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MAJORITY RULE AND THE JUDICIARY 
 
MAJORITY RULE 
 AND THE JUDICIARY 
 
 AN EXAMINATION OF CURRENT PROPOSALS FOR 
 
 CONSTITUTIONAL CHANGE AFFECTING 
 
 THE RELATION OF COURTS 
 
 TO LEGISLATION 
 
 BY 
 
 WILLIAM L. RANSOM 
 
 or THE NEW YOEK BAR 
 
 WITH AN INTRODUCTION BY 
 
 THEODORE ROOSEVELT 
 
 NEW YORK 
 
 CHARLES SCRIBNER'S SONS 
 
 1912 
 
Copyright, igis, by 
 CHARLES SCRIBNER'S SONS 
 
 Published August, igi2 
 
TO THE LAMENTED 
 
 WILLIAM HENRY MOODY 
 
 WHOSE BRIEF SPAN 01 SERVICE 
 
 IN THE SUPREME COURT OE THE UNITED STATES, ENDED BY MOST UNTIUELY 
 
 DISABILITY AND DEATH, GAVE PROMISE OF A PUBLIC USEFULNESS 
 
 ENTITLING HIS NAME TO KANE WITH THAT OF JOHN MARSHALL AS EXPONENT OF A 
 
 VIRILE AND PROGRESSIVE INTERPRETATION OF THE CONSTITUTION 
 
 WHOSE "UNCHANGING PROVISIONS" HE CONCEIVED THEREBY TO BE "ADAPTABLE 
 
 TO THE INFINITE VARIETY OF THE 
 
 CHANGING CONDITIONS OF OUR NATIONAL LIFE" 
 
PREFACE 
 
 The attitude of some State courts toward what is 
 generically spoken of as "welfare" or "regulative" 
 legislation has led, chiefly in those States, to several 
 proposals of constitutional change affecting the 
 relation of courts to legislation. The people have 
 been most reluctant to admit that either their con- 
 stitutions or any instrumentality of government 
 created by their constitutions should bar them per- 
 manently from any pathway of progress and justice 
 which is pointed out by the experience, and called 
 for by the conscience, of this and other civilized 
 nations. The electorate has to no small degree 
 lost patience with public men and political par- 
 ties, who, like Dr. Nicholas Murray Butler at the 
 New York Republican State Convention at Roch- 
 ester in April, 1912, "urge" that a Working- 
 men's Compensation Law be enacted in this State, 
 but suggest no way and support no plan for bring- 
 ing that about, especially when so zealous a ten- 
 word advocacy of such legislation is preceded and 
 followed by a thousand-word plea for the resolute 
 maintenance, evidently "without amendment,"^ 
 
 ' "It is said the constitution was made in the eighteenth century 
 by men who lived under conditions long since passed away. There- 
 fore, the constitution is outgrown. It must be adjusted, the phrase 
 
 vii 
 
viii Preface 
 
 of the very "constitutional guaranties" which the 
 highest court of the State had but recently con- 
 strued ' forever to prevent any legislation based 
 upon the essential principle underlying a Working- 
 men's Compensation Act! 
 
 The constructive proposals which have been 
 made are entitled to be explained and considered 
 upon their merits. Examination may show them 
 — some or all — to be unsuitable or unwise; but 
 they may not be brushed aside as "the ravings of 
 Bedlam" ^ or as the proposals of "political patent- 
 medicine men who are ignorant of ordinary laws 
 of political and social growth." * The fact is, of 
 course, that to no small degree these suggestions of 
 organic change, as well as the legislation for which 
 it is sought by them to clear the way, have been 
 formulated or perfected in the seminaries of Amer- 
 ican universities and colleges, and that their ad- 
 vocacy has largely been led by members of the 
 faculties of such institutions, whom Dr. Butler and 
 his "Rochester platform" would doubtless hesitate 
 to condemn more specifically. 
 
 now runs, to' human rights. . . . The fact is that in the history of 
 mankind some things, after long toil and tribulation are settled once 
 for all. They neither invite nor permit amendment or improvement." 
 
 ' Ives V. South Buffalo Ry. Co., 201 New York Reports, page 271. 
 
 ^ "The Supreme Issue of 1912: " Address of Dr. Nicholas Murray 
 Butler as temporary chairman of the Republican State Convention 
 at Rochester, N. Y., April 9, 1912; published in the New York 
 Tribune, April 10, 1912. 
 
 " Ibid. 
 
Preface ix 
 
 A great many things are being said about these 
 proposals which no one can seriously mean and 
 most persons will be glad soon to forget. That is 
 probably because their discussion has been pro- 
 jected into a political campaign. Ambition is a 
 strong stimulus to superlatives — about the other 
 fellow and "his" "issues," especially if he comes 
 from some other part of the country. The at- 
 mosphere of political discussion makes it easy for 
 men to figure it all out that some one is about to 
 "lay the axe at the foot of the tree of well-ordered 
 freedom," when in fact no "axe" in sight menaces 
 anything more than the "foot of the tree" of their 
 own ambitions and the fancied interests of some of 
 their friends. The discovery that some one — on 
 the other ticket, in primary or election — ^was about 
 to "lay the axe" to something cherished by the 
 electorate, has been a frantic feature of every 
 national political campaign whose "literature" it 
 has been possible to trace. 
 
 The truth of the matter is, of course, that no 
 considerable number of our people are contem- 
 plating any step which would in j act "destroy" or 
 "threaten" the essential "independence" and "in- 
 tegrity" of our courts or the "stability" and 
 "soundness" of their administration of impartial 
 justice. If there is any branch of the government 
 about which the American people have been gen- 
 
X Preface 
 
 uinely. "conservative," it has been the judiciary; 
 and this has been far more true of the rank and file 
 of the people — the men in the village or on the 
 farm, and the men in the enterprises of the in- 
 dustrial centres — than of the men who find it easy 
 to feel that an attack on their own continuance in 
 office or power is an attack on the continuance of 
 the institutions they have weakly served. In the 
 country as a whole, there are so many ways in which 
 the courts come into close and cherished relations 
 with the life of the average man and woman* — for 
 example, in the administration of the estate of the 
 dead relative, and the care of the interests of the 
 minor child — that it is idle to suggest that any 
 proposal under^serious consideration by the people 
 themselves is directed "at the foot of the tree of 
 well-ordered freedom. " 
 
 In a government by the people, we fight out re- 
 curring issues of governmental power and policy, 
 oftentimes with a frantic feeling that a new and 
 unheard-of "menace" must be met, else business 
 will be prostrated, institutions fall, and our coun- 
 try turned over to some rampant form of "radical- 
 ism. " It is always disconcerting, afterward, to go 
 back to our histories and our records and there find 
 that Don Quixote has often ridden full-tilt at wind- 
 
 ' This fact is impressively elaborated upon by Governor Simeon E. 
 Baldwin, of Connecticut, in "The American Judiciary" (1905), at 
 page 219, 
 
Preface xi 
 
 mills; that the same issues have been fought out 
 before, with the same superlative phrases; and 
 that the same dire prophesies were dismally made, 
 only to be proved quite unfounded in the years 
 which followed. To illustrate: Personally, I do 
 not believe in the application of the principle of 
 the "recall" to judicial officers. I sympathize 
 with many of the arguments which are being so 
 earnestly urged against "the judicial recall. " Yet 
 when I hear it contended that adoption of "the 
 recall of judges" would mean the wholesale and 
 whimsical removal of judicial officers and make our 
 judges "vacillating and craven," I am unable to 
 believe that either our people or our judges are of 
 that mould of men. For I have it in mind that, 
 long years ago — ^in Massachusetts^ and Vermont, 
 for example — ^the same cry was raised on the same 
 issue, in almost identical phrases, directed against 
 rather more objectionable forms of the "judicial 
 recall" than are now being agitated, but that, when 
 the voters of these conservative commonwealths 
 rejected the counsels of great leaders of the bar and 
 adopted decidedly "radical" expedients, no "axe" 
 was laid "at the foot" of anything except the rep- 
 utation of some lawyers as prophets of disaster! 
 We can afford to frankly face and fairly con- 
 
 ' The proceedings in the Massachusetts Constitutional Convention 
 of 1820 are extensively quoted from on pages 85 to 91, fiost. 
 
xii Preface 
 
 sider any suggestion which may come from the 
 people, looking to a better adjustment in the con- 
 stitutional relation of the courts to the law-making 
 power. There is a prevalent feeling — ^if not yet a 
 settled conviction — that some readjustment in this 
 respect is not far distant. Why this has come 
 about, and what lines this change may most suit- 
 ably follow at this time, will be dealt with in Mr. 
 Roosevelt's introductory chapter to this volume 
 and in the author's analysis of the legal and his- 
 torical basis for such a readjustment. It will be 
 sufficient here to say that a great many — probably 
 a large majority — of our people have become defi- 
 nitely conscious that in some way either their con- 
 stitutions or some of their courts are standing in 
 the way of things which it should be possible for 
 any civilized government to do, and are definitely 
 questioning whether the onrush of economic and 
 social change has not brought a real and irrepressi- 
 ble conflict between the needs of the people in the 
 present day and certain constitutional provisions 
 — notably the historic guaranty of "due process 
 of law" — at least as construed by some courts. 
 
 I do not believe that the great majority of our 
 people have ever assented, or will ever assent, to 
 any extreme of view as to the judiciary or as to the 
 maintenance of our constitutions in essential vigor. 
 On the one hand, they give no sanction to any sug- 
 
Preface xiii 
 
 gestion that all our constitutions should be made 
 "a fluid thing" or that the power of courts to re- 
 fuse enforcement to legislation contravening the 
 organic law should be taken away, and they are 
 as "conservative" about] accomplishing such an 
 abridgement indirectly, through the wholesale 
 adoption of frittering constitutional amendments, 
 as directly, by the explicit taking away of judicial 
 power. On the other hand, they flatly refuse to 
 believe that the "stability" of our institutions and 
 the "maintenance of our form of government" 
 require that the pronouncement of a court, once 
 made, upon a question of governmental power or 
 policy, should be " beyond the power of a majority, 
 or of all the people," to change or correct. And 
 so it is that, not yet definitely or clearly formu- 
 lated, perhaps, but none the less positive and un- 
 mistakable, there has come the feeling that the 
 right of the matter lies somewhere in the middle 
 ground. 
 
 That is frankly the point of view of the present 
 volume, and that is, as I understand it, the position 
 of Theodore Roosevelt, in proposing (i) that in the 
 determination of what is "due process" under our 
 State constitutions, there shall be an explicit con- 
 stitutional recognition^ of what Freund has called 
 
 •An illustrative form of such an "explicit constitutional recog- 
 nition" is set out on page lij, post. 
 
xiv Preface 
 
 "the matured and deliberate popular will,"^ and 
 what the Supreme Court of the United States has 
 recognized as "the prevailing morality or strong 
 and preponderant opinion";^ and (2) that as a 
 potential check upon judicial misapprehension 
 on the question whether any particular statute 
 is a valid exercise of the "police power," ^ the 
 people shall be empowered, upon the petition of 
 a specified number of electors, themselves to "re- 
 define" what is "dne process", in the sense of de- 
 termining — by the method which is obviously the 
 most direct, concrete, and conclusive — ^whether 
 the "matured and deliberate popular will" does 
 or does not hold the statute in question to be 
 vital to the public welfare and so within the 
 "police power." That the people are resolving 
 to re-establish now, beyond peradventure, their 
 power to put in force such humanitarian measures 
 as they may deliberately determine to be most 
 suitable for present-day needs, the temper of the 
 current discussion leaves no doubt. If, as it 
 seems, this proper power of a deliberate popular 
 
 ' "The Police Power," by Ernst Freund, page 17. 
 
 'Noble State Bank v. Haskell, 219 United States Reports, at 
 page III; quoted on page 64, post. 
 
 'The "police power" is the term commonly used to indicate the 
 general "regulative" powers of government — the power to place 
 "restraints and burdens" upon persons or private property, in order 
 to secure the "general welfare." For excerpts from judicial deci- 
 sions as to "due process" and the ''police power," see, respectively, 
 pages 52 to 54 and page 59 et. seq., post. 
 
Preface xv 
 
 majority has been doubted or denied in some 
 States, it will be put beyond cavil now. But the 
 people seek a safety-valve and not an explosion! 
 They wish to make it suitably possible to do just 
 things in a conservative and constructive man- 
 ner, so that there may be no danger of a pent-up 
 outbreak to accomplish the same ends in a sweep- 
 ing and destructive manner. 
 
 May it not be that the proposal identified with 
 the name of Theodore Roosevelt will prove the 
 "safety-valve" of social legislation? We do not 
 wish to take down all constitutional restrictions on 
 an entire class or category of legislation, good or 
 bad, merely to take one sound, wise law out from 
 under the ban. The people do not seek a safety- 
 valve like the whistle on the Mississippi River 
 steamboat described by Lincoln, which stopped 
 the boat whenever the whistle was blown, nor do 
 they want the safety-valve of orderly progress in 
 legislation "tied down" beyond the power of the 
 people to utilize when needed. A method of deal- 
 ing only with the specific statute when the need 
 arises, rather than framing broad generalizations 
 to take all similar statutes out of the prohibition 
 pronounced by the court, has much to commend it 
 to the conservative common-sense of our citizens. 
 With those who believe that through the medium 
 of the "general amendment" method, so adjusted 
 
xvi Preface 
 
 as to permit of genuine popular control, the people 
 may, when they wish, remove any barriers which a 
 court may place in the way of "welfare" or "re- 
 gulative" legislation, I have no quarrel. The 
 principle, rather than the method, is fundamental. 
 But the farmer does not demolish his fences or take 
 them down, that he may lead his horse from pas- 
 ture to barn. Only the Chinese of Charles Lamb's 
 fable burned the sty when they wished to eat roast 
 pig. Is it not better that the people should pass, 
 directly and by way of potential ultimate check, 
 upon the public necessity and social justice of a 
 particular law which some court may reject, than 
 that, in advance and for all time, broad and paralyz- 
 ing terms of general exemption should be written 
 into our historic guaranties? Why break out a 
 window, instead of merely raising it, for ventilation? 
 Therefore, for those who take this view of the possi- 
 ble efficacy of the "general amendment" method, I 
 have at least this question, whether Mr. Roosevelt's 
 proposal may not, upon analysis, be found to 
 offer, not a more "radical" method, but a more 
 suitable method — ^less sweeping, not so far-reach- 
 ing, attended by fewer possibilities of unforseen 
 implications, yet concretely effective in achieving 
 the ends of justice under the law. 
 
 This volume is, in essential outline, an amplifica- 
 tion of an address delivered before the Brooklyn 
 
Preface xvii 
 
 Bar Association on April 12, 1912, under the title 
 of "The People and the Police Power: An Ad- 
 vocacy of the Direct Expression of the Popular 
 Will as the Ultimate Guide in Determining the 
 Scope of the Regulative or ' Police' Powers of the 
 State Governments." From a lawyer's point of 
 view, that title was more accurately descriptive of 
 the central proposition discussed than is the title 
 given to this volume. At the same time, it is not 
 believed that there will be found in such a discus- 
 sion anything upon which any citizen may not form 
 an intelligent judgment. The proposal of Colonel 
 Roosevelt, and this volume, which has been written 
 to make clear its proper relations to the American 
 judicial and constitutional system, are submitted 
 with a firm belief in the principle declared before 
 the American Bar Association by a distinguished 
 Federal judge — William Howard Taft — in 1895: 
 
 If the law is but the essence of common-sense, 
 the protest of many average men may evidence a 
 defect in a legal conclusion though based on the 
 nicest legal reasoning and profoundest learning. 
 
 No prefatory \«ord upon this subject could prop- 
 erly be closed without frank acknowledgment of 
 debt, in many details, to Theodore Roosevelt, 
 whose stirring advocacy of the proposal identified 
 with his name has won for it already a large popu- 
 
xviii Preface 
 
 lar approval, and to Dean William Draper Lewis, 
 of the Law School of the University of Pennsyl- 
 vania, whose high standing as a teacher of pro- 
 gressive legal doctrine gave great weight to his 
 prompt and scholarly espousal of Colonel Roose- 
 velt's constructive proposal. Anyone who writes 
 concerning the relation of legal doctrine to social 
 progress feels also his obligation to those splendid 
 jurists. State and Federal — some of them in the 
 nation's Supreme Court, but many others little 
 known outside of limited jurisdictions — ^who have 
 resolutely given twentieth-century meaning to old 
 concepts, and thereby have made all republican 
 institutions again the available instruments of 
 justice. 
 
 William L. Ransom. 
 
 New York, August i, 1912. 
 
CONTENTS 
 
 PAGE 
 
 Preface vii 
 
 Introduction by Theodore Roosevelt ... i 
 
 I. When the People Discuss Their 
 
 Courts 27 
 
 II. The Present Issue as to the Judiciary 38 
 
 III. The "Police Power" as Construed by- 
 
 State AND Federal Courts ... 42 
 
 IV. The Ultimate Supremacy of a Deci- 
 
 sive Popular Majority under the 
 Constitution 70 
 
 V. The Recall of Judges 80 
 
 VI. The Power to Hold Legislation Un- 
 constitutional 93 
 
 VII. Direct Popular Re-definition vs. Gen- 
 eral Constitutional Amendment . 98 
 
 VIII. Mr. Roosevelt's Proposal Defined 
 
 AND Illustrated 107 
 
 xix 
 
XX Contents 
 
 FAO 
 
 IX. The Testimony of Experts as to Prac- 
 tical Advantages 119 
 
 X. Mr. Roosevelt's Proposal and the 
 
 Traditions of Judicial Procedure 126 
 
 XI. The Conservatism and Practical Ad- 
 vantages OF This Method of " Po- 
 lice Power " Definition . . . . 139 
 
 XII. Some Practical Objections to This 
 Method of " Police Power" Def- 
 inition Considered 153 
 
 XIII. Mr. Roosevelt's Proposal and the 
 
 Fundamentals of Government . 161 
 
 Table of Cases 179 
 
 Index 181 
 
INTRODUCTION 
 
 Mr. Ransom has rendered a service of marked 
 value to the commonwealth by his clear exposi- 
 tion of the meaning and the need of the proposi- 
 tion for a referendum to, or review by, the people 
 themselves of certain classes of judicial decisions 
 by State courts. In discussing this matter, and 
 all similar matters, really able and broad-minded 
 lawyers — men of the stamp of Dean Lewis, of 
 the University of Pennsylvania Law School, and 
 Dean Kirchway, of the Columbia University Law 
 School — can render service such as no laymen can 
 render. 
 
 But no lawyer can render this service unless he 
 remembers, as Mr. Ransom emphasizes, that the 
 question is one which concerns the people as a 
 whole. Neither the members of the bar nor the 
 men on the bench have, as such and of right, any 
 greater concern in the matter than other citizens. 
 The constitution is the property of the people, not 
 of any one class of the people. Its proper ad- 
 ministration and interpretation concern immedi- 
 
4 Introduction 
 
 ately and vitally the people as a whole. From this 
 stand-point, judges and lawyers are merely instru- 
 ments for securing the right solution of certain 
 questions in which all good citizens are equally 
 concerned. How completely the self-styled re- 
 pubUcan leaders of to-day have wandered from 
 the principles of Abraham Lincoln is shown by 
 their refusal to apply to this question the prin- 
 ciples which Lincoln laid down in discussing the 
 Dred Scott case. He scornfully refused to treat 
 the decision of the Supreme Court in that case as 
 permanently binding on the people, or as a mat- 
 ter only for judges and lawyers; and he explic- 
 itly laid down the doctrine that the people were 
 the masters of the courts, and that it was for the 
 people and not for the courts to determine the 
 principles arid policies in accordance with which 
 our constitution was to be interpreted and our 
 government administered. 
 
 Our prime concern is to get justice. When the 
 spirit of mere legalism, the spirit of hair-splitting 
 technicality, interferes with justice, then it is our 
 highest duty to war against this spirit, whether 
 it shows itself in the courts or anjrwhere else. 
 The judge has no more right than any other offi- 
 
Introdtiction 5 
 
 cial to be set up over the people as an irremovable 
 and irresponsible despot. He has no more right 
 than any other official to decide for the people 
 what the people ought to think about questions 
 of vital public policy, such as the proper handling 
 of corporations and the proper methods of secur- 
 ing the welfare of farmers, wage workers, small 
 business men, and small professional men. If in 
 any State judges have given such bad service 
 that it is necessary to render them liable to re- 
 moval by the people, I should not hesitate to 
 adopt the principle of the recall, a principle which 
 for a century and a third has been explicitly rec- 
 ognized and insisted on as righteous in the Mas- 
 sachusetts constitution. But where, as in New 
 York and Illinois, the trouble has been with the 
 heads rather than the hearts of the judges, where 
 the courts have delivered absurd and iniquitous 
 decisions against the interests of the people in 
 various constitutional cases although the judges 
 themselves are reputable and honorable men, what 
 is needed is not to recall the judge to private 
 life, but to make his decision — or the constitu- 
 tion as he interprets it — square with justice and 
 common-sense. 
 
6 Introduction 
 
 It is the people, and not the judges, who are 
 entitled to say what their constitution means, for 
 the constitution is theirs, it belongs to them and 
 not to their servants in office-^any other theory 
 is incompatible with the foundation principles of 
 our government. If we, the people, choose to 
 protect tenement-house dwellers in their homes, 
 or women in sweat-shops and factories, or wage- 
 earners in dangerous and unhealthy trades, or if 
 we, the people, choose to define and regulate the 
 conditions of corporate activity, it is for us, and 
 not for our servants, to decide on the course we 
 deem wise to follow. We cannot take any other 
 position without admitting that we are less fit 
 for self-government than the people of England, 
 of Canada, of France, who possess and exercise 
 this very power. But the plan I propose for our 
 people seems to me more democratic, and from 
 every stand-point better, than the plan in vogue in 
 France, England, and Canada, where the legislat- 
 ure is supreme over the courts. I propose to make 
 the people supreme over both. 
 
 Two or three months ago, some eminent cor- 
 poration lawyers of New York undertook the for- 
 mation of what they styled an Independent Ju- 
 
Introduction 7 
 
 diciary Association. They proposed, to use their 
 own words, "to combat the spread of two ideas," 
 namely, the recall of judges and the referendum 
 to the people of a certain class of cases of consti- 
 tutional decisions; and they asserted, in Presi- 
 dent Taft's words, that these ideas laid "the axe 
 at the foot of the tree of well-ordered freedom." 
 On April 10, 191 2, speaking of this proposal, at 
 Philadelphia, I said: 
 
 Many of the signers are distinguished men, 
 standing high in their community; but we can 
 gain a clew as to just what kind of well-ordered 
 freedom they have in mind, the kind of "freedom" 
 to the defence of which they are rushing, when we 
 see among the signers of this call the names of 
 attorneys for a number of corporations not dis- 
 tinguished for a high-keyed sense of civic duty, 
 nor for their disinterested conduct toward the pub- 
 lic; such as, for instance, the Standard Oil Com- 
 pany, the Sugar Trust, the American Tobacco 
 Company, the Metropolitan Traction Company 
 of New York, and certain defunct corporations, 
 the looting of which has passed into the history 
 of financial and stock-jobbing scandal and forms 
 one of its blackest chapters. I find also the name 
 of one of the attorneys for the Northern Securities 
 Company, which some years ago was dissolved at 
 the suit of the government instituted by my di- 
 
8 Introduction 
 
 rection; I notice the name of the attorney for 
 the New York Stock Exchange; and I do not 
 overlook that of a member of the bar of New York 
 who some years ago was denounced by the very 
 papers now applauding him and his associates, as 
 a retained "accelerator of public opinion" in favor 
 of certain measures of the Metropolitan Street 
 Railway Company, which at that time were under 
 general denunciation in New York as "traction 
 grabs." These embattled attorneys for the de- 
 fence of special interests oppose my proposal 
 solely because they make it their life work to 
 uphold privilege against the cause of justice, and 
 against the interests of the people as a whole. 
 They speak as if the matter were one only for 
 the decision of lawyers. I hold that it is one for 
 the decision of the people as a whole, and that 
 lawyers have no rights in the matter beyond those 
 of any other good citizens. I hold that some 
 basis of accommodation must be found between the 
 declared policy of the States on matters of social 
 justice within the proper scope of regulation in 
 the interest of health, of decent living, and work- 
 ing conditions and morals, and the attempt of the 
 courts to substitute their own ideas on these sub- 
 jects for the declarations of the people made 
 through their elected representatives in the sev- 
 eral States. 
 
 I do not question the good purpose of some of 
 the eminent corporation attorneys of whom I 
 
Introduction 9 
 
 speak. But they are intelligent men, trained in 
 their profession, and certain of them have at least 
 a smattering of knowledge of the constitutions of 
 our own and other countries. On the assump- 
 tion that they have both intelligence and knowl- 
 edge, it is impossible to credit them with good 
 faith in the fears that they have expressed as 
 above referred to, except on the supposition that 
 their long experience as attorneys for corporations 
 has finally rendered them genuinely unable to un- 
 derstand justice, and genuinely unable to think 
 of a judge except as an instrument devised to 
 protect privilege against the rights of the people 
 by invoking the technicalities of the law for the 
 purpose of preventing the obtaining of justice 
 under the law. 
 
 This is a strong statement, and I would not 
 make it of ordinary men who are misled by read- 
 ing those New York papers owned or controlled 
 by Wall Street, and who are misled by their be- 
 lief in the men whom these papers speak of as 
 leaders of the bar. As regards these citizens, I 
 have nothing to say except that I wish it were 
 possible for them to have access to channels of 
 information which were not wilfully poisoned. 
 But the case is wholly different, so far as the emi- 
 nent lawyers themselves are concerned. These 
 
lO Introduction 
 
 men are not to be excused on the plea of igno- 
 rance. My proposal is for the exercise of the 
 referendum, or right of review, by the people them- 
 selves in a certain class of decisions of constitu- 
 tional questions in which the courts decide against 
 the power of the people to do elementary justice. 
 When under the "police power" or "general wel- 
 fare" powers of government the legislature of a 
 given State passes an act to do social or industrial 
 justice, and the State court declares that the law is 
 unconstitutional, then I propose that the people 
 themselves, the masters of both legislature and 
 court, shall, after due deliberation, decide which 
 of their servants is to be sustained, so far as the 
 particular act is concerned./ When men of trained 
 intelligence call this "puttmg the axe to the foot 
 of the tree of well-ordered freedom," it is quite 
 impossible to reconcile their assertion both with 
 good faith and with even reasonably full knowl- 
 edge of the facts. 
 
 All that is necessary to do in order to prove the 
 correctness of this statement is to call attention 
 to plain and obvious facts. Consider the present 
 practice in various countries in which there^^^is 
 substantially the same "well-ordered freedom" as 
 
Introduction 1 1 
 
 in our own land — for instance, the republic of 
 France — and various great English-speaking com- 
 monwealths of the British Empire, such as Eng- 
 land and Canada, all of which are governed by 
 their parliaments in substantially the same man- 
 ner that we are governed. In these countries the 
 decision of the legislature on constitutional ques- 
 tions is absolute and not subject to action by the 
 judiciary, and whenever the courts make a deci- 
 sion which the legislature regards as establishing 
 a construction of the constitution which is un- 
 warranted, the legislature, if it chooses, can by 
 law override that construction and establish its 
 own construction of the constitution. Not long 
 ago this very method was adopted in England. 
 On that occasion the courts had held that labor 
 unions could be treated as corporations and sued, 
 and money taken from them by process of law. 
 Parliament at once passed a law overriding the 
 decision and summarily declared that the consti- 
 tution should thereafter be construed by the courts 
 in the directly opposite sense to the construction 
 which they had adopted. 
 
 My proposal is merely to secure to the people 
 the right which the Supreme Court of the United 
 
12 Introduction 
 
 States, speaking through Mr. Justice Holmes, in 
 the Oklahoma Bank Cases, said they undoubtedly 
 should possess. My proposal is that the people 
 shall have the power to decide for themselves, in 
 the last resort, what legislation is necessary in 
 exercising the "police powers," the "general wel- 
 fare" powers, so as to give expression to the gen- 
 eral morality and the general or common opinion of 
 what is right and proper. In England, Canada, 
 and the other countries I have mentioned, no one 
 dreams that the courts have a right to express an 
 opinion in such matters, as against the will of the 
 people shown by the action of the legislature. I 
 do not propose to go so far as this. I merely pro- 
 pose to make legislature and court alike respon- 
 sible to the sober and deliberate judgment of the 
 people, who are masters of both legislatures and 
 courts. This proposal is precisely and exactly in 
 line with Lincoln's attitude toward the Supreme 
 Court in the Dred Scott case, and with the doc- 
 trine he laid down for the rule of the people in his 
 first inaugural as President. 
 
 I am not dealing with any case of ordinary jus- 
 tice as between man and man. Nor am I speaking 
 of the recall of judges by popular vote, a measure 
 
Introduction 13 
 
 which I personally think should not be adopted in 
 any community unless it proves impossible in any 
 other way to get the judges to do justice — and I will 
 add that nothing will so tend to strengthen the 
 movement for the recall of judges as action seek- 
 ing to buttress special privilege in the courts and 
 to make them the bulwarks of injustice instead 
 of justice. I am advocating the introduction of 
 a system which will obviate the need of such a 
 drastic measure as the recall. But it must be un- 
 derstood that my purpose is to get justice, and if 
 justice is resolutely denied by the courts, I would 
 adopt the recall or any other expedient which was 
 found necessary for the achievement of the pur- 
 pose. 
 
 If in any case the legislature has passed a law 
 under the "police power" for the purpose of pro- 
 moting social and industrial justice, and the courts 
 declare it in conflict with the "due process" clause 
 of the State constitution as laid down by the 
 people, then I propose that after a period of due 
 deliberation, a period which could not be less than 
 two years after the election of the legislature which 
 passed the original law, the people shall themselves 
 have the right to declare whether or not the pro- 
 
14 Introduction 
 
 posed law is to be treated as constitutional. It is a 
 matter of mere terminology whether this is called a 
 method of "construing" or "applying" the consti- 
 tution, or "a quicker method of getting 'the con- 
 stitution amended." It is certainly far superior 
 to the ordinary method of getting the constitution 
 amended, because it is quick, definite, and certain. 
 It will apply merely to the act at issue, and there- 
 fore will be definite and clear in its action; whereas 
 actual experience with, for instance, the Four- 
 teenth Amendment to the national constitution 
 has shown us that an amendment passed by the 
 people with one purpose may be given by the 
 courts a construction which makes it apply to 
 wholly different purposes and in a wholly differ- 
 ent manner. The Fourteenth Amendment has 
 been construed by the courts to apply to a mul- 
 titude of cases, to which it is positive that the 
 people who passed the amendment had not the 
 remotest idea of applying it. 
 
 Some of our]opponents say that under my pro- 
 posal there would be conflicting interpretations 
 by the people of the constitution. In the first 
 place, this is mere guess-work on the part of our 
 opponents. In the next place, the people could 
 
Introduction 1 5 
 
 not decide in more conflicting fashion, could not 
 possibly make their decisions conflict with one an- 
 other to a greater degree, than has actually been 
 the case with the courts. No popular vote could 
 reverse an earlier popular vote more completely 
 than did the later decisions in the Supreme Court, 
 in the Legal Tender Cases and the Income Tax 
 Cases, when compared with the earlier decisions. 
 At this moment the courts of Massachusetts, Iowa, 
 and Washington, and the Supreme Court of the 
 nation, construe the clauses of the constitution to 
 permit one thing, and the Court of Appeals in New 
 York construes identically the same language to 
 mean the direct reverse; and this not as regards 
 unimportant matters, but as regards matters of 
 vital importance to the welfare of hundreds of 
 thousands of citizens, in cases like the Working- 
 men's Compensation Act and the act limiting the 
 hours of labor for women in factories. 
 
 The best way to test the merits of my proposal 
 is to consider a few specimen cases to which it 
 would apply. Within the last thirty years the 
 Court of Appeals of New York has been one of 
 the most formidable obstacles in the way of get- 
 ting industrial justice which men who strive for 
 
1 6 Introduction 
 
 justice have had to encounter. Among very many 
 other laws which this court has made abortive, or 
 decided not to be laws, on the ground that they 
 conflict with the constitution, are the following: 
 
 First. — ^The law for preventing the manufacture 
 of tobacco in tenement houses. Th^ decision of 
 the court in this case retarded by at least twenty 
 years the work of tenement-house reform, and was 
 directly responsible for causing hundreds of thou- 
 sands of American men and women now alive to be 
 brought up under conditions of reeking filth and 
 squalor, which immeasurably decreased their 
 chance of turning out to be good citizens. Yet 
 this decision was rendered by well-meaning men 
 who knew law, but who did not know life, and 
 who based their decision on the ground that they 
 would not permit legislation to interfere with the 
 "sanctity of the home" — the home in question, 
 in many cases, having precisely the sanctity which 
 attaches to one foul room in which two large fam- 
 ilies, one with a boarder, live and work day and 
 night, the tobacco they manufacture being sur- 
 rounded with every form of filth. 
 
 Second. — ^The court held unconstitutional the 
 law under which a girl was endeavoring to recover 
 
Introduction 17 
 
 damages for the loss of her arm, taken off because 
 dangerous machinery was not guarded. In this 
 case the judges announced that they were "pro- 
 tecting the girl's liberty" to work where she would 
 endanger life and limb if she chose! Of course, 
 as the girl h^d no liberty save the hberty of starv- 
 ing or else of working under the dangerous condi- 
 tion named, the courts were merely protecting the 
 "liberty" of her employer to endanger the lives 
 of his employees, or kill, or cripple them with 
 immunity to himself. I do not believe that there 
 is an instance in our entire history in which a 
 majority of the voters have shown such tyran- 
 nous and callous indifference to the sufferings of a 
 minority as were shown by these doubtless well- 
 meaning judges in this case. 
 
 Third. — When the legislature of New York 
 passed a law limiting the hours of labor of women 
 in factories to ten hours a day for six days a week, 
 and forbade their being employed after nine in the 
 evening and before six in the morning, the New 
 York Court of Appeals declared it unconstitu- 
 tional, and a malign inspiration induced them to 
 state in their opinion that the time had come for 
 courts "fearlessly to interpose" a barrier against 
 
1 8 Introduction 
 
 such legislation. Fearlessly!, The fact was that 
 the courts "fearlessly" condemned helpless women 
 to be worked at inhuman toil for hours so long 
 as to make it impossible that they should retain 
 health or strength; and "fearlessly" upheld the 
 right of big factory owners and smaH sweat-shop 
 owners to coin money out of the blood of wretched 
 girls whom they worked haggard for their own 
 profit. To protect such wrong-doers was, of course, 
 an outrage upon the decent and high-minded 
 owners who did not wish to work the women 
 and girls to an excessive degree, but who were 
 forced to do so by the competition of the callous 
 factory owners whom the court, by this decision, 
 aided and abetted in their wrong-doing. Court 
 after court in other States, including so conserva- 
 tive a State as Massachusetts, have declared 
 such a law constitutional; yet the Court of Ap- 
 peals in New York declared the law unconstitu- 
 tional. No popular majority vote could ever be 
 more inconsistent with another popular majority 
 vote than is the record of the Court of Appeals 
 in the State of New York in this matter, when 
 compared with the record of other courts in other 
 States. 
 
Introdtiction 19 
 
 Fourth. — ^The Workingmen's Compensation Act, 
 but a year or two ago, was declared unconstitu- 
 tional by the New York court, on account of its 
 (alleged) taking of property without due process 
 of law, although a directly reverse decision on 
 precisely similar language in the constitution, had 
 been rendered not only by the State courts of 
 Iowa and Washington, but by the Supreme Court 
 of the United States. This decision illustrates in 
 ideal fashion what I mean when I say that human 
 rights stand above property rights when the two 
 conflict. Here again it is worth while to point 
 out that no vote by popular majority could ren- 
 der the constitution more uncertain of construc- 
 tion than the Court of Appeals rendered it by 
 making this decision, in the teeth of the decision 
 of the Supreme Court of the United States and of 
 other State courts; and throughout our history 
 no decision by a majority of the people in any 
 State has shown more flagrant disregard of the 
 elementary rights of a minority. No popular vote 
 in any State has ever more flagrantly denied jus- 
 tice than did this decision by the highest court in 
 the State of New York but a year or two ago. 
 
 Now in these instances arising in New York, 
 
20 Introduction 
 
 the people of the State of New York, under the 
 plan I propose, after due deliberation, would have 
 had an opportunity to decide for themselves 
 whether the constitution, which they themselves 
 made, should or should not be so construed as 
 to prevent their doing elementary justice in those 
 matters. My proposal is merely to give the peo- 
 ple an effective constitutional weapon for use 
 against wrong and injustice. 
 
 Our opponents in effect take the position that 
 the people have not the right to secure workmen's 
 compensation laws, or laws limiting the hours of 
 labor for women in factories, or laws protecting 
 workers from dangerous machinery, or laws mak- 
 ing conditions decent in tenement houses. It is a 
 mere sham for any man to say that he approves 
 of such laws, so long as he upholds the courts in 
 declaring them unconstitutional, and fails to ap- 
 prove thorough-going action which will give the 
 people power, with reasonable speed, to upset such 
 court decisions and secure real and substantial 
 justice. 
 
 In a recent article, Professor Scofield has shown 
 that the State courts of Illinois have behaved no 
 better than the State courts of New York in these 
 
Introduction 21 
 
 matters. He quotes the emphatic criticism of 
 these decisions of which I complain, by the late 
 Dean Thayer of the Harvard Law School. He 
 says that these decisions make of the law a 
 weapon with which the strong can strike down the 
 weak; that they make of the law not a shield to 
 protect the people, but a sword to strike down the 
 people; that they are arbitrary, and that our pro- 
 test against them represents one phase of the strug- 
 gle against arbitrary power and in favor of the 
 law of the land; and he sees that my proposal is 
 merely a constitutional method to restore to the 
 State law-making bodies the power which the 
 Supreme Court of the nation says belongs to 
 them. 
 
 There are sincere and well-meaning men of timid 
 nature who are frightened by the talk of the "tyr^ 
 anny of the majority." Those worthy gentlemen 
 are nearly a century behind the times. It is true 
 that De Tocqueville, writing about eighty years 
 ago, said that in this country there was great 
 tyranny by the majority. His statement may 
 have been true then, although certainly not to 
 the degree he insisted, but it is not true now. 
 That profound and keen thinker, James Bryce, in 
 
22 Introduction 
 
 "The American Commonwealth," treats of this in 
 his chapter on the "tyranny of the majority," by 
 saying that it does not exist. His own words are 
 that: 
 
 It is no longer a blemish on the American sys- 
 tem, and the charges against democracy from the 
 supposed example of America are groundless. The 
 fact that the danger once dreaded has now disap- 
 peared is no small evidence of the recuperative 
 forces of the American government and the healthy 
 tone of the American people. 
 
 I shall protest against the tyranny of the ma- 
 jority whenever it arises, just as I shall protest 
 against every other form of tyranny. But at 
 present we are suffering in no way from the tyr- 
 anny of the majority. We suffer from the tyranny 
 of the bosses and the special interests — that is, 
 from the tyranny of minorities. Our respectable 
 opponents among the leaders of business and the 
 bar are acting as the servants and spokesmen of 
 the special interests and are standing cheek by 
 jowl with the worst representatives of politics, 
 when they seek to keep the courts in the grasp 
 of privilege and of the politicians; for this is all 
 they accomplish when they prevent them from 
 
Introduction 23 
 
 being responsible in proper fashion to the people. 
 These worthy gentlemen speak as if the judges 
 were somehow imposed on us by Heaven, and 
 were responsible only to Heaven. As a matter of 
 fact, judges are human just like other people, and 
 in this country they will either be chosen by the 
 people and be responsible to the people, or they 
 will be chosen by and be responsible to the bosses 
 and the special interests and the political and 
 financial beneficiaries of privilege. In che course 
 they are taking, the great corporation lawyers are, 
 in some cases certainly unconsciously, and in other 
 cases I fear consciously, acting in behalf of the 
 special interests, political and financial, and in 
 favor of privilege, and against the interests of the 
 plain people, and against the cause of justice and 
 of human right. 
 
 ' I wish to keep the courts independent. But 
 at present the independence of the courts is far 
 more frequently menaced by special privilege than 
 by any popular tyranny. I wish to protect them 
 against both. The safe way to prevent popular 
 discontent with the courts from becoming acute 
 and chronic, is to provide the people with the 
 simple, direct, effective, and yet limited power to 
 
24 Introduction 
 
 secure the interpretation of their own constitu- 
 tion in accordance with their own dehberate judg- 
 ment, by the method I have above outlined. 
 
 Theodore Roosevelt. 
 
 Sagamore HiLt, 
 July I, 1912. 
 
MAJORITY RULE AND THE JUDICIARY 
 
I 
 
 WHEN THE PEOPLE DISCUSS THEIR 
 COURTS 
 
 For what may be said to be the third time in 
 the constitutional history of the United States, the 
 relation of the courts to the people has become a 
 general subject of definite consideration by the 
 people. For the third time in the political history 
 of the United States, the relation of the people to 
 the courts has become the paramount issue of a 
 campaign for the presidential nomination, and 
 probably for the presidential election as well. 
 Evidences are on every hand that the people have 
 determined themselves to scrutinize, and, if need 
 be, to change such elements of defect as they 
 may discover in the American judicial system. 
 The people have resolved themselves to sit in 
 judgment upon their own institutions for the ad- 
 ministration of justice, as estabUshed by their or- 
 ganic law, and it is accordingly to "the ultimate 
 sovereignty of the whole people," and not merely 
 to organizations of the bar or even to the repre- 
 sentative assemblies of government, that observa- 
 tions in defence or criticism must now be addressed. 
 
 27 
 
28 Majority Rule and the Judiciary 
 
 This recurrence of a period of popular discus- 
 sion of the judiciary is neither new nor surprising. 
 The relation of the courts to the people is a per- 
 ennial subject of consideration in any government 
 in which the people have a voice. Particularly is 
 this true under a federal form of government, 
 where the first question asked as to any legisla- 
 tive proposal concerns its permissibility under the 
 written constitution, and the determination of 
 what ought to be done is required to await a con- 
 sultation of precedents as to what may be done. 
 Periods in which, as now, there is a general pub- 
 lic demand for remedial legislation along human- 
 itarian lines, as called for by changed and perhaps 
 not-before-anticipated conditions, therefore be- 
 come periods of especial popular interest in the 
 courts, and in the restrictions which the courts 
 place on what the people wish to accomplish 
 through the medium of their government. 
 
 This fact is perhaps but another aspect of Dr. 
 Dicey's brilliant generalization that "Federalism 
 substitutes litigation for legislation," ^ and his accu- 
 rate observation that, under the American consti- 
 tutional system, the most important issues of sov- 
 ereign powers and poUcies are permitted to depend 
 on the outcome of private suits between individ- 
 
 ' "The Law of The Constitution," by A. V. Dicey, K.C., page 
 I7S (7th Ed). 
 
Majority Rule and the Judiciary 29 
 
 uals — issues that in any other government could 
 not be raised in any court at all. Whether it is 
 true, as Governor Simeon E. Baldwin, formerly 
 the highest judicial ofl&cer of Connecticut, and a 
 staunch defender of the judicial power as cur- 
 rently exercised in the United States, recently ad- 
 mitted,^ that "this right of a court to set itself up 
 against a legislature ... is something which no 
 other country in the world would tolerate," it is 
 not the purpose of this volume, at this point or 
 hereafter, to discuss. Equally foreign to the pur- 
 pose of this volume is the discussion recently re- 
 newed with so much vigor,^ whether it was the 
 intention of the framers of the Federal constitution 
 to vest the -Supreme Court with power to decide 
 the "constitutionality" of acts of Congress and 
 whether there was adequate legal and historical 
 basis for the decision in Marbury v. Madison * that 
 such power had been vested. Certain it is that 
 this power exists and that few would take it away, 
 but certain Hkewise that this power of the Ameri- 
 can courts to prevent the enforcement of measures 
 
 ' "The American Judiciary," by Simeon E. Baldwin, pages lOJ, 
 104 (1905). 
 
 * "The Power of Federal Judiciary Over Legislation," by J. 
 Hampden Dougherty (1912); "The Supreme Court and the Con- 
 stitution," by Charles A. Beard, (1912). Cf. Address oi Chief Justice 
 Walter Clark, of North Carolina, before the Law School of the Uni- 
 versity of Pennsylvania, on April 27, 1906, reprinted in the Congres- 
 sional Record for July 31, 1911. 
 
 » I Cranch's (U. S.) Reports, page 137. 
 
30 Majority Rule and the Judiciary 
 
 passed by the legislature and approved by the 
 executive, if that legislation falls under the ban 
 either of the clear constitutional mandate or the 
 court's general conception of what is fundament- 
 ally fair and just in the premises, makes it inevi- 
 table that when the people discuss legislation, they 
 also discuss the limitations raised by the recorded 
 decisions of the courts. Whenever the barometer 
 of the American conscience runs high, and the 
 electorate resolves upon efforts for the relief of 
 acute conditions that have come with economic 
 and social changes, the public concern with this 
 distinctive power of the American courts is inten- 
 sified, and the leaders of public thought find them- 
 selves summoned to discuss and justify before the 
 people the orderly progress of our constitutional 
 system. 
 
 A better understanding of the present discus- 
 sion will be promoted by a brief analysis of the 
 issues which have precipitated similar discussion 
 in the past. More than a mere coincidence is the 
 certain similarity between them. The first period 
 of especial popular concern with the courts came 
 soon after the founding of the government. As 
 population pushed its way westward from the At- 
 lantic coast and new commercial and industrial 
 conditions sprang into being, many persons wished 
 that the new government might minister to their 
 
Majority Rule and the Judiciary 3 1 
 
 new needs, in ways that the original colonies had 
 not, and the new States eould not, and in ways 
 that had not been contemplated as within the 
 chartered powers of the repubhc. The question 
 became, in substance: 
 
 Should the Federal constitution be construed so as 
 to enable the Federal government to make needed pub- 
 lic betterments, fulfil its inherent functions for the 
 public good, as the need might arise, and enforce a 
 degree of conformance by the State governments to 
 the standards laid down in the Federal instrument as 
 construed by the Federal Supreme Court? 
 
 That proposal aroused a very great deal of mo- 
 mentary antagonism. The leaders who had op- 
 posed it as a matter of explicit constitutional man- 
 date, when the constitution was being formulated, 
 fought it no less vigorously when it was suggested 
 as a rule of constitutional interpretation. Two 
 presidents of the United States openly used their 
 power and patronage to enforce a negative result.^ 
 Some of the most eminent members of the bench 
 and bar — for example, Mr. Justice Gibson, of 
 Pennsylvania, a truly great jurist — fought long^ 
 and bitterly against the progressive standards de- 
 clared by Chief Justice Marshall in the Supreme 
 
 ' "The American Commonwealth," by James Bryce, vol. I, pages 
 268 to 270 (revised ed.). 
 
 " Eakin i/. Raub, 12 Sergeant and Rawle's Reports, page 330 
 (1825). 
 
32 Majority Rule and the Judiciary 
 
 Court of the United States. In the end, how- 
 ever, the new trail blazed by the nation's court 
 became the accepted constitutional path. The 
 people in their sober sense wished their govern- 
 ment to be living and vital, not dead and unre- 
 sponsive. 
 
 The second period of wide-spread popular criti- 
 cism of the courts came in the middle of the last 
 century. The old wine was fomenting in new bot- 
 tles, and the question was, in effect: 
 
 Should the Dred Scott decision — a perfectly good 
 decision, doubtless, in law, judged by legal precedents 
 and merely legal theories of the scope of the constitu- 
 tion — be permitted to stand permanently in the way 
 of the enlightened public conscience of the time, or 
 should existing precedents as to the rights of private 
 property and the claimed prerogatives of some of the 
 State governments be required to give way, in an or- 
 derly fashion, to the prevailing moral standards and 
 the changed ideas as to what was the just social atti- 
 tude toward hitherto recognized forms of private prop- 
 erty and private right? 
 
 The court said it could only construe the letter 
 of the law as it found it. A great mass-meeting 
 was held in New York City, at which leaders of 
 the city's financial and professional Hfe pronounced 
 the Dred Scott decision perfectly good law, and de- 
 plored all attacks upon it. "Somebody has got 
 to reverse that decision," shouted Lincoln to 
 
Mqjority Rule and the Judiciary 33 
 
 Douglas, "since it is made, and we mean to re- 
 verse it, and we mean to do it peaceably." But 
 the court's disregard of the prevaiHng moral stand- 
 ards had provoked too far-reaching consequences 
 before the processes of peaceable reversal could 
 come about, and the overthrow of the Dred Scott 
 decision took place under an Appomattox apple- 
 tree and not at the polls. 
 
 Now we are at the threshold of a third period 
 of marked popular discussion of the judiciary. 
 There is, undoubtedly, less of rancor and resent- 
 ment, less of hate and impatience, and far more 
 of good humor and self-restraint, in the present 
 discussion than there was in that of the past. 
 Men have a respect now for the institution of the 
 American judiciary that was plainly lacking in an 
 earHer day. Present discussion and criticism is 
 generally of a constructive tenor, and the leader 
 who has nothing but denunciation and reproach 
 to offer usually receives httle heed from the masses 
 of the people. Yet the fact cannot be escaped 
 that there is being said much which is unfair and 
 destructive, and that there is being advocated 
 much which is drastic and dangerous, and that 
 there is a wide-spread popular impatience with the 
 barriers which at least some of the State courts 
 have placed in the way of salutary measures of 
 
34 Majority Rule and the Judiciary 
 
 social reform. For example, in an article contrib- 
 uted by Mayor William J. Gaynor, of New York 
 City, to the April, 191 2, issue of Bench and Bar, 
 the jurist who served for many years with much 
 distinction on the bench of the Supreme Court of 
 the State of New York and now occupies a posi- 
 tion of executive responsibility second to but one 
 in the United States, asks and answers a question 
 now in the minds of many, as follows: 
 
 Do the courts in this country stand in the way 
 of social and economic progress? . . . Yes, they 
 do, and have done so for a long time. But this 
 is nothing new. In all ages, and pretty much 
 everywhere, the courts have tried to apply their 
 legal rules of thumb to social, commercial, and 
 economic matters, always with signal failure, and 
 generally with injury to industry, commerce, and 
 the social good. Nothing is more distressing than 
 to see a bench of judges, old men, as a rule, set 
 themselves against the manifest and enlightened 
 will of the community in matters of social, eco- 
 nomic, or commercial progress. . . . The just feel- 
 ing pervading the community is that a bench of 
 judges is no more competent than the legislature 
 to decide as to the wisdom or necessity of laws 
 for the health, safety, and progress, and the ma- 
 terial and moral welfare, of the community. That 
 is a matter of enlightened opinion which the courts 
 have no right to arrogate unto themselves. 
 
 Basic concepts of the law are being challenged 
 and interrogated — Magna Charta itself is sum- 
 
Majority Rule and the Judiciary 35 
 
 moned to the bar of a public opinion insistent on 
 fixing the responsibiUty for injustice which seems 
 to be safe-guarded by institutions reared to stamp 
 it out. To quote again: Professor Edward S. 
 Corwin of Princeton University recently declared : ^ 
 
 The truth of the matter is that the modern con- 
 cept of due process of law is not a legal concept at all; 
 it comprises nothing more or less than a roving com- 
 mission to judges to sink whatever legislative craft 
 may appear to them to be, from the stand-point of 
 vested interests, of a piratical tendency. 
 
 Mere criticism of the judiciary, or of any other 
 agency of government, is, of course, to be deplored 
 and resisted. Mere denunciation is neither an 
 American method nor an effective method of deal- 
 ing with problems of institutional reform. The 
 fact, nevertheless, remains as to what the people 
 feel, and the men who have voiced this criticism 
 from the vantage point of honorable positions in 
 public life have only spoken what was already, to 
 an increasing extent, in the hearts and minds of 
 the people. Any one who comes into close con- 
 tact with numbers of people — in trades-unions, in 
 organizations like the Patrons of Husbandry or 
 the Farmers' Union, or in the give and take of 
 small or large business transactions — realizes this 
 full well, and no number of resolutions from bar 
 
 ^American Political Science Review, May, 1912. 
 
36 Majority Rule and the Judiciary 
 
 •associations or pronouncements from disappointed 
 political leaders can change the essential fact. 
 The people believe in their courts, they admire 
 and love many of their judges, yet they feel, 
 vaguely, perhaps, but persistently, that something 
 is wrong about a judicial system under which a few 
 men obstruct the will and the needs of the many 
 on matters which seem to involve no question of 
 substantial right at all, so far as individuals are 
 concerned, but only divergences • of view as to 
 what is expedient and proper so far as society as 
 a whole is concerned. Members of the bar, in 
 common with all others charged with responsibil- 
 ity for the leadership of public opinion, will fulfil 
 their honorable and traditional positions in pub- 
 lic affairs only if they avoid, on the one hand, the 
 radicalism which would do violence to essential 
 elements in our judicial and constitutional sys- 
 tem, and, on the other hand, avoid also the mis- 
 taken conservatism which led so many to stand 
 stanchly by the Dred Scott decision until the 
 fields of Virginia ran red with blood. The discus- 
 sion should rather be approached in the equable 
 spirit indicated by Mr. Ehhu Root in his address 
 before the last annual meeting of the New York 
 State Bar Association,^ in January, 191 2: 
 
 ^U. S. Senate Document No. 271, Sixty-second Congress, second 
 session (1912), reprinted on January 22, 1912, at the request of 
 Senator Smoot. . 
 
Majority Rule and the Judiciary 37 
 
 One other thing we can all do, and that is to 
 encourage and exhibit the true spirit of temper- 
 ate and patriotic consideration, which is the pri- 
 mary requisite to success in working out the prob- 
 lems of self-government. Some of the recent dis- 
 cussions of judicial conduct have been dignified and 
 temperate expressions of reasoned opinion which we 
 must respect, though we may not agree with it; such, 
 for instance, as the recent article by Mr. Roosevelt 
 in The Outlook (referring to Mr. Roosevelt's earli- 
 est advocacy^ of the direct popular "review" of 
 the "constitutionality" of "police power" stat- 
 utes). Some other expressions, however, have 
 been rather exhibitions of violent temper and 
 appeals to prejudice, imputations of sinister mo- 
 tive, and incitements to hatred. Such expressions 
 we may not hesitate to condemn, and I am glad 
 to beheve that the condemnation will find a re- 
 sponse among the great body of the American 
 people. 
 
 ' "Judges and Progress," editorial by Theodore Roosevelt: The 
 Outlook, January 6, 1912, page 40. 
 
II 
 
 THE PRESENT ISSUE AS TO THE 
 JUDICIARY 
 
 It remains to characterize the present agitation 
 as to the courts, and to define the fundamental 
 issues therein, in the Hghtof what has gone before. 
 Gradually, but none the less surely, fair-minded 
 members of the bar and thoughtful pubhcists are 
 coming to realize that the present agitation is not 
 the product of an ephemeral unrest or a blind dis- 
 content with established institutions, nor yet an 
 angry repudiation of the reasonable restraints 
 which lie at the basis of the social order. Only 
 the shallow and the perverse can say that the 
 present discussion reflects any such thing. Its 
 causes are deep-seated and fundamentally sound; 
 its recurrence in our political life and legal evolu- 
 tion is as normal and wholesome as it is inevitable. 
 Only the unreasoned, the malicious, the hateful, in 
 present-day commentary on the courts is to be 
 deplored — the rest is a healthy manifestation of 
 the capacity of the people for self-government, for 
 
 we see issues that were productive of good in the 
 
 38 
 
Majority Rule and the Judiciary 39 
 
 past now appearing in new phases to lead the 
 way to greater national progress and stability. 
 
 The future historian of the law, if he correctly 
 catches the spirit of our people in this hour, will 
 accurately describe the present agitation as the 
 deliberate demand of the people that, on the ques- 
 tion of what their government may and should 
 do for the amelioration of social or economic needs, 
 hereafter the mature sentiment of the majority of 
 the people shall prevail, if need be, against what a 
 court may think the majority of the people think, 
 or ought to think, should be done. In other words. 
 
 The present agitation is an effort to make the per- 
 sistent sentiment of the preponderant majority of the 
 people the ultimate and effective factor in determining 
 the scope of the altogether elastic "police" or regula- 
 tive powers of the State governments. 
 
 Perhaps even more accurately, as will presently 
 be discussed in some detail, the current agitation 
 may be described as 
 
 An effort to bring up to the hroad and progressive 
 rules and methods of interpretation applied hy the 
 Supreme Court of the United States, any State courts 
 which may have considered themselves unable to ac- 
 cede to the social morality and prevailing public 
 opinion of the time, and have felt constrained to in- 
 terpose narrow and outgrown conceptions of the 
 "police power" and "due process" to bar present-day 
 measures for the relief of present-day conditions. 
 
40 Majority Rule and the Judiciary 
 
 Anything which seeks or serves the supremacy 
 of the social conscience in matters of the humani- 
 tarian activities of government is in accord with 
 what is popularly called "the progressive move- 
 ment" in American political aflFairs. Anything 
 which tends unreasonably to restrain or perma- 
 nently to bar the supremacy of the sovereign so- 
 cial conscience falls under the ban of popular chal- 
 lenge and disapproval. The line is being clearly 
 drawn, as to men and institutions, and the search 
 for safe and constructive remedies will be un- 
 availing unless this ambition of the people to 
 make their government actively minister to social 
 justice is accepted as the test of every proposal 
 for judiciary reform. 
 
 There are, at times, under discussion proced- 
 ural matters relating to the law's delays and 
 technicalities, which are not embraced by the 
 above statement, and there have been suggested 
 several constitutional changes, in respects affect- 
 ing the judiciary, which do not seem necessary or 
 wise for the effectuating merely of the ends above 
 stated, but the proposition formulated may be 
 said to represent the crux of the present agitation. 
 Without belittling any current proposals for the 
 elimination of the law's delays and the simplifica- 
 tion of procedure, it remains true that they offer 
 substantially nothing for the relief of the condi- 
 
Majority Rule and the Judiciary 41 
 
 tion responsible for the present outcry, viz., what 
 Mayor Gaynor so tersely called' "the just feeling 
 pervading the community" that some of the courts 
 have seen fit "to arrogate unto themselves," the 
 power to nuUify the exercise of the legislative 
 power and thwart "the will of the ultimate sov- 
 ereignty" of the people themselves, as to matters 
 clearly representing no fundamental right at all, 
 but only judicial disagreement with the legisla- 
 tive discretion and judicial reversal of the mani- 
 fest political philosophy of the people. 
 
 ' Bench and Bar, April, 1912, page loj. 
 
Ill 
 
 THE POLICE POWER AS CONSTRUED BY 
 STATE AND FEDERAL COURTS 
 
 To understand this problem of the proper rela- 
 tion of the people to the scope of the regulative 
 powers of their government, it is necessary first 
 to state and analyze the problem and see how it 
 arises. 
 
 Practically all of the provisions of the State and 
 Federal constitutions are, necessarily, what may 
 for convenience be termed "specific" provisions. 
 That is to say, they are definite and understand- 
 able expressions of the popular will, now or at 
 the time they were adopted by the people; their 
 meaning is ascertainable with reasonable certainty 
 — from their own phraseology or from their con- 
 text — under a layman's inspection, or, at most, 
 under accepted rules of legal interpretation; and 
 they clearly and specifically empower or forbid 
 some department of government, or the inhabit- 
 ants of some governmental unit, to do a definite 
 and concrete thing or category of things. Such 
 provisions no one suggests but that the courts 
 
 should be permitted to interpret and apply; few 
 
 42 
 
Majority Rule and the Judiciary 43 
 
 would suggest but that the courts should be per- 
 mitted to continue to declare "void" any legisla- 
 tion which contravenes them. Therefore, it may 
 be said that constitutional provisions of this ex- 
 plicit and "specific" character are in nowise in- 
 volved in the present discussion. 
 
 To illustrate: Section 18, Article I, of the New 
 York State constitution provides, as do similarly 
 the constitutions of several other States, that 
 
 The right of action now existing to recover dam- 
 ages for injuries resulting in death shall never be 
 abrogated, and the amount recoverable shall not 
 be subject to any statutory limitation. 
 
 This is a simple, definite proposition, with an 
 unvarying and unvariable meaning under any 
 meaning of interpretation, and, while judges, the 
 legislature, or the people might now deem this 
 provision no longer the safeguard to wage-earners 
 that it was originally devised to be, no one would 
 suggest that it means anything but what it says, 
 or that it should be dealt with in any manner but 
 the accustomed method of amendment or repeal, 
 if no longer desired by the majority of the people. 
 The provision was inserted in the State constitu- 
 tion, long ago, as a measure of protection to work- 
 ingmen, to guard against the enactment of stat- 
 utes such as corporate interests secured in some 
 
44 Majority Rule and the Judiciary 
 
 States, limiting the amount which might be re- 
 covered by the estates of persons killed in the 
 course of their employment. The adoption of 
 such a constitutional provision markted the stand- 
 ard of progressive sentiment at that time, as to the 
 degree of protection to be afforded to workingmen 
 and their families. At the present time, of course, 
 the enlightened sentiment of many persons favors 
 the enactment of workingmen's compensation stat- 
 utes, in which an essential element is the waiving 
 of the common-law right of recovery which sounds 
 in neghgence. In so far as the constitutional pro- 
 vision quoted stands in the way of the establish- 
 ment of a system oi compulsory workingmen's com- 
 pensation,^ it has thus become now an obstruction 
 to the very sentiment which originally wag respon- 
 sible for its embodiment in the organic law. Be- 
 cause it represents, however, a concrete expres- 
 sion of the fundamental will of the people, and 
 bears no imputation that its application may be 
 a mere substitution of the political philosophy of 
 the judges for the social conscience of the people, 
 
 ^^J.a consequence of this provision, the commission which framed 
 the statute held unconstitutional in Ives v. South Buffalo Ry. Co. 
 (201 New York Reports, page 271), was compelled to provide that 
 the act should not be deemed to abrogate or destroy any right of action 
 then existing, and that the plan of compensation created by the act 
 should apply only in cases where the workingman waived his existing 
 rights of action by accepting compensation under the act or by in- 
 stituting proceedings under the act. 
 
Majority Rule and the Judiciary 45 
 
 this provision and those similarly "specific" are 
 not within the scope of the present discussion. 
 The process of repeal is, as to them, direct and 
 effectual, if the provision is no longer desired. 
 
 Reference to another provision of this character 
 may be helpful. Section 2 of Article I of the New 
 York State Constitution provides, as do the con- 
 stitutions of several other States, that 
 
 The trial by jury in all cases in which it has been 
 heretofore used shall remain inviolate forever. 
 
 The Workingmen's Compensation Act signed by 
 Governor Charles Evans Hughes was attacked as 
 unconstitutional because violative of this section, 
 as well as the section which will be next referred 
 to. It was contended that the provisions of the 
 act relative to the "scale of compensation "Jand^the 
 "settlement of disputes" between employer and 
 employee as to payments under the act, were con- 
 trary to Section 2, Article I, in that the "scale of 
 compensation" was designed to be "automati- 
 cally" operative, and no provision was made for 
 a jury trial as to the employee's right to recover 
 anything from the employer, or the proper amount 
 of such recovery. But this presented no question 
 as to what the constitutional provision meant — 
 that was clear. The question was what the act 
 meant — ^whether its somewhat artful language said 
 
46 Majority Rule and the Judiciary 
 
 that there should or should not be a trial by jury 
 as to such issues. Upon this question of what the 
 act provided, the Court of Appeals was very much 
 divided,^ and if the court had been compelled to 
 decide this point in order to render a decision in 
 the case, it would be difficult to indicate the prob- 
 able position of a majority of the judges; but the 
 court found no difl&culty in saying, without a dis- 
 sent, that 
 
 If these provisions are to be construed as defi- 
 nitely fixing the amount which an employer must 
 pay in every case where his liability is established 
 by statute, there can be no doubt that they consti- 
 tute a legislative usurpation of one of the functions 
 of a common-law jury. 
 
 Thus it may be taken to be the law in New York 
 that Section 2 of Article I of the State constitution 
 stands squarely in the way of any system of work- 
 ingmen's compensation under which there is an 
 elimination of a trial by jury in favor of "auto- 
 matic" computation, in the statute or pursuant to 
 it. Yet no one would seriously suggest that any 
 other course should be, or should have been, pur- 
 sued than to amend the constitutional provision, 
 should it be desired to put in force a statute which 
 abrogates trial by jury in this class of cases. No 
 one would suggest that the court should construe, 
 
 ' 201 New York Reports, pages 291 and 292. 
 
Majority Rule and the Judiciary 47 
 
 or the electorate be permitted to declare, that ex- 
 pHcit and unequivocal language means anything 
 else than what it says, fairly interpreted. When 
 the meaning which the court puts upon the lan- 
 guage used is an enforcement of that which the 
 people have, by their direct vote thereon, in terms 
 and understandingly declared to be their sovereign 
 will, the course at once most practicable and most 
 consistent with constitutional government, is that 
 the people shall proceed to make a new statement 
 of their will as to that specific matter, if the old is 
 no longer satisfactory. Even when the specific 
 provision adopted by the people is ambiguous and 
 capable of more than one interpretation, the ques- 
 tion is still one of the legal interpretation of phrase- 
 ology which was intended to be sufficient "within 
 the four corners of the instrument," and at most 
 involves no extrinsic inquiry beyond that as to the 
 intention of its framers. 
 
 On the other hand, the Federal constitution, 
 and most of the State constitutions, contain at 
 least one provision which has no very specific and 
 definite meaning in the language used in the con- 
 stitutions, but has a meaning only under the as- 
 certainment of various facts and circumstances 
 wholly outside the instrument, so that its mean- 
 ing concededly may, and necessarily does, vary 
 widely with the jurisdiction, the litigation, the 
 
48 Majority Rule and the Judiciary 
 
 locality, and the time. No argument is needed to 
 emphasize how different a matter is the judicial 
 "interpretation" and application of this provision 
 from that of those just quoted. The legislative 
 act to be tested by it may be ever so clear and 
 definite, but this proviso does not mean anything 
 definite or concrete at all, in and of itself, or con- 
 sidered in connection with anything else in the 
 constitution. It represents no concrete expres- 
 sion of the popular will as to any particular situa- 
 tion, and it has a meaning and an applicability 
 only by such standards of right and propriety as 
 may be read into it by any agency of government 
 entrusted with its interpretation. The reference 
 is, of course, to the proviso of " due process " con- 
 tained in the so-called "Bill of Rights," which has 
 come down to us from Magna Charta. 
 
 Article V of the Amendments to the Constitu- 
 tion of the United States provides that 
 
 No person shall be deprived of life, liberty, or 
 property without due process of law. 
 
 The Fourteenth Amendment makes the enforce- 
 ment of this constitutional guaranty a sovereign 
 Federal function by providing that 
 
 No State shall . . . deprive any person of life, 
 liberty, or property without due process of law. 
 
Majority Rule and the Judiciary 49 
 
 This same prohibition upon the powers of the 
 States is, however, also contained in most of the 
 State constitutions. For example: Section 6 of 
 Article I of the Constitution of the State of Ne>v 
 York, provides that 
 
 No person shall . . . be deprived of life, liberty, 
 or property without due process of law. 
 
 The language of the constitutional proviso which 
 the national government and its Supreme Court 
 are authorized to enforce against the States ,is 
 thus identical with that which the States are au- 
 thorized to enforce against themselves. Under the 
 American judicial system, a State court, in pass- 
 ing upon the validity of a State statute, considers 
 it in the light of the provisions of the Federal as 
 well as the State constitution, and may consider 
 the statute to be under the ban of either or both. 
 The Federal court, through the Fourteenth Amend- 
 ment, may apply to State legislation the acid test 
 of the same "due process" clause as the State 
 courts construe. Has the identical language been 
 accorded the same or similar interpretation ? Has 
 the Federal interpretation been followed in all of 
 the States? 
 
 Unfortunately, as to a considerable number of 
 the States, especially the older and more con- 
 servative States, the answers to these questions 
 
50 Majority Rule and the Judiciary 
 
 must be in the negative. Few will doubt that 
 the sentiment of the people, as well as the judg- 
 ment of most experts in the law, cordially ap- 
 prove the broad and progressive pronouncements 
 that have lately been made by Holmes and Moody 
 and Hughes and White, and the other giants of 
 the nation's great court. There is nothing which 
 inspires a larger pride or firmer confidence in re- 
 publican institutions than to trace in the reported 
 decisions that court's splendid responsiveness to 
 the changed economic and social needs of our 
 time. Unfortunately, at least some of the State 
 courts have found themselves unable, for reasons 
 of controlling precedent or for other reasons — 
 for the present it will be sufficient to say that no 
 aspersion upon any court or judge is intended by 
 anything contained in these pages — to at all keep 
 pace with the progress of the people's court, but 
 rather, as Mayor Gaynor pointed out in the mag- 
 azine contribution already referred to,^ have ap- 
 peared to place themselves resolutely across the 
 pathway of that progress. Right here is the re- 
 sponsibility for what sometimes seems, at first 
 blush, to be a clamor against the courts them- 
 selves. 
 
 It is not the purpose here to multiply or mag- 
 nify instances of what is meant. The cases are 
 • Bench and Bar, April, 1912, page 102. 
 
Majority Rule and the Judiciary 51 
 
 familiar in which, for example, New York statutes 
 regulating the hours of labor in a given trade or 
 the conditions of labor in particular classes of in- 
 dustrial establishments have been copied or closely 
 followed by other commonwealths, and as so en- 
 acted in other States have been upheld as "con- 
 stitutional," both by the highest State court and 
 by the United States Supreme Court; yet, when 
 tested in the courts of the State of their first en- 
 actment, have been held "unconstitutional" by the 
 courts of New Ydrk State, with no possible appeal 
 to the Supreme Court of the United States from 
 a decision adverse ^ to the constitutionality of the 
 statute, and, therefore, with the result that what 
 is perfectly "constitutional" in one State, under 
 the "due process" clause of the Federal and State 
 constitutions, is "unconstitutional" and nugatory 
 in another, the State of its original enactment, 
 under the identical constitutional provisions! It 
 is hard to explain, to even the most intelligent 
 of citizens, why beneficial legislation which the 
 Supreme Court of the United States has held to 
 
 'Under the Judiciary Act, a decision in the highest Appellate 
 Court of a State, sustaining a right asserted under the Federalj con- 
 stitution, does not present a question which may be carried to the 
 Federal Supreme Court for review. Thus it comes about that a 
 State decision adverse to the constitutionality of a statute becomes 
 thereby the settled law of that State, and a precedent in other States, 
 while a decision javorable to the statute may be taken to Washington 
 for final review. 
 
52 Majority Rule and the Judiciary 
 
 be "constitutional" when enacted by Oregon or 
 Kansas, should be left nugatory in New York on 
 the theory that it violates the very provision of 
 the Federal and State constitution which the high- 
 est court of the land has specifically held it not to 
 violate. 
 
 The circumstances of this wide divergence in 
 what should be the fundamental law of the land 
 would seem to be these: 
 
 The Supreme Court of the United States has 
 given a broad, vital, living interpretation to the 
 scope of the "police power" as affected by the 
 "due process" clause. 
 
 -■ Many of the courts of final appeal in the sev- 
 eral States have found themselves unable, or un- 
 willing, under the established precedents that are 
 behind them in their respective jurisdictions, to 
 do any such thing. 
 
 How this has come aoout may be briefly traced. 
 Without attempting any precise definition of the 
 "due process" clause, its requirements may, in 
 effect, be said to be these: 
 
 I. That a man's "Hfe, liberty, or property" 
 shall not be "taken" except by procedure in ac- 
 cordance with the fundamental ideas of fairness 
 and regularity which obtain in Anglo-Saxon juris- 
 
Majority Rule and the Judiciary 53 
 
 dictions, which, of course, involves due notice, 
 an opportunity to be heard, and some regularity 
 of course of action.^ This and this alone was the 
 original intent and meaning of the clause in ques- 
 tion — it was framed to prevent the executive branch 
 of government, i. e., the King or his representa- 
 tives from coming around and arbitrarily and phys- 
 ically seizing and carrying off, without the au- 
 thority of a parliamentary act and without notice 
 or hearing before any tribunal, a man's physical 
 property, such as his horse, his hoard of gold or 
 silver, or his suit of mail. The sug^stion that 
 this clause appHes to anything else, and espe- 
 cially that it restricts the legislative branch of gov- 
 ernment, is historically much more recent, as is 
 also the inclusion of the further requirement:^ 
 
 2. That "property" shall not be "taken" by 
 any legislative act which vio\a.tes fundamental ideas 
 of morality and justice, keeping in mind the para- 
 mount public interests which may be involved. 
 
 ^Farrar's "Report of the Argument in the Dartmouth College 
 Case," page 267; quoted with approval in Hurtado v. California, 
 110 United States Reports, page 516, at page 535. 
 
 ^That "due process," historically and as a legal concept, relates 
 only to procedure, and not at all to matters of the substantial justice 
 of the result reached by the procedure, is interestingly argued by 
 Jesse F. Orton in an article in The Independent for August, 1912, 
 his contention being that the "due process" requirement of the 
 Fourteenth Amendment has come to include the element of "just 
 compensation" only by a process of "judicial amendment of the con- 
 stitution." 
 
54 Majority Rule and the Judiciary 
 
 Rightly or wrongly, fortunately or foolishly, the 
 "due process" clause has been made to involve, 
 in this country, substantially the two requirements 
 above indicated. From the latter of these two 
 propositions, the so-called "police powers" inher- 
 ent in a government may be said to determine 
 their scope; that is to say, if a given legislative 
 proposal, not in conflict with any "specific" con- 
 stitutional prohibition, is also found, upon analy- 
 sis, not to "deprive" an individual of his "prop- 
 erty" in a way contrary to common standards of 
 justice and fairness, both as to the method of 
 doing it and the purpose for which it is done, the 
 legislation is deemed to come within the "police 
 power" and not to violate the "due process" 
 clause. 
 
 In the closing years of the eighteenth century 
 and the earlier years of the nineteenth, when our 
 Federal and State constitutions were being for- 
 mulated and given their almost equally formative 
 construction at the hands of the courts, it was 
 the basic social conception, first of the political 
 philosophers and later of the leaders in the law 
 itself, that government was based upon a shad- 
 owy "social compact," an agreement between 
 those to be governed and the agency of govern- 
 ment which they set up, and that under this 
 "compact" there is an elaborate reservation of 
 
Majority Rule and the Judiciary 55 
 
 powers — to the individual, the code of "natural 
 rights" which comprise the so-called constitutional 
 "guaranties", and in favor of the governmental 
 units combining in any sort of a federalism, the 
 so-called "reserved powers" of the people and 
 those units. Under a system whose basic prin- 
 ciple was the theory that the central government 
 had only such powers as the written charter had 
 expressly granted to it, and that all else had been 
 reserved to the States or to the people, it was 
 but natural that the highest court of the new fed- 
 eralism — composed as that court was of men 
 drawn from all parts of the land, and from the 
 ranks of those who were thus able to see that 
 new conditions brought legislative needs which 
 could not be ministered to by any arbitrary rule 
 of thumb, uniform for all localities and circum- 
 stances — should be more inclined than either the 
 State courts or even the Federal courts of Hmited 
 territorial jurisdiction, to a broad and flexible inter- 
 pretation of the regulative powers of government. 
 Compelled to a liberal and progressive interpre- 
 tation of constitutional provisions as the neces- 
 sary means of giving vitality and efficacy to the 
 national government itself, the nation's court be- 
 came almost irresistibly the exponent of princi- 
 ples of the construction of written constitutions 
 which, as Mr. Justice Moody said, made their 
 
56 Majority Rule and the Judiciary 
 
 "unchanging provisions . . , adaptable to the in- 
 finite variety of the changing conditions of our 
 national life." ^ 
 
 Likewise, in the earliest days of legislation and 
 government, the laissez faire economists had per- 
 meated society with the conception that govern- 
 ment should not interfere with the individual ex- 
 cept to conserve the health, physical safety, or 
 morals of society as a whole. In fact, under the 
 simple economic conditions and the limited social 
 conceptions then obtaining, health, safety, and 
 morals were about all "the great public needs," 
 the known ways bf ministering to these things 
 were simple and few, and there was little disposi- 
 tion to think that government had any very great 
 or necessary relation even to these three things. 
 Men and women cared very little whether their 
 government did much of anything for the health 
 or welfare of their neighbors, and the judicial 
 decisions and doctrines of the time reflected the 
 then prevaiUng morality and social standards. 
 But from this it followed naturally, in the devel- 
 opment of the law, that some of the State courts 
 considered themselves bound, under and by these 
 precedents, to take the position that they were 
 unable to make their decisions continue to reflect 
 
 'The Employers' Liability Cases, 207 United States Reports, 
 page S2I. 
 
Majority Rule and the Judiciary 57 
 
 the prevailing morality and changing social stand- 
 ards of the subsequent periods; that never there- 
 after could they sanction or uphold any regula- 
 tory proposal that could not be said to directly 
 concern and conserve the health, physical safety, 
 or morals of the people as first conceived and 
 passed upon; and that any regulatory law which 
 unfavorably affected the value of any property 
 or the earnings of any business of any citizen, 
 except a business "affected with a public interest"^ 
 or a business actually "outlawed" by statute, 
 was "in violation of fundamental ideas of moral- 
 ity and justice," unless it directly and equitably 
 conserved the pubhc health, physical safety, or 
 morals of the people as a whole. 
 
 Not only that view, but the original narrow 
 view — narrow because of the simplicity of the 
 conditions and the primitiveness of the social 
 standards out of which the precedents arose — of 
 the meaning and scope of the terms "health," 
 "safety," and "morals," became fixed in unchal- 
 lenged sway in many of the State courts. For 
 example, in the so-called Ives case,^ the New York 
 Court of Appeals felt required to take the posi- 
 tion that an act providing for the compensation 
 of workingmen injured in the course of their em- 
 
 'Munn V. Illinois, 94 United States Reports, page 113; Budd i/. 
 New York, 143 United States Reports, page 517. 
 2 201 New York Reports, page 271, at page 302. 
 
58 Majority Rule and the Judiciary 
 
 ployment in any of eight "inherently dangerous" 
 trades did not "relate to" their "health," "morals " 
 or "physical safety." And the eminent members 
 of the New York bar who framed the constitu- 
 tional amendment designed to "correct" and "re- 
 verse" the decision of the New York Court of 
 Appeals in the Ives case felt the necessity of mak- 
 ing a specific constitutional provision that "noth- 
 ing contained in this constitution" {i- e., the "due 
 process" clause) shall "limit the power of the 
 legislature to enact laws for the protection of the 
 lives, health, or safety of employees" — as though 
 the decisions of the court had left some doubt 
 about this and as though this was the desired 
 "definition" of the "police power" — and then, 
 even after this stipulation, of continuing with the 
 provision that nothing contained in the consti- 
 tution "shall he construed to limit the power of 
 the legislature to enact laws ... for the payment 
 of compensation for injuries to employees, or for 
 death of employees resulting from such injuries" — 
 as though the framers of the amendment could not 
 feel sure that even after the adoption of a specific 
 amendment, the requiring of " compensation for in- 
 juries to employees, or for death of employees re- 
 sulting from such injuries" would be held to come 
 within the category of " laws for the protection of 
 the lives, health or safety of employees " 1 
 
Majority Rule and the Judiciary 59 
 
 On the other hand, under the liberalizing influ- 
 ences operative in the national sphere, the United 
 States Supreme Court, from the first — and, it is 
 fair to say, no inconsiderable number of the State 
 courts — took a more elastic and progressive view 
 of the scope of the "police" or regulative power. 
 As early as the sixteenth of Wallace's Reports^ 
 (1872), the Supreme Court, in the so-called 
 "Slaughter-House Cases" which involved the reg- 
 ulative powers of the State of Louisiana as affected 
 by the "due process" requirement of the Four- 
 teenth Amendment to the Federal Constitution, 
 declared that the "police power" of a State was 
 "the general and rational principle that every 
 person ought to so use his property as not to in- 
 jure his neighbors, and that private interests must 
 be made subservient to the general interests of the 
 community," and continued by saying: 
 
 It is much easier to perceive and realize the 
 existence and sources of it than to mark its boun- 
 daries or prescribe limits to its exercise. The 
 ■power is, and must be from its very nature, in- 
 capable of any very exact definition or limitation. 
 Upon it depends the security of the social order, 
 the life and health of the citizen, the comfort of 
 an existence in a thickly populated community, 
 the enjoyment of private and social life, and the 
 beneficial use of property. As says another emi- 
 
 ' 16 Wallace's (U. S.) Reports, page 36. 
 
6o Majority Rule and the Judiciary 
 
 nent judge, "... Persons and property are 
 subjected to all kinds of restraints and burdens 
 in order to secure the general comfort, health, 
 and prosperity of the State. Of the perfect right 
 of the legislature to do this, no question ever was, 
 or, upon acknowledged general principles, ever can 
 he made, so far as natural persons are concerned." 
 (Thorpe V. Rutland & Burlington R. R. Co., 27 
 Vt. 149.) 
 
 In Hurtado v. California,^ which marked a mile- 
 stone in the development of the law, Mr. Justice 
 Mathews spoke concerning this very requirement 
 of "due process" as follows: 
 
 There is nothing in Magna Charta, rightly con- 
 strued as a broad charter of public right and law, 
 which ought to exclude the best ideas of all systems 
 and of every age; and as it was the characteristic 
 principle of the common law to draw its inspira- 
 tion from every fountain of justice, we are not to 
 assume that the sources of its supply have been 
 exhausted. On the contrary, we should expect 
 that the new and various experiences of our own 
 situations and system will mould and shape it into 
 new and not less useful forms. 
 
 This view has persisted in the Supreme Court 
 of the United States, and has, in general, been 
 effectually and fairly applied. There have been 
 exceptions, of course, even in that court, times 
 when the numerical ascendancy in the personnel 
 ' 1 10 United States Reports, page 5 16, 
 
Mcfjority Rule and the Judiciary 6i 
 
 of the court, of men under the influence of the 
 narrower State view and the laissez faire concep- 
 tion of the proper scope of governmental activi- 
 ties, seemed to incUne the court away from the 
 full and logical appHcation of its fundamental 
 standards. This was notably the result in the 
 so-called Bakeshop Case ^ which involved the con- 
 stitutionality of a New York statute. The result 
 reached in that case may, perhaps, be explained 
 and justified on other grounds, but in its under-- 
 lying philosophy the decision therein made can- 
 not be said to represent either the present or the 
 prevailing doctrine of the highest court of the land. 
 It is also true that some of the Federal judges 
 in the circuit or district courts have shown them- 
 selves profoundly influenced or completely dom- 
 inated by the narrower views of the State tribu- 
 nals of their respective jurisdictions, or by even 
 more restrictive views, and have been persuaded 
 by these local influences and afiiUations to ex- 
 pound a doctrine of circumscribed governmental 
 powers, and restrain the taking eff'ect of regulative 
 measures adopted by the State legislatures. This 
 has caused a great deal of resentment against the 
 judges of the Federal circuit, and district courts — 
 in some parts of the country more of resentment 
 than against the State courts, which the people 
 
 1 Loghner v. New York, 198 United States Reports, page 45, 
 
62 Majority Rule and the Judiciary 
 
 had found ways of making responsive to them. 
 This feeling has been intensified rather than less- 
 ened by the fact that rarely has the interference 
 with legislative discretion by the lower Federal 
 courts found approval and support in the tri- 
 bunal of ultimate appeal at Washington, as this 
 has meant that the local judges have, by their 
 interference, been able to accomplish a wholly un- 
 warranted suspension — for one, two, or three years, 
 pending the taking of testimony and the prose- 
 cuting of the appeal — of the taking effect of an 
 act which the people of the State were finally held 
 to have been entitled to put promptly in force. 
 
 In the nation's highest court, it may probably 
 be said, the question whether a particular legis- 
 lative act under consideration is within the scope 
 of the "pohce power," has generally been deemed 
 to be a matter of the reasonableness of the regu- 
 lation as a matter of fact, under the particular con- 
 ditions disclosed, rather than the application of 
 any patent rule of thumb. As Freund says in his 
 authoritative work on "The Police Power," an 
 examination of the decided cases ^ 
 
 will reveal the police power, not as a fixed quan- 
 tity, but as the expression of social, economic, and 
 
 ' "The Police Power," by Ernst Freund, page 3 (1904); Cf. Ibid, 
 pages 16 and 17. 
 
Majority Rule and the Judiciary 63 
 
 political conditions. So long as these conditions 
 vary, the pohce power must continue to be elas- 
 tic, i. e., capable of development. 
 
 As early as the one hundred and sixty-seventh of 
 the United States reports (1896), the "police 
 power" was said^ "to extend to all the great 
 pubHc needs," and, coming down to the still 
 later pronouncements of the court, we find the 
 definition of the "police power" which is the 
 corner-stone and bulwark of all or most of the 
 present agitation. Certainly it is the strongest 
 of judicial endorsement for the essential position 
 of those who hold that in the ultimate analysis, 
 the mature and dehberate opinion and the under- 
 lying social conscience of the people, as manifest 
 through the agencies of legislation, must be the 
 guide in determining what the government may 
 do for the relief of acute and pressing social needs. 
 In the decision of Noble State Bank v. Haskell,"^ 
 followed in a number of similar and subsequent 
 cases, the Supreme Court stated its conception 
 of how far the "due process" and "poHce power" 
 clauses of the State as well as Federal constitu- 
 tions sanction the remedial legislation which the 
 people themselves deem called for by the condi- 
 tions of the times. "We must be cautious," said 
 
 'Camfield v. Brown, 167 United States Reports, page 518, at 
 page 524. \^ 
 
 ' 219 United States Reports, page 104. 
 
64 Majority Rule and the Judiciary 
 
 the court, speaking by Mr. Justice Holmes, 
 "about pressing the broad words of the Four- 
 teenth Amendment to a drily logical extreme. 
 . . . The police power extends to all the great 
 public needs. It may be put forth in aid of what 
 is sanctioned by usage, or held by the prevailing 
 morality or the strong and preponderant opinion to 
 be greatly and immediately necessary to the public 
 welfare" ^ 
 
 Here, then, is the issue, and largely also the 
 cause, of the present agitation very plainly re- 
 vealed. On the one hand, is the narrow view 
 of some State courts that the scope of the "police 
 power" is a mere question of law, to be deter- 
 mined by purely legal precedents that antedate 
 both our constitutions and our courts. Under 
 this view, it is inevitable that present-day efforts 
 for the relief of present-day needs should be con- 
 tinually harassed and held back by the curbing 
 hands of eighteenth-century standards and eigh- 
 teenth-century poHtical and social philosophy. 
 On the other hand, is the enlightened view of the 
 great tribunal at Washington that when no ex- 
 plicit constitutional provision is contravened, the 
 ultimate standard of what a State may do is its 
 citizens' mature conclusion as to what they ought 
 
 ' 219 United States Reports, page 104, at page 119. 
 
Majority Rule and the Judiciary 65 
 
 to do, and that the question of the scope of a 
 State's regulative power, so far as any but the 
 "specific" constitutional curbs thereon, is a broad 
 question of policy and fact, under the particular 
 conditions disclosed, the determining factor to be 
 the "prevailing morality" and the "strong and 
 preponderant opinion" of the people as to what 
 should be done. 
 
 A concrete and typical instance of just the way 
 this divergence between the two rules of judicial 
 action works out in practice, will be sufficient at 
 this point. In the now celebrated Ives case,^ the 
 New York Court of Appeals unanimously held 
 "unconstitutional," as not within the "police 
 power" but within the prohibition of the "due 
 process" clause, a workingmen's compensation 
 law which had been drawn and revised by sev- 
 eral of the ablest members of the New York bar, 
 with advice and counsel of experts in other States 
 and nations, including a number of judges of Fed- 
 eral and State courts. It may be remarked that, 
 a few months later, the Supreme Court of the 
 United States, in a case coming up through the 
 Connecticut State courts and involving substan- 
 tially the same questions of law, unanimously held 
 "constitutional" ^ the statute there in question, and 
 
 * ive's V. South Buffalo Ry. Co., 201 New York Reports, page 271. 
 2 Second Employers' Liability Cases, 223 United States Reports, 
 page I. 
 
66 Majority Rule and the Judiciary 
 
 in terms rejected the precise grounds upon which 
 the New York court reached the contrary result. 
 How did the New York Court of Appeals say the 
 scope of the regulative powers of the State govern- 
 ment as affected by the "due process" clause 
 should be determined? The able and argumen- 
 tative opinion of the court, as prepared by Judge 
 Werner, answers the question succinctly : ^ 
 
 Every man's right to life, liberty, and prop- 
 erty is to be disposed of in accordance with those 
 ancient and fundamental principles which were in 
 existence when our constitutions were adopted. 
 
 Learned counsel representing the Commission ap- 
 pointed by Governor Charles Evans Hughes, now 
 of the Supreme Court of the United States, who 
 also signed and strongly approved the statute re- 
 jected in the Ives case, called to the attention of 
 the Court of Appeals the language used in the 
 Nohle State Bank case and other recent decisions 
 of the highest court of the land, and argued, with 
 some reason, it would seem, that if, as the Su- 
 preme Court had therein held, the "police power" 
 of a State enabled it to require each bank to set 
 aside, out of its own daily deposits, a percentage 
 thereof to constitute a fund out of which the 
 depositors of any other bank in the State that 
 ' 201 New York Reports, page 271, at page 293. 
 
Majority Rule and the Judiciary 67 
 
 might fail — through no fault of the depositors of 
 other banks, of course — should be reimbursed, in 
 whole or in part, as need be, surely that same 
 regulative power should enable the State to re- 
 quire an employer to charge against the expenses 
 of his business a sum for the compensation or 
 reimbursement of any of his employees who might 
 be injured while manufacturing the product or 
 furnishing the service for which the employer 
 charges the public. Counsel urged that the stat- 
 ute should be upheld because so undeniably de- 
 manded by the "preponderant opinion" and "pre- 
 vailing morality" of the American people, and 
 the "established usage" of nearly all of the civ- 
 ilized countries of the world. The court was 
 urged to lay no forbidding hand upon the legis- 
 lation which by the experience of other States and 
 other countries was conceded to be of great bene- 
 fit to the community and strongly called for by 
 present-day economic conditions. But no, the 
 court said: ^ 
 
 Every man's right to Hfe, Hberty, and property 
 is to be disposed of in accordance with those 
 ancient and fundamental principles which were 
 in existence when our constitutions were adopted. 
 . . . No word of praise could overstate the in- 
 dustry and inteUigence of this commission in deal- 
 
 ' 201 New York Reports, page 271, at page 293. 
 
68 Majority Rule and the Judiciary 
 
 ing with a subject of such manifold ramifications 
 and of such far-reaching importance to the State, 
 to employers, and to employees. We have already 
 admitted the strength of this appeal to a recog- 
 nized and prevalent sentiment. ... As to the cases 
 of Noble State Bank v. Haskell (219 U. S. 104), 
 and Assaria State Bank v. Dolley (219 U. S. 121), 
 we have only to say that if they go so far as 
 to hold that any law, whatever its effect, may 
 be upheld because by the "prevailing morality" 
 or the "strong and preponderant opinion" it is 
 deemed "to be greatly and immediately neces- 
 sary to the public welfare," we cannot recognize 
 them as controlling of our own construction of 
 our own constitution. 
 
 Numbers of similar decisions^ in New York and 
 other States, might be cited as disclosing a simi- 
 lar position taken and similar language used, but 
 it is not the purpose here to narrate or magnify 
 instances of a condition concededly existent. Con- 
 structive discussion and not mere criticism or the 
 marshalling of cases which have aroused popular 
 resentment, is needed at this juncture. If the 
 chief cause of complaint against courts and judges 
 in general is that some of the State courts find 
 themselves unable, under the precedents control- 
 ling them, or unwilling, to permit the legislative 
 and executive branches of government to carry 
 out the popular will on matters of regulative policy 
 • See introduction by Theodore Roosevelt, pages 16 to 20, ante. 
 
Majority Rule and the Judiciary 69 
 
 and social justice, what are the current proposals 
 for the relief of this cause of criticism ? In what 
 manner shall the fundamental law as interpreted 
 by the nation's great court be given its constitu- 
 tional vigor in the policies of laggard States ? 
 
IV 
 
 THE ULTIMATE SUPREMACY OF A 
 
 DECISIVE POPULAR MAJORITY 
 
 UNDER THE CONSTITUTION 
 
 The seriously considered proposals for judici- 
 ary reform are three: 
 
 1. That if a judge refuses enforcement to the 
 people's deliberate will on matters of regulative 
 or legislative policy, the -people should be enabled 
 to reject or "recall" the judge. 
 
 2. That if judges persist in holding legislation 
 "unconstitutional" on grounds involving no "spe- 
 cific" constitutional provision, but amounting to 
 an interference with legislative discretion and a 
 misconception of the popular will, the power of 
 the courts to hold legislation "unconstitutional" 
 should be taken away. 
 
 3. That if a State court finds itself unable, 
 under the legal precedents controlling it or its 
 conception as to the permissible scope of "re- 
 straints and burdens to secure the general com- 
 fort, welfare, and prosperity of the State," to 
 sanction "public welfare" legislation called for 
 by the "prevailing morality" or the "strong and 
 
 preponderant opinion," the people should be per- 
 
 70 
 
Majority Rule and the Judiciary 71 
 
 mitted, in a deliberate manner, to determine whether 
 the absence of favorable -precedents should be disre- 
 garded and the court's misconception of the "pre- 
 vailing morality" and popular will corrected. 
 
 Which of these three methods is to be preferred? 
 If a judge sets himself against the popular will on 
 "welfare legislation," shall we reject or "recall" 
 the judge, honest and upright though he may be 
 in all arbitraments between man and man; or 
 shall we take away the power of all courts to exer- 
 cise any check or curb, even in the first instance, 
 upon the legislative branch of government, or shall 
 we simply let the majority of the people, in some 
 deliberate manner, substitute their determination 
 of what they think and want, for the judge's mis- 
 taken view of what he thought the people thought 
 and wanted, or ought to think and want? In that 
 connection it may be observed that there are two 
 methods which may be followed in substituting 
 the majority's view for the court's view as to a 
 particular law — the first, that of direct popular 
 vote upon a constitutional amendment to render 
 "constitutional" all that class or category of legis- 
 lation; the second, that of a direct popular vote as 
 to what is, in fact, the "prevailing morality" and 
 "preponderant opinion" as to the particular law. 
 
 Before taking up the three proposals men- 
 tioned, it will be noted that there is not included 
 
72 Majority Rule and the Judiciary 
 
 explicitly therein the view, more or less frankly 
 expressed by many, that a decision of a court 
 under the "due process" clause should be, and 
 that it in effect now is, final and beyond the 
 power of even a decisive majority to change in 
 any manner whatsoever. When honest and well- 
 intentioned, this "stand-pat" doctrine proceeds on 
 the assumption that so-called "property rights" 
 are absolute and beyond any public rights, and 
 that the so-called guaranties of the "due process" 
 clause are, or should be made and kept, some- 
 thing absolute and unchangeable, by popular ma- 
 jorities or anything else. This surprising view is 
 not infrequently heard of late, more or less openly 
 expressed. It appears to be the fundamental 
 misapprehension so rhetorically indulged in by 
 Dr. Nicholas Murray Butler, in his address ^ before 
 the Republican State Convention in New York, 
 in 'April, 1912, and in his monograph^ on "Why 
 Should We Change Our Form of Government?" 
 Before the Aldine Club, in New York City, in 
 March, 191 2, Mr. Charles F. Mathewson, attor- 
 ney for the Consolidated Gas Company, and one 
 of the leaders of the metropolitan bar, made it 
 very clear, in opposing Colonel Roosevelt's pro- 
 posal, that he did not believe in any method 
 
 ^New York Tribune, April lo, 1912; quoted from on page vii, 
 ante. 
 ' Charles Scribner's Sons (1912). 
 
Mc0ority Rule and the Judiciary 73 
 
 which would enable the people to regulate the 
 hours of labor, and that he did not believe in cor- 
 recting the Ives decision, even by the constitu- 
 tional amendment proposed by his brethren of 
 the bar, and passed by the New York legislature 
 at its session of 191 2. In the New York Sun 
 and The Times for March 23, 1912, Mr. Mathew- 
 son was accurately quoted as citing "ten-hour" 
 legislation as an instance of the attempted "tyr- 
 anny of the majority over the minority," and as 
 inquiring "what right has anyone to say that a 
 man working ten hours for three dollars a day 
 may not work twelve hours and receive four dol- 
 lars?" That feeling, of course, was a perfectly 
 logical reason for opposing Mr. Roosevelt's pro- 
 posal, and for wishing constitutional amendment 
 to be so difficult as to be virtually impossible; 
 but, of course, such a view contravenes the basic 
 idea of constitutional government, and, in fact, 
 of government in any form, and is hardly recon- 
 cilable with anything except the "philosophic 
 anarchism" advocated by the late Benjamin 
 Tucker! 
 
 Needless to say, no such view of the para- 
 mountcy of purely private interests will find seri- 
 ous support in a republic. It is elementary law 
 and policy that even "private property" is sub- 
 ject to "poHce power" regulation, and that, as 
 
74 Majority Rule and the Judiciary 
 
 the Supreme Court said in the Slaughter-House 
 Cases, "private interests must be made subser- 
 vient to the general interests of the community." 
 Neither in theory nor in fact is there foundation 
 for the view that the "due process" clause, or 
 any other part of any constitution, confers rights 
 which a decisive majority may not limit, change, 
 or withhold, in general or particular cases. As 
 has well been said by the Appellate Division of 
 the New York Supreme Court for the Third Ju- 
 dicial Department — a court of intermediate ap- 
 pellate jurisdiction — in the case of Rathhone v. 
 Wirth, decided in 1896:^ 
 
 A written constitution presupposes the existence 
 of sovereign and absolute power. ... In this 
 country that sovereign and absolute power is the 
 people. In the language of James Wilson, the 
 most profound lawyer and student of government 
 in the continental Congress and in the convention 
 which framed the Federal constitution, "With us 
 no prerogative of government can be set up as 
 coequal with the authority of the people. The 
 supreme power is in them; and in them, even 
 when a constitution is formed and a government 
 is in operation, the supreme power still remains. 
 A portion of their authority they, indeed, dele- 
 gate, but they delegate that portion in whatever 
 manner, in whatever measure, for whatever time, 
 to whatever persons, and on whatever conditions, 
 they may choose to fix. The supreme power of 
 
 ' 6 New York Appellate Division Reports, page 277, at page 287. 
 
Majority Rule and the Judiciary 75 
 
 the people does not arise from the constitution or 
 exist by virtue of it; it existed prior to it; it makes 
 and unmakes constitutions, but is not made by 
 them. . . . Under our form of government, that 
 supreme power is vested in and exercised by the 
 majority, and for all practical purposes the ma- 
 jority are the people. The principle that the 
 majority shall govern lies at the very basis of 
 our government." 
 
 The fundamental principle of popular govern- 
 ment is stated by Mr. Herbert Croly in his splen- 
 did study of our constitutional system:^ 
 
 The security of private property and personal 
 liberty, and a proper distribution of activity be- 
 tween the local and central government, de- 
 manded at that time (when the constitution was 
 adopted), and within limits still demand, adequate 
 legal guaranties. It remains none the less true, 
 however, that every -popular government should, in 
 the end, and after a necessarily prolonged delibera- 
 tion, possess the power of taking any action which, 
 in the opinion of a decisive majority of the people, 
 is demanded by the public welfare. 
 
 And, as we have seen, the highest court of the 
 land has held and declared that the regulative 
 power of "a decisive majority" in any State "ex- 
 tends to all the great public needs" and enables 
 the carrying out of what is "held by the prevail- 
 
 ' "The Promise of American Life," by Herbert Croly, at page 35. 
 
76 Majority Rule and the Judiciary 
 
 ing morality or strong and preponderant opinion, 
 to be greatly and immediately to the public wel- 
 fare." 1 
 
 If the foregoing^ states and sustains the true 
 theory of popular government, it states also the 
 essential /art. No matter how cumbersome, awk- 
 ward, dilatory, and unsuitable the processes of 
 constitutional amendment may be in any State, 
 the existence of a mode of amendment contem- 
 plates it to be within the power of the people to 
 use it for the purpose of altering or repealing any 
 constitutional provision they may see fit, includ- 
 ing the creation of special "exceptions" to or 
 "constitutional definitions" of, the "due process" 
 clause, by way of correction or reversal of a pre- 
 vious judicial decision or otherwise. For example, 
 if a State court holds a workingmen's compensa- 
 tion or employers' liability act to violate the 
 "due process" clause and the Federal court has 
 held the contrary, it is within the power of the 
 people ultimately to adopt and enforce a consti- 
 tutional amendment which will remove all work- 
 ingmen's compensation and employers' liability 
 legislation from the prohibitions of the adverse 
 decision, and from the future scrutiny of the 
 courts, and thus carry out the popular will as to 
 
 ' For further quotation from authority, see page 163, et seq., post. 
 ' Noble State Bank v, Haskell, 219 United States Reports, page 1 1 1 . 
 
Majority Rule and the Judiciary 77 
 
 the act previously pronounced upon adversely. 
 That is just what is now being done in New York 
 State.^ It is also what has often been done in 
 the States, and even in the nation as a whole, 
 as to decisions determining the eJFect of "specific" 
 constitutional provisions. When the Supreme 
 Court held, early in the history of the republic, 
 that a sovereign State might be sued in the Fed- 
 eral courts by a citizen of anothfer State, the 
 Eleventh Amendment to the constitution was 
 forthwith adopted, concerning which the Supreme 
 Court itself said, as recently as 1890: ^ 
 
 This amendment, expressing the will of the ulti- 
 mate sovereignty of the whole country, superior 
 to all legislatures and all courts, actually reversed 
 the decision of the Supreme Court. 
 
 Likewise when the New York Court of Appeals 
 rendered a series of often conflicting,* but always 
 "unpopular," decisions against the constitution- 
 ality of laws providing that employees of con- 
 tractors on State or municipal work should be 
 paid not less than the prevailing rate of wages, 
 
 'The constitutional amendment in course of adoption in New 
 York to " reverse " the hes decision is quoted on pages 146 and 147, 
 post. 
 
 2 Hans V. Louisiana, 134 United States Reports, page I, at page 11; 
 further quoted from at page 163 et seq., post. 
 
 » See People ex rel. Cossey ». Grout, 179 New York Reports, at 
 page 417, at page 420 et seq. 
 
78 Majority Rule and the Judiciary 
 
 nor required to work more than a specified num- 
 ber of hours per day, an exasperated public "re- 
 versed" them all and removed all constitutional 
 barriers by a constitutional amendment^ adopted 
 by the people in 1905. At the present time also, 
 the several States of the United States, some years 
 after the Supreme Court of the United States 
 made an unanticipated reversal of its own previ- 
 ous decision as to the effect of a certain constitu- 
 tional provision upon the power of the central 
 government to levy an income tax, are engaged 
 in the adoption of an amendment, ably advocated 
 by Mr. Root, to "reverse" and "nullify" the de- 
 cision of the nation's highest court. 
 
 In the light of this analysis of the American 
 theory and practice, the question becomes not 
 whether the popular will shall be expressed and 
 enforced at all, following the State court's in- 
 terpretation of the proviso of "due process" as 
 applied to a particular act and situation, but 
 simply by what method shall the popular will be 
 reinstated and the court's misapprehension be set 
 aside. This must necessarily be the case as to 
 matters of regulative policy. As was said by the 
 late Mr. Justice Harlan in one of the most impres- 
 sive of his mighty utterances: 
 
 ' New York State Constitution, Article XII, Section I. 
 
Majority Rule and the Judiciary 79 
 
 When the American people come to the con- 
 clusion that the judiciary of this land is usurping 
 to itself the functions of the legislative depart- 
 ment of the government, and by judicial construc- 
 tion only is declaring what should be the public 
 policy of the United States, we will find trouble. 
 Ninety millions of people — all sorts of people with 
 all sorts of opinions — are not going to submit to 
 the usurpation by the judiciary of the functions 
 of other departments of the government, and the 
 power on its part to declare what is the public 
 policy of the United States. 
 
 So, then, looking upon the matter as one of 
 method rather than of principle, except, perhaps, 
 in so far as differences of method may be said to 
 present a question of principle, we may proceed 
 to discuss the relative merits of the three pro- 
 posals which are now before the people. 
 
V 
 
 THE RECALL OF JUDGES 
 
 "The recall of judges" is the catch-word of the 
 proposal that upon the petition of a specified per- 
 centage of the electorate, a judge whose person- 
 ality or judicial acts are unsatisfactory to at 
 least those who signed the petition, shall be re- 
 quired to submit his further tenure in office to 
 the issue of a direct popular vote, prior and with- 
 out regard to the expiration of the term for which 
 he was elected or appointed.^ Some State consti- 
 tutions contain "recall" provisions not applicable 
 to the judiciary, and in others the judiciary is not 
 excepted. Usually, however, the "recall" of the 
 judiciary is surrounded with especial safeguards, 
 to ensure deliberate and representative action. A 
 large percentage of the electorate — in some in- 
 stances as high as thirty or even fifty per cent — 
 is required to sign the petitions before a "recall" 
 election can be initiated. A substantial period 
 for "sober second thought" is required to elapse 
 
 . I "Documents on the State-wide Initiative, Referendum, and 
 Recall," by Charles A. Beard (1912); "Government; By All the 
 People," by Delos F. Wilcox (1912). 
 
 80 
 
Majority Rule and the Judiciary 8i 
 
 before the vote is taken. In some common- 
 wealths the issue of the "recall" election is 
 simply whether the official in question shall be 
 required to retire to private life, and a later 
 election held to choose his successor. In other 
 commonwealths, persons offering themselves as 
 candidates may contest the election with the in- 
 cumbent whose tenure is attacked, and the out- 
 come of the election is the continuance in office of 
 the incumbent or the choice of his successor by the 
 same vote which terminates his term. Sometimes 
 it is provided that after a vote has once been 
 taken as to the "recall" of a particular official, 
 another election as to his continuance in office 
 may not be precipitated, unless the persons filing 
 the second petition pay into the treasury the ex- 
 penses incurred in the holding of the first "re- 
 call" election. It is generally considered that a 
 "recall" election involving a judge should be 
 made more difficult and more fully safeguarded, 
 than a similar contest as to the continuance in 
 office of an administrative official. 
 
 If, however, judicial misapprehension and ob- 
 struction of the regulative pohcy and needs of 
 the State is the condition which has aroused pres- 
 ent criticism of the court, can it be said that the 
 adoption of the "recall of judges" is the necessary 
 
82 Majority Rule and the Jvdiciary 
 
 or proper remedy ? Should judges who incorrectly 
 interpret the "police power" necessarily be sub- 
 jected to "recall" from office? 
 
 It is not difficult to understand why California 
 — the State of Patrick Calhoun and Reuf and 
 Schmitz and the Southern Pacific Railroad — 
 adopted the "recall," even as to judges. It is 
 not difficult to understand why Arizona — the 
 State of Sloan and Andrews and railroad and 
 mining corporations — is restoring the "recall" to 
 the State constitution, from which it was removed 
 at the behest of a presidential veto. No extraor- 
 dinary powers of divination are required to un- 
 derstand the growth of sentiment for the "recall" 
 in Pennsylvania — the State of Archbald and Elkin 
 and Standard Oil. Yet, looking at the matter 
 from the point of view of the problem analyzed 
 in the preceding pages, does it not seem clear 
 that the "recall" of judges is neither a wise nor 
 a necessary means of securing a State interpre- 
 tation of the regulative power in consonance with 
 the Federal interpretation and with the progres- 
 sive sentiment of the country.?. If a judge in- 
 correctly gauges the "preponderant opinion" as 
 to the social necessity for a particular law, why 
 remove him? Why not let the people vote di- 
 rectly to decide what the majority opinion is? 
 If a judge is dishonest, impeach him; if he is 
 
Majority Rule and the Judiciary 83 
 
 Incompetent, remove him by complaint before 
 the legislature or refuse him re-election, but it 
 does not seem quite fair to require him to take 
 the final "guess" as to what the "prevailing mo- 
 rality" and the "preponderant opinion" of a State 
 really is, and then chop off his judicial head if 
 he "guesses" or "calculates" wrong. 
 
 Therefore, in so far as the demand for the 
 "recall" of judges is based upon the relation of 
 the courts to the legislative functions of govern- 
 ment, the "recall" of judges is neither wise nor 
 necessary, and should not be adopted/unless, in 
 particular States, it may be found justifiable on 
 other grounds, or called for by local conditions. 
 Is it not preferable that the judge, in his office, 
 should be given a tenure independent of all polit- 
 ical or personal or temporary considerations, to 
 the end that he may administer justice between 
 man and man "without fear or favor." Only his 
 conclusions on matters of paramount public policy 
 — not he himself or his tenure — need be subjected 
 to a direct popular accountability, previous to 
 orderly expiration of his term of office. Through 
 proper adjustment of the appointive and elective 
 terms of judges, through making their nomina- 
 tion and election wholly apart from party poli- 
 tics and party columns on the ballot, and through 
 orderly and effectual processes of impeachment or 
 
84 Majorily Rule and the Judiciary 
 
 removal, other conditions which might lead to 
 the adoption of the "recall" of judges would 
 seem Ukely to be obviated. But not so as to 
 judicial obstruction to "welfare" legislation; and 
 current political events furnish a great deal of 
 reason for believing that unless there is soon 
 adopted a conservative and constructive remedy, 
 the rising tide of insistent public opinion may 
 adopt the radical remedy. 
 
 It is doubtless true, however, that well-inten- 
 tioned persons of conservative bent of mind eas- 
 ily get very unnecessarily alarmed about the "re- 
 call," even of the judiciary. It is easy to think 
 a lot of things might happen which would not. 
 The cherished independence of the judiciary has 
 not very much foundation or support except in 
 the confidence and respect of the people. As Mr. 
 Wendell Phillips said to the Massachusetts legis- 
 lature in Lorings Case (1855), "you cannot legis- 
 late judges into the confidence of the people. 
 You cannot preach them into it. Confidence 
 must be earned." The adoption of the "recall" 
 of judges would not make a politician out of 
 many judges who were not politicians already. 
 It is not possible to believe that fear of his re- 
 moval from oflace would make any member of 
 the New York Court of Appeals change, by one 
 
Majority Rule and the Judiciary 85 
 
 jot or tittle, his conscientious attitude and course 
 toward the legislation condemned by him in the 
 Ives case, or toward other "welfare" legislation 
 at variance with the method approved by the na- 
 tion's highest court though that attitude and 
 course may be. As Mr. William A. Prendergast 
 recently declared, "to say that direct popular 
 accountability would make a coward out of a 
 public officer is like saying that it makes cow- 
 ards out of soldiers to order them to the front 
 upon the field of battle." Members of the bar 
 have ever been prone to think that anything 
 which would alter in any respect the technical 
 independence of the judiciary, would thereby de- 
 stroy its actual and real independence. That sort 
 of fear has almost always proved unfounded. 
 
 Much that is reassuring may be found in the 
 meditations based upon a reading of the minutes 
 of the Massachusetts Constitutional Convention 
 of 1820. They are referred to here because of 
 their bearing also upon the whole present discus- 
 sion of the relation of the courts to the people. 
 The Massachusetts constitution, as first adopted, 
 provided, as it does still, that "all judicial offi- 
 cers . . . shall hold their offices during good be- 
 havior," unless impeached for cause, or unless 
 removed by the governor and council upon the 
 address of a bare majority of the members of 
 
86 Majority Rule and the Judiciary 
 
 both houses of the State legislature.^ A similar 
 provision for removal of judicial ofl&cers by a 
 majority or two-thirds vote of both houses of 
 the State legislatures, without the proving of 
 legal grounds for impeachment "for cause," is to 
 be found in several other State constitutions. 
 In the Massachusetts convention of 1820, a dis- 
 tinguished committee was appointed to take into 
 consideration the judiciary clause as above quoted. 
 Its chairman was Mr. Justice Story, of the Su- 
 preme Court of the United States, and its mem- 
 bership included Chief Justice Shaw, Mr. Levi 
 Lincoln, Mr. John Phillips, and others whose 
 names are famihar for their ability at the bar 
 and on the bench. This committee was sorely 
 afraid that this liberal power of removal, for any 
 reason or no reason, by a meagre legislative ma- 
 jority, without even requiring the legislature to 
 state its grounds for such action, or give the judges 
 in question an opportunity to be heard, was danger- 
 ous and should be changed. 
 
 "The committee is of the opinion," said this 
 report^ in 1820, concerning a constitutional provi- 
 sion that has ever since been in existence in Mas- 
 sachusetts and other States, "that this provision 
 
 ' Massachusetts State Constitution, Chapter III, Articles I and II. 
 
 ^ "Minutes of Massachusetts Constitutional Convention of 1820" 
 (prepared by Benjamin Pickering and the editor of The Boston Ad- 
 vertiser), page 136 (Reprint Ed. of 1853). 
 
Majority Rule and the Judiciary 87 
 
 has a tendency materially to impair the inde- 
 pendence of the judges, and to destroy the effi- 
 cacy of the clause which declares that they shall 
 hold their offices during good behavior." 
 
 In the debate upon this committee report, grave 
 were the fears that the Massachusetts constitu- 
 tion would destroy the independence and integrity 
 of the courts. Mr. Samuel Hubbard, of the Suf- 
 folk bar, thought that "the constitution was de- 
 fective in not sufficiently securing the indepen- 
 dence of judges." ^ Mr. William Prescott thought 
 there was "now no security."^ Mr. Prince, of 
 Boston, thought that "the single admission (that 
 judges have power to hold acts of the legislature 
 unconstitutional) furnished a sufficient argument 
 against leaving it to the legislature to remove them, 
 for the exercise of this power in relation to a favor- 
 ite law would be sure to lead to a resolve for 
 their removal." ^ Mr. Daniel Webster, then lately 
 come to Massachusetts, said that he looked upon 
 the constitutional provision "as against common 
 right, as well as repugnant to the general prin- 
 ciples of the government. . . . The general theory 
 and principle of the government is broken in upon 
 by giving the legislature this power. If the legis- 
 lature may remove judges at pleasure, assigning 
 no cause for such removal, of course it is not to 
 
 > /Wi/., page 474. 2 /jj-^_^ page 477. ' /Wii., page 523. 
 
88 Majority Rule and the Judiciary 
 
 be expected that they would often find decisions 
 against the constitutionality of their own acts."* 
 One who reads the debates in this convention 
 cannot fail to be impressed how thoroughly and 
 ably all the present arguments against giving the 
 power of removal to the people were then urged, 
 with equally dire predictions of public disaster, 
 against leaving a power of removal in the hands 
 of the legislature, and how much more impres- 
 sive and applicable these contentions read when 
 urged against leaving an arbitrary power to "re- 
 call" a judge at pleasure in the hands of the 
 legislature, upon whose enactments he might have 
 often to pronounce adversely! 
 
 Mr. Levi Lincoln, later the sturdy governor of 
 the State and an honored justice of its Supreme 
 Court, spoke in reply to Mr. Webster and the 
 committee report. He said "he was not afraid 
 of being called a demagogue " for stating the only 
 foundation for a truly "independent" judiciary. 
 His words — they are quoted from the minutes of 
 the debates ^ as prepared in the third person, and 
 published by Mr. Pickering and the editor of 
 The Boston Advertiser, both members of the con- 
 vention — have a peculiar applicability to-day: 
 
 It was said that judges have estates in their 
 offices — he did not agree with this doctrine. The 
 
 ' Ibid., pages 482 and 483. s Page 480. 
 
Majority Rule and the Judiciary 89 
 
 office was not made for the judges, nor the judge 
 for the office, but both for the people. There 
 was another tenure — the confidence of the people. 
 
 And Mr. Henry Childs, of the Pittsfield bar, 
 declared that the founders of the State constitu- 
 tion had "intended to put the judiciary on the 
 footing of the fullest independence consistent with 
 their responsibility." ^ In proof of this he referred 
 to Sections 5 and 8 of the Massachusetts Decla- 
 ration of Rights, which will hardly be challenged 
 as radical or novel doctrine. Section 5, as con- 
 tained in the Massachusetts constitution, then and 
 now, reads: 
 
 All power residing originally in the people, and 
 being derived from them, the several magistrates 
 and officers of government, vested with author- 
 ity, whether legislative, executive, or judicial, are 
 their substitutes and agents, and are at all times 
 accountable to them. 
 
 Section 8 of the Declaration of Rights, which 
 was also referred to, was the first American state- 
 ment of the "recall" doctrine. Even though it 
 emanates from the greatest of the State consti- 
 tutions among the original thirteen States, it 
 would have little chance of being reaffirmed to-day 
 by any gathering of members of the bar: 
 
 ' Ibid., page 479. 
 
90 Majority Rule and the Judiciary 
 
 In order to prevent those who are vested with 
 authority from becoming oppressors, the people 
 have a right, at such periods and in such manner 
 as they shall establish by their frame of govern- 
 ment, to cause their public officers to return to pri- 
 vate life, and to fill up vacant places by certain and 
 regular elections and appointments. 
 
 Then came Mr. Justice Story, than whom, in 
 the traditions of the American bar, the indepen- 
 dence of the judiciary never had a stancher 
 champion. As Mr. Wendell PhilHps said ^ in 1855, 
 "If anybody was, I may say, a little crazy on 
 the subject of the independence of the judges, it 
 was the late able and learned Judge Story — at least 
 during the last half of his life." The closing of 
 the debate in behalf of the committee report had 
 been reserved until he could be present. He re- 
 plied to Mr. Levi Lincoln and Mr. Childs by as- 
 serting that it was removal by the legislature, not 
 the people, of which he was afraid. Removal by 
 the majority of the legislature, he said (Mr. Pick- 
 ering's notes ^ are again quoted), without neces- 
 sarily the assignment of a reason therefor: 
 
 ... is the provision of the constitution, and it is 
 
 only guarded by the good sense of the people. He 
 had no fear of the voice of the people, when he 
 
 1 Address to the Massachusetts Legislature upon the petition for 
 the removal of Judge Loring. 
 
 2 Page 524. 
 
Majority Rule and the Jvdidary 91 
 
 could get their deliberate voice, but he did fear 
 from the legislature, if the judge has no right to 
 be heard. . . . The object of the amendment 
 (reported from the committee) was not to protect 
 the judges against the people, but against the rep- 
 resentatives of the people. 
 
 However, in spite of the fears of the great 
 leaders of the bench and bar, and in spite of the 
 evident view of Mr. Justice Story that he would 
 have no fear from popular removal but much 
 fear of legislative removal, Massachusetts retained, 
 by vote of her people, and still retains, the orig- 
 inal constitutional provision for a "recall of 
 judges" absolutely "at the whim of the legislat- 
 ure." What has been the result.? Has the "in- 
 dependence" of the Massachusetts judiciary been 
 "destroyed" or "substantially impaired".'' Have 
 Massachusetts judges ever felt that there was 
 "now no security"? Have Massachusetts courts 
 ever lacked in lustre or renown.? Did its courts 
 cease to hold acts of the legislature "unconstitu- 
 tional," as Mr. Webster feared.? Was the first 
 decision adverse to the constitutionality of a fa- 
 vorite law the signal for "a resolve for the re- 
 moval" of the judge or judges thus offending, as 
 Mr. Prince was so certain it would be? On the 
 contrary, the State whose constitution contains 
 the "recall" doctrine in phraseology which could 
 
92 Majority Rule and the Judiciary 
 
 hardly be improved upon, and the most drastic 
 "judicial recall" provision that has existed in any 
 State constitution until recently, has, in spite of 
 the early fears of its jurists, led, perhaps, all of the 
 States in the ability, character, and fundamental 
 soundness of its courts. 
 
 Now that the same issues are again under 
 discussion which were so brilliantly discussed in 
 the Massachusetts Convention of 1820, it is but 
 natural that leaders of the bar and bench to-day, 
 like the leaders in the Massachusetts gathering 
 of nearly a century ago, should become much ex- 
 ercised lest the Massachusetts doctrine, if applied 
 and extended in State constitutions, might do 
 great violence to essential elements in our judi- 
 cial system. Even though the "judicial recall" 
 is unnecessary, and may be unwise, it is difficult 
 to read American constitutional history and still 
 believe it would prove in fact as dangerous and 
 destructive as many persons are now contending. 
 
VI 
 
 THE POWER TO HOLD LEGISLATION 
 UNCONSTITUTIONAL 
 
 That judicial misconception of "the great pub- 
 lic needs" should be made the occasion for tak- 
 ing away the power of the courts to declare legis- 
 lation "unconstitutional," is not a proposal now 
 before the people as a political issue. Until the 
 recent proposal of Mr. Roosevelt, however, there 
 was a growing belief on the part of students of 
 jurisprudence that the State courts would cease 
 to be a barrier to social progress only if, and when, 
 their power to nullify legislation was taken away. 
 There are few students of comparative jurispru- 
 dence who have not believed this to be the ulti- 
 niate course. Men of the type of Dean William 
 Tricklett, of the Dickinson Law School; Chief 
 Justice Walter Clark, of North Carolina; Pro- 
 fessor Alfred Hayes, Jr., of the Chair of Compara- 
 tive Jurisprudence at Cornell University; Pro- 
 fessor Roscoe Pound, of the Harvard Law School; 
 and many others of a scholarly familiarity with 
 our constitutional system and its antecedents, 
 
 93 
 
94 Majority Rule and the Judiciary 
 
 apparently have seen no solution short of some 
 drastic step. They point out that the principle 
 of judicial supervision of the legislature came to 
 America from England, where it existed under a 
 government of "fused" rather than "divided" 
 and co-ordinate powers; that even in England, it 
 never meant any such judicial powers or related 
 to any such matters as in the United States 
 to-day; and that even in England it was soon 
 abandoned and the present rule of popular and par- 
 liamentary omnipotence substituted, under which 
 no one would suggest that the cherished consti- 
 tutional guaranties of Magna Charta have been 
 broken down in the land which gave them birth, 
 or that property or private enterprise have been 
 rendered unsafe. 
 
 The matter, from an historical point of view, has 
 never been better summarized than by Professor 
 Charles Howard Mcllwain, Thomas Brackett 
 Reed Professor of History and Political Science at 
 Bowdoin College, in his monumental work on 
 "The High Court of Parliament and its Suprem- 
 acy: An Inquiry into the Boundaries between 
 Legislation and Adjudication in England," in 
 which he says,^ as to the American judicial system: 
 
 The "legislative" activity of our courts to-day 
 is a fact that is rightly attracting great attention 
 
 ' Pages viii, xi, xii. 
 
Majority Rule and the Judiciary 95 
 
 at the present time. ... It is a subject of the 
 utmost consequence. . . . The great powers now 
 exercised by our courts (are) greater here than in 
 England, because the Hke tendency was there 
 checked by the growth in the seventeenth cen- 
 tury of a new doctrine of pariiamentary omnipo- 
 tence. ... If my study has shown that the pres- 
 ent-day extension of judicial action in America 
 has grown out of conditions in the England of 
 an earUer day, it has shown another thing no 
 less clearly — namely, that the government of 
 Tudor England was a government of fused powers 
 (while that of the United States to-day is a sys- 
 tem of separated powers), and, therefore, that the 
 former activity of the judges in England was due 
 to a fusion of govermental powers, not to a 
 division of those powers. The extent of "judi- 
 cial" activity under such conditions is a very 
 dangerous precedent, if it is to be followed slav- 
 ishly and applied without discrimination to a sys- 
 tem in which there is a balance between divided 
 powers, where an encroachment of one depart- 
 ment upon another may endanger the balance and 
 threaten the whole. It is not fitting that the 
 legal historian should follow precedent to such an 
 extent as in all cases to justify the legal rules, 
 merely because he finds for them an unbroken 
 history or even a former usefulness. 
 
 In the American Law Review, in 1906, Dean 
 William Tricklett of the Dickinson Law School, 
 brilliantly stated ^ the view of those who hold with 
 
 ' "Judicial Dispensation from Congressional Statutes," American 
 Law Review, vol. XLI, page 65. 
 
g6 Majority Rule and the Judiciary 
 
 him that the courts must be stripped of their 
 power to hold legislation "unconstitutional": 
 
 It is necessary to complete the work of due co- 
 ordination of the various arms of the government, 
 by the abandonment by the judges of their usurped 
 power of paralyzing the legislative organ by refus- 
 ing to carry out its legislation, and by enjoining 
 officers and others from carrying out that legisla- 
 tion. The legislators are elected to speak, and 
 usually speak the people's will. The people will 
 never be masters, in their own house so long as a 
 majority of nine gentlemen, pretending to have 
 Marconigrams from the defunct men of 1787 and 
 1788 concerning their meaning when they adopted 
 this or that phrase of the constitution, arrogate 
 to themselves the power of veto, and not merely 
 refuse to aid in the enforcement of statutes, but 
 even launch prohibitions against the carrying out 
 of these statutes by those who, unhindered by 
 them, would legally execute them. 
 
 Until the legislative organ regains its lost legis- 
 tive supremacy, the intentions of the enacters of 
 the constitution are defeated, and the living peo- 
 ple's will is thwarted by what five men out of 
 100,000,000 choose to declare the will of those 
 who have been dead for one hundred and twenty- 
 five years. 
 
 This striking excerpt from the writings of Dean 
 Tricklett by no means establishes, however, the 
 taking away of the power of the courts to hold 
 legislation "unconstitutional" as the wise or nec- 
 essary means for preventing the judicial obstruc- 
 
Majority Rule and the Judiciary 97 
 
 tion of the popular will which he has depicted. 
 On the contrary, it would be a misfortune in the 
 minds of the most sagacious of American states- 
 men, if the problem that has been pointed out 
 should lead to so radical and dangerous a step 
 as the taking away from our courts of all power 
 to enforce compliance with the written constitu- 
 tions. In the interpretation and application of 
 specific provisions, the compeUing of a careful 
 legislative and popular consideration of innova- 
 tions in legislation, and the enforcement of a 
 reasonable conformance to fundamental standards, 
 the courts have an honorable and useful function 
 under our federal system. // it were necessary 
 to take away this power of the courts over legis- 
 lation as the only practicable means of removing 
 existing barriers to social progress, nothing else 
 could be expected than that this nation would 
 ultimately follow in England's footsteps in this 
 respect, and curb here the authority of the courts 
 just as was long ago done in England. Fortu- 
 nately it does not seem necessary to go so far; but 
 the serious question still remains whether, in the 
 event there is not now adopted an effectual meas- 
 ure of conservative and constructive implications, 
 to-morrow's action may not be more drastic and 
 sweeping than the situation really requires. 
 
VII 
 
 DIRECT POPULAR RE-DEFINITION FS. 
 
 GENERAL CONSTITUTIONAL 
 
 AMENDMENT 
 
 If our inquiry has led to the conclusion that, 
 rather than remove the judge from office or strip 
 the courts of their constitutional functions, we 
 should simply give to the people the ultimate de- 
 termination whether a particular act comes within 
 the scope of the "poHce powers" of the State, and 
 accordingly, whether the "due process" clause as 
 interpreted by the court shall, or shall not, stand 
 permanently in the way of desirable "welfare 
 legislation," there remains to be considered the 
 question of method. In what manner shall the 
 popular will be made the ultimate arbiter of the 
 regulative powers of the State? Important as is, 
 at present, the decisive re-establishment of the 
 principle of ultimate popular control, now as- 
 sailed and rejected in some quarters, as we have 
 seen, it is no less important that out of the dis- 
 cussions of the bar and the deliberations of the 
 people there should be evolved the adoption of 
 the most suitable method. Believing firmly in the 
 
 98 
 
Majority Rule and the Judiciary 99 
 
 principle, the writer is glad to join in discussing 
 the method. 
 
 As we have seen, there are two suggestions in 
 this respect: 
 
 (i) The method of constitutional amendment, 
 i. e., the adoption, by a direct vote of the people, 
 of an addition, in necessarily general terms, to the 
 "due process" clause in the State constitutions, 
 to the effect that the enforcement of this or that 
 class and category of legislation shall not be pre- 
 vented, in spite of the "due process" clause and 
 the court's decision that such legislation does vio- 
 late that clause. 
 
 (2) The method of referring directly to the 
 people the determination whether the particular 
 act is, in fact, within "the great public needs," 
 and within the sanction of the "prevailing mo- 
 rality" and "strong and preponderant opinion," 
 and so not in conflict with the "due process" 
 clause. 
 
 Under either method, the "reversal," "review," 
 or "setting aside" of the court's "decision" is done 
 by a direct vote of the people at an election. 
 Under the first method, they declare that "due 
 process" shall not prevent the legislation in ques- 
 tion; under the second method, they merely de- 
 clare that "due process" does not prevent it. The 
 latter proposal, miscalled the "recall of judicial 
 
loo Majority Rule and the Judiciary 
 
 decisions," and not much more accurately called 
 the "popular review of constitutional decisions 
 under the 'poHce power,'" is that advanced by- 
 Mr. Roosevelt, first in magazine articles and his 
 address before the Ohio Constitutional Conven- 
 tion at Columbus,^ and later in his Carnegie Hall 
 address in New York City ^ as a candidate for the 
 presidential nomination of his party, and in a 
 number of less formal and sustained addresses in 
 other parts of the country. A more accurate 
 characterization of the proposal, as we shall see, 
 would be as "direct popular re-definition of the 
 scope of the 'police' or regulative powers of the 
 State," or as letting the majority vote as to what 
 is essentially a matter of the mature majority 
 opinion. 
 
 Needless to say, the process of constitutional 
 amendment may be made so complicated and 
 protracted as to afford no expression of the real 
 popular will on any proposition which is opposed 
 by any active special interests in the common- 
 wealth, as is true of most "welfare" legislation. 
 On the other hand, the process may be made so 
 lax and loose as to take away the proper safe- 
 guards of full popular deliberation. The former 
 
 * The Outlook, February 24, 191 2, page 365. 
 ' The Outlook, March 23, 1912, page 618. 
 
Majority Rule and the Judiciary loi 
 
 is doubtless the case in such States as Pennsyl- 
 vania and New York, where upward of four years 
 is most commonly required, and the latter may 
 prove to be the case in California, where the lapse 
 of but one year is required. The purpose of a 
 provision that before an amendment may be voted 
 upon by the people, it must first pass two succes- 
 sive State legislatures, i. e., not merely in suc- 
 cessive years, but also legislatures in which there 
 has been a change of the personnel of the State 
 senate as well as the more numerous branch, is, 
 of course, to make amendment difficult and de- 
 layed, and within the control of political leaders 
 at some point in its progress, should the amend- 
 ment be opposed by those whom politicians Hke 
 to assist and please. The purpose of a provision 
 that the electorate may, by a two-thirds vote or a 
 mere majority, in any year, adopt a constitutional 
 amendment of which some prescribed notice has 
 been given,^ is, of course, to make the matter as 
 little susceptible to political or financial control 
 as possible, and to enable the voters to write into 
 their State constitutions provisions usually and 
 properly contained only in statutes, but which the 
 people wish to place beyond the power of the 
 State courts to nullify or impair. California and 
 
 ' This is known as the " Constitutional Initiative," i. e., the amend- 
 ment may be initiated by the people, without prior formulation by 
 the legislature. 
 
I02 Majority Rule and the Judiciary 
 
 some others of the Western States have done this, 
 notably as to their provisions for public regula- 
 tion of public utilities, since by writing the basic 
 provisions of such regulation into their State con- 
 stitutions, the power of the State courts to pro- 
 nounce adversely upon them is taken away, and 
 they are left only to the ultimate scrutiny of the 
 Supreme Court at Washington. It is this situa- 
 tion which makes some of the more recent State 
 constitutions resemble an edition of the consoli- 
 dated statutes rather than a declaration of the 
 organic law and the frame of government; and 
 where this course is pursued, it is necessary that 
 amendment shall be facile, and it becomes only 
 natural that sweeping changes in fundamental 
 law are made with a minimum of popular de- 
 liberation. 
 
 Neither too long and complicated nor too short 
 and hasty a process of amendment can be ac- 
 cepted as a fair or satisfactory embodiment of the 
 constitutional amendment method, even as to the 
 situations to which it is fairly applicable. In 
 many of the States where the courts have, as 
 Mayor Gaynor phrased it, "tried to apply their 
 legal rules of thumb to social, commercial, and 
 economic matters, . . . generally with injury to 
 industry, commerce, and the social good," the 
 amendment method has, it will be conceded, very 
 
Majority Rule and the Judiciary 103 
 
 commonly broken down and proved a broken 
 weapon in the hands of those who sought thereby 
 to reinstate the popular will. In few of the in- 
 stances, already referred to in some detail, where 
 statutes by way of regulation of the conditions of 
 labor have been nulHfied by the courts of the State 
 of their first enactment, but upheld in similar or 
 identical form in another State, and then by the 
 Supreme Court, has it ever been brought about 
 that the constitution of the first State was amended 
 so as to permit of such legislation. It is just 
 because the amendment method has proved so 
 ineffectual, in practice, in many or most of the 
 States, that those who oppose legislation "inter- 
 fering" with their "right to run their business 
 as they please" are so aroused and angered at 
 the suggestion of a method which introduces, 
 perhaps, no new principle, but would almost cer- 
 tainly be more effectual in practice. The advo- 
 cacy of a practicable method has now forced 
 many persons into the open, in confessing that 
 they did not really beHeve in what it had, in 
 theory, already and always been possible to do, 
 by way of overcoming an adverse judicial deci- 
 sion concerning "welfare" legislation. 
 
 A distinction should be noted between the 
 amendment method, as utilized in instances 
 
I04 Majority Rule and the Judiciary 
 
 where "specific" constitutional provisions have 
 been interpreted, probably correctly and accord- 
 ing to both their letter and spirit, by the court, 
 and the same method when invoked as to deci- 
 sions under the "due process" clause. In the 
 former class of cases, the people have, through 
 their constitution, laid down an explicit and prob- 
 ably altogether definite rule of governmental ac- 
 tion, and the court has refused to enforce only an 
 expression of the legislative will which runs counter 
 to the clearly expressed will of the people. In 
 such cases, if the people wish to reinstate the 
 measure enacted by the legislature, they can do 
 this only by first repealing or amending the pro- 
 vision of the fundamental law which stands in 
 the way. The situation where the "due process" 
 clause has been held to be the sole constitutional 
 ban upon the act of legislation in question is 
 very different. The people then have never de- 
 clared or voted upon any explicit or definite rule 
 of action and policy as to the subject-matter of 
 the act. They had no such situation, nor any 
 particular or definite situation, in mind when, a 
 hundred years or more ago, they adopted a con- 
 stitution which carried over the "due process" 
 clause from Magna Charta. In approving this 
 clause they meant simply, as we have seen, to 
 prescribe that life, liberty, and property should not 
 
Majority Rule and the Judiciary 105 
 
 be "taken" except by procedure and for causes 
 which do not violate the fundamental ideas of 
 fairness and justice as held by the prevaiUng sen- 
 timent among Anglo-Saxon peoples. This meant 
 one thing when Magna Charta was wrung from 
 an unwiUing monarch; another, when the ignor- 
 ing of it was a cause for the complaint of the 
 early colonies against the British King; still an- 
 other when it was written into the Federal con- 
 stitution as a national prohibition upon the legis- 
 lative activities of the States at the close of the 
 Civil War. Therefore, when a court has, under 
 the shelter of this non-explicit clause, ruled that 
 a given act contravenes its conceptions of the pre- 
 vailing moral standards as to what the State may 
 properly do in the premises, the need is not for 
 any repeal or amendment of the "due process" 
 clause as a means of correcting the court's mis- 
 conception. The adverse decision and the popu- 
 lar desire to reinstate the act held "unconstitu- 
 tional" by virtue of this clause do not call for 
 any change in the fundamental law; they do not 
 properly give rise to any sentiment for the repeal 
 or the changed wording of the clause; and a con- 
 dition under which such an amendment is the 
 only available means of reinstating the popular 
 will is as unnecessary as it is unfortunate. All 
 that is requisite under a proper method of pro- 
 
io6 Majority Rule and the Judiciary 
 
 cedure would be a concrete and paramount ex- 
 pression of the "preponderant opinion" of the 
 community, that the act in question does not vio- 
 late fundamental and prevailing ideas as to what 
 is "immediately and greatly necessary for the 
 public needs," for such an expression of the so- 
 cial opinion is entitled to correct and overcome 
 the court's original view as to what that opinion 
 was, and then there would be no need for any 
 amendment of anything. All that is really essen- 
 tial, therefore, is a substitution of the deliberate 
 popular will for the court's "guess," and while 
 this can somewhat clumsily be done by the amend- 
 ment method as well as by the alternative method 
 under discussion, it is to be noted that the ques- 
 tions arising by virtue of the "due process" and 
 "police power" provisions stand on a different 
 footing than those involving "explicit" constitu- 
 tional provisions, so far as the availability of the 
 amendment method is concerned. 
 
 The relative advantages of Mr. Roosevelt's 
 proposal, as compared with the "general amend- 
 ment" method, are discussed in detail in a sub- 
 sequent chapter.^ 
 
 •Chapter XI, page 139, et seq., post. 
 
VIII 
 
 MR. ROOSEVELT'S PROPOSAL DEFINED 
 
 AND ILLUSTRATED 
 
 Taking the "general amendment" method as it 
 is, however, or even at its best, are there any 
 considerations which lead properly to the belief 
 that, in the case of "welfare" legislation as af- 
 fected by the "police power" limitation, the pro- 
 posal identified with the name of Mr. Roosevelt 
 is a more conservative and suitable method — not an 
 easier method, but a more sound method, not a 
 more sweeping method, but a more adaptable ^3.nd 
 well-restrained method ? Is it not already clear that 
 there are? 
 
 Mr. Roosevelt first used the incidental phrase, 
 "the recall of judicial decisions on constitutional 
 questions." As he explained in a letter to the 
 writer, "I used this phrase to show that nine 
 times out of ten, when men talk about recalling 
 a judge, what they were really concerned about 
 was his decision on a certain constitutional ques- 
 tion." From the point of view of the early un- 
 derstanding of the real character and merits of 
 
 the proposal, it is doubtless unfortunate that it 
 
 107 
 
io8 Majority Rule and the Judiciary 
 
 did not have the usual period of "laboratory" 
 and academic formulation and consideration be- 
 fore it was flung into the forum of politics. That 
 is the more usual history of suggestions for con- 
 stitutional change, and such a preliminary con- 
 sideration makes clear all the implications and 
 furnishes the basis for a more sound and fair dis- 
 cussion than takes place when such a proposal 
 makes its advent under political auspices. It 
 may even have been unfortunate, though surely 
 not from the point of view of its early popularity 
 and ultimate adoption, that its public advocacy 
 was launched by a leader in the political sphere. 
 That has hardly tended to make the opponents 
 of his personality fair or considerate of his prop- 
 osition. But is it not also something of a re- 
 proach to the American bar and to its traditional 
 position of leadership in all that pertains to our 
 frame of government, that the most important 
 proposal for constitutional change which has been 
 made since the close of the war between the 
 States should have been first brought to general 
 public attention by a layman, and was at first 
 dismissed with snap-judgment by many of the 
 leaders of the bar? 
 
 The incidental phrase in Mr. Roosevelt's orig- 
 inal article^ on the subject was seized upon as a 
 
 ' The Outlook, January 6, 1912, page 40. 
 
Majority Rule and the Judiciary 109 
 
 catch-phrase for a magazine cover, and the phrase 
 has persisted. From a legal point of view, a 
 more unfortunate, inaccurate, and misleading char- 
 acterization could hardly have been devised. If 
 not all, at least nearly all, of the vigorous denun- 
 ciation which the proposal has received from fair- 
 minded members of the bar, and citizens gener- 
 ally, has been due to this unfortunate phrase and 
 to a failure of such persons to examine the pro- 
 posal with care, after the disapprobation which 
 the initial characterization inevitably aroused. 
 
 It is well, therefore, to preface a discussion of the 
 method with a statement of just what it is and 
 what it is not: 
 
 I. It has nothing to do with the United States 
 Supreme Court or its decisions. It is, in fact, only 
 an effort and a means to bring laggard State 
 courts of ultimate appeal up to the progressive 
 standards set by the nation's great court. If you 
 do not agree with those standards, your quarrel 
 is with Chief Justice White and his colleagues, 
 and not with Colonel Roosevelt or Dean Lewis. 
 The question whether there is any logical reason 
 why the method should not be ultimately applied 
 also in the Federal sphere will be discussed in an- 
 other chapter.^ Nothing of the sort has been pro- 
 posed, however. 
 
 ' Chapter XII, page 156 et seq., post. 
 
no Majority Rule and the Judiciary 
 
 2. It would in no way weaken or impair the in- 
 terpretation or enforcement of the guaranties of the 
 Federal constitution according to the meaning thereof 
 declared by the Supreme Court of the United States. 
 The Federal constitution (XlVth Amendment) 
 provides that "No State shall . . . deprive any 
 person of . . . property without due process of 
 law." That is just what each State constitu- 
 tion provides that the State shall not do. If the 
 "due process" clause were stricken from every 
 State constitution, no State would thereby be en- 
 abled to "take" the life, liberty, or property of any 
 person without "due process." Of course, if any 
 legislation held "unconstitutional" by the State 
 court under the "due process" clause was also 
 deemed "unconstitutional" by the Federal court 
 of national appeal, it could not be enforced, either 
 through the adoption of a "general amendment" 
 to the State constitution or the alternative method 
 under discussion. The proposal therefore relates 
 only to instances in which a State court lags be- 
 hind the Federal Supreme Court in its concep- 
 tion of the permissible scope of "welfare" legis- 
 lation. If any corporation or its attorneys be- 
 lieve that the constitutional provision last above 
 quoted would not, as interpreted by the Supreme 
 Court of the United States, afford its property 
 and earnings a sufficient protection under the 
 
Majority Rule and the Judiciary in 
 
 law, such remarks should be presented as amicus 
 curies in the next case arising under the Four- 
 teenth Amendment. 
 
 3. It has nothing to do with any "specific" clause 
 of any constitution; that is to say, with any clause 
 which has a definite or ascertainable meaning that 
 does not of necessity vary more or less — properly 
 to a large degree — ^with the time, the locality, and 
 the particular conditions disclosed. It would af- 
 ford the people no means of redress or mode of 
 procedure as to any legislative act which a court 
 had pronounced within the inhibition of any "spe- 
 cific" clause or any clause except the "due proc- 
 ess" proviso. It is to preserve unimpaired the 
 powers of the courts to interpret and enforce the 
 "specific" provisions that makes it the part of 
 wisdom now to restore to the people themselves 
 the determination of what is called for by the 
 "prevailing morality" and "preponderant opin- 
 ion." Popular resentment against judicial mis- 
 use of the "due process" clause has been endan- 
 gering the whole fabric of judicial application of 
 the fundamental law as declared by the people in 
 their constitutions. 
 
 4. It would not in any way repeal or amend or 
 destroy the "due process" clause of any State con- 
 stitution, unless it be that the Supreme Court of 
 the United States has already repealed or amended 
 
112 Majority Rule and the Jvdidary 
 
 or vitiated that proviso as contained in the Fed- 
 eral document. The clause would stand just as 
 it is in every State constitution, and be open to 
 judicial interpretation and application just as at 
 present, except that there would be the possibility 
 that the people would elect to substitute, as to a 
 particular act, the United States Supreme Court's 
 view that the act was "constitutional" for the 
 State court's determination that the act was "un- 
 constitutional." That is to say, in all cases where 
 it seemed certain or probable that the Federal 
 view would uphold the constitutionality of the 
 law, there would be the possible ultimate decision 
 by the people that, as a matter of fact, a measure 
 which had been rejected in the State court as a 
 matter of law, should be sustained as within "the 
 great public needs." Those who do not believe 
 that the majority opinion of the people should 
 have this ultimate power of reversal, should try 
 to convince their own State courts, if need be, 
 that in the first instance the "preponderant opin- 
 ion" and "prevailing morality" should determine 
 the scope of the regulative power in matters of 
 governmental policy. 
 
 5. It has nothing to do zvith.the "recall" of judges, 
 except that it would do away with the conditions 
 which may lead many of our States to adopt the 
 "recall" of judges. Only the advent of this more 
 
Majority Rule and the Judiciary 113 
 
 conservative and constructive proposal has checked 
 the demand for the "judicial recall," which was 
 making so rapid headway, even where local con- 
 ditions little warranted it. 
 
 6. It has nothing to do with the "decision" or 
 judgment in any suit. The common misrepresen- 
 tation that Mr. Roosevelt proposes a referendum 
 upon the outcome of litigation can hardly be less 
 than deliberate. The "cover" catch-phrase, "the 
 recall of judicial decisions," used only to carry 
 over into the discussion of this alternative pro- 
 posal the phraseology employed in the discussion 
 of the "recall of judges," unfortunately lent itself 
 somewhat to such a misrepresentation; but the 
 course of some members of the bar in represent- 
 ing that the proposal is for "the reversal of judi- 
 cial decisions by popular vote" does little credit 
 to their candor or their means of information. 
 The proposed "referendum"^ would concern a 
 statute and not a judicial decision, and the out- 
 come would be the ascertainment of the decisive 
 fact of the "preponderant opinion" and "prevail- 
 ing morality" as to that act, and not the reversal 
 of any judgment or decree rendered by any court. 
 From the foregoing it of course follows that any 
 such referendum could follow only a determina- 
 tion of the highest appellate court of a State, and 
 
 ' An illustrative form is set out on page 117, post. 
 
1 14 Majority Rule and the Judiciary 
 
 could not be predicated upon a determination by 
 either a trial court or a tribunal of intermediate 
 appeal. 
 
 If the foregoing defines the proposition by stat- 
 ing what it is not, we may proceed with the state- 
 ment of what it is. In his Carnegie Hall address 
 Mr. Roosevelt said:^ 
 
 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 legislature for the general welfare, the ques- 
 tion of the validity of the law — ^which should de- 
 pend, 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 time for considera- 
 tion. 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. 
 
 In other words, the proposal is that the direct 
 expression of the popular will be made the ulti- 
 mate guide in determining what the States may 
 do in the exercise of their "police" or regulative 
 powers, and that this shall be accomplished by 
 permitting the people, at a proper interval after 
 
 > "The Right of the People to Rule": The Outlook, March 23, 1912, 
 page 620. 
 
Majority Rule and the Judiciary 115 
 
 a State statute has been held by the State courts 
 to be "unconstitutional" as not within the "police 
 power," to vote directly and decisively upon the 
 question whether they consider it within the scope 
 of their constitution as they made it. 
 
 The procedure by which this would be accom- 
 plished would probably be more simple and un- 
 derstandable than the usual processes of consti- 
 tutional amendment. A suitable provision for a 
 referendum in this class of cases would be em- 
 bodied in the State constitution. Such an amend- 
 ment might, perhaps, well take the form of read- 
 ing into the "due process" clause of the State 
 constitution the language or essential holding of 
 the United States Supreme Court in Noble State 
 Bank v. Haskell,^ to somewhat of the following 
 effect: 2 
 
 Provided, however, that nothing in this section^ 
 contained shall in itself be construed to prevent 
 the enactment and enforcement of legislation 
 which is held by the prevailing morality or the 
 strong and preponderant opinion of the people 
 
 ' 219 United States Reports, page 104. 
 
 ^ No attempt is made in this formulation to suggest perfected legal 
 phraseology, or to present any views as to what percentage of the 
 electorate shall be required to petition for or participate in the refer- 
 endum vote. The purpose is only to present the substance of the 
 plan in a concrete form. 
 
 ' Of course where, as in New York, other provisions are combined 
 with the " due process " clause into one section, the terras of refer- 
 ence to that clause would necessarily be^more explicit. 
 
ii6 Majority Rule and the Judiciary 
 
 of this State to be immediately and greatly neces- 
 sary to the welfare of the State or the people there- 
 of; and in the event that the highest court of ap- 
 pellate jurisdiction in this State shall pronounce 
 invalid under this section^ an act of the legislature 
 not in conflict with any other provision of this con- 
 stitution, there shall be held, if not less than twelve 
 (12) per centum of the duly qualified voters in not 
 less than one-fifth of the counties of the State shall 
 so petition the legislature in writing, a referendum 
 to the duly quahfied voters of the State upon the 
 question whether the said act of the legislature 
 shall stand and be enforced, the decision of the 
 court to the contrary notwithstanding, such ref- 
 erendum election to be held not less than one 
 year from the date of the handing down of such 
 decision of the said court, at the time of the gen- 
 eral election in that year, and otherwise in such 
 manner and subject to such regulations as this 
 constitution and the legislature may prescribe; 
 and in the event that at such referendum elec- 
 tion there shall be cast in favor of the enactment 
 and continuance in effect of the said act so voted 
 upon a number of votes equal to a majority of the 
 total number of voters duly qualified to take part 
 in the general election for that year, the same shall 
 be and continue in effect from and after the date 
 of the canvass of the votes cast in the said referen- 
 dum election, the decision of the said court to the 
 contrary notwithstanding. 
 
 Under such a constitutional provision as the 
 foregoing, and regulations enacted to govern such 
 elections as therein prescribed, the question sub- 
 
 ' See note 3, page iij, ante. 
 
Majority Rule and the Judiciary 117 
 
 mitted to the electorate at the referendum elec- 
 tion might, perhaps, take something of this form, 
 based upon the Workingmen's Compensation Act 
 held "unconstitutional"^ in New York State: 
 
 Shall the act of June 25, 1910, commonly known 
 as the Wainwright Workingmen's Compensation 
 Law, entitled " an Act to amend the Labor Law, 
 in relation to workingmen's compensation in cer- 
 tain dangerous employments," and providing, in 
 substance (taking in, perhaps, a very brief resume 
 of the essential provisions of the act) be reinstated 
 and continued in full force and effect as law, the 
 decision of the Court of Appeals in Ives v. South 
 Buffalo Ry. Co. (201 N. Y. Reports at page 271) to 
 the contrary notwithstanding? Yes.' No. 
 
 There will, of course, be advocated suggestions 
 for something more of conservative safeguards and 
 requirements for a longer period of popular delib- 
 eration before the vote is taken, and there will 
 also be heard suggestions that the foregoing would 
 be too dilatory a procedure. Judge Peter S. 
 Grosscup, former presiding Judge of the United 
 States Circuit Court of Appeals for the Third 
 Circuit, in an able letter^ in advocacy of this "ref- 
 erendum" proposal, includes in his statement 
 thereof a requirement that the matter should be 
 submitted to the people only if the act held "un- 
 
 • Ives V. South Buffalo Ry. Co., aoi New York Reports, page 271. 
 ' Pages 122 to I2S, post. 
 
Ii8 Majority Rule and the Judiciary 
 
 constitutional" by the court shall be repassed 
 by the legislature. It is not at all the purpose 
 here to pass upon the merits of any of these sug- 
 gestions as to method, or to justify the details of 
 the concrete provisions above formulated, or even 
 to formulate the most desirable mode of procedure. 
 The foregoing is offered by way of illustration 
 merely. 
 
IX 
 
 THE TESTIMONY OF EXPERTS AS TO 
 PRACTICAL ADVANTAGES 
 
 Some men are writing and talking as though 
 there was something in this "referendum" pro- 
 posal which should startle the masses at their 
 meals. It is deemed something novel, radical, un- 
 precedented, unsupported except by an ambitious 
 layman who seeks the presidency, and by such of 
 his supporters as are willing, because of a belief in 
 the general sincerity and soundness of his political 
 activities, to overlook his advocacy of this pro- 
 posal. This volume has no concern with the mat- 
 ter as a political issue, or with its effect upon the 
 political or personal fortunes of individuals. The 
 outcome of any political contests of the present 
 year, or the present decade, cannot accomplish the 
 adoption of the proposal in a majority of the 
 States within that period. Constitutional changes 
 do not come so quickly. On the other hand, no 
 amount of popular misunderstanding or disap- 
 proval at the present time, and no political suc- 
 cess or defeat of any of its advocates, can per- 
 
 iig 
 
120 Majority Rule and the Judiciary 
 
 manently determine the ultimate judgment of the 
 people thereupon. 
 
 The charge that the proposal has only political 
 and non-legal advocacy makes it proper, how- 
 ever, that a detailed discussion of this method 
 of procedure, as compared with that of the gen- 
 eral amendment of the "due process" clause, 
 should be preceded with some reference to what 
 has been said in its behalf by those outside the 
 influence of party or factional politics. Quota- 
 tion may first be made from the statement of a 
 trained and impartial observer, Dean William 
 Draper Lewis, of the University of Pennsylvania 
 Law School, who long has been a sound teacher of 
 the law and a sagacious counsellor in the formula- 
 tion of much progressive legislation. Following 
 Mr. Roosevelt's Colunibus speech. Dean Lewis 
 said, through the newspapers of Philadelphia : ^ 
 
 To a lawyer, the most interesting suggestion 
 Colonel Roosevelt has made is to allow the people, 
 after consideration, to re-enact legislation which a 
 court decision has declared is contrary to some 
 clause in the existing State constitution. 
 
 Any one who has been asked to draft specific 
 amendments to State constitutions will hesitate 
 to condemn, without serious consideration, the 
 
 ' See also an address entitled "The ' Recall of Judicial Decisions ' on 
 State Constitutional Questions," by William Draper Lewis, at The 
 Aldine Club, New York City, printed in an amplified form in the 
 Annals of the American Academy of Political Science, 191 2. 
 
Majority Rule and the Judiciary 121 
 
 suggestion made by Colonel Roosevelt. To take 
 a concrete instance: the New York Court of 
 Appeals declared the Workmen's Compensation 
 Act, passed by the New York legislature, as de- 
 priving in its operation the employer of his prop- 
 erty without due process of law. A number of 
 amendments to the New York constitution, de- 
 signed to validate a compensation act, have been 
 drafted, and it is not unlikely that one of them 
 will be adopted. Personally, one or more of these 
 amendments having been shown to me, I cannot 
 but feel that constitutional amendments designed 
 to meet particular cases, run the danger of be- 
 ing so worded as to produce far-reaching results 
 not anticipated or desired by the people. Colonel 
 Roosevelt's suggestion avoids this difficulty and 
 danger. If a persistent majority of the people 
 of New York State want a Workmen's Compensa- 
 tion 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 did 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 expressed its 
 opinion that the act is contrary to the constitu- 
 tion which the people at a prior election have de- 
 clared to be their fundamental law. 
 
 I may not always approve of what the persist- 
 ent majority wants. I might sometimes think 
 the measure unwise. But that doesn't alter the 
 right of that majority to enforce its will in govern- 
 ment. The Roosevelt idea, it seems to me, sup- 
 plies an instrument by which that majority can 
 enforce its will in the most conservative way. It 
 makes explosions unnecessary. 
 
122 Majority Rule and the Judiciary 
 
 I would have been very proud to have been 
 the author of that plan, although I want to em- 
 phasize the fact that it involves no new principle, 
 only a new method. 
 
 Dean Lewis closed his statement with the ex- 
 pression of the personal opinion, held by him at 
 that time, that it was unfortunate that "this great 
 idea" should have been first proposed by anyone 
 so active in the political world. 
 
 The "next witness" summoned may well be the 
 former Presiding Judge of the United States Cir- 
 cuit Court of Appeals for the Third Circuit, a 
 jurist of long experience and a briUiant student of 
 our constitutions, the Honorable Peter S. Gross- 
 cup, of Chicago; In a letter dated April 2, 1912, 
 he first stated his point of view as to the pending 
 political contest and the relation of the same to 
 the constitutional question under consideration:^ 
 
 As I told you, I am not in this primary cam- 
 paign at all — neither for Roosevelt nor for Taft. 
 But I do not like to see either misunderstood, 
 and certaiiily not purposely misrepresented. On 
 what is now known as the "recall of decisions" 
 Mr. Roosevelt is, it seems to me, greatly misun- 
 derstood — at the beginning I, too, misunderstood 
 him — and is beginning to be purposely misrepre- 
 sented. That is unfair. 
 
 With this preliminary statement. Judge Gross- 
 cup proceeded with an illuminating discussion of 
 
 ' Letter to Mr. Medill McCormick, dated April 2, 1912. 
 
Majority Rule and the Judiciary 123 
 
 the proposal under consideration. Some of his 
 characterizations, and perhaps to some extent his 
 view-point, as to the nature and basis of the plan 
 may not be accepted; but his testimony to its 
 desirability, in the light of his long judicial experi- 
 ence, may tend to relieve it of the imputation that 
 it finds support only in a longing for poHtical in- 
 novation and adventure. He said: 
 
 The truth is that what Mr. Roosevelt proposes 
 is . . . not "recall of decisions", nor "interpre- 
 tation by the people" of the constitution, nor 
 "appeal from the courts to the mob," nor "de- 
 cision by town meetings." The function of the 
 court is to decide; to invade that function would 
 be more or less revolutionary. But the function 
 to make and unmake, alter and amend the con- 
 stitution under which they live still remains with 
 the people; to impair that function would be 
 equally revolutionary. What Mr. Roosevelt really 
 proposes is that the people shall exercise a method 
 of altering and amending their constitution more 
 adaptable than the one now in vogue — not an 
 easier method but a more adaptable method. 
 
 Let me illustrate what I mean with the New 
 York Workingmen's Compensation Act. The con- 
 stitution contains the clause that life, liberty or 
 property shall not be taken except on "due proc- 
 ess of law"; that prohibition is one of our wisest 
 constitutional guaranties. The Court of Appeals 
 held that the Workingmen's Compensation Act 
 was in effect a taking of property without "due 
 process of law"; that was a concrete instance 
 where this wise constitutional guaranty worked 
 
124 Majority Rule and the Judiciary 
 
 out a public misfortune. To strike out the con- 
 stitutional provision entirely by an amendment 
 would not do — that prohibition has too important 
 a function to perform in the regulation of men's 
 affairs in society to be stricken out. But to per- 
 mit that prohibition to stand as a bar against 
 such acts as the Workingmen's Compensation Act 
 is something else not right — the Workingmen's 
 Compensation Act has also a too important func- 
 tion to perform in the regulation of men's affairs in 
 society, to be stricken out as "unconstitutional." 
 Let both stand — that is the ideal solution. And 
 to do this, let an act such as the Workingmen's 
 Compensation Act, when found to be unconstitu- 
 tional as the constitution now stands, be resub- 
 mitted to the legislature, and, if repassed, be 
 submitted to the people at some subsequent elec- 
 tion (the precise formula of altering or amending 
 the constitution as now provided) whereupon, the 
 people having so voted, the constitution stands 
 so amended that the given act of the legislature 
 submitted, and such amendments or alterations 
 of the same as come within its original scope, 
 become constitutionally excepted from the prohibi- 
 tion — the constitutional prohibition in all other 
 respects standing as before. This is not "inter- 
 pretation," nor "recall of decisions," nor any 
 "decision" at all, in the judicial sense of the word, 
 but "alteration" or "amendment" of the consti- 
 tution within the time-honored function of the 
 people to alter and amend, and within, too, all 
 those precautions for deHberation usual to such 
 
 S repositions to amend. Indeed, in substance Mr. 
 Roosevelt's proposition is nothing more than a 
 method of adjusting the constitution to the needs of 
 the people as they arise, without interfering with 
 
Majority Rule and the Judiciary 125 
 
 its wholesome guaranties in any other respect, and 
 will some day, I believe, he accepted as a better way 
 of re-adapting our constitution to the needs of the 
 times than by wholesale amendment. 
 
 With these quotations from acceptable author- 
 ity, we may inquire as to some of the advantages 
 of Mr. Roosevelt's proposal, in itself and as com- 
 pared with the "general amendment" method. 
 
X 
 
 MR. ROOSEVELT'S PROPOSAL AND THE 
 TRADITIONS OF JUDICIAL PROCEDURE 
 
 The assertion is commonly made that as a mat- 
 ter of principle and as a matter of method, the 
 proposal of Mr. Roosevelt is radically at variance 
 with what may be termed the traditions and basic 
 conceptions of judicial procedure, as obtaining in 
 Anglo-Saxon jurisdictions. That is a fair chal- 
 lenge which deserves a fair reply. 
 
 Is not the ultimate popular definition of the scope 
 of the "police power" a method strittly in accord- 
 ance with the decision and doctrine of the Supreme 
 Court of the United States? If, as Mr. Justice 
 Holmes has indicated, the "police power" of a 
 State should be deemed to sanction legislation, 
 not forbidden by any other constitutional provi- 
 sion, which is "held by the prevailing morality 
 or strong and preponderant opinion to be greatly 
 and immediately necessary to the public welfare," ^ 
 it certainly seems proper to let the people vote as 
 to. what their preponderant opinion really is, if 
 
 ' Noble State Bank v. Haskell, 2i93United States Reports, pages 
 104, III. 
 
 126 
 
Majority Rule and the Jvdidary 127 
 
 a considerable number of the electorate think 
 that opinion has been incorrectly gauged by the 
 court. In fact, what other way could there be 
 of really determining what the majority opinion 
 as to the fundamental justice and fairness of the 
 regulative measure in fact is? We, of course, 
 could continue to let the courts "guess" what 
 the "preponderant opinion" is, as we have been 
 doing, or we could take away the courts' power, 
 as some propose, and let the legislature's initial 
 "guess" be final; but why let anybody "guess" 
 as to what the deliberate opinion of our people 
 is as to something which vitally concerns them 
 — ^why not let the people themselves vote and 
 say? That is as fair to the judges as to the 
 legislature and the people. It may be added that 
 this proposal would seem to be quite in line with 
 the vie\v^ of the New York court itself, for, in 
 the Ives case, after paying high compliment to the 
 excellence and public importance of the recom- 
 mendations of the Wainwright Commission as em- 
 bodied in the Workingmen's Compensation Act 
 under consideration, the court said:^ 
 
 We have already admitted the strength of this 
 appeal to o' recognized and widely prevalent senti- 
 ment, but we think it is an appeal which should 
 be made to the people and not to the courts. 
 
 ' 201 New York Reports, pages 271, 289. 
 
128 Majority Rule and the Judiciary 
 
 That is what is proposed in. the plan under con- 
 sideration. How else could this "appeal" as to 
 a particular act, be "made to the people and not 
 to the courts," after the court has rejected the 
 statute which the people's representatives enacted, 
 and the "widely prevalent sentiment" approves? 
 
 Is not the ultimate popular determination of the 
 "prevailing morality" and "preponderant opinion" 
 a method in accordance with the traditional func- 
 tions and procedure of our courts themselves ? His- 
 torically, it has been the function of the judge 
 to interpret and declare the law, and to leave 
 to the vicinage, or, later, in the conduct of or- 
 dinary trials, to the jury, the determinations of 
 questions oi fact. Matters of usage, custom, pre- 
 vaiHng standards, common repute, preponderant 
 opinion, and the like, have traditionally been 
 matters for determination by the arbiters of fact, 
 by the persons who knew the conditions, rather 
 than by the judges themselves. Ascertainment of 
 these matters has never been looked upon as 
 "decisions" upon questions of law, in the judi- 
 cial sense. The interpretation and application of 
 the "specific" and explicit provisions of a written 
 constitution are, of course, matters of law. But 
 to determine whether a particular legislative act 
 is "sanctioned" by "usage" or by "the prevail- 
 ing moraUty" or by the "strong and preponder- 
 
Majority Rule and the Judiciary 129 
 
 ant opinion," or even whether it is "called for 
 by the general interests of the community," or is 
 "necessary for the comfort, health, and prosper- 
 ity of the State," is essentially a question of fact. 
 Is it not therefore appropriate, from the view- 
 point of legal procedure as well as policy, to af- 
 ford at least a referendum to the people as a 
 check against possible errors by the court, in de- 
 termining a matter not within the traditional or 
 the anticipated functions of judges? 
 
 "Interpretation" of the scope of the "police 
 power" and the prohibitions of the "due process" 
 clause, thus stands on a different footing than 
 other "constitutional" questions, and the propri- 
 ety of a popular reference to determine the ulti- 
 mate fact becomes apparent. But if it be as- 
 serted that only under the most recent decisions 
 of the Supreme Court of the United States has 
 there been judicial recognition of these factors, 
 "outside the four corners" of the constitutional 
 instrument, as elements in "interpreting" consti- 
 tutional provisions of this character, the refuta- 
 tion may be found in New York State itself. In 
 the case of Rathbone v. Wirth (1896), decided by 
 the Appellate Divison of the Supreme Court for 
 the Third Judicial Department of the State, the 
 court, by Herrick, J., with Parker, P. J., and 
 Merwin, J., concurring, gave hearty approval to 
 
130 Majority Rule and the Judiciary 
 
 as clear and graceful a statement of this essential 
 doctrine as may be found in all law and literature: ^ 
 
 As has been said by one of the most eminent 
 authorities upon constitutional law in this coun- 
 try, Mr. Justice Cooley, "If this charter of State 
 government which we call a constitution were all 
 there was of constitutional command; if the us- 
 ages, the customs, the maxims that have sprung , 
 from the habits of Hfe, modes of thought, methods 
 of trying facts by the neighborhood, and mutual 
 responsibility in neighborhood interests, the pre- 
 cepts which have come from the revolutions which 
 overturned tyrannies, the sentiments of manly 
 independence which impelled our ancestors to 
 summon the local community to redress local 
 evils, instead of relying upon king or legislature 
 at a distance to do so — if a recognition of all these 
 were to be struck from the body of our constitu- 
 tional law, a lifeless skeleton might remain; but 
 the living spirit, that which gives it force and 
 attraction, which makes it valuable and draws to 
 it the affections of the people, that which distin- 
 guishes it from the numberless constitutions, so- 
 called, which in Europe have been set up and 
 thrown down within the last hundred years, many 
 of which, in their expressions, have seemed equally 
 fair and to give equal promise with ours, and have 
 only been wanting in the support and vitality 
 which these alone can give — this living and breath- 
 ing spirit, which supplies the interpretation of the 
 words of the written charter, would be utterly 
 lost and gone." {People ex rel. LeRoy v. Hurlbut 
 et al., 24 Mich. 44.) 
 
 ' 6 New York Appellate Division Reports, page 277. 
 
Majority Rule and the Judiciary 131 
 
 Is not the ultimate popular determination of the 
 scope of the "police power" the method which best 
 affords a standard at once conservative and yet elas- 
 tic and progressive enough to meet changing condi- 
 tions and needs? Some statements in the earlier 
 portions of this volume may have been read to 
 be a reflection upon some of the State courts. 
 Nothing written was in fact so intended as to any 
 court or judge discussed, and hardly as to any 
 particular decision. The criticism should rather 
 be of the people and their leaders for permitting 
 the State's powers to promote the welfare of its 
 people to rest upon the legal precedents as to 
 what may be done rather than our legislative wis- 
 dom and executive experience as to what should 
 be done. As was said by Chief-Justice Baldwin, 
 now Governor of Connecticut, whom surely none 
 will accuse of undue "radicalism":^ "Our Dec- 
 laration of Rights speak the language and the 
 lessons of the eighteenth century." The people 
 have left the courts to go on trying to interpret 
 twentieth-century needs in the terms of eighteenth- 
 century precedents and principles, and then some 
 persons violently censure the courts because they 
 have not been able to support all present needs 
 by "ancient" precedents "in existence when our 
 
 '"The American Judiciary," by Simeon E. Baldwin, page 375 
 (1905)- 
 
132 Majority Rule and the Jvdiciary 
 
 constitutions were adopted"! The public needs 
 as to social legislation should not be matters of 
 legal precedent at all — they depend on conditions 
 of fact which change with the time, the locality, 
 the industrial or economic environment, the con- 
 science and moral standards of the people, their 
 habits of Hfe and thought, and a thousand other 
 factors as complex and variable as American life 
 itself. Yet we expect our courts to support and 
 justify all these by the "ancient" precedents "which 
 were in existence when our constitutions were 
 adopted," as the New York court said, and we 
 would criticise our courts if they do not succeed 
 with reasonable agility! 
 
 The principle is wrong. Enlightened public 
 opinion, and not dry legal precedents from the 
 tomes, should be chart and compass in deter- 
 mining the bounds of our regulative legislation. 
 We cannot regulate modern gas and electrical 
 corporations by decisions rendered in the days of 
 the tallow dip; we cannot adequately control 
 four-track steam railroads merely by the law of 
 the stage-coach and the public inn; we cannot 
 be content to have our labor legislation forever 
 checked and thwarted by the decisions of a few 
 men out of the many, and those few, not men of 
 to-day, accountable in any way to their fellows, 
 but dead men, who lived in the days when manu- 
 
Majority Rule and the Judiciary 133 
 
 facture was carried on only In wholesome towns 
 and villages, on a small scale and without mod- 
 ern "division of labor" — in fact, when few per- 
 sons even cared whether women worked long 
 hours, or little children toiled in mines, or workers 
 breathed deadly fumes as they worked. "An- 
 cient" precedents "in existence when our consti- 
 tutions were adopted " ? Of course, if we try to 
 find in 1770 precedents to "sustain" 1912 legis- 
 lation as to "sweat-shops" or "underground bak- 
 eries " we will not find any, for there were no 
 "sweat-shops" or "underground bakeries" then, 
 and no one would have cared or tried to pass 
 laws about them then if there were. Clothing, 
 even in New York City, was then made only by 
 the housewife at her loom nearthe fireplace or 
 by the "gentleman-tailor" in the little shop in 
 which he alone worked. "Sweat-shops" were un- 
 heard of, labor unions as at present constituted did 
 not exist, bakeries below ground were unheard of, 
 street railroads and subways were undreamed of 
 — ^yet the rule of precedent in "police power" 
 matters means the constant attempt to apply this 
 inadequate yardstick. And present conditions 
 will change, probably, just as much or more in 
 a similar period of time. It would be as unsafe 
 and unjust to adopt the precedents and prevailing 
 social standards of to-day as binding upon to- 
 
134 Majority Rule and the Judiciary 
 
 morrow. Are the decisions of our judges as to 
 what was needed yesterday or to-day to harass 
 good men and women always? If we amend the 
 constitution every time a controlling precedent 
 stands in the way of meeting a present need, we 
 have not met the situation. The language of to- 
 day's amendment to the "due process" clause 
 may not at all suit to-morrow's condition, but may 
 prove a worse barrier or a more serious source of 
 injustice to-morrow. Is it not better simply to let 
 the clause stand, and let the people vote whether 
 a particular statute deemed necessary to-day shall 
 be enforced in spite of the court's view that a 
 reasonable conception of "due process" inhibits 
 the enforcement of the act .? Then, if changed con- 
 ditions call for some different policy a score or fifty 
 years hence, the same course is open, and no Hmita- 
 tions of an amendment that could not foresee all 
 possible future conditions has been set up. 
 
 Of course, if the scope of the "police power" 
 is determined by "the great public needs," or 
 "the general interests of the community," or "the 
 prevailing morahty and strong and preponderant 
 opinion," it is clear that the domain is one for 
 ultimate popular discretion rather than the rule 
 of bench-made precedents. If it be suggested that 
 too much emphasis has been placed upon the Fed- 
 eral definition of the "police power," it remains to 
 
Majority Rule and the Judiciary 135 
 
 point out that even under the most circumscribed 
 of State definitions the question whether a par- 
 ticular measure is reasonably calculated to con- 
 serve the public health, safety, or morals is a 
 question not of law, in the sense of legal doctrines 
 or principles, but of fact under the particular 
 conditions to which it applies. What is required 
 by the pubHc health, morals, and safety varies 
 with the locality. A tenement-house act might 
 seem absurd in Arizona, a statute regulating the 
 grazing of sheep might seem absurd in Greater 
 New York. Or it may vary with the time. A 
 law regulating the hours of labor in canneries 
 would have been laughed out of the legislature 
 or the courts seventy years ago, for the house- 
 wife did her own canning in the wholesome con- 
 ditions of her own kitchen; yet such a statute 
 may be very necessary under the conditions now 
 obtaining, for example, in the fruit-growing re- 
 gions of central New York. Who knows better 
 about that — the judges or the people.? Judges 
 are chosen because they are upright and know the 
 law, not because they know or can ascertain, when 
 they are sitting in a busy appellate court, whether 
 unclean and tubercular conditions in underground 
 bakeries could aiFect the bread after it is baked. 
 We do not stipulate,' as essential qualifications 
 for election or appointment to the judiciary, that 
 
136 Majority Rule and the Jvdidary 
 
 candidates shall have first-hand familiarity with 
 industrial or economic or social conditions and 
 phenomena, but with the law. We do not select 
 our judges because of a belief that they have the 
 soundest notions of governmental policy and states- 
 manship — men with these qualifications are desig- 
 nated to legislative or administrative positions. 
 Is it not all wrong to require^ or permit, our judges 
 to pass upon such matters, in the guise that they 
 are thereby dealing with questions of law? Was 
 not the New York court right in declaring that 
 the appeal for a broad and progressive scope of 
 the "police power" is "an appeal which should 
 be made to the people and not to the courts"? 
 
 If it be suggested, however, that this disavowal 
 of the doctrine of stare decisis as to matters of the 
 regulative powers of government is novel or un- 
 precedented doctrine, reference may be made to 
 the opinion of Mr. Justice Moody in the Em- 
 ployers' Liability Cases,^ in the Supreme Court 
 of the United States, the eloquent opinion of 
 Mr. Justice Cooley,^ in the Supreme Court of 
 Michigan, the opinion of Mr. Justice Mathews 
 in the celebrated case of Hurtado v. California,^ 
 also in the Supreme Court of the United States, 
 
 ' 207 United States Reports, page 463. 
 
 ' People ex rel. Le Roy v. Hurlbut, et at, 24 Michigan Reports, 
 page 44; quoted at page 130, ante. 
 ' no United States Reports, page 516; quoted at page 60, ante. 
 
Majority Rule and the Judiciary 137 
 
 and to the learned opinion of Chief-Justice Wins- 
 low, of Wisconsin, one of the greatest of Ameri- 
 can judges, upholding as "constitutional" a Work- 
 ingmen's ^Compensation Act, in the course of 
 which he said : ^ 
 
 A constitution is a very human document, and 
 must embody with greater or less fidelity the 
 spirit of the time of its adoption. It will be 
 framed to meet the problems and difficulties which 
 face the men who make it, and it will generally 
 crystallize with more or less fidelity the political, 
 social, and economic propositions which are con- 
 sidered irrefutable, if not actually inspired, by 
 the philosophers and legislators of the time; but 
 the difficulty is that, while the constitution is 
 fixed or very hard to change, the conditions and 
 problems surrounding the people, as well as their 
 ideals, are constantly changing. The poHtical or 
 philosophical aphorism of one generation is doubted 
 by the next, and entirely discarded by the third; 
 the race moves forward constantly and no Canute 
 can stay its progress. 
 
 When an eighteenth-century constitution forms 
 the charter of liberty of a twentieth-century gov- 
 ernment, must its general provisions be construed 
 and interpreted by an eighteenth-century mind 
 surrounded by eighteenth-century conditions and 
 ideals.? Clearly not. This were a command to 
 halt the race in its progress, to stretch the state 
 
 ' Borgnis, v. The Falk Co., 147 Wisconsin Reports, page 327, at page 
 348, et seq (191 1). That this doctrine is to be deemed to apply only 
 to " due process " and " police power " determinations, see, espe- 
 cially, concurring opinions of Marshall, J., and Barnes, J. 
 
138 Majority Rule and the Judiciary 
 
 upon a veritable bed of Procrustes. Where there 
 is no express command or prohibition, but only 
 general language or policy to be considered, the 
 conditions prevailing at the time of its adoption 
 must have their due weight; but the changed so- 
 cial, economic, and governmental conditions of 
 the time, as well as the problems which the changes 
 have produced, must also logically enter into the 
 consideration and become influential factors in 
 the settlement of problems of construction and 
 interpretation. 
 
 These general propositions are here laid down, 
 not because they are considered either new or in 
 serious controversy, but because they are believed 
 to be peculiarly applicable to a case like the 
 present, where a law which is framed to meet 
 new economic conditions and difficulties resulting 
 therefrom is attacked principally because it is 
 believed to off"end against constitutional guaran- 
 ties or prohibitions couched in general terms, or 
 supposed general policies drawn from the whole 
 body of the instrument. 
 
XI 
 
 THE CONSERVATISM AND PRACTICAL 
 
 ADVANTAGES OF THIS METHOD OF 
 
 "POLICE POWER" DEFINITION 
 
 The question for which every reader will expect 
 to find a direct and definite answer in this volume 
 may be stated thus: "What, if any, are the actual 
 and substantial advantages to be gained by the 
 adoption of Mr. Roosevelt's proposal as compared 
 with reliance merely upon continued efforts to util- 
 ize the present method of 'general amendment' 
 to accomplish the same legislative ends?" That 
 is a fair question, and it is a question by which 
 the advocates of the method under discussion 
 could afford to stand or fall. In a previous chap- 
 ter^ it has been pointed out that the "general 
 amendment" method has very commonly broken 
 down in practice and, in not a few cases, has 
 proved a weapon which the people were either 
 unable or reluctant to use, even to accompUsh 
 ends which decisive and persistent popular ma- 
 jorities have desired. In other instances, consti- 
 tutional amendments have been adopted, in the 
 
 ' Chapter VII, page 98, especially at page 100, et seq., ante. 
 139 
 
140 Majority Rule and the Judiciary 
 
 interests of particular legislation, and the elector- 
 ate has subsequently found that the action taken 
 was altogether too sweeping or that wholly un- 
 foreseen results had followed from judicial inter- 
 pretation of the language of the "specific" provi- 
 sion adopted. - Has Mr. Roosevelt's proposal any- 
 thing to oflFer? If sound in principle, can it also 
 be justified as more suitable than the "general 
 amendment" method as applied to cases involv- 
 ing advanced economic legislation, and therefore 
 both more conservative and more effectual? 
 
 Is not direct popular determination that a partic- 
 ular act is within the "police power" a more con- 
 servative method than the amendment of the consti- 
 tution in general terms to accomplish that concrete 
 result ? As has already been pointed out, the 
 use of the amendment method, where the phrase- 
 ology of the constitutional provision no longer 
 represents the majority opinion, is one thing; the 
 attempted utilization of the same method in 
 "police power" and "due process" definition is 
 quite another; for, as the United States Supreme 
 Court well declared, "the police power is, and 
 must be from its very nature, incapable of any 
 exact definition or hmitation." In the one class 
 of cases it has been the letter of the law, the 
 explicit enactment of the people in their last 
 declaration of fundamental law, that stands in 
 
Majority Rule and the Judiciary 141 
 
 the way of desired legislation, and accordingly it 
 follows that the phraseology of the existing con- 
 stitutional provision may best be changed by 
 amendment or repeal. In the other class of cases 
 it has been, not the wording of the constitutional 
 provision, but the political philosophy, economic 
 creed, social standards, and breadth of view-point 
 of the particular judge or judges that has barred 
 the way to the desired legislation; the people 
 have no desire or need to repeal or amend the 
 "due process" clause, but only to accompHsh the 
 substitution of the prevalent standards for the 
 incorrect conceptions of the judges. That is why 
 the method of adopting amendments in general 
 terms to cure judicial misconceptions under the 
 "police power" may be said to be unsuited to the 
 actual needs of such situations — any means of 
 deaHng merely with the particular act and the 
 particular misconception in relation thereto would 
 seem to be more suitable and, at the same time, 
 entirely sufficient. Would not the latter method 
 be also the more conservative and the less sweep- 
 ing and the less drastic? 
 
 If a State court now rejects under the "due 
 process" clause a statute which the Supreme 
 Court would uphold under that same clause, those 
 interested in the reinstatement of the act set about 
 securing a constitutional amendment, to be sub- 
 
142 Majority Rule and the Judiciary 
 
 mitted to the people after a specified period of 
 deliberation, for adoption or rejection by a ma- 
 jority vote of the electors taking part in the "ref- 
 erendum" thereon. For example, if the State 
 court of ultimate appeal holds an eight-hour law 
 for bakeries "unconstitutional'* for the reason 
 that it violates the "due process" clause and no 
 other, the trades-unions of bakers and the civic 
 organizations interested in the welfare of workers 
 in bakeries, and other interested persons, pro- 
 ceed to have the people vote upon the addition 
 of an amendment that "nothing in this section 
 contained shall prevent the enactment of laws 
 regulating the hours of labor in industrial or man- 
 ufacturing trades and employments." Or, if an 
 employers' liabiUty or workingmen's compensa- 
 tion statute is rejected, the trades-unions, the 
 civic organizations, and progressive employers of 
 labor set about, through their attorneys, securing 
 the popular adoption of a constitutional amend- 
 ment that "nothing in this section contained shall 
 be construed to prevent the enactment" of em- 
 ployers' liability or workingmen's compensation 
 legislation. If such an amendment is adopted 
 by the majority of the voters taking part in 
 the "referendum" upon the proposed amendment, 
 the act originally held "unconstitutional" is re- 
 enacted, in the same or such modified form as the 
 
Majority Rule and the Judiciary 143 
 
 legislature may see fit. But what has been done? 
 At least three things: 
 
 First. — ^The way has been cleared, not only for 
 the re-enactment of that particular act, but also 
 for the enactment of any other act dealing with that 
 subject. That is to say, the legislature may there- 
 upon enact any other act regulating the hours of 
 labor; for example, an act prescribing an eight- 
 hour work-day or a six-hour work-day, or an act 
 regulating the hours'of labor in trades other than 
 bakeries, or in all trades and employments. Or, 
 if the amendment dealt with workmen's compen- 
 sation or employers' liability for injuries to em- 
 ployees in the course of their employment, the 
 way is thereby cleared for any kind of an em- 
 ployers' liability or workingmen's compensation 
 law, drastic and objectionable though it may be. 
 Judicial rejection of a wisely drawn and conserv- 
 ative law may thus let down the bars for what 
 is foolish, crude, and fanatical. And as to any 
 such new law, the State courts could not say a 
 word; for, after a constitutional amendment say- 
 ing that the court shall not construe the "due 
 process" clause to prevent that class or category 
 of legislation, the court's power to do or say 
 any restraining word is gone, and the legislative 
 will has become omnipotent without any direct 
 expression of the popular will, except on the ques- 
 
144 Majority Rule and the Judiciary 
 
 tion whether there should be some sort of legisla- 
 tion of that character. In voting on the general 
 amendment, the people doubtless had in mind the 
 particular law, but in order to enable its reinstate- 
 ment, the amendment method requires them al- 
 most necessarily to let down the bars altogether 
 to any sort of a law of that general class and 
 subject-matter. That will be just the potential, 
 and not at all improbable, effect of the approach- 
 ing popular adoption in New York State of a con- 
 stitutional amendment^ to overcome the result 
 reached in the Ives case as to a workingmen's 
 compensation law. The amendment was drawn 
 with care by some of the ablest of the American 
 bar, with the eyes of the country upon them; yet 
 an examination of the phraseology of this pro- 
 posed amendment, as quoted in full later in this 
 chapter, will disclose that it certainly would take 
 away all the power of the New York courts to 
 interpose any bar or barrier to any sort of work- 
 ingman's compensation legislation an erstwhile 
 legislature might enact, socialistic and foolish, 
 crude and unjust, unscientific and unworkable 
 though it might be. The law drawn by the Wain- 
 wright Commission]appointed by Governor Charles 
 Evans Hughes was concededly most skilful and 
 fair and scientific in its provisions; it represented 
 
 1 Pages 146 and 147, post. 
 
Majority Rule and the Judiciary 145 
 
 the maximum of skill in draftsmanship and sound- 
 ness in substantive provisions. Yet in order to 
 enable it to be reinstated on the statute books of 
 the State it is necessary, under the present so- 
 called "conservative" method, to open the way 
 equally for the most careless and casual product 
 of an "accidental" legislature! Another concrete 
 instance of the same thing has already taken 
 place in New York. After the New York Court 
 of Appeals had declared " unconstitutional," with 
 a great deal of uncertainty and frequent realign- 
 ments in opinion, various phases of statutes reg- 
 ulating the hours of labor and the rate of wages 
 on the work of municipal contractors, the people, 
 at the behest of organized labor, cut the Gordian 
 knot in 1905, and passed a constitutional amend- 
 ment which, wisely or not, has enabled the legis- 
 lature to pass any sort of laws it pleases as to the 
 wages or hours of labor of the employees of con- 
 tractors engaged in municipal work, and the courts 
 have no power left to forbid or restrain. Does 
 not the existing method seem somewhat "radical" 
 and "drastic" when applied to these "police 
 power" matters ? It will be noted that the method 
 of amending the constitution to take specified 
 classes or kinds of legislation out of the inhibi- 
 tion of the constitution as construed by the court 
 is but a pro tanto taking away of the power of 
 
146 Majority Rule and the Judiciary 
 
 the courts to hold legislation "unconstitutional." 
 Each such amendment, to meet the emergency 
 created by a misconception as to a particular law, 
 withdraws all the specified class of legislation from 
 the power and function of the court to say or do 
 anything about it except meekly to enforce it. 
 A multipUcity of such special amendments, as in 
 some Western States, has worked a substantial 
 and serious impairment of what has been con- 
 ceded to be the historic prerogative and useful 
 public function of the American judiciary. 
 
 Second. — By the adoption of a constitutional 
 amendment creating an "exception" to the oper- 
 ation of the "due process" clause, there has been 
 drafted upon that great constitutional guaranty 
 a provision of perhaps ambiguous and unforeseen 
 meaning, which may rise up to plague the people 
 a thousand times in years to come. An instance 
 is the proposed New York amendment as to 
 workingmen's compensation legislation, already re- 
 ferred to: 
 
 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 
 by employers or by employers and employees, or 
 otherwise, either directly or through a State or 
 other system of insurance, or otherwise, of com- 
 pensation for injuries to employees, or for the 
 
Majority Rule and the Judiciary 147 
 
 death of employees resulting from such injuries, 
 without regard to fault as a cause thereof, and 
 for the settlement, with or without trial by jury, 
 of issues which may arise under such legislation, 
 or to provide that the right to such compensa- 
 tion and the remedy therefor shall be exclusive. 
 
 Many of the ablest members of the American 
 bar, men like Mr. Francis Lynde Stetson, and 
 Mr. J. Hampden Dougherty, and Mr. Joseph P. 
 Cotton, Jr., have worked laboriously and patri- 
 otically, with the aid of some well-known judges, 
 to frame this amendment. Perhaps no amend- 
 ment to a State constitution ever received so 
 careful and skilful scrutiny. But who can say 
 with certainty what even this most carefully 
 framed amendment may some day be held to 
 permit or prevent.? Even its authors do not 
 agree as to what it would make possible, even 
 now. Some sharp public discussions have taken 
 place and some profound pamphlets have already 
 been written by men closely identified with the 
 formulation or revision of it. If that is the case 
 now, what may some day be ingeniously worked 
 out from its compHcated and extended phrase- 
 ology to apply to conditions not now projected 
 or foreseen? Does not also this phase of the 
 matter make the adoption of special "constitu- 
 tional exceptions" to meet particular judicial mis- 
 
148 Majority Rule and the Judiciary 
 
 conceptions appear a far-reaching and extreme 
 method ? 
 
 Third. — ^The adoption of a series of "constitu- 
 tional exceptions" to meet particular decisions 
 under the "due process" and "police power" 
 clause makes the Bill of Rights in the State con- 
 stitutions a patchwork of exceptions and provisos, 
 and puts the State constitutions in the position 
 of very solemnly saying that the "due process" 
 clause does not mean a lot of things which the 
 highest court of the land has held it could not 
 possibly mean! The New York State constitu- 
 tion will be in just that position when the work- 
 ingmen's compensation amendment above quoted 
 has been adopted, and is already in that position 
 as to a number of other matters! The "general 
 amendment" method is thus unsuitable and too 
 far-reaching as a method of determining the in- 
 terpretation of the "due process" clause. After 
 that clause declares that "no person shall be de- 
 prived of life, liberty, or property without due 
 process of law," it seems unfortunate and incon- 
 gruous to add to this historic guaranty a provi- 
 sion, as is now commonly being done in American 
 States, that, in effect, "excepting, however, that 
 this section shall not be construed to prevent the 
 taking of the property of an employer without 
 'due process,' if his employee be injured in the 
 
Majority Rule and the Judiciary 149 
 
 course of his employment," or that "excepting, 
 however, you may nevertheless 'take the prop- 
 erty' of an employing baker, if his bakery be 
 underground," and so on. This creating of broad 
 exceptions to the historic guaranty, that are written 
 in as such upon the parchment of constitutional 
 proviso, seems as unfortunate as it is unsuitable 
 for the achieving of the essential ends sought. 
 In addition, it is quite unnecessary. Yet it is 
 commonly being said that Mr. Roosevelt's recent 
 proposal is something drastic and sweeping, and 
 that the usual processes of general amendment 
 embody a conservative and prudent procedure to 
 which the people should hold fast! 
 
 Is not the suggested mode of "referendum" upon 
 the particular act essentially the more constructive 
 and suitable method of overcoming judicial obstruc- 
 tion to regulative legislation ? Under it the people 
 would vote simply upon the particular act and 
 not upon anything framed in general terms. The 
 time and method of voting would be in the pre- 
 cise formula now in vogue for popular action 
 upon constitutional amendments, excepting, prob- 
 ably, a sHghtly greater period for deliberation 
 and consideration would be required before the 
 vote was taken. The people would be required 
 to pass opinion not, as now, upon a legal ab- 
 straction, comprehensible only to a trained mind, 
 
ISO Majority Rule and the Judidary 
 
 if to any, and bearing no evidences of a direct 
 or tangible relation to anything in the popular 
 mind, but upon a concrete and particular act 
 of remedial legislation, which would mean a defi- 
 nite and readily explainable thing to every em- 
 ployer and to every employee. Considering the 
 form and character of most constitutional amend- 
 ments as submitted to the people in American 
 States, it is hardly surprising that sometimes more 
 than half of the electors do not undertake to 
 pass upon them at all. The "general amend- 
 ment" method involves a battle between bat- 
 teries of experts in legal terminology; it clut- 
 ters the constitutions with things which should 
 be in statues, and it fails oftentimes to present 
 anything of direct and effectual appeal to the 
 attention of the electorate. Does any one have 
 doubt as to which the people of a commonwealth 
 could more intelligently and interestedly pass 
 judgment — Mr. Stetson's sonorous amendment,^ 
 or the Wainwright act which it is all phrased to 
 make possible? Every employer would know just 
 what the reinstatement of the Wainwright act 
 would mean to him and his business, as to the 
 setting aside of a fund for the compensation of 
 injured employees. Every employee would un- 
 derstand just what the reinstatement of the act 
 
 ' Quoted in full at pages 146 and 147, ante. 
 
Majority Rule and the Judiaary 151 
 
 would mean to him should he be injured or killed 
 while at work. Translated thus concretely into 
 the terms of industrial conditions and the dollars 
 and cents charged against the cost of the product 
 or service and paid over to the workman or those 
 dependent upon him, the matter would also be 
 one which the general community, the purchaser 
 and the consumer, could pass intelligently and in- 
 terestedly upon, and determine whether the para- 
 mountcy of the public interest should be asserted 
 to the end that these things should hereafter be. 
 That kind of a "referendum" would be far differ- 
 ent than summoning the voters to pass upon a 
 legal jargon or a vague platitude. 
 
 At the same time, under this method the con- 
 stitutional guaranties would not be limited or ex- 
 cepted from or changed from the form in which 
 they have existed since Magna Charta. Their 
 prohibitions would be no less general in terms. 
 The power and function of the court in interpret- 
 ing them would be preserved. There would be 
 no pro tanto taking away of the power of the courts 
 to pronounce legislation "unconstitutional," as is 
 done by the amendment method. If, after the 
 people had voted to reinstate a particular Work- 
 ingmen's Compensation Act, for example, the 
 legislature should enact a different and more 
 drastic act, the court would still have all its pres- 
 
152 Majority Rule and the Judiciary 
 
 ent power to hold this latter act "unconstitu- 
 tional," to state trenchantly the considerations of 
 law and policy against it, and to refuse it any 
 enforcement. A full and deliberate public dis- 
 cussion and a popular vote thereon would then 
 necessarily take place before the act as adopted 
 by the legislature could be put in force, and it 
 would be put in force then only because the 
 people had specifically so willed it. And if, later, 
 the conditions and the public needs changed, or the 
 pendulum of pubhc opinion swung in the opposite 
 direction as to the social legislation in behalf of 
 which the "referendum" had been invoked, the 
 constitutionajl guaranty could be restored to all 
 of its former inhibition by the simple process of 
 the popular repeal of the particular statute. 
 
 Do not these considerations lead to the behef that 
 Judge Grosscup^ and Dean Lewis were right in 
 saying that this is the more simple, the more 
 suitable, and the more conservative method of 
 dealing with the situation ? 
 
 ' Pages 122 to 125, ante. 
 
XII 
 
 SOME PRACTICAL OBJECTIONS TO THIS 
 
 METHOD OF "POLICE POWER" 
 
 DEFINITION CONSIDERED 
 
 Several objections that are urged against Mr. 
 Roosevelt's proposal are not addressed to any 
 underlying principle, but relate only to the work- 
 ing out of the plan in practice. These objections 
 may be briefly considered: 
 
 The objection that the plan would mean "the tyr- 
 anny of a small minority." A number of well- 
 meaning persons have taken the position that 
 they cordially approve of Mr. Roosevelt's pro- 
 posal as a matter of principle and public policy, 
 but that they are obliged to oppose its adoption 
 for the reason that in practice it would mean mi- 
 nority, rather than majority, determination. They 
 frankly concede that the definite will of a decisive 
 and actual majority of the voters, "deliberately 
 formed, consistently adhered to, and fairly ex- 
 pressed, should determine the treatment of pub- 
 lic affairs in all branches, even the judiciary," ^ 
 but they fear that only a minority of the elec- 
 
 ^New York Times Editorial, January 24, 1912. 
 
154 Majority Rule and the Judiciary 
 
 torate would control the result of the popular 
 "referendum." That objection cannot be deemed 
 well taken. In the first place, it could properly 
 be urged against nothing other than a loose and 
 unscientific embodiment of the principle, so far as 
 its actual operations are concerned. Mr. Roose- 
 velt has at all times made it clear that he favored 
 such provisions as would ensure the fullest popu- 
 lar deliberation, and the fullest possible expres- 
 sion of the popular will, to the end that only the 
 well-considered decision of an undoubted major- 
 ity of the electorate might be certified by the 
 result of the referendum. It would be quite feas- 
 ible, and consistent with the fundamental prin- 
 ciple involved, that the working plan should em- 
 body such safeguards as would ensure an expres- 
 sion of the opinion of a clear popular majority. 
 For example, the objection under discussion could 
 in no way be urged against the ctoncrete illustra- 
 tion of a constitutional amendment to carry out 
 Mr. Roosevelt's proposal, which was set out in a 
 previous chapter.^ In the second place, there is 
 no more implication of "minority rule" in Mr. 
 Roosevelt's proposal than in the "general amend- 
 ment" method. If anything there is less. It 
 rarely happens, in New York State or in other 
 States, that anything like a majority of the elec- 
 
 'Page IIS, '">''• 
 
Majority Rule and the Judiciary 155 
 
 torate is polled in favor of the adoption of a sub- 
 mitted constitutional amendment. When voters 
 are called upon to decide as to the merits of a 
 constitutional amendment framed in general terms, 
 formidable and perhaps unintelligible in its legal 
 phraseology, and bearing no tangible relation to 
 any measure of economic relief, it often happens 
 that less than a majority of the electors vote upon 
 the matter at all, and this kind of a minority 
 vote adopts our constitutional amendments, in all 
 but a few States. For example, in New York, 
 under the cumbersome "general amendment" 
 method, it has several times happened that ap- 
 proximately one-fourth of the voters taking part 
 in a particular election have been sufficient to en- 
 graft upon the constitution important and far- 
 reaching changes. Such a condition ought not to 
 be permitted under any system of procedure, but 
 it is at least true that the "general amendment" 
 method has encouraged and perpetuated "minor- 
 ity rule," and that "minority rule" under Mr. 
 Roosevelt's proposal would be less objectionable 
 for the reason that only a particular statute and 
 not the creation of a broad exception as to a 
 class or category of legislation would be passed 
 upon. Mr. Roosevelt's proposal would tend to 
 do away with "minority rule," in that it would 
 doubtless be coupled with requirements making 
 
156 Majority Rule and the Judiciary 
 
 a decisive popular expression the essential of the 
 effectiveness of the referendum, and also in that 
 it would encourage general participation in the 
 referendum by affording the voters something 
 they could pass more intelligently and interestedly 
 upon. 
 
 The objection that the plan is stated to relate only 
 to State governments. Some persons object to Mr. 
 Roosevelt's proposal because it is not made to 
 apply to the Supreme Court and its determina- 
 tions as to " due process." They think that it 
 should apply to the Federal courts. Other persons 
 object to the proposal because they cannot un- 
 derstand why it is not advocated as to the na- 
 tional government, although they concede that it 
 should not be. It is simply another instance 
 where the reasonable course seems to lie between 
 the extremes of view. The plan is not being ad- 
 vocated with reference to the Supreme Court's 
 "interpretation" of the "due process" clause for 
 the reason that it does not seem to be necessary 
 that it should so apply. Our people do not ad- 
 vocate or adopt organic changes for academic 
 reasons only. The Supreme Court, as we have 
 seen,^ has adopted a reasonable and progressive 
 standard as to what legislation is permitted by 
 the "due process" clause, so long as no other 
 
 'Page 159 et seq., ante. 
 
Majority Rule and the Judiciary 157 
 
 constitutional provision is contravened. As to 
 a court which itself adopts correct standards 
 and conceives itself bound not to press "the 
 broad words" of the "due process" clause to "a 
 dryly logical extreme," but rather to give efficacy 
 to "the prevailing morahty and strong and pre- 
 ponderant opinion" as to what is "immediately 
 and greatly necessary for the public welfare," 
 there is less reason for suggesting a constitutional 
 change to accomplish that very result! The ad- 
 vocacy of the proposal is, of course, being cen- 
 tred in those commonwealths where it is needed. 
 Should there ever come to be great reason and 
 need for its adoption in the national sphere, as 
 means of giving eflPect to the underlying social 
 conscience of the people, doubtless it would then 
 be seriously considered in that connection. There 
 is the further fact to be noted that the adoption 
 of such a plan, in some or many States, would 
 afford concrete expressions of the popular will 
 which would be of great assistance to the Supreme 
 Court and progressive State courts in determin- 
 ing the "prevailing social morality" and "prepon- 
 derant opinion" as to particular classes of meas- 
 ures. 
 
 The objection that the plan would subject " police 
 power" legislation to the "fitful and changing im- 
 pulses of a temporary majority." What has just. 
 
158 Majority Rule and the Judiciary 
 
 been said as to "minority rule" applies with equal 
 force in this connection. The objection could 
 have any merit at all only if the actual details 
 of the working plan contained no safeguards to 
 ensure deHberate and consistent popular action. 
 Certainly the period of popular deliberation ad- 
 vocated by Colonel Roosevelt is much greater 
 than that required for the adoption of broad con- 
 stitutional amendments in many States of the 
 West. Certainly no popular action could be so 
 "changing" as the course of judicial decision, in 
 some commonwealths, in respect to not a few 
 questions of law, nor as "fitful" as the "chang- 
 ing impulses" of some executives accustomed to 
 deplore such manifestations in others. It is also 
 true, as we have seen,^ that popular needs vary 
 with the time and vary with the locality, so that 
 some elasticity as to the permissible bounds of 
 "police power" legislation is essential rather than 
 objectionable. 
 
 The objection that the plan would open the way 
 to the adoption of dangerous and "confiscatory" 
 legislation. The real objection of persons who op- 
 pose this proposal for insincere reasons is a secret 
 fear that the plan would enable the adoption of 
 a "radical" programme of ill-considered legislation. 
 That contention might have had some public force 
 
 'Page 131 et seq., ante. 
 
Majority Rule and the Judiciary 159 
 
 ten years ago, but not now. Efforts to secure 
 advanced legislation along economic lines are no 
 longer "socialistic" or "revolutionary"; these ef- 
 forts are not now in the hands of "the dangerous and 
 the unsafe." On the contrary, many of the ablest 
 men in business and many of the noblest women 
 in American home life are giving freely of their 
 time, and energy, and money, for the advance- 
 ment of those just and proper measures of social 
 reform which still receive judicial disapproval in 
 some States. Only the continuance of the "gen- 
 eral amendment" method presents any reasonable 
 possibility that these unselfish and constructive 
 efforts may lead to anything drastic and danger- 
 ous. To illustrate: The National Manufacturers' 
 Association — ^whom no one will accuse of being 
 "confiscatory" in its aims — has determined it to be 
 good business policy, as well as good conscience, 
 to do away with the old system of "negligence 
 actions" and "claim agents," and have a scien- 
 tific system of workingmen's compensation, under 
 which the workingman or his family gets the 
 "compensation" and not his attorneys. The as- 
 sociation is co-operating with other agencies of 
 public opinion in securing the enactment of rea- 
 sonable and workable laws to this effect. But 
 the association would, of course, not favor the 
 enactment of crude, careless, and "confiscatory" 
 
i6o Majority Rule and the Judiciary 
 
 legislation, and would be reluctant to make that 
 kind of legislation possible. In New York, how- 
 ever, to secure the re-passage of the fair and just 
 act drawn by the Hughes commission, we are en- 
 gaged in the taking down the constitutional barriers 
 to any legislation on this subject, and the way will 
 be cleared for the most careless and the most 
 drastic law which a "temporary" legislative ma- 
 jority, with the aid of the governor, saw fit to 
 pass. No, Mr. Roosevelt's proposal would not 
 open the way for the adoption of dangerous and 
 "confiscatory" legislation, but it would make it 
 possible to put in force just and sound legislation 
 without opening the way for the facile adoption 
 of the other kind the following year. It aflFords 
 a simple and direct way of passing concretely upon 
 measures of social reform which press for solution; 
 it affords the way of considering them separately, 
 specifically, on their individual merits and without 
 relation to anything else, and that manner of pro- 
 cedure is certainly "conservative" and not "rad- 
 ical." The "conservatives" may as well meet 
 these issues on their merits. These measures must 
 be met and cannot be evaded. Mr. Roosevelt's 
 proposal furnishes the convenient method of for- 
 mulating and passing concretely upon the issues 
 of this coming contest. 
 
XIII 
 
 MR. ROOSEVELT'S PROPOSAL AND THE 
 FUNDAMENTALS OF GOVERNMENT 
 
 It remains to consider whether there is any- 
 thing essentially repugnant to the fundamentals 
 of republican government in this proposal that, as 
 an ultimate or potential check upon judicial mis- 
 conceptions, the deliberate determination of a de- 
 cisive popular majority shall be made "the high- 
 est authority " concerning the enforcement of any 
 desired measure of advanced economic or social 
 legislation. 
 
 Is not the determination of such matters by the 
 ascertainment of "the will of the ultimate sover- 
 eignty" of the people a proposal well grounded in 
 the fundamental principles of republican govern- 
 ment? It has been a common charge that there 
 is being proposed by Mr. Roosevelt and those 
 who hold with him some radical subversion of the 
 basic principles and standards of the American 
 constitutional system. A distinguished educator^ 
 has discussed this proposal, among others, in a 
 
 '"Why Should We Change Our Form of Government?" by 
 Nicholas Murray Butler (Charles Scribner's Sons: 1912). 
 
 161 
 
1 62 Majority Rule and the Judiciary 
 
 vigorous volume entitled "Why Should We 
 Change Our Form of Government?" — as though 
 a change in "form of government" were involved 
 in the proposal that New York or Illinois should be 
 enabled to do, upon a decisive and deliberate vote 
 of their electorate, what Wisconsin or Iowa or Ohio 
 can freely do without any such vote ! Surely there 
 is nothing novel or destructive in the conception 
 that a question of the regulative powers of govern- 
 ment, either concrete or general, may be referred 
 to and determined by the ascertained "will of the 
 ultimate sovereignty of the whole country," or 
 that a determination of a court as to the scope 
 of the regulative powers of government may like- 
 wise be "corrected" or "reversed" by a dehber- 
 ate and decisive expression of the popular will, 
 directly or through the representative assemblies 
 of government. Judicial "decisions" are "re- 
 versed" in this sense very frequently, as we have 
 seen. 
 
 The Supreme Court of the United States has 
 seen nothing revolutionary or destructive in ac- 
 cepting the ascertained "will of the ultimate sov- 
 ereignty of the whole country" on questions of the 
 powers of government, even when the decisions 
 of that court are "actually reversed" thereby. 
 To illustrate: The Supreme Court held, early in 
 the history of the republic, that under the con- 
 
Majority Rule and the Judiciary 163 
 
 stitution an individual could maintain a suit 
 against a sovereign State in the courts of the 
 United States. This decision created "a shock 
 of surprise" ^ throughout the land, for by the pre- 
 vailing conceptions the non-suability of a sov- 
 ereign State without its consent was an essential 
 element of its sovereignty. Those who held this 
 view appealed to the country from the court, and 
 by the adoption of the Eleventh Amendment it 
 was determined that thereafter the constitution 
 should not be construed as the Supreme Court 
 had construed it. The language of the amend- 
 ment is noteworthy — "the judicial power of the 
 United Stated shall not be construed to extend to 
 any suit in law or equity," etc. This is parallel 
 with what the people of New York are about to 
 declare as to workingmen's compensation legisla- 
 tion and the "due process" section — "nothing 
 contained in this constitution shall he construed 
 to Hmit the power of the legislature," ^ etc. These 
 provisions mean nothing more or less than defini- 
 tion by the electorate; and concerning the provi- 
 sion quoted, when adopted as the Eleventh Amend- 
 ment to the Federal Constitution, the Supreme 
 Court of the United States said, as recently as 
 1890: 
 
 • 134 United Statps Reports, page l, at page il. 
 'The proposed amendment to the New York Constitution is 
 quoted in full at pages 146 and 147, ante. 
 
164 Majority Rule and the Judiciary 
 
 This amendment, expressing the will of the ulti- 
 mate sovereignty of the whole country, superior to all 
 legislatures and all courts, actually reversed the de- 
 cision of the Supreme Court. 
 
 In order that there may be clearly seen the 
 equable and approving spirit in which the Su- 
 preme Court itself referred to this explicit "re- 
 versal," by a referendum, of the "decision" it had 
 made and the "interpretation" which it had 
 therein given to the constitution, it may be well 
 to quote from the opinion of the court in Hans 
 V. Louisiana'^ where the court, by Mr. Justice 
 Bradley, said, concerning the earlier "decision" 
 so "reversed": 
 
 That decision was made in the case of Chis- 
 holm V. Georgia (2 Dall. 419), and created such a 
 shock of surprise throughout the country that, 
 at the first meeting of Congress thereafter, the 
 Eleventh Amendment to the constitution was al- 
 most unanimously proposed, and was in due course 
 adopted by the legislatures of the States. This 
 amendment, expressing the will of the ultimate 
 sovereignty of the whole country, superior to all 
 legislatures and all courts, actually reversed the 
 decision of the Supreme Court. It did not in 
 terms prohibit suits by individuals against the 
 States, but declared that the constitution should 
 not be construed to import any power to author- 
 ize the bringing of such suits. . . . The Supreme 
 
 ' 134 United States Reports, page i, at page 11. 
 
Majority Rule and the Judiciary 165 
 
 Court had construed the judicial power as extending to 
 such a suit, and its decision was thus overruled. . . . 
 This view of the force and meaning of the 
 amendment is important. It shows that, on this 
 question of the suabiUty of the States by indi- 
 viduals, the highest authority of this country was 
 in accord rather with the minority than with the 
 majority of the court in the decision of the case 
 of Chisholm v. Georgia, and this fact lends addi- 
 tional interest to the able opinion of Mr. Justice 
 Iredell on that occasion. The other justices were 
 more swayed by a close observation of the letter 
 of the constitution without regard to former ex- 
 perience and usage. . . . Looking backward from 
 our present stand-point at the decision in Chis- 
 holm V. Georgia, we do not greatly wonder at the 
 effect which it had on the country. . . . Looking 
 at the subject ... as Mr. Justice Iredell did, in 
 the light of history and experience and the estab- 
 lished order of things, the views of the latter were 
 clearly right, as the people of the United States 
 in their sovereign capacity subsequently decided. 
 
 Not only did the court write so affably about 
 the "actual reversal" of its decisions by "the 
 people in their sovereign capacity," even going so 
 far as to indicate the court's mature view to be 
 that "the highest authority in the country" had 
 been right in overruling the majority and sus- 
 taining the minority of the court, but the Supreme 
 Court also, at this time (1890), when its atten- 
 tion was called to the fact that the particular 
 question of jurisdiction before it did not come 
 
1 66 Majority Rule and the Judiciary 
 
 within the explicit terms of the constitutional 
 prohibition, held, nevertheless, that as it was clear 
 that the people, at the time of the adoption of 
 the Eleventh Amendment, had meant to rule and 
 decide that the court should not construe the 
 constitution to mean that a State was suable with- 
 out its consent, no holding should be made which 
 would defeat the manifest popular will. 
 
 A writer has well stated the fundamental view 
 as to the essentials of republican government in 
 this respect — note his words with care: 
 
 As the people are the only legitimate fountain of 
 power, and it is from them that the constitutional 
 charter, under which the several branches of gov- 
 ernment hold their power, is derived, it seems 
 strictly consonant with the republican theory, to 
 recur to the same original authority, not only when- 
 ever it may be necessary to enlarge, diminish, or 
 new-model the powers of government, but also 
 whenever any one of the departments may com- 
 mit encroachments on the chartered authorities 
 of the others. The several departments being 
 perfectly co-ordinate by the terms of their com- 
 mon commission, none of them can pretend to 
 an exclusive or superior right of settling the boun- 
 daries between their respective powers; and how 
 are the encroachments of the stronger to be pre- 
 vented, or the wrongs of the weaker to be redressed, 
 without an appeal to the people themselves, who, as 
 the grantors of the commission, can also declare 
 its true meaning and enforce its observance? 
 
Majority Rule and the Judiciary i6j 
 
 Who wrote those words? Mr. Roosevelt? 
 Dean Lewis? No; they were addressed by Alex- 
 ander Hamilton/ to the people of the State of New 
 York, in explaining why he considered a sound 
 principle of the Virginian constitution, framed by 
 Thomas Jefferson, was not wholly applicable in 
 the Federal sphere! 
 
 Elisha Mulford, in his profound volume, "The 
 Nation," pubhshed just at the close of the war 
 between the States, clearly summarized the spirit 
 of American Institutions in respect to matters of 
 legislative power and policy:^ 
 
 The opinions of the judiciary cannot be re- 
 garded as the power determinative, in its ulti- 
 mate action, of the destination of the State, nor 
 accepted as the finality in its course, since this 
 would be inconsistent with its existence in the 
 realization of the freedom of the people. . . . 
 The concession to the judiciary of an ultimate 
 decision in the political sphere would be the ref- 
 erence of the destination of the State to a power 
 . . . whose action is a precedent which is pre- 
 sumed to be final and beyond reversal, and whose 
 opinion is a decision from which there is no ap- 
 peal. Then the historical progress of the people 
 would no longer be traced in the better institu- 
 tion of rights, and the broader freedom, and the 
 more varied organization of its powers, but in 
 judicial decisions rendered, it may be, upon feigned 
 issues and pronounced over contending litigants. 
 
 • "The Federalist," Paper No. XLIX. 
 
 ' "The Nation," by Elisha Mulford, page 203 (1870). 
 
1 68 Majority Rule and the Jvdiciary 
 
 ... To make the opinions of the judiciary a 
 finality in the poHtical order would fetter the free 
 spirit of the people, confining it, not in the as- 
 sertion and regulation of law as the determina- 
 tion of the organic will, but in the conformance 
 to a mere legality. The past, by its precedents, 
 would impose its authority upon the present. 
 The energy of the people perishes when prece- 
 dents become the substitute for the action of a 
 living will and the strength of a living spirit. 
 . . . The formative political power must belong 
 only to the power which is representative of the 
 poUtical will. 
 
 In a brilliant address before the Law School of 
 the University of Pennsylvania, on April 27, 1906, 
 Chief Justice Walter Clark, of the Supreme Court 
 of North Carolina, expressed the view which is 
 held by an increasing number of jurists. State 
 and Federal, who have made a scholarly and can- 
 did study of the relations of the courts to legis- 
 lation. Said Chief Justice Clark: 
 
 The vast political power now asserted and ex- 
 ercised by the court to set aside public policies, 
 after their full determination by the legislature, 
 cannot safely be left in the hands of any body of 
 men, without supervision or control by any other 
 authority whatever. 
 
 What "other authority" could there be, under 
 any conformance to the basic principles and the 
 traditions of our form of government, than "the 
 will of the ultimate sovereignty" of the people. 
 
Majority Rule and the Judiciary 169 
 
 "superior to all legislatures and all courts" — 
 "the highest authority in the land"? 
 
 Nor is this fundamental principle of republican 
 government, so vigorously enunciated by jurists 
 such as Mr. Justice Harlan^ and Chief Justice 
 Walter Clark, and by pubhcists such as Herbert 
 Croly,^ anything which present-day organs of 
 "conservative" opinion have been able to chal- 
 lenge. The New York Times, a newspaper which 
 no one has ever suspected of "progressive" ten- 
 dencies, recently said, with great frankness:^ 
 
 That the definite will of the majority of the 
 voters, deliberately formed, consistently adhered 
 to, and fairly expressed, should determine the 
 treatment of public affairs in all branches, even 
 the judiciary, is the fundamental principle of de- 
 mocracy. 
 
 The test of a measure is often its alternatives. 
 If Mr. Roosevelt's proposal is not adopted as a 
 means of enabHng the people of the States, within 
 the constitution, to put in force the advanced eco- 
 nomic legislation which they need, how will this 
 be brought about, if at all ? Answer may be taken 
 from the frank admonition uttered by EHhu Root 
 ''—chief critic of Mr. Roosevelt's proposal — may 
 the method suggested by the senior senator from 
 
 ' Page 79, ante. " Page 75, ante. 
 
 ^Editorial: "In the Enemy's Country," January 24, 1912. 
 
170 Majority Rule and the Judidary 
 
 New York be deemed more likely to preserve the 
 stability and integrity of the organic law? I 
 quote from Mr. Root's now famous address be- 
 fore the Pennsylvania Society, in December, 1906: 
 
 The governmental control which they (the people 
 of the United States) deem just and necessary, 
 they will have. It may be that such control 
 would better be exercised in particular instances 
 by the governments of the States, but the people 
 will have the control they need either from the 
 States or from the national government; and if 
 the States fail to furnish it in due measure, sooner 
 or later constructions of the constitution will be 
 found to vest the power where it will be exercised. 
 
 If Mr. Roosevelt's proposal is "radical," what 
 shall we say of Mr. Root's ? Is it consistent with 
 any principle of our government to leave our Fed- 
 eral courts to find "constructions of the con- 
 stitution," to vest in the national government the 
 discharge of functions which, but for lack of a suit- 
 able enabhng procedure under the State constitu- 
 tions, might fittingly be fulfilled by the States? 
 
 It remains to refer briefly to the contention 
 that the proposal under consideration would in 
 some unexplained way destroy or impair the hon- 
 orable estate or high functions of our judges and 
 our courts. The epithets applied have been bit- 
 ter-^" judicial vascetomy" is the delicate phrase 
 
Majority Rule and the Judiciary 171 
 
 of one great metropolitan newspaper ' — but the ex- 
 planations and attempted demonstrations have 
 been a looked-for but non-existent feature of this 
 campaign of loose indictment. Is it not clear 
 that the method under discussion would do no 
 such thing, but that, on the contrary, it would 
 restore and strengthen the traditional confidence 
 of our people in our courts, by removing the un- 
 suitable system which has caused popular resent- 
 ment against the courts? Can we destroy our 
 courts by restoring them to full popular favor? 
 Will we impair their functions by relieving them 
 of an ultimate "guess" as to something which 
 should never have been theirs for final determina- 
 tion at all ? 
 
 Congressman Gardner of Massachusetts has in- 
 dicated with peculiar feHcity just what is meant. 
 In an address in the national House of Represen- 
 tatives on April 4, 1912, after arraigning vigorously 
 all present agitation for judiciary reform in the 
 United States, he referred to the "present age of 
 Anglo-Saxon discontent," and reproachfully asked :^ 
 
 Why is it that in the wave of change that has 
 swept over England, the British judges and Brit- 
 ish courts have not been the subject of attack? 
 Why should discontent manifest itself in one di- 
 rection at home and in another abroad? 
 
 ' Brooklyn Eagle, June 2, 1912. 
 *New York Tribune, April 5, 1912. 
 
172 Majority Rule and the Judiciary 
 
 The explanation of the fact upon which Con- 
 gressman Gardner accurately commented is not 
 far to seek. In the midst of the most seething, 
 bitter discontent that has swept over any mod- 
 ern people, an era in which British democracy 
 has been throwing off the fetters of an earlier 
 feudalism, the British courts have stood un- 
 scathed, unchallenged, undisturbed in their ad- 
 ministration of justice between man and man, 
 because they knew and every one knew that they had 
 no power to interpose any harrier to the sovereign 
 will of the people, on any matter of governmental 
 policy or political philosophy ! No, to leave the 
 judiciary free from the sphere of political or legis- 
 lative discretion and policy, untrammelled in the" 
 administration of private justice and the enforce- 
 ment of the sovereign public will, destroys neither 
 the independence nor the integrity of the courts, 
 but entrusts to them their highest functions. As 
 was so impressively said by Mr. Justice Hughes 
 at the dinner given by the New York County 
 Lawyers' Association upon the occasion , of his 
 elevation to the nation's great court: 
 
 It is in any community and under any system 
 of government a great privilege to be employed in 
 the decision of controversies between man and 
 man. It is a high function to be an arbiter of 
 justice. The sentiment of justice, after all is said, 
 
Majority Rule and the Judiciary 173 
 
 is the most important sentiment. But in a de- 
 mocracy the highest privilege that any man can enjoy 
 is to enforce the fundamental will of the people. 
 Let it never be forgotten that the constitution is 
 ordained of the people to protect the people — to 
 insure government by the peoj^le. 
 
 There are, of course, thqse who, even in this 
 republic where the people have not infrequently 
 erred in their choice of men, but have rarely erred 
 in their adherence to principles and policies, be- 
 lieve that in a field of decision like that involved 
 in these regulative matters, the possibiUty that 
 the people, untrained in the formulas and tradi- 
 tions of the law, might ultimately sit in judgment 
 upon the public soundness of a determination 
 reached by a judge, could only impair the effi- 
 ciency and independence of the judiciary and con- 
 fer upon the people a task for which they are in 
 no wise fitted and as to which their determina- 
 tions could have neither value nor safety. This 
 view as to the effect of submitting such matters 
 to ultimate popular scrutiny was well answered 
 by a distinguished Federal Judge — William How- 
 ard Taft— in an address in 1895 before the Ameri- 
 can Bar Association : 
 
 Nothing tends more to render judges careful 
 in their decisions and anxiously solicitous to do 
 exact justice than the consciousness that every 
 
174 Majority Rule and the Judiciary 
 
 act of theirs is to be submitted to the intelligent 
 scrutiny and candid criticism of their fellow men. 
 . . . The comments made by learned text-writers 
 and by the acute editors of the various law re- 
 views upon judicial decisions are therefore highly 
 useful. Such critics constitute more or less im- 
 partial tribunals of professional opinion before 
 which each judgment is made to stand or fall on 
 its merits, and thus exert a strong influence to 
 secure uniformity of decisions. But non-profes- 
 sional criticism is by no means without its uses, 
 even if it is accompanied, as often it is, by a di- 
 rect attack upon the fairness and motives of oc- 
 cupants of the bench; for if the law is but the 
 essence of common-sense, the protest of many aver- 
 age men may evidence a defect in a legal conclu- 
 sion, though based on the nicest legal reasoning and 
 ■profoundest learning. 
 
 This belief in the essential conservatism and 
 soundness of the judgments of the people them- 
 selves, when the affairs and policies of their gov- 
 ernment are placed before them for consideration 
 and action, was never put more impressively in 
 words than 'by Mr. George Bancroft, historian, 
 scholar, and statesman, in an address before the 
 Adelphi Society of Williams College, in which he 
 said: 
 
 The best government rests on the people and 
 not on the few, on persons and not on property, 
 on the free development of public opinion and 
 not on authority. The public happiness that is 
 
Majority Rule and the Judiciary 175 
 
 the true object of legislation can be assured only 
 by the masses of mankind, themselves awakened 
 to a knowledge and care of their own interests. 
 The world can advance only through the culture 
 of the moral and intellectual powers of the people. 
 To accomplish this end by means of the people 
 themselves is the highest purpose of government. 
 
 The absence of the prejudices of the Old World 
 leaves us here the opportunity of consulting inde- 
 pendent truth, and man is left to apply the in- 
 stinct of freedom to every social relation and pub- 
 lic interest. Each great truth is firmly grasped, 
 comprehended, and enforced, for the multitude is 
 neither rash nor fickle. In truth, the multitude 
 is less fickle than those who profess to be its 
 guides. Political action has never been so con- 
 stant and so unwavering as when it results from 
 a feeling or a principle diffused through society. 
 The people is firm and tranquil in its movements, 
 and necessarily acts with moderation because it 
 becomes but slowly impregnated with new ideas, 
 and effects no changes except in harmony with the 
 knowledge which it has acquired. Besides, where 
 it is permanently possessed of power there exists 
 neither the desire nor the occasion for frequent 
 change. The government by the people is in very 
 truth the strongest government in the world. 
 
 There may be those who scofF at the sugges- 
 tion that the decision of the whole is to be pre- 
 ferred to the judgment of the enlightened few. 
 They say in their hearts that the masses are ig- 
 norant; that farmers know nothing of legislation; 
 that mechanics should not quit their workshops 
 to join in forming public opinion. But true po- 
 litical science does, indeed, venerate the masses. 
 
176 Majority Rule and the Jvdidary 
 
 It maintains not, as has been perversely stated, 
 that "the people can make right," but that the 
 people can discern right. Individuals are but 
 shadows, too often engrossed by the pursuit of 
 shadows; the race is immortal; individuals are 
 of limited sagacity, the common mind is infinite 
 in its experience; individuals are languid and 
 blind, the many are ever wakeful; individuals are 
 corrupt, the race has been redeemed; individuals 
 are time-serving, the masses are fearless; indi- 
 viduals may be false, the masses are ingenuous 
 and sincere; individuals claim the divine sanc- 
 tion of truth for the deceitful conceptions of their 
 own fancies, the Spirit of God breathes through 
 the combined intelligence of the people. Truth 
 is not ascertained by the impulse of an individual; 
 it emerges from the contradictions of present opin- 
 ions; it raises itself in majestic serenity above 
 the strifes of parties and the conflicts of sects; 
 it acknowledges neither the solitary mind nor the 
 separate faction as its oracle, but owns as its only 
 faithful interpreter the dictates of pure reason 
 itself, proclaimed by the universal voice of man- 
 kind. It is when the multitude give counsel that 
 the right ptirposes find safety. The decrees of 
 the universal conscience are the nearest approach 
 to the presence of God in the soul of man. 
 
 In a very fundamental sense, this proposal for 
 the ultimate supremacy of the deliberate popular 
 will in all which pertains to what government 
 may do for the welfare of its inhabitants, repre- 
 sents that confidence in the mature common-sense 
 of the people, when given the means for direct 
 
Mqjority Rule and the Judiciary 177 
 
 and concrete expression, which must be the foun- 
 dation for the continuance of the American form 
 of government. 
 
 "New times demand new measures and new men." 
 
TABLE OF CASES 
 
 PAGS 
 
 Assaria State Bank v. DoUey, 219 U. S., 121 68 
 
 Borgnis v. The Falk Co., 147 Wise 327 
 
 Budd V. New York, 143 U. S., 517 57 
 
 Camfield v. Brown, 167 U. S., 518 63 
 
 Eakin v. Raub, 12 Sergeant & Rawle (Pa.) 330 31 
 
 Employers' Liability Cases, 207 U. S., 463 56, 136 
 
 Hans V. Louisiana, 134 U. S., i 77, 163, 164, 165 
 
 Hurtado 0. California, no U. S., 516 53, 60, 136 
 
 Ives V. South Buffalo Ry. Co., 201 N. Y., 271 44, 
 
 45. 46. 57. 65. 66, 67, 73, 77, 85, 117, 121, 123, 127 
 
 Lochner 0. New York, 198 U. S., 45 61 
 
 Loring's Case (Mass. Legislature: 1855) 84 
 
 Marbury v. Madison, I Cranch (U. S.) 137 29 
 
 Munn 0. Illinois, 94 U. S., 113 57 
 
 Noble State Bank 0. Haskell, 219 U. S., 104 63, 
 
 64, 66, 67, 76, 115, 126 
 
 People ex rel. Cossey v. Grout, 179 N. Y., 417 77. I45 
 
 People ex rel. Le Roy 0. Hurlbut, 24 Mich., 44 130, 136 
 
 Rathbone v. Wirth, 6 App. Div. (N. Y.), 277 74, 129, 130 
 
 Second Employers' Liability Cases, 223 U. S., 1 65 
 
 Slaughter-House Cases, 16 Wall (U. S.), 36 59. 74. 14° 
 
 Thorpe v. Rutland & Burlington R. R. Co., 27 Vt, 149 60 
 
 179 
 
INDEX 
 
 AsizoNA, reasons for adoption of 
 " recall of judges," 82 
 
 Baldwin, Simeon E., "The Amer- 
 ican Judidary," quoted, 2g, 131 
 
 Bancroft, Geokge, address before 
 the Adelphi Society of Williams 
 College, quoted, 114, 17s, 176 
 
 Beard, Charles A., The Supreme 
 Court and the Constitution," 
 dted, 2g, n.; "Documents on the 
 State-wide Initiative, Referen- 
 dum, and Recall," dted, 80, n. 
 
 Bradley, Joseph P., opinion in 
 Hans V. Louisiana as to "reversal " 
 of Supreme Court's dedsion by 
 adoption of Eleventh Amend- 
 ment, quoted, 77, 163, 164, 165, 
 166 
 
 Butler, Nicholas Murray, "Why 
 Should We Change Our Form of 
 Government?" commented on, 72 
 
 California, reasons for adoption of 
 "recall of judges," 82; mode of 
 amending constitution, loi 
 
 Childs, Henry, remarks in Massa- 
 chusetts Constitutional Conven- 
 tion of 1820, quoted, 8g 
 
 Clark, Chiep Justice Walter, 
 address before University of Penn- 
 sylvania Law School, dted, 29, n., 
 93; quoted, 168, 169 
 
 Constitution (United States): 
 Amendments, Artides V and XIV, 
 quoted, 48; referred to, 156; 
 Amendments, Artide XI, pur- 
 pose of adoption, 77; comment of 
 Supreme Court upon "reversal" 
 of its dedsion, 163-166; Amend- 
 ment XIV, unimpaired by Federal 
 interpretation, no; why Mr. 
 Roosevelt's proposal not made ap- 
 plicable to United States Supreme 
 Court, 156, 157; (New York): 
 Artide I, Sections 2 and 18, as 
 illustrative of "spedfic" provi- 
 sions, 43-46; Article I, Section 6, 
 as to "due process," quoted, 49; 
 
 time required for amendment, il- 
 lustrative form of amendment to 
 embody Mr. Roosevelt's proposal, 
 115-116; proposed amendment to 
 reverse decision in Ives case, 146, 
 147; effects of present mode of 
 amendment, 143-152; (Massa- 
 chusetts): Chapter III, Articles I 
 and II, quoted, 8s, 86; "Declara- 
 tion of Rights," Sections s and 8, 
 quoted, 89, 90 
 
 "Constitutional Initiative," as 
 a mode of amending the Consti- 
 tution, defined, loi 
 
 Coolev, Thomas 'M., opinion in 
 People ex rel. Le Roy v. Hurlbut, 
 quoted, 130 ; referred to, 136 
 
 CoRwiN, Edward S., as to modern 
 concept of " due process," quoted, 
 
 3S 
 Croly, Herbert, "The Promise of 
 American Lite," quoted, 75; re- 
 ferred to, 169 
 
 Dicey, A. V., "The Law of the Con- 
 stitution," quoted, 28 
 
 Dougherty, J. Hampden, "Power 
 of Federal Judidaiy Over Legis- 
 lation," dted, 29, n.; as one of 
 framers of amendment to New 
 York constitution, 147 
 
 Dred Scott Decision, as in con- 
 flict with social conscience, 32, 33 
 
 "Due Process," Professor E. S. Cor- 
 win as to modern concept, 35; as 
 involved in present issues, 40; 
 constitutional provisions quoted, 
 47, 48, 49; Federal v. State inter- 
 pretation, 49-52; defined, 52, 53, 
 54; early State and Federal view, 
 54-59; view of United States 
 Supreme Court, 59-64; view of 
 New York Court of Appeals, 65- 
 69; Mr. Roosevelt's proposal for 
 "popular re-definition" as inac- 
 cord with historical conception, 
 131-138; dause of Federal consti- 
 tution unaffected by Mr. Roose- 
 velt's proposal, UI-112 
 
 181 
 
l82 
 
 Index 
 
 Feeund, Ernst, "The" Police Pow- 
 er," quoted, 62, 63 
 
 Gardner, Augustus P., address in 
 House of Representatives, April 4, 
 1912, quoted and commented 
 upon, 171, 172 
 
 Gaynor, William J., article in 
 Bench and Bar, April, 1912, quoted, 
 34. 41. SO, 102 
 
 Gibson, Mr. Justice, on power to 
 hold legislation unconstitutional, 
 
 31 
 Grosscup, Peter S., letter m ad- 
 vocacy of Mr. Roosevelt's pro- 
 posal, quoted, 122, 123, 124, 125; 
 commented upon, 117, 152 
 
 Hamilton, Alexander, "The Fed- 
 eralist," Paper No. XLIX, quoted, 
 166, 167 
 
 Harlan, John M., quoted as to ju- 
 dicial usurpation, 78, 79; referred 
 to, 169 
 
 Hayes, Alfred, Jr., as to power to 
 hold legislation unconstitutional, 
 
 93 
 
 Herrick, D. Cadv, opinion in Rath- 
 tone V. Wirth, quoted, 129, 130 
 
 Holmes, Oliver Wendell, as jus- 
 tice of the Supreme Court, 50; 
 opinion in Noble Slate Bank v. 
 Easkell, quoted, 63, 64, 126, 128 
 
 Hubbard, Samuel, remarks in Mas- 
 sachusetts Constitutional Con- 
 vention of 1820, quoted, 87 
 
 Hughes, Charles Evans, as signer 
 of Workmen's Compensation Act, 
 4S; as justice of the Supreme 
 Court, so; as governor who ap- 
 pointed Wainwright commission, 
 66; address before New York 
 County Lawyers' Assodation, 
 quoted, 172, 173 
 
 Impeachment of Judges, as an al- 
 ternative of the " recall of judges," 
 83, 84 
 
 Income Tax, proposed constitu- 
 tional amendment, 78 
 
 JuDicuL Nominations, nomina- 
 tion and election of judges apart 
 from party columns on ballot, 83 
 
 Judiciary Act, commented upon, 
 51 
 
 Judiciary Reform, tests of pending 
 proposals, 40, 41; the "recall of 
 judges" as a measure of, 81, 82, 83 
 
 Lewis, William Draper, as sponsor 
 for Mr. Roosevelt's proposal, 109, 
 152, 167; statement in advocacy 
 of Mr. Roosevelt's proposal, 
 quoted, 120, 121, 122; address at 
 The Aldine Club, dted, 120 
 
 Lincoln, Abraham, as to the Dred 
 Scott dedsion, quoted, 32, 33 
 
 Lincoln, Levi, as member of com- 
 mittee on judidary in Massachu- 
 setts Constitutional Convention of 
 1820, 86; reply to Mr. Webster and 
 committee report, quoted, 88 
 
 McIlwain, Charles H., "The 
 High Court of Parliament and its 
 Supremacy," quoted, 94 
 
 Marshall, John, as exponent of 
 progressive interpretation, 31 
 
 Massachusetts Constitutional 
 Convention oe 1820, debates in 
 as to the judidary and " recall" by 
 legislature, 85, 86, 87, 88, 89, 90, 
 91, 92 
 
 Mathews, Stanley, opimon in 
 Eurlado v. California, quoted, 60; 
 referred to, 136 
 
 Mathewson, Charles F., address 
 at The Aldine Club, March 22, 
 1912, quoted and commented 
 upon, 72 
 
 Moody, Wm. Henry, as justice of 
 the Supreme Court, $6; opinion 
 in Employers' LiabUUy Cases, 
 quoted, 55; referred to, 136 
 
 MutFORD, Elisha, "The Nation," 
 quoted, 167 
 
 National Manufacturers' Asso- 
 ciation, advocacy of workmen's 
 compensation legislation, 159, 160 
 
 New York Times, March 23, 1912, 
 quoted as to address of Charles F. 
 Mathewson, 73; editorial, Jan- 
 uary 24, 1912, quoted, 153, 169 
 
 Ohio Constitutional Convention, 
 address of Theodore Roosevelt, 100 
 
 Oklahoma Bank Guaranty Law, 
 Opinion of Supreme Court in 
 Noble State Bank v. Haskell, 
 quoted, 63, 64; argument of 
 counsel in Ives case, 66, 67 
 
Index 
 
 183 
 
 Oeton, Jesse F., article in The Inde- 
 pendent, August, 1912, cited, 53 
 
 Pennsylvania, reasons for adoption 
 o£ "recall of judges," 82; mode of 
 amending constitution, loi 
 
 Phillips, Wendell, argument in 
 Loring's Case, quoted, 84, 90 
 
 "Popular Re-definition of 'Po- 
 lice Power' Scope", inaccuracy 
 of term "recall of judicial deci- 
 sions," 99, 100, 107, 108, log; 
 what the proposal is not, 109-114; 
 what the proposal is, 114-118; 
 concrete illustration of the meth- 
 od, 115-118 
 
 Prendergast, Wm. a., as to direct 
 popular accountability, quoted, 85 
 
 Progressive Movement, defined, 
 40 
 
 Recall of Judges, proposal defined, 
 80-81; considered as a mode of 
 correcting judicial misapprehen- 
 sion of "police power" scope, 81- 
 92; as contrasted with Mr. Roose- 
 velt's proposal, II 2-1 13 
 
 "Recall of Judicial Decisions" 
 (See "Poptdar Re-definition of 
 'Police Power' Scope") 
 
 Roosevelt, Theodore, Elihu Root 
 quoted concerning, 37; proposal 
 of direct popular "re-definition" 
 of "police power," 100; proposal 
 defined and illustrated, 107-118; 
 Carnegie Hall address quoted, 
 114; Dean Lewis quoted concern- 
 ing, 120-122; Judge Grosscup 
 quoted concerning, i22-i25;prac- 
 tical advantages of Mr. Roose- 
 velt's proposal stated, 139-132; 
 proposal tested by fundamentals 
 of government, 163-177 
 
 Root, Elihu, address before New 
 York State Bar Association, Jan- 
 uary, 1912, quoted, 36, 37; ad- 
 dress before Pennsylvania Society, 
 December, 1906, quoted, 169, 170; 
 advocacy of constitutional amend- 
 ment to "reverse" income-tax de- 
 cision of Supreme Court, 78 
 
 Shaw, Chief Justice, as member 
 of Massachusetts Constitutional 
 Convention of 1820, 86 
 
 Stetson, Francis Lynde, as one of 
 
 framers of amendment to New 
 York constitution, 147, 150 
 Story, Joseph, as chairman of com- 
 mittee on judiciary in Massa- 
 chusetts Constitutional Conven- 
 tion of 1820, 86; reply to Levi 
 Lincoln and Henry Childs, 90, 91 
 
 Taft, William Howard, address 
 before American Bar Association 
 in 189s, quoted, 173, 174 
 
 The Boston Advertiser, Proceedings 
 of Massachusetts Constitutional 
 Convention of 1820, quoted, 86, 
 87, 88, 89, 90, 91 
 
 The Outlook, articles by Theodore 
 Roosevelt, cited, 37, 100, 114 
 
 Tricklett, William, as to power to 
 hold legislation unconstitutional, 
 93; article in "American Law 
 Review," 1906, quoted, 95, 96 
 
 Webster, Daniel, remarks in Mas- 
 sachusetts Constitutional Con- 
 vention of 1820, quoted, 87; com- 
 mented upon, 91 
 
 Werner, William E., opinion in 
 Ives V. South Bufolo Railway 
 Company, quoted, 66 
 
 White, Edward D., as chief justice 
 of the Supreme Court, 50, 109 
 
 Wilcox, Delos F., "Government 
 by All the People," cited, 80, n. 
 
 WiNSLOw, Chief Justice, opinion 
 as to constitutionaUty of Wiscon- 
 sin Workmen's Compensation Act, 
 quoted, 137, 138 
 
 Wisconsin, Workmen's Compensa- 
 tion Act held constitutional, 
 
 Workmen s Compensation Act, as 
 affected by New York constitu- 
 tion. Section 18, Article I, 44; as 
 affected by New York constitu- 
 tion, Section 2, Article I, 45, 46; 
 considered in light of early con- 
 ception of "police power," 57, 58; 
 decision of New York Court of 
 Appeals in Ives Case, 65-68; de- 
 cision of United States Supreme 
 Court in Second Employers' Lia- 
 bility Cases, 6s; application of 
 Mr. Roosevelt's proposal to, 117, 
 121, 123, 124, 142, 144, 146, 150. 
 159, 160; Wisconsin act held con- 
 stitutional, 137, 138 
 
Mm