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RECALL OF DECISIONS 1

A MODERN PHASE OF IMPATIENCE OF

CONSTITUTIONAL RESTRAINTS.

THE function of the judiciary branch of the government is to try and decide controversies according to law and justice, without being swayed by considerations of governmental or political expediency, or by what judges suppose to be the temporary desires of a majority of the electorate. In the distribution by the Federal Constitution of the powers of government, the judicial department was made free of checks upon its powers like those imposed upon the executive and legislative departments. After the judges had been appointed by the President and confirmed by the Senate, and their salaries had been fixed by Congress, they were to hold office during good behavior and their salaries were not to be reduced during their terms of office. Hamilton explains the reason for these provisions as follows:

"The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that which shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution, void. Without this, all the reservations of particular rights or privileges will amount to nothing."

1 Paper read at the annual meeting of the New York State Bar Association, held in Utica, N. Y., January 24-25, 1913.

While the judges are, therefore, made essentially independent, it is impossible for them, for any long period, to deprive either of the other branches of the government of their constitutional powers, or to rob the people themselves of any of the rights which are essential to their enjoyment of civil liberty, because there is not placed in their hands any machinery by which judicial aggressions can be made effective. Their judgments can only be executed through civil officers like sheriffs and marshals, and these become quite powerless if they are opposed by the other departments of the government or by the people themselves. Furthermore, the political effect of a judgment involving the most important constitutional question may be entirely nullified, or it may be rendered, by force of public opinion, largely academic. As de Tocqueville said, the judges defend "the conservative spirit of stability against the fickleness of the democracy. Their power is enormous, but it is the power of public opinion. They are all-powerful as long as the people respect the law; but they would be impotent against popular neglect or contempt of the law." And Hamilton says of the judiciary, that "it may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

But, however impotent the courts are to seize political control of the government, their power, when supported by public opinion, to impose upon the people the restraints provided for in the Constitution, is more majestic than that possessed by any other judicial body in the history of the world; and it is this power, which more than any other, has at critical junctures protected us against excesses of partisan zeal, has given to our government the stability which has enabled it to sur

vive and has enabled us to enjoy the inestimable benefits of a representative form of government which have been denied to other nations having written constitutions no less perfect in theory than our own. President Hadley has very aptly said:

"Legislature and executive are means given to allow the people to do what they please, under certain constitutional forms. The judiciary is a means given to prevent the people from doing what they please. How can we explain the fact that these judicial restrictions are of the very essence of freedom? I answer because the law of the United States, as defined and administered by its courts, represents not only restraint, but self-restraint; and a kind of self-restraint which any nation must be prepared to exercise if it hopes permanently to enjoy the advantages of political freedom."

De Tocqueville asserts that without its restraints the "Constitution would be a dead letter." And Webster says "that the maintenance of the judicial power is essential and indispensable to the very being of this government. The Constitution without it would be no constitution; the government no government. The judicial power is the protecting power of the whole government. Its position is upon the outer wall.”

The working out of the plan for the division of powers between the executive and the legislative departments of the national government has not been precisely what the framers of the Constitution anticipated. It is doubtful whether these departments could have conducted the business of the government without destructive friction if political parties had not at an early day become the convenient medium for promptly and effectively organizing public sentiment as a force to compel the reasonable adjustment of conflicting views. The judicial department, however,

has to a large extent fulfilled in practice the function which was in theory vested in it by the Constitution 1; and the same may be said with general accuracy of the judiciary of the several states as constituted under the state constitutions. But now it is said that some of the courts have become slow to respond to the throb of popular impulse, or, when called upon to interpret constitutions, to make their judgments conform to modern ideas of social and industrial justice, or to adopt a philosophy abreast of the times. We are told in the heat of a presidential campaign, that fundamental questions which have always been regarded as judicial questions, should no longer be finally decided by the courts but, on appeal, by a vote of a temporary majority of the electorate. It is startling to the present generation that such an attack upon the power of the judiciary should be made by a conspicuous statesman as part of the propaganda of a political campaign; but a brief review of our political history will show that the judiciary has often at critical junctures of our history been an unpopular branch of our government, and that it has not infrequently been made the object of political attacks no less determined than the present one.

The decision of the Supreme Court, in 1793, in Chisolm v. Georgia, holding that a state could be sued by a citizen of another state, caused a "shock of surprise" and widespread opposition throughout the country, which was intensified by the supposed arrogance of the federal judiciary, springing from their possession of powers under the Constitution which represented within certain spheres of government a sovereignty superior to the states. The ideas voiced by Mr. Jefferson, based upon the expressions of the leaders of the French Revolution as to abstract justice,