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The Green Bag

upon the rights of the individual. Might does not make right, even when might is the power of the many. The oppression of a capricious and transient majority is more unbearable than the rule of a single despot. Power impatient of constitutional restraint or regulation by law, whether it reside in the many or the one, has ever been a foe to human progress. This malign spirit which baffled the genius of Mirabcau in the tribune of the people was the same that sent Sydney to the scaffold. The prominence of the issue of the recall was likewise illustrated by the guest of honor of the Association, Gov ernor Hadley of Missouri, who in the annual address, choosing the subject, "Progressive Jurisprudence," gave much attention to the recall. "Law," he said, "is but the concrete expression of the moral judgment of any period of time." After speaking of recent changes in the law of liability for those injured in industrial accidents, and the main tenance of an "archaic rule" till recently, he expressed the view that the failure of legal justice to keep pace with social justice is "not entirely the fault of either our courts or our profession." The theory associated with Jefferson, that that government is the best which governs least, has retarded the working out of social, industrial, and economic problems. When we consider that up until a few years ago this was the general trend of American thought and that one of the great political parties urged the necessity of such a theory of govern ment, should we be too prompt to criticise our courts if in passing upon questions affecting industrial and social conditions they have not been fully abreast of what seemed to the ad vanced public opinion of the period? But those who charge that all the fault has been with our courts contend that wc cannot enjoy genuine popular government or secure a proper measure of social and industrial justice, except by making the courts more responsive to and representative of the people. And they contend that this result can be accomplished only by providing for the recall of judges and the recall of judicial decisions.

It is my opinion that both of these proposed methods are unnecessary and unwise. ... It would, in my opinion, be a backward step to substitute a judgment of unpopularity for a judgment of wrongdoing in the removal of pub lic officials from office. It would be advisable that the processes by which they can be removed should be made more simple, direct and prompt, but the removal itself should be accomplished in accordance with the forms of law and under those safeguards incident to the procedure by which any citizen can be deprived of that which is of value to him. . . . It is apparent that when a court decides that a state law is unconstitutional, it is exercising legislative functions, and in a government founded upon the principle that all legislative power rests with the people, their opinions upon economic, social and industrial questions should finally control, against even the decisions of the court. But whether there is need of a simpler or more direct method by which the people can exer cise their authority to overrule or recall the decisions of their courts is another question. That the right' exists is not open to question. It is my opinion that under the initiative method for amending the constitution and even under existing methods, it is within the power of the people to make their wishes in matters of gen eral public policy effective, even though the courts set up their opinions upon such questions as against the opinions of the people as a whole. The address of Henry W. Taft was on the subject of "Recall of Decisions — A Modern Phase of Impatience of Con stitutional Restraints." Whenever the people seek to eradicate abuses in the administration of the government, (he said) or when they aspire to elevate their social or industrial or political condition, they become impatient of any restraint imposed upon their zeal by the constitution; and it is upon the courts, whose duty is is to impose the restraint, that their discontent is naturally visited. The demand for the recall of decisions is the result of impatience of this kind because the courts have not found some way to overcome the con stitutional obstacles to securing a complete and immediate readjustment by legislation of social and industrial relations — which it is thought will correct some intolerable condi tions which have arisen in the rapid develop ment of American civilization in the last two decades. . ..