the court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this . . . I do not resist it . . . We abide by the decision, but we will try to reverse that decision." Similarly, Theodore Roosevelt criticized the New York State Bakeshop decision, above described: "The Supreme Court of the United States possessed, and unfortunately exercised, the negative power of not permitting the above to be remedied. By a fiveto-four vote they declared the action of the State of New York unconstitutional, because, forsooth, men must not be deprived of their 'liberty' to work under unhealthy conditions. . . The Court was, of course, absolutely powerless to make the remotest attempt to provide a remedy for the wrong which undoubtedly existed, and its refusal to permit action by the State did not confer any power upon the nation to act. The decision was nominally against states' rights, but really against popular rights." Shall we go further than to bring the pressure of public opinion to bear upon the judiciary? Many publicists have advocated the "recall" of judges whose interpretations run contrary to the majority will. Without going so far as this, we might propose, as Roosevelt did, the "recall of judicial decisions," i.e., a referendum which would let the people decide whether, in a given case, they wished to uphold or to annul the interpretation of the court. This plan seems preferable to the recall of the judge himself, since the fear of losing his office might tend to make a judge too sensitive to public opinion. The independence of the judiciary is a valuable asset in a democracy. Yet where the recall of judges has been available it has been used with moderation and wis dom; and it is not to be forgotten that it is a possible last resort. Again, it would be possible to take from the judiciary its power of constitutional veto and give the Congress and State legislatures the power to determine the constitutionality of their own acts, with, perhaps, a popular referendum when desired by a sufficient number of people. This, however, would be a sharp break with our traditions. And it is highly questionable whether this taking off the brakes would not encourage hasty and extremist legislation, and do more harm than good. We are a conservative nation, and will not lightly abrogate, because of the dangers that inhere in it, a policy that has appealed to most Americans as, on the whole, reasonable and wise. Perhaps the best solution, on the whole, will be to leave the Courts their power, and to make the process of amending Constitutions somewhat easier. Thomas Jefferson wished that constitutions might be deliberately revised every nineteen years. Attempts are periodically made thoroughly to revise antiquated State constitutions; but because of the clumsy procedure involved, they rarely achieve a marked success. However, the passing of the eighteenth and nineteenth Amendments to the Federal Constitution shows that instrument to be still plastic to the popular will. And incidental changes are constantly being made in State constitutions. When a court, through its interpretation of constitutional provisions, blocks a generally desired law, an alteration in the Constitution can be made, if enough people want it. And although this process has hitherto been often heartbreakingly slow, and although judges are sometimes sadly lacking in social vision and prone to give a narrowly legalistic interpretation, one that concerns itself more with property rights than with human rights, yet the idea behind this Constitutional barrier is a sound one. It comes down to a question of political policy. Do we need checks upon over-hasty legislative action? Or do we need rather to progress more freely than our constitutional barriers permit? The ideal is undoubtedly that expressed by Dr. Lyman Abbott: "The Constitution is not like the hoops of a barrel that hold the staves together. It is like the bark of a tree that grows with the growth of the tree and expands with its expansion." If we can keep our Constitution as flexible as this analogy suggests, we can, if we choose, repeal or amend clauses in it that come to be interpreted by the Courts in a manner contrary to the popular will. New laws can then be passed that will not be subject to annulment, at least on the old grounds. In this manner we may unite caution with experimentation, a wise conservatism with a progressive regard for human needs and interests. SUGGESTED READINGS F. J. Goodnow, Social Reform and the Constitution. G. G. Groat, The Attitude of American Courts in Labor Cases. Theodore Roosevelt, The New Nationalism: Criticism of the J. H. Tufts, Our Democracy, Chapter XXVI. Brooks Adams, The Theory of Social Revolutions. J. A. Smith, The Spirit of American Government, Chapters V, XI. C. G. Haines, The American Doctrine of Judicial Supremacy. CHAPTER V INDIVIDUALISM WE have been discussing certain restrictions upon liberty that are necessary for liberty's sake. It is by no means true, however, that our only danger lies in an unrestricted and heedless individualism. On the contrary, there are ways in which we need more rather than less individual liberty. Much that is best in our national life has come from the self-reliance bred by pioneer conditions, the love of overcoming obstacles, the zest in what Roosevelt named the Strenuous Life. In general, the people who left their home-lands and dared the dangers of the ocean and of a new country were the bolder, hardier folk. They found here abundant opportunities for personal initiative. Owing to their diversity of race and traditions they were slow in developing a "consciousness of kind." They wrote their individualistic creed into their laws and constitutions; their writers and poets glorified that fearless and energetic individualism and crystallized it into an explicit and avowed ideal. All this is to the good. Our aim should be, not to cramp, but so far as possible to liberate, these individual energies. It is with us an established right that each young man and woman shall choose his or her vocation, friends, religious faith, home; shall carve out an individual life, rather than be subject to family dictation or pressure, as is so often |