Court of Appeals of New York actually decided, though the court's opinion was ultimately grounded on the state constitution, the amendment to the state constitution or the recall of the decision would be valueless, and worse. It would deceive the honest reformers who believe they were getting a valid law. No amendment to a state constitution or recall of a state decision can amend the national constitution. That can only be done by three-fourths of all the states. Hence the recall of decisions by the vote of the people of the state, as applied to such questions, is a delusion and a snare. It may secure votes, but in return the oppressed toiler gets nothing. He still makes brick without straw. The remedy, therefore, is not to amend the state constitution or recall state decisions, but to amend the Constitution of the United States, authorizing the states to pass the necessary laws for the protection of the laboring classes; and this cannot be done by the recall of decisions in a single state. If the state constitutions prohibit such laws, they too may be amended. This does not mean opposition to workman's compensation laws. It simply means that such laws should be adopted in a constitutional way and after careful study and mature deliberation.

It is true that the people rule and that they make and unmake constitutions at will. They make constitutions by selecting their wisest and best men as delegates to a convention, where the constitution is framed and afterwards submitted to the people for rejection of adoption. In that. way constitutions are made without appealing to class hatred and prejudice and personal interest. In the practical operation of a recall of decisions, constitutional and sound governmental principles will not be studied, will be lost sight of in the turmoil and conflict over the justice or injustice of the particular decision.

Take the Ives case again. The concrete question before the voters would be: Shall the widow and children recover for the husband and father's death? The voters would be divided into two classes on nearly all propositions,—the employers and the employed. Class hatred and feeling would be aroused to the danger point. The attorneys who won and lost a case before the courts would feel compelled

to take the hustings in their clients' behalf. The clients would be compelled to bear great expense in printing and in circulating elaborate briefs to show the justice of their causes. If this expense should not be upon the litigants, would the state bear the same? Would the counties or the municipalities be responsible for printing the arguments and the literature to be circulated among the people? It is idle to say that no such printed arguments and information would be necessary. The courts find it necessary to have the arguments printed and usually oral arguments are made, and these arguments are necessary in order that the court may properly pass upon the questions. The judges are trained students of legal problems. Not withstanding that, they require printed and oral arguments in order to aid them in coming to correct conclusions on difficult legal problems. Therefore, the elector who suddenly finds himself burdened with intricate constitutional questions, will necessarily need learned arguments. These arguments cannot be made, and printed, without great expense. In addition to that, the judges themselves, having confidence in the correctness of their decisions, would necessarily be drawn into the fight. The questioned decision might affect one county or two counties, or it might affect the entire state. A decision that would advantage one county, would injure another. Hence the different parts

of the state would be arrayed, one against the other. In addition to that, different states would recall different decisions. A decision that would be satisfactory to a manufacturing community would be unsatisfactory to an agricultural community. Mining districts would also have different views. The result would be that uniformity of laws would be utterly destroyed.

Academy of Political Science (N. Y.). Proceedings. 3: 10017. January, 1913.

Development of American Constitutional Law. Munroe Smith.

As the "recall" proposal was originally presented by Mr. Roosevelt, the referendum on decisions was not, apparently,

to be limited to due-process cases; it was to be available whenever a state law was declared to be invalid because in conflict with any provision of the state constitution. In view, however, of the inconvenient and even absurd results that might possibly be produced by an unlimited "recall," it is now proposed that referenda on decisions shall be limited to due-process cases. The proposal is so formulated, for example, by Mr. William L. Ransom in his recent book on Majority Rule and the Judiciary, to which Mr. Roosevelt contributes an introduction.

In order that we may see how this limited "recall" would probably work, let us take a situation which has already been much discussed, which has been frequently chosen by the advocates of the "recall" to illustrate the need of a new remedy, and which Mr. Ransom claims would be remedied by a "recall" limited to due-process cases. Let us take the situation which exists in New York as regards compensation of workmen, or of their widows and children, in cases of injury or death caused by industrial accidents. A law passed by the state legislature was pronounced unconstitutional by the Court of Appeals, because it proposed to take the money of the employers without due process and was not within the sphere of the police power. It is claimed that a "recall" limited to due-process cases would have sufficed to validate the law and make it immediately effective. But, in pronouncing this law unconstitutional, the New York Court of Appeals declared that, for the purpose of reaching a decision, it was not necessary for the court to determine whether the act was unconstitutional solely as denying due process. It declined, in particular, to decide whether it was unconstitutional as denying the employers' right to trial by jury. It seems clear, therefore, that even if the decision of the court had been "recalled," the law would have been validated only so far as due process was concerned, and that the question which the Court of Appeals declined to decide would remain open. If, when this issue was raised, the Court of Appeals should again declare the law unconstitutional, it would apparently be necessary under the limitedrecall program, to introduce a new amendment to the constitution, widening the scope of the recall, and to institute

a new referendum. If the new amendment were limited in its application to the matter of jury trial, it is not impossible that the question might arise whether the law was not in conflict with some other provision of the constitution, or with the general spirit of the constitution.

So numerous are the grounds upon which any law that attempts to realize what is to-day described as "social justice" may conceivably be pronounced unconstitutional, that it will be no easy task to frame a recall amendment that will cover all these grounds and yet remain limited in its scope. It seems doubtful, to put it mildly, whether any recall proposal thus far formulated promises to secure a more speedy adaptation of our state constitutions to changing conditions than the existing process of substantive amendment. It seems highly improbable that it will bring to a more prompt and satisfactory conclusion any differences of opinion or of sentiment between the state courts and the state electorates. For a single political battle, terminated by a single substantive amendment, the limited “recall" appears to substitute, primarily at least, a prolonged political war, in which the electorate would realize its intention only after several campaigns. Moreover, after each campaign, the limited recall would be widened in its operation; and it would thus gradually approach that unlimited recall which the supporters of the plan do not at present advocate.

A more fundamental objection, which applies to any conceivable form of referendum on laws pronounced unconstitu-. tional, is that it offers us a crude and unsatisfactory means of obtaining the end desired. The purpose of the proposed referendum is to obtain, particularly in matters of natural right, popular expressions of the sense of social justice. Such expressions are to create precedents which the state courts are to follow. It is however, extremely improbable that the electorate will consciously attempt to express its sense of social justice. The great majority of the voters will express their varying judgments as to the probable effects, good or bad, of the particular measure submitted to them. If it be replied that the majority judgment will contain, by implication, an expression of its prevailing sense of

justice, it may be remarked that implications are matters of opinion, and that widely different implications may be discovered in every such popular decision. After every general election there appear widely different theories as to what was really "the verdict of the people." It may be added that successive referenda on different measures may well contain implications that cannot easily be reconciled. The difficulty which the courts now experience in determining the true reasons for their own decisions on constitutional questions will appear slight indeed in comparison with the difficulty which they will encounter if they be called upon to determine, first, what intuitions of social justice seem to be implied in a series of popular decisions, and, second, what rules of constitutional interpretation can be formulated that will express these intuitions. To the average lawyer such a process of developing law seems fantastic; hence the generally hostile reaction of the legal profession to the "recall" proposal. To the student of legal history, on the other hand, the process is not fantastic but familiar. It was by this very process-the expert interpretation of popular decisions-that law was taking form in the Mediterranean city-states twenty-five centuries ago and again among the Teutons fifteen centuries ago. If the reaction of the legal historian to the proposal is also hostile, it is not because the process seems novel but because it is seen to be archaic. Like the whole direct-government movement, of which it is a product, it is a reversion to the primitive processes of early civilization.

It is not yet formally proposed to apply a popular “recall” to the decisions of the federal judiciary; but there have been suggestions that, if the system should be introduced and should approve itself in the several states, it might be extended to the nation. The chief difficulty which will be encountered by anyone who endeavors to formulate a proposal for the submission of constitutional questions to the people of the United States is that, in public law, the people means the electorate, and that there is no national electorate. Nor can the forty-eight state electorates fitly be recognized for any purpose whatever as a national electorate. The conditions on which the different states grant the right to vote