Obrázky stránek
PDF
ePub

the keystones in parts of the structure of our judicial system which, from the standpoint of both the peculiar character of our polity and its historical development, were characteristically American. But such a revolt was not new in our history. Indeed, it began early in the history of our government. Essentially it was a modern phase of a tendency in all governments based on universal suffrage to become periodically impatient of restraints imposed by fundamental law. If its avowed purpose to destroy the independence of the judiciary had succeeded, it is not probable that our federal government would long have endured, nor would the system of common law administered in the state and federal courts long have continued to protect the rights of the individual citi

zen.

The recall of judges and the recall of decisions could never have been made to occupy the public mind, or to become a menace, if it had not been advocated by one of the most extraordinary politicians and statesmen of his day. Neither the Republican nor the Democratic party would have had the hardihood to adopt as a basis for a political contest such a radical political doctrine. Jefferson's attacks were chiefly directed at the power of the federal judiciary. It is doubtful whether even he would have taken the political risk of a campaign upon a platform seeking to destroy the judiciary department as an independent organ of both the state and the federal government, by subjecting judicial decisions to the test of a referendum.

Whenever attacks upon the courts have been made in this country, they have resulted from a sort of straining against the constitutional fetters whose purpose has been to prevent inter-departmental usurpa

tions or to limit the sovereignty of the states; or they have been a mere inarticulate manifestation, common, as I have said, in democracies, of impatience at restrictions imposed upon the political action of the people.

Those who seek to affect the independent character of the judiciary branch of the government have not generally realized that their attack is upon the feature of our federated system which contributes more than any other to its stability, and without which it probably would not have survived the first century of its existence. In the case of Mr. Roosevelt, if the problem had been merely a juridical one, involving general principles of jurisprudence, it would not have been surprising if he had failed fully to grasp its importance, for his education as a lawyer was not much more than superficial, and his experience and temperament led him to view public questions from a viewpoint quite different from that of a trained lawyer. But the weakening of the judiciary department as an independent organ of government would affect the system of checks and balances by which the framers of the Constitution sought to establish an equilibrium among the three departments of the Federal Government, and between the enumerated powers of the central government on the one hand and the reserved powers of the several states on the other; and a correct forecast of its probable effect upon our institutions required examination of and reflection upon the history of the proceedings of the Constitutional Convention of 1787, the state conventions which ratified the Constitution, the writings of Hamilton, Madison and Jay, and the opinions of Marshall. Both because of Mr. Roosevelt's position as an American historian and a man of letters, and because he had been for years a

practical statesman observing the workings of the federal system, one would have expected that he would give decisive weight to historical considerations and would realize the vital importance of maintaining the delicate inter-departmental balance in the federal system, and of preventing the co-existing but reciprocally exclusive sovereignties of the central government and the states from getting into a condition of unstable equilibrium.

But while Mr. Roosevelt was a man of the highest impulses, he did not always, and especially when he was moved by a sense of some immediate injustice, take account of consequences or permit the intrusion of cooling reflection based upon the teachings of experience; and, as I have intimated, at no time in his career did he have much sympathy with anything that was legalistic. He continued to the end of his life to view slightingly what he characterized as "law honesty."

I remember when Mr. Roosevelt and I were studying law at the Columbia Law School in 1881, Professor Theodore W. Dwight on one occasion announced with didactic emphasis, some familiar and long-established proposition of law. A tow-headed young man arose in the back of a crowded class-room and with a trace of pugnacity said, "Professor Dwight, is that the law?" "It is, sir," came back with the verbal rapid fire of the famous Professor, so familiar to his students; to which Mr. Roosevelt had the last word in an impulsive staccato "Well, it ought not to be." When, more than a quarter of a century later the idea of social justice became a favorite topic of a school of economists, a similar impulse seized upon Mr. Roosevelt's imagination, and with characteristic impetuosity he sought to better the condition of the people

by an emasculation of the judiciary system, without giving due weight to the broader question of its effect upon the entire governmental structure. Furthermore, its advocacy had certain alluring political advantages.

But these facts do not completely account for the advocacy by Mr. Roosevelt of the recall. Strange as it may seem, he sympathized with the fear, somewhere expressed by Mr. Jefferson, that the system of government established by our Constitution would, like an unwound clock, run down. Both of these statesmen thought that the checks by which the powers of the three departments of government were to be sustained in even balance might result in the paralysis of all effective governmental power. While Mr. Roosevelt generally had little sympathy with Mr. Jefferson in his political philosophy, he did believe that the power of the executive ought to be co-extensive with any emergency calling for its exercise. In other words, while he would perhaps not have formulated the dogma quite so plainly, he nevertheless in practice was strongly inclined to act upon the theory that the powers of the executive and the administrative branches of government, were to be exercised at the discretion of the executive to any extent necessary for emergent purposes, except so far as they were expressly limited by constitutional or statutory provision. He believed that by implication the executive was vested with plenary power to conduct all governmental operations, except so far as such power was limited by express grant to the legislative branch.

Now, a statesman entertaining such views as to the character of our governmental structure could hardly be expected to be deeply impressed with the necessity of maintaining the balance among the three depart

ments of government. Temperamentally, if not by conviction, Mr. Roosevelt believed (and there is a large measure of truth in this view), that the legislative department, consisting of two houses, frequently of opposite political parties, and also with equal frequency failing to coöperate with the executive, was not an efficient organ of government. His vigor and extraordinary determination to accomplish results which he believed would be for the good of the people, led him, therefore, to the belief that only by the expansion of the administrative power could the government perform its proper function; and it is not altogether surprising that he should have failed, under the influence of the desire to improve the condition of the less fortunate in life, to yield to the temptation of advocating a diminution of the powers of the judiciary department, even though it had only a sort of veto power and could perform no affirmative function of government. In the last years of his life reflection and the recession of the progressive wave, seem to have led him to abandon the views which he had so vigorously pressed; at least he ceased to make them a guide for his political conduct.

I did not intend to be led into an estimate of Mr. Roosevelt's character and public career. But disapproval of his course on the recall ought not to permit us to forget the services of permanent value which he rendered to his country. I would not attempt to sum these all up; the task would be too long for this introduction. I will content myself by adverting to two things which he contributed to our national life and which were of inestimable value.

The first of these was the interest in public affairs which he was, through his boundless enthusiasm, able to arouse among multitudes of his countrymen, who

« PředchozíPokračovat »