversing 
itself, with all the incentive naturally incident to that painful 
process to find technical flaws in the manner in which its opinion 
has been set aside. 

When one contemplates the possible delay of ten years in cor- 
recting the mistake of the supreme court in interpreting the 
prevailing convictions of the time — one understands the reason 
for a deep resentment in the community against "judge-made 
law." A partly corrupt legislature is lashed by public opinion into 
passing a "general welfare" law over the protests of special inter- 
ests. Then the stipreme court, deaf to the prevalent voices of 
social reform, annuls the law. The whole bitter struggle must 
be fought over again : a constitutional amendment passed once 
or twice (many states require the passage twice), the law passed 
again, perhaps loaded with new "jokers" so that the court will 
again declare it void. 

The struggle for social justice under such conditions is a dis- 
heartening battle against overwhelming odds. 

To w^ait ten years for a law to fit the new needs of a rapidly 
changing civilization is often to make a farce of government. In 
ten years the automobile, once a rarity in the streets, dominates 
the traffic, wireless telegraphy remakes conditions of sea travel, 
the phonograph, the trolley car, the aeroplane, moving pictures, a 
score of new^ and important factors affect the daily life of the 
people. All industr\- undergoes like changes. New problems, 
responsibilities and community interests come upon us and must 
be reckoned with and the lavv^ must change to meet them. 

The statement has been made that more fundamental changes 
in the industrial and social order occurred between A. D. 1800 
and A. D. 1900 than in the thousand or even two thousand years 
preceding A. D. 1800. Have the constitutions changed to meet the 
new needs? 

In "The American Commonwealth," Mr. Bryce, commenting 
on the difficulty of amending the Constitution of the United States 
points out (p. 372,) the results of a too rigid fimdamental law in 
language which might well be applied to state constitutions which 
although more readily amended also require more frequent 
revision. 

Since modification or developments are often needed and since 



26o SUPPLEMENTARY MATERIAL 

they can rarely be made by amendment, some other way of making 
them inust be found. The ingenuity of lawyers has discovered one 
method in interpretation, while the dexterity of politicians has 
invented a variety of devices whereby legislation may extend or 
usage may modify the express provisions of the apparently 
immovable and inflexible instrument. 

Amendment by construction, like executive non-enforcement 
of unpopular laws and indirect taxes, is a method of self-delusion 
v^hich belongs to a passing school of politics. Fooling oneself is 
a rather stupid game and the Am.erican people show many signs 
of a present-day willingness to look facts in the face, to discuss 
the disagreeable truths of poverty and inefficiency as well as to 
orate about "prosperity" and the "land of the free and the home 
of the brave." 

Our constitutions are human products Avith human imperfec- 
tions and need constant improvement. Our judicial decisions, be 
they ever so honestly made, are the products of the education and 
environment of ordinary human beings — called judges. The er- 
mine may require respect for the office but it does not guarantee 
the wasdom or social conscience of the wearer. 

In the end faith in democracy requires a trust in the su- 
periority of the ultimate judgment of the whole people over the 
immediate judgment of a few of the people. There is no reply 
to Lincoln's assertion that the people are the rightful masters of 
both their constitutions and their courts, except the denial of the 
capacity for self-government, which in itself is a repudiation of 
the constitutions and the courts of democracy. 

Those who would enshrine the judiciary as "sacred" from the 
control of the people are not believers in democracy. And frank 
reactionaries freely state their conviction that the people m.ust be 
"saved from- themselves." By whom? Plainh', not by them- 
selves. 

There is in the end but one honest choice : either government 
is to be of the people, by the people and for the people, or of a 
few, by a few, and for a few. History records no instance of 
permanent government of the few for the many. The benevolent 
rulers of one generation beget the hated tyrants of the next epoch. 
The "free and independent judiciary" enthroned above the will 
of "transient majorities" may all too easily become the reaction- 
ary, oppressive oligarchy that sets aside the legislative enactments 
of sovereign states, that coerces executives to refuse obedience to 
the expressed will of the people. 



SUPPLEMENTARY MATERIAL 261 

Siniunary 

Where the legislature and the courts disagree as to what the 
"prevaihng morality" demands, the people alone can decide the 
controversy. In this \vay alone justice can be secured. 

Amendment of constitutions is a cumbersome, inappropriate 
means for deciding conflicts between the legislature and the courts 
over the extent of the "police power." 

The "recall of decisions" is a logical means since there is 
nothing in the constitution to am.end, and the only question in- 
volved is : Did the court or the legislature correctly represent the 
"prevailing morality or strong and preponderant opinion" of the 
people? 

The final issue between those intelligently favoring and oppos- 
ing the "recall of decisions" is the world-old issue between de- 
mocracy and oligarchy. Some believe in a divine favoritism in 
capacity for government. Others put their faith in the self-gov- 
erning instinct of all mankind. To accept the sanctity of a ju- 
dicial decision requires belief in the superhuman quality of the 
judge or in the inspired quality of his opinion. To accept the 
superiority of the cr^'stalhzed opinion of all the people over the 
judgment of a few of the people requires faith in humanity itself. 

There is the issue. The battle lines are drawn for the future, 
as in the past, between the conservative, fighting to retain the 
things that are, trusting to the wisdom of old counselors; and the 
progressive, pressing forward to what may be, wdth confidence 
in the greater wisdom of coming generations. 

Election of Judicial Judgments; Address Before the Denver, 
Colorado, Bar Association, February 21, 1914. 

Rome G. Brown. 

The Recall in Colorado 

And yet, you have here today in Colorado that same system 
of decision and of the review of decisions, the very contempla- 
tion of which brings only a shock, a shudder of abhorence to 
any person who can and will appreciate its real significance. 
And let me say that the courts of this state deserve to be sub- 
jected to this humiliation— to which they even more than the 
general citizenship is subjected by these subversive innovations, 



262 SUPPLEMENTARY MATERIAL 

— if they refuse or even hesitate to assert, at every opportunity, 
their conscientious convictions with regard to the repugnancy of 
your judicial recall constitutional amendments, and of any leg- 
islation under them, to the express prohibition of the federal 
constitution and to the fundamental principles of our system of 
constitutional government. 

Your state has set the goal, not in the march of progress but 
in the retreat of retrogression, far back of the point set by any 
other state. Some other states have also made retreats to some 
extent from the general onward movement of the nation's pro- 
gress, by establishing the recall of judges. Other states may 
yet fall back. But the general advancement which has been 
marked by the steady progress of our nation in science, in indus- 
try, in prosperity, in the incentive to the development of com- 
munities and of individuals afforded by the feeling of security 
of freedom from oppression and of the stability of our institu- 
tions, — this general advancement will persist. It may be 
handicapped for a time by the retrogressive policies or lack of 
policies of particular communities, but ultimately the fact will 
be everywhere recognized that change does not necessarily mean 
progress ; and that rules of conduct, which cannot be arbitrarily 
set aside to suit the individual or majority passion or caprice, 
are as essential to the administration of popular government as 
they are to guide and preserve the morality of the individual in 
his social relations. 

Under the recent Colorado amendment a supreme court 
decision declaring unconstitutional any state statute may be made 
ineffective by a majority of the votes cast by state electors at 
a referendum election held to pass upon the decision complained 
of. If the decision applies to certain city, or city and county, 
charter provision, the decision may be recalled by a majority 
of the votes cast by electors of the municipality in question at 
a referendum election held to pass upon- such decision. Thus, 
under the Judicial Decision Recall in Colorado, if a city char- 
ter provision is found to have the effect to take private prop- 
erty without compensation, or to impair the obligation of con- 
tracts, even in a case in which the city itself is party, and the 
court for that reason declares the charter provision unenforce- 
able, nevertheless, a majority of those voting at a city election 
called to pass upon such decision may, arbitrarily, decide the 



SUPPLEMENTARY MATERIAL 263 

question as to whether the decision shall be enforced or not 
This means that those citizens who attend such referendum elec- 
tion may, by a majority vote of those present, decide whether 
in the particular case in question the constitutional safeguards 
protecting rights of property or of contract shall or shall not 
be enforced ; and this, too, either in favor of or against the city 
itself. A city might decide one way one day, and another way 
another ^day, with reference to the same provision. One city 
might decide one way and at the same time another city another 
way, with reference to the same provision. 

Now, what do you think of the wisdom or sanity of those 
pseudo-reformers who pretend to view such processes of jug- 
gling with constitutional safeguards as merely "progressive" 
methods, as merely "a new method of constitutional amendment 
by popular vote" ? 

It is obvious that in Colorado there is established a local 
option with reference to the suspension or application of consti- 
tutional safeguards. The actual result there is a reductio ad 
absurdum of the decision recall argument. 

The Colorado Decision Recall Amendment Is Void 

It is not for me to discuss the workings of the conscience of 
any person, whether he be judge or lawyer. I can, however, 
speak for myself. My deliberate, conscientious conviction, as 
a lawyer, is that the Colorado Decision Recall amendment is 
void, as being repugnant to the Federal constitution. This con- 
viction is based upon the following self-evident propositions: 

I. The prohibitions of the Federal constitution, that no 
state shall pass or enforce any law impairing the obligation of 
contracts or contrary to the Fourteenth Amendment, depriving 
any person of his life, liberty or property without due process 
of law, or denying to him the equal protection of the laws, are 
the supreme law of the land; and, as such, are expressly made 
binding upon the conscience and judgment of every court and 
of every judge of every court, federal and state. Moreover, 
every executive officer and judge, federal and state, as \yell as 
every citizen, is bound by express oath, required by the Federal 
constitution, to observe and obey at all time those prohibitions, 
not only in their private but also in their official actions.^ 

^ Article VI. Federal Constitution. 



264 SUPPLEMENTARY MATERIAL 

2. The "law of the State which is thereby prohibited includes 
not only legislative enactments, but also State constitutional 
provisions; and in case of such contravention, a State constitu- 
tional provisions, as well as a State statute, must be held void." 

A.S stated by the United State Supreme Court:" 

Upon the adoption of the Fourteenth Amendment, whatever their 
own constitutions may have teen, or have subsequently declared, the 
states became bound, as was the United States by the Fifth 
Amendment, not to deprive any persons of property witRout due 
process of law. 

3. Now, at present in Colorado, if a State statute or a certain 
city charter provision, when applied to a particular case, is 
found to contravene the Federal constitution and is for that 
reason in that case declared by your highest court to be uncon- 
stitutional, the Federal constitution leaves open at the present 
time no alternative, except the enforcement of that decision as 
so rendered. No other alternative is open, except in contraven- 
tion of the Federal constitution, either to the executive depart- 
ment of the State, to the legislative department, or to the judi-- 
cial deparment. Neither is any other alternative left open to 
the voters of the State, much less to the voters of any municipal 
division of the State. The final arbiter, under the Federal con- 
stitution, so far as the State is concerned, is the highest court of 
that State. Such decision cannot now be reviewed even by the 
Federal Supreme Court, although it is within the power of 
Congress to exercise its constitutional authority to make such 
decision the subject of Federal review, just as now it would have 
been reviewable if it had declared the statute or ordinance in 
question constitutional. 

4. Except in repugnance to the Federal constitution, the 
State cannot give to the governor or other executive officer the 
arbitrary power of veto upon such decision. Likewise, it can- 
not give such arbitrary power of veto to the legislature, nor 
to any body of citizens, nor to the citizens as a whole, either of 
the State or of any municipality. 

5. The decision recall, as contemplated in this State, is not 
a judicial review. It has neither the form nor substance, to 
any degree, of an adjudication of the constitutional question 
involved in the decision to which it is applied. It is neither in 

^Big-elow v. Draper, 6 N. D., 152. 

3S. W. Oil Co. v. Texas, 217 U. S., 114, 119. 



• SUPPLE^IENTARY MATERIAL 265 

form or substance an amendment, even of the State constitu- 
tion. It cannot affect, in any degree, the force of the Federal 
prohibitions, nor of their necessary appHcation to the particular 
case in which the decision in question is rendered. 

6. The annullment of such decision, or the prevention of 
enforcement of such decision, by the ballot at a referendum 
ejection is not a judicial review nor an adjudication. It is 
nothing more than a mere arbitrary veto by the ballot. It applies 
only to a particular decision in a particular case. Therefore, it 
is an arbitrary suspension, as to that decision and case, of the 
provision of the Federal constitution which the decision has 
declared to be infringed in that case by the statute or ordinance 
in question. 

7. It is not within the power of the State, under the Federal 
constitution, to pass and enforce any law, constitutional or legis- 
lative, which thus gives to the voters of the State, much less 
when it gives to the voters of a municipality of that State, either 
the arbitrary veto of a final decision of the highest court of the 
State, or the power of arbitrary suspension, within the locality 
affected, of the Federal supreme law, as to the particular case 
in question. 

8. Therefore, in any case of its attempted application, the 
Colorado constitutional amendment cannot, by an arbitrary bal- 
lot veto, prevent the enforcement of the decision. Moreover, 
the amendment which pretends to delegate such power to the 
ballot is in itself void. 

9. Therefore, also, it is the duty of any executive officer and 
of any court to enforce the decision as rendered by the highest 
court of the State, regardless of any attempted exercise of the 
arbitrary veto by the ballet at any referendum election, and, as 
a ground for such enforcement, to hold and declare the provi- 
sion for such veto— that is, the state constitution decision recall 
amendment — absolutely void. 

The same reasoning applies to that pecular constitutional 
provision of this State forbidding certain courts from declaring 
in any case that a statute or ordinance is unconstitutional, 
when such statute or ordinance contravenes the Federal con- 
stitution. The function and duty of every State judge, whether 
of an appellate or a nisi prius court, is fixed by the terms of the 
Federal constitution, and by his oath under that constitution. 



266 SUPPLEMENTARY MATERIAL 

It compels him in every instance when he deems a law, as 
applied to the case before him, to contravene the supreme 
Federal law, so to declare, and in accordance with such holding 
to render his judgment or decree. That duty, imposed by the 
Federal supreme law, cannot be abrogated or diminished by 
State enactment, whether by constitutional amendment or by 
legislative statute. 



Vote "No (X)"; Prize Argiimient Against Recall of Judges. 

Arthur O. Lee. 
Recall no Remedy 

As to delayed justice, long litigations and technical imper- 
fections in our judicial system, no one can consistently claim 
that the exercise of the recall would tend to ameliorate these 
conditions. In fact, it was not originally proposed in order 
to meet these difficulties. However, it is claimed that we need 
to exercise a check upon judges who frequently usurp powers, 
not properly theirs, to declare laws unconstitutional. This, with 
the argument for a direct democracy, is advanced as a principal 
reason why the state of Minnesota should incorporate into its 
constitution the provision- for the recall of public officials, 
including judges. 

It is claimed that the courts have overstepped their authority 
by assuming to declare laws unconstitutional. But what is 
the limit of the authority of a court in a case where a law is 
seen in fact to be void and unconstitutional? American courts, 
since the beginning, have claimed this duty as a proper function 
under our constitutional system. Professor Thayer of Harvard, 
in his constitutional discussions, proves that when the judiciary 
declares an act repugnant to the organic law it is acting in its 
proper sphere. In fact this function of the judiciary has become 
an essential feature of our governmental system. This, then, is 
not usurpation, much less does it constitute a ground for adopt- 
ing the recall. 

When the exponents of the recall, in trying to justify their 
proposal, attempt to show that the judges in the good state of 
Minnesota are corrupt and inefficient, they miserably fail to 



SUPPLEMENTARY MATERIAL 267 

present an argument. The judiciary of Minnesota has always 
presented and gives assurance of presenting to its citizens a 
class of the most honorable and patriotic-spirited men in the 
profession. Our courts thus far have been above reproach and 
the criticism directed against their honesty and integrity stands 
unsubstantiated. 

"A Retrogressive Step '' 

There is not one consistent reason why Minnesota should 
make the recall a part of the organic law of the state. It is 
not a constructive step. It is reactionary and retrogressive, a 
step back to the dark ages of government. 

Analyzed to its logical conclusion the adoption of the recall 
means that our representative form of government is to be 
substituted by a direct or an unlimited democracy. No propo- 
sition could strike more directly at the heart of representative 
government. We are told that representative government, 
which is the one great political bequest from the growing devel- 
opment of the progressive nations of the world, has failed. 
We are urged in the name of "progress" to adopt the instruments 
of socialism, including the recall, in order that our government 
shall become more direct and responsive. But direct democracy 
is nothing new. It existed in cultured Athens and in civilized 
Rome. It prevailed in bloody France. The history of these 
nations is an instructive memory. In them direct government 
by the numerical majority failed. In them the ideal theory was 
shattered. And they had tiic initiative, the referendum and the 
recall democracy. 

Ostracism in Athens operated on the same principle as does 
the recall. There is no essential difference between the form 
of those old time governments that have failed and the form 
now proposed. Those who uphold the recall argue that times 
have changed, that conditions are different and that what applied 
to those past nations could present no lesson to us. But, while 
we admit that great changes have crept over our civilization, we 
emphatically deny that fundamental principles and governmental 
axioms have materially changed. Human nature is the same 
to-day as it was in Greece and France. Conditions change, 
ingrained principles and human nature endure. 



268 SUPPLEMENTARY- MATERIAL 

Destroys Our Form of Government 

Do men realize that by instituting a direct vote on the politi- 
cal and economic questions confronting the judiciary in our 
complex American life they are casting the established idea 
of representative government on the rubbish heap and taking 
from the same rubbish heap the discarded and cast-off prin- 
ciple of direct and unlimited democracy? Why should we 
disregard historical illustration when the political history of 
the world shows that where pure democracy has failed repre- 
sentative government has succeeded on its ruins? The men 
who framed our splendid constitution considered the dififerent 
forms of government, including direct democracy, and decided 
in favor of representative government, which, under our con- 
stitutional system, has become the model of the world. 

Then why should we change our form of government? Are 
we justified in bequeathing to posterity a system of government 
inferior to that which we have inherited and hold in sacred 
trust? When conditions do not and cannot warrant a radical 
change, have we the moral right to undo in a single stroke the 
finished product of 500 years of Anglo-Saxon development of 
the idea of representative government? 

Now, let us test the proposition of popular recall in the light 
of a few fundamental principles. There are certain inalienable 
rights which inhere in free government and which are recog- 
nized in all constitutions. Among these rights there is none 
more important than this — that no citizen shall be deprived of 
his liberty or property except by the judgment of the law and 
after a trial before an independent and impartial tribunal. This 
is the keystone of the arch. The majority of the legal voters 
cannot constitute itself such tribunal. If it does, there is no 
sure or stable protection for the rights of any individual or of 
any minority. 

Establishes a Tyranny of Majorities 

Most common among the class of cases that come up before 
the law are those in which one of the parties is in fact, if not in 
name, the people themselves or the temporarily popular major- 
ity. It is generally contended in these cases that some funda- 
mental right of the individual or of the minority is being violated. 



SUPPLEMENTARY MATERIAL 269 

In such cases how is the independence of the tribunal which is 
dependent upon one of the contracting parties to be maintained? 
Take a common case. A popular majority, through the legis- 
latures elected by it, enacts a statute requiring railroads to carry 
passengers for 2 cents a mile, or say, 2 cents for 10 miles. In 
the test case that comes before the court the railroad claims that 
the act robs it of its property. The court after hearing and 
study of the facts, sustains this claim. Being dissatisfied with 
the decision, the popular majority recalls the judges who gave 
the decision and elects judges who will reverse the decision. 
Which is the determining power, Is it not the popular majority 
which has constituted itself the court in its own case? 

Let us examine the recall in the light of another fundamental 
principle. When the same power which enacts a law also decides 
whether the particular case comes within that law, we call it a 
despotism. There is no separation of powers and functions. 
On the other hand, in a free government one body makes the 
law, while another body decides whether the particular case 
comes within the law. Thus the citizen is protected, because 
the legislative and judicial departments are kept separate. Now, 
if the popular majority not only makes the law, but also decides 
whether a given case falls within it, then the legislative and judi- 
cial powers are united. The government then ceases to be free. 
It is a despotism, the despotic tyranny of popular majorities. 

Destroys Judicial Functions and Promotes Socialism 

Not only is the judicial recall wrong in principle, but its 
efifect would be to destroy the independence of the judiciary 
and, in the last analysis, to destroy the functions of the judiciary 
itself. The real progressive tendency during the last half cen- 
tury has been to build up an independent, untrammeled judiciary, 
recognizing no master, catering to no party or faction and 
administering justice according to law. But the recall proposi- 
tion is a direct blow at this progressive development of an 
independent judiciary. 

Basing their argument on the assumption that the judge is 
an agent or servant of the people, the opposition reach the con- 
clusion that the people have the privilege of recalling their 
agent when he fails to satisfy the popular majority. The fal- 



270 SUPPLEMENTARY MATERIAL 

lacy in the argument is in the assumption that the judge is an 
agent of the people. He is not an "agent" in any sense of the 
word. The peculiar character of the judicial office makes it 
imperative that he exercise his functions impartially, recogniz- 
ing no constituency whatever, except, as Marshall said, ''his 
conscience and his God." To make the judge dependent upon 
the public in a case in which the public is a party is to make 
the judge dependent upon the will of one of the parties upon 
whose claim he is to pass judgment. No sane man would be 
willing to have judgment passed upon him under such circum- 
stances. It is precisely this state of affairs which it is the main 
object of the Socialists to bring about. They would have the 
majority pass statutes confiscating private property and, by 
the judicial recall, allow the same majority to coerce the courts 
into allowing such statutes to be enforced. They would elimi- 
nate private property by eliminating the present power of the 
courts to protect it. 

It Debases Judicial Standards 

The effect of the recall upon the personnel and character 
of the judiciary would be anything but salutary. By the very 
nature of things the recall will, and necessarily must, lower the 
judicial standard. Claiming that the impeachment process is 
too cumbersome, those who advocate the recall urge that the 
people should be given the power to remove inefficient or cor- 
rupt judges and elect better judges. But the feasibility of this 
is questionable. What constitutes inefficiency or incompetency? 
Can you expect a defeated litigant to judge judicial capacity 
fairly? Is it rational to attempt to determine the legal and 
constitutional correctness of a judgment by popular vote? 
Would it not be considered irrational to have the competency 
of a physician passed upon by popular vote? The electorate, 
especially in the case of a supreme judge, would be uninformed 
concerning the character of a certain judge charged by a few 
with incompetency. How, except by an extended campaign of 
education costing thousands of dollars, which corporations and 
special interests only could afford, could the character of a 
judge be determined? Then what reason is there to suppose 
that the electorate will do better concerning the selection of the 
second judge? Remember that the same power which created 



SUPPLEMENTARY MATERIAL 271 

the bad judge in the first place is creating the next one. Is that 
body, to which the demagogues subtly refer as the "people" 
infallible? 

Consider the question of corruption charged against a judge. 
Is it justice to have his honesty determined upon by popular 
vote after a heated campaign in which stump orators and dem- 
agogues have vied with one another in presenting trumped-up 
charges and exaggerated statements villifying the character 
of a judge? How will the judge single-handedly combat these 
agitators and attend to his judicial duties at the same time? 

The indignity and disrespect to which our judges will be 
made subject under the threat and operation of the recall will 
work disaster on the personnel of our judiciary. What success- 
ful lawyer will leave his practice to hold an uncertain and dis- 
credited office? What class of judges will such a state of afifairs 
tend to produce? Does it stand to reason that the threat of 
recall, hanging over the head of a judge like a sword of Damo- 
cles, will make him a better judge? Will men who possess 
true judicial caliber consent to being coddled into accepting an 
office whose tenure is controlled by fluctuating popular 
majorities? 

Hamilton, Madison and Marshall said that the complete 
independence of the judiciary was absolutely essential under 
our form of government. In order to perform its high func- 
tion the judiciary must be independent of the legislative power 
no less than of the power of popular majorities. To fuse the 
judicial and legislative function is to destroy that separateness 
which was intended to exist between the three departments of 
government. To make the judge the tool of temporary popular 
majority, compelling him upon threat of recall to obey every 
changing whim and caprice of public opinion, is to make him, 
not the exponent of what the law is, but of what the people, for 
the time being, think they want it to be. Under such a regime 
we shall have a government of men, not a government of laws. 

But the insidious and undermining influence of the recall 
does not end here. The duty of the judiciary is to protect 
constitutional safeguards, to secure the rights of individuals 
and minorities, however small. A judge, held in jeopardy by 
threat of arbitrary recall, cannot by the very nature of things 
exercise this function independently, fearlessly or impartially. 



272 SUPPLEMENTARY MATERIAL 

He has got to look to the wishes of the faction which has made 
possible his election. If he disregards their mandates, this 
faction will, by employing the recall, proceed to replace the 
inflexible judge with a pliant reed, dependent upon their com- 
mands. When such a state of affairs comes to exist, as it 
unavoidably must under the recall, the people of Minnesota 
must expect the nullification of constitutional protection through 
the destruction of the independence of the judiciary. 

By constitutional safeguards we mean those liberties and 
established rights which inhere in free government. The first 
ten Amendments embody these rights almost in their entirety. 
They are written into the fundamental law of our land and 
are the distinguishing feature of our constitution written as 
they are in the shape of definite constitutional provisions insur- 
ing to every citizen the right of life, liberty, property and human 
happiness. These limitations upon the governing power have 
made our government the scientific basis of the constitutions of 
the world. These are the limitations which by reasons of the 
recall agitation are being seriously threatened at the present 
time. The citizen who really understands that the adoption of 
the recall will directly, through the destruction of the inde- 
pendence of the judiciary, and indirectly, through the nullifica- 
tion of constitutional safeguards, work against the basic prin- 
ciples of true government, will never be found placing his mark 
of approval opposite the proposed amendment. 

Thoroughly Impracticable 

But there are further objections to this boasted cure-all, the 
popular recall. Its impracticability alone must prohibit it from 
ever becoming a workable instrument. The expense of getting 
petitions signed, of conducting a campaign of education regard- 
ing the qualifications of a certain judge and the outlay con- 
nected with recall election must necessarily be immoderately 
great, especially so in the case of a supreme court judge. The 
middle class, which usually bears the brunt of such burdens, 
will not be able to exercise the use of the recall. Rather, you 
will find it will be the rich, influential litigants defeated in court 
trials, corporation-owned and controlled presses, special privilege 
interests and other self-serving elements, that will have the 



SUPPLEMENTARY MATERIAL 



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means and the influences to bring about the recall of a judge 
who dares to act without consulting their wishes. 

If there ever was such a thing as bribery and corruption we 
shall have it in the judiciary if the tenure of that body is to be 
controlled by those who are financially the most powerful and 
influential. A campaign of slander, misrepresentation and vil- 
lification can be carried against a judge by powerful interests 
and the retention of a fair, impartial judge will be next to an 
impossibility. The recall is not an instrument designed to be 
employed by the forces of democracy. It is, rather, an instru- 
ment whereby plutocracy and wealth, hiding behind the protec- 
tion of the recall, can perpetrate crimes darker than any which 
ever stained the history of the judiciary. 




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