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THE

American Law Review.

JULY-AUGUST, 1916.

RECALL OF JUDGES AND JUDICIAL
INDEPENDENCE.

The New York State Bar Association is manifesting an interest in the forward-looking movements which have taken deep root in our country within the past few years and are making for better conditions, better laws, better administration of the laws; for a better government, and for a better country in which to live. This interest consists in the appointment of a Standing Committee of five members of the Bar Association to investigate regarding, and to report upon, designated phases of the new and progressive doctrines and accomplishments, and particularly as they affect the courts and the administration of justice in the courts.

As a preliminary to their serious work this Standing Committee is wont to prepare and scatter broadcast "questionaires," requesting the favor of a reply from the persons to whom they are sent. Just what aid the Committee derive from this method of proceeding, or how far they consider themselves bound by, or are governed by the replies received, in their deliberations and in making their report, is not disclosed. Upon the coming in of the report of the Standing Committee at the annual meeting of the New York State Bar Association, resolutions are passed approving the sugVOL. L. 31 (481)

gestions of the Committee, adopting the ideas thereof and vouching for them as those of the State Bar Association as a whole.

What has stirred the New York State Bar Association to inaugurate this procedure is doubtless the fact that this country—particularly in the middle and western part thereof—has forged ahead until it has become the most forward-looking nation in the world, with the single exception of Switzerland,1 and has carried the principles of direct popular sovereignty to great lengths, and bids fair, in the near future, to carry them to still greater lengths. Among the many things calculated to disturb the equanimity and arouse the fears, perhaps, of those backward-looking individuals who are bound by precedent and the traditions of a selfish and sordid past, may be mentioned such legislative acts,—constitutional and statutory,—as child labor laws; corrupt practice acts and primary laws; creation of departments of industry and labor; factory laws; juvenile court acts; laws preventing reversal of causes for mere technical errors or irregularities in law or procedure not affecting the substantial merits; maximum hours of labor; minimum wage laws; railroad commissions and other industrial commissions, with a strong arm and adequate means to bring under and within the laws of the land recalcitrant and avaricious and law-defying corporations and other predatory interests which prey upon the people; the retirement and pensioning of employes; woman suffrage; workmen's compensations acts, and other acts to relieve the oppressed and promote social justice. But no political phenomena of this or any other time is more significant than the wide and rapid spread of the doctrines of the initiative and the referendum in legislative matters, and the recall of officers, including judges, which is now firmly established in at least twenty states, and principally during or since the year 1911, and now exists therein either in state

i See "Referendum and Initiative in Switzerland," 185 North American Review, p. 202.

and municipal matters or in municipal matters.2 It is not so much an abiding faith in the infallibility of the people that has caused this rapid and wide spread of these doctrines, as it is a well-grounded want of faith in legislators —state and municipal,—who are too often the creatures of political bosses and too susceptible to be "influenced" by selfish and greedy corporations, and other corrupt and corrupting interests.

In 1914 the New York State Bar Association assigned to the Standing Committee for consideration and report, the question of the "recall of judicial decisions" on constitutional questions by permitting the people, by plebiscite, to determine whether the statute involved and pronounced by the court to be invalid because in contravention of the fundamental law, shall become a law under the police power of the state,—a doctrine which was given prominence during the presidential campaign of 1912. The claim has been put forward for this method of procedure that it would preserve judicial independence and open the way for social legislation. There are among students, philosophers, publicists and jurists, alike, those who look upon the proposed procedure for the recall of judicial opinions as highly obnoxious; as a veritable death-blow to the vital principles of eternal right and justice for which we as a nation have struggled so strenuously;'1 to the fundamental law,4 which is the keystone to our whole superstructure of liberty, personal independence and social justice. The effect of such a procedure would inevitably be to work an amendment to

2 Initiative and referendum in 22 Struggle for Law (2nd ed.), p. 16;

states; recall in 10 states; woman also I Continental Legal History Se

suffrage in 12 states; direct primary ries, pp. 183,195-197, 443, 444; I Mod

37 states; presidential primary ern Legal Philosophy Series, pp. 63,

in 21 states, etc. 65, 66, 319, 320; II Id., pp. 6, 7, 17, 21,

sin recent times there is very lit- 204 et seg, 254, 375; III Id., pp. 62,

tie, or no, sympathy with the roman- 63; IV Id., pp. 27, 118; VII Id., p.

tic concept of the Historic School, 106; X Id., p. 48; XII Id., pp. 10,

according to which law and the 353, 354, 365, 378.

principles of legal right come into 4 See "The Constitution and the

existence or are formed painlessly, People's Liberties," 184 North Amer

without trouble and without action, lean Review, p. 508.

much like the growth in the vege- "All our laws are legislative, ju

table creation. See Von Jhering's dicial, and doctrinal. The Constituthe constitution in an unconstitutional manner,—by affixing a limitation or an excepton to the fundamental law, at least,—and is equally as repugnant to the genius of our institutions and the ideas and ideals of the American people as was the suggestion of a certain eminent New York City lawyer, Elihu Root, made some years ago, that the constitution of the United States be amended by decision of the Supreme Court of the United States. As the vote of one man on the bench of the United States Supreme Court is sufficient to carry the decision, this suggestion was tantamount to a proposition that the constitution of the United States be amended by one man.5

The recall of the decision, instead of the recall of the judge, in cases where statutes are held to be in violation of the fundamental law of the land and for that reason void, was brought into prominence and given wide vogue by the advocacy of Theodore Roosevelt during the presidential campaign of 1912, and the principle was carried into the Colorado constitution by a popular vote in that year.* Mr. Roosevelt founded his advocacy of the principle upon the mistaken conception that the power and practice of the courts of this country to declare statutes unconstitutional

tion is the highest form of legislative law, the fundamental law upon which all other laws rest and to which they must conform, and it must be preserved inviolate, if the state is to be an abiding structure. In the maintenance of the Constitution inviolate there is a constant struggle (see in this connection Von Jhering's Struggle for Law, passim), in which a certain role is reserved for private persons in what would seem to be the special mission of the state. There is much truth in the suggestion that the spirit of the age tends to fashion unto itself a legal art suppler in its theorizing— too rigid judicial constructions being sufficiently criticised today— and a law (as well as an administration of the law) demanded which shall be in closer touch with prac

tical realities, borrowing more from the data of political economy, and approaching more closely to that legal illucidation which, in spite of possible errors, is synonymous with life and unconsciously expresses the strongest practical needs — as it were, 'locating the abiding reality that corresponds to the aspirations of our spirits.'" See VII Modern Legal Philosophy Series, p. 350.

5 When Prof. John H. Wigmore called attention to this fact in one of our leading reviews, Mr. Root promptly denied that he had advanced such a proposition in the address referred to, although the associated press report of the address carried the information far and wide.

sIn force January 22, 1913. Colo. Stats. 1913, p. 678, §1.

is "unique" and "not permitted elsewere in the world," claiming to base his views and contentions in this regard upon expressions of the late Professor James Bradley Thayer, of Harvard.7

The Standing Committee of the New York State Bar Association has done its work admirably and thoroughly on the task assigned to it in 1914 has made two reports,— a general report to the annual session of the association held in 1915, and a second or supplementary report to the annual session in 1916,—leaving scarcely anything to be desired further, and richly merits the gratitude of the bench and bar of the whole country, as well as of accurate scholarship. The committee has incontrovertibly established, by a wonderful accumulation of documentary evi-i dence, that "there are certain original inherent rights be-\ longing to the people,"8 that a constitutional bill of rights is necessary because of, as Thomas Jefferson once put it,\ "the legal check which it puts in the hands of the judiciary,"9 that, as was well pointed out by Gouverneur Morris, ( "the boasted importance of legislative authority is but a jingle of words; in the literal meaning, is impious;"10 that

'"American Doctrine of Constitutional Law," 7 Harvard Law Review, p. 129, is doubtless the utterance of Prof. Thayer to which Mr. Roosevelt refers. It is to be noted, in passing, that Prof. Thayer was not the only person who lias regarded, and declared, the power and practice of the American courts to declare unconstitutional and void a statute in contravention of the fundamental law as "unique;" this error has been shared by others. See, among other publications: "The Law of the Constitution (1908 ed.), pp. 96-105. 160-169; Roger's Constitutional History, Introduction, pp. 9-14; Maine's Popular Government,• pp. 217, 218; I De Tocqueville's Democracy in America (1862 ed.), pp. 123-130, (1889 ed.), pp. 94-100; I Bryce's American Commonwealth (1889 ed.). pp. 237-258.

* Answer of the Massachusetts House of Representatives to the Governor's Speech, Oct. 23, 1765. See Samuel Adam's Works (Cushing's ed.), p. 17.

"Jefferson's Works (Ford ed), Vol. 5, pp. 80, 81.

i» He further said, and it seems to us justly, that "whatever interpretation lawyers may give, freemen must feel it to be absurd and unconstitutional. Absurd, because laws cannot alter the nature of things; unconstitutional, because the constitution is no more if it can be changed by the legislature" (and he might well have said by the people, otherwise than in the duly appointed manner). See Carson's History of the Supreme Court of the United States, p. 122.

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