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tary servitude at any place within the jurisdiction of the United States; and further prohibiting and state from making or enforcing any laws which shall abridge the privileges or immunities of citizens of the United States, or which shall deprive any person of his life, liberty or property without due process of law, or from denying to any person within its jurisdiction the equal protection of the law; and prohibiting either the United States or any state from denying or abridging the rights of citizens on account of race, color, or previous condition of servitude.
Read and consider these limitations, take any one of them, and as an individual, ask yourself seriously the question whether you, yourself, from considerations of your own selfish interest, would willingly and deliberately hazard the risk of giving up forever the safeguard to your life and liberty expressly vouchsafed by the protective provisions thus established as the law of the land, which no legislature and which no majority of the people may ever capriciously set aside. If you happen to feel no selfish need of such protection, then consider the question as one touching your own posterity, or as one concerning the entire citizenship of this republic and those who shall come after them, and at the same time concerning the very integrity of the government under which you and yours, and they and theirs, are to live. Not until you have brought yourself to the conclusion that, not merely one or a few of such limitations, but each and all of them, without exception, are unnecessary and unwise, and that they, each and all, may at any time be disregarded—not until then can you be a consistent supporter of the Judicial Recall. These are questions which are, as is the question here under consideration, finally answered in only one way by any citizen who has calmly considered all the facts pertaining to the issue and whose conclusion is the result of cool, deliberate and impartial judgment.
INSTANCES OF RESULTING ABUSES.
Examples are apparent of the disasters which might result from the application of the Judicial Recall. Take the well known constitutional provision of the federal and all state constitu
tions that private property shall not be taken for public use without compensation. Under the present system, any statute which had this effect would be declared invalid by the courts. By the Recall of Decisions, this constitutional safeguard could be eliminated by a mere vote of the people at any time and under any circumstances. They could vote if they chose that all railroads, or any particular railroad, that all lands or any particular pieces of land, or that all property or any property now held in private ownership, could without compensation, be confiscated to the state for general public benefit and even for general distribution.
It was during the last campaign that I listened to a campaigner of the socialist party, speaking upon a street corner in the city of Chicago. He stated that the ultimate object of his party was to smash our present form of government and the individual rights of persons and of property of which it is protective. He inveighed against our government of laws and urged a regime where there will be no legislatures, no courts, because there will be no functions for them to perform; where there will be no master or servant, no distinction between workers and drones, no wage, and no private ownership or property. The people, he said, should “take back” to themselves through appointed agents, the railroads, the mines, the ships, the lands and the buildings and improvements thereon, the business industries, their accumulation and profits-all from their present holders for the benefit of the people; and they should do this without compensation, because, as he said, “all property privately held has been stolen from you and from me.”
In other words, the only obstacles which stand between our present system and socialism are the existence and preservation of these constitutional safeguards. No wonder that socialists urge that the Judicial Recall will enable them to "inaugurate" socialism. And in no better class is Senator Bourne and others who advocate the Judicial Recall as a means of arriving at an “absolute, unrestrained rulership of the people.” When their object is accomplished, constitutional democracy will be at an end.
Take another instance. The Bill of Rights in our constitutions prohibit the interference with the establishment and free
exercise of religion. If any community, whether it be a city, county or state, should attempt to place undue restraint or burdens upon one religious sect as against another by a statute acceptable to a majority, such statute would be invalid. Thus, religious liberty is now vouchsafed to every individual and to every community and the permanence of such safeguard is insured so long as constitutional provisions are free from the results of temporary or local prejudice of this pr that community. But this protection is swept away by the application of the Judicial Recall. If the constitutional provision may be suspended or disregarded at any time or place, or as to any particular statute, by a mere majority vote, then any locality, where a majority of the voters may happen to be of one religious sect, may pass, either by direct initiative or by their legislature, a statute oppressive of the minority and the same majority by popular vote are given the power to say that the constitutional prohibition shall be ignored as to such statute.
Accordingly, whether it be a question of protection of religious freedom or of the protection of the property or libery of persons, each and all such provisions may, under the Recall of Decisions, be ignored by the arbitrary will of a local, temporary majority.
These are practical, probable abuses. The possible abuses are unlimited; for the very essence of the proposition is to do away with restraint and with safeguards, and to make the statutemaking power identical and coincident with the power to declare its validity and to compel its enforcement.
THE FALLIBILITY OF POPULAR MAJORITIES.
It is not a question of whether the courts make mistakes. The question is, Is it safe to deprive the courts of their functions and to turn them over to the direct vote of majorities? It is often answered that the good sense of the people at large, as evidenced by their voice at the polls, may be safely relied upon. This was not the judgment of the framers of our constitution ; for it was to protect against the probable and possible errors of temporary majorities that safeguards were written into the constitution. Why, up in Minnesota, two years ago, the country members of the legislature caused to be submitted
to the voters of the state a constitutional amendment providing that, regardless of population, certain city districts should not be allotted a number of senators in excess of seven. This was known as the “seven senator" measure by which it was intended to discriminate in favor of the country and against the large cities in reapportioning the legislative districts under the last census. The two localities especially attacked were those represented by the two cities of St. Paul and Minneapolis. Nevertheless, at the state election, the seven senator amendment passed in St. Paul and nearly obtained a majority in Minneapolis. The voters of those two districts were of average intelligence and yet they voted in favor of a measure directed especially against them. That it was not adopted by the entire state was due to the mere accident that the country districts happened to vote against it.
The temporary judgment of the voting citizenship cannot be relied upon for wise and consistent action. But it is in the exercise of the Judicial Recall that the temporary prejudices, passions and ill-considered judgment of the voters are expressed. The present system provides for measures of reform, whether in matters of procedure or in expression of the deliberate judgment of the people as to constitutional amendment. There is already a legal and constitutional way provided for the correction of all evils, and for the expression in the form of valid laws of the real, ultimate, deliberate judgment of the sovereign people; but that expression of the sovereign will and its enforcement should be made consistently with the methods which characterize our government of laws, and with the preservation to the judicial department of all its functions. The independence of the judge should not be assailed by making him at any time directly answerable to the people. The protective features of our constitutions and the essential functions of our judiciary should not be replaced by measures which allow the authors of a statute the privilege of dictating as to its enforcement. Our present system of government by law should not be replaced by a system of government by men. The judges and the entire judiciary should be maintained and supported as servants only of the law. In his duties as a servant of the law, a judge should be free to act independently and, as said by Chief Justice
Marshall, “With nothing to control him but God and his conscience." He should at all times be free to heed the admonition given by Moses to the Judges of the Israelites. 12
“Ye shall not respect persons in judgment, but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's."
Our judges should be left free to live up to the ideal of the just man, who, in the words of Horace,
"Firm in the consciousness of right, disdains, with equanimity, the frowns of a tyrant and the clamors of a
Judge Julian C. Wilson :—I desire, Mr. President, to make a motion in double aspect, as lawyers say. I desire first, that the thanks of this Association be tendered most heartily to Mr. Brown for his luminous and vigorous discussion; and second, because we learn from you that he lives far from us and because he has demonstrated such great merit, we still desire to have him one of us, and I move you that he be made an Honorary Member of this Association. Mr. President, if he will kindly accept our election, which I hope he will, I would like to burden him with one question, and that is, what became of Judge Phillips ?
Motion seconded, and carried by a rising vote.
Mr. Jas. L. McRee presented the report of the Committee on Legal Education and Admission to the Bar which was adopted and ordered spread of record which is accordingly done.
To the Tennessee Bar Association :
Your Committee on Legal Education and Admission to the Bar respectfully reports that while there are much needed amendments to the existing laws governing the admission of attorneys to the practice of law, some of which will be mentioned in this report, the committee finds that conditions in Tennessee could be much improved by a more thorough and careful enforce
12 Deut. 1, 17.